PART I PRELIMINARY
1. (1) This Act may be cited as the GEOTHERMAL RESOURCES DEVELOPMENT ACT, 2016. (2) This Act shall come into force on such date as the Minister may appoint by Order published in the Gazette. Interpretation. 2. In this Act, unless the context otherwise requires— " Advisory Committee" means the Geothermal Resources Advi sory Committee established under section 3 Act No. 17 of 1995. "alien" has the same meaning as in the Aliens Land Holding Regulation Act, 1995 " application fee" means the application fee set by Order of the Minister under section 41 " bid" means a proposal submitted for carrying out the terms of reference in the tender documents "concession area" is the land, described by parameters related to its surface area, or the area that the geothermal resource developer is authorised to develop or carry out geothermal resource development under the Geothermal Resources Concession Act No. 5 of 2002. "development" has the same meaning as in the Physical Planning Act, 2002 Act No. 10 of 2006. "distribution" has the same meaning as in the Electricity Supply Act, 2006 " electricity supply control" means the terms or conditions re Act No. 10 of 2006. quired or authorised by the Electricity Supply Act, 2006 to be imposed on holders of a licence that is referred to in section 30 of that Act " enhancement" means an activity performed to improve produc tion or injection capacity of a well " exploration" means activity that demonstrates the dimensions, positions, characteristics and extent of geothermal re sources by geological, geochemical and geophysical stud ies and surveys and includes drilling, testing and enhance ment of shallow temperature gradient wells or deep ex ploratory wells " generation" means production of electrical energy from other forms of energy " geothermal energy" means the energy derived or derivable from and produced within the earth by natural heat phenomena, and includes geothermal water " Geothermal Exploration Agreement" means a development agreement referred to in sections 29(1)(a) and 31 " geothermal resource developer" means a person who is author ised to undertake geothermal resource development un der a Geothermal Exploration Agreement or Geothermal Resources Concession, and includes an entity referred to in section 29(3); " geothermal resource development" means exploration or use of geothermal resources " geothermal resource development agreement" means a devel opment agreement referred to in section 29(1); " geothermal resource development application" means an appli cation referred to in sections 36 and 37 " Geothermal Resources Concession" means a development agreement referred to in sections 29(1)(b) and 32 " geothermal water" means water heated within the earth by natural phenomena to a temperature of 30 degrees Celsius or more, and includes all steam, water, and water vapour, and every mixture of all or any of them that has been heated by natural phenomena " IRC" means the Independent Regulatory Commission estab Act No. 10 of 2006. lished under the Electricity Supply Act, 2006 " Minister" means the Minister responsible for energy " Physical Planning and Development Authority" means the Physical Planning and Development Authority established Act No. 5 of 2002. under section 4 of the Physical Planning Act, 2002 " planning and environmental controls" means the conditions and limitations on developments in general, or geothermal resource developments in particular, required or author Act No. 5 of 2002. ised by the Physical Planning Act, 2002 or Regulations made under it " reconnaissance" means activity which has minimal impact on the environment of the land that determines whether the land may be a source of geothermal resources, and does not include drilling " Register" means the register maintained by the Advisory Com mittee in accordance with section 42 " special geothermal zone" means the land described in terms of its surface area and subsurface land, designated as such under sections 23 and 24 " sustainable development and use" means managing the use, development, and protection of geothermal resources in a way, or at a rate, which enables people and communities to provide for their social, economic, and cultural well being and for their health and safety while (a) sustaining the potential of geothermal resources to meet the reasonably foreseeable needs of future generations (b) safeguarding the life supporting capacity of air, wa ter, soil, and ecosystems and (c) avoiding, remedying, or mitigating any material ad verse effects of activities on the environment " tender documents" means the documents containing the terms of reference for, and relevant details of, the tender process " tender process" means a competitive selection process, the rules, including selection criteria, of which are issued by the Advisory Committee for the purpose of allocating geothermal resource applications in special geothermal zones or if recommended by the Advisory Committee, outside a special geothermal zone pursuant to section 38(4); "testing", as it relates to wells, means the temporary use of a geothermal resource for the discharge of fluid, steam and gas from wells for the purpose of ascertaining the produc tion capacity of the well and chemistry of the geothermal well discharge "transmission" has the same meaning as in the Electricity Supply Act No. 10 of 2006. Act, 2006 and " use of a geothermal resource" means accessing the geothermal resource for the purpose of enjoying it, and drawing from it any of the profit, utility and advantage which it may produce, including geothermal energy.
Part 1 GEOTHERMAL RESOURCES ADVISORY COMMITTEE
Division 1 Constitution. 3. (1) There is hereby established a statutory board to be known as the Geothermal Resources Advisory Committee com prising the following members
§ 31 the Permanent Secretary of the Ministry with responsibility for energy
§ 32 the Executive Director of the IRC
§ 33 the Chief Physical Planner of the Physical Plan ning and Development Authority
§ 34 a senior State Attorney and
§ 35 senior technical public officers, and other profes sionals not in the public service, with relevant knowledge or expertise, altogether not exceeding 6 in number, appointed by the Minister. (2) The Minister shall appoint one member to be the Chairman and the Permanent Secretary of the Ministry with responsibility for energy shall act as the Deputy Chairman, unless the Permanent Secretary is appointed Chairman, in which case the Minister shall select another member to act as Deputy Chairman. (3) The names of the initial members, their title, if any, and the names of subsequent members, shall be published in the Official Gazette. (4) A member appointed under subsection (1)(e) shall hold office for a term of three years. (5) The Chairman and Deputy Chairman shall appoint a secretary from among the members. (6) In the case of the absence or inability of the Chairman to act, the Deputy Chairman shall exercise the function of the Chairman. 4. (1) The Minister may appoint a person to be an alternate Alternate members. member for any member, other than the Chairman, so long as the alternate member possesses similar qualifications and back ground as the member for whom he or she is serving as an alternate. (2) The alternate member may act temporarily in the place of that member if that member is absent, incapacitated or ineligible to perform the duties of a member. 5. (1) A person is not qualified for appointment as a member Persons unqualified and if he or she— conflict of interesL
§ 37 is an undischarged bankrupt or
§ 38 has been convicted of a serious offence. (2) A member of the Advisory Committee shall inform the Advisory Committee of any matter in which he or she has, either directly or indirectly, personally or by his or her spouse, partner, business associate or company, any pecuniary or busi ness interest, and the member shall take no part, directly or indirectly, in any consideration or decision of the Advisory Committee on that matter. (3) For the purposes of subsection (1)(c), the expression " serious offence" means an offence for which the sentence is fixed by law or for which a person (not previously convicted) may under or by virtue of an enactment be sentenced on conviction to imprisonment for a term of five years and the expression includes an attempt to commit such offence. Vacancy. 6. If a vacancy occurs in the membership, the Minister shall appoint a person to fill the vacancy in a manner that respects the requirements in section 3 for the composition of the Advisory Committee. Casting vote. 7. The Chairman has the right to vote at meetings of the Advisory Committee, and, in the case of an equal division, has also a casting vote. Meetings and quorum. 8. (1) The Advisory Committee shall meet at the times that it considers necessary or expedient for the transaction of business and such meetings shall be held at the place that the Advisory Committee determines. (2) A majority of all members constitute a quorum, provided that under no circumstance shall less than three members constitute a quorum. 9. All decisions made by the Advisory Committee shall be signed by the Chairman, Deputy Chairman or secretary. 10. The members of the Advisory Committee shall be paid remuneration as may be prescribed by Order of Cabinet. 11. (1) A budget for the operations of the Advisory Commit tee shall be a charge on the Consolidated Fund. (2) The fees, royalties, bonds and administrative mon etary penalties paid under this Act must be paid in to the Consolidated Fund of the Government of the Commonwealth of Dominica.
