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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Poseidon Nickel Agreement Amendment
(Termination) Bill 2021
Contents
1. Short title 2
2. Commencement 2
3. Act amended 2
4. Long title amended 2
5. Section 2 amended 2
6. Section 3B inserted 3
3B. Termination agreement ratified 3
7. Schedule 3 inserted 3
Schedule 3 -- Termination agreement
44--1 page i
Western Australia
LEGISLATIVE ASSEMBLY
Poseidon Nickel Agreement Amendment
(Termination) Bill 2021
A Bill for
An Act to amend the Poseidon Nickel Agreement Act 1971 to provide
for the ratification of an agreement for the termination of the
Poseidon Nickel Agreement and for related purposes.
The Parliament of Western Australia enacts as follows:
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Poseidon Nickel Agreement Amendment (Termination) Bill 2021
s. 1
1 1. Short title
2 This is the Poseidon Nickel Agreement Amendment
3 (Termination) Act 2021.
4 2. Commencement
5 This Act comes into operation as follows --
6 (a) sections 1 and 2 -- on the day on which this Act
7 receives the Royal Assent;
8 (b) the rest of the Act -- on the day after that day.
9 3. Act amended
10 This Act amends the Poseidon Nickel Agreement Act 1971.
11 4. Long title amended
12 In the long title delete "thereto." and insert:
13
14 thereto and to ratify a further agreement for the
15 termination of that agreement.
16
17 5. Section 2 amended
18 In section 2 insert in alphabetical order:
19
20 the termination agreement means the agreement a
21 copy of which is set out in Schedule 3 to this Act;
22
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Poseidon Nickel Agreement Amendment (Termination) Bill 2021
s. 6
1 6. Section 3B inserted
2 After section 3A insert:
3
4 3B. Termination agreement ratified
5 (1) The termination agreement is ratified.
6 (2) Without limiting or otherwise affecting the application
7 of the Government Agreements Act 1979, the
8 termination agreement shall operate and take effect
9 notwithstanding any other Act or law.
10
11 7. Schedule 3 inserted
12 After Schedule 2 insert:
13
14 Schedule 3 -- Termination agreement
15 [s. 2]
16 2021
17
18
19 THE HONOURABLE MARK McGOWAN
20 PREMIER OF THE STATE OF WESTERN AUSTRALIA
21
22 AND
23
24 POSEIDON NICKEL LIMITED
25 ACN 060 525 206
26
27
28
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Poseidon Nickel Agreement Amendment (Termination) Bill 2021
s. 7
1 ________________________________________________________________
2
3 POSEIDON NICKEL AGREEMENT 1971
4 TERMINATION AGREEMENT
5 ________________________________________________________________
6
7
8
9 [Solicitor's details]
10
11
12
13
14
15 THIS AGREEMENT is made this 4th day of August 2021
16
17
18 BETWEEN
19
20 THE HONOURABLE MARK McGOWAN, BA LLB, M.L.A., Premier of the
21 State of Western Australia, acting for and on behalf of the said State and its
22 instrumentalities from time to time (State) of the one part,
23 AND
24 POSEIDON NICKEL LIMITED ACN 060 525 206 of Level 1, 3 Ord Street,
25 West Perth, Western Australia (Company in which term shall be included its
26 successors and permitted assigns) of the other part.
27
28
29
30
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Poseidon Nickel Agreement Amendment (Termination) Bill 2021
s. 7
1 WHEREAS:
2 A. The State and the Company are now the parties to the agreement dated
3 27 July 1971 which agreement was ratified by the Poseidon Nickel
4 Agreement Limited Act 1971 (WA) and as varied by agreements dated
5 9 April 1973, 8 March 1985, 15 September 2005 and 22 January 2007
6 is referred to in this Agreement as the Principal Agreement.
7 B. The State and the Company wish to terminate the Principal Agreement
8 in the manner and on the terms set out in this Agreement.
9
10 NOW THIS AGREEMENT WITNESSES:
11 1. Definitions
12 In this Agreement subject to the context:
13 Bank Guarantee means the bank guarantee dated 2 November 2006
14 given by the Commonwealth Bank of Australia, at the request of the
15 Company, to the State as security for the performance by the Company
16 of its obligations under the Deed of Covenant.
17 decommission in relation to a mine means the process of ceasing the
18 production of minerals and the removal of infrastructure, plant,
19 equipment and services comprising and associated with the mine.
