Western Australian Current Acts Western Australian Current Acts[s. 3]
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Browse (Land) Agreement |
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The State of Western Australia Goolarabooloo Jabirr Jabirr Peoples |
Table of Contents
1. Definitions and Interpretation
2
1.1 Definitions
2
1.2 Interpretation
6
2. Ratification and Operation
7
3. Permitted use of LNG Precinct
7
4. Precinct Closure 8
4.1 Closure Decision
8
4.2 Notification of
Closure Decision 8
4.3 Closure of
Precinct where no Proponent 8
5. Port at End of Precinct Life
9
5.1 Port to continue
operation at discretion of the State 9
5.2 Remediation and
Grant if Port operation continues 10
5.3 Dispute in
relation to terms of Port Lease 11
5.4 Remediation and
Grant if Port ceases operation 11
6. Remediation of Precinct Land and Facilities
11
6.1 State to remediate
Precinct Land and Facilities following End of Precinct Life
11
6.2 LNG Precinct
Baseline Report 11
6.3 Remediation and
Rehabilitation Works management plan 12
6.4 Carrying out of
Remediation and Rehabilitation Works 12
6.5 Completion of
Remediation and Rehabilitation Works 13
6.6 Dispute in
relation to Remediation and Rehabilitation Works
13
7. Grant of Precinct Land
13
7.1 Grant of land
following closure of the LNG Precinct 13
7.2 State and Native
Title Party to determine form of title 14
7.3 Administrative
Body to hold Grant Land 14
7.4 State not liable
14
7.5 Costs arising in
relation to Grant 14
8. Limitation of further LNG Development on the
Kimberley Coastline 15
9. Assignment 15
10. Variation 16
10.1 Parties may vary
Agreement 16
10.2 Minister to table
variations in Parliament 16
11. Term 16
12. Power to extend periods
16
13. Duties 16
14. Notices 17
14.1 Manner of notice
17
14.2 Parties' notice
details 17
15. Applicable law 17
16. Dispute Resolution
18
16.1 General dispute
resolution 18
16.2 Dispute as to
terms of Port Lease or Remediation and Rehabilitation Works
18
17. Warranty 20
Annexure 1 – Map of the Kimberley Coastline
22
Annexure 2 – LNG Precinct Plan 23
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Date |
30 June 2011 |
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Parties | |
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The Honourable Brendon John Grylls, MLA , the Minister for Lands, acting for
and on behalf of the State of Western Australia and its instrumentalities from
time to time (the State ). |
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Kimberley Land Council Aboriginal Corporation (ABN 96 724 252 047 ICN) for
and on behalf of the Native Title Party (in every respect other than clause 17
in which respect it is signing both as agent for the Native Title Party and in
its own capacity), PO Box 2145 Broome, Western Australia, 6725 (the KLC ). |
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Recitals | |
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A |
The Native Title Party are the registered native title claimants in relation
to the land and waters the subject of the Native Title Claim. |
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B |
The State intends establishing an LNG Precinct in the vicinity of James Price
Point. The LNG Precinct is proposed to be developed within the area the
subject of the Native Title Claim. |
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C |
The State considers that the LNG Precinct is a unique and important project
for the State of Western Australia, the particular circumstances of which
justify the State's entry into this Agreement. |
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D |
The State has committed to entering into this Agreement in relation to: (a)
limiting the use of the LNG Precinct; (b)
limiting further LNG development on the Kimberley Coastline; (c) the
remediation and rehabilitation of the land within the LNG Precinct at the End
of Precinct Life; and (d) the
Grant of title within the LNG Precinct to the Native Title Party at the End of
Precinct Life, each on and subject to the terms of this Agreement. |
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E |
The Native Title Party has authorised the KLC to execute this Agreement on
their behalf. |
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It is agreed as follows. 1. Definitions and Interpretation |
1.1 Definitions
In this Agreement subject to the context:
' advise ' , ' apply ' , ' approve ' , ' approval
' , ' consent ' , ' certify ' , ' direct ' , ' notice ' , ' notify ' , '
request ' , or ' require ' , means advise, apply, approve, approval, consent,
certify, direct, notice, notify, request, or require in writing as the case
may be and any inflexion or derivation of any of those words shall have a
corresponding meaning.
Access Road means the access road from the
Broome-Cape Leveque Road to the LNG Precinct as set out on the map in Annexure
2, and more specifically means those parts of Lot 259 on Deposited Plan
220696, being part of the land in qualified certificate of Crown land title
volume 3015 folio 565, being a total area of approximately 291 ha within the
1422.6 ha area marked G on Deposited Plan 68246, and within the 1000 ha and
2000 ha areas marked C and D on Deposited Plan 68246 respectively. In
particular:
(a) an
area of approximately 191 ha within the 1422.6 ha area marked G on Deposited
Plan 68246;
(b) an
area of approximately 40 ha within the 1000 ha area marked C on Deposited Plan
68246 and/or the 1422.6 ha area marked G on Deposited Plan 68246;
(c) an
area of approximately 60 ha within the 2000 ha area marked D on Deposited Plan
68246 and/or the 1422.6 ha area marked G on Deposited Plan 68246.
Administrative Body means the Administrative Body,
as approved by the State and the Native Title Party, created to deliver
benefits to or for the benefit of the Native Title Party and hold land Granted
for the benefit of the Native Title Party under this Agreement, and, to the
extent relevant as the holder of land Granted under this Agreement, to perform
the obligations of the Native Title Party under this Agreement.
Closure Decision means a decision to close the LNG
Precinct in accordance with clause 4.
Commencement Date means the date on which all of
the provisions of this Agreement come into effect by operation of clause 2(d).
Completion of Remediation means the date on which
Remediation and Rehabilitation Works are completed or deemed to be completed
under clause 6.5.