Division 2
§ 39 (1) The functions of the Advisory Committee are to Functions and advise the Minister respecting— obj^u^. (a) policy formulation for the promotion, sustainable development and use of geothermal resources including policy relating to regional and interna tional co operation in such matters (b) the determination of geothermal resource devel opment applications in accordance with section
§ 40 (c) the negotiation of regional and international initia tives and agreements relating to geothermal re sources (d) public education and training on geothermal re sources and related matters (e) setting of fees, royalties and bonds to be charged under this Act and (f) other functions that the Minister may assign (2) In carrying out its functions the Advisory Committee shall seek to promote— (a) sustainable development and use of Dominica's geothermal resources, for the benefit of the people of Dominica (b) provision of low cost, secure energy in Dominica, at stable prices (c) investment and competition in the development of geothermal resources, where applicable and (d) implementation of best practices in the operation of geothermal facilities. Sub committees. 13. (1) T he Advisory Committee may appoint sub commit tees to examine and report to it on any matter relating to any of its functions under this Act. (2) A sub committee shall include not less than 2 mem bers of the Advisory Committee, and may include persons who are not members. (3) The Advisory Committee shall determine the compo sition and functions of a sub committee. 14. The Advisory Committee may delegate, in writing, to a sub committee or to a member, the exercise of any power or the performance of any duty vested in it by this Act, except the power to delegate under this section. Civil Liability. 15. No civil liability shall attach to any member of the Advi sory Committee in respect of anything done, or omitted, in good faith under this Act. Report. 16. (1) The Advisory Committee shall give to the Minister any information that Cabinet may require regarding its operations. (2) The Advisory Committee shall submit to the Minister at the end of each calendar year a report that includes— (a) an assessment of the state of the development of geothermal resources, and its impact and signifi cance for the development of the State (b) a description of the activities undertaken by the Advisory Committee and (c) any other matters that the Minister may require. (3) The Minister shall cause a copy of the report to be laid before the House of Assembly within 90 days following the commencement of each calendar year.
Part 2 GEOTHERMAL RESOURCES
§ 41 (1) A geothermal resource is sui generis property and Natae. the rules relating to it, including the creation, acquisition, transfer, exercise, termination of rights respecting it, are set out in this Act. (2) For the avoidance of doubt, it is not a mineral, nor a water resource, nor real property. 18. A Geothermal resource comprises geothermal energy Content. and includes (a) all products of geothermal processes, embracing indigenous steam, hot water, and hot brines (b) steam and other gases, hot water, and hot brines resulting from water, gas, or other fluids artificially introduced into geothermal formations (c) heat or associated energy found in geothermal forma tions and (d) any by product derived from them.
§ 42 Notwithstanding anything contained in any law or title of Ownership. land, geothermal resources in, or under any land of whatsoeverownership or tenure are deemed to be, and to always have been, vested in, and are subject to the control of, the State and the Minister, on behalf of the State, may grant rights to a geothermal resource developer only under this Act.
Part 3 MANAGEMENT OF GEOTHERMAL RESOURCE DEVELOPMENT
Division 1
§ 43 For the avoidance of doubt, a geothermal resource devel opment is a development within the meaning of the PhysicalPlanning Act, 2002 for which development permission must be obtained in accordance with the procedure of Part IV of that Act, except to the extent modified or excluded by this Act and Regulations made under this Act.
§ 44 For the avoidance of doubt, when electricity is derived from a geothermal resource, the generation, transmission ordistribution and supply must be authorised in accordance with Part VI of the Electricity Supply Act, 2006, except to the extent modified or excluded by this Act and Regulations made under this Act.
§ 45 (1) A geothermal resource is not land within the meaning of the Aliens Land Holding Regulation Act, 1995 and a geothermal resource developer who is an alien is consequently not subject to the provisions of the Aliens Land Holding Regulation Act in respect of his rights in respect of a geothermal resource. (2) The Aliens Land Holding Regulation Act, 1995 does not apply to a geothermal resource developer in respect of any interest in land that the developer is authorised to hold under the developer's geothermal resou es development agreement.
Division 2
§ 46 (1) The Minister may, by notice in the Gazette, designate any place, whether surface area or subsurface land or both, to be a special geothermal zone if— (a) the Advisory Committee advises that, on the basis of the information it possesses, the place is likely to be a source of geothermal resources and (b) the Minister reasonably believes that it is in the public interest that the right to use geothermal resources in that place be allocated, subject to § 47(5), through a tender process. (2) The designation of an area as a special geothermal zone shall remain unchanged until any relevant geothermal resource development agreement is deemed abandoned and an area that is located outside a special geothermal zone and subject to a geothermal resource development agreement may not be designated as a special geothermal zone until the relevant geothermal resource development agreement is deemed aban doned. 24. Once a special geothermal zone is designated under Effect of Designation. § 48 — (a) subject to section 31(5) or any contrary recom mendation of the Advisory Committee, no right to explore or use geothermal resources in any part of that zone shall, be allocated except on applica tion in the form of a bid for a geothermal resource development agreement under the tender proc ess described in sections 35 and 37, as applicable and (b) the Physical Planning and Development Author ity shall not approve any development in that zone that is inconsistent with uses described in this Act.
