Western Australian Current Acts Western Australian Current Acts[s. 3]
[Heading inserted: No. 62 of 2011 s. 10.]
2011
THE HONOURABLE COLIN JAMES BARNETT
PREMIER OF THE STATE OF WESTERN AUSTRALIA
AND
BHP BILLITON MINERALS PTY. LTD.
ACN 008 694 782
MITSUI IRON ORE CORPORATION PTY. LTD.
ACN 050 157 456
ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY. LTD.
ACN 009 256 259
________________________________________________________________
IRON ORE (MOUNT GOLDSWORTHY) AGREEMENT 1964
RATIFIED VARIATION AGREEMENT
________________________________________________________________
[Solicitor’s details]
THIS AGREEMENT is made this 7th day of November 2011
BETWEEN
THE HONOURABLE COLIN JAMES BARNETT MLA., Premier of the State of Western
Australia, acting for and on behalf of the said State and instrumentalities
thereof from time to time ( State )
AND
BHP BILLITON MINERALS PTY. LTD. ACN 008 694 782 of Level 17, St Georges
Square, 225 St Georges Terrace, Perth, Western Australia, MITSUI IRON ORE
CORPORATION PTY. LTD. ACN 050 157 456 of Level 16, Exchange Plaza, 2 The
Esplanade, Perth, Western Australia and ITOCHU MINERALS & ENERGY OF
AUSTRALIA PTY. LTD. ACN 009 256 259 of Level 22, Forrest Centre, 221 St
Georges Terrace, Perth, Western Australia ( Joint Venturers ).
RECITALS
A. The State and the Joint Venturers are now the
parties to the agreement dated 15 October 1964 approved by and scheduled to
the Iron Ore (Mount Goldsworthy) Agreement Act 1964 and which as subsequently
added to, varied or amended is referred to in this Agreement as the “
Principal Agreement ”.
B. The State and the Joint Venturers wish to vary
the Principal Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. Intepretation
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. Ratification and Operation
(1) The State shall
introduce and sponsor a Bill in the State Parliament of Western Australia
prior to 31 December 2011 or such later date as may be agreed between the
parties hereto to ratify this Agreement. The State shall endeavour to secure
the timely passage of such Bill as an Act.
(2) The provisions of
this Agreement other than this clause and clause 1 will not come into
operation until the day after the day on which the Bill referred to in
subclause (1) has been passed by the State Parliament of Western Australia and
commences to operate as an Act.
(3) If by 30 June 2012
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.
(4) On the day after
the day on which the said Bill commences to operate as an Act all the
provisions of this Agreement will operate and take effect despite any
enactment or other law.
3. Variation of Principal Agreement
The Principal Agreement is varied as follows:
(1) in clause 1 by
inserting in the appropriate alphabetical positions the following new
definitions:
“Eligible Existing Tenure” means:
(a)
(i) a miscellaneous licence
or general purpose lease granted to the Joint Venturers under the
Mining Act 1978 ; or
(ii) a lease or easement granted to
the Joint Venturers under the LAA,
and not clearly, to the satisfaction of the Minister, granted under or
pursuant to or held pursuant to this Agreement; or
(b) an
application by the Joint Venturers for the grant to them of a tenement
referred to in paragraph (a)(i) (which application has not clearly, to the
satisfaction of the Minister, been made under or pursuant to this Agreement)
and as the context requires the tenement granted pursuant to such an
application,
where that tenure was granted or that application
was made (as the case may be) on or before 1 October 2011;
“LAA” means the
Land Administration Act 1997 (WA);
“Relevant
Land”, in relation to Eligible Existing Tenure or Special Advance
Tenure, means the land which is the subject of that Eligible Existing Tenure
or Special Advance Tenure, as the case may be;
“second variation date” means the date on which clause 3 of the
variation agreement made on or about 7 November 2011 between the State and the
Joint Venturers comes into operation;
“Special Advance
Tenure” means:
(a) a
miscellaneous licence or general purpose lease requested under clause 8(3b) to
be granted to the Joint Venturers under the Mining Act 1978 ; or
(b) an
easement or a lease requested under clause 8(3b) to be granted to the Joint
Venturers under the LAA,
and as the context
requires such tenure if granted;
(2) by inserting after
clause 7C the following new clauses:
“ Community development plan
7D. (1) In this
Clause, the term “community and social benefits” includes:
(a)
assistance with skills development and training opportunities to promote work
readiness and employment for persons living in the Pilbara region of the said
State;
(b)
regional development activities in the Pilbara region of the said State,
including partnerships and sponsorships;
(c)
contribution to any community projects, town services or facilities; and
(d) a
regionally based workforce.
