Water Resources (Ensham Joint Venture) Regulation 1994 (QLD)

Queensland Subordinate Legislation 1994 No. 277 Water Resources Act 1989 WATER RESOURCES (ENSHAM JOINT VENTURE) REGULATION 1994 TABLE OF PROVISIONS Section Page 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2 Approval of Corporation supplying water (s 3.20 of the Act) . . . . . . . . . . . . 2 SCHEDULE . . . . . . . . . . . . . . . . . . . . . . . . . 3 AGREEMENT

s1 2 s2 Water Resources (Ensham Joint Venture) No. 277, 1994 ˙ Short title 1. This regulation may be cited as the Water Resources (Ensham Joint Venture) Regulation 1994 . ˙ Approval of Corporation supplying water (s 3.20 of the Act) 2.(1) The Corporation may supply water to the Ensham Joint Venture under the agreement set out in the Schedule. (2) In this section, “Ensham Joint Venture” has the meaning given in the agreement.

3 Water Resources (Ensham Joint Venture) No. 277, 1994 ¡ SCHEDULE AGREEMENT section 2(1) THIS AGREEMENT is made the TWENTY-FIFTH day of MARCH 1994 BETWEEN the PRIMARY INDUSTRIES CORPORATION the Corporation constituted by the PrimaryIndustriesCorporation Act1992 (“the Corporation”) AND IDEMITSU QUEENSLAND PTY LIMITED (A.C.N. 010 236 272) (“Idemitsu”), BLIGH COAL LIMITED (A.C.N. 010 186 393) (“Bligh Coal”) and LUCKY-GOLDSTAR INTERNATIONAL (AUSTRALIA) PTY LTD (A.C.N. 002 806 831) (“Lucky-Goldstar”), C/- Level 20, AMP Place, 10 Eagle Street, Brisbane, Queensland (all being collectively referred to in this Agreement with their permitted assignees or transferees as “Ensham Joint Venture”). RECITALS A. The Corporation has constructed works, including Fairbairn Dam and Selma Weir, to regulate flow in the Nogoa River adjacent to the town of Emerald in the State of Queensland. B. Ensham Joint Venture wishes to draw water from the Nogoa River for purposes associated with the development of, and the production of coal from, mining leases.

4 Water Resources (Ensham Joint Venture) No. 277, 1994 C. The Corporation has agreed to supply water to Ensham Joint Venture from the Nogoa River subject to the terms and conditions set out in this Agreement. 1. INTERPRETATION 1.1 In this Agreement: “Share” means the percentage share of a party to the Ensham Joint Venture; “Mining Leases” means - (a) any mining lease and any renewal or extension of any mining lease; (b) any related lease, licence or other right and any renewal or extension of a related lease, licence or other right; granted under the MineralResourcesAct1989 within Exploration Permit for Coal No 505. “Works” means the pump, pipeline and associated structures and equipment constructed by Ensham Joint Venture under Clause 7 of this Agreement; “Point of Delivery” means the inlet for water to the Works from the Nogoa River within the area from time to time; “Allocation” means the annual quantity of water made available for Ensham Joint Venture under Clause 3.1 as varied from time to time under Clause 5.3 . 1.2 In this Agreement – (a) a reference to an Act includes: (i) all statutory provisions consolidating, amending or replacing the Act referred to; and (ii) all regulations, rules, orders and other instruments made under it. (b) the singular includes the plural and vice versa.

