DEPARTMENT OF TREASURY AND FINANCE IS RESPONSIBLE FOR THE MERLIN
PROJECT AGREEMENT RATIFICATION ACT 1998 (PROVISIONS ABOUT ROYALTIES)
NORTHERN TERRITORY OF AUSTRALIA
MERLIN PROJECT AGREEMENT RATIFICATION ACT 1998
As in force at 1 May 2016
Table of provisions
Part 1 Preliminary
1 Short title ......................................................................................... 1
2 Commencement .............................................................................. 1
3 Definitions ........................................................................................ 1
Part 2 Ratification and authorisation of
implementation of Agreement
4 Raftification of Agreement ............................................................... 2
5 Enforcement .................................................................................... 3
5A Calculation of royalties exclusive of GST ........................................ 3
Part 3 Security
6 Designated area .............................................................................. 3
7 Possessing uncut diamonds in designated area or mineral
lease ................................................................................................ 4
8 Entering and leaving designated area ............................................. 4
9 Powers of security officers in designated area and mineral
lease ................................................................................................ 7
10 Power to search vehices or property ............................................... 8
11 Detaining of persons in designated area or mineral lease ............... 8
12 Averments ..................................................................................... 11
13 Return of uncut diamonds.............................................................. 11
14 Protection of security officers and police ....................................... 12
15 Regulations.................................................................................... 12
Schedule
ENDNOTES
Merlin Project Agreement Ratification Act 1998 ii
NORTHERN TERRITORY OF AUSTRALIA
As in force at 1 May 2016
MERLIN PROJECT AGREEMENT RATIFICATION ACT 1998
An Act to ratify an agreement between the Northern Territory of
Australia and Ashton Mining Limited (A.C.N. 005 466 964) and to provide
for security of diamonds produced from the Merlin Project
Part 1 Preliminary
1 Short title
This Act may be cited as the Merlin Project Agreement Ratification
Act 1998.
2 Commencement
This Act comes into operation on the date fixed by the Administrator
by notice in the Gazette.
3 Definitions
In this Act, unless the contrary intention appears:
Agreement means the agreement between the Territory and the
Company that is set out in the Schedule and includes the
Agreement as varied from time to time in accordance with its
provisions.
authorised officer means a person who has a right to enter
premises or land when exercising or performing his or her powers
or functions under an Act, but does not include a member of the
Police Force.
Company has the same meaning as in the Agreement.
Contractors has the same meaning as in the Agreement.
controlled access point means an access point to a designated
area declared to be a controlled access point under section 6.
designated area means land or premises declared to be a
designated area under section 6.
Part 2 Ratification and authorisation of implementation of Agreement
Merlin Project Agreement Ratification Act 1998 2
Merlin Project has the same meaning as in the Agreement.
mineral lease has the same meaning as in the Agreement and
includes any mineral lease granted to the Company under
clause 10 of the Agreement.
property includes goods and articles of any kind.
security officer means a person who is:
(a) the holder of a security officer's licence granted under the
Private Security Act 1995; and
(b) employed by the Company or a Contractor.
uncut diamond includes any crushed diamond, diamond dust,
diamond fragment or partly cut or partly processed diamond.
vehicle has the same meaning as in the Traffic Act 1987.
Part 2 Ratification and authorisation of
implementation of Agreement
4 Raftification of Agreement
(1) The Agreement is ratified for the purposes of clause 2(1) of the
Agreement.
(2) The implementation of the Agreement is authorised.
(3) The provisions of the Agreement operate and take effect according
to their terms despite anything to the contrary in any Act or law in
force in the Territory.
(4) If a provision of the Agreement provides for an Act or law in force in
the Territory to be modified, the Act or law operates and takes
effect for the purposes of the Agreement as if the Act or law had
been modified as provided for in the Agreement.
(5) An Act passed after the commencement of this Act cannot amend,
modify or repeal a provision of the Agreement or affect the
operation of a provision of the Agreement unless the Act expressly
provides accordingly.
(6) The Territory, its Ministers, instrumentalities and authorities and any
local government authority are authorised, empowered and
required to do all things necessary or expedient to carrying out or
give full effect to the Agreement.
Part 3 Security
Merlin Project Agreement Ratification Act 1998 3
(7) Subject to this Act and the Agreement, the Company, its servants,
agents and Contractors must observe and comply with all Acts or
laws in force in the Territory applying in any way to the Merlin
Project.
5 Enforcement
(1) A decree of specific performance may be granted and enforced
against the Territory in respect of its obligations under the
Agreement in the same circumstances and on the same conditions
as a decree of specific performance could be granted and enforced
against a subject of the Crown.
(2) Subsection (1) applies despite any Act or law in force in the
Territory to the contrary.
5A Calculation of royalties exclusive of GST
(1) For the purpose of calculating or recalculating an amount of royalty
under clause 5 of the Agreement, subject to subsection (2), an
amount or value that affects the calculation or recalculation is to be
taken to be the amount or value exclusive of the amount of GST (if
any) payable in relation to a supply to which that amount or value
relates.
(2) Where an amount or value that affects the calculation or
recalculation referred to in subsection (1) is directly attributable to
an acquisition that relates to a supply that is input taxed, the
amount or value is to be taken to be the amount or value inclusive
of the amount of GST (if any) payable in relation to the acquisition
to which that amount or value relates.
(3) For the purposes of section 4(5), the Agreement is to be taken to be
amended to the extent necessary to give effect to subsections (1)
and (2).
(4) In subsections (1) and (2), acquisition, GST, input taxed and
supply have the same respective meanings as in the A New Tax
System (Goods and Services Tax) Act 1999 of the Commonwealth.
Part 3 Security
6 Designated area
(1) The Minister may declare land or premises in the Territory to be a
designated area.
Part 3 Security
Merlin Project Agreement Ratification Act 1998 4
(2) A declaration under subsection (1) is to be made:
(a) by notice in the Gazette; and
(b) only if the Minister is satisfied that diamonds are to be mined,
treated, processed, sorted, stored or cut on the land or
premises for the purposes of the Merlin Project.
