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ENVIRONMENTAL WATER DELIVERY AGREEMENTAgreement in relation to the delivery of environmental water to environmental assets in the lower River Murray region, South Australia

Commonwealth of Australia as represented by the Commonwealth Environmental Water Holder within the Department of the Environment

ABN 34 190 894 983 (CEWH)

Ngarrindjeri Regional Authority Inc. ABN 50 034 502 372 (NRA)

Table of ContentsTable of Contents 1

Preamble 2

Details 3

Agreed Terms 51. Definitions and interpretation 52. Duration and effect of Agreement 83. Involvement in the management of Commonwealth environmental water 94. Environmental Watering Proposals 95. Roles and responsibilities during water delivery 106. Licences, works and extraction arrangements 117. NRA obligations 118. Acknowledgement and related events 129. Access to premises and records 1310. Costs 1411. Insurance 1412. Communication and media 1513. Protection of personal information 1514. Confidentiality 1515. Risk management 1616. Termination and expiry 1617. Indemnity and release 1718. Notices and other communications 1819. Survival 1920. Miscellaneous 19

Schedule 1 – Agreement Details 20

Schedule 2 – Watering Schedule 22

Schedule 3 – Joint Communications and Media Protocol 24

Schedule 4 – NRA involvement in the management of Commonwealth environmental water 26

Signature page 27Agreement in relation to the delivery of environmental water to environmental assets in the lower River Murray, South Australia page 1

PreambleThe Commonwealth Water Act 2007 (the Act) established the Commonwealth Environmental Water Holder (CEWH), a statutory position responsible for the management of the Commonwealth environmental water holdings. Under the Act, Commonwealth environmental water must be managed to protect or restore environmental assets, so as to give effect to relevant international agreements. The CEWH leads and is supported by the Commonwealth Environmental Water Office (CEWO), a division of the Australian Government Department of the Environment. A significant proportion of the Commonwealth Environmental Water Holdings are held and used in the South Australian river channel and wetland systems that form part of the Murray-Darling Basin.

Ngarrindjeri Regional Authority Inc. (‘NRA’) was established and represents communities and organisations that currently make up the Ngarrindjeri Nation and the current individual Native Title claimants of the Ngarrindjeri and Others Native Title Claim. The decisions of the Ngarrindjeri People are informed by, and based upon, their own cultural protocols which have been handed down from generation to generation. The NRA is the peak regional organisation of the Ngarrindjeri People. The purpose of the NRA is amongst other things to: Promote the welfare of the Ngarrindjeri People; Assist the Ngarrindjeri People to protect areas of special significance to them in accordance with tradition and custom; To initiate legal proceedings or seek any administrative remedies, if appropriate, to protect, preserve and prevent interference with places of historical, social, cultural and spiritual significance for the Ngarrindjeri People, as well as for the purposes of protecting and preserving the Native Title rights and interests of the Ngarrindjeri People; To conduct research and gather information necessary for the assertion of traditional rights and interests over Ngarrindjeri Lands including Native Title rights and interests; To enter into agreements with other entities, including but not limited to, other Aboriginal Peoples and Aboriginal Associations, the Commonwealth or State Governments, private corporations and individuals, in relation to land, cultural knowledge, heritage, or any other rights or interests connected or associated with the Ngarrindjeri People; To manage land of traditional or cultural significance to the Ngarrindjeri People and to hold any interest in such land as trustee or otherwise for the Ngarrindjeri People; and To protect the intellectual property rights of the Ngarrindjeri People.

The Murray-Darling Basin Plan (the Basin Plan) was made a legislative instrument on 22 November 2012. The Basin Plan is a high-level plan for ensuring that the basin’s water resources are managed in an integrated and sustainable way. The Basin Plan includes an environmental watering plan that provides a framework for planning and coordinating environmental water management. It establishes a common set of objectives, principles and priorities for environmental watering and places a number of obligations on the Murray-Darling Basin Authority (MDBA), state governments and environmental water holders. This includes requiring the MDBA’s development of the Basin-wide environmental watering strategy (published 24 November 2014, which the CEWH must perform its functions and exercise its powers consistent with) and Basin annual environmental watering priorities (published by 30 June each year for the following water year, which the CEWH must have regard to).

This agreement establishes a framework for coordinating environmental watering undertaken by the NRA and CEWH, including an agreed process for planning and managing the transfer, delivery and monitoring of Commonwealth environmental water in South Australia’s wetlands, consistent with each party’s obligations under the Basin Plan.

This agreement recognises that Commonwealth environmental water is only one of a number of sources of water in South Australia and across the Basin (including held and planned environmental water, unregulated flows, consumptive and system operating water) that contribute to environmental outcomes.

Agreement in relation to the delivery of environmental water to environmental assets in the lower River Murray, South Australia page 2

Details

Parties1. Commonwealth of Australia as represented by the Commonwealth Environmental Water Holder

within the Department of the Environment ABN 34 190 894 983 (CEWH).

2. Ngarrindjeri Regional Authority Inc. ABN 50 034 502 372 (NRA).

Recitalsa. The CEWH is established under the Water Act 2007 (Cth) (the Act) to, amongst other matters;

manage Commonwealth environmental water holdings for the purposes of protecting or restoring environmental assets.

b. The functions of managing Commonwealth environmental water holdings include entering into contracts or other arrangements in relation to the taking or use of Commonwealth environmental water.

c. The NRA approached the CEWH seeking agreement in relation the delivery of environmental water to environmental assets in the lower River Murray region, South Australia to ensure that those environmental assets where being cared for in accordance with the cultural protocols of the Ngarrindjeri People as they apply to their traditional country.

d. The CEWH has determined that the delivery of environmental water on the terms of this Agreement would be consistent with the functions of the Commonwealth Environmental Water Holder and that the processes it establishes will ensure watering events (Events):

(i) are consistent with the relevant environmental watering plan; and

(ii) will protect or restore environmental assets.

e. The CEWH and the NRA have agreed to formalise their arrangement on the terms set out in this Agreement.

f. This Agreement does not create a relationship of employment, agency or legal partnership between the parties.

g. The parties must not represent themselves, and must ensure that their officers, employees, agents and subcontractors do not represent themselves as being an officer, employee, partner or agent of the other party, or as otherwise able to bind or represent the other party.