(2) The Joint
Venturers acknowledge the need for community and social benefits flowing from
this Agreement.
(3) The Joint
Venturers agree that:
(a) they
shall prepare a plan which describes the Joint Venturers’ proposed
strategies for achieving community and social benefits in connection with
their activities under this Agreement; and
(b) the
Joint Venturers shall, not later than 3 months after the second variation
date, submit to the Minister the plan prepared under paragraph (a) and confer
with the Minister in respect of the plan.
(4) The Minister shall
within 2 months after receipt of a plan submitted under subclause (3)(b),
either notify the Joint Venturers that the Minister approves the plan as
submitted or notify the Joint Venturers of changes which the Minister requires
be made to the plan. If the Joint Venturers are unwilling to accept the
changes which the Minister requires they shall notify the Minister to that
effect and either party may refer to arbitration hereunder the question of the
reasonableness of the changes required by the Minister.
(5) The effect of an
award made on an arbitration pursuant to subclause (4) shall be that the
relevant plan submitted by the Joint Venturers pursuant to subclause (3)(b)
shall, with such changes required by the Minister under subclause (4) as the
arbitrator determines to be reasonable (with or without modification by the
arbitrator), be deemed to be the plan approved by the Minister under this
clause.
(6) At least 3 months
before the anticipated submission of proposals relating to a proposed
development pursuant to any of Clauses 7A, 9E, 11 or 12, the Joint Venturers
must, unless the Minister otherwise requires, give to the Minister information
about how the proposed development may affect the plan approved or deemed to
be approved by the Minister under this Clause. This obligation operates in
relation to all proposals submitted on or after the date that is 4 months
after the date when a plan is first approved or deemed to be approved under
this Clause.
(7) The Joint
Venturers shall at least annually report to the Minister about the Joint
Venturers’ implementation of the plan approved or deemed to be approved
by the Minister under this Clause.
(8) At the request of
either of them made at any time and from time to time, the Minister and the
Joint Venturers shall confer as to any amendments desired to any plan approved
or deemed to be approved by the Minister under this Clause and may agree to
amendment of the plan or adoption of a new plan. Any such amended plan or new
plan will be deemed to be the plan approved by the Minister under this Clause
in respect of the development to which it relates.
(9) During the
currency of this Agreement, the Joint Venturers shall implement the plan
approved or deemed to be approved by the Minister under this Clause.
Local participation plan
7E. (1) In this
Clause, the term “local industry participation benefits” means:
(a) the
use and training of labour available within the said State;
(b) the
use of the services of engineers, surveyors, architects and other professional
consultants, experts, specialists, project managers and contractors available
within the said State; and
(c) the
procurement of works, materials, plant, equipment and supplies from Western
Australian suppliers, manufacturers and contractors.
(2)
The Joint Venturers acknowledge the need for local industry
participation benefits flowing from this Agreement.
(3)
The Joint Venturers agree that they shall, not later than 3
months after the second variation date, prepare and provide to the Minister a
plan which contains:
(a) a
clear statement on the strategies which the Joint Venturers will use, and
require a third party as referred to in subclause (7) to use, to maximise the
uses and procurement referred to in subclause (1);
(b)
detailed information on the procurement practices the Joint Venturers will
adopt, and require a third party as referred to in subclause (7) to adopt, in
calling for tenders and letting contracts for works, materials, plant,
equipment and supplies stages in relation to a proposed development and how
such practices will provide fair and reasonable opportunity for suitably
qualified Western Australian suppliers, manufacturers and contractors to
tender or quote for works, materials, plant, equipment and supplies;
(c)
detailed information on the methods the Joint Venturers will use, and require
a third party as referred to in subclause (7) to use, to have its respective
procurement officers promptly introduced to Western Australian suppliers,
manufacturers and contractors seeking such introduction; and
(d)
details of the communication strategies the Joint Venturers will use, and
require a third party as referred to in subclause (7) to use, to alert Western
Australian engineers, surveyors, architects and other professional
consultants, experts, specialists, project managers and consultants and
Western Australian suppliers, manufacturers and contractors to services
opportunities and procurement opportunities respectively as referred to in
subclause (1).
It is acknowledged by the Joint Venturers that the strategies of the Joint
Venturers referred to in subclause (3)(a) will include strategies of the Joint
Venturers in relation to supply of services, labour, works, materials, plant,
equipment or supplies for the purposes of this Agreement.
