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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Nickel (Agnew) Agreement Amendment
Bill 2023
Contents
1. Short title 2
2. Commencement 2
3. Act amended 2
4. Section 2 amended 2
5. Section 3B inserted 3
3B. Ratification of 2022 variation agreement 3
6. Third Schedule inserted 3
Third Schedule -- 2022 variation agreement
96--1 page i
Western Australia
LEGISLATIVE COUNCIL
Nickel (Agnew) Agreement Amendment
Bill 2023
A Bill for
An Act to amend the Nickel (Agnew) Agreement Act 1974.
The Parliament of Western Australia enacts as follows:
page 1
Nickel (Agnew) Agreement Amendment Bill 2023
s. 1
1 1. Short title
2 This is the Nickel (Agnew) Agreement Amendment Act 2023.
3 2. Commencement
4 This Act comes into operation as follows --
5 (a) sections 1 and 2 -- on the day on which this Act
6 receives the Royal Assent;
7 (b) the rest of the Act -- on the day after that day.
8 3. Act amended
9 This Act amends the Nickel (Agnew) Agreement Act 1974.
10 4. Section 2 amended
11 (1) In section 2 insert in alphabetical order:
12
13 2022 variation agreement means the agreement a copy
14 of which is set out in the Third Schedule;
15
16 (2) In section 2 in the definition of the Agreement delete "Variation
17 Agreement;" and insert:
18
19 Variation Agreement and the 2022 variation agreement;
20
21 Note: The heading to amended section 2 is to read:
22 Terms used
page 2
Nickel (Agnew) Agreement Amendment Bill 2023
s. 5
1 5. Section 3B inserted
2 After section 3A insert:
3
4 3B. Ratification of 2022 variation agreement
5 (1) The 2022 variation agreement is ratified.
6 (2) The implementation of the 2022 variation agreement is
7 authorised.
8 (3) Without limiting or otherwise affecting the
9 Government Agreements Act 1979, the 2022 variation
10 agreement operates and takes effect despite any
11 enactment or other law.
12
13 6. Third Schedule inserted
14 After the Second Schedule insert:
15
16 Third Schedule -- 2022 variation agreement
17 [s. 2]
18 2022
19
20 THE HONOURABLE MARK McGOWAN
21 PREMIER OF THE STATE OF WESTERN AUSTRALIA
22 AND
23 BHP NICKEL WEST PTY LTD
24 ACN 004 184 598
25
26
page 3
Nickel (Agnew) Agreement Amendment Bill 2023
s. 6
1
2
3 NICKEL (AGNEW) AGREEMENT 1974
4 RATIFIED VARIATION AGREEMENT
5
6
7 [Solicitor's details]
8 THIS AGREEMENT is made this 20th day of December 2022
9
10 BETWEEN
11
12 THE HONOURABLE MARK McGOWAN, BA, LLB, M.L.A., Premier of the
13 State of Western Australia, acting for and on behalf of the said State and its
14 instrumentalities from time to time (the "State") of the one part
15 AND
16 BHP NICKEL WEST PTY LTD ACN 004 184 598 of Level 15, 171 Collins
17 Street, Melbourne, Victoria (the "Joint Venturers") of the other part.
18
19 RECITALS
20 A. The parties to this Agreement are now the parties to the agreement
21 (herein called the "1974 Agreement") dated 21 November 1974, the
22 execution of which by the State was ratified by the Nickel (Agnew)
23 Agreement Act 1974, as varied by:
24 (a) the agreement dated 3 September 1976 which was ratified by
25 the Nickel (Agnew) Agreement Act Amendment Act 1976;
26 (b) the agreement dated 6 August 1977 entered into pursuant to
27 the provisions of clause 31 of the 1974 Agreement; and
page 4
Nickel (Agnew) Agreement Amendment Bill 2023
s. 6
1 (c) the agreement dated 15 May 1995 entered into pursuant to the
2 provisions of clause 31 of the 1974 Agreement.
3 The 1974 Agreement as so varied is hereinafter referred to as the
4 "Principal Agreement".
5 B. The parties wish to vary the provisions of the Principal Agreement on
6 the terms and conditions set out in this Agreement.
7
8 THE PARTIES AGREE AS FOLLOWS:
9 1. Ratification and operation
10 (1) This Agreement, other than this clause, does not come into operation
11 except in accordance with subclause (2).
12 (2) This Agreement, other than this clause, comes into operation on the day
13 on which it is ratified by an Act of the Parliament of Western Australia
14 ("Operative Date") unless, before that day, it terminates under
15 subclauses (4) or (5).
16 (3) The State must introduce in the Parliament of Western Australia before
17 30 June 2023 or a later date agreed between the parties to this
18 Agreement, a Bill to ratify this Agreement and must endeavour to
19 secure its passage as an Act.
20 (4) If by 31 December 2023 this Agreement has not been ratified by an Act
21 of the Parliament of Western Australia then, unless the parties to this
22 Agreement otherwise agree, this Agreement terminates on that day and
23 no party hereto will have any claim against any other party hereto with
24 respect to any matter or thing arising out of, done, performed, or
25 omitted to be done or performed under this Agreement.