Guiding Principlesa. The use of environmental water will continue to be based on scientific evidence, with a focus on

achieving the best environmental outcomes possible in South Australia and across the Murray-Darling Basin from the water available.

b. Risks and governance associated with the use of environmental water (for example, relating to third parties or the environment) will continue to be appropriately managed.

c. Environmental water management will continue to be facilitated by open communication and information sharing with opportunities for both parties to regularly be involved in the planning, delivery and management of environmental water.

d. Interested and motivated local and community bodies will continue to have an opportunity to be involved and provide views and advice on the planning and practice of environmental water management.

e. CEWO and NRA will continue to work collaboratively to align planning and reporting to reduce unnecessary duplication, administrative effort and ensure consistent messaging to the community where possible.

f. New knowledge and information will continue to be used to adaptively manage environmental water, thereby supporting continuous improvement and innovation.

g. Achieving outcomes based on cultural protocols of Indigenous People will add to and inform environmental water management and over time will add to the ongoing health of the environmental assets.

h. Environmental water planning and delivery undertaken by NRA will be informed by South Australia’s annual environmental water plans and the long term environmental watering plan (developed by DEWNR) as well as the CEWO’s portfolio management planning through input and participation in the state and CEWO water planning and prioritisation processes.

i.


Agreed Terms1. Definitions and interpretation1.1 Definitions

In this Agreement, except where the contrary intention is expressed, the following definitions are used:

Additional Undertakings

any additional undertaking(s) made by the NRA in its Watering Proposal and set out in the Watering Schedule including:

(a) the performance of any action, activity or works; and

(b) the provision of any in kind or cash contributions.

Agreed Terms clauses 1 to 20 of this Agreement which set out the terms and conditions agreed by the parties.

Agreement this Agreement between the CEWH and the NRA and includes:

(a) the Agreement Details;

(b) the Agreed Terms;

(c) each Watering Schedule; and

(d) any annexure or attachments.

Agreement Details the details set out in Schedule 1 to this Agreement, as amended or replaced from time to time.

Business Day in relation to the doing of any action in a place, any day other than a Saturday, Sunday or public holiday in that place.

CEWH the Commonwealth Environmental Water Holder situated within the Department of the Environment or any other agency that administers this Agreement from time to time.

Commencement Date the date on which this Agreement commences, as specified in Item 14 of the Agreement Details.

Commonwealth Environmental Water Holdings

has the meaning given under the Water Act 2007 (Cth).

Confidential Information

information that is by its nature confidential and:

(a) is designated by a party as confidential;

(b) is described in the Agreement Details or a Watering Schedule; or

(c) a party knows or ought to know is confidential,

but does not include:

(d) information which is or becomes public knowledge other than by breach of this Agreement or any other


confidentiality obligation.

Consent Authorities Department of Environment, Water and Natural Resources (DEWNR) South Australia and other entities where relevant.

Corporations Act the Corporations Act 2001 (Cth).

Delivery Costs the costs associated with:

(a) delivery of the Environmental Water (including pumping charges and operation costs); and

(b) Consent Authority, State or Territory Stakeholder approval.

Delivery Date the date or dates and time at which the Environmental Water will be delivered to the Environmental Asset.

NRA Ngarrindjeri Regional Authority ABN 50 034 502 372

Electronic Communication

has the same meaning as in the Electronic Transactions Act 1999 (Cth).

Environmental Asset means an environmental asset for the purposes of the Water Act 2007 (Cth) as identified by the NRA and agreed by the CEWH in accordance with clause 4.(a).

Environmental Water water to be provided from the Commonwealth Environmental Water Holdings to be transferred to the NRA in respect of a particular Event.

Event the delivery of Environmental Water, to be completed by the NRA in accordance with a Watering Schedule as contemplated by clause 2.(c)(c) and 4(a)(b).

Framework for Determining Commonwealth Environmental Water Use

the CEWH’s framework for determining Commonwealth environmental water use available at http://www.environment.gov.au/water/cewo/publications/framework-determining-cew-use as may be updated from time to time.

Milestones the major milestones to be met by the NRA and the CEWH in completing an Event.

Key Criteria the criteria available in full at http://www.environment.gov.au/ewater/publications/criteria-current.html but generally comprising:

(a) ecological significance of the Environmental Asset(s);

(b) expected ecological outcomes from the Event;

(c) potential risks of the Event at the site and at connected locations;

(d) long-term sustainability of the Environmental Asset(s) including appropriate management arrangements; and

(e) cost effectiveness and operational feasibility of undertaking the Event,


http://www.environment.gov.au/ewater/publications/criteria-current.html

http://www.environment.gov.au/ewater/publications/criteria-current.html

http://www.environment.gov.au/water/cewo/publications/framework-determining-cew-use

http://www.environment.gov.au/water/cewo/publications/framework-determining-cew-use

as updated by the CEWH from time to time.

Law any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in Australia, whether made by a State, Territory, the Commonwealth, or a local government including:

(a) the Environment Protection and Biodiversity Conservation Act 1999 (Cth);

(b) the Public Governance, Performance and Accountability Act 2013;

(c) the Water Act 2007;

(d) the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth);

(e) State and Territory water management laws;

(f) State and Territory environment protection and land use/ planning legislation; and

(g) work health and safety laws.

Losses liabilities, expenses, losses, damages and costs (including but not limited to legal costs on a full indemnity basis, whether incurred by or awarded against a party).

Personnel in relation to a party, any natural person who is an employee, officer, agent or professional adviser of that party.