(3) The declaration is to define the boundaries of the land or the
premises.
(4) The Minister may, by notice in the Gazette, declare an access point
to a designated area to be a controlled access point.
(5) A declaration takes effect on the day it is published in the Gazette
or on a later date that is specified in the declaration.
7 Possessing uncut diamonds in designated area or mineral
lease
(1) A person must not have an uncut diamond:
(a) in his or her possession; or
(b) under his or her control,
in a designated area or the mineral lease without lawful authority or
excuse.
Maximum penalty: 170 penalty units or imprisonment for
2 years.
(2) The burden of proving lawful authority or excuse lies on the person
claiming it.
8 Entering and leaving designated area
(1) A person must not:
(a) enter or leave a designated area;
(b) drive a vehicle into or out of a designated area; or
(c) take or consign any property into or out of a designated area,
other than through a controlled access point.
Maximum penalty: 85 penalty units or imprisonment for
12 months.
Part 3 Security
Merlin Project Agreement Ratification Act 1998 5
(2) A security officer may require a person:
(a) who is entering or leaving a designated area – to stop;
(b) driving a vehicle into or out of a designated area – to stop the
vehicle;
(c) taking or consigning property into or out of a designated
area – to permit the security officer to examine the property.
(3) A security officer may direct a person:
(a) to enter or leave a designated area;
(b) to drive a vehicle into or out of a designated area; or
(c) to take or consign any property into or out of a designated
area,
through a controlled access point specified by the security officer.
(4) A person must not:
(a) enter a designated area;
(b) drive a vehicle into a designated area; or
(c) take or consign any property into a designated area,
without the permission of a security officer who is on duty at a
controlled access point.
Maximum penalty: 8 penalty units.
(5) A security officer who is on duty at a controlled access point:
(a) may refuse a person permission to enter a designated area;
and
(b) is not required to give the person a reason for the person
being refused permission to enter the designated area.
(6) A security officer who is on duty at a controlled access point must
not refuse a member of the Police Force who is acting in the course
of his or her duty permission to enter a designated area unless the
member fails to produce to the security officer evidence that the
member:
(a) is a member of the Police Force; or
Part 3 Security
Merlin Project Agreement Ratification Act 1998 6
(b) has permission from the Company to enter the designated
area.
(7) A security officer who is on duty at a controlled access point must
not refuse an authorised officer permission to enter a designated
area unless the authorised officer fails to:
(a) state his or her name and address;
(b) state and provide evidence of his or her authority to enter the
designated area; or
(c) state the purpose for which he or she wishes to enter the
designated area.
(8) Before permitting a person to enter a designated area, a security
officer who is on duty at a controlled access point may require the
person to agree in writing to comply with the conditions of entry that
the security officer considers necessary for the security of the
designated area and of the operations, persons and property in the
designated area.
(9) The conditions may include that the person will allow a security
officer to search:
(a) the person (other than a search by way of an examination of
his or her body cavities);
(b) the person's vehicle or the vehicle the person is driving or is a
passenger in; or
(c) any property that is in the person's possession or under the
person's control.
(10) A person who contravenes or fails to comply with a direction given
or a requirement imposed by a security officer under this section
commits an offence.
Maximum penalty: 85 penalty units or imprisonment for
12 months.
(11) In subsection (8), a person does not include a member of the Police
Force referred to in subsection (6) or an authorised officer referred
to in subsection (7).
Part 3 Security
Merlin Project Agreement Ratification Act 1998 7
9 Powers of security officers in designated area and mineral
lease
(1) A security officer may do any of the following in a designated area
or the mineral lease:
(a) direct a person (except a member of the Police Force)
entering or in the designated area or mineral lease not to enter
or remain in a part of the designated area or mineral lease
specified by the security officer, either absolutely or unless he
or she is accompanied by a security officer;
(b) require a person in the designated area or mineral lease to
stop or require a person driving a vehicle in the designated
area or mineral lease to stop the vehicle;
(c) require a person in the designated area or mineral lease to
state:
(i) his or her name and address;
(ii) his or her authority for being in the designated area or
mineral lease; or
(iii) the purpose for which he or she is in the designated area
or mineral lease;
(d) direct or require a person entering or in the designated area or
mineral lease to do anything that the security officer considers
necessary for the security of the designated area or mineral
lease and of the operations, persons and property in the
designated area or mineral lease.
(2) A security officer may require a person (except a member of the
Police Force in the execution of his or her duty) who is in a
designated area or the mineral lease to leave the designated area
or mineral lease if:
(a) the person contravenes or fails to comply with a direction
given or requirement imposed under subsection (1); or
(b) the security officer is not satisfied that a person has a need to
remain in the designated area or mineral lease.
(3) A person who fails without lawful authority or excuse to comply with
a direction given or a requirement imposed under subsection (2)
commits an offence.
Maximum penalty: 8 penalty units.
Part 3 Security
Merlin Project Agreement Ratification Act 1998 8
(4) The burden of proving lawful authority or excuse lies on the person
claiming it.
(5) A security officer may use reasonable force:
(a) to stop a person who fails to comply with a direction given to
or a requirement imposed on the person under this section;
(b) to remove a person from a designated area or the mineral
lease who fails to comply with a direction given to or a
requirement imposed on the person under this section;
(c) to remove a vehicle or other property from a designated area
or the mineral lease; and
(d) to enter a vehicle for the purpose of removing it under
paragraph (c) or section 10(2)(b).
10 Power to search vehices or property
(1) A security officer may search a vehicle or other property that is:
(a) in the possession or under the control of a person in a
designated area or the mineral lease; or
(b) being driven, taken or consigned out of a designated area or
the mineral lease.
(2) For the purposes of subsection (1), the security officer may do the
following:
(a) dismantle the vehicle or other property;
(b) take the vehicle or property to a place and detain it there
pending the search or a further search.
(3) In this section, property does not include clothing worn by a
person.