(4)
At the request of either of them made at any time and from time
to time, the Minister and the Joint Venturers shall confer as to any
amendments desired to any plan provided under this clause and may agree to the
amendment of the plan or the provision of a new plan in substitution for the
one previously provided.
(5)
At least 6 months before the anticipated submission of proposals
relating to a proposed development pursuant to any of Clauses 7A, 9E, 11 or
12, the Joint Venturers must, unless the Minister otherwise requires, give to
the Minister information about the implementation of the plan provided under
this Clause in relation to the proposed development. This obligation operates
in relation to all proposals submitted on or after the date that is 7 months
after the date when a plan is first provided under this Clause.
(6)
During the currency of this Agreement the Joint Venturers shall
implement the plan provided under this Clause.
(7) The Joint
Venturers shall:
(a) in
every contract entered into with a third party where the third party has an
obligation or right to procure the supply of services, labour, works,
materials, plant, equipment or supplies for or in connection with a proposed
development, ensure that the contract contains appropriate provisions
requiring the third party to undertake procurement activities in accordance
with the plan provided under this Clause; and
(b) use
reasonable endeavours to ensure that the third party complies with those
provisions.”;
(3) by inserting after
clause 8(2)(b)(ii) the following new paragraph:
“notwithstanding clause 9C(2)(b)(iv), detailed proposals may refer to
activities on tenure which is proposed to be granted pursuant to this
paragraph (b) as if that tenure was granted pursuant to this Agreement (but
this does not limit the powers or discretions of the Minister under this
Agreement or the Minister responsible for the administration of any relevant
Act with respect to the grant of the tenure);”;
(4) by inserting after
clause 8(3) the following new subclauses:
“ Application for Eligible Existing Tenure to be held pursuant to this
Agreement
(3a) (a)
The Minister may at the request of the Joint Venturers from time to time made
during the continuance of this Agreement approve Eligible Existing Tenure
becoming held pursuant to this Agreement on such conditions as the Minister
sees fit (including, without limitation and notwithstanding the
Mining Act 1978 and the LAA, as to the surrender of land, the submission of
detailed proposals and the variation of the terms and conditions of the
Eligible Existing Tenure (including for the Eligible Existing Tenure to be
held pursuant to this Agreement and for the more efficient use of the Relevant
Land)) and the Minister may from time to time vary such conditions in order to
extend any specified time for the doing of any thing or otherwise with the
agreement of the Joint Venturers.
(b)
Eligible Existing Tenure the subject of an approval by the Minister under this
subclause will be held by the Joint Venturers pursuant to this Agreement:
(i)
if the Minister’s approval was not given subject to
conditions, on and from the date of the Minister’s notice of approval;
(ii)
unless paragraph (iii) applies, if the Minister’s
approval was given subject to conditions, on the date on which all such
conditions have been satisfied; and
(iii)
if the Minister’s approval was given subject to a
condition requiring that the Joint Venturers submit detailed proposals in
accordance with this Agreement, on the later of the date on which the Minister
approves proposals submitted in discharge of that specified condition and the
date upon which all other specified conditions have been satisfied, but the
Joint Venturers are authorised to implement any approved proposal to the
extent such implementation is consistent with the then terms and conditions of
the Eligible Existing Tenure pending the satisfaction of any conditions
relating to the variation of the terms or conditions of the Eligible Existing
Tenure. Where this paragraph (iii) applies, prior to any approval of proposals
and satisfaction of other conditions, the relevant tenure will be treated for
(but only for) the purposes of clause 9C(2)(b)(iv) as tenure held pursuant to
this Agreement.
Application for Special Advance Tenure to be granted pursuant to this
Agreement
(3b) Without limiting clause 8(2)(c), the Minister
may at the request of the Joint Venturers from time to time made during the
continuance of this Agreement approve Special Advance Tenure being granted to
the Joint Venturers pursuant to this Agreement if:
(a) the
Joint Venturers propose to submit detailed proposals under this Agreement
(other than under clause 9E) to construct works installations or facilities on
the Relevant Land and the Joint Venturers’ request is so far as is
practicable made, unless the Minister approves otherwise, no less than 6
months before the submission of those detailed proposals; and
(b) the
Minister is satisfied that it is necessary and appropriate that Special
Advance Tenure, rather than tenure granted under or pursuant to the other
provisions of this Agreement, be used for the purposes of the proposed works
installations or facilities on the Relevant Land,
and if the Minister does so approve:
(c)
notwithstanding the Mining Act 1978 or the LAA, the appropriate authority or
instrumentality of the State shall obtain the consent of the Minister to the
form and substance of the Special Advance Tenure prior to its grant (which for
the avoidance of doubt neither the State nor the Minister is obliged to cause)
to the Joint Venturers as tenants in common in equal shares; and
(d) if
the Joint Venturers do not submit detailed proposals relating to construction
of the relevant works installations or facilities on the Relevant Land within
24 months after the date of the Minister’s approval or such later time
subsequently allowed by the Minister, or if submitted the Minister does not
approve such detailed proposals, the Special Advance Tenure (if then granted)
shall be surrendered at the request of the Minister.