Division 3 Exploration, Use and Export Reconnaissance. 25. A person may conduct reconnaissance in any part of Dominica. However, the person—
§ 49 is subject to the law relating to trespass and any other law relating to rights of access to, or use of land
§ 50 obtains no rights or interest in respect of any geothermal resources identified through the activi ties and
§ 51 has no entitlement to any privilege or priority in respect of a geothermal resource development agree ment. Exploration. 26. A person shall not, in any part of Dominica, conduct exploration for geothermal resources unless the person is author ised under a Geothermal Exploration Agreement. Use. 27. (1) A person shall not use any geothermal resources except to the extent authorised under the terms and conditions contained in a Geothermal Resources Concession. (2) In accordance with the sustainable development and use of geothermal resources, where practicable and appropriate to the production method, field characteristics and safety con siderations, the injection of extracted geothermal fluid shall be required or authorised under the terms and conditions contained in a Geothermal Resources Concession. Export. 28. (1) A person shall not export electricity generated from geothermal resources except if the Minister, after consulta tion with the Advisory Committee and the IRC, authorises such export under—
§ 52 a geothermal resource development agreement or
§ 53 a specific contract authorising export of electric ity. (2) Where the export of electricity generated from geothermal resources is authorised, the export shall be on the terms and subject to the conditions imposed by the geothermal resource development agreement or the specific contract authorising the export of electricity. (3) The terms and conditions may include a requirement to pay royalties based on the use of geothermal resources or on the export of electricity, or both, as the Minister, after consultation with the Advisory Committee, the IRC, and the Minister for Finance, determines.
Part 4 GEOTHERMAL RESOURCE ALLOCATION
§ 54 (1) Subject to sections 38 and 39 and to this section, the Power of Minister to Minister may, on behalf of the State, enter into any of the following allocate resources development agreements for geothermal resource development (a) a Geothermal Exploration Agreement authoris ing the exploration for geothermal resources and (b) a Geothermal Resources Concession authorising the use of geothermal resources. (2) The Minister may enter into an agreement under subsection (1) only if the application for authorisation to carry on geothermal resources development is made in accordance with
Part 5
§ 55 This section applies even though the geothermal resource developer (a) carries on the development as a contractor of the State using State funds or (b) is an entity that is partly owned or controlled by the State. 30. A geothermal resource development agreement executed in accordance with section 39 constitutes— (a) development permission and building permission re quired by section 17(1) and section 62 respectively of the Physical Planning Act, 2002 for the geothermal resource development to the extent permitted in the geothermal resource development agreement, and subject to the planning and environmental controls that are set out in the Physical Planning Act, 2002, except as modified or excluded by this Act or Regu lations made under this Act (b) authorisation required by section 29(1) of the Elec tricity Supply Act, 2006 for any one or more of the following activities to the extent authorised in the geothermal resource development agreement, and subject to the electricity supply controls that are set out in the Electricity Supply Act, 2006, except as modified or excluded by this Act or Regulations made under this Act (i) generation, (ii) transmission, (iii) distribution and supply (c) the certificate of approval required by section 10 of the Environmental Health Services Act, 1997, for Act No. 8 of 1997 the geothermal resource development to the extent permitted in the geothermal resource development agreement, and subject to the environmental health controls that are set out in the Environmental Health Act No. 8 of 1997. Services Act, except as modified or excluded by this Act or Regulations made under this Act and (d) the consent required by section 7 of the Noise Chap. 40 99. Abatement Act for the works relating to the geothermal resource development to the extent permitted in the geothermal resource development agreement, and subject to the noise abatement con trols that are set out in the Noise Abatement Act, Chap 40 99. except as modified or excluded by this Act or Regu lations made under this Act. 31. (1) A Geothermal Exploration Agreement entitles the Rights accorded by geothermal resource developer the exclusive right to carry on Exploration exploration activities for a term, not exceeding three years, stated in the Geothermal Exploration Agreement, subj ect to the planning and environmental controls that are set out in the Physical Act No. 5 of 2002. Planning Act, 2002 except as modified or excluded by this Act or Regulations made under this Act, and subject further to the following— (a) the exploration must be— (i) limited to the area accorded under the Geothermal Exploration Agreement, (ii) in accordance with the methodology or tech nology approved in the Geothermal Explora tion Agreement, if any, and (iii) in accordance with any other term or condi tion not contrary to subparagraphs (i) and (ii), contained in the Geothermal Exploration Agreement (b) the geothermal resource developer must pay the fees and bonds set out in the Geothermal Explo ration Agreement within the time required and must comply with the other terms and conditions contained in the Geothermal Exploration Agree ment and (c) the Geothermal Exploration Agreement may be renewed on the application of the geothermal resource developer, for a term, not exceeding two years, set out in the Geothermal Exploration Agreement, if the Advisory Committee so rec ommends in accordance with section 37.
§ 56 A Geothermal Exploration Agreement also entitles the geothermal resource developer to obtain the land, including easements, acquired under section 33 for the purpose of the geothermal resource development on payment of the price and in accordance with the statutory rights set out in section 34.
§ 57 A Geothermal Exploration Agreement shall only require a geothermal resource developer to prepare an environ mental impact assessment ahead of a well drilling and testing programme.
§ 58 Subject to subsection (5), in a special geothermal zone, or subject to subsection (6), in an area not located in a special geothermal zone, the geothermal resource developer obtains no rights or interest in respect of any geothermal resources discov ered.
§ 59 In a special geothermal zone a geothermal resource developer who is authorised to undertake geothermal resource development under a Geothermal Exploration Agreement has the right to apply for and be granted a Geothermal Resources Concession through a non competitive negotiated process under
Part 6
§ 60 If a geothermal resource developer operating under a Geothermal Exploration Agreement in an area not located in a special geothermal zone desires to use any geothermal resource within the area accorded under the Geothermal Exploration Agreement, the geothermal resource developer has the right to apply for and be granted a Geothermal Resources Concession through a non competitive negotiated process under Part VI.