Contamination has the same meaning as the CS Act.
CS Act means the Contaminated Sites Act 2003
(WA).
End of Precinct Life occurs on the date determined
under clause 4.2.
Environmental Status Report has the meaning given
in clause 6.4(e).
EP Act means the Environmental Protection Act
1986 (WA).
EPBC Act means the Environment Protection and
Biodiversity Conservation Act 1999 (Cth).
Excluded Facilities means:
(a)
man-made alterations to the shoreline;
(b) the
Access Road and any other public or gazetted roads;
(c) any
other ancillary infrastructure within the Onshore Service Corridor or
infrastructure corridors located within road reserves or otherwise servicing
the LNG Precinct;
(d) port
infrastructure (including any facilities) within the Port Waters;
(e)
breakwaters;
(f) any
part of the seabed, including navigation channels and turning basins; and
(g) if
under this Agreement or any other agreement any Facilities (including a
Proponent's accommodation facilities within the Workers' Accommodation Site)
are to be transferred to the Native Title Party, then:
(i)
those Facilities; and
(ii)
that part of the Precinct Land or Port Land (as the case
may be) connected to those Facilities as set out in the agreement contemplated
above.
Facilities means all man made structures built
within the LNG Precinct, but excludes the Excluded Facilities.
Grant means the grant, making, creation,
declaration, dedication, proclamation, order or vesting of a right or interest
in, or authority to, land and waters under any Law.
Industrial Precinct means that part of Lot 259 on
Deposited Plan 220696, being part of the land in qualified certificate of
Crown land title volume 3015 folio 565, being an area of approximately 1980 ha
within the 2019.9 ha area marked B on Deposited Plan 68246, as referred to in
the notice and set out on the map contained in Annexure 2 comprising:
(a) the
industrial blocks for any Proponent; and
(b) the
common user area.
Kimberley Coastline means the coastline of the
land so described on the map which forms Annexure 1 to this Agreement.
LandCorp means the Western Australian Land
Authority, established under section 5 of the
Western Australian Land Authority Act 1992 (WA), of Wesfarmers House, 40 The
Esplanade, Perth, Western Australia, 6000.
Law means any law of the Commonwealth or Western
Australia and includes the common law and equity, any written law, statute,
regulation or other instruments made under statute.
LNG means liquefied natural gas and includes any
associated condensate and liquefied petroleum gas.
LNG Precinct means the development required to
produce, store and ship LNG including:
(a) the
Petroleum processing facility;
(b) all
land, waters, infrastructure and land or water use (including shipping)
associated with or required for the Petroleum processing facility; and
(b)
ancillary facilities including power, gas and water processing to support the
LNG Precinct,
to be built in the vicinity of James Price Point
within the area of the Native Title Claim.
LNG Precinct Baseline Report has the meaning given
in clause 6.2(a).
Loss means any loss, liability, claim, action,
damage, cost, charge, expense (including legal fees on a solicitor-client
basis), diminution in value or deficiency, but does not include loss of
profit, loss of production, loss of reputation or any indirect or
consequential loss.
Minister means the Minister in the Government of
the State for the time being responsible for the administration of the Act
that ratifies this Agreement and pending the passing of that Act means the
Minister for Lands or such other Minister for the time being designated in a
notice from the State to the Native Title Party and includes the successors in
office of the Minister.
Native Title Act means the Native Title Act 1993
(Cth).
Native Title Claim means the application pursuant
to the Native Title Act made on behalf of the Goolarabooloo / Jabirr Jabirr
Peoples (Federal Court No WAD 6002/1998; NNTT Number WC99/36) and as amended
from time to time.
Native Title Claim Group has the meaning set out
in the Native Title Act in relation to the Native Title Claim.
Native Title Party means the registered native
title claimants under the Native Title Act for and on behalf of the Native
Title Claim Group.
Onshore Service Corridor means those parts of Lot
259 on Deposited Plan 220696, being part of the land in qualified certificate
of Crown land title volume 3015 folio 565, being a total area of 232 ha within
the 1422.6 ha area marked G on Deposited Plan 68246, and within the 1000 ha
and 2000 ha areas marked C and D on Deposited Plan 68246 respectively, as set
out on the map contained in Annexure 2. In particular:
(a) an
area of approximately 172 ha within the 1422.6 ha area marked G on Deposited
Plan 68246;
(b) an
area of approximately 24 ha within the 1000 ha area marked C on Deposited Plan
68246 and/or the 1422.6 ha area marked G on Deposited Plan 68246;
(c) an
area of approximately 36 ha within the 2000 ha area marked D on Deposited Plan
68246 and/or the 1422.6 ha area marked G on Deposited Plan 68246.
Permitted Assignee has the meaning given in clause
9.
Petroleum has the meaning given in the Petroleum
and Geothermal Resources Act 1967 (WA).
Port means the port vested in and operated by the
Port Authority under the Port Authorities Act 1999 (WA) within the Port Land
and Port Waters.
Port Authority means Broome Port Authority.
Port Land means that area of approximately 110 ha
within the 240.31 ha area comprising:
(a) that
part of Lot 259 on Deposited Plan 220696, being part of the land in qualified
certificate of Crown land title volume 3015 folio 565, that is within the
226.3 ha area marked A on Deposited Plan 68246; and
(b) the
area of 14.01 ha of Lot 3001 on Deposited Plan 68245,
as set out on the map contained in Annexure 2.
Port Waters means that area set out on the map
contained in Annexure 2.
Post Contamination means Contamination that
satisfies each of the following sub-clauses (a) to (c) inclusive:
(a) did
not exist prior to the creation of the LNG Precinct; and
(b) does
not arise out of any Contamination that did exist prior to the creation of the
LNG Precinct as identified in the LNG Precinct Baseline Report; and
(c) is
not, and does not arise out of any, Contamination caused by the Native Title
Party.