20 Deed of Covenant means the Deed of Covenant made on
21 3 October 2006 between The Honourable Alan John Carpenter the then
22 Premier of the State of Western Australia acting for and on behalf of
23 the said State and its instrumentalities from time to time, The
24 Honourable John Bowler the then Principal Agreement Minister and the
25 Company (then called Niagara Mining Limited) in relation to the
26 assignment to the Company of all rights (including as holder of the
27 Mining Lease) and obligations of BHP Billiton Nickel West Pty Ltd
28 ACN 004 184 598 (then called WMC Resources Ltd) under the
29 Principal Agreement and the decommissioning of mines within the area
30 of, and the rehabilitation of, the Mine Rehabilitation Sites.
31 Mine Rehabilitation Sites means the mine sites at Mount Windarra
32 and South Windarra being, at the date of this Agreement, the subject of
33 the plan entitled "WMC Windarra Nickel Project - Closure Finalisation
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Poseidon Nickel Agreement Amendment (Termination) Bill 2021
s. 7
1 Plan - Final Version 2005" initialled by or on behalf of the parties to
2 this Agreement for the purpose of identification.
3 Mining Act means the Mining Act 1978 (WA).
4 Mining Act Minister means the Minister in the Government of the
5 State of Western Australia for the time being responsible for the
6 administration of the Mining Act.
7 Mining Lease means Mining Lease No. 261SA and if renewed
8 includes such renewal thereof and according to the requirements of the
9 context describes the area of land from time to time the subject of that
10 lease.
11 Mining Lease Instrument means the instrument of lease issued for the
12 Mining Lease.
13 Mining Proposal means the mining proposal (including mine closure
14 plan) of the Company in respect of its proposed activities upon the
15 Mining Lease on and after the Operative Date as contained in the
16 document marked "A" initialled by or on behalf of the parties to this
17 Agreement for the purpose of identification.
18 Operative Date has the meaning given in clause 3(2).
19 Principal Agreement Minister means the Minister as defined in the
20 Principal Agreement.
21 Ratifying Act means the Act of the Parliament of Western Australia to
22 ratify this Agreement referred to in clause 3.
23 this Agreement, hereof and hereunder refer to this Agreement,
24 whether in its original form or as from time to time added to, varied or
25 amended.
26 2. Interpretation
27 In this Agreement:
28 (a) clause headings do not affect interpretation or construction;
29 (b) words in the singular shall include the plural and words in the
30 plural shall include the singular according to the requirements
31 of the context;
32 (c) a reference to one gender includes the other genders;
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Poseidon Nickel Agreement Amendment (Termination) Bill 2021
s. 7
1 (d) a covenant or agreement by more than one person binds, and is
2 enforceable against, those persons jointly and each of them
3 severally;
4 (e) a reference to a "person" includes a body corporate;
5 (f) a reference to an Act includes the amendments to that Act for
6 the time being in force and also any Act passed in substitution
7 therefor or in lieu thereof and the regulations for the time being
8 in force thereunder;
9 (g) a reference to any document includes that document as from
10 time to time added to, varied or amended and notwithstanding
11 any change in the identity of the parties;
12 (h) a reference to a clause or schedule is a reference to a clause in
13 or schedule to this Agreement, and a reference to a subclause
14 or paragraph is a reference to the subclause of the clause or
15 paragraph of the clause or subclause as the case may be in, or
16 in relation to, which the reference is made;
17 (i) a reference to this Agreement includes all recitals, schedules
18 and annexures; and
19 (j) "including" means "including, but not limited to".
20 3. Ratification and operation
21 (1) This Agreement, other than this clause and clauses 1, 2 and 5(2), does
22 not come into operation except in accordance with subclause (2).
23 (2) This Agreement, other than this clause and clauses 1, 2 and 5(2), comes
24 into operation on the day after the date on which it is ratified by an Act
25 of the Parliament of Western Australia (Operative Date) unless, before
26 that day, it terminates under subclauses (4), (5) or (6).
27 (3) The State must introduce in the Parliament of Western Australia before
28 31 December 2021, or a later date agreed between the parties to this
29 Agreement, a Bill to ratify this Agreement and must endeavour to
30 secure its passage as an Act.
31 (4) If by 30 April 2022 or such later date agreed between the parties to this
32 Agreement, this Agreement has not been ratified by an Act of the
33 Parliament of Western Australia then, unless the parties to this
34 Agreement otherwise agree, this Agreement terminates on that day and
35 no party hereto will have any claim against any other party hereto with
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Poseidon Nickel Agreement Amendment (Termination) Bill 2021
s. 7
1 respect to any matter or thing arising out of, done, performed, or omitted
2 to be done or performed under this Agreement.