Privacy Act the Privacy Act 1988 (Cth).

Project Officer the CEWH or NRA’s contact person identified in the Agreement Details.

Risk Assessment a risk assessment undertaken in accordance with the template provided by the CEWH.

State or Territory Stakeholders

Department of Environment, Water and Natural Resources South Australia (DEWNR) and others as relevant.

Term the term if this Agreement as set out in clause 2.(a).

Watering Objectives the stated objectives of a particular Event as identified in a Watering Schedule.

Watering Proposal a proposal submitted by the NRA in accordance with clause 4.(a) in relation to a proposed Event.

Watering Schedule a schedule recording the terms upon which a NRA is to conduct an Event as endorsed by the CEWH.

(a) InterpretationIn this Agreement, except where the contrary intention is expressed:

(a) the singular includes the plural and vice versa, and a gender includes other genders;

(b) another grammatical form of a defined word or expression has a corresponding meaning;

(c) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;


(d) a reference to time is to the time in the place where the obligation is to be performed;

(e) a reference to a party is to a party to this Agreement, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assignees and substitutes;

(f) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;

(g) a reference to a statute, ordinance, code or other Law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

(h) a word or expression defined in the Corporations Act has the meaning given to it in the Corporations Act;

(i) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;

(j) any agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally;

(k) any agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;

(l) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it; and

(m) headings are for ease of reference only and do not affect interpretation.

(b) Priority of documentsIf there is inconsistency between any of the documents forming part of this Agreement, those documents will be interpreted in the following order of priority to the extent of any inconsistency:

(a) the Agreed Terms;

(b) Agreement Details;

(c) a Watering Schedule

(d) any annexures or attachments; and

(e) documents incorporated by reference in this Agreement.

2. Duration and effect of Agreement(a) Commencement

This Agreement is effective on and from the Commencement Date and continues in force for the Term (see Schedule 1) unless terminated earlier in accordance with clause 15.

(b) Effect of Agreement The parties acknowledge and agree that this Agreement records their agreement in relation to the transfer of Commonwealth Environmental Water Holdings and the delivery of that water to Environmental Assets for the protection or restoration of that asset.

(c) Process(a) The NRA may, from time to time over the Term of this Agreement, submit Watering

Proposals for consideration and evaluation by the CEWH.


(b) Where a Watering Proposal is approved by the CEWH the parties will prepare and endorse a Watering Schedule which identifies the particulars of the Event including the Delivery Date, the volume of Environmental Water, relevant Consent Authorities, approval requirements, liability for Delivery Costs, Milestones and which incorporates the terms of the approved Watering Proposal.

(c) The terms upon which each Event will be undertaken will be dictated by:

(i) the terms of this Agreement (including all warranties and undertakings of the NRA); and

(ii) the Watering Schedule.

3. Involvement in the management of Commonwealth environmental water

(a) NRA involvement in the management of Commonwealth environmental water(a) The NRA and the CEWH will work together to develop Schedule 4 of this agreement.

(b) Schedule 4 will outline the process for NRA involvement in the management of Commonwealth environmental water, including planning and decision.

4. Environmental Watering Proposals(a) Submission of Watering Proposals

(a) The NRA will submit a Watering Proposal under which it seeks the CEWH’s consent to delivery of Environmental Water.

(b) The NRA must ensure that each Watering Proposal:

(i) contains the information contemplated in Schedule 2;

(ii) contains details of the basis upon which delivery of the Environmental Water will protect or restore the Environmental Asset;

(iii) is prepared in consultation with the CEWO;

(iv) identifies the volume and quality of Environmental Water sought;

(v) identifies the Environmental Asset to which the Environmental Water is to be delivered;

(vi) details the particulars of the proposed Event and provides all relevant details and documents (including satellite images, fixed-point photographs and maps as appropriate) clearly identifying affected and potentially affect areas, the proposed location and condition of the Environmental Asset where Environmental Water will be delivered;

(vii) includes a Risk Assessment;

(viii) includes a plan for ensuring:

(A) interested and affected third parties are appropriately consulted;

(B) the consents and permissions contemplated by clause 6 are obtained;

(C) the approval of any Consent Authorities are obtained; and

(D) State or Territory Stakeholders are appropriately consulted and engaged;

(ix) identifies the Delivery Costs associated with the Watering Proposal and whether it is proposed that the NRA or the CEWH will bear those costs;

(x) identifies any Additional Undertakings; and

(xi) identifies whether the NRA has:


(A) a licence to which the Environmental Water may be transferred; and

(B) works or extraction approvals,

or whether, having regard to the options contemplated by clause 6, alternative arrangements will need to be made.

(c) The CEWH will review and evaluate Watering Proposals submitted under this Agreement in accordance with the Framework for Determining Commonwealth Environmental Water Use (in particular the Key Criteria), and may approve or reject a proposal at its discretion.

(b) Approval of Watering Proposal and agreement of watering schedule(a) Unless the NRA is otherwise notified by the CEWH, the CEWH will reject or approve the

draft Watering Proposal within 14 Business Days of submission by the NRA under clause 44.(a).

(b) Where the draft Watering Proposal is rejected, the NRA may re-submit a revised draft Watering Proposal, including any necessary amendments, until the CEWH approves it or the NRA otherwise determines it does not wish to proceed with the proposed Event.

(c) To approve a draft Watering Proposal, the CEWO will prepare a draft Watering Schedule (see Schedule 2). Once agreed between the CEWH and NRA, the NRA must perform its obligations (including the Event) in accordance with that Watering Schedule.

(d) For the avoidance of doubt, the CEWH’s approval of a Watering Proposal by agreeing a Watering Schedule with the NRA does not in any way limit the NRA’s responsibility for the performance of its obligations under this Agreement and any consequences of that performance.