Precinct Land means the land comprised in the
Industrial Precinct, Third Party Contractors' Site and Workers’
Accommodation Site for the purposes of clause 7.
Precinct Supply Base means an area within the LNG
Precinct used by a Proponent to supply that Proponent’s (including a
joint venture in which a Proponent has a participating interest) offshore
facilities that are supplying or intended to supply Petroleum to the LNG
Precinct or that Proponent's activities relating to the exploration for or
production of Petroleum intended for supply to the LNG Precinct.
Project Rights means the rights, consents,
permits, authorisations, leases, titles, tenures, easements, licences or
approvals and other entitlements necessary to comply with obligations imposed
in relation to, the LNG Precinct within the area of the LNG Precinct (together
Approvals ), including all Grants, renewals, extensions, regrants and remaking
of such rights, and including but not limited to:
(a)
Approvals for any act done by the State, Proponents, LandCorp or the Port
Authority for the purposes of the LNG Precinct, including works necessary for
the construction, operation, maintenance, decommissioning and rehabilitation
of facilities for any part of the LNG Precinct; and
(b) the
making of necessary regulations or by-laws or other legislative or
administrative acts by the State as required for the construction, operation,
maintenance, decommissioning and rehabilitation of the LNG Precinct.
Proponent means each person who is an occupier of
an industrial block within the LNG Precinct and who operates a Proponent
Project.
Proponent Project means a Proponent's project for
the processing and exporting of LNG within and from the LNG Precinct carried
out pursuant to and in accordance with the Project Rights and includes:
(a)
receiving Petroleum and the establishment and operation of the Precinct Supply
Base;
(b)
pre-treatment and processing of Petroleum into LNG and other products;
(c) the
storage, loading and transporting of LNG and other products; and
(d) all
things necessary and incidental to paragraphs (a) to (c) above.
Remediation and Rehabilitation Works means the
remediation and rehabilitation of the LNG Precinct and includes:
(a)
decommissioning and dismantling the Facilities; and
(b)
remediation of any Post Contamination,
but does not include any remediation or
rehabilitation of or to the Excluded Facilities.
Taking Orders means the orders or instruments for
the taking of rights and interests, including native title rights and
interests, in the land comprised in the Precinct Land or otherwise registrable
under Part 9 of the Land Administration Act 1997 (WA).
Third Party Contractors' Site means that part of
Lot 259 on Deposited Plan 220696, being part of the land in qualified
certificate of Crown land title volume 3015 folio 565, being an area of
approximately 200 ha within the 1000 ha area marked C on Deposited Plan 68246,
as set out on the map contained in Annexure 2.
Workers’ Accommodation Site means that part
of Lot 259 on Deposited Plan 220696, being part of the land in qualified
certificate of Crown land title volume 3015 folio 565, being an area of
approximately 200 ha within the 2000 ha area marked D on Deposited Plan 68246,
as referred to in the notice and set out on the map contained in Annexure 2.
1.2 Interpretation
(a) In
this Agreement, clause headings do not affect interpretation or construction
and, unless the context otherwise requires:
(i)
monetary references are references to Australian currency
unless otherwise specifically expressed;
(ii)
words in the singular shall include the plural and words
in the plural shall include the singular according to the requirements of the
context;
(iii)
one gender includes the other genders;
(iv)
a covenant or agreement by more than one person binds,
and is enforceable against, those persons jointly and each of them severally;
(v)
reference to any other document includes that document as
from time to time added to, varied or amended and notwithstanding any change
in the identity of the parties;
(vi)
reference to a clause or schedule is a reference to a
clause or schedule to this Agreement, and a reference to a subclause or
paragraph is a reference to the subclause of the clause, paragraph of the
clause or subclause as the case may be in, or in relation to, which the
reference is made;
(vii)
a reference to a party to this Agreement includes the
party's successors, permitted substitutes and permitted assigns (and, where
applicable, the party's legal personal representatives);
(viii)
'including' means, 'including, but not limited to';
(ix)
no rules of construction apply to the disadvantage of a
party because that party was responsible for the drafting of this Agreement or
of any of the provisions of this Agreement;
(x)
a reference to a 'person' includes a body corporate;
(xi)
references to statutes, regulations, ordinances and
by-laws when contained in this Agreement:
(A) include amendments, re-enactments or
consolidations of any of them;
(B) include any statute, regulation,
ordinance or by-law made in substitution thereof; and
(C) a reference to a statute includes every
regulation, proclamation, ordinance and by-law issued under that statute; and
(xii)
if a government department, authority, body or tribunal
(including, without limitation, the Port Authority or LandCorp) is replaced or
made defunct, the reference to that body shall include a reference to the
replacement body or such other body that most closely performs the functions
of the defunct body.
(b)
Nothing in this Agreement shall be construed to exempt the parties from
compliance with, or to require the parties to do anything contrary to, any Law
relating to native title or any lawful obligation or requirement imposed on
the parties pursuant to any Law relating to native title.
(c)
Nothing in this Agreement shall be construed to exempt the parties or any
other person from compliance in connection with the protection of the
environment arising out of or incidental to their activities under this
Agreement that may be made pursuant to the EP Act, CS Act or the Act that
ratifies this Agreement.
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2. Ratification and Operation |
(a) The
State shall introduce and sponsor a Bill in the State Parliament of Western
Australia as soon as reasonably practicable and in any event prior to 30 June
2012 or such later date as may be agreed between the parties to ratify this
Agreement. The State shall endeavour to secure the timely passage of such Bill
as an Act.