3 (5) The parties agree that if the Principal Agreement is otherwise
4 determined in accordance with its provisions on a day prior to the
5 Operative Date, then this Agreement shall also terminate on and from
6 that day and no party hereto will have any claim against any other party
7 hereto with respect to any matter or thing arising out of, done,
8 performed, or omitted to be done or performed under this Agreement.
9 (6) The parties agrees that if after the date of this Agreement the Company
10 submits pursuant to the Principal Agreement, while it remains in force,
11 any proposal or proposals for approval by the Principal Agreement
12 Minister, then this Agreement terminates on and from that date of
13 submission and no party hereto will have any claim against any other
14 party hereto with respect to any matter or thing arising out of, done,
15 performed or omitted to be done or performed under this Agreement.
16 4. Termination of Principal Agreement
17 (1) Subject to subclauses (3) and (4)(a), the Principal Agreement is hereby
18 terminated with effect on and from the Operative Date and, except as
19 otherwise provided in this Agreement, neither the State nor the
20 Company shall have any claim against the other with respect to any
21 matter or thing in or arising out of the Principal Agreement.
22 (2) With effect on and from the Operative Date the Company is released
23 from its obligations under clauses 3.2(a) and 3.2(b) of the Deed of
24 Covenant and, except as otherwise provided in this Agreement, the
25 State shall not have any claim against the Company in respect of the
26 performance of those obligations by the Company under the Deed of
27 Covenant.
28 (3) Notwithstanding subclauses (1) and (2) the Company shall remain
29 liable for any antecedent breach or default under the Principal
30 Agreement or under the Deed of Covenant and in respect of any
31 indemnity given under the Principal Agreement.
32 (4) On and from the Operative Date:
33 (a) the Mining Lease shall continue in force only under and, except
34 as provided in this Agreement, subject to the provisions of the
35 Mining Act and, for the avoidance of doubt, shall cease to have
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Poseidon Nickel Agreement Amendment (Termination) Bill 2021
s. 7
1 the benefit of the rights and privileges conferred by the
2 Principal Agreement;
3 (b) the Mining Lease may only be renewed under section 78(2) of
4 the Mining Act for one further term of 21 years;
5 (c) the Mining Proposal shall be deemed to be:
6 (i) a mining proposal within the meaning given to that term
7 in section 70O(1) of the Mining Act;
8 (ii) a mining proposal lodged and approved, and in respect
9 of which any prescribed assessment fee has been paid,
10 in accordance with section 82A(2) of the Mining Act;
11 and
12 (iii) for the avoidance of doubt, a relevant mining proposal
13 within the meaning given to that term in section 70O of
14 the Mining Act;
15 (d) the mine closure plan contained in the Mining Proposal shall be
16 deemed to be a mine closure plan within the meaning given to
17 that term in section 70O(1) of the Mining Act;
18 (e) for the avoidance of doubt, condition 2 as set out in the Sixth
19 Schedule of the Mining Lease Instrument (amended as set out
20 in paragraph (g) of this subclause (4)) shall be deemed to be a
21 reasonable condition imposed by the Minister for Mines under
22 section 84 of the Mining Act;
23 (f) for the purposes only of this Agreement the application of the
24 Mining Act is specifically modified as follows:
25 (i) in section 82 (Covenants and conditions of lease) by
26 deleting subsection (1b) and substituting the following
27 new subsection:
28 "(1b) Paragraph (ca) of subsection (1) shall apply to
29 Mining Lease No. 261SA."; and
30 (ii) in section 82A (Condition to be included in certain
31 mining leases) by:
32 (A) inserting after subsection (1) the following new
33 subsection:
34 "(1a) This section applies to Mining Lease
35 No. 261SA.";
36 and
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Poseidon Nickel Agreement Amendment (Termination) Bill 2021
s. 7
1 (B) in subsection (2) by deleting "to be granted" and
2 substituting ", upon this section commencing to
3 apply to it, to be";
4 (iii) in section 95 (Surrender of mining tenement) by
5 inserting after subsection (1) the following new
6 subsection:
7 "(1a) The holder from time to time of Mining Lease
8 No. 261SA may not surrender that mining
9 tenement in whole or in part without the prior
10 consent of the Minister.";
11 (g) the provisions of the Mining Lease Instrument shall be deemed
12 amended as set out in the Schedule;
13 (h) for the avoidance of doubt, the Mining Lease shall be deemed
14 to be a mining authorisation for the purposes of the Mining
15 Rehabilitation Fund Act 2012 (WA) and regulations made
16 under that Act; and
17 (i) operations and other activities upon or at the Mining Lease shall
18 cease to have the benefit of the rights and privileges conferred
19 by the Principal Agreement and shall, subject to this
20 subclause (4), be governed by the laws from time to time in
21 force in Western Australia.