26 (5) The parties agree that if the Principal Agreement is otherwise
27 determined in accordance with its provisions on a day prior to the
28 Operative Date, then this Agreement shall also terminate on and from
29 that day and no party hereto will have any claim against any other party
30 hereto with respect to any matter or thing arising out of, done,
31 performed, or omitted to be done or performed under this Agreement.
page 5
Nickel (Agnew) Agreement Amendment Bill 2023
s. 6
1 2. Variations of the Principal Agreement
2 The Principal Agreement is varied as follows:
3 (1) in clause 1 by:
4 (a) inserting in the appropriate alphabetical position the following
5 new definitions:
6 "Leinster concentrator" means the plant constructed under
7 this Agreement upon the mineral lease for the concentration
8 of nickeliferous ore, as modified or replaced from time to
9 time in accordance with this Agreement;
10 "mine closure plan" means a document that:
11 (a) is in the form required under the Mining Act 1978
12 for a mine closure plan relating to mining leases
13 granted under that Act; and
14 (b) contains information required under the Mining
15 Act 1978 for a mine closure plan relating to mining
16 leases granted under that Act including about:
17 (i) the decommissioning of each mine
18 (within the meaning given to that term in
19 the Mining Act 1978) and whether
20 proposed or, as at the variation date,
21 existing and not already
22 decommissioned; and
23 (ii) the rehabilitation of land,
24 within the area of the mineral lease;
25 "Mining Act 1978" means the Mining Act 1978 (WA);
26 "Mining Regulations" means the Mining Regulations 1981
27 (WA);
28 "mining tenement" has the meaning given to it in section 8 of
29 the Mining Act 1978;
30 "MRF Act" means the Mining Rehabilitation Fund Act 2012
31 (WA);
page 6
Nickel (Agnew) Agreement Amendment Bill 2023
s. 6
1 "non-Agreement nickel concentrates" means concentrates
2 obtained by treating non-mineral lease ore (other than
3 concentrates produced in accordance with Clause 6B or as
4 authorised by subclause (9) of Clause 8);
5 "non-mineral lease ore" means nickeliferous ore mined from
6 areas other than within the mineral lease and whether within
7 or outside Australia;
8 "register" has the meaning given to that term in section 8 of
9 the Mining Act 1978;
10 "Relevant Endorsement Time", in respect of a particular
11 Specified Mining Tenement, means the time the register is
12 endorsed pursuant to subclause (4) of Clause 16A in respect
13 of that particular Specified Mining Tenement;
14 "Specified Mining Tenement" means general purpose leases
15 36/49, 36/50 and 36/51 and mining leases 36/87, 36/156,
16 36/230, 36/389 and 36/439, or, depending on the context, any
17 one or more of them, and includes any renewals or extensions
18 thereof as the case may be;
19 "Townsite Lease" means the Land Act lease O260893L held
20 by the Joint Venturers over land comprised in the townsite;
21 "variation date" means the date on which Clause 2 of the
22 variation agreement made on or about 20 December 2022
23 between The Honourable Mark McGowan, Premier of the
24 State of Western Australia acting for and on behalf of the said
25 State and its instrumentalities from time to time and the Joint
26 Venturers comes into operation;
27 (b) in the definition of "townsite", deleting "land contained in
28 Special Lease 3116/6675" and substituting "townsite
29 constituted under section 10 of the Land Act 1933 (WA) (and
30 which by the Land Act is to be treated as constituted under
31 section 26 of the Land Act) and known as the Leinster
32 Townsite";
33 (c) in the definition of "Minister for Mines", after the words
34 "Mining Act" inserting the words "and the Mining Act 1978";
page 7
Nickel (Agnew) Agreement Amendment Bill 2023
s. 6
1 (d) in the definition of "native title" by:
2 (i) deleting "has" and substituting "and "native title rights and
3 interests" have"; and
4 (ii) deleting "it" and substituting "them"; and
5 (e) in the definition of "nickel concentrates", after the words
6 "obtained by treating ore" inserting the words "or non-mineral
7 lease ore or both together";
8 (2) by inserting after clause 2 the following new clause:
9 "2A. Nothing in this Agreement, including the approval of
10 proposals, shall be construed to exempt the State or the Joint
11 Venturers from compliance with, or to require the State or
12 the Joint Venturers to do any thing contrary to, any laws
13 relating to native title or any lawful obligation imposed on
14 the State or the Joint Venturers, as the case may be, pursuant
15 to any laws relating to native title."
16 (3) in clause 6 by:
17 (a) in clause 6(1)(c), deleting "railways;";
18 (b) in clause 6(1)(d), deleting "facilities for the export of
19 nickel-containing products through a port in the said State;";
20 (c) in clause 6(1)(g), after the word "power" inserting the word
21 "supply,";
22 (4) by inserting after clause 6A the following new clause:
23 "Non-Mineral Lease Ore and Non-Agreement Nickel Concentrates
24 6B. Subject to subclauses (9) to (14) of Clause 8, the Joint
25 Venturers may in accordance with this Agreement:
26 (a) treat at the Leinster concentrator non-mineral lease
27 ore separately or blended with ore to produce
28 nickel concentrates; and
29 (b) blend at the Joint Venturers' facilities upon the
30 mineral lease nickel concentrates produced in
31 accordance with approved proposals under this
page 8
Nickel (Agnew) Agreement Amendment Bill 2023
s. 6
1 Agreement with non-Agreement nickel
2 concentrates."
3 (5) in clause 8 by:
4 (a) deleting clause 8(1) and substituting the following new
5 subclause:
6 "(1) Subject to the following subclauses of this Clause,
7 if the Joint Venturers at any time during the
8 continuance of this Agreement desire to
9 significantly modify, expand or otherwise vary
10 their activities that may be carried on by them
11 pursuant to this Agreement beyond those specified
12 in any approved proposals or in paragraphs (a) or
13 (b) of subclause (9) of this Clause, they shall give
14 notice to the Minister and within 2 months
15 thereafter shall submit to the Minister detailed
16 proposals in respect of all matters covered by such
17 notice and such of the other matters mentioned in
18 paragraphs (a), (b) and (e) to (k) (both inclusive) of
19 subclause (1) of Clause 6 as the Minister may
20 require. The provisions of subclauses (2), (3) and
21 (4) of Clause 6 shall, subject to this Clause, apply
22 mutatis mutandis to detailed proposals submitted
23 pursuant to this subclause."