5 Water Resources (Ensham Joint Venture) No. 277, 1994 THE PARTIES AGREE AS FOLLOWS: 2. TERM 2.1 Subject to this Agreement, this Agreement shall continue in force for so long as the Mining Leases are held by Idemitsu, Bligh and Lucky-Goldstar or their assignees or transferees. 3. SUPPLY OF WATER AND ANNUAL PAYMENTS 3.1 The Corporation agrees to supply to Ensham Joint Venture a quantity of water not exceeding 1000 megalitres from the Nogoa River during each year of this Agreement. 3.2 In consideration of the Corporation so supplying water, Ensham Joint Venture agrees to make to the Corporation an annual capital component payment calculated at a fixed rate of $94.00 per megalitre of water taken under this Agreement. 3.3 Ensham Joint Venture shall take the minimum volume of water for each year specified in the Schedule below. If Ensham Joint Venture takes less than the minimum volume in any year Ensham Joint Venture shall pay the annual capital component payment to the Corporation for the minimum volume for that year as if the minimum volume had been taken. SCHEDULE Year Commencing 1 July Minimum Volume 1993 . . . . . . . . . . 125 megalitres 1994 . . . . . . . . . . 125 megalitres 1995 . . . . . . . . . . 125 megalitres 1996 . . . . . . . . . . 710 megalitres 1997 and subsequent years the Allocation 3.4 In addition to the capital component payment referred to in Clause 3.2, Ensham Joint Venture agrees to make a further annual payment to the Corporation in relation to operation,

6 Water Resources (Ensham Joint Venture) No. 277, 1994 maintenance, repairs and administration costs for all water taken (“the overheads fee”). Initially, payment will be at a rate of $10.25 per megalitre of water taken. The overheads fee will be reviewed each year by the Corporation, provided that the yearly variation will not exceed the variation in the Consumer Price Index (all groups index numbers for Brisbane) for the preceding twelve months as determined by the indices at the end of the immediately preceding March quarter. Where the charge is varied, the Corporation shall notify Ensham Joint Venture in writing of the details and the effective date of the variation. If the Consumer Price Index ceases to be published the parties shall negotiate with a view to agreeing on adopting an alternative to the Consumer Price Index. If the parties have not reached agreement within 90 days of the Consumer Price Index ceasing to be published, the matter shall be dealt with under Clause 11. 3.5 If Ensham Joint Venture receives approval to take additional water under Clause 5.1, Ensham Joint Venture must (in addition to the rate per megalitre payable under Clause 3.2 and Clause 3.4 ) pay to the Corporation for each additional megalitre taken an annual amount equal to $20.50, which shall be reviewed in the same way as the overheads fee. 3.6 The charges specified in Clauses 3.2, 3.4 and 3.5 will be payable six-monthly in arrears. All payments by Ensham Joint Venture under this Agreement are to be made within 30 days of receipt of an invoice from the Corporation. 3.7 The charging system set out in Clauses 3.2 to 3.6 will continue unchanged until 30 June 2018. The Corporation may specify a change in that charging system (including a change in the level of charges) to apply after 30 June 2018 and may set the subsequent period of effectiveness of those charges, provided that any change to the charging system, the level of charges and the relevant period shall be on the same basis and level as for other users being supplied water under an agreement with the Corporation. The Corporation shall notify Ensham Joint Venture in writing of the new charges six months before the new charges become effective. After 30 June 2018 the charges set in Clause 3.2 to 3.6 will be charged until new charges become effective.

7 Water Resources (Ensham Joint Venture) No. 277, 1994 4. OPERATION AND MAINTENANCE OF WORKS 4.1 The Corporation shall supervise, operate and maintain, at its cost, Fairbairn Dam and Selma Weir during the currency of this Agreement and will use its best endeavours to ensure that the allocation is available to Ensham Joint Venture. 5. VARIATION IN SUPPLY OF WATER 5.1 The Corporation acknowledges that Ensham Joint Venture’s water requirements may from time to time exceed 1000 megalitres during any year. Before using more than 1000 megalitres in any year, Ensham Joint Venture must first obtain written approval from the Corporation, which approval shall not be unreasonably withheld. On receipt of an application from Ensham Joint Venture, the Corporation shall, after taking into account the quantity of water available, the requirements of other users and such other matters as it deems necessary, notify Ensham Joint Venture of its decision on the application. The decision of the Corporation in respect of an application for additional water is final and not subject to arbitration. 5.2 Approval by the Corporation for Ensham Joint Venture to take more than the allocation (“excess water”) may be subject to such conditions as the Corporation thinks fit. 5.3 If Ensham Joint Venture consistently uses less than the quantity of water specified in Clause 3.1 the Corporation may, with the written agreement of Ensham Joint Venture, reduce the annual quantity to be made available. 6. FORFEITURE ETC. OF MINING LEASES 6.1 If at any time during the term of this Agreement, Ensham Joint Venture ceases to hold the Mining Leases: (a) Ensham Joint Venture shall forthwith notify the Corporation in writing of the forfeiture or surrender; and (b) this Agreement may be terminated forthwith by the Corporation.