(b) The
provisions of this Agreement other than this clause and clause 1 will not come
into operation until the Bill referred to in paragraph (a) has been passed by
the State Parliament of Western Australia and comes into operation as an Act.
(c) If
by 30 June 2014 or such later date as may be agreed between the parties the
said Bill has not commenced to operate as an Act then, unless the parties
hereto otherwise agree, this Agreement will then cease and determine and no
party hereto will have any claim against any other party hereto with respect
to any matter or thing arising out of, done, performed, or omitted to be done
or performed under this Agreement.
(d) On
the date on which the said Bill commences to operate as an Act all the
provisions of this Agreement will operate and take effect despite any other
enactment or other law.
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3. Permitted use of LNG Precinct |
(a) The
State agrees, subject to clause 5.1 and the balance of this clause 3, that:
(i)
the LNG Precinct will be used only for the receipt of
Petroleum, pre-treatment and processing of Petroleum into LNG and other
products (excluding downstream processing), the storage, loading and
transporting of LNG and all things necessary and incidental thereto, including
the Precinct Supply Base and purposes associated with the administration and
management of the Port by the Port Authority (the Permitted Precinct Use );
(ii)
it will not use or permit any other person to use the LNG
Precinct otherwise than for a Permitted Precinct Use; and
(iii)
it will procure that neither LandCorp nor the Port
Authority will use or permit any other person to use the LNG Precinct
otherwise than for a Permitted Precinct Use.
(b)
Nothing in this clause 3:
(i)
displaces the obligations of the Port Authority under
international custom or convention or under common law relating to seas and
ports; or
(ii)
limits the Port Authority's ability to conduct exercises
by itself or with others for the purpose of emergency and safety drills
(whether related to a Proponent Project or not); or
(iii)
limits the Port Authority from refuelling, supplying or
providing assistance to any Commonwealth vessel; or
(iv)
limits the Port Authority from providing assistance to
vessels or third parties in an actual or perceived emergency.
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4. Precinct Closure |
4.1 Closure Decision
(a) The
State:
(i)
subject to paragraph (b), may make a Closure Decision in
respect of the LNG Precinct at any time after the Commencement Date;
(ii)
subject to paragraph (b), must consider whether a Closure
Decision should be made at the date that is 50 years following the
Commencement Date and notify the Native Title Party as to whether or not a
Closure Decision will be made; and
(iii)
must make a Closure Decision in respect of the LNG
Precinct prior to or on the date that is 100 years from the Commencement Date,
unless the parties to this Agreement otherwise agree.
(b) The
State must not make a Closure Decision under paragraphs (a)(i) or (a)(ii)
during the establishment and operation of a Proponent Project.
4.2 Notification of Closure Decision
If the State makes a Closure Decision under clause
4.1, the State must promptly notify the Native Title Party to that effect and
the End of Precinct Life will take effect on the date set out in the notice.
4.3 Closure of Precinct where no Proponent
(a) If,
at any time following registration of the Taking Orders under the
Land Administration Act 1997 (WA):
(i)
for a continuous period of 10 years, there is no interest
in land within the LNG Precinct held by a Proponent;
(ii)
there has been no exercise of rights under any interest
in land within the LNG Precinct held by a Proponent within 10 years of the
creation of the interest;
(iii)
for a continuous period of 10 years, there is no legally
enforceable right between the State and a potential Proponent for the Grant of
an interest within the LNG Precinct to that Proponent for the purpose of
conducting a Proponent Project; or
(iv)
there has been no exercise of a legally enforceable right
between the State and a potential Proponent for the Grant of an interest
within the LNG Precinct to that Proponent for the purpose of conducting a
Proponent Project within 5 years of the creation of the right,
and provided that if
the circumstance in paragraph (iv) is being relied upon, at least 10 years
have lapsed since the registration of the Taking Orders, the Native Title
Party may give notice requiring the State, acting reasonably, to:
(v)
make a Closure Decision under clause 4.1(a)(i); or
(vi)
make a decision that in the State's opinion a legally
enforceable right between the State and a potential Proponent for the Grant of
an interest within the LNG Precinct to that Proponent for the purpose of
conducting a Proponent Project is likely to be entered into in the foreseeable
future (an Extension Decision ),
and the State will
give the Native Title Party notice of the decision contemplated by paragraphs
(v) or (vi) as soon as reasonably practicable thereafter.
(b) If
the State gives notice of an Extension Decision and a legally enforceable
right between the State and a potential Proponent for the Grant of an interest
within the LNG Precinct to that Proponent for the purpose of conducting a
Proponent Project is not entered into within 2 years of the notice of the
Extension Decision, the Native Title Party may again give notice requiring the
State, acting reasonably, to:
(i)
make a Closure Decision under clause 4.1(a)(i); or
(ii)
make a further Extension Decision.
(c) If
the State has made 3 consecutive Extension Decisions under paragraphs (a)(vi)
and (b), and the Native Title Party again gives notice to the State in
accordance with paragraph (b), then the State must make a Closure Decision
under clause 4.1(a)(i).
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5. Port at End of Precinct Life |
5.1 Port to continue operation at discretion of
the State
(a)
Notwithstanding clause 3, and notwithstanding that a Closure Decision may have
been made under clause 4, the State may, in its absolute discretion but
following consultation with the Native Title Party, determine that the Port
will continue to operate after the End of Precinct Life as a port under, and
for any purpose permitted under, the Port Authorities Act 1999 (WA).
(b) As
soon as practicable following the State making a Closure Decision, the State
will notify the Native Title Party as to whether the Port will continue to
operate beyond the End of Precinct Life and the manner of operation, including
the capacity, permitted use and purpose of the Port.
(c) The
Native Title Party or any member of the Native Title Claim Group may make any
representation (including an action, objection or submission) in relation to
any approval for the continued operation, capacity, permitted use or purpose
of the Port.