24 (b) inserting after clause 8(1) the following new subclauses (2)
25 through to (14) (inclusive):
26 "(2) On receipt of each proposal pursuant to
27 subclause (1) of this Clause, the Minister, subject
28 to the EP Act, shall:
29 (a) approve of the proposal without
30 qualification or reservation; or
31 (b) defer consideration of or decision upon
32 the same until such time as the Joint
33 Venturers submit a further proposal or
34 proposals in respect of some other of the
35 matters referred in subclause (1) of this
page 9
Nickel (Agnew) Agreement Amendment Bill 2023
s. 6
1 Clause not covered by the said proposal;
2 or
3 (c) require as a condition precedent to the
4 giving of the Minister's approval to the
5 said proposal, that the Joint Venturers
6 make such alteration thereto or comply
7 with such conditions in respect thereto as
8 the Minister (having regard to the
9 circumstances including the overall
10 development of and the use by others as
11 well as the Joint Venturers of all or any
12 of the facilities proposed to be provided)
13 thinks reasonable and in such a case the
14 Minister shall disclose the Minister's
15 reasons for such conditions,
16 PROVIDED ALWAYS that:
17 (d) where implementation of any proposals
18 hereunder have been approved pursuant
19 to the EP Act subject to conditions or
20 procedures, any approval or decision of
21 the Minister under this Clause shall, if
22 the case so requires, incorporate a
23 requirement that the Joint Venturers
24 make such alterations to the proposals as
25 may be necessary to make them accord
26 with those conditions or procedures; and
27 (e) the Minister shall not consider a
28 purported proposal or proposals (as the
29 case may be) if the Minister is of the
30 opinion that the purported proposal or
31 proposals does not or do not (as the case
32 may be) comply with this Clause or other
33 applicable provisions of this Agreement
34 and in such circumstances:
35 (i) this subclause (2) (other than
36 this paragraph (e)) and
37 subclause (3) shall not apply
page 10
Nickel (Agnew) Agreement Amendment Bill 2023
s. 6
1 to the purported proposal or
2 proposals;
3 (ii) subject to this Agreement, the
4 Minister shall afford the Joint
5 Venturers full opportunity to
6 consult with him (including
7 disclosure of reasons for his
8 opinion) and should they so
9 desire to submit a new or
10 revised proposal or proposals
11 either generally or in respect to
12 some particular matter; and
13 (iii) the Minister's opinion is not
14 subject to arbitration under
15 Clause 44.
16 (3) The Minister shall within 2 months after the later
17 of:
18 (a) receipt of proposals pursuant to
19 subclause (1) of this Clause;
20 (b) where any of the proposals are to be
21 assessed under Part IV of the EP Act,
22 service on the Minister of an authority
23 under section 45(12) of the EP Act; or
24 (c) where any of the proposals will or may
25 require the State to do any act which
26 affects native title rights and interests,
27 completion of all processes required by
28 laws relating to native title to be
29 undertaken by the State before that act
30 may be done by the State,
31 give notice to the Joint Venturers of the Minister's
32 decision in respect to the proposals.
33 (4) If the decision of the Minister is as mentioned in
34 either of paragraphs (b) or (c) of subclause (2) of
35 this Clause the Minister shall afford the Joint
page 11
Nickel (Agnew) Agreement Amendment Bill 2023
s. 6
1 Venturers full opportunity to consult with the
2 Minister and should they so desire to submit new
3 or revised proposals either generally or in respect
4 to some particular matter.
5 (5) If the decision of the Minister is as mentioned in
6 paragraph (c) of subclause (2) of this Clause and
7 the Joint Venturers consider that the condition
8 precedent is unreasonable, the Joint Venturers
9 within 2 months after receipt of the notice
10 mentioned in subclause (3) of this Clause may
11 elect to refer to arbitration in the manner
12 hereinafter provided the question of the
13 reasonableness of the condition precedent
14 PROVIDED THAT any requirement of the
15 Minister pursuant to the proviso to subclause (2) or
16 a decision of the Minister under paragraph (b) of
17 subclause (2) of this Clause shall not be referable
18 to arbitration under this Agreement.
19 (6) If by the award made on an arbitration pursuant to
20 subclause (5) of this Clause the dispute is decided
21 in favour of the Joint Venturers, the decision shall
22 take effect as a notice by the Minister that the
23 Minister is so satisfied with and approves the
24 matter or matters the subject of the arbitration.
25 (7) Subject to and in accordance with the EP Act and
26 any approvals and licences required under that Act,
27 the Joint Venturers shall implement the approved
28 proposals in accordance with the terms thereof.
29 (8) Notwithstanding Clause 31, the Minister may
30 during the implementation of approved proposals
31 approve variations to those proposals.
32 (9) On and from the variation date, the activities
33 referred to in Clause 6B may only be undertaken in
34 accordance with this Clause and otherwise in
35 accordance with the provisions of this Agreement
36 and the parties acknowledge that as at the variation
37 date the following activities of the nature referred
page 12
Nickel (Agnew) Agreement Amendment Bill 2023
s. 6
1 to in Clause 6B are authorised and subject to the
2 Agreement obliged to be implemented by the Joint
3 Venturers:
4 (a) the continued treatment at the Leinster
5 concentrator of:
6 (i) between 500,000 and 600,000
7 tonnes per annum over a
8 4 year period from the
9 variation date of non-mineral
10 lease ore from mining leases
11 36/9 and 36/618 blended with
12 ore;
13 (ii) between 500,000 and
14 1,000,000 tonnes per annum
15 over a 3 year period from the
16 variation date of non-mineral
17 lease ore from mining lease
18 36/102 blended with ore; and
19 (b) the continued blending at the Joint
20 Venturers' facilities upon the mineral
21 lease of between 250,000 and 350,000
22 tonnes per annum over a 20 year period
23 from the variation date of
24 non-Agreement nickel concentrates
25 obtained from the treatment at the Mount
26 Keith concentrator of non-mineral lease
27 ore from mining leases 36/183, 36/184,
28 36/185, 36/246, 53/56 and 53/57 with
29 nickel concentrates.
