Western Australian Current Acts Western Australian Current Acts[s. 2]
[Heading inserted: No. 26 of 1987 s. 7; amended:
No. 19 of 2010 s. 4.]
THIS AGREEMENT is made the 28th day of May 1987 BETWEEN THE HONOURABLE BRIAN
THOMAS BURKE, M.L.A., Premier of the State of Western Australia, acting for
and on behalf of the said State and its instrumentalities from time to time
(hereinafter called “the State”) of the one part and MOUNT BRUCE
MINING PTY. LIMITED a company incorporated in Western Australia and having its
registered office at 191 St. George’s Terrace, Perth (hereinafter called
“the Company” which expression shall include the successors and
assigns of the Company) of the other part.
WHEREAS:
(a) the State and the Company are the parties to
the agreement dated the 10 th day of March, 1972 which agreement was ratified
by and is scheduled to the Iron Ore (Mount Bruce) Agreement Act 1972 , as
varied by the agreement dated the 5th day of October, 1976 ratified by the
Iron Ore (Mount Bruce) Agreement Act Amendment Act 1976 (which agreement as so
varied is referred to in this Agreement as “the Principal
Agreement”);
(b) the obligations of the Company under clauses 8
and 10 of the Principal Agreement have been satisfied pursuant to the
provisions of paragraph (a) of clause 10A of the Principal Agreement by the
construction by Hamersley Iron Pty. Limited of the plant for the production of
iron ore concentrates referred to in that clause;
(c) the Principal Agreement contains other
provisions with regard to the secondary and further processing of iron ore
intended, where feasible, to further the economic development of the State;
and
(d) the parties, consistent with the above
intention but in the light of changed world circumstances with respect to the
secondary and further processing of iron ore, have agreed to vary certain of
the provisions of the Principal Agreement in relation thereto and to broaden
the scope for substitution of alternative investments.
NOW THIS AGREEMENT WITNESSETH —
1. Subject to the context the words and
expressions used in this Agreement have the same meanings respectively as they
have in and for the purpose of the Principal Agreement.
2. The State shall introduce and sponsor a Bill in
the Parliament of Western Australia to ratify this Agreement and endeavour to
secure its passage as an Act.
3. The subsequent clauses of this Agreement shall
not operate unless and until —
(a) the
Bill to ratify this Agreement referred to in clause 2 hereof; and
(b) a
Bill to ratify the Agreement referred to in the Schedule hereto
are passed as Acts before the 30th day of June,
1987 or such later date if any as the parties may agree.
4. The Principal Agreement is hereby varied as
follows —
(1) Clause 1 —
(a) by
inserting, before the definition of “approve”, the following
definition —
“ “alternative investments”
means investments in the said State which are within the ability and
competence of the Company or of corporations which are related to the Company
for the purposes of the Companies (Western Australia) Code and which are
approved by the Minister from time to time as alternative investments for the
purpose of this Agreement (which approval shall not be unreasonably withheld
in the case of an investment which would add value or facilitate the addition
of value, beyond mining, to the mineral resources of the said State);”;
(b) in
the definition of “associated company”, by deleting “section
6 of the Companies Act 1961 ” and substituting the following —
“section 7 of the Companies (Western
Australia) Code ”;
(c) by
deleting the definitions of “Hamersley Amending Agreement” and
“metallised agglomerate production commencement date”.
(2) Clause 7 subclause
(1) —
by deleting in the
proviso “payable by them” and substituting the following —
“payable by
it”.
(3) By deleting
clauses 8, 10 and 10A.
(4) Clause 21 —
by deleting
“(other than any default under any of clauses 8, 10, 32, 33, 34 and 35
hereof)” and substituting the following —
“(other than any
default under clause 41A or clause 41B hereof)”
(5) By deleting
clauses 31 to 41 inclusive.
(6) By inserting
before clause 42 the following clauses —
“41A. (1)
(a) The Company
shall subject to sub-clause (5) of this clause and to clause 41B of this
Agreement on or before the 31st day of December, 1991 submit to the Minister
detailed proposals for the establishment within the said State of plant for
the production of steel containing provision that such plant will by the 31st
day of December, 1994 have the capacity to produce not less than five hundred
thousand (500,000) tons of steel annually and will by the 31st day of
December, 1999 have the capacity to produce not less than one million
(1,000,000) tons of steel annually.
(b) If the Company reasonably
requires an additional period for the purpose of submitting adequate proposals
under this sub-clause or making a contract for the sale of steel products then
the company may apply to the Minister before the 31st day of December, 1991
for an extension of time beyond that date in order to complete the preparation
of its proposals and the Minister will grant such extension of time (being not
less than twelve months) as he considers warranted in the circumstances.
(2)
The provisions of clause 51 hereof shall not apply to sub-clause
(1) of this clause.