11 Detaining of persons in designated area or mineral lease
(1) A security officer may detain a person who is in a designated area
or the mineral lease for a reasonable period if:
(a) the security officer suspects that the person has an uncut
diamond on his or her person or in his or her possession or
under his or her control without lawful authority or excuse;
(b) the security officer suspects that the person has stolen or is
concealing an uncut diamond; or
Part 3 Security
Merlin Project Agreement Ratification Act 1998 9
(c) the person does not have permission to be in the designated
area or mineral lease.
(2) As soon as practicable after a person is detained, the security
officer must notify a member of the Police Force that the person
has been detained.
(3) The security officer must:
(a) detain the person in a place set aside for that purpose in the
designated area; and
(b) deliver the person into the custody of a member of the Police
Force as soon as practicable after the member arrives at the
designated area or mineral lease.
(4) Without limiting subsection (1)(b), a security officer has reasonable
grounds for suspecting a person of stealing or concealing an uncut
diamond if the person refuses to permit a search to be conducted
after having agreed under section 8(8) to it being conducted.
(5) A member of the Police Force may search a person who is
detained under this section and any clothing worn by the person.
(6) The search must be carried out by a member of the Police Force of
the same sex as the person to be searched.
(7) If it is not immediately practicable for subsection (6) to be complied
with, the member of the Police Force:
(a) may cause the search to be carried out under the direction of
the member by a security officer of the same sex as the
person to be searched; or
(b) may:
(i) detain the person until the search can be conducted by a
member of the same sex as the person to be searched;
or
(ii) take the person to a place where the search can be
conducted by a member of the same sex as the person
to be searched.
(8) Subsections (5) and (7) do not authorise a search of a person by
way of an examination of the body cavities of the person by the
member of the Police Force or security officer conducting the
search.
Part 3 Security
Merlin Project Agreement Ratification Act 1998 10
(9) However, a member of the Police Force may arrange for a medical
practitioner nominated by the member to examine the body cavities
of a person detained under this section.
(10) The examination by a medical practitioner can only be conducted if:
(a) the person consents in writing to it being conducted; or
(b) a Local Court Judge approves it being conducted.
(11) The member of the Police Force may apply to a Local Court Judge
for the approval in person or by telephone.
(12) The Local Court Judge may approve the examination being
conducted if he or she is satisfied that the examination may provide
evidence of an offence.
(13) For the purposes of subsection (9), the member of the Police Force
may:
(a) detain the person until the medical practitioner conducts the
examination; or
(b) take the person to a place where the medical practitioner will
conduct the examination.
(14) The examination by the medical practitioner is to be conducted:
(a) in the presence of a member of the Police Force of the same
sex as the person to be examined; or
(b) if that is not immediately practicable – in the presence of a
security officer of the same sex as the person to be examined.
(15) A member of the Police Force may use reasonable force, and may
call on any assistance that he or she considers necessary, in order:
(a) to detain a person under this section;
(b) to carry out a search under this section; or
(c) to facilitate a search or examination being carried under this
section.
(16) A person must not:
(a) resist being detained under this section;
Part 3 Security
Merlin Project Agreement Ratification Act 1998 11
(b) escape or attempt to escape:
(i) from a place where he or she is being detained under
this section; or
(ii) from the custody of a member of the Police Force or a
security officer;
(c) obstruct or hinder a member of the Police Force or a security
officer who is carrying out a search under this section; or
(d) obstruct or hinder a medical practitioner who is carrying out an
examination under this section.
Maximum penalty: 170 penalty units or imprisonment for
2 years.
(17) A medical practitioner is authorised to carry out an examination of
the body cavities of a person under this section.
(18) No action lies against a medical practitioner for anything reasonably
done by him or her for the purposes of the examination.
(19) The burden of proving lawful authority or excuse in
subsection (1)(a) lies on the person claiming it.
12 Averments
In a prosecution for an offence against this Act, an averment in the
complaint that:
(a) the place where the offence is alleged to have occurred was,
or was in, a designated area or the mineral lease;
(b) a place was a controlled access point for a specified purpose;
or
(c) a person was at a material time a security officer,
is to be taken to have been proved in the absence of proof to the
contrary.
13 Return of uncut diamonds
(1) On finding a person guilty of an offence committed within a
designated area or the mineral lease and involving the stealing,
receiving or possession of uncut diamonds, a court must order the
uncut diamonds to be delivered to the Company.
Part 3 Security
Merlin Project Agreement Ratification Act 1998 12
(2) Subsection (1) applies:
(a) to an offence under this or any other Act; and
(b) notwithstanding any other law or Act.
14 Protection of security officers and police
A security officer or member of the Police Force cannot be charged
with or be found guilty of an offence of obstructing or hindering a
person in exercising a power or performing a function conferred on
the person under an Act or law in force in the Territory in respect of
anything done by the security officer or member in exercising a
power or performing a function under this Act.
15 Regulations
(1) The Administrator may make regulations, not inconsistent with this
Act, prescribing all matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or
giving effect to this Act.
(2) Without limiting subsection (1), the Regulations may:
(a) require the Company to erect and maintain fences, walls and
other physical barriers around a designated area in
accordance with the Regulations;
(b) require the Company to provide and designate places in
accordance with the Regulations for:
(i) persons to enter and leave a designated area;
(ii) vehicles to be driven into and out of a designated area;
and
(iii) taking or consigning of property into and out of a
designated area;
(c) require the Company to erect and maintain notices and signs
at or near the perimeter of a designated area in accordance
with the Regulations;
(d) prohibit the damaging, defacing, removal or destruction of
fences, barriers, signs and notices erected under the
Regulations;
Part 3 Security
Merlin Project Agreement Ratification Act 1998 13
(e) regulate how persons are to be detained under the Act and, in
particular, requiring that areas or places be set aside in
designated areas to detain persons;
(f) regulate how searches and examinations of persons are to be
carried out under this Act;
(g) regulate how any vehicle and property detained under this Act
is to be searched and stored;
(h) provide for offences, including regulatory offences, against the
Regulations;
(j) provide for penalties of not more than 85 penalty units for
offences against the Regulations.