8 Water Resources (Ensham Joint Venture) No. 277, 1994 7. METERING 7.1 Ensham Joint Venture shall, to the satisfaction of the Corporation, supply, install and maintain, at Ensham Joint Venture’s expense, meters as are necessary to record the quantity of water taken from the Nogoa River. The location of the meter must be as close as practicable to eachpoint of delivery. Ensham Joint Venture shall, within fourteen days (14) from the end of each quarter, furnish to the Corporation, through the District Manager at Emerald, particulars of the readings of each meter evidencing the quantity of water taken during that quarter. 7.2 Persons authorised by the Corporation may, from time to time, inspect the Works and read each meter. 7.3 The register of each meter shall be prima facie evidence of the quantities of water taken by Ensham Joint Venture. 7.4 As and when required by the Corporation, Ensham Joint Venture shall, at Ensham Joint Venture’s expense, appoint a competent person approved by the Corporation to test the accuracy of each meter. Ensham Joint Venture shall at its expense adjust, repair or replace each meter as directed by the Corporation. 7.5 During any period in which a meter is under repair or the Corporation is of the opinion that a meter is registering incorrectly, the quantity of water taken by Ensham Joint Venture in respect of that meter may be determined by the Corporation in consultation with Ensham Joint Venture, taking into consideration use by others taking water from the Nogoa River. 8. CONSTRUCTION AND MAINTENANCE OF WORKS 8.1 Ensham Joint Venture will cause to be constructed the Works for the purposes of taking water from the Nogoa River to the area of Ensham Joint Venture operations. The Corporation acknowledges Ensham Joint Venture’s ownership of the Works. 8.2 Ensham Joint Venture will be responsible for the investigation, design, construction, operation and maintenance of the Works.

9 Water Resources (Ensham Joint Venture) No. 277, 1994 9. NON-ACTIONABLE DEFAULT 9.1 Neither party shall be liable to the other for failure to comply with its obligations under this Agreement if such failure is due to: (i) war, whether declared or undeclared, revolution or act of public enemies; (ii) riot or civil commotion; (iii) strike or lock-out or labour dispute; (iv) act of God; (v) drought, flood, storm, tempest or washaway; (vi) act of restraint of Government; (vii) happenings beyond the control of either party against which it could not reasonably have been expected to take effective precautions. Upon cessation of an event in paragraph (i) to (vii) which caused the failure of a party to comply with its obligations under this Agreement, the party affected shall take all reasonable steps to resume the performance of its obligations with the least possible delay. 10. ASSIGNMENT 10.1 If a transferee or assignee from Idemitsu, Bligh or Lucky-Goldstar has agreed with the Corporation to be bound by this Agreement then any of Idemitsu, Bligh or Lucky-Goldstar may assign part or all of its interest, rights, benefits and obligations under this Agreement to such transferee or assignee contemporaneously with an assignment of an interest in the Ensham Coal Joint Venture. Upon such transfer or assignment being effected, the reference in this Agreement to “Ensham Joint Venture” shall include a reference to the transferee or assignee. 11. DISPUTE RESOLUTION 11.1 The parties shall seek to settle any dispute arising in connection with this Agreement by negotiation, mediation or conciliation