§ 61 The State shall be represented in the negotiation of any Geothermal Exploration Agreement by the Advisory Committee or any other committee appointed by the Minister for that purpose.
§ 62 The rights set out in this section are deemed aban doned— (a) in the circumstances set out in the Geothermal Exploration Agreement or (b) in the absence of contractual provisions in the Geothermal Exploration Agreement referred to under paragraph (a), if there is no exploration for a period of two years or more from the execution of the Geothermal Exploration Agreement. 32. (1) A Geothermal Resources Concession entitles the Rights accorded by t 'I.. Geothermal Resources geothermal resource developer the exclusive right to use Concession. geothermal resources in a concession area for the term, not exceeding forty years, set out in the Geothermal Resources Concession, subject to the electricity supply controls which are set out in the Electricity Supply Act, 2006, except as modified or Act No. 10 of 2006. excluded by this Act or Regulations made under this Act, and subject further to the following (a) the use must be— (i) limited to geothermal resources located in the concession area accorded under the Geothermal Resources Concession, (ii) for the purposes authorised in the Geothermal Resources Concession, (iii) with the methodology or technology approved in the Geothermal Resources Concession and (iv) in accordance with any other term or condi tion not contrary to subparagraphs (i) to (iii), in the Geothermal Resources Concession (b) t he geothermal resource developer must pay the fees, bonds and royalties set out in the Geothermal Resources Concession within the time required and must comply with the other terms and condi tions contained in the Geothermal Resources Concession (c) the Geothermal Resources Concession may be renewed on the application of the geothermal resource developer, for a term, not exceeding ten years in the first instance, set out in the Geothermal Resources Concession, if the Advisory Commit tee so recommends in accordance with section
§ 63 A Geothermal Resources Concession also entitles the geothermal resource developer to— (a) obtain the land, including easements, acquired under section 3 3 for the purpose of the geothermal resource development on payment of the price and the statutory rights set out in that section and (b) export electricity generated from geothermal re sources if authorised by the Minister in accord ance with section 28.
§ 64 The State shall be represented in the negotiation of any Geothermal Resources Concession by the Advisory Committee or any other committee appointed by the Minister for that purpose.
§ 65 The rights set out in this section are deemed aban doned— (a) in the circumstances set out in the Geothermal Exploration Agreement or (b) in absence of contractual provisions under para graph (a), if the use is not started within 3 years of the execution of the Geothermal Resources Concession. 33. (1) Where the Advisory Committee advises the Minister Compulsory acquisition that land is required for a geothermal resource development the rights. State may— (a) compulsorily purchase that land in accordance with the Land Acquisition Act as being land Chap. 53 02. required for public purposes within the meaning of that Act or (b) acquire an easement over the land in a manner consistent with the Land Acquisition Act.
§ 66 Land, or any easement in respect of land, acquired under this section and transferred to a geothermal resource developer must be transferred to the developer for not less than the cost of acquisition. 34. (1) Subject to subsection (2), section 44 of the Electricity Supply Act, 2006 applies to a geothermal resource developer in respect of all of the apparatus of the geothermal resource developer used in, or in the installation of, the developer's authorised geothermal resource development as if the word "licensee" were replaced with "geothermal resource developer", "Commission" were replaced with "Advisory Committee" and the words "this Act" were construed as references to this Act.
§ 67 Section 44(9) and (10) of the Electricity Supply Act, 2006 applies only to a geothermal resource developer who is authorised to generate, transmit, distribute or supply electricity.
Part 7 PROCEDURE FOR OBTAINING A GEOTHERMAL RESOURCE DEVELOPMENT AGREEMENT
§ 68 (1) An application for a geothermal resource develop ment agreement must be made— (a) in writing if— (i) the area to be developed is not located in a special geothermal zone (ii) the application is for renewal of a Geothermal Exploration Agreement or Geothermal Re sources Concession or (iii) the application is for a Geothermal Resources Concession in a special geothermal zone through a non competitive negotiated proc ess pursuant to section 31(5); or (b) subject to subsection (1)(a)(iii), in the form of a bid as part of a tender process in accordance with tender documents issued by the Advisory Committee in the event the area to be developed is located within a special geothermal zone. (2) An application must be accompanied by the applica tion fee set by Order of the Minister under section 40, and contain the information required— (a) in the case of an application under subsection (1) (b) by the tender documents prepared by the Advisory Committee (b) under section 23 of the Physical Planning Act, Act No. 5 of 2002. 2002 except to the extent excluded by paragraph (a) ; and (c) any other information and particulars that may be prescribed by the Advisory Committee. 36. An application under this Part must be submitted to the Submission of Advisory Committee. APPiication. 37. (1) In this section " application" means an application for Determination of the making or renewal of a geothermal resource development application. agreement. (2) The Advisory Committee shall review an application in accordance with the procedure set out in the Schedule and Schedule. recommend in respect of an application for— (a) the making of a geothermal resource develop ment agreement in respect of an area not located in a special geothermal zone, or in respect of an area located in a special geothermal zone through a non competitive negotiated process pursuant to § 69 (5), whether approval should be given by the Minister (b) t he making of a geothermal resource develop ment agreement in respect of an area located within a special geothermal zone or in in respect of an area not located in a special geothermal zone pursuant to section 38(4) (i) the list of bidders who qualify for approval in descending order starting with the highest evaluated bidder (ii) the parameters of the concession area to be accorded under the geothermal resource de velopment agreement and (c) renewal of a geothermal resource development agreement, whether approval should be given by the Minister and the term of the renewal. (3) The Advisory Committee shall not recommend an application under subsection (2) unless the Advisory Committee is satisfied— (a) on consultation with the Physical Planning and Development Authority, that the application quali fies for planning approval having regard to the Act No. 5 of 2002. considerations set out in section 25 of the Physi cal Planning Act, 2002 and any applicable plan ning and environmental standards (b) the application does not pose an unacceptable threat to national security and establishes an acceptable balance among competing develop ers, if any, of the geothermal resources and competing users of land affected by the applica tion (c) on consultation with the IRC, that the applicant meets the criteria, if any, established by the IRC under section 28 of the Electricity Supply Act, Act No. 10 of 2006.