(3) The Regulations may be made to apply:
(a) generally or in a particular class of case or particular classes
of cases;
(b) at all times or at specified time or specified times; or
(c) to all designated areas or to a specified designated area or
specified designated areas.
(4) The Regulations may be made to require a matter affected by the
Regulations to be:
(a) in accordance with a specified standard or requirement; or
(b) as approved by, or to the satisfaction of, a specified person or
body or a specified class of person or body.
(5) The Regulations may confer a discretionary authority on a specified
person or body or a specified class of persons or bodies.
Schedule
Merlin Project Agreement Ratification Act 1998 14
Schedule
section 4
THE NORTHERN TERRITORY OF AUSTRALIA MERLIN PROJECT
AGREEMENT
THIS AGREEMENT is made the 12th day of October 1998
BETWEEN:
The NORTHERN TERRITORY OF AUSTRALIA care of the Department of
Mines and Energy of Paspalis Centrepoint Building, Smith Street, Darwin
0800 in the Northern Territory of Australia (the Territory)
AND:
ASHTON MINING LIMITED (A.C.N. 005 466 964) whose registered office is
situated at Level 4, 441 St Kilda Road, Melbourne 3000 in the State of Victoria
(the Company)
WHEREAS:
A. In 1992, the Company discovered diamond bearing kimberlites
called the Merlin prospect in the Boomerang Creek District in the
Northern Territory of Australia.
B. On 19 December 1996, the Company made application for the
grant of a mineral lease known as MLN 1154 for the mining of
diamond bearing ore in the Boomerang Creek District. The lease
was granted on 15 June 1998.
C. The Company wishes to commence development of the Merlin
Project.
D. The Parties wish to enter into this Agreement in respect of the
Merlin Project for the purposes of:–
(a) facilitating the development, construction and operation of the
Merlin Project;
(b) ensuring that adequate security procedures are in place in
respect of the Merlin Project; and
(c) dealing with the manner in which royalties are to be calculated
and paid to the Territory in respect of the Merlin Project.
Schedule
Merlin Project Agreement Ratification Act 1998 15
NOW THIS AGREEMENT WITNESSES as follows:
Definitions and Interpretation
(1) In this Agreement, unless the contrary intention appears:
Agreement means this Agreement as varied from time to time.
Contractors includes Sub-Contractors.
Merlin Project means the project to be developed by the Company
for the purposes of the mining and processing of diamond bearing
ore to enable the recovery of diamonds, and all related activities on
the mineral lease.
mineral lease means mineral lease N1154 granted to the
Company on 15 June 1998, and includes any renewal or
replacement lease in respect of the whole or part of the original
area of the mineral lease.
Mortgage means any mortgage, charge, assignment,
encumbrance or other dealing by way of security provided in
relation to finance and facilities arranged for the purpose of
developing or operating the Merlin Project.
ore means ore known as kimberlite containing diamonds together
with any associated minerals which must necessarily be mined in
conjunction with the kimberlite.
Services means the services of engineers, surveyors, architects
and other professional consultants, experts and specialists, project
managers, manufacturers, wholesalers, retailers, suppliers and
Contractors and includes any other service necessary or incidental
to the construction, continued operation or care and maintenance of
the Merlin Project.
(2) This Agreement shall be interpreted in accordance with the
Interpretation Act 1978 as if it were a document subject to
interpretation in accordance with that Act.
Ratification by Parliament
(1) This Agreement, other than subclause (2) (which shall commence
on the date this Agreement is signed by all parties), shall have no
force or effect and shall not be binding on any party unless and until
it is signed by all parties and ratified by the Legislative Assembly of
the Northern Territory of Australia, with the assent as provided by
the Northern Territory (Self Government) Act 1978
(Commonwealth).
Schedule
Merlin Project Agreement Ratification Act 1998 16
(2) The Territory shall take all necessary action to have submitted to
the Legislative Assembly at the earliest practicable date a Bill for an
Act to ratify this Agreement.
3. Term
This Agreement shall commence on the date that it has been
ratified in accordance with clause 2 and shall continue for the term
of the mineral lease unless the Agreement is terminated earlier in
accordance with the terms of this Agreement.
4. Security
(1) The Territory shall enact and maintain legislation to give effect to
any agreement between the Territory and the Company for the
provision of security for the Merlin Project.
(2) In order to give effect to the security provisions, the Territory shall,
at its discretion, make available such personnel as it considers
appropriate from the Northern Territory Police Force Gold Squad.
Nothing in this provision shall require the Territory to meet the cost
of any personnel or medical practitioners required for the
implementation of the security provisions other than the provision of
Northern Territory Police Force personnel.
(3) The Company shall enter into an arrangement with the Northern
Territory Minerals Council to provide a contribution to the costs of
any assistance provided by the Northern Territory Police Force
Gold Squad.
5. Royalty under Mineral Royalty Act 1982
(1) The Company shall not, by virtue only of this Agreement, be
exempt from rent, royalty, duties, fees, levies, taxes or any other
impost except as may be provided in this clause 5.
(2) Royalty shall be payable in respect of the Merlin Project in
accordance with the provisions of the Mineral Royalty Act 1982,
and, for the purpose of calculating such royalty, the Mineral Royalty
Act 1982 is modified to the extent necessary to give effect to this
clause.
(3) For the purposes only of determining gross realization and
operating costs in respect of the Merlin Project:
(a) the production unit is to be treated as though it includes the
treatment and sorting facility or facilities at Perth in the State
of Western Australia used by the Company for the purposes of
the Merlin Project; and
Schedule
Merlin Project Agreement Ratification Act 1998 17
(b) the saleable mineral commodity is to be deemed to have left
the production unit at the time that treatment and sorting at the
treatment and sorting facility or facilities at Perth are complete.
The Company shall, within twenty-eight (28) days of
commencement of this Agreement, and within twenty-eight
(28) days of any change, notify the Territory in writing of the
address of the facility or facilities used by the Company for the
purposes of the Merlin Project in Perth, Western Australia.
(4) The Company shall effect and keep in force a policy of insurance in
respect of any theft, destruction or any other losses of mineral
commodity for the period from the date that the mineral commodity
leaves the mineral lease until the saleable mineral commodity is
sold, or valued for the purposes of subclause 5(i).