5.2 Remediation and Grant if Port operation
continues
(a) If
the State gives notice under clause 5.1(b) that the Port will operate beyond
the End of Precinct Life, then the State will not be obliged to carry out
Remediation and Rehabilitation Works for the Port Land pursuant to clause 6
until such time as specified in a notice given by the State to the Native
Title Party that the Port will cease operation.
(b)
Subject to paragraph (d), the State will Grant the Port Land to the Native
Title Party in accordance with clause 7 at the same time as the Grant of the
Precinct Land occurs, notwithstanding that the Port Land has not been subject
to Remediation and Rehabilitation Works in accordance with clause 6.
(c)
Unless the State and the Native Title Party otherwise agree, the State will
retain all liability for Remediation and Rehabilitation of the Port Land as
contemplated by this Agreement.
(d) If
the State has given notice under clause 5.1(b) that the Port will continue to
operate as a port following the End of Precinct Life, the obligation of the
State in relation to the Grant of Port Land will be conditional upon the
Native Title Party and the State entering into an agreement to lease the Port
Land to the State (or to any government or governmental, semi governmental or
administrative body, department, commission or authority, any government
Minister, agency or instrumentality, any port authority or entity nominated by
the State) (the Lessee ) to allow for the continued operation of the Port (
Lease ). The terms of the Lease will be agreed between the State, Lessee and
the Native Title Party, including on the following conditions:
(i)
the duration of the Lease, and the inclusion of any
options to extend, will be fixed at the State's sole discretion;
(ii)
the Lessee will have the exclusive possession of the Port
Land (subject to any ongoing access rights that the Port Authority may have
Granted the Native Title Party);
(iii)
the form of title created to the Port Land must be
consistent with the purpose of operating the Port;
(iv)
the rental will be on commercial terms;
(v)
a requirement that the State will carry out Remediation
and Rehabilitation Works for the Port Land in a manner consistent with clause
6 once the Lease expires; and
(vi)
policies and procedures to achieve increased and
incremental Native Title Party involvement in the management and operations of
the Port.
5.3 Dispute in relation to terms of Port Lease
If the State, Lessee and the Native Title Party
fail to agree the terms of the Lease under 5.2(d) within 12 months of the date
of notification under clause 5.1(b), then in relation to any dispute or
difference or claim as to the terms of the Lease (other than the terms set out
in clause 5.2(d)(i) and the terms specifying the capacity, permitted use and
purpose of the Port), the provisions of clause 16.2 will apply.
5.4 Remediation and Grant if Port ceases operation
If the State gives:
(a) the
notice under clause 5.1(b) that the Port will not operate beyond the End of
Precinct Life; or
(b) the
notice referred to in clause 5.2(a) that the Port will cease operation,
then, subject to any agreement contemplated under
clause 5.2(c), the State must carry out Remediation and Rehabilitation Works
for the Port Land in accordance with its obligations under clause 6 and Grant
the Port Land to the Native Title Party in accordance with clause 7.
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6. Remediation of Precinct Land and Facilities |
6.1 State to remediate Precinct Land and
Facilities following End of Precinct Life
(a)
Subject to:
(i)
clause 5 and this clause 6; and
(ii)
any agreement between the parties under which it is
agreed that any Facilities will be transferred to the Native Title Party,
the State will cause
the Remediation and Rehabilitation Works to be carried out as soon as
reasonably practicable following End of Precinct Life in accordance with this
clause 6.
(b) The
Native Title Party will have no liability under this Agreement for Remediation
and Rehabilitation Works, unless the State and the Native Title Party
otherwise agree.
6.2 LNG Precinct Baseline Report
(a)
Unless prepared earlier, within six months of the Commencement Date, the State
will prepare a report which identifies the current uses, any existing
Facilities, the environmental condition and the presence of any known or
suspected Contamination on the LNG Precinct (including for the avoidance of
doubt the Industrial Precinct, Third Party Contractors' Site, Workers'
Accommodation Site and Port Land) ( LNG Precinct Baseline Report ).
(b) The
aspects of the LNG Precinct Baseline Report relating to known or suspected
Contamination will be reviewed by a contaminated sites auditor accredited
under the CS Act.
(c) The
LNG Precinct Baseline Report will be used to inform the extent of Remediation
and Rehabilitation Works required at the End of Precinct Life.
(d) As
soon as practicable after preparing the LNG Precinct Baseline Report under
paragraph (a), the State will provide the Native Title Party with a copy of
the LNG Precinct Baseline Report. The Native Title Party may provide comments
on the LNG Precinct Baseline Report within 3 months of the State providing the
Report.
(e) The
State, in consultation with the Native Title Party, will prepare and publish a
final LNG Precinct Baseline Report which:
(i)
takes into account any comments received from the Native
Title Party under paragraph (d); and
(ii)
in the State's discretion will include the Native Title
Party’s comments,
within 3 months of
receiving comments from the Native Title Party on the Report under paragraph
(d).
6.3 Remediation and Rehabilitation Works
management plan
As soon as practicable following the making of a
Closure Decision, the parties will establish a Remediation and Rehabilitation
Works management plan consistent with the principles outlined in this clause
6.
6.4 Carrying out of Remediation and Rehabilitation
Works
(a) The
State shall cause to be carried out the Remediation and Rehabilitation Works
in accordance with the management plan developed pursuant to clause 6.3 and
the remainder of this clause 6.4.
