OFFSHORE PETROLEUM GUIDELINE: TRANSFER AND DEALINGS RELATING TO TITLES

A Guideline in relation to the Offshore Petroleum and Greenhouse Gas Storage Act 2006
Prepared by the Commonwealth Department of Resources, Energy and Tourism

Effective as at 1 January 2012 PLEASE NOTE: as of 1 January 2012 the National Offshore Petroleum Titles Administrator (NOPTA) is the first point of contact on all titles administration matters relating to offshore petroleum and greenhouse gas storage. 1. PURPOSE

This guideline aims to assist titleholders in lodging documents for approval and registration of transfers and dealings under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (the OPGGSA). It is anticipated the guideline will be amended from time to time. This guideline is available online at www.ret.gov.au/offshoreresourceslegislation. 2. OVERVIEW approved and registered in accordance with the OPGGSA. This process is completed by NOPTA.
2.2. Applications must be lodged within 90 days of the completion of execution of the 2.1. Transfers of petroleum titles or dealings affecting petroleum titles are of no force until

instrument evidencing the transfer or dealing, except when NOPTA accepts that there are sufficient grounds for a longer period. 3. TRANSFER OF TITLE transfer (Section.473 of the OPGGSA). Application
3.2. The application form for approval and registration of a transfer can be found at 3.1. An application for approval of a transfer of a title may be lodged by any of the parties to the

www.nopta.gov.au.
3.3. The following details should be attached to the application: 3.3.1. 3.3.2. 3.3.3.

Description of any prior dealings which are relevant to the approval of the transfer; Details of the consideration for the transfer, including details of the consideration for the relevant prior dealings; If relevant, brief details of the nature of the related corporations and the other factors necessary for NOPTA to consider whether a related corporations registration fee is appropriate; and Details of any other matters to be considered by NOPTA in determining the appropriate fee to be paid for registration of the transfer.

3.3.4.

3.4. If Applicants are not already a party to the title, they must also provide details of the

following:

3.4.1.

technical qualifications of, or available to, the transferee.

3.4.1.1.An applicant must satisfy NOPTA of its technical capability to meet its title obligations including any work program commitments, including, but not limited to, the technical capacity and experience of key personnel and/or details of sub-contractors and particulars of other current and previous involvements in petroleum exploration and development.
3.4.2.

financial capability of the transferee to meet its financial commitments for the work program, including evidence of the likelihood that the applicant will continue to have the ability to attract outside funding or have sufficient financial resources to meet the requirements of the work program. This may include consideration of work program commitments in other resources titles in which the applicant has a financial interest. net assets; debt/ equity ratio; and net cash flow.

3.4.3.

3.4.3.1.Details of financial resources including, but not limited to:

3.4.3.2.Where applicable, details on the future viability of any consortium lodging an application, including evidence that a satisfactory Joint Operating Agreement has been or can be reached, should be provided.
3.5. Applications should be sent to the NOPTA together with any other additional information

the applicant wishes to have considered.

3.6. The original and two copies of the following must be provided: 3.6.1. 3.6.2. 3.6.3.

the application; the original instrument of transfer executed by each transferor and each transferee (all parties to the transfer); and supporting documents.

3.7. The instrument will be returned to the applicant after registration.

General Provision and Information

3.8. Titleholders preparing an application for approval of a transfer should take into account the

following general provisions and information:

3.8.1. 3.8.2. 3.8.3.

A transfer must be of the whole of the title area. All titleholders must execute the transfer instrument even if a titleholders interest is not affected. The transfer of a title under the OPGGSA will be subject to a registration fee but will not attract state stamp duty for more information, refer to the Registration Fees Guideline; If a transfer is pursuant to prior approved dealings then details of those prior dealings should be set out in the application to enable appropriate fees to be calculated. The full consideration for the transfer should be clearly stated in the transfer instrument and the prior dealings should be detailed in the application; and In situations where there is more than one titleholder and a single address has been nominated for the service of documents, the nomination will lapse when a transfer of title is registered. If the transfer is to more than one title holder, a new

3.8.4.

3.8.5. 3.8.6.

nomination is to be made between the title holders and lodged with NOPTA for recording in the register under Sections 477 of the OPGGSA. 4. DEALINGS AFFECTING AN EXISTING TITLE affecting an existing title may be lodged by any of the parties to the dealing. A dealing is a transaction relating to specified title(s) evidenced by a single instrument and having one or more of the following effects:
4.1.1. 4.1. Under Sections 488 of the OPGGSA, an application in writing for approval of a dealing

Arrangements establishing or assigning interests in an existing title including the initial interests of titleholders, any subsequent assignment of those interests (for example, unconditional farm-in and farm-out agreements), and charges over an interest. Arrangements giving rise to or assigning a right, whether conditional or not, to the assignment of an interest in an existing title, for example: trustee arrangements and conditional farm-in and farm-out agreements. Arrangements between registered titleholders and other parties with an interest in a title regarding the manner in which operations will be carried out under the title and the rights and obligations of each of the parties, for example: joint operating agreements, unit development agreements. Arrangements creating or assigning an entitlement of a person to an interest in a title by way of a share of the production of petroleum or revenue derived from production of petroleum from a current or future discovery. These interests in a title may relate to a specific well or future production from a specified part of, or the whole of, a title area and are often known as overriding royalty interests, production payments, net profits interests, or carried interests. However, this type of interest does not cover the normal arrangements and contracts related to refining, transportation, marketing or sale of petroleum. Arrangements creating or assigning an option or a right, conditional or otherwise, to enter into a dealing having one or more of the effects described in 2.9.1 to 2.9.4. Arrangements altering or terminating a dealing having one or more of the effects described above.

