Western Australian Current Acts Western Australian Current Acts[s. 3]
[Heading inserted: No. 29 of 1994 s. 6; amended:
No. 19 of 2010 s. 4.]
THIS AGREEMENT is made the 31st day of March 1994
B E T W E E N
THE HONOURABLE RICHARD FAIRFAX COURT B.Com., 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 BHP IRON PTY. LTD. ACN 008 852 784
(formerly called CGF Iron Holdings Pty. Ltd.) a company incorporated in the
State of Western Australia and having its registered office at Mt Newman
House, 200 St George’s Terrace, Perth, BHP AUSTRALIA COAL PTY. LTD. ACN
010 595 721 (formerly called BHP-UTAH Coal Limited) a company incorporated in
the State of the State of Queensland and having its registered office situate
at 20th Floor, 167 Eagle Street, Brisbane, CI MINERALS AUSTRALIA PTY. LTD.
ACN 009 256 259 a company incorporated in the State of Western Australia and
having its registered office at 22nd Floor, Forrest Centre, 221 St
George’s Terrace, Perth and MITSUI IRON ORE CORPORATION PTY. LTD. ACN
050 157 456 a company incorporated in the State of Western Australia and
having its registered office at 24th Floor, Forrest Centre, 221 St
George’s Terrace, Perth (hereinafter called “the Joint
Venturers”) of the other part.
WHEREAS:
(a) the State and the Joint Venturers (pursuant to
certain assignments) are now the parties to the agreement (as amended from
time to time) approved by the Iron Ore (Mount Goldsworthy) Agreement Act 1964
(hereinafter called “the Principal Agreement”);
(b) the State and the Joint Venturers wish to vary
the Principal Agreement.
NOW THIS AGREEMENT WITNESSES —
1. Unless the context otherwise requires 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 State Parliament of Western Australia to ratify this Agreement and
endeavour to secure its passage as an Act prior to 31 December 1994 or such
later date as may be agreed between the parties hereto.
3. (1) The provisions
of this Agreement other than this Clause and Clauses 1 and 2 shall not come
into operation unless and until —
(a) the
Bill to ratify this Agreement as referred to in Clause 2; and
(b)
Bills to ratify the following agreements of even date herewith, namely:
—
(i)
an agreement between the State of the one part and BHP
Minerals Pty. Ltd. of the other part called the Iron Ore Processing (BHP
Minerals) Agreement;
(ii)
an agreement between the State of the one part and BHP
Minerals Pty. Ltd., Mitsui Iron Ore Corporation Pty. Ltd. and CI Minerals
Australia Pty. Ltd. of the other part to vary the Iron Ore (Marillana Creek)
Agreement; and
(iii)
an agreement between the State of the one part and BHP
Iron Ore (Jimblebar) Pty. Ltd. of the other part to vary the Iron Ore
(McCamey’s Monster) Agreement
are passed as Acts
before 31 December 1994 or such later date if any as the parties hereto may
agree upon.
(2) If before 31
December 1994 or such later agreed date the said Bills have not commenced to
operate as Acts then unless the parties hereto otherwise agree this Agreement
shall then cease and determine and no party hereto shall 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.
(3) On the said Bills
commencing to operate as Acts all the provisions of this Agreement shall
operate and take effect notwithstanding the provisions of any Act or law.
4. The Principal Agreement is hereby varied as
follows —
(1) Clause 10(a)
—
by inserting after
“generate” the following —
“or purchase
their electricity requirements from generating facilities established under
the agreement (as amended from time to time) ratified by the
Pilbara Energy Project Agreement Act 1994 ”.