(b) The
Remediation and Rehabilitation Works must be designed to remediate and
rehabilitate the LNG Precinct to a condition:
(i)
consistent with applicable legislation, policy and
relevant standards (including those relating to Contamination and
environmental rehabilitation) at the time the Remediation and Rehabilitation
Works are to be carried out;
(ii)
having regard to the condition of the LNG Precinct as
determined in the LNG Precinct Baseline Report; and
(iii)
having regard to the use made of the LNG Precinct prior
to the commencement of the Remediation and Rehabilitation Works.
(c)
Without affecting its obligation under paragraph (a) or elsewhere in this
Agreement, the State may subcontract or delegate to a Proponent (including by
an obligation imposed on a Proponent under the Project Rights) or to third
parties at its absolute discretion to carry out any of the Remediation and
Rehabilitation Works.
(d) For
the avoidance of doubt, the subcontracting or delegation by the State under
paragraph (c) does not, as between the State and the Native Title Party,
relieve the State from its obligations under this Agreement to carry out the
Remediation and Rehabilitation Works.
(e) Once
the State considers the Remediation and Rehabilitation Works are complete, the
State will procure the preparation of a report which sets out whether the
Remediation and Rehabilitation Works have been carried out and the objectives
in paragraph (b) of this clause have been met ( Environmental Status Report ).
The report must be prepared by a suitably qualified expert.
(f) As
soon as practicable after completing the Environmental Status Report, the
Native Title Party is to be given a copy of the Environmental Status Report.
The Native Title Party may provide comments on the Environmental Status Report
within 6 months of the Native Title Party receiving the Report. The State in
its discretion will include the Native Title Party’s comments in the
Environmental Status Report prior to the submission (if any) of the
Environmental Status Report to any regulatory body.
(g) The
State must consider the Native Title Party's comments on the Environmental
Status Report, and:
(i)
take such action as it considers appropriate (acting
reasonably) to address the matters raised in the comments; and
(ii)
give the Native Title Party a revised copy of the
Environmental Status Report that sets out the State's response to the Native
Title Party's comments and action taken (if any).
6.5 Completion of Remediation and Rehabilitation
Works
The Remediation and Rehabilitation Works will be
deemed to have been completed when one of the following takes place:
(a) the
State has provided an Environmental Status Report to the Native Title Party
and the Native Title Party has either not given any comments under clause
6.4(f) within the period required or has notified the State that it agrees
that the Remediation and Rehabilitation Works have been completed; or
(b) an
Expert appointed under clause 16.2 so determines,
( Completion of Remediation ) .
6.6 Dispute in relation to Remediation and
Rehabilitation Works
If there is a dispute or difference or claim as to
whether the Remediation and Rehabilitation Works have been completed, clause
16.2 will apply to the resolution of that dispute.
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7. Grant of Precinct Land |
7.1 Grant of land following closure of the LNG
Precinct
(a) The
obligations on the State in paragraphs (b) and (c) are conditional upon, and
will not take effect in accordance with their terms until, each of the Taking
Orders has been registered under the Land Administration Act 1997 (WA).
(b)
Subject to paragraph (a), the State will Grant to the Native Title Party the
land required for the Industrial Precinct, Third Party Contractors' Site and
Workers’ Accommodation Site ( Precinct Land ) following the End of
Precinct Life and in accordance with the procedure set out in this clause 7.
(c)
Subject to paragraph (a) and clauses 5 and 6, the State will Grant to the
Native Title Party the Port Land following the End of Precinct Life and in
accordance with the procedure set out in this clause 7.
7.2 State and Native Title Party to determine form
of title
(a) As
soon as is reasonably practicable following the End of Precinct Life, the
State will consult with the Native Title Party as to the Native Title
Party’s desired use of the Precinct Land and Port Land and the
appropriate title or interest in the Precinct Land and Port Land to be Granted
in accordance with clause 7.3.
(b) If,
by a date 12 months after Completion of Remediation, the State and Native
Title Party have not agreed on the appropriate form of title or interest in
the Precinct Land and Port Land to be Granted to the Native Title Party the
State will, as soon as is reasonably practicable after that date, Grant
unconditional freehold title to the Precinct Land and Port Land in accordance
with clause 7.3.
7.3 Administrative Body to hold Grant Land
Unless the Native Title Party nominates an
alternative body and the State agrees to that nomination, the Precinct Land
and Port Land must be registered in the name of the Administrative Body who
will hold the land on trust for the benefit of the Native Title Party.
7.4 State not liable
The State is not liable for any Loss arising out
of or connected with the Grant of any interest in the Precinct Land and Port
Land to any person on the direction or advice of the Native Title Party.
7.5 Costs arising in relation to Grant
(a) The
State will pay for the following establishment costs arising out of the Grant
of the Precinct Land and Port Land:
(i)
creation of title to the Precinct Land and Port Land and
transfer of the title to the Administrative Body (including survey costs); and
(ii)
registration fees at the Western Australian Land
Information Authority (Landgate).
(b) For
the avoidance of doubt, the State is not liable to pay for:
(i)
establishment costs not referred to in paragraph (a),
including the provision of services to the Precinct Land and Port Land
(including any which are a usual pre-condition to the creation of title) such
as road upgrades, service connections and headworks charges, unless the State
in its sole discretion agrees to pay for these costs; and
(ii)
all holding costs including local government rates and
other taxes that are normally borne by the land owner.
(c) The
Native Title Party agrees that the State will not pay the following costs
arising out of the Grant of the Precinct Land and Port Land;
(i)
all costs referred to in paragraph (b); and
(ii)
any costs incurred by the Native Title Party under clause
7.1 or 7.2, other than those costs identified in paragraph (a).
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8. Limitation of further LNG Development on the
Kimberley Coastline |
(a) The
State agrees not to:
(i)
operate, authorise or permit the operation of; or
(ii)
Grant any right, title, interest, approval or permission
which would have the effect of authorising,
a Gas Processing
Facility located on the Kimberley Coastline but outside the LNG Precinct.