4.1.2.

4.1.3.

4.1.4.

4.1.5.

4.1.6.

4.2. A dealing may only be evidenced by more than one instrument where it relates to the issue

of a series of debentures relating to a single title.

Applications
4.3. An application for approval and registration of a dealing affecting a title should clearly set

out the following information:

4.3.1.

A brief description of the effect or effects of the dealing in terms of the effects specified in Section 486 of the OPGGSA (e.g. unconditional farm-in, amended joint operating agreement, etc); Details, where relevant, of the current participating interests in the title of each party to the dealing. Details, where relevant, of the proposed participating interests in the title of each party to the dealing. A brief description of any prior dealings which are relevant to the approval of the dealing;

4.3.2. 4.3.3. 4.3.4.

4.3.5. 4.3.6.

Brief details of the consideration for the dealing, including details of the consideration for the relevant prior dealings; If relevant, brief details of the nature of the related corporations and the other factors necessary for NOPTA to consider whether a related corporations registration fee is appropriate; and Brief details of any other matters to be considered by NOPTA in determining the appropriate fee to be paid for registration of the dealing. Refer to Registration Fees guideline.

4.3.7.

4.4. Applications, together with any other additional information the applicant wishes to make

available should be sent to NOPTA.

4.5. If a commercial transaction involves a dealing affecting more than one title, a separate

application must be lodged for approval of the dealing in respect of each title affected by that dealing.
4.6. An application for approval of a dealing must be accompanied by the original instrument

evidencing the dealing, executed by all parties or if that original instrument has been lodged with another application, a copy of that instrument.
4.7. Applicants may lodge a supplementary instrument where the transaction is deemed to be

highly commercially sensitive. Where a supplementary instrument is lodged, that documents is available for public viewing in place of the original instrument.
Note - Applicants are required to detail the full consideration in the supplementary instrument (reference to a clause in a dealing will not suffice).
4.8. The original and one copy of the following must be provided: 4.8.1. 4.8.2. 4.8.3. 4.8.4.

the application; instrument evidencing the dealing; supplementary instrument (if applicable); and supporting documents.

4.9. The original instrument evidencing the dealing and supplementary instrument (if applicable)

will be returned to the applicant after registration.

4.10. Any dealing that forms part of a set of dealings related to the issue of a series of debentures

with respect to a particular title will be treated as one dealing. An application for approval of such a dealing, or a dealing which creates a charge (for example a mortgage) over an interest in a title, will be deemed to comply with the requirements for documents outlined above if two copies of each document required to be lodged with the Australian Securities and Investments Commission in accordance with section 263 of the Corporations Act 2001 or the corresponding State or Territory Law, are supplied.
General Provisions and Information
4.11. Titleholders preparing an application for approval of a dealing should take account of the

following general provisions and information:

4.11.1. Dealings affecting titles under the OPGGSA will be subject to a registration fee

but instruments evidencing those dealings will not attract State stamp duty (refer to registration fees guideline).
4.11.2. If a dealing is pursuant to prior approved dealings then details of those prior

dealings (such as a record number or other information sufficient to identify those dealings), should be set out in the application to enable appropriate fees to be calculated. The full consideration for a dealing or for any prior dealing to which

it is pursuant, should be clearly stated in the instrument evidencing the dealing and/or in the application;
4.11.3. Any time constraints (eg. for approvals or for performance of work) written into

the instrument evidencing the dealing should be highlighted in the application for approval of the dealing. Realistic time constraints should be used to allow for the time required for consideration by NOPTA; and
4.11.4. Dealings will be registered by NOPTA in a sequential order.

5.

APPROVAL OF DEALINGS AFFECTING FUTURE TITLES

5.1. Dealings lodged prior to grant of a title will be dealt with following title grant (Section.498). 5.2. Dealings capable of being approved and registered may be lodged for approval by NOPTA

by companies applying for titles. A separate provisional application for approval of the dealing is required in respect of each future title affected by the dealing. Provisional applications cannot be lodged after a title is granted or before the day on which an offer of award of a permit, lease, licence or pipeline licence is made by the NOPTA (Section 501).
5.3. Once a title comes into existence, a provisional application is treated as if it is an application

lodged for approval and registration of a dealing under Sections 488.

TABLE OF REVISIONS Date Version Nov 2011 2

April 2011

Purpose Updated to reflect changes to OPGGSA transfer to NOPTA Clarification of technical and financial requirements. Wholesale re-write to improve clarity of writing

Jurisdiction Cth

Registrars / Cth