(2) Clause 12 —
(a) in
the marginal note, by deleting “and Secondary Processing”;
(b) by
deleting subclauses (1), (2) and (3) and substituting the following subclauses
—
“(1) In this
clause —
“aggregate
project cost under the Processing Agreement” means the sum of
$400,000,000 (June 1993 dollars) which is agreed or determined for the
purposes of Clause 27 of the Processing Agreement to have been expended on the
establishment of facilities for further processing or alternative investments
pursuant to that Agreement;
“approved
production limit under this clause” means the production level (if any)
of tonnes of iron ore per annum for transportation from the third mineral
lease consented to by the Minister pursuant to subclauses (3a) or (3b) of this
clause or such higher number of tonnes per annum as may be consented to from
time to time by the Minister pursuant to subclause (8) of this clause and
become the subject of proposals approved or deemed to be approved pursuant to
subclause (9) of this clause;
“BHP”
means BHP Minerals Pty. Ltd. and its successors and assigns who are parties
with the State to the Processing Agreement;
“combined
limit” means the aggregate of —
(i)
any approved production limit under this clause;
(ii)
the approved production limit under clause 11 of the
Marillana Creek Agreement; and
(iii)
any approved production limit under clause 11A of the
McCamey’s Monster Agreement
PROVIDED THAT if any
of the approved production limits referred to in paragraphs (i), (ii) or (iii)
exceeds 15,000,000 tonnes per annum then in calculating the combined limit
such approved production limit shall be treated as being 15,000,000 tonnes per
annum;
“EP Act”
means the Environmental Protection Act 1986 ;
“laws relating
to traditional usage” means laws applicable from time to time in Western
Australia in respect of rights or entitlements to or interests in land or
waters which rights, entitlements or interests are acknowledged, observed or
exercisable by Aboriginal persons (whether communally or individually) in
accordance with Aboriginal traditions, observances, customs or beliefs;
“Marillana Creek
Agreement” means the agreement (as amended from time to time) ratified
by the Iron Ore (Marillana Creek) Agreement Act 1991 ;
“McCamey’s
Monster Agreement” means the agreement (as amended from time to time)
the execution of which was authorized by the Iron Ore (McCamey’s
Monster) Agreement Authorization Act 1972 ;
“Processing
Agreement” means the agreement (as amended from time to time) ratified
by the Iron Ore Processing (BHP Minerals) Agreement Act 1994 ;
“the third
mineral lease” means the mineral lease granted pursuant to subclause (4)
of this clause.
(2) The Joint
Venturers shall in respect of mining area ‘C’ —
(a)
continue their field and office engineering, environmental, market and finance
studies and other matters necessary to enable them to finalise and to submit
to the Minister the detailed proposals referred to in subclause (3c) of this
clause; and
(b) keep
the State fully informed in writing not more frequently than once in every two
years as to the progress and results of their operations under paragraph (a)
of this subclause.
(3) Prior to
submitting any proposal pursuant to subclause (3c) of this clause the Joint
Venturers shall obtain the consent in principle of the Minister to an approved
production limit under this clause. When requesting a consent under this
subclause the Joint Venturers shall furnish to the Minister an outline of
their proposals in respect to production of iron ore from the third mineral
lease (including the matters mentioned in paragraph (a) - (k) of subclause
(3c) of this clause).
(3a) The Minister
shall advise the Joint Venturers within two months of receipt by the Minister
of a request under subclause (3) of this clause whether or not he consents in
principle to the proposed production limit PROVIDED THAT the Minister shall
consent in principle to the proposed production limit —
(a) if
the aggregate project cost under the Processing Agreement has been expended;
or
(b) if
the aggregate project cost under the Processing Agreement has not been
expended and:
(i)
the obligations of BHP under the Processing Agreement
have been and are being properly performed and complied with; and
(ii)
the proposed production limit would not result in the
approved production limit under this clause exceeding 15,000,000 tonnes per
annum or the combined limit exceeding 30,000,000 tonnes per annum.
(3b) If the aggregate
project cost under the Processing Agreement has not been expended and:
(i)
the obligations of BHP under the Processing Agreement
have been and are being properly performed and complied with; and
(ii)
the proposed production limit would result in the
approved production limit under this clause exceeding 15,000,000 tonnes per
annum or the combined limit exceeding 30,000,000 tonnes per annum,
the Minister may
consent in principle to the whole or part of a proposed production limit or
withhold his approval, of the proposed production limit. The Minister shall
give reasons for his decision if he withholds his approval, but his decision
shall not be referable to arbitration under this Agreement or otherwise be the
subject of challenge by the Joint Venturers.
(3c) Subject to and in
accordance with the EP Act, the laws relating to traditional usage and the
provisions of this Agreement, the Joint Venturers shall on or before the 31st
day of December 1999 submit to the Minister to the fullest extent reasonably
practicable their detailed proposals (which proposals shall include plans
where practicable and specifications where reasonably required by the
Minister) with respect to the mining of iron ore for transportation from the
land to be the subject of the third mineral lease up to the approved
production limit under this clause which proposals shall make provision for
the necessary workforce and associated population required to enable the Joint
Venturers to mine and recover iron ore from the third mineral lease and shall
include the location, area, layout, design, quantities, materials and time
programme for the commencement and completion of construction or the provision
(as the case may be) of each of the following matters, namely —
(a) the
mining and recovery of iron ore from the third mineral lease including mining
crushing screening handling transport and storage of iron ore and plant
facilities;
(b)
roads;
(c)
housing and accommodation for the persons engaged in the development and/or
mining of the third mineral lease and associated activities including the
provision of utilities, services and associated facilities;
(d)
water supply;
(e)
power supply;
(f) iron
ore transportation;
(g)
airstrip and other airport facilities and services;
(h) any
other works, services or facilities desired by the Joint Venturers;
(i)
use of local labour professional services manufacturers
suppliers contractors and materials;
(j) any
leases licences or other tenures of land required from the State; and
(k) an
environmental management programme as to measures to be taken, in respect of
the Joint Venturers’ activities at the mining area for rehabilitation
and the protection and management of the environment.