22 (5) The Mining Act Minister is hereby authorised to endorse on the Mining
23 Lease Instrument (including any duplicate) notice of the amendments
24 referred to in paragraph (g) of subclause (4) above.
25 (6) On and from the Operative Date the Company will indemnify and keep
26 indemnified the State and the State's employees, agents and contractors
27 in respect of all actions, suits, claims, demands or costs of third parties
28 arising out of or in connection with any work carried out by the
29 Company pursuant to the Principal Agreement or relating to its
30 operations under the Principal Agreement (including de-watering
31 operations and the decommissioning of mines within the area of, and
32 the rehabilitation of, the Mine Rehabilitation Sites) or arising out of or
33 in connection with the construction, maintenance or use by the
34 Company or its employees, agents, contractors, assignees or sublessees
35 of the Company's works or services the subject of the Principal
36 Agreement or the plant, apparatus or equipment installed in connection
37 with the Principal Agreement.
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Poseidon Nickel Agreement Amendment (Termination) Bill 2021
s. 7
1 This indemnity shall remain in force for a period ending on the date
2 which is 20 years after:
3 (a) the date agreed between the State and the Company; or
4 (b) if the parties fail to agree a date under paragraph (a), the date
5 determined by the State as being the date of cessation of all
6 operations (including as expanded or otherwise modified)
7 originally established under and pursuant to the Principal
8 Agreement.
9 (7) The Company will indemnify and keep indemnified the State and the
10 State's employees, agents and contractors in respect of all actions, suits,
11 claims, demands or costs of third parties arising out of or in connection
12 with any works or activities of the Company or its employees, agents,
13 contractors, assignees or sublessees on and subsequent to the Operative
14 Date relating to operations (including as expanded or otherwise
15 modified) that were originally established under or pursuant to the
16 Principal Agreement (including de-watering operations and the
17 decommissioning of mines within the area of, and the rehabilitation of,
18 the Mine Rehabilitation Sites). This indemnity remains in force for a
19 period ending on the same date as the indemnity in subclause (6).
20 5. Cessation of Bank Guarantee and provision of Security under
21 Mining Act
22 (1) Subject to subclauses (2) and (3), the Bank Guarantee shall cease to
23 have effect on the Operative Date.
24 (2) Upon execution of this Agreement the Company shall deliver to the
25 department of the State responsible for the administration of the Mining
26 Act an executed security in a form according with section 84A(2) and
27 section 126 of the Mining Act and in the amount of $3.5 million for
28 compliance with conditions imposed from time to time in relation to the
29 Mining Lease under section 84 of the Mining Act and the department
30 shall hold such bond in escrow pending the Operative Date.
31 (3) From and including the Operative Date the security referred to in
32 subclause (2) shall be deemed to be lodged under section 84A(2) and in
33 accordance with section 126 of the Mining Act and, for the avoidance
34 of doubt, shall also operate as security for the Company's compliance
35 with condition 2 as set out in the Sixth Schedule of the Mining Lease
36 Instrument (amended as set out in paragraph (g) of clause 4(4)).
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Poseidon Nickel Agreement Amendment (Termination) Bill 2021
s. 7
1 6. Applicable law
2 This Agreement is to be interpreted according to the law for the time
3 being in force in the State of Western Australia.
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Poseidon Nickel Agreement Amendment (Termination) Bill 2021
s. 7
1 SCHEDULE
2 Variation of the Mining Lease Instrument
3 The variations of the Mining Lease Instrument referred to in
4 clause 4(4)(g) are as follows:
5 (a) in the heading to the Mining Lease the deletion of "POSEIDON
6 NICKEL AGREEMENT ACT 1971";
7 (b) the deletion of all of the words after "Sixth Schedule to this
8 lease" and before "In this lease -" and the substitution of the
9 words:
10 "or otherwise from time to time imposed on the Lessee by the
11 Mining Act 1978 the Lessee paying the rents and the royalties
12 for the time being and from time to time respectively prescribed
13 pursuant to the provisions of the Mining Act 1978 at the times
14 and in the manner so prescribed with the right to renew the term
15 of this lease pursuant to the provisions of the Mining Act 1978
16 as modified by the Agreement AND it is hereby agreed and
17 declared that unless the Lessee shall at all times duly and
18 punctually perform and observe the covenants and conditions
19 hereinafter contained or implied herein this lease shall be liable
20 to forfeiture and may be forfeited by the Minister pursuant to
21 the powers in that behalf conferred by the Mining Act 1978
22 provided that the Minister may as he thinks fit impose on the
23 Lessee a penalty as an alternative to forfeiture of this lease.";
24 (c) the insertion before the definition of "Lessee" of the following
25 new definition:
26 - "decommission" in relation to a mine means the process of
27 ceasing the production of minerals and the removal of
28 infrastructure, plant, equipment and services comprising and
29 associated with the mine.