(e) Nothing in this Agreement will oblige the CEWH to approve a Watering Proposal where:

(i) it does not meet the requirements outlined in clause 4(a)(b)above;

(ii) the CEWH considers that the proposal does not satisfy the Framework for Determining Commonwealth Environmental Water Use.

5. Roles and responsibilities during water delivery(a) The NRA is responsible for:

(i) Liaising and coordinating with DEWNR River Operations and Environmental Water Policy staff, land holders, non-government organisations and other parties involved in the delivery of Commonwealth environmental water in South Australia;

(ii) Accounting for use of the Commonwealth environmental water delivered by NRA in South Australia through this agreement;

(iii) Ensuring the CEWO is advised of any material changes to an agreed delivery regime and volume of use as a result of catchment conditions, including changes to expected water use in the targeted system over the period of water delivery; and

(iv) Ensuring all approvals required for the delivery of Commonwealth environmental water are obtained, including: for water delivery; works required to enable delivery; any environmental and relevant heritage approvals; seeking notice from relevant consent authorities; and providing required advance notice to third parties including private landholders and the Crown.

(b) The CEWO will be responsible for;

(i) Obtaining approval from the CEWH to make water available from the Commonwealth environmental water holdings;

(ii) Progressively transferring allocation to an appropriate licence nominated by the NRA after consulting with DEWNR, Murray-Darling Basin officers on the required amount of water so that it may be delivered at the preferred time;


(iii) All costs, consistent with the terms of Clause 10; and

(iv) Ensuring the NRA is advised of any material changes to an agreed delivery regime and volume of use as a result of catchment conditions, including changes to expected water use in the targeted system over the period of water delivery.

6. Licences, works and extraction arrangements(a) Where NRA has requisite licences, permissions and approvals

(a) Where the NRA identifies in a Watering Proposal that:

(i) it holds a water access licence to which the Environmental Water could be transferred – the CEWH will arrange to transfer the Environmental Water to the NRA’s licence; and

(ii) it holds the requisite works and extraction permits, permissions and licences (if relevant) – the NRA will utilise its rights under those permits, permissions and licences to complete the Event in accordance with a Watering Schedule.

(b) State Stakeholder involvement(a) Where the NRA identifies in a Watering Proposal that:

(i) it does not hold a water access licence to which the Environmental Water could be transferred – the CEWH will arrange to transfer the Environmental Water to the licence of a State Stakeholder (DEWNR) and will advise DEWNR of any conditions which apply to the transfer; and

(ii) it does not hold the requisite works and extraction permits, permissions and licences (if relevant) – the NRA will liaise with DEWNR to arrange for the delivery of the Environmental Water in order to complete the Event in accordance with a Watering Schedule.

(b) The NRA is responsible for ensuring that:

(i) it complies with any conditions attaching to transfer of the Environmental Water;

(ii) its arrangements with DEWNR are appropriate having regard to the proposed Event and the Watering Objectives; and

(iii) the consent of relevant Consent Authorities and river operators is obtained.

(c) Compliance with Laws and consentsThe NRA is responsible for ensuring it complies with all relevant Laws and, except as provided for in clause 5 above, for obtaining the consent and endorsement of any Consent Authority (including any water authority or owner of affected water delivery infrastructure).

7. NRA obligations(a) Obligation to perform

(a) The NRA must do everything reasonably necessary to effect its obligations under this Agreement.

(b) In consideration of the provision of the Environmental Water the NRA must perform its obligations:

(i) consistently with, and in furtherance of, the Watering Objectives;

(ii) in accordance with all applicable Laws and consents contemplated by clause 6.(c);

(iii) so as to meet the Milestones and all reporting requirements; Agreement in relation to the delivery of environmental water to environmental assets in the lower River Murray, South Australia page 11

(iv) otherwise in accordance with the provisions of this Agreement, and must ensure it has appropriate systems and procedures in place to:

(v) effectively manage delivery of the Environmental Water; and

(vi) ensure that the Event is conducted and the Environmental Water delivered in a safe and effective manner.

(b) Liaison(a) The NRA must liaise with and report to the CEWO Project Officer in relation to preparing a

Watering Proposal, the conduct of an Event, ongoing risk assessment, and as may otherwise be required by the CEWO Project Officer for the purposes of this Agreement.

(b) Upon request, the NRA must, within the timeframe stipulated in the request or promptly if no timeframe is stipulated, provide all information in relation to an Event or the NRA as requested by the CEWO Project Officer including for monitoring and evaluation purposes.

(c) NRA must keep Records The NRA must:

(a) keep comprehensive and accurate accounts and records of all matters relating to performance of this Agreement and each Event; and

(b) retain the accounts and records referred to in this clause 7 for the Term and a further period of seven years from the expiry or termination of this Agreement or such longer period as may be required by Law.

(d) Provision of records to the CEWHThe NRA must:

(a) deliver information and other material (including Reports) produced under or in connection with this Agreement and otherwise as reasonably required by the CEWH; and

(b) provide all information and other material (including Reports) to the CEWH in accordance with the timeframes specified in this Agreement and otherwise promptly upon demand.

(e) Reports(a) Without limiting the NRA's other obligations under this Agreement, the NRA must provide the

Reports in accordance with the Agreement Details substantially in the form of the template specified by the CEWH from time to time (if any).

(b) If the CEWH notifies the NRA that a Report submitted is not to the CEWH’s satisfaction, the NRA must make the required amendments and resubmit the Report to the CEWH.

(f) Participation in evaluations and analysis The NRA must participate, at its own cost and as reasonably required by the CEWH, in studies, evaluations and other activities intended to analyse the success of an Event in achieving the Watering Objectives. Such participation may, where required by the CEWH, include:

(a) facilitating third party and CEWH access to sites affected by an Event to undertake analysis and evaluation of the Event; and

(b) making records and other information (including Reports) available to third parties for the purposes of evaluation and analysis.