§ 70 (d) the applicant has the necessary legal capacity, financial standing, technical expertise and mana gerial competence to carry out efficiently, any electricity generation, transmission, or distribu tion as required by section 30(7) ofthe Electricity Act No. 10 of 2006. Supply Act, 2006 which the geothermal resource development agreement may authorise (e) on consultation with the IRC, that the geothermal resource developer has, in the case of an applica tion for renewal, during the preceding terms of the geothermal resource development agree ment, continued to invest in the sustainable devel opment and use of the resource, complied with requirements of applicable environmental and planning regulations, and met the specific terms and conditions set out in the geothermal resource development agreement. (4) Notwithstanding any other provisions of this section, in order to encourage the sustainable development and use of the resource— (a) when a geothermal resource developer has— (i) during the preceding terms of the geothermal resource development agreement, continued to invest in the sustainable development and use of the resource, complied with require ments of applicable environmental and plan ning regulations, and met the specific terms and conditions set out in the geothermal resource development agreement, and (ii) demonstrated the existence of geothermal resources sufficient for commercial use within the area accorded under a Geothermal Ex ploration Agreement, the Advisory Committee shall recommend the making of a Geothermal Resources Concession and (b) when a geothermal resource developer has com plied with subsection (3)(e), the Advisory Com mittee shall recommend the renewal of the devel oper's Geothermal Resources Concession. (5) The objectives in deciding on the parameters of the concession area for the purpose of subsection (2)(b)( ii) include— (a) allowing for the sustainable development and use of the geothermal resources (b) limiting conflict between geothermal resources users (c) fairly rewarding the investment, if any, that par ties have made in exploration leading to the finding of useable geothermal resources. (6) The Advisory Committee shall forward recommenda tions to the applicant promptly following communication of them to the Minister. (7) For the purpose of this section, the Advisory Commit tee, or any person authorised by it in writing, has the powers of entry, examination and inquiries conferred by section 81 of the Act No. 5 of 2002. Physical Planning Act, 2002 for the purpose set out in section 81(1)(b) of that Act. Minister's approval. 38. (1) The Advisory Committee shall submit its recommen dation in respect of an application to the Minister for his approval in the time frame required under the Schedule. Schedule. (2) The Minister shall not give his approval in respect of an applicant recommended under section 37, unless the terms and conditions of a geothermal resource development agreement are successfully negotiated with the applicant. (3) Subject to section 31(5), in the case of an application in respect of an area located within a special geothermal zone, the parties are bound by the terms in tender documents and the bid, where applicable, but may negotiate in respect of other terms and conditions which are not inconsistent. (4) If the Minister does not approve an application in respect of an applicant recommended under section 37 for a particular area, be it within or outside a special geothermal zone, the Advisory Committee may recommend the allocation of the right to carry out geothermal resource development through a tender process. 39. (1) If the Minister approves an ^ph^ti^ a geothermal Execution of agreement. resource development agreement must, to be valid, be executed by (a) the Commonwealth of Dominica, represented by the Minister, as party to it (b) the applicant, as party to it. (2) The details respecting sustainable development and use as it relates to a geothermal resource developer may be specified in the relevant geothermal resource development agreement. 40. (1) A geothermal resource developer who wishes to Transfer of interests or transfer their geothermal resource development agreement to a rights. third party must obtain the prior consent of the Minister under this section. (2) Subject to subsection (3), an application for consent to a transfer must— (a) be made jointly by the geothermal resource devel oper and the transferee and (b) be made within three months after the date of the agreement that contains the transfer and (c) be accompanied by a copy of the agreement that contains the transfer. (3) The transferee must provide to the Minister— (a) a statement, signed by or on behalf of the trans feree, in which the person signing the statement must confirm that the transferee has the financial capability to meet its obligations under the geothermal resource development agreement and (b) any specified supporting information. (4) If the transferee is a company, a statement of financial capability must be signed on behalf of all the directors by at least two directors of the company or, if the company has only one director, by that director. (5) Before granting consent, the Minister must consult with the Advisory Committee and be satisfied that the transferee is likely to be able to comply with the terms and conditions of, and give proper effect to, the geothermal resource development agreement. (6) The Minister must record the transfer consented to under this section on the geothermal resource development agreement concerned and publish notice of the transfer in the Gazette.
Part 8 FEES, BONDS AND ROYALTIES
§ 71 (1) The Minister shall set application fees, annual fees Minister to set fees and and bonds to be payable by geothermal resource developers by royalties Order published in the Gazette and the fees and bonds shall apply, unless otherwise agreed to in the geothermal resource develop ment agreement. (2) The Minister, after consultation with the Advisory Committee, the IRC and the Minister for Finance, may set royalties (if any) that geothermal resource developers are re quired to pay by Order published in the Gazette and the royalties shall apply, unless otherwise agreed to in the terms and conditions of a geothermal resource development agreement.