(3)
The Minister shall within two (2) months of receipt of such
proposals give to the Company notice of his approval of those proposals (which
approval shall not be unreasonably withheld) or of any objections raised or
alterations desired thereto and in the latter case shall afford the Company an
opportunity to consult with and to submit new proposals to the Minister. If
within two (2) months of receipt of such notice agreement is not reached as to
the proposals, the Company may within a further period of two (2) months elect
by notice to the State to refer to arbitration as provided in clause 53 of
this Agreement any dispute as to the reasonableness of the Minister’s
decision. If by the award on arbitration the question is decided in favour of
the Company the Minister shall be deemed to have approved the proposals of the
Company.
(4)
The Company shall (except to the extent otherwise agreed with
the Minister) before the end of the respective times specified in sub-clause
(1) of this clause complete the construction of plant in accordance with the
Company’s proposals as finally approved or determined under this clause.
(5)
(a) The Company may at
any time before the time for submission of proposals pursuant to sub-clause
(1) of this clause apply to the Minister for approval that the carrying out by
the company of alternative investments be accepted by the State in lieu of all
or some part of the Company’s obligations in respect of the
establishment of plant for the production of steel pursuant to this clause.
(b) Where the Minister
approves a request under paragraph (a) of this sub-clause the Company shall
implement the investments in accordance with that approval and upon completion
thereof, or earlier with the agreement of the Minister, the provisions of
sub-clause (1) of this clause or that part of those provisions which pursuant
to the said approval are to be satisfied by those investments shall cease to
apply.
41B. (1)
If the Company at any time considers that the establishment of
plant for the production of steel or, as the case may be, the expansion of the
productive capacity of such plant as required to proposed or as required
pursuant to any proposals finally approved or determined pursuant to clause
41A hereof (hereinafter called “the steel operation”) is for any
technical, economic or other reason not feasible, whether in whole or in part,
then the Company may submit to the Minister the reasons why it considers the
steel operation is not feasible, together with supporting data and such other
relevant information as the Minister may require.
(2)
Within two (2) months after receipt of a submission from the
Company under sub-clause (1) of this Clause the Minister shall notify the
Company whether or not he agrees with its submission.
(3)
(a) If the Minister
notifies the company that he does not agree with its submission than at the
request of the Company made within two (2) months after receipt by the Company
of the notification from the Minister, the Minister will refer the matter to
arbitration pursuant to clause 53 hereof to decide whether or not the steel
operation is feasible.
(b) If the Company does not
request a reference to arbitration under paragraph (a) of this sub-clause or
if on a reference to arbitration it is decided that the steel operation is
feasible the Company shall comply with its obligations under clause 41A hereof
provided that the period from the time that the Company made its submission
under sub-clause (1) of this clause to the time when the Minister notified the
Company that he did not agree with its submission or the time when it was
decided by arbitration that the steel operation was feasible as the case may
be shall be added to the respective times by which the Company is required to
comply with those obligations.
(4)
If the Minister notifies the Company that he agrees with its
submission or if on reference to arbitration it is decided that all or part of
the steel operation is not feasible, then —
(a) The Company shall not
have any obligation or further obligation to submit proposals in respect of so
much of the steel operation as has been found not to be feasible or to carry
out the relevant part of any proposals in respect thereof that may have been
finally approved or determined pursuant to clause 41A hereof; and
(b) the Company shall
thenceforth be obliged to identify and investigate potential alternative
investments which would (either alone or in the aggregate with other
alternative investments) represent economic development within the said State
approximately equivalent to the steel operation (or relevant part thereof).
(5)
In carrying out its obligations under sub-clause (4)(b) of this
clause the Company shall take account of and investigate, to the extent
reasonable under the circumstances having regard, inter alia, to the expertise
of the Company and related corporations, any potential alternative investments
which are prim facia feasible and which are formally referred to the Company
by the Minister from time to time.
(6)
The Company shall submit to the Minister in detail its programme
for the identification and investigation of potential alternative investments
pursuant to paragraph (b) of sub-clause (4) and sub-clause (5) of this clause
not later than two (2) months after receiving the notice from the Minister or
the decision on arbitration as the case may be referred to in sub-clause (4)
of this clause which programme shall specify the potential alternative
investments it is investigating and any potential alternative investments it
intends to investigate and shall set forth the Company’s proposed
timetable for its investigations of those investments and the feasibility
thereof.
(7)
(a) Within two (2)
months after receipt of a programme from the Company under sub-clause (6) of
this clause the Minister shall notify the Company of any investments referred
to in the programme which he would be prepared to approve as alternative
investments and forthwith after such a notice the Company and the Minister
shall meet to agree upon a programme (including timing) for studies by the
Company into the feasibility of those investments.
(b) The Company shall duly
investigate the feasibility of any potential alternative investments referred
to in paragraph (a) of this sub-clause and report to the Minister thereon in
accordance with the programme agreed pursuant thereto or determined by
arbitration hereunder.
(c) Where any such potential
alternative investment is accepted by the Minister as an alternative
investment and agreed by the Company and the Minister or found on arbitration
to be feasible the Company and the Minister shall forthwith meet to agree on a
date by which the Company shall submit detailed proposals for that alternative
investment.