8. Acknowledgement and related events(a) Acknowledgement

(a) The NRA must obtain the CEWH’s prior consent to:


(i) all publications, promotional and advertising materials, signs or plaques displayed at the location where an Event is undertaken;

(ii) all activities undertaken by it or on its behalf in relation to the Event,

and must, if required by the CEWH, acknowledge the support it has received (and in particular the Environmental Water), in the manner the CEWH directs.

(b) The NRA must submit any documentation containing the required acknowledgment to the CEWH 10 Business Days prior to publication or announcement of the event.

(c) If the CEWH requires amendments to a proposed form of words of a publication or announcement, the NRA must make the required amendment before allowing the words to be published or announced.

(d) Notwithstanding the CEWH’s review or proposal of a revised form of words in accordance with this clause, the NRA will at all times remain responsible for the content and accuracy of publications and announcements.

(b) Project EventsThe NRA must consult with the CEWH in relation to planned events and offer the CEWH a reasonable opportunity to participate.

9. Access to premises and records(a) Access to records and materials

(a) The NRA acknowledges and agrees that the CEWH and any persons nominated by the CEWH may, at reasonable times and on giving reasonable notice to the NRA:

(i) access and inspect the NRA’s premises to the extent relevant to the performance of this Agreement;

(ii) require the NRA (including its Personnel) to provide records, documents and information relevant to the performance of this Agreement in a data format and storage medium accessible by the CEWH;

(iii) inspect and copy documentation, books and records, however stored, in the custody or under the control of the NRA (including its Personnel) relevant to the performance of this Agreement; and

(iv) require assistance in respect of any inquiry into or concerning an Event or this Agreement. For the purpose of this clause 9.(a)(a)(iv), an inquiry includes any administrative or statutory review, audit or investigation (whether within or external to the CEWH), any request for information directed to the CEWH, any judicial or quasi-judicial inquiry, and any inquiry conducted by Parliament or any Parliamentary committee.

(b) The NRA must promptly comply with all requirements of the CEWH under this clause 9(a).

(b) Access to hardware and softwareThe NRA must provide the CEWH (including its Personnel) with access to the NRA’s computer hardware and software to the extent necessary for the CEWH to exercise its rights under clause 9(a), and must provide the CEWH with any reasonable assistance requested by it to use that hardware and software.

(c) Costs(a) Subject to clause 9.3(b), each party must bear its own costs of any inspections, reviews,

audits and inquiries conducted pursuant to this clause 9.

(b) If an audit, inspection, review or inquiry conducted pursuant to this clause 9 identifies a breach by the NRA of this Agreement, the CEWH may recover its costs of conducting that inspection, review, audit or inquiry as a debt due from the NRA.


(d) Auditor-General, Ombudsman and CommissionersWithout limiting clauses 9.(a) and (b), the CEWH’s rights under clauses 9.(a) and (b) apply equally to the Auditor-General, the Ombudsman, the Information Commissioner, the Privacy Commissioner, the Freedom of Information Commissioner or their delegates, for the purpose of each performing their functions or activities (as the case may be).

(e) Application of this clause This clause 9 applies for the duration of the Term and for a period of seven years from the termination or expiry of this Agreement.

10. Costs(a) Both parties acknowledge the significant investments made by the Australian Government and

NRA in environmental water management in South Australia. This includes;

(a) Commonwealth Government investment in the acquisition and holding of water entitlements, with the allocations against these entitlements provided for environmental use which assists South Australia and the Commonwealth to meet their water and natural resource management objectives;

(b) The Commonwealth funding provided to the South Australian Government to support the implementation of the Basin Plan under the Intergovernmental Agreement on Implementing Water Reform in the Murray-Darling Basin;

(c) Commonwealth Government investment in long-term and intervention monitoring projects and programs;

(d) The operational costs of both the NRA, and third parties acting on its behalf via existing agreements, and CEWH in managing environmental water; and

(e) The operational costs of wetland managers in planning and managing the delivery of environmental water in and through the South Australian Murray-Darling Basin region.

(b) Both parties agree to use their best endeavours to ensure costs, including for water transfers, are minimised as much as practical.

(c) The CEWH is responsible for the cost of all transfers of Commonwealth environmental water, including those from Commonwealth accounts to South Australian accounts and any interstate transfers of Commonwealth environmental water.

(d) The CEWH is responsible for the payment of fees and charges associated with the use of irrigation distribution systems for the delivery of Commonwealth environmental water. The delivery costs to be incurred will be dependent on channel usage charges in targeted system(s) as advised by the water authority responsible for managing that delivery infrastructure.

(e) Where Commonwealth environmental water is to be delivered to a site that requires other third party services such as pumping, water management works or monitoring, these costs are to be negotiated with the approval by the CEWH prior to the commencement of such activities.

(f) Specific costs of the environment watering events must be agreed in writing prior to each delivery action, including any costs that may be incurred under clause 6. These costs may be modified by agreement in writing.

(g) The NRA will invoice the CEWH once costs are incurred and confirmed for the amount of any costs to be paid by the CEWH under this clause.

11. Insurance(a) Obligation to take out and maintain insurance

(a) The NRA must take out or have taken out for the period specified in clause 11.(a)(b) or clause 11.(a)(c) (as the case may be) as at the Commencement Date, workers’ compensation and public liability insurances as specified in the Agreement Details.


(b) If the NRA takes out a ‘claims made’ policy, which requires all claims and any fact, situation or circumstance that might result in a claim to be notified within the period of insurance, the NRA must maintain the policy (or a policy in like terms) during the Term and for a period of seven years on and from the expiry or the early termination of this Agreement.

(c) If the NRA takes out an ‘occurrence’ policy, which requires the circumstances to which a claim relates to occur during the period of insurance whilst the notification of event can occur at any time subsequently, the NRA must maintain the policy during the Term.

(b) Copies of insuranceThe NRA must, on request, promptly provide to the CEWH any relevant insurance policies and certificates of currency for inspection.