Part 9 RECORD KEEPING AND PUBLICITY
§ 72 (1) The Advisory Committee shall maintain a Register of Register. all geothermal resource development plans, special geothermal zones, geothermal resource development applications, and geothermal resource development agreement. (2) The Register shall contain the particulars of applica tions under this Act and an indication of whether or not the Minister' s approval was given and in entering information into the register, the Advisory Committee shall take full account of the need to protect confidential and commercially sensitive informa tion and shall, where necessary, suitably restrict disclosure of such information to achieve such goal. (3) Subject to subsection (2), the Register shall be a public register and shall be open for inspection by members of the public at such times and on such days as the Advisory Committee determines. (4) A person may, on payment of a fee to be determined by the Advisory Committee, require the Advisory Committee to supply such person with a copy or an extract, certified by the Advisory Committee as a true copy or extract, from any part of the Register. (5) Notwithstanding subsection (1), the Minister may by Order published in the Gazette prescribe other information relating to the Act that must be maintained in the Register. Publication in the 43. The Advisory Committee shall cause to be published in Gazette. the Gazette, within six weeks of the occurrence, the following (a) notice of geothermal resource development applica tions (b) recommendations made under section 37 (c) notice of the execution, expiration, suspension, sur render, modification, revocation, or extension of geothermal resource development agreements. PARTIX COMPLIANCE AND ENFORCEMENT Division 1—General Responsible authorities. 44. (1) The Advisory Committee shall— (a) assist the Physical Planning and Development Authority in the monitoring and enforcement of compliance with planning and environmental con trols, subject to subsection (2); (b) assist the IRC in the monitoring and enforcement of compliance with the electricity supply controls, ensuring the incorporation of health and safety guidance in relation to electricity supply and (c) monitor and enforce any term or condition in a geothermal resources developement agreement, including, but not limited to, environmental monitoring, resource monitoring, and geothermal specific safety monitoring. (2) Notwithstanding the provisions of the Physical Plan Act No. 5 of 2002. ning Act, 2002, the Physical Planning and Development Authority shall exercise its monitoring and enforcement powers conferred under Part V of the Physical Planning Act, 2002 in respect of Act No. 5 of 2002. geothermal resource developments, only in accordance with the advice of the Advisory Committee. (3) Notwithstanding the provisions of the Electricity Act No. 10 of 2006. Supply Act, 2006, the IRC shall exercise its monitoring and enforcement powers conferred under Parts III, VI, VII, and VIII of the Electricity Supply Act, 2006 in respect of geothermal Act No. 10 of 2006. resource developments, only in accordance with the advice ofthe Advisory Committee. 45. For the purpose of Part IX, the Advisory Committee may Self monitoring. direct, by notice in writing, the geothermal resource developer to submit information to it, with the frequency and in the manner indicated in the notice, or by a time stipulated in the notice, concerning its activities under the geothermal resource develop ment agreement, and the geothermal resource developer shall comply with the notice. Division 2—Inspections Designation of 46. (1) For the purpose of assisting in its monitoring and enforcement functions set out in section 44, the Advisory Committee may designate any qualified person, whether a member of the Advisory Committee or not, as an inspector to carry out inspections. (2) An inspector shall be provided with a certificate of designation, which certificate the inspector shall present at the request of any person appearing to be in charge of any place entered by the inspector. Powers of inspectors. 47. (1) An inspector may, for the purposes for which the inspector was designated an inspector under section 46— (a) enter and inspect, subject to subsection (2), at any reasonable time, any place owned by, or under the control of, a geothermal resource developer, in which the inspector believes on reasonable grounds there is any document, information or thing relevant to the enforcement of this Act, or a geothermal resource development agreement, and examine the document, information or thing, or remove it for examination or reproduction (b) make use of, or cause to be made use of, any data processing system at the place to examine any data contained in or available to the system (c) reproduce any record, or cause it to be repro duced, from the data, in the form of a print out or other intelligible output, and take the print out or other output for examination or copying (d) make use of any copying equipment or means of communication located at the place (e) take photographs of anything in the place being inspected and remove the photographs from the place (f) take for analysis anything in the place being inspected and remove for analysis outside the place (g) search and bore for the purpose of examining the subsoil (h) interview any person in the place being inspected and (i) make any other investigation, examination and inquiries that are necessary to achieve those purposes for which the entry was authorised. (2) An inspector must not enter a dwelling place except with the consent of the occupant or under the authority of a warrant issued under subsection (3). (3) Where on an ex parte application a Magistrate is satisfied by information on oath— (a) that a dwelling place is a place described in subsection (1)(a); (b) that entry to the dwelling place is necessary for the monitoring and enforcement referred to in § 73 and (c) that entry has been refused, or that there are reasonable grounds for believing that entry will be refused, or consent to entry cannot be ob tained from the occupant, the Magistrate may issue a warrant authorising an inspector named in the warrant to enter the dwelling place, subject to any conditions specified in the warrant. (4) An inspector executing a warrant issued under sub section (3) shall not use force unless the inspector is accompanied by a police officer and the use of force has been specifically authorised in the warrant. (5) If any damage is caused by reason of the exercise of any right of entry conferred by this section, or in the making of any survey for the purpose for which such right of entry was conferred, or by the wrongful or negligent use of powers con ferred, or alleged to have been conferred, by this section, the Advisory Committee, as soon as may be after such entry, must pay compensation to the person injured. (6) If the amount of such compensation cannot be settled Act No. 5 of 2002. through negotiation, section 69(8)( c) of the Physical Planning Act shall apply mutatis mutandis respecting the determination of the compensation payable, and the Advisory Committee must refer the matter accordingly. Division 3—Administrative Monetary Penalties and Other Sanctions Commission of violation. 48. (1) A person commits a violation who— (a) fails to comply with a notice for information under § 74 (b) fails to comply with the planning and environmen tal control or electricity supply control to which their geothermal resource development agree ment is subject (c) fails to pay in full when due, a fee or royalty imposed by Order of the Minister under section