(d) The Company shall report
to the Minister on its progress in performing its obligations under paragraphs
(b) and (c) of this sub-clause at such intervals as the Minister may require
but not more frequently, in respect of any such matter, than once in every
three (3) months for summary reports and once in every twelve (12) months for
detailed written reports.
(8)
(a) The Company shall
submit its detailed proposals for any alternative investment referred to in
sub-clause (7)(c) of this clause not later than the date agreed pursuant to
that sub-clause.
(b) The provisions of
sub-clause (3) of clause 41A hereof shall apply mutatis mutandis to the
approval or determination of proposals made under this sub-clause. The Company
shall implement proposals so approved or determined in accordance with the
terms thereof.
(9)
(a) The obligations of
the Company under sub-clause 4(b) of this clause shall continue until the
parties agree or it is found on arbitration that alternative investments
representing economic development within the said State approximately
equivalent to the steel operation (or relevant part thereof) as provided for
in that sub-clause have become the subject of proposals approved or determined
in accordance with sub-clause (8) of this clause.
(b) So long as the Company
has continuing obligations under sub-clause (4)(b) of this clause the Company
shall as and when it identified any potential alternative investment forthwith
submit to the Minister a programme for the investigation of that investment
and the feasibility thereof by the Company including its proposed timetable
for the investigations.
(c) The provisions of
sub-clauses (7) and (8) of this clause shall mutatis mutandis apply to a
programme submitted under paragraph (b) of this sub-clause as if it were a
programme under sub-clause (6) of this clause.
(10) The Company may
invoke the foregoing provisions of this clause at any time and from time to
time in respect of all or any of its obligations arising under or pursuant to
clause 41A hereof and the references to the steel operation in those
provisions shall as the case may require be read and construed as referring to
the one or more of those obligations in respect of which those provisions are
invoked by the Company.”.
(7) Clause 51 —
by deleting
“inability (common in the iron ore concentrates export industry) to
profitably sell iron ore concentrates or inability to profitably sell
metallised agglomerates” and substituting the following —
“inability to
profitably sell steel or the product of any production facility required to be
established pursuant to this Agreement”.
(8) Clause 53 —
(a)
by inserting after the clause designation 53 the
sub-clause designation (1);
(b)
by deleting “the arbitration of two
arbitrators one to be appointed by each party, the arbitrators to appoint
their umpire before proceeding in the reference and every such arbitration
shall be conducted in accordance with the provisions of the Arbitration Act
1895 PROVIDED THAT” and substituting the following —
“and settled by arbitration under the provisions of the
Commercial Arbitration Act 1985 Provided That —
(a) notwithstanding sections
6 and 7 of that Act the matter, unless the parties agree on the appointment of
a specific single arbitrator, shall be referred to and settled by arbitration
under that Act by a tribunal of three (3) arbitrators of whom the State shall
appoint one, the Company shall appoint one and those two arbitrators shall
appoint the third; and
(b) notwithstanding section
20(1) of that Act each party may be represented by a duly qualified legal
practitioner or other representative
and PROVIDED FURTHER THAT”;
(c)
by inserting the following sub-clauses —
“(2) The arbitrator or arbitrators as
the case may be determining any submission to arbitration under this Agreement
shall have power upon application by either party to grant any interim
extension of time or date referred to herein which having regard to the
circumstances may reasonably be required in order to preserve the rights of
either or both of the parties hereunder and an award in favour of the Company
may in the name of the Minister grant any further extension of time for that
purpose.
(3) In deciding issues of economic
feasibility the arbitrator or arbitrators as the case may be shall have regard
to any submissions made by the Minister and by the Company and also ( inter
alia ) to the amount of capital required for the investment, the availability
of that capital at that time on reasonable terms and conditions, the
likelihood of the investment being able to generate sufficient cash flow for a
sufficient period to justify the same having regard to the amount and rate of
return of total capital that would be involved in or in connection with the
investment and the weighted average cost of capital to the Company.”.
(9) Clause 54 —
by deleting “in
writing” and substituting the following —
“or writing”
THE SCHEDULE
The Agreement of even date with this Agreement between THE HONOURABLE BRIAN
THOMAS BURKE, M.L.A., Premier of the State of Western Australia, acting for an
on behalf of the said State and its instrumentalities and HAMERSLEY IRON PTY.
LIMITED.
IN WITNESS WHEREOF this Agreement has been executed by or on behalf of the
parties hereto on the date first hereinbefore mentioned.
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SIGNED by the said THE HONOURABLE BRIAN THOMAS BURKE, M.L.A. |
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BRIAN BURKE |
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D. PARKER | | |
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THE COMMON SEAL of MOUNT BRUCE MINING |
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[C.S.] |
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Director T. BARLOW Secretary G. B. BABON | | |
[Third Schedule inserted: No. 26 of 1987 s. 7.]