30 (10) Without limiting the operation of subclause (1) of
31 this Clause, the parties acknowledge that the
32 treatment at the Leinster concentrator of
33 non-mineral lease ore or the blending at the Joint
34 Venturers' facilities of non-Agreement nickel
35 concentrate from or including a source not then the
36 subject of approved proposals under this
37 Agreement (including from a mining tenement not
page 13
Nickel (Agnew) Agreement Amendment Bill 2023
s. 6
1 referred to in subclause (9) of this Clause) shall be
2 regarded as a significant modification, expansion
3 or other variation of the Joint Venturers' activities
4 carried on by them pursuant to this Agreement and
5 may only be undertaken in accordance with
6 proposals submitted and approved or determined
7 under this Clause 8 and otherwise in accordance
8 with the provisions of this Agreement.
9 (11) A proposal or proposals submitted pursuant to
10 subclause (1) of this Clause for the undertaking of
11 any of the activities referred to in Clause 6B must
12 clearly identify the non-mineral lease ore and/or
13 non-Agreement nickel concentrates as the case
14 may be the subject of the proposal (including by
15 reference to source, tonnage and duration) or
16 where the proposal relates also to ore and/or nickel
17 concentrates produced from ore, clearly
18 differentiate the non-mineral lease ore and/or
19 non-Agreement nickel concentrates as the case
20 may be from ore and/or nickel concentrates
21 produced from ore.
22 (12) The Joint Venturers shall not without the prior
23 consent of the Minister submit a proposal under
24 this Clause for, or in any way to support, the
25 undertaking of any of the activities referred to in
26 Clause 6B using non-mineral lease ore obtained
27 from outside of Australia.
28 (13) The Joint Venturers shall not without the prior
29 consent of the Minister submit a proposal under
30 this Clause for the grant of any lease, licence or
31 other tenure to support either wholly or in part the
32 undertaking of any of the activities referred to in
33 Clause 6B.
34 (14) To avoid doubt the parties acknowledge that none
35 of:
36 (a) the mining of non-mineral lease ore;
page 14
Nickel (Agnew) Agreement Amendment Bill 2023
s. 6
1 (b) the treatment of such non-mineral lease
2 ore outside the mineral lease to produce
3 non-Agreement nickel concentrates;
4 (c) the transport of such non-mineral lease
5 ore and non-Agreement nickel
6 concentrates to the mineral lease;
7 (d) the transport of nickel concentrates
8 produced from or containing
9 non-mineral lease ore or non-Agreement
10 nickel concentrates from the mineral
11 lease; or
12 (e) the smelting and refining of such nickel
13 concentrates,
14 will be part of the activities that may be undertaken
15 under this Agreement to the intent that the same,
16 whether undertaken by the Joint Venturers or a
17 third party, shall be undertaken in accordance with
18 the general laws from time to time of the said State
19 and upon tenure not subject to this Agreement."
20 (c) renumbering subclause (2) of clause 8 as subclause (15);
21 (6) in clause 10, by inserting "and subclause (7) of Clause 10B" at the end
22 of clause 10(2) before the full stop;
23 (7) by inserting after clause 10 the following new clauses:
24 "Community Development Plan
25 10A. (1) In this Clause, the term "community and social
26 benefits" includes:
27 (a) assistance with skills development and
28 training opportunities to promote work
29 readiness and employment for persons
30 living in the northern Goldfields region of
31 the said State;
32 (b) training and employment for indigenous
33 and non-indigenous persons living in the
page 15
Nickel (Agnew) Agreement Amendment Bill 2023
s. 6
1 northern Goldfields region of the said
2 State;
3 (c) regional development activities in the
4 northern Goldfields region of the said
5 State, including partnerships and
6 sponsorships and local procurement of
7 goods and services;
8 (d) contribution to any community projects,
9 town services or facilities; and
10 (e) a regionally based workforce.
11 (2) The Joint Venturers acknowledge the need for
12 community and social benefits flowing from this
13 Agreement.
14 (3) The Joint Venturers agree that:
15 (a) they shall prepare a draft plan which
16 describes the Joint Venturers' proposed
17 strategies for achieving community and
18 social benefits in connection with their
19 activities under this Agreement;
20 (b) within 2 months after the variation date,
21 they shall confer with the Minister in
22 respect of the draft plan; and
23 (c) they shall, following such conferral and
24 within 3 months after the variation date,
25 provide to the Minister a plan describing
26 the Joint Venturers' strategies for
27 achieving community and social benefits
28 in connection with their activities under
29 this Agreement.
30 (4) At least 3 months before the anticipated
31 submission of proposals under Clause 8 (or such
32 lesser period as the Minister may, at the request of
33 the Joint Venturers, approve in respect of such
34 anticipated proposals), the Joint Venturers shall,
page 16
Nickel (Agnew) Agreement Amendment Bill 2023
s. 6
1 unless the Minister otherwise requires, give to the
2 Minister information about how the proposed
3 activities may affect the plan provided to the
4 Minister under this Clause. This obligation
5 operates in relation to all proposals submitted on
6 or after the date that is 4 months after the date
7 when a plan is first provided under this Clause.