12. Communication and media(a) The CEWO and the NRA will work together to publicly communicate the implementation of

watering actions, in collaboration with relevant partners and in accordance with the CEWH and NRA joint communications Protocol (Schedule 3).

13. Protection of personal informationIn relation to personal information obtained in connection with this Agreement, the NRA must:

(a) use or disclose personal information only for the purposes of this Agreement;

(b) not do any act or engage in any practice that would breach an Information Privacy Principle or National Privacy Principle under the Privacy Act;

(c) assume responsibility for any Loss suffered or incurred by the CEWH that arises directly or indirectly from a breach of any of the obligations of the NRA under this clause 13; and

(d) immediately notify the CEWH if the NRA becomes aware of a breach or possible breach of any of its obligations under this clause 13.

14. Confidentiality(a) Prohibition on disclosure

(a) Subject to clause 14.(b), a party must not, without the prior written consent of the other party, disclose any Confidential Information of the other party to a third party.

(b) In giving written consent to the disclosure of Confidential Information, the CEWH may impose such conditions as it thinks fit, and the NRA must comply with these conditions.

(b) Exceptions to obligationsThe obligations on the parties under this clause 14 will not be taken to have been breached to the extent that Confidential Information is:

(a) disclosed by a party to its advisers, employees, officers, agents, professional advisers or subcontractors solely in order to comply with obligations, or to exercise rights, under this Agreement;

(b) disclosed by the CEWH to the responsible Minister or a House or a Committee of the Parliament of the Commonwealth or is shared by the CEWH internally or with another Commonwealth agency, where this serves the CEWH’s legitimate interests; or

(c) authorised or required by Law, including under this Agreement, under a licence or otherwise, to be disclosed.


(c) No reduction in privacy obligationsNothing in clause 13 or in this clause 14 derogates from any obligation which either party may have either under the Privacy Act as amended from time to time, or under this Agreement, in relation to the protection of personal information.

(d) Agreement provisionsNotwithstanding any other provision of this Agreement, the CEWH may disclose the existence and provisions of this Agreement.

15. Risk management(a) The parties recognise that the NRA has a role in managing the risks of environmental water

delivery in the South Australian Murray-Darling Basin region and will undertake appropriate risk management processes in accordance with its organisational frameworks.

(b) The parties agree that watering actions will not be implemented where there are associated risks that are unacceptable to either party.

Planning and decision making

(c) The CEWH and NRA have a responsibility for risk management during the planning and decision making phase of environmental watering events.

(d) The decision to make Commonwealth environmental water available for watering events is based on a comprehensive risk assessment undertaken by CEWO.

(e) Risks and mitigating strategies associated with environmental watering events in the South Australian Murray-Darling Basin region are identified in the NRA Watering proposals.

Delivery

(f) During the delivery phase, risks are re-assessed in collaboration with NRA and mitigating strategies implemented as required.

(g) CEWO and NRA acknowledge that it is the storage managers and wetland managers that have the lead role in risk management during the delivery phase of environmental watering events.

(h) In line with the reporting arrangements detailed under Clause 4. Environmental Watering Proposals’ the NRA will immediately notify CEWO of any relevant issues as they arise which may influence the NRAs’ reputations or ability to deliver water.

16. Termination and expiry(a) Grounds for suspension or cancellation of an Event

(a) If the NRA:

(i) fails to comply with its obligations under:

(A) a Watering Schedule; or

(B) provides a revised Risk Assessment which identifies an unacceptable risk associated with an Event,

the CEWH may by notice immediately suspend or cancel an Event.

(b) In addition to its rights under clause 16.(a)(a) above, the CEWH may at its discretion cancel or suspend an Event where prompted by a legitimate concern or restriction.

(c) If the CEWH cancels or suspends an Event as contemplated by this clause, the NRA must comply with any direction given by the CEWH and ensure that any involved third party, Consent Authority and State or Territory Stakeholder is advised.


(b) Termination of the Agreement for default(a) Without limiting any other rights or remedies the CEWH may have against the NRA arising

out of or in connection with this Agreement (including cancellation or suspension of an Event), the CEWH may terminate this Agreement effective immediately by giving notice to the NRA if:

(i) the NRA breaches a material provision of this Agreement where that breach is not capable of remedy;

(ii) the NRA breaches any provision of this Agreement and fails to remedy the breach within 14 days after receiving notice requiring it to do so;

(iii) an event specified in clause 16 (b) happens to the NRA; or

(iv) being a corporation, there is any change in the direct or indirect legal or beneficial ownership or in the direct or indirect control of the NRA.

(b) The NRA must notify the CEWH immediately if the NRA ceases to be able to pay its debts as they become due, enters into liquidation, has a controller or managing controller or liquidator or administrator appointed, or is declared bankrupt or assigns his or her estate for the benefit of creditors or any analogous event occurs.

(c) If the CEWH terminates this Agreement all un-commenced Events will be taken to be cancelled.

(c) Consequences of suspension, cancellation and termination(a) If the Event is suspended the CEWH may require the NRA to provide a revised Watering

Proposal for the CEWH’s consent which reflects the revised particulars of the Event.

(b) If:

(i) the Event is cancelled in circumstances contemplated by clause 16.(a)(a) or 16.(a)(b);

(ii) the Event is cancelled due to termination of the Agreement as contemplated by clause 16.(a)(c),

(iii) the Event concludes but the Watering Objectives are not achieved to the CEWH’s reasonable satisfaction,

the CEWH may at its absolute discretion direct that the NRA:

(iv) effect the return of an amount of water of an equivalent quality and quantity to the Environmental Water, to the CEWH’s licence; or

(v) apply an equivalent quantity and quality of water to an alternative event or purpose,

and the NRA must comply with any such direction.

(d) Termination does not affect accrued rightsTermination of this Agreement does not affect any accrued rights or remedies of a party.