The Company shall:
(i) when reasonably required by the Territory to do so,
provide evidence of the currency of the insurance
required under this sub-clause;
(ii) not do or omit to do or permit to be done or omitted any
act whereby any insurance required under this sub-
clause may be rendered void or voidable;
(iii) indemnify the Territory against all losses and damages
suffered by the Territory as a result of a breach by the
Company of this sub-clause.
(5) Where there has been a removal without sale of a saleable mineral
commodity from the production unit for the Merlin Project, then the
value of that saleable mineral commodity for the purposes of
section 4A(3) of the Mineral Royalty Act 1982 shall be as follows:
(i) where the Company has nominated in writing to the
Territory that saleable mineral commodity is to be
withheld from sale by the Company, the value shall be
the value attributed to such saleable mineral commodity
by an independent Valuer appointed by the Territory.
The Territory shall appoint a Valuer for the purposes of
conducting a valuation in accordance with this subclause
within 30 days of receipt of notification by the Company
that saleable mineral commodity is to be withheld from
sale. In the event that the Territory fails to appoint a
Valuer within 30 days, the Company may appoint the
Valuer. For the purpose of allowing the valuation to be
conducted, the Company shall ensure that no cutting or
polishing or further treatment of the saleable mineral
Schedule
Merlin Project Agreement Ratification Act 1998 18
commodity is undertaken until such time as the Territory
has notified the Company in writing that the valuation
has been completed. The costs of any valuations
conducted under this sub-clause shall be shared equally
by the Territory and the Company ;
(ii) in every other case, the value of the saleable mineral
commodity shall be calculated in accordance with the
following formula:
GR = SP + EV – EV(previous year) + AOP
where:
GR is the value of the saleable mineral commodity for
royalty purposes;
SP is the sum of:
(A) the sales proceeds, received or receivable by the
Company for all arms length sales of saleable
mineral commodity made during the royalty year,
calculated in Australian Dollars, and, where any
sales take place in another currency, calculated by
reference to the Reserve Bank of Australia
representative rate for the date of the sale; and
(B) the value (calculated in the same manner as a
valuation for the purpose of sub-clause (5)(i)) of the
saleable mineral commodity sold during the royalty
year in any non arms-length transactions;
EV is the value, in Australian Dollars, attributed by the
Company to the saleable mineral commodity removed
from the production unit without sale and on hand at the
end of the royalty year, being the value which the
Company estimates is equal to the amount for which the
Company could sell the saleable mineral commodity on
the open market on the last day of the royalty year;
EV (previous year) is the EV amount used in the GR
calculation for the previous year; and
AOP is:
(A) the value of any saleable mineral commodity
removed from the production unit without sale and
not sold during the royalty year, nor on hand at the
end of the royalty year, which value shall be the
amount equivalent to the price which would have
Schedule
Merlin Project Agreement Ratification Act 1998 19
been received for the saleable mineral commodity
on the open market; less
(B) the amount included in AOP in any previous royalty
year in respect of any saleable mineral commodity
where the sales proceeds for that saleable mineral
commodity are included in the SP calculation in the
current royalty year
and the result may be a negative amount.
For the purpose of this subclause, on hand includes in
the possession of a sales agent and a transport carrier.
(6) Words used in this clause and defined in the Mineral Royalty Act
1982 have the same meaning as in that Act for the purposes of this
clause, and this clause is to be interpreted as though it were part of
that Act.
(7) The Mineral Royalty Act 1982 shall apply to this clause as though
this clause were part of that Act.
6. Infrastructure
(1) The Territory shall use its best endeavours to comply with any
request by the Company for the issue of any necessary consents,
permits, licences, easements, rights of way, approvals or mining
tenements to allow construction, maintenance and operation of all
infrastructure and facilities which the Company determines are
required for the Merlin Project.
(2) Nothing in this clause shall require the Territory to take any action
which might be required as a pre-requisite to the issue of such
consent, permits, licences, easements, rights of way, approvals or
mining tenements pursuant to the Native Title Act 1993 of the
Commonwealth or any Territory legislation relating to native title.
(3) Nothing in this Agreement shall require the Territory to provide any
infrastructure or facilities for the Merlin Project including
construction and maintenance of roads, tracks and highways,
provision of electricity, water or gas supply and electronic
communication facilities.
(4) Nothing in this Agreement shall entitle the Territory to require the
provision by the Company of any infrastructure or facilities including
construction and maintenance of roads, tracks and highways,
provision of electricity, water or gas supply and electronic
communication facilities.
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Merlin Project Agreement Ratification Act 1998 20
7. Use of Professional Services, Labour and Materials
(1) The Company shall, for the purposes of the Merlin Project, use its
best endeavours to:
(a) use for labour those persons available within the Northern
Territory with suitable qualifications, skills and experience;
(b) use Services providers located and available within the
Northern Territory who are competent and capable to provide
those Services, or if such Services are not available within the
Northern Territory then as far as practical use Services
otherwise available within Australia;
(c) when preparing specifications, calling for tenders and letting
contracts for works, materials, plant, equipment and supplies,
ensure that the Services providers within the Northern
Territory are given a reasonable opportunity to tender or
quote;
(d) give, and require the Contractors of the Company to give,
preference to workers and Services providers within the
Northern Territory when letting contracts or placing orders for
works, materials, plant, equipment and supplies where price,
quality, delivery, service and compliance with safety and
environmental requirements are equal to or better than that
obtainable elsewhere and where the workers have suitable
qualifications, skills and experience; and
(e) consult with, and have regard to any advice provided by, the
Northern Territory Industry Search and Opportunities Office on
the manner in which local participation in the Merlin Project
can be maximised.