8 (5) During the currency of this Agreement, the Joint
9 Venturers shall implement the plan provided to the
10 Minister under this Clause.
11 (6) The Joint Venturers shall at least annually report to
12 the Minister about the Joint Venturers'
13 implementation of the plan provided to the
14 Minister under this Clause.
15 (7) At the request of either of them made at any time
16 and from time to time, the Minister and the Joint
17 Venturers shall confer as to any amendments
18 desired to any plan provided to the Minister under
19 this Clause and following such conferral the Joint
20 Venturers may provide to the Minister an amended
21 or a new plan. Any such amended plan or new plan
22 will be deemed to be the plan provided to the
23 Minister under this Clause.
24 Local Participation Plan
25 10B. (1) In this Clause, the term "local industry
26 participation benefits" means:
27 (a) the use and training of labour available
28 within the said State;
29 (b) the use of the services of engineers,
30 surveyors, architects and other
31 professional consultants, experts,
32 specialists, project managers and
33 contractors available within the said State;
34 and
page 17
Nickel (Agnew) Agreement Amendment Bill 2023
s. 6
1 (c) the procurement of works, materials,
2 plant, equipment and supplies from
3 Western Australian suppliers,
4 manufacturers and contractors.
5 (2) The Joint Venturers acknowledge the need for
6 local industry participation benefits flowing from
7 this Agreement.
8 (3) The Joint Venturers agree that they shall, not later
9 than 3 months after the variation date, prepare and
10 provide to the Minister a plan which contains:
11 (a) a clear statement on the strategies which
12 the Joint Venturers will use, and require a
13 third party as referred to in subclause (7)
14 of this Clause to use, to maximise the uses
15 and procurement referred to in
16 subclause (1) of this Clause;
17 (b) detailed information on the procurement
18 practices the Joint Venturers will adopt,
19 and require a third party as referred to in
20 subclause (7) of this Clause to adopt, in
21 calling for tenders and letting contracts for
22 works, materials, plant, equipment and
23 supplies stages in relation to a proposed
24 development and how such practices will
25 provide fair and reasonable opportunity
26 for suitably qualified Western Australian
27 suppliers, manufacturers and contractors
28 to tender or quote for works, materials,
29 plant, equipment and supplies;
30 (c) detailed information on the methods the
31 Joint Venturers will use, and require a
32 third party as referred to in subclause (7)
33 of this Clause to use, to have their
34 respective procurement officers promptly
35 introduced to Western Australian
36 suppliers, manufacturers and contractors
37 seeking such introduction; and
page 18
Nickel (Agnew) Agreement Amendment Bill 2023
s. 6
1 (d) details of the communication strategies
2 the Joint Venturers will use, and require a
3 third party as referred to in subclause (7)
4 of this Clause to use, to alert Western
5 Australian engineers, surveyors,
6 architects and other professional
7 consultants, experts, specialists, project
8 managers and consultants and Western
9 Australian suppliers, manufacturers and
10 contractors to services opportunities and
11 procurement opportunities respectively as
12 referred to in subclause (1) of this Clause.
13 It is acknowledged by the Joint Venturers that the
14 strategies of the Joint Venturers referred to in
15 paragraph (a) of subclause (3) of this Clause will
16 include strategies of the Joint Venturers in relation
17 to supply of services, labour, works, materials,
18 plant, equipment or supplies for the purposes of
19 this Agreement.
20 (4) At the request of either of them made at any time
21 and from time to time, the Minister and the Joint
22 Venturers shall confer as to any amendments
23 desired to any plan provided under this Clause and
24 may agree to the amendment of the plan or the
25 provision of a new plan in substitution for the one
26 previously provided.
27 (5) At least 3 months before the anticipated
28 submission of proposals pursuant to Clause 8 (or
29 such lesser period as the Minister may, at the
30 request of the Joint Venturers, approve in respect
31 of any such anticipated proposals), the Joint
32 Venturers shall, unless the Minister otherwise
33 requires, give to the Minister information about the
34 implementation of the plan provided under this
35 Clause in relation to the activities to be the subject
36 of such proposals. This obligation operates in
37 relation to all proposals submitted on or after the
page 19
Nickel (Agnew) Agreement Amendment Bill 2023
s. 6
1 date that is 4 months after the date when a plan is
2 first provided under this Clause.
3 (6) During the currency of this Agreement the Joint
4 Venturers shall implement the plan provided under
5 this Clause.
6 (7) Except as otherwise agreed by the Minister, the
7 Joint Venturers shall:
8 (a) in every contract entered into with a third
9 party where the third party has an
10 obligation or right to procure the supply of
11 services, labour, works, materials, plant,
12 equipment or supplies for or in connection
13 with a proposed development, ensure that
14 the contract contains appropriate
15 provisions requiring the third party to
16 undertake procurement activities in
17 accordance with the plan provided under
18 this Clause; and
19 (b) use reasonable endeavours to ensure that
20 the third party complies with those
21 provisions."
22 (8) in clause 11 by:
23 (a) in clause 11(5)(a), deleting the words "a municipality and the
24 said roads shall be deemed to be streets under the care control
25 and management of the Joint Venturers" and substituting the
26 words "a local government and the said roads shall each be
27 deemed to be a thoroughfare under the care control and/or
28 management of the Joint Venturers and which the public are
29 allowed to use"; and
30 (b) deleting clause 11(5)(b) and substituting the following new
31 subparagraph:
32 "(b) for the purposes of this Clause the terms
33 "local government" and "thoroughfare"
34 shall have the meanings which they
page 20
Nickel (Agnew) Agreement Amendment Bill 2023
s. 6
1 respectively have in the Local
2 Government Act 1995 (WA)."
3 (9) in clause 12 by deleting subclauses (1), (2), (3), (5) and (7) (including
4 subheadings);
5 (10) in clause 13 by:
6 (a) deleting subclauses (1), (4) (5) and (6) (including subheadings);
7 and
8 (b) in clause 13(2), by deleting the words "In the event of the Joint
9 Venturers demonstrating to the satisfaction of the Minister that
10 the provisions of subclause (1) of this Clause would be unduly
11 prejudicial to their operations; the" and substituting the word
12 "The";
13 (11) in clause 15 by:
14 (a) inserting the following new subclause after clause 15(3):
15 "Rent
16 (3a) On and from the variation date, the Joint Venturers
17 shall pay rent for the mineral lease in the amounts
18 (including on a pro rata basis for portions of a
19 rental period) and otherwise at the times and in the
20 manner that would be required from time to time
21 by the Mining Act 1978 and the Mining
22 Regulations if the mineral lease was a mining lease
23 granted under the Mining Act 1978."