17. Indemnity and release(a) Indemnity

The NRA indemnifies the CEWH and continues to indemnify the CEWH against, all:

(a) losses suffered or incurred by the CEWH, including as the result of any claim made in relation to:

(vi) loss of or damage to third party property; or

(vii) the injury, illness or death of a third party;


(b) loss of or damage to the CEWH’s property; or

(c) losses suffered or incurred by the CEWH in dealing with any claim against the CEWH, including legal costs and expenses on a solicitor / own client basis and the cost of time spent, resources used, or disbursements paid by the CEWH,

arising from:

(d) any breach by the NRA (including any of its Personnel) of its obligations or warranties under this Agreement; and/ or

(e) any use or disclosure by the NRA (including its Personnel) of Personal Information or Confidential Information (or both, as the case may be) held or controlled in connection with this Agreement.

(b) ReleaseThe NRA releases the CEWH from:

(a) all claims, actions, demands and proceedings which it may have, or claim to have, or but for this release might have had, against the CEWH arising out of this Agreement or in any way connected with the performance of this Agreement; and

(b) all liability of the CEWH arising out of this Agreement,

on and from the Commencement Date.

(c) Proportional reduction of liabilityThe NRA's liability to indemnify and release the CEWH under clauses 17.(a) and (b) will be reduced proportionately to the extent that any negligent or unlawful act or omission, or wilful misconduct on the part of the CEWH (including its officers and employees) contributed to the relevant Loss.

(d) CEWH's right to be indemnified is additional to other rightsThe CEWH's right to be indemnified under clause 17.(a) is in addition to, and not exclusive of, any other right, power, or remedy provided by Law or in equity, but the CEWH is not entitled to be compensated in excess of the amount of the relevant Loss.

18. Notices and other communications(a) Service of notices

(a) A party giving notice or notifying under this Agreement must do so in English and in writing or by Electronic Communication:

(i) directed to the other party’s contact person at the other party’s address; and

(ii) hand delivered or sent by prepaid post, facsimile or Electronic Communication to that address.

(b) The parties’ addresses are specified in the Agreement Details or as otherwise varied by notice.

(b) Effective on receiptA notice given in accordance with clause (a) takes effect when it is taken to be received (or at a later time specified in it), and is taken to be received:

(a) if hand delivered, on delivery;

(b) if sent by prepaid post, on the second business day after the date of posting (or on the seventh business day after the date of posting if posted to or from a place outside Australia);


(c) if sent by facsimile, when the sender’s facsimile system generates a message confirming successful transmission of the total number of pages of the notice unless, within one business day after that transmission, the NRA informs the sender that it has not received the entire notice; or

(d) if sent by Electronic Communication, at the time that would be the time of receipt under the Electronic Transactions Act 1999 (Cth),

but if the delivery, receipt or transmission is not on a business day or is after 6.00pm on a business day, the notice is taken to be received at 9.00am on the next business day.

19. SurvivalThe following clauses survive the termination and expiry of this Agreement:

(a) clause 9 (Access to premises and records);

(b) clause 9.(e) (Insurance);

(c) clause 13 (Protection of personal information);

(d) clause 14 (Confidentiality); and

(e) clause 17 (Indemnity and release).

20. Miscellaneous(a) Variation

No agreement or understanding varying or extending this Agreement is agreed unless it is in writing and signed by both parties.

(b) Assignment and novationA party may only assign its rights or novate its rights and obligations under this Agreement with the prior written consent of the other party.

(c) CounterpartsThis Agreement may be signed in counterparts. All signed counterparts constitute one document.

(d) Entire agreementThis Agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.

(e) Relationship(a) The parties must not represent themselves, and must ensure that their officers, employees,

agents and subcontractors do not represent themselves, as being an officer, employee, partner or agent of the other party, or as otherwise able to bind or represent the other party.

(b) This Agreement does not create a relationship of employment, agency or partnership between the parties.

(f) Governing law and jurisdictionThis Agreement is governed by the law of the Australian Capital Territory and each party submits to the non-exclusive jurisdiction of the courts of the Australian Capital Territory.


Schedule 1 – Agreement Details

Item No. Description Details

1. CEWH Commonwealth of Australia as represented by the Commonwealth Environmental Water Holder situated within the Department of the Environment ABN 34 190 894 983.

2. CEWH details Postal address

GPO Box 787, Canberra ACT 2601

Physical address

John Gorton Building, King Edward Terrace, Parkes ACT 2600

Project Officer

Michelle Campbell

Phone 08 85952120

Email Michelle. [email protected]

7. NRA Ngarrindjeri Regional Authority ABN 50 034 502 372

8. NRA details Postal address

PO Box 371, Murray Bridge SA 5253

Physical address

50 Princes Hwy, Murray Bridge SA 5253

Project Officer

Margaret Sexton

Phone 08 85313668

Fax 08 85323816

Email [email protected]

14. Commencement Date The date this Agreement is signed by the last party.

15. Term 3 years

16. Consent Authorities Department of Environment, Water and Natural Resources, South Australia

17. State or Territory Stakeholders

Department of Environment, Water and Natural Resources, South Australia

18. Reports Prior notification by email of the commencement and cessation of an Event and any change or modification of the Event mid delivery.

Updates on relevant issues as they arise and which may influence the NRAs’ reputations or ability to deliver water. These will be immediately reported to the Commonwealth Environmental Water.

Agreement in relation to the delivery of environmental water to environmental assets in the lower River Murray, South Australiapage 20

mailto:[email protected]



A final operational monitoring report will be provided by the NRA within four weeks after full implementation of each watering action.

Ecological monitoring information collected relating to the watering actions.

Additional ReportsIn addition to the reports required in relation to delivery of the Environmental Water, the NRA must provide any additional Reports required by the CEWH.Where the CEWH requires an additional Report, it will issue a direction in writing to the NRA requiring an additional Report to be provided and specifying the CEWH’s requirements in relation to the: format;

content;

timing;

information and substantiating documentation to be submitted; and

auditing or certification (if any).