(b) In
paragraph (a), Gas Processing Facility means a facility for the liquefaction
of Petroleum produced from any area seaward of the low water mark of the
mainland coast of Western Australia, but does not include:
(i)
any other facility which uses or refines Petroleum; or
(ii)
storage or transportation facilities.
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9. Assignment |
(a) The
Native Title Party may not assign its rights and obligations under this
Agreement unless the assignment is to a body ( Permitted Assignee ):
(i)
as provided under paragraph (b); or
(ii)
where the Native Title Party has obtained the consent of
the State to the assignment, which consent shall not be unreasonably withheld.
(b)
Within 2 months of:
(i)
a determination by the Federal Court under sections 56
and 57 of the Native Title Act of the Native Title Claim; and
(ii)
the incorporation of a prescribed body corporate for the
purposes of the Native Title Act which is or will be authorised to act as
agent for the Native Title Party,
the Native Title Party
will assign its rights and obligations under this Agreement to the body which
is the prescribed body corporate identified in that determination or
incorporated as a consequence of the determination.
(c) If
the Native Title Party wishes to assign its rights and obligations, it must
procure the Permitted Assignee to execute a deed by which the Native Title
Party assigns and the Permitted Assignee assumes all of the Native Title
Party's rights and obligations under this Agreement and by which the parties
agree to vary this Agreement.
(d) From
the date of execution of the deed referred to in paragraph (c) the Native
Title Party is released from further performance of this Agreement but remains
liable for all obligations which accrued prior to the date of execution of the
deed.
(e) The
Minister shall cause the deed referred to in paragraph (c) to be tabled in
both Houses of Parliament.
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10. Variation |
10.1 Parties may vary Agreement
The parties to this Agreement may from time to
time by agreement in writing add to, substitute for, cancel or vary all or any
of the provisions of this Agreement or any other lease, licence, easement or
other title granted under or pursuant to this Agreement for the purpose of
more efficiently or satisfactorily implementing or facilitating any of the
objects of this Agreement.
10.2 Minister to table variations in Parliament
(a) The
Minister shall cause any agreement made pursuant to clause 10.1 in respect of
any addition, substitution, cancellation or variation of the provisions of
this Agreement to be laid on the Table of each House of Parliament within 12
sitting days next following its execution.
(b)
Either House may, within 12 sitting days of that House after the agreement has
been laid before it, pass a resolution disallowing the agreement, but if after
the last day on which the agreement might have been disallowed neither House
has passed such a resolution the agreement shall have effect from and after
that last day.
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11. Term |
This Agreement terminates on the date when the
last of the State's obligations under clauses 5, 6 and 7 has been fulfilled
and either the State or the Native Title Party serves a notice to that effect.
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12. Power to extend periods |
Notwithstanding any provision of this Agreement
the Minister may at the request of the Native Title Party from time to time
extend or further extend any period or vary or further vary any date referred
to in this Agreement for such period or to such later date as the Minister
thinks fit whether or not the period to be extended has expired or the date to
be varied has passed.
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13. Duties |
(a)
Subject to paragraph (b), the State must pay all duties on and in relation to:
(i)
this Agreement;
(ii)
any instrument, document or transaction to which the
State is a party required by this Agreement; and
(iii)
any instrument or document required under any relevant
Law in connection with any transaction to which the State is a party required
by this Agreement,
even if another party
is primarily liable for the payment of the duty.
(b) The
State will not pay any duties on and in relation to any dutiable transaction:
(i)
to which the State is not a party; and
(ii)
which does not arise out of an obligation of the State
contemplated by this Agreement.
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14. Notices |
14.1 Manner of notice
Any notice required to be given to a party under
this Agreement:
(a) must
be in writing and in English and signed by or on behalf of the sending party;
(b)
addressed to that party in accordance with the details nominated in clause
14.2 below (or any alternative details nominated to the sending party by
Notice); and
(c)
shall either be left at the party's address specified in clause 14.2 or sent
to the party's address or fax number specified in clause 14.2. If it is sent
by mail, it is taken to have been received 7 days after it is posted. If it is
sent by fax, it is taken to have been received when the sender's facsimile
system generates a message confirming that the notice was transmitted in its
entirety to the facsimile number of the recipient.
14.2 Parties' notice details
The parties' addresses and fax numbers for the
receipt of notices are, unless otherwise advised in writing:
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(i)
to the State: |
Minister for Lands Level 10 Dumas House 2 Havelock St West Perth WA 6005 Fax Number: (08) 9226 4050 |
|
(ii)
to the Native Title Party: |
C/- Chief Executive Officer Kimberley Land Council PO Box 2145 Broome WA 6725 Fax Number: (08) 9193 6279 |
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15. Applicable law |
This Agreement is to be interpreted according to
the law for the time being in force in Western Australia.
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16. Dispute Resolution |
16.1 General dispute resolution
(a)
Except as provided in this clause, any dispute or difference between the State
and the Native Title Party arising out of this Agreement, the construction of
this Agreement or as to the rights duties or liabilities of either of them
under this Agreement or as to any matter to be agreed upon between them under
this Agreement must, in default of agreement between them and in the absence
of any provision in this Agreement to the contrary, be referred to and settled
by arbitration under the provisions of the Commercial Arbitration Act 1985
(WA) and each party may be represented before the arbitrator by a duly
qualified legal practitioner or other representative.
(b)
Except where otherwise provided in this Agreement, the provisions of this
clause will not apply to any case where the State, the Minister or any other
Minister in the Government of the State is by this Agreement given either
expressly or impliedly a discretionary power.