24 (b) inserting the following new subclauses after clause 15(7):
25 "MRF Act
26 (8) On and from the variation date, the mineral lease
27 shall be deemed to be a mining authorisation for
28 the purposes of the MRF Act and the regulations
29 made under that Act.
30 Mine closure planning
31 (9) The Joint Venturers shall, not later than 6 months
32 after the variation date, lodge with the State a mine
page 21
Nickel (Agnew) Agreement Amendment Bill 2023
s. 6
1 closure plan for, subject to the EP Act, approval by
2 the Minister for Mines (acting with the
3 concurrence of the Minister) and on provision of
4 such approval:
5 (a) the mine closure plan shall be deemed to
6 be a mine closure plan within the meaning
7 given to that term in the Mining Act 1978
8 that, subject to this Clause, is to be
9 reviewed, amended and implemented in
10 accordance with that Act as if the mineral
11 lease was a mining lease under the Mining
12 Act 1978;
13 (b) the mineral lease shall be deemed to be
14 subject to:
15 (i) a condition that the holder of
16 the mineral lease must review
17 the mine closure plan and
18 obtain approval for the
19 reviewed mine closure plan in
20 accordance with this Clause;
21 and
22 (ii) a condition that the holder of
23 the mineral lease must
24 decommission all mines
25 (within the meaning given to
26 that term in the Mining
27 Act 1978) from time to time
28 within the area of, and
29 rehabilitate the land within,
30 the mineral lease in
31 accordance with the approved
32 mine closure plan from time to
33 time.
34 (10) The Joint Venturers shall ensure that the mine
35 closure plan referred to in subclause (9) of this
36 Clause is reviewed at the times that a mine closure
37 plan under the Mining Act 1978 is required by that
page 22
Nickel (Agnew) Agreement Amendment Bill 2023
s. 6
1 Act to be reviewed and otherwise at the times
2 determined from time to time by the Minister for
3 Mines (acting with the concurrence of the
4 Minister).
5 (11) The Joint Venturers shall ensure that a reviewed
6 mine closure plan is within the applicable times
7 under subclause (10) of this Clause lodged with the
8 Statefor approval, subject to the EP Act, by the
9 Minister for Mines (acting with the concurrence of
10 the Minister).
11 (12) The Minister for Mines (acting with the
12 concurrence of the Minister) may approve the
13 mine closure plan or a reviewed mine closure plan
14 as lodged or subject to such changes as required by
15 the Minister for Mines (acting with the
16 concurrence of the Minister). If the Joint
17 Venturers are unwilling to accept the changes
18 required to be made, they shall notify the Minister
19 to that effect and either party may refer to
20 arbitration hereunder the question of the
21 reasonableness of the changes and the effect of an
22 award made on arbitration shall be that the mine
23 closure plan or reviewed mine closure plan (as the
24 case may be) lodged by the Joint Venturers shall,
25 with such changes as required by the Minister for
26 Mines (acting with the concurrence of the
27 Minister) as the arbitrator determines to be
28 reasonable (with or without modification by the
29 arbitrator) be deemed to be the plan approved by
30 the Minister for Mines (acting with the
31 concurrence of the Minister) under this Clause.
32 (13) Without limiting the Mining Act 1978, the Joint
33 Venturers shall implement the mine closure plan
34 or reviewed mine closure plan approved or deemed
35 to be approved from time to time under
36 subclause (12) of this Clause.
page 23
Nickel (Agnew) Agreement Amendment Bill 2023
s. 6
1 (14) Without limiting the Mining Act 1978, the
2 obligations set out in subclause (13) of this Clause
3 shall survive the cessation or determination of this
4 Agreement and the expiry or surrender of the
5 mineral lease, in which case the Joint Venturers
6 may enter and re-enter the land that was the subject
7 of the mineral lease with such agents, employees,
8 vehicles, machinery and equipment as may be
9 necessary for the purpose of implementing the
10 relevant mine closure plan and complying with the
11 relevant conditions."
12 (12) by inserting after clause 16 the following new clause:
13 "Incorporation of Specified Mining Tenements in the mineral lease
14 and continuation proposals
15 16A. (1) The Joint Venturers shall, not later than 2 months
16 after the variation date, submit proposals under
17 subclause (1) of Clause 8 for the continuation
18 under this Agreement and upon the mineral lease
19 (as it would be following the inclusion of the area
20 of land of the Specified Mining Tenement within
21 the mineral lease pursuant to this Clause) of their
22 then current and contemplated activities on the
23 Specified Mining Tenement and the provisions of
24 Clause 8 shall be deemed to authorise the
25 submission of such proposals.