§ 75 (d) fails to comply with or defaults under a geothermal resource development agreement or (e) commits any other act which the Minister by Order published in the Gazette, designates as a violation. (2) A person who commits a violation referred to in subsection (1)(a) is liable— (a) in the case of an individual, to an administrative monetary penalty of USD1,000 or (b) in the case of a corporation, to an administrative monetary penalty of USD5,000. (3) A person who commits a violation referred to in subsection (1)(b) is liable— (a) in the case of an individual, to an administrative monetary penalty of USD2,500 or (b) in the case of a corporation, to an administrative monetary penalty of USD10,000. (4) A person who commits a violation referred to in subsection (1)(c) is liable to an administrative monetary penalty in the amount of 10percent of the outstanding fee or royalty. (5) A person who commits a violation referred to in subsection (1)(e) is liable to the administrative monetary penalty set out in the Order, which may not exceed USD 1,000 in the case of an individual and USD5,000 in the case of a corporation. (6) A violation that is continued on more than one day constitutes a separate violation in respect of each day during which it is continued. 49. (1) If the Advisory Committee believes on reasonable grounds that a person has committed a violation, the Chairman may issue, and shall cause to be served on that person, a notice of its intention to impose an administrative monetary penalty which— (a) sets out the name of the person who is believed to have committed the violation (b) sets out the alleged violation and the relevant facts surrounding the violation (c) sets out the administrative monetary penalty pre scribed in section 48 for the violation that it intends to impose and (d) advises the person of the right to make written representations to the Advisory Committee and of the period within which that right must be exercised in accordance with subsection (2); (2) A person who receives a notice under subsection (1) may, within twenty eight days after the date on which he or she receives the notice, send written representations to the Advisory Committee respecting the facts of the alleged violation or the administrative penalty imposed or both. Penalty notice. 50. (1) After the expiration of twenty eight days from the date that the Advisory Committee sent a notice of intention to impose a penalty under section 49, the Advisory Committee may impose an administrative monetary penalty in the amount prescribed in section 48 by sending him a penalty notice stating— (a) the name of the person (b) the violation for which the penalty is imposed (c) the date on which the notice of intention to impose a penalty in respect of that violation was sent to the person (d) the amount of the penalty for the violation in accordance with section 48 (e) a date, not less than twenty eight days after the date of the penalty notice, by which the person must pay the penalty to the Advisory Committee and (f) the fact that, if the person does not pay the penalty or appeal to the High Court under section 51, the person is considered to have committed the violation and that he or she is liable for the penalty set out in the notice. (2) Before imposing an administrative monetary penalty under this section, the Advisory Committee shall consider any written representations that it has received from the person and, where it receives such representations, it must provide reasons for the action that it takes. (3) A person who receives a penalty notice under this § 76 pay the penalty stated to the Advisory Committee on or before the date specified in the notice, or appeal to the High Court under section 50. (4) If the person pays the administrative monetary pen alty, the person is deemed to have committed the violation and proceedings in respect of it are ended. (5) A person who neither pays the administrative mon etary penalty nor appeals to the High Court under section 51 is considered to have committed the violation and is liable for the penalty. Appeal to the High 51. (1) A person served with a penalty notice under section 50 may, within twenty eight days after the notice is served, or within any longer period that the High Court allows, appeal in writing to the High Court. (2) On an appeal, the High Court may confirm, set aside or vary the decision of the Advisory Committee. Publication. 52. If the Advisory Committee imposes an administrative monetary penalty on a person, the Committee shall publish the imposition of the penalty in the Gazette as soon as practicable after— (a) if the person pays the penalty, the date of payment (b) if the person neither pays the penalty nor appeals the penalty notice, the date stipulated in the penalty notice for payment (c) if the person appeals under section 51, the date the High Court confirms that the person is liable to pay the penalty. Debts to the State. 53. (1) An administrative monetary penalty constitutes a debt due to the State and may be recovered as such in the High Court. (2) The Advisory Committee may, on or after the dates referred to in section 52(b) and (c), issue a certificate certifying the unpaid amount of any debt referred to in subsection (1) and the registration of the certificate in the High Court has the same effect as a judgment of the High Court for a debt of the amount specified in the certificate, together with the costs of registration. (3) No proceedings to recover a debt referred to in subsection (1) may be commenced later than five years after the date stipulated in the penalty notice in accordance with section 50(1)(e) or, if the person appeals under section 51, the date the High Court confirms that the person is liable to pay the penalty. (4) An administrative monetary penalty paid or recov ered in relation to a violation is payable to and must be remitted to the Accountant General. 54. Every rule and principle of the common law that renders Common law principles. any circumstance a justification or excuse in relation to a charge for an offence applies in respect of a violation to the extent that it is not inconsistent with this Act. 55. (1) No proceedings in respect of a violation may be Time limit. commenced later than two years after the day on which the subject matter of the proceedings became known to the Advisory Committee. (2) A document appearing to have been issued by the Chairman, Deputy Chairman or secretary of the Advisory Com mittee, certifying the day on which the subject matter of any proceedings became known to the Advisory Committee, is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document and is, in the absence of evidence to the contrary, proof of the matter asserted in it. 56. (1) In this section " competent authority" means the Invalidation of authority empowered in accordance with section 58 to make a agreemenL decision that is final and binding upon the parties to a dispute arising under a geothermal resource development agreement. (2) A geothermal resource development agreement is invalidated if a competent authority declares that the agreement is terminated owing (a) to the breach by a party that the competent authority considers to constitute a substantial breach or (b) a breach that is stated in the geothermal resource development agreement to constitute a substantial breach. (3) When the competent authority is making a decision under subsection 2(a), he shall consider whether the breach is equally substantial to what is specifically stated to constitute a substantial breach in the geothermal resource development agreement. Forfeiture. 57. (1) Ifthe geothermal resource development agreement is terminated within the meaning of subsection (4), the geothermal resource developer must, as soon as practicable, and in any event, by the date stated in a notice served under subsection (2), remove any equipment, assets or other property from any land owned or leased by the State on behalf of the developer for the purpose of the geothermal resource development activities. (2) If the geothermal resource agreement is terminated within the meaning of subsection (4), the Advisory Committee may issue a notice to the geothermal resource developer to remove any equipment, assets or other property from the land by the date stated in the notice. (3) If a geothermal resource developer fails to comply with this section, the equipment, assets or other property is forfeited to the State on the date stated in the notice in accordance with subsection (1). (4) A geothermal resource development agreement is terminated if— (a) rights under a geothermal resource development agreement are abandoned in accordance with sections 31(8) or 32(4); (b) the agreement is invalidated under section 56 or (c) the obligations under the agreement are not executed. Division 4—Alternative Dispute Resolution
§ 77 Unless, and to the extent that, the geothermal resource Dispute settlement. development agreement otherwise provides— (a) disputes arising under the agreement shall be referred to three arbitrators, one to be appointed by the developer, one appointed by the Minister, and one appointed by the first two arbitrators and (b) the Arbitration Act applies and references in that Act Chap.4 50. to an arbitration agreement are to be construed as a reference to this section to the extent, if any, modified by this Act or a geothermal resource development agreement.
Part 10 MISCELLANEOUS
§ 78 A provision of a geothermal resource development Statutory provision agreement or other document that derogates from the provisions obligatory.of this Act or Regulations made under this Act is invalid, except to the extent the derogation is expressly authorised by this Act or such Regulations.
§ 79 The Minister may, by Order published in the Gazette, Schedule. amend the Schedule.