19. Insurance Requirements

Workers compensation insurance as required by law.Public liability and property damage insurance in an amount of $10,000,000 per occurrence.

20. Confidential Information

None specified


Schedule 2 – Watering ScheduleParticulars of Event


1. Environmental Water [Insert]

2. Watering Objectives for the watering action

[Insert]

3. Delivery Date [Insert]

4. Delivery arrangements

[insert details of how water will be delivered to site, site approvals/agreements for water delivery]

5. Additional Undertakings

[Insert details of any additional undertakings made by the NRA in its Watering Proposal including performance of any action, activity or works, in kind or cash contributions]

6. Delivery arrangements

[Insert details of sites and method of delivery of Environmental water]

7. Reports Event Reports Prior notification by email of the commencement and cessation of

an Event and any change or modification of the Event mid delivery.

Progress report on the operational delivery of water, updates on relevant issues as they arise and which may influence the NRA’s reputations or ability to deliver water. These will be reported to the CEWO by the end of each month by email/phone.

A final operational monitoring report will be provided by the NRA within four weeks after full implementation of each watering action.

Ecological monitoring information collected relating to the watering actions .

8. Confidential Information

[Insert]

9. Delivery Costs [Insert]

10. Additional Conditions

The actual volume of environmental water to be transferred annually to the NRA will be determined at the start of each agreed water year and is subject to availability of Commonwealth held South Australia allocation.

Delivery costs will be reimbursed to the NRA on receipt of a correctly



rendered invoice (to be submitted by 10 June). The delivery costs payable will be dependent on the volume of Commonwealth environmental water delivered on site.

Contact Officers:

Commonwealth Environmental Water Office

Name: Michelle Campbell

Position: Local Engagement Officer

Phone: 08 8595 2120

Email: michelle.campbell @environment.gov.au

Name: Alana Wilkes

Position: Assistant Director, Southern Basin Section

Phone: 02 6275 9343

Email: [email protected]

Ngarrindjeri Regional Authority (NRA)

Name:

Position:

Phone:

Email:

Name:

Position:

Phone:

Email:

Schedule Agreed

Date signed:___________________________

_____________________________________

David Papps

Commonwealth Environmental Water Holder

Date signed:___________________________

_____________________________________

Ngarrindjeri Regional Authority Inc.

Variations to this Schedule may be agreed in writing by the relevant delegates who will also jointly determine when a new Watering Schedule, rather than an amendment, is required.




Schedule 3 – Joint Communications and Media Protocol

JOINT COMMUNICATIONS AND MEDIA PROTOCOL

BETWEEN THE

COMMONWEALTH ENVIRONMENTAL WATER HOLDERAND

NGARRINDJERI REGIONAL AUTHORITY

Application

1. This protocol applies to the communication of environmental watering activities that involve:

a. both the Ngarrindjeri Regional Authority (NRA) and the Commonwealth Environmental Water Holder (CEWH); or

b. one party being referenced in communications materials by the other.

Objectives of the protocol

2. To ensure that all communication activities and materials recognise joint activities.

3. To ensure that all partners are kept up-to-date on environmental watering issues.

4. To ensure that accurate and consistent messages are communicated at all levels of government.

5. To ensure that the NRA acknowledges the use of Commonwealth environmental water in all relevant communications.

6. To ensure that the Commonwealth Environmental Water Office (CEWO) will acknowledge the work of the NRA in all relevant communications.

Media releases

7. The CEWH or the NRA may initiate and progress the development of media releases in relation to events involving the use of both South Australian and Commonwealth environmental water. Each party will advise and consult the other during development.

8. Other relevant parties may also be consulted. This may include the Murray-Darling Basin Authority, state government agencies and non-government stakeholders.

9. Media releases will be formally reviewed and approved by both parties prior to release, and if appropriate, will be co-branded with the Departmental/Government logos.

10. Both parties acknowledge that in some instances Ministers will need to be notified and/or involved in the approvals and release processes. This will be assessed on a case-by-case basis and the other party kept informed.


Publications and communications materials

11. The CEWH and the NRA will consult each other if they produce publications or communications materials that reference joint CEWH and NRA activities or activities that have been undertaken by the other party.

12. Both the CEWH and NRA will seek to provide a reasonable period for return comments.

Issues management

13. The NRA and CEWH will notify each other of emerging issues or requests for radio/ television/ print interviews on environmental watering issues that are expected to attract strong interest and may have implications for the other party.

14. On the spot media enquiries should be referred to the appropriate agency and addressed by the authorised spokesperson of the organisation. e.g. state-wide and local enquiries to the NRA. Once the interview is complete each party will seek to advise the other of any outcomes where issues have emerged or there are potential implications for the other party.

Communications contacts

CEWO

Media release clearance:

Commonwealth Environmental Water Holder

Publications and communications materials:

Executive Support Unit

Issues management:

Southern Basin Section Director

NRA

Media releases:

Tim Hartman, Chairman NRA

Issues management and publications and communications materials:

Margaret Sexton, Chief Operating Officer, NRA


Schedule 4 – NRA involvement in the management of Commonwealth environmental water

To de developed between the parties


Signature page

Executed as a Deed

SIGNED SEALED AND DELIVERED for and on behalf of the COMMONWEALTH OF AUSTRALIA represented by Commonwealth Environmental Water Holder situated within the Department of the Environment by a duly authorised representative

in the presence of:

Name of authorised representative (print) Name of witness (print)

Signature of authorised representative Signature of witness

Date Date

SIGNED SEALED AND DELIVERED for and on behalf of Ngarrindjeri Regional Authority ABN 50 034 502 372 by a duly authorised representative who warrants that they have the authority to sign this Deed on behalf of Ngarrindjeri Regional Authority.

in the presence of:

Name of authorised representative (print) Name of witness (print)

Signature of authorised representative Signature of witness

Date Date


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