(2) The Company shall, when requested in writing by the Territory
Minister with responsibility for the Mining Act to do so (such request
not to be made more frequently than annually) submit a written
report detailing:
(a) the Company’s actual expenditure on Services providers and
labour in the Northern Territory compared with the Company’s
Australian and overseas expenditure on Services providers for
the purpose of the Merlin Project;
(b) the Services providers who are located in the Northern
Territory and who have supplied goods and Services for the
purposes of the Merlin Project;
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Merlin Project Agreement Ratification Act 1998 21
(c) the consultations with, and advice provided by, the Northern
Territory Industry Search and Opportunities Office, and the
extent to which such advice has been followed by the
Company; and
(d) an explanation of why labour and Services have been sourced
from outside the Northern Territory, and details of the
opportunities that have been provided to Services providers
within the Northern Territory to bid for such Services,
and shall use its best endeavours to provide similar information
concerning the compliance of any Contractors with paragraph (1)(d)
of this clause.
8. Non-Discrimination
(1) Except as provided by this Agreement and section 64 of the Mining
Act, the Territory must not impose or allow its instrumentalities or
authorities, or any local government authority to impose
discriminatory taxes, rates or charges on or in respect of the
activities of the Company, its agents or Contractors in respect of the
Merlin Project, including but without limitation charges or levies
related to the maintenance of the Carpentaria Highway and
provisions of signs thereon in the vicinity of the Merlin Project.
(2) The Territory must not take, or permit to be taken, any other
discriminatory action which would deprive the Company of full
enjoyment of the rights granted or to be granted under this
Agreement, provided that nothing in this subclause shall prevent
the Territory, its servants and agents, from taking any lawful action
under a law in force in the Territory relating to the protection,
conservation or rehabilitation of the environment as provided for by
the Mining Act and the mineral lease.
9. Finance
(1) The Company shall notify the Territory of the name, address,
telephone and facsimile numbers of any party which has the benefit
of a Mortgage:
(a) upon execution of this Agreement;
(b) within fourteen (14) days of the date of any additional
Mortgage: and
(c) within fourteen (14) days of any change in such details.
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Merlin Project Agreement Ratification Act 1998 22
(2) The Territory shall, if it gives a notice, request or demand to the
Company under this Agreement, concerning other than routine
matters, provide to a party which has the benefit of a Mortgage a
copy of that notice, request or demand.
(3) It is agreed between the parties that such notice or written
statement provided by the Territory to the Company shall in no way
affect the Territory’s remedies at law against the Company.
(4) A party which has the benefit of a Mortgage shall not be liable for
the Company’s operation of the Merlin Project or for the
performance of any of the Company’s obligations under this
Agreement provided that where pursuant to any Mortgage such a
party conveys to itself an interest in a mineral lease and the Merlin
Project or otherwise assumes liabilities of the Company in respect
of the Merlin Project, such party may then become so liable to the
extent of the interest so conveyed or the liability so assumed.
10. Application of Agreement to further Mineral Leases
(1) The terms of this Agreement shall apply, to the extent that it is
possible, to any further mineral lease granted to the Company for
the mining of diamond bearing ore where the whole or part of the
processing of that ore takes place at the mill established or to be
established within Mineral Lease N1154, provided that at least part
of each such mineral lease is not further than 100 kilometres from a
point on the boundary of Mineral Lease N1154.
(2) In the event that this Agreement has application to another mineral
lease or mineral leases by operation of subclause (1), the definition
of "mineral lease" in clause 1 of this Agreement shall be read so as
to include the further mineral lease or further mineral leases.
(3) In the event that this Agreement has application to another mineral
lease or mineral leases by operation of subclause (1), the Territory
shall amend the legislation enacted in accordance with clause 4
hereof so that it has application to the further mineral lease or
further mineral leases.
11. Variation
(1) The parties may vary this Agreement by further agreement in
writing signed by the Territory and the Company.
(2) The Territory must cause any further agreement made pursuant to
this clause to be laid before the Legislative Assembly at the next
sitting of the Legislative Assembly.
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Merlin Project Agreement Ratification Act 1998 23
(3) The Legislative Assembly may, within ten (10) full sitting days
including the day upon which the further agreement was laid before
it, pass a resolution disallowing the further agreement, but if after
the last day in which the further agreement might have been
disallowed, the Legislative Assembly has not passed such a
resolution, the further agreement shall have effect from and after
that last day.
12. No Assignment
(1) The Company must not assign its rights or obligations under this
Agreement or any of them without the prior written consent of the
Territory, which consent shall not be unreasonably withheld.
(2) The Company may mortgage, charge or encumber the mineral
lease and the Minister must consent to that mortgage, charge or
encumbrance for the purposes of the Mining Act, provided that the
consent of the Territory shall be required under subclause (1) for
any subsequent sale or transfer by the mortgagee, charge, or
encumbrancee exercising its power under the mortgage, charge or
encumbrance.
(3) Nothing in this Agreement shall operate to restrict the ability of the
Company to mortgage, charge, encumber or sell or assign the
mineral lease.
13. Power to Vary Periods
Notwithstanding any provision in this Agreement, the Territory may
in writing at the request of the Company vary any period in this
Agreement whether or not the period to be varied has expired.
14. Force Majeure
(1) Subject to this clause, the time for the performance of any
obligation of this Agreement or the mineral lease, except an
obligation to pay money, which performance is delayed by
circumstances beyond the reasonable control of the party
responsible for the performance of such obligation, shall be
extended by the period of the delay but no longer and, subject to
subclauses (2) and (3), the party shall not be liable in damages to
the other nor shall any action, claim or demand be taken or made
against a party by reason solely of such delay in the performance of
such obligation in circumstances beyond the reasonable control of
that party.
(2) The party responsible for the performance of any such obligation
shall use all reasonable diligence to remove the said circumstances
and minimise the effects of the said circumstances as soon as is
reasonably practicable after notice of the same shall have come to
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Merlin Project Agreement Ratification Act 1998 24
its attention save and except that the settlement of any strike, lock
out or any other industrial dispute shall be entirely in the discretion
of any party directly concerned therewith and nothing herein shall
require the settlement thereof by acceding to the demands of the
opposing party or parties where such settlement is considered
inadvisable in the absolute discretion of the party so concerned.