26 (2) If the proposals contemplated by subclause (1) of
27 this Clause are approved or determined in
28 accordance with Clause 8 such approval or
29 determination shall take effect in respect of the
30 area of a Specified Mining Tenement on and from
31 the Relevant Endorsement Time and otherwise in
32 accordance with and subject to the provisions of
33 Clause 8.
34 (3) Notwithstanding the provisions of the Mining Act
35 or the Mining Act 1978 and subject to
36 subclause (4) of this Clause, at the Relevant
page 24
Nickel (Agnew) Agreement Amendment Bill 2023
s. 6
1 Endorsement Time applicable to a Specified
2 Mining Tenement:
3 (a) the Specified Mining Tenement shall be
4 deemed to be surrendered; and
5 (b) the area of land of the Specified Mining
6 Tenement shall be deemed included in the
7 mineral lease subject to such of the then
8 existing conditions of the surrendered
9 Specified Mining Tenement as the
10 Minister for Mines determines (such
11 determination to be made after the
12 variation date and prior to the Relevant
13 Endorsement Time) but otherwise subject
14 to the same terms covenants and
15 conditions as apply to the mineral lease
16 (with such apportionments of rents as may
17 be necessary) and notwithstanding that the
18 survey of such additional land has not
19 been completed but subject to correction
20 to accord with the survey when completed
21 at the Joint Venturers' expense.
22 (4) As soon as practicable after the approval or
23 determination of proposals contemplated by
24 subclause (1) of this Clause in respect of the area
25 of land the subject of a Specified Mining
26 Tenement, the State shall cause a notation or other
27 endorsement to be made in the register that the
28 mineral lease includes the area of land of the
29 Specified Mining Tenement subject to the
30 determined conditions and the terms, covenants
31 and conditions otherwise applicable in accordance
32 with paragraph (b) of subclause (3) of this Clause.
33 (5) For the avoidance of doubt, the abovementioned
34 endorsements are authorised to be made in the
35 register without any further formalities, approvals
36 or other preconditions."
page 25
Nickel (Agnew) Agreement Amendment Bill 2023
s. 6
1 (13) in clause 17 by:
2 (a) in clause 17(2), deleting the word "townsites,"; and
3 (b) in clause 17(4):
4 (i) after the words "third party" inserting the word "with"; and
5 (ii) after the words "subject to" inserting the words
6 "subclause (3) of Clause 29,";
7 (14) in clause 18 by deleting subclause (4) (including the subheading);
8 (15) by deleting clause 20 and substituting the following new clause:
9 "Port
10 20. To avoid doubt the parties acknowledge that after the
11 variation date:
12 (a) the transport of nickel containing products from the
13 mineral lease for delivery or sale to a third party
14 (including without limitation the construction or
15 provision of facilities and infrastructure outside of
16 the mineral lease for such purposes); and
17 (b) the transport (including by road or rail) to, and
18 shipment through, a port in the said State of nickel
19 containing products (including without limitation
20 the construction or provision of facilities and
21 infrastructure for such purposes),
22 will not be part of the activities that may be undertaken under
23 this Agreement after the variation date to the intent that the
24 same, whether undertaken by the Joint Venturers or a third
25 party, shall be undertaken in accordance with the general
26 laws from time to time of the said State."
27 (16) in clause 21 by:
28 (a) in clause 21(1), inserting "1978 in respect of mining leases
29 granted under that Act " before the full stop;
30 (b) deleting clause 21(3) and substituting the following new
31 subclauses:
page 26
Nickel (Agnew) Agreement Amendment Bill 2023
s. 6
1 "(3) The Joint Venturers shall within 30 days after the
2 last day (provided that last day occurs after the
3 variation date) of each of March, June, September
4 and December in each year give to the State a
5 return showing the number of tonnes of minerals
6 mined by them or products produced by them from
7 minerals derived from the mineral lease and for
8 which payment is received during the 3 calendar
9 months ending on that last day and all other
10 particulars necessary to enable the calculation, and
11 to assist in the verification, of the royalty payable
12 thereon and shall pay to the State the royalty
13 payable on such product and mineral.
14 (3A) The Joint Venturers shall within 30 days of the
15 expiration of the last day (provided such last day
16 occurs after the variation date) of March, June,
17 September and December in each year during
18 which they, in accordance with paragraph (a) of
19 subclause (9) of Clause 8 and approved proposals
20 under this Agreement (as applicable), treat
21 non-mineral lease ore to produce nickel
22 concentrates, give to the State a return showing in
23 respect of each source from which such
24 non-mineral lease ore is mined:
25 (a) the tonnes of non-mineral lease ore treated
26 in the 3 calendar months ending on that
27 last day;
28 (b) the assay percentages of nickel contained
29 in that non-mineral lease ore;
30 (c) the tonnes of nickel contained in that
31 non-mineral lease ore;
32 (d) the nickel recovery rates in respect of that
33 non-mineral lease ore;
34 (e) the tonnes of nickel concentrate recovered
35 from the treatment of that non-mineral
36 lease ore; and
page 27
Nickel (Agnew) Agreement Amendment Bill 2023
s. 6
1 (f) such other information as the State shall
2 from time to time reasonably require to
3 enable the calculation of royalty payable
4 in respect of nickel mined from each such
5 abovementioned source.
6 (3B) The Joint Venturers shall within 30 days of the
7 expiration of the last day (provided such last day
8 occurs after the variation date) of March, June,
9 September and December in each year during
10 which they, in accordance with paragraph (b) of
11 subclause (9) of Clause 8 and approved proposals
12 under this Agreement (as applicable) blend nickel
13 concentrates produced in accordance with
14 paragraph (a) of subclause (9) of Clause 8 and
15 approved proposals under this Agreement (as
16 applicable) with non-Agreement nickel
17 concentrates, give to the State a return showing in
18 respect of each source from which non-Agreement
19 nickel concentrates are obtained:
20 (a) the tonnes of non-Agreement nickel
21 concentrates delivered to the Joint
22 Venturers in the 3 calendar months ending
23 on that last day;
24 (b) the assay percentages of nickel contained
25 in the non-Agreement nickel concentrates
26 delivered;
27 (c) the tonnes of nickel contained in the
28 non-Agreement nickel concentrates
29 delivered;
30 (d) the nickel recovery rates in respect of the
31 non-Agreement nickel concentrates
32 delivered after blending with nickel
33 concentrates produced in accordance with
34 approved proposals under this Agreement;
35 (e) the tonnes of nickel concentrates
36 recovered from the blending of the
page 28
Nickel (Agnew) Agreement Amendment Bill 2023
s. 6
1 non-Agreement nickel concentrates
2 delivered with nickel concentrates
3 produced in accordance with approved
4 proposals under this Agreement; and
5 (f) such other information as the State shall
6 from time to time reasonably require to
7 enable the calculation of royalty payable
8 in respect of nickel mined from each such
9 abovementioned source."