30 (d) the insertion after the definition of "Lessee" of the following
31 new definitions:
32 - "Mine Rehabilitation Sites" means the mine sites at Mount
33 Windarra and South Windarra being, at the date of the
34 Termination Agreement, the subject of the plan entitled "WMC
35 Windarra Nickel Project - Closure Finalisation Plan - Final
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Poseidon Nickel Agreement Amendment (Termination) Bill 2021
s. 7
1 Version 2005" initialled by or on behalf of the parties to the
2 Termination Agreement for the purpose of identification.
3 - "Operative Date" means the day after the date on which the
4 Termination Agreement is ratified by an Act of the Parliament
5 of Western Australia.
6 - "Relevant Mine Closure Plan" means at any time, the then
7 current mine closure plan or plans approved under the Mining
8 Act 1978 for the decommissioning of mines from time to time
9 (including mines established after the Operative Date) within
10 the area of, and the rehabilitation of, the Mine Rehabilitation
11 Sites. At the Operative Date the mine closure plan contained in
12 the Mining Proposal (as defined in the Termination Agreement)
13 is the Relevant Mine Closure Plan.
14 - "Termination Agreement" means the agreement, to terminate
15 the agreement described in paragraph (a) of the Second
16 Schedule to this lease, made on or about 4 August 2021 between
17 The Honourable Mark McGowan, Premier of the State of
18 Western Australia, acting for and on behalf of the said State and
19 its instrumentalities from time to time and Poseidon Nickel
20 Limited ACN 060 525 206.
21 (e) the deletion of the provisions of the Second Schedule and the
22 substitution of the following provisions:
23 "(a) From and including the date set out in the Fifth Schedule
24 to this lease up to and including the date occurring
25 immediately before the Operative Date, the agreement
26 dated 27 July 1971 ratified by the Poseidon Nickel
27 Agreement Act 1971 (WA) as that agreement has from
28 time to time been added to, varied or amended.
29 (b) From and including the Operative Date, the Termination
30 Agreement as that agreement may from time to time be
31 added to, varied or amended.";
32 (f) the deletion of condition 2 of the Sixth Schedule and the
33 substitution of the following new condition:
34 "2. The Lessee must, without prejudice to its other
35 obligations under the Mining Act 1978, decommission
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Poseidon Nickel Agreement Amendment (Termination) Bill 2021
s. 7
1 all mines from time to time (including mines established
2 after the Operative Date) within the area of, and
3 rehabilitate, the Mine Rehabilitation Sites in accordance
4 with the Relevant Mine Closure Plan."; and
5 (g) the insertion of the following note immediately after the Sixth
6 Schedule:
7 "NOTE
8 In addition to any specific conditions that are endorsed on this
9 instrument, the holder in exercising the rights granted herein
10 must first ensure that the necessary consents and permission
11 have been obtained and compensation has been agreed to or
12 determined in respect to certain Crown Land, Public Reserves,
13 etc. private land and where the lawful rights of other land users
14 are concerned."
EXECUTED as a deed.
SIGNED by THE HONOURABLE )
MARK McGOWAN ) [Signature]
in the presence of: )
[Signature]
_______________________________
Signature of witness
NADEEN LYN ROBERTS
_______________________________
Name of witness
page 15
Poseidon Nickel Agreement Amendment (Termination) Bill 2021
s. 7
EXECUTED by POSEIDON )
NICKEL LIMITED )
ACN 060 525 206 in accordance with )
section 127(1) of the Corporations )
Act 2001 (Cth) )
[Signature] [Signature]
_______________________________ ___________________________
Signature of Director Signature of Secretary
PETER J. HAROLD BRENDAN E. SHALDERS
_______________________________ ___________________________
Full name Full name
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