(3) A party shall as soon as reasonably practicable give notice to the
other party of:
(i) each event alleged to constitute circumstances beyond
its reasonable control;
(ii) any delay in the performance of any obligation of this
Agreement and the mineral lease;
(iii) the likely duration of the delay; and
(iv) the cessation of the circumstances.
(4) In this clause, the expression circumstances beyond the
reasonable control shall include, without limitation, earthquakes,
floods, storms, tempests, cyclones, wash-aways, fires not caused
by the wilful default or gross negligence of the party responsible for
such performance, acts of God, acts of war, acts of public enemies,
riots and civil commotions, strikes, lock-outs, bans, go slow
activity, stoppages, restraints of labour or other similar acts
(whether partial or entire), acts or omissions of the Commonwealth
or any instrumentality of the Commonwealth (whether legislative,
executive, or administrative) or any other government or
governmental authority or instrumentality or any local government
authority (whether legislative, executive or administrative)
shortages of labour or of essential materials, reasonable inability to
obtain contractors or retain contractors, delays of contractors,
actual or reasonably forecast inability to profitably sell the
diamonds, delays or restrictions on the remittance or provision of
funds to a party, inability or delay in obtaining any government or
local government authority approval, permit or licence or any other
cause whether of a kind specifically enumerated above or otherwise
which is not reasonably within the control of the party delayed.
15. Termination
(1) In the event that the Company:
(a) is in default in the due and punctual performance or
observance of any of the provisions in this Agreement, which
default the Territory reasonably considers material;
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Merlin Project Agreement Ratification Act 1998 25
(b) subject to clause 14 abandons the Merlin Project and does not
resume operations on the Merlin Project and for the purposes
of this provision, abandons shall include placing the Merlin
Project on a care and maintenance basis for a period of more
than three (3) years or a number of periods which total more
than three (3) years, provided that the Territory may in writing
at its discretion extend that period of three (3) years; or
(c) repudiates any obligation the Territory reasonably considers
material under this Agreement,
the Territory may give notice in writing to the Company requiring the
Company to remedy that default or to pay to the Territory such sum
as is specified in the notice, being a sum which, in the opinion of
the Territory, is adequate to compensate the Territory, its servants,
agents, contractors, instrumentalities, authorities and any relevant
local government authorities for that default.
(2) If within 150 days of the said notice the Company has neither
rectified the default nor paid compensation in accordance with the
notice, the Territory may terminate this Agreement by giving not
less than 30 days written notice to the Company.
Provided that if the Company, upon receipt of the notice referred to
in subclause (1) promptly commences to use and continues to use
its best endeavours to remedy the default, the Minister shall extend
the notice period for such further period as is reasonably necessary
to remedy the default.
Provided further that if the Company has given the Territory a
notice in accordance with clause 17 of this Agreement, and such
notice has been given not less than 90 days after the notice
referred to in subclause (1), the Territory shall not give the
Company a notice of termination under sub-clause (2) until the
dispute resolution process in clause 17 has terminated.
(3) The Territory may terminate this Agreement by giving not less than
ninety (90) days notice in writing to the Company if the Company
goes into liquidation (other than voluntary liquidation for the
purposes of reconstruction) and the Agreement shall terminate at
the expiration of that ninety (90) day period unless within that period
the interest of the Company in this Agreement is assigned to an
assignee approved in writing by the Territory.
Schedule
Merlin Project Agreement Ratification Act 1998 26
(4) The Company may terminate this Agreement by giving not less
than one hundred and eighty (180) days notice in writing to the
Territory in the event that the Territory:–
(a) is in default in the due and punctual performance or
observance of the provisions in this Agreement, which default
the Company reasonably considers material and which has
not been remedied within that notice period;
(b) enacts legislation which significantly increases the obligations
of the Company in relation to the Merlin Project; or
(c) enacts legislation which significantly diminishes:–
(i) the rights of the Company; or
(ii) the profitability of the Merlin Project;
and this Agreement shall terminate upon the expiration of that
notice period unless such default has been sooner remedied, or
unless such legislation has been sooner repealed.
(5) Notice given pursuant to this clause shall specify the nature of the
default or the ground entitling the party to exercise such right of
termination.
(6) A party who has the benefit of a Mortgage shall be entitled but not
obliged to rectify the default within the relevant notice period.
(7) This Agreement may be terminated at any time by agreement in
writing signed by the Territory and the Company.
16. Effects of Termination
(1) On termination of this Agreement, the Company shall immediately
pay all amounts due under this Agreement but unpaid to the
Territory.
(2) Termination of this Agreement shall not terminate the mineral lease
or any lease, licence, easement or right of way.
(3) Notwithstanding any notice of termination by the Territory, nothing
in this Agreement shall prevent the Territory from administering and
enforcing any law in force in the Territory in its application to the
Company, the Merlin Project and the mineral lease.
(4) Any obligations of confidentiality between the parties shall continue
after termination of this Agreement unless otherwise agreed.
Schedule
Merlin Project Agreement Ratification Act 1998 27
(5) Termination of this Agreement shall not otherwise affect any
accrued rights or remedies a party may have against the other
party.
17. Resolution of Disputes
(1) A party shall not commence court proceedings (except proceedings
seeking interlocutory relief) in respect of a dispute concerning any
clause of this Agreement (a Dispute) unless it has complied with
this clause.
(2) A party claiming that a Dispute has arisen shall notify the other
party to the Dispute by notice in writing.
(3) Within ten (10) days after a notice is given under subclause (2)
each party to the Dispute shall nominate in writing a representative
authorised to settle the Dispute on its behalf.
(4) The parties shall ensure that during the 45 day period after a notice
is given under subclause (2) (or such longer period as is agreed
between the parties), their representatives shall use their best
endeavours:
(a) to resolve the Dispute; or
(b) to agree on:
(i) a process to resolve all or any part of the Dispute without
court proceedings (for example, arbitration, mediation,
conciliation, executive appraisal or independent expert
determination); and
(ii) the selection and payment of any third party to be
engaged by the parties and the involvement of any
dispute resolution organisation.