§ 80 (1) The Minister may make Regulations respecting any Regulations. thing that the Minister considers necessary or expedient for the administration or enforcement of this Act. (2) Without prejudice to the generality of subsection (1), the Minister may, from time to time, make regulations for all or any of the following purposes (a) prescribing the form or content of geothermal resource development agreements, notices, re ports , or any other documentation or information required under this Act, and the manner in which such documentation or information is to be pro vided (b) prescribing the information to be provided with applications for geothermal resource develop ment agreements (c) prescribing the manner in which persons wishing to apply for geothermal resource development agreements in respect of any land are to mark out or identify the land and prescribing a particular system for the purpose of defining areas or parts of areas comprised in geothermal resource de velopment agreements, or applications for or extensions of geothermal resource development agreements (d) prescribing conditions on which geothermal re source development agreements may be applied for, granted, changed, or extended (e) providing for any modification or exclusion per missible under a section of this Act respecting any Part or provision of the Physical Planning Act, 2002, Electricity Supply Act, 2006, the Environmental Health Services Act, 1997, or the Noise Abatement Act (f) providing for the exemption of geothermal re source developers, either wholly or partially, and either absolutely or conditionally, from any of the conditions of their geothermal resource develop ment agreement or from the provisions of any regulations for the time being in force under this Act (g) prescribing the duties of geothermal resource developers and the activities to be carried out under geothermal resource development agree ments (h) generally regulating activities carried out under geothermal resource development agreements (i) providing for the keeping and provision ofrecords, reports, information, and returns by geothermal resource developers for any purpose under this Act, and prescribing the nature of the records, reports, information, and returns, and the form, manner, and times in or at which they shall be kept or provided (j) providing for standards which are to apply in connection with the remediation of geothermal wells, plant and equipment (k) providing for the procedure respecting approval of changes to a geothermal resource develop ment agreement during the term of the agree ment (l) respecting the regulation of the transfer of inter ests or rights of a geothermal resource developer under a geothermal resource development agree ment (m) respecting the regulation of a change of control where the geothermal resource developer is a corporate entity and (n) providing for a Geothermal Reporting Code re specting the methodology for estimation, quanti fication and categorisation of geothermal re sources and reserves in Dominica and to provide an appropriate reporting basis. (3) Regulations made under this section shall be subject to negative resolution of the House of Assembly. Consequential and transi 62. (1) A person who at the commencement of this Act, is uond pr°visi°ns. validly conducting exploration activities for, or is using, geothermal resources under any licence, or other authority, does not commit a violation if he or she applies for the relevant geothermal resource development agreement in accordance with this Act within three months after the date that this Act comes into force, or such further period, not exceeding six months, as the Minister may in writing allow. (2) An application under subsection (1) must be made in accordance with Part VI. (3) In respect of applications under this section— (a) the parties must negotiate on reasonable grounds and in good faith, and must respect all rights granted under existing authorisations to the ex tent that they are not inconsistent with this Act and (b) the terms and conditions must be determined by reference to arbitration under section 58, if the parties fail to agree. Amendment of Physical 6 3. Schedule II of the Physical Planning Act, 2002 is amended Planning Act. Act No. 5 of 2002. "19. Geothermal resource development within the meaning of the Geothermal Resources Development Act.". ADVISORY COMMITTEE PROCEDURE FOR DETERMINING APPLICATIONS AND RELATED MATTERS Part 11 Applications subject to a tender process This process applies only to applications for the grant of a geothermal resource development agreement in a special geothermal zone, except applications pursuant to section 31(5) The Advisory Committee must determine the application in accordance with the procedure outlined in the tender documents which documents must include information in respect of (a) technical approach and methodology and (b) cost. Part 12 Applications subject to a non competitive negotiated process This process applies to applications for— • the grant or renewal of a geothermal resource development agreement in any part of the State not located in a special geothermal zone • the grant pursuant to section 31(5) or renewal of geothermal resource development agreement in an area that is designated as a special geothermal zone and • the grant of a geothermal resource development agreement pursuant to section 62. 1. Within 6 weeks of the receipt of an application, the Advisory Committee shall publish a notice containing particulars of the application in the Gazette inviting comments in writing from the public. 2. Within 120 days of the receipt of the application or, such extended time, not exceeding 30 days, that the Minister author ises, the Advisory Committee shall submit a report to the Minister containing its recommendations. 3. In determining the application, the Advisory Committee shall consider any comments and any further information re quested in clarification of the comments, received in response of the notice referred to in item 1. Part 13 Information required
§ 81 The Advisory Committee must determine the application for a Geothermal Exploration Agreement based on the documentssubmitted by the applicant, which must include information in respect of (a) technical approach and methodology for exploration (b) cost and schedule for exploration programme (c) capabilities and track record in exploration and use of geothermal resources (d) management team of the applicant tenderer and skills and experience thereof (e) stated support from specialists organisations working in the geothermal sector (f) financial backing of the applicant tenderer or stated ability to obtain financial backing including share holder funds available to support the exploration, and letters of intent from commercial backers or joint venture partners (g) Community consultation plan and other stakeholder management plans and stated objectives. 2. Without prejudice to the provisions of section 31(5) and (6) , the Advisory Committee must determine the application for a Geothermal Resources Concession based on the documents submitted by the applicants, which must include information in respect of (a) description of proposed development (b) cost and schedule for development (c) technical approach and methodology (d) capabilities and track record in use of geothermal resources (e) compliance with health and safety standards and proposed tariff agreements. Part 14 Ownership of Information
§ 82 The following applies to information pertaining to geothermal resource development.
§ 83 Information pertaining to reconnaissance, an activity which does not require an agreement, will always remain in the ownership of the entity performing the activity.
§ 84 Under a Geothermal Exploration Agreement, the holder owns the information pertaining to the activities and results, butmust share the information with the State.
§ 85 On expiry, cancellation or abandonment of a geothermal exploration agreement, without conversion to a GeothermalResources Concession, the State will take ownership of the information, with the agreement holder eligible for reward on their investment in finding useable geothermal resources.
§ 86 Under a Geothermal Resources Concession, the holder owns the information pertaining to the activities and results, butmust share the information with the State.
§ 87 On expiry, cancellation or abandonment of a Geothermal Resources Concession, the State will take ownership of theinformation. This includes the situation where this is a change of ownership. Reward for investment will not apply in this instance. Passed in the House of Assembly this 24th day of October, 2016. MR. DANIEL JAMES Clerk of the House of Assembly (Ag.) DOMINICA