10 Water Resources (Ensham Joint Venture) No. 277, 1994 between the parties. In any proceeding for the purpose of resolving a dispute, each party may, at its election, be represented or accompanied by a qualified legal practitioner. 12. NOTICES 12.1 All notices, certificates, accounts, statements and communications required under this Agreement (“communications”) must be in writing. 12.2 All communications required to be given under this Agreement shall be sent by prepaid ordinary post, by hand delivery or by facsimile transmission addressed: 12.2.1 (i) in the case of communications to Ensham Joint Venture: Ensham Resources Pty Ltd Level 20, AMP Place, 10 Eagle Street BRISBANE QLD 4000 or G P O Box 814 BRISBANE QLD 4001 Facsimile:[phone] Attention:General Manager - Development (ii) in the case of communications to the Corporation: Department of Primary Industries 70 Hospital Road EMERALD QLD 4720 or Locked Bag 6 EMERALD QLD 4720

11 Water Resources (Ensham Joint Venture) No. 277, 1994 F(0a7c9s)im82il2e:010 Attention:District Manager or such other addresses as may be nominated from time to time by the parties to this Agreement. Communications shall be deemed to have been duly given: 12.2.2 (i) if posted, seven days (7) after being deposited in the mail with postage pre-paid; (ii) if delivered, when delivered; (iii) if sent by facsimile transmission, when the receiver has confirmed its receipt. 13. ENTIRE AGREEMENT 13.1 This Agreement is made in accordance with and subject to the provisions of the Water Resources Act1989, and constitutes the entire Agreement between the parties. Any alterations or amendments to this Agreement must be made in writing. 13.2 The parties agree to meet their own costs relating to the preparation and execution of this Agreement. 14. LIABILITY 14.1 References to “Ensham Joint Venture” in this Agreement are references to: (i) each of the original parties collectively referred to as Ensham Joint Venture in this Agreement; and (ii) each assignee or transferee under Clause 10.1 . 14.2 The obligations and liabilities, including any warranties of each such party as Ensham Joint Venture under this Agreement, bind each of them, not jointly but severally, each to the extent of its Share from time to time and any right or benefit given to those parties as Ensham Joint Venture under this Agreement is given to the extent of their respective Shares from time to time as tenants

12 Water Resources (Ensham Joint Venture) No. 277, 1994 in common. 15. OWNERSHIP OF WORKS ON TERMINATION 15.1 Should this Agreement be terminated, Ensham Joint Venture shall, at the request of the Corporation, give consideration to any reasonable proposal by the Corporation to transfer all of Ensham Venture’s legal and equitable interest in the Works to the Corporation. 16. APPROVAL OF THE GOVERNOR IN COUNCIL 16.1 This Agreement shall take effect (and shall not otherwise take effect) upon the Governor in Council approving that the Corporation supply water to Ensham Joint Venture in accordance with the terms and conditions of this Agreement.

13 Water Resources (Ensham Joint Venture) No. 277, 1994 IN WITNESS the parties have executed this Agreement as follows: Signed by PETER JOHN CHARLES BEVIN ) P J C Bevin ) ............................ of WATER RESOURCES ) ............................ for and on behalf of the ) Primary Industries Corporation ) in the presence of JULIE-ANNE MACPHERSON ) J. MacPherson (Witness) Signed by of Idemitsu Queensland Pty Ltd ) S Horii Director ) ............................ ) P Hughes (Witness) Signed by of Bligh Coal Ltd ) Shiro Okada Director ) ............................ ) P Hughes (Witness) Signed by of Lucky-Goldstar International (Australia) Pty Ltd ) ............................ ) Bs Oh Director ) ............................ ) P Hughes (Witness)

14 Water Resources (Ensham Joint Venture) No. 277, 1994 ENDNOTES 1. Made by the Governor in Council on 28 July 1994. 2. Notified in the Gazette on 29 July 1994. 3. Laid before the Legislative Assembly on . . . 4. The administering agency is the Department of Primary Industries. © State of Queensland 1994