(5) The role of any third party will be to assist in negotiating a
resolution of the Dispute. A third party may not make a decision that
is binding on a party unless that party's representative has so
agreed in writing.
(6) Any information or documents disclosed by a representative under
this clause:
(a) must be kept confidential; and
(b) may not be used except to attempt to settle the Dispute.
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Merlin Project Agreement Ratification Act 1998 28
(7) Each party must bear its own costs of resolving a Dispute under
this clause and the parties must bear equally the costs of any third
party engaged.
(8) After the forty-five (45) day period referred to in subclause (4) (or
longer period agreed between the representatives), a party that has
complied with subclauses (2) to (4) may terminate the dispute
resolution process by giving notice to the other parties to the
Dispute.
(9) If a party to a Dispute does not comply with any provision of
subclauses (1) to (4) the other party to the Dispute will not be
bound by subclause (1) to (4).
(10) In the event that a Dispute arises in relation to termination the
dispute resolution process shall be commenced within the notice
period referred to in clause 15.
18. Territory Assistance
(1) The Company may from time to time make such application to the
Commonwealth or to a Commonwealth agency, authority or
instrumentality for the grant to it of any permit, consent, approval,
authorisation, licence under the laws of the Commonwealth
required for the purposes of the Merlin Project.
(2) On the request by the Company and where the Territory considers
it appropriate, the Territory shall make representations to the
Commonwealth or to the Commonwealth agency, authority or
instrumentality concerned in support of the grant to the Company of
any permit, consent, approval, authorisation, licence or permission
referred to in subclause (1).
19. No Requirement to Register this Agreement
For the avoidance of doubt, it is hereby agreed that this Agreement
does not require approval and registration in accordance with the
provisions of Section 173 of the Mining Act.
20. Notices
(1) A notice given under this Agreement shall be:–
(a) in writing; and
(b) addressed to the address of the recipient specified in
accordance with this Agreement or as altered by notice given
in accordance with this clause; or
Schedule
Merlin Project Agreement Ratification Act 1998 29
(c) hand delivered or sent by pre-paid post to that address or sent
by telex or facsimile transmission and immediately confirmed
by hand delivery or pre-paid post.
(2) A notice given in accordance with subclause (1) shall be deemed
received:–
(a) if hand delivered, on the date of delivery;
(b) if sent by pre-paid post three (3) days after the date of posting;
or
(c) if sent by facsimile, on receipt by the sender of a transmission
report confirming transmission of the facsimile.
Provided that any notice hand delivered or sent by facsimile and
received after 5.00 pm on a day shall be deemed to have been
delivered at 9.00 am on the next business day.
(3) Notice shall be sent to the parties at the following addresses:–
The Territory
The Secretary
Department of Mines and Energy
Paspalis Centrepoint Towers Building
Smith Street
DARWIN NT 0800
Telephone: (08) 8999 5461
Facsimile: (08) 8941 4284
The Company
The Company Secretary
Ashton Mining Limited
Level 4
441 St Kilda Road
MELBOURNE VIC 3001
Telephone: (03) 9828 4200
Facsimile (03) 9828 4211
or such other address which is advised in writing by one party to the
other parties from time to time.
21 Applicable Law
This Agreement is governed by the laws in force in the Northern
Territory of Australia and, the Company shall comply with all
applicable laws of the Commonwealth and, subject to this
Agreement, all laws of the Territory applicable to the Merlin Project.
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Merlin Project Agreement Ratification Act 1998 30
IN WITNESS WHEREOF the parties hereto have hereunto set their
hands and seals the day and year herein before written.
SIGNED by Eric Houguet Poole, )
Minister for Resource Development )
for and on behalf of the NORTHERN )
TERRITORY OF AUSTRALIA ) (Sgd.) Eric Poole
(Sgd.) R L Adams
..............................
Witness
ASHTON MINING LIMITED )
(A.C.N. 005 466 964) by its )
Attorney MICHAEL BOHM )
under Power of Attorney )
dated 5 October 1998 )
in the presence of: ) (Sgd.) Michael Bohm
(Sgd.) Markus Ziemer
.............................……
Witness
ENDNOTES
Merlin Project Agreement Ratification Act 1998 31
ENDNOTES
1 KEY
Key to abbreviations
amd = amended od = order
app = appendix om = omitted
bl = by-law pt = Part
ch = Chapter r = regulation/rule
cl = clause rem = remainder
div = Division renum = renumbered
exp = expires/expired rep = repealed
f = forms s = section
Gaz = Gazette sch = Schedule
hdg = heading sdiv = Subdivision
ins = inserted SL = Subordinate Legislation
lt = long title sub = substituted
nc = not commenced
2 LIST OF LEGISLATION
Merlin Project Agreement Ratification Act 1998 (Act No. 84, 1998)
Assent date 7 December 1998
Commenced 22 December 1998 (Gaz S47, 22 December 1998)
Financial Relations Agreement (Consequential Provisions) Act 2000 (Act No. 32, 2000)
Assent date 27 June 2000
Commenced 1 July 2000 (s 2)
Penalties Amendment (Children and Families, Health and Primary Industry, Fisheries
and Resources) Act 2011 (Act No. 28, 2011)
Assent date 31 August 2011
Commenced 21 September 2011 (Gaz G38, 21 September 2011, p 4)
Local Court (Related Amendments) Act 2016 (Act No. 8, 2016)
Assent date 6 April 2016
Commenced 1 May 2016 (s 2, s 2 Local Court (Repeals and Related
Amendments) Act 2016 (Act No. 9, 2016) and Gaz S34,
29 April 2016)
3 GENERAL AMENDMENTS
General amendments of a formal nature (which are not referred to in the table
of amendments to this reprint) are made by the Interpretation Legislation
Amendment Act 2018 (Act No. 22 of 2018) to: ss 1 and 3 and sch.
4 LIST OF AMENDMENTS
s 5A ins No. 32, 2000, s 46
ss 7 – 9 amd No. 28, 2011, s 5
s 11 amd No. 28, 2011, s 5; No. 8, 2016, s 45
s 15 amd No. 28, 2011, s 5