(3d) The proposals
pursuant to subclause (3c) of this clause may with the approval of the
Minister or if so required by him be submitted separately and in any order as
to the matter or matters mentioned in one or more of paragraphs (a) to (k) of
that subclause.
(3e) The proposals
relating to any of the matters mentioned in subclause (3c) of this clause may
with the agreement of the Minister and that of any third parties concerned
instead of providing for the construction of new facilities of the kind
therein mentioned provide for the use by the Joint Venturers upon reasonable
terms and conditions of any existing facilities of such kind.
(3f) Subject to the EP
Act and laws relating to traditional usage in respect of each proposal
pursuant to subclause (3c) the Minister shall —
(a)
approve of the said proposals either wholly or in part without qualification
or reservation; or
(b)
defer consideration of or decision upon the same until such time as the Joint
Venturers submit a further proposal or proposals in respect of some other of
the matters mentioned in subclause (3c) of this clause not covered by the said
proposals; or
(c)
require as a condition precedent to the giving of his approval to the said
proposals that the Joint Venturers make such alteration thereto or comply with
such conditions in respect thereto as he thinks reasonable and in such a case
the Minister shall disclose his reasons for such alterations or conditions
PROVIDED ALWAYS that
where implementation of any proposals hereunder has been approved pursuant to
the EP Act subject to conditions or procedures, any approval or decision of
the Minister under this clause shall if the case so requires incorporate a
requirement that the Joint Venturers make such alterations to the proposals as
may be necessary to make them accord with those conditions or procedures.
(3g) The Minister
shall within two months after receipt of proposals pursuant to subclause (3c)
of this clause or, if applicable, within two months of service on him of an
authority under section 45(7) of the EP Act or satisfaction of the
requirements under laws relating to traditional usage (as the case may be)
give notice to the Joint Venturers of his decision in respect of the
proposals.
(3h) If the decision
of the Minister is as mentioned in either of paragraphs (b) or (c) of
subclause (3f) of this clause the Minister shall afford the Joint Venturers
full opportunity to consult with him and should they so desire to submit new
or revised proposals either generally or in respect to some particular matter.
(3i) If the decision
of the Minister is as mentioned in either of paragraphs (b) or (c) of
subclause (3f) of this clause and the Joint Venturers consider that the
decision is unreasonable the Joint Venturers within two months after receipt
of the notice mentioned in subclause (3f) of this clause may elect to refer to
arbitration in the manner hereinafter provided the question of the
reasonableness of the decision PROVIDED THAT any requirement of the Minister
pursuant to the proviso to subclause (3f) of this clause shall not be
referable to arbitration hereunder.
(3j) An award made on
an arbitration pursuant to subclause (3i) of this clause shall have force and
effect as follows —
(a) if
by the award the dispute is decided against the Joint Venturers then, unless
the Joint Venturers within 3 months after delivery of the award give notice to
the Minister of their acceptance of the award, then the proposals submitted
pursuant to subclause (3c) shall be deemed to be withdrawn by the Joint
Venturers, PROVIDED THAT if the date of expiration of that period of 3 months
occurs after 31st December 1999 then this clause and the Joint
Venturers’ rights under this clause shall cease and determine and
neither the State nor the Joint Venturers shall have any claim against the
other of them with respect to any matter or thing arising out of, done,
performed or omitted to be done or performed under this clause; or
(b) if
by the award the dispute is decided in favour of the Joint Venturers the
decision shall take effect as (and be deemed to be) a notice by the Minister
that he is so satisfied with and approves the matter or matters the subject of
the arbitration.
(3k) Notwithstanding
that under subclause (3f) of this clause any proposals of the Joint Venturers
are approved by the Minister or are deemed to be approved as a consequence of
an arbitration award, unless each and every such proposal and matter is so
approved or deemed approved within 12 months of the date of the submission of
the last of the proposals pursuant to subclause (3c) or by such extended date
or period if any as the Joint Venturers shall be granted or entitled to
pursuant to the provisions of this Agreement, then the Minister may give to
the Joint Venturers notice that unless before the expiration of a further
period of 12 months all the said proposals and matters are so approved or
deemed to be approved then the said proposals shall be deemed to be withdrawn
by the Joint Venturers and the proviso to paragraph (a) of subclause (3j) of
this clause shall apply mutatis mutandis.
(3l) Subject to and in
accordance with the EP Act and any approvals and licences required under that
Act and laws relating to traditional usage the Joint Venturers shall, subject
to paragraph (a) of subclause (3j) of this clause, implement the proposals as
approved by the Minister or an award made on arbitration as the case may be in
accordance with the terms thereof.