10 (c) in subclause 21(4), by deleting the words "Minister for Mines"
11 and each occurrence of the words "Minister for Mines or his
12 nominee" and substituting in each case the word "State";
13 (d) in subclause 21(4), after the words "royalty payable under this
14 Clause" inserting the words ", and under the Mining Act 1978
15 in respect of non-mineral lease ore and nickel concentrates and
16 non-Agreement nickel concentrates the subject of approved
17 proposals under this Agreement,";
18 (e) by inserting after clause 21(4) the following new subclauses:
19 "(5) The Joint Venturers shall to the extent they have
20 not already done so, within 3 months after the
21 variation date, establish and thereafter during the
22 continuance of this Agreement maintain in place to
23 the reasonable satisfaction of the State adequate
24 systems and controls for the correct
25 apportionment, where blending as referred to in
26 Clause 6B is being undertaken, between ore and
27 non-mineral lease ore and nickel concentrates
28 produced in accordance with approved proposals
29 under this Agreement and non-Agreement nickel
30 concentrates of the quantities of nickel comprised
31 in the resulting nickel containing products and
32 which systems and controls monitor production,
33 concentration, processing, transportation,
34 stockpiling and shipping activities in respect of
35 such nickel.
page 29
Nickel (Agnew) Agreement Amendment Bill 2023
s. 6
1 (6) If at any time the State ceases to be so satisfied it
2 may, after consulting the Joint Venturers and
3 provided that the Joint Venturers have not within
4 3 months after the commencement of such
5 consultation addressed the matters of concern to
6 the State's satisfaction, by notice in writing to the
7 Joint Venturers suspend the above authority for
8 blending to be undertaken until the State is again
9 so satisfied in terms of subclause (5) of this
10 Clause."
11 (17) by deleting clause 24 and substituting with the following new clause:
12 "Rating
13 24. (1) The State shall ensure that, notwithstanding the
14 provisions of any Act or anything done or
15 purported to be done under any Act, the valuation
16 of all lands (whether of a freehold or leasehold
17 nature) the subject of this Agreement (except land
18 the subject of the Townsite Lease and except as to
19 any part of other land upon which is situated a
20 specified improvement as referred to below) shall
21 for rating purposes under the Local Government
22 Act 1995 (WA), be deemed to be on the
23 unimproved value thereof and no such lands shall
24 be subject to any discriminatory rate.
25 (2) For the purpose of this Clause, the following
26 improvements are specified improvements:
27 (a) accommodation, recreation and
28 administration facilities and associated
29 buildings; and
30 (b) maintenance workshops existing within
31 100 metres of facilities listed in
32 paragraph (a) above."
33 (18) by deleting clause 26 (other than the heading);
34 (19) by inserting after clause 29(2) the following new subclause:
page 30
Nickel (Agnew) Agreement Amendment Bill 2023
s. 6
1 "(3) Notwithstanding the provisions of the Land Act
2 insofar as the same may apply, no sublease by the
3 Joint Venturers of land from time to time
4 comprised in the Townsite Lease for:
5 (a) a purpose or purposes falling within the
6 permitted use of the land the subject of
7 that lease; and
8 (b) a potential term shorter than the current
9 term from time to time of the Townsite
10 Lease,
11 will require any approval or consent under
12 subclause (1) of this Clause or under the Land Act
13 provided that the Joint Venturers give notice to the
14 Minister and the Minister responsible for the Land
15 Act of the proposed sublease."
16 (20) in clause 35 by deleting subclause (4);
17 (21) in clause 44 by:
18 (a) in clause 44(1):
19 (i) deleting the words "their umpire" and substituting the
20 words "a third and presiding arbitrator"; and
21 (ii) deleting the words "Arbitration Act 1895" and substituting
22 the words "Commercial Arbitration Act 2012 (WA)"; and
23 (b) in clause 44(3), deleting the words "or umpire (as the case may
24 be)"; and
25 (22) in clause 46, by inserting after the words "the State of Western
26 Australia" the words "and, except for matters to be referred to
27 arbitration pursuant to this Agreement, the parties to this Agreement
28 submit to the jurisdiction of the courts of Western Australia in relation
29 to any action or proceeding to settle any dispute or question arising out
30 of or in connection with this Agreement".
31
page 31
Nickel (Agnew) Agreement Amendment Bill 2023
s. 6
1 EXECUTED as a deed.
2
3
SIGNED by THE HONOURABLE )
MARK McGOWAN )
in the presence of: ) [Signature]
[Signature]
______________________________
Signature of witness
DAVID PAUL COGGIN
______________________________
Name of witness
EXECUTED by BHP NICKEL )
WEST PTY LTD ACN 004 184 598 )
in accordance with section 127(1) of )
the Corporations Act 2001 (Cth) by )
authority of its directors: )
[Signature] [Signature]
______________________________ _________________________
Signature of director Signature of director/company
secretary*
JESSICA FARRELL RIAAN CLOETE
______________________________ _________________________
Full name of director (block letters) Full name of director/company
secretary* (block letters)
*delete whichever is not applicable
4
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