(c) The
arbitrator of any submission to arbitration under this Agreement is hereby
empowered upon the application of either the State or the Native Title Party,
to grant in the name of the Minister any interim extension of any period or
variation of any date referred to herein which having regard to the
circumstances may reasonably be required in order to preserve the rights of
that party or of the parties to the arbitration and an award may in the name
of the Minister grant any further extension or variation for that purpose.
16.2 Dispute as to terms of Port Lease or
Remediation and Rehabilitation Works
(a) This
clause 16.2 applies to:
(i)
a dispute between the State and the Native Title Party as
contemplated in clause 5.3; or
(ii)
a dispute between the State and the Native Title Party as
contemplated in clause 6.6,
(each a Dispute ) and
not otherwise.
(b) If
there is a Dispute, either party (in this clause the Referring Party ) may
give written notice to the other party of the Dispute, specifying in
reasonable detail the nature of the Dispute, and the matters on which the
parties are unable to agree at the date of the notice of dispute.
(c) As
soon as possible after the giving of a notice of dispute representatives of
the Native Title Party and of the State (each such representative having full
authority from their respective principals to resolve the Dispute) shall meet
and attempt to resolve the Dispute in good faith.
(d) If
the Dispute is not resolved within 28 days of the giving of a notice of
dispute, then the Dispute must be referred to expert determination in
accordance with the following provisions:
(i)
the Referring Party must refer the Dispute to the
Australian Commercial Disputes Centre Limited ( ACDC ) by requesting in
writing that the ACDC administer the resolution of the Dispute in accordance
with this clause and the ACDC Expert Determination Guidelines and within 14
days of receiving the request select and notify the parties of the members of
a panel of three independent persons who would be suitably qualified to
determine the Dispute (the Panel ), together with the terms and conditions on
which those persons would be prepared to be engaged. The Referring Party must
send to the other party a copy of that written request on the same day it is
sent it to the ACDC;
(ii)
within 7 days after the receipt of the details of the
Panel from the ACDC, the parties must agree on an expert selected from the
Panel to determine the Dispute (the Expert ). If the parties fail to agree on
the expert within 7 days, either party may request the Chief Executive Officer
of the ACDC (or his or her delegate) to nominate a suitably qualified expert
from the Panel. The expert agreed or nominated under this paragraph shall be
appointed by the parties as the Expert on the terms and conditions notified by
the ACDC in accordance with paragraph (i) in the absence of any other
agreement between the parties and the Expert on the Expert's terms and
conditions of engagement;
(iii)
if the ACDC is no longer operating at the time of the
Dispute, the parties must in good faith select a body that has as one of its
objects the promotion of alternative dispute resolution, to perform the
functions entrusted to the ACDC in paragraphs (i) and (ii);
(iv)
neither party may challenge or dispute the nomination or
appointment of the Expert under this clause except in the case where there is
a reasonable apprehension of, or actual, conflict of interest or apprehended
bias that can be readily identified to the satisfaction of either the Chief
Executive Officer of the ACDC (or his or her delegate) or the Expert both
acting reasonably;
(v)
the parties must provide the Expert with a copy of this
Agreement and the notice of dispute;
(vi)
each party may, within 21 days of the appointment of the
Expert, make one written submission to the Expert as to how the Expert should
resolve the Dispute;
(vii)
the Expert must by notice to the parties and within 42
days of their appointment determine the Dispute, having regard to their own
expertise and the submissions of the parties;
(viii)
upon submission by either party, the Expert may amend the
determination or finding to correct:
(A) a clerical mistake;
(B) an error from an accidental slip or
omission; or
(C) a material miscalculation of figures or
a material mistake in the description of any person, thing or matter;
(ix)
the determination by the Expert under this clause is
final and binding on the parties in the absence of manifest error and neither
party may commence proceedings in a court of competent jurisdiction unless
that party has complied with this clause and any such proceeding must be
commenced within 6 months of the Expert's determination. The determination of
the Expert shall be treated as final and binding on the parties prior to the
resolution of those proceedings but in any case subject to those proceedings;
(x)
the costs of the Expert shall be borne equally by each of
the parties to the Dispute;
(xi)
the Expert must act as an independent expert and not an
arbitrator; and
(xii)
the dispute resolution proceedings under this clause are
not arbitration proceedings under the Commercial Arbitration Act 1985 (WA) or
otherwise.
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17. Warranty |
The KLC on its own behalf and for and on behalf of
the Native Title Party represents and warrants that:
(a) it
has been validly and lawfully instructed by the Native Title Party to enter
into this Agreement; and
(b) all
necessary authorisations have been obtained:
(i)
to enable the Native Title Party to enter into this
Agreement; and
(ii)
to enable the KLC to enter into this Agreement.
Executed as an agreement in the State of Western Australia:
|
Signed by The Honourable Brendon John Grylls MLA for and on behalf of the
State of Western Australia in the presence of: | | | |
|
[Signature] | |
[Signature] | |
|
Witness Signature | |
Signature | |
| | | | |
|
Gary Hamley | | | |
|
Print Name | | | |
|
Executed in accordance with section 99-5 of the Corporations (Aboriginal and
Torres Strait Islander) Act 2006 (Cth) by the Kimberley Land Council for and
on behalf of the Native Title Party (in every respect other than clause 17 in
which respect it is signing both as agent for the Native Title Party and in
its own capacity): | | | |
|
[Signature] | |
[Signature] | |
|
Director | |
Director | |
| | | | |
|
Tom Birch | |
Frank Davey | |
|
Print Name | |
Print Name | |
| | | | |
|
[Signature] | |
[Signature] | |
|
Witness | |
Witness | |
| | | | |
|
Cameron Syme | |
Cameron Syme | |
|
Print Name | |
Print Name | |
Annexure 1 – Map of the Kimberley Coastline
Annexure 2 – LNG Precinct Plan