(3m) The periods set
forth in subclause (3k) of this clause will be extended (in addition to any
extension granted pursuant to clauses 23 or 24) upon request of either the
Joint Venturers or the State for such reasonable period or periods as may be
necessary from time to time to enable either of the parties hereto to comply
with laws relating to traditional usage.
(c)
subclause (4) —
by deleting
“(hereinafter referred to as “the third mineral
lease”)”.
(d) by
deleting subclauses (5), (6), and (7) and substituting the following
subclauses —
“(5)
(a) Subject to subclauses (6) to (9) of
this clause if the Joint Venturers at any time during the continuance of this
Agreement desire to produce more than the approved production limit under this
clause or to significantly modify expand or otherwise vary their activities
within the third mineral lease beyond those specified in any proposals
approved or deemed to be approved under this clause they shall give notice of
such desire to the Minister and within two months of the giving of such notice
shall submit to the Minister detailed proposals in respect of all matters
covered by such notice and such of the other matters mentioned in paragraphs
(a) to (k) of subclause (3c) of this clause as the Minister may require.
(b) The
provisions of subclauses (3d) to (3i) and subclause (3m) of this clause shall
mutatis mutandis apply to detailed proposals submitted pursuant to this
subclause with the proviso that the Joint Venturers may withdraw such
proposals at any time before approval thereof or, where any decision of the
Minister in respect thereof is referred to arbitration, within 3 months after
the award by notice to the Minister that they shall not be proceeding with the
same.
(c) If
the Joint Venturers do not withdraw their proposals or give notice pursuant to
paragraph (b) of this clause, then subject to and in accordance with the EP
Act and any approvals and licences required under that Act and laws relating
to traditional usage the Joint Venturers shall implement the proposals as
approved by the Minister or an award made on arbitration as the case may be in
accordance with the terms thereof.
(6) The Joint
Venturers shall not produce iron ore from the third mineral lease for
transportation in any calendar year in excess of the approved production limit
without the prior consent in principle of the Minister and, subject to that
consent, approval of detailed proposals in regard thereto in accordance with
this clause.
(7) If the Joint
Venturers desire to increase the approved production limit under this clause
they shall give notice thereof to the Minister and furnish to the Minister
with that notice an outline of their proposals in respect thereto (including
the matters mentioned in paragraphs (a) to (k) of subclause (3c) of this
clause).
(8) The provisions of
subclauses (3a) and (3b) of this clause shall apply to a notice under
subclause (7) of this clause but with the substitution in subclause (3a) of
—
(i)
“notice under subclause (7)” for
“request under subclause (3)”; and
(ii)
“proposed increase” for “proposed
production limit”, wherever it occurs; and
with the substitution
in subclause (3b) of “proposed increase” for “proposed
production limit” wherever it occurs.
(9) (a)
If the Minister consents in principle to a
proposed increase the Joint Venturers must within three months of that consent
submit to the Minister detailed proposals in respect thereof otherwise that
consent shall lapse.
(b) The
provisions of subclause (5) of this clause shall mutatis mutandis apply to
detailed proposals submitted pursuant to this subclause.”.
(3) By deleting
clauses 13, 14, 15, 16 and 17.
IN WITNESS WHEREOF this Agreement has been executed by or on behalf of the
parties hereto the day and year first hereinbefore mentioned.
|
SIGNED by THE HONOURABLE RICHARD FAIRFAX COURT in the presence of — |
) |
|
Colin Barnett
MINISTER FOR RESOURCES DEVELOPMENT
|
THE COMMON SEAL of BHP IRON PTY. LTD. was hereunto affixed by authority of the
Directors — |
) |
C.S. |
Director R J Carter
Secretary Ada Lian Davies
|
Signed by BHP AUSTRALIA COAL PTY. LTD. by Richard John Carter its duly
authorised Attorney who declares that he has no notice of the revocation of
the Power of Attorney dated 16 July 1993 under the authority of which he
signed this Deed at Perth this 30th March 1994 in the presence of: |
) |
BHP AUSTRALIA COAL PTY. LTD. R J Carter |
Claire
Medhurst
|
THE COMMON SEAL of CI MINERALS AUSTRALIA PTY. LTD. was hereunto affixed by
authority of the Directors in the presence of: |
) |
C.S. |
Director Y Kowata
Secretary M Appelbee
|
THE COMMON SEAL of MITSUI IRON ORE CORPORATION PTY. LTD. was hereunto affixed
by authority of the Directors in the presence of: |
) |
C.S. |
Director N Hinohara
Secretary J MacKenzie
[Third Schedule inserted: No. 29 of 1994 s. 6.]