(3c) The decisions of the Minister under
subclauses (3a) and (3b) shall not be referable to arbitration and any
approval of the Minister under this clause shall not in any way limit,
prejudice or otherwise affect the exercise by the Minister of the
Minister’s powers, or the performance of the Minister’s
obligations, under this Agreement or otherwise under the laws from time to
time of the said State.”;
(5) in subclauses (4)
and (4a) of clause 8 by deleting “subclause (2)” and substituting
“subclauses (2), (3a) and (3b)”;
(6) in clause 8(5) by:
(a)
deleting “and” after the semicolon at the end of paragraph (e);
(b)
inserting “and” after the semicolon at the end of paragraph (f);
and
(c)
inserting after paragraph (f) the following new paragraph:
“ Reservation of land within the Port of Port Hedland for leases
(g)
without limiting the State’s obligations under clause 8(2)(b), shall
ensure that the land within the areas coloured red and green on the plan
marked ‘Plan D’ (initialled by or on behalf of the parties hereto
for the purposes of identification) is reserved until 31 December 2030 for the
purposes of the Port Authority granting from time to time to the Joint
Venturers in accordance with proposals approved or determined under clauses
7B, 11 or 12 leases of that reserved land:
(i)
at commercial rental; and
(ii)
upon such other terms and conditions as approved by the
Minister responsible for the Port Authorities Act (acting with the concurrence
of the Minister) including as to the facilitation and allowance on reasonable
terms and conditions of future crossings of the land within the area coloured
green on the plan marked ‘Plan D’ so long as such crossings do not
unduly prejudice or interfere with the operations of the Joint Venturers under
this Agreement,
provided that this obligation to ensure reservation of the land shall cease:
(iii)
if the Joint Venturers do not submit detailed proposals
prior to 31 December 2013 (or such later date prior to 31 December 2014 as the
Minister may allow) under and in accordance with clause 7B, 11 or 12 relating
to the construction of at least a two berth wharf facility and associated
jetty within the area the subject of the reservation;
(iv)
if a lease or leases are granted to the Joint Venturers
as contemplated by this clause in relation to a two berth wharf facility and
associated jetty development, in respect of the land within the areas coloured
red and green on the plan marked ‘Plan D’ that are subject to such
lease or leases or laterally adjacent to the area of the lease or leases; and
(v)
progressively thereafter if a lease is granted as
contemplated by this clause, or any existing lease relating to the wharf
facility is varied, to accommodate additional berths, in respect of the land
within the area coloured red on the plan marked ‘Plan D’ that is
subject to such lease (including as varied) or laterally adjacent to the area
of the lease (including as varied).
The parties agree that clause 24 shall not apply to this paragraph
(g).”;
(7) in clause 9(2)(a)
by deleting “allow crossing places for roads stock and other railways
and also”;
(8) by inserting after
clause 9(2)(a) the following new paragraph:
“ Crossings over Railway
(aa) for
the purposes of livestock and infrastructure such as roads, railways,
conveyors, pipelines, transmission lines and other utilities proposed to cross
the land the subject of the Joint Venturers’ railway the Joint Venturers
shall:
(i)
if applicable, give their consent to, or otherwise
facilitate the grant by the State or any agency, instrumentality or other
authority of the State of any lease, licence or other title over land the
subject of the Joint Venturers’ railway so long as such grant does not
in the Minister’s opinion unduly prejudice or interfere with the
activities of the Joint Venturers under this Agreement; and
(ii)
on reasonable terms and conditions allow access for the
construction and operation of such crossings and associated infrastructure,
provided that in forming his opinion under this clause, the Minister must
consult with the Joint Venturers;”;
(9) by deleting clause
9(2)(j)(ii) and substituting the following new subparagraph:
“(ii) on fine ore sold or shipped separately
as such at the rate of:
(A) 5.625% of the f.o.b. value, for ore
shipped prior to or on 30 June 2012;
(B) 6.5% of the f.o.b. value, for ore
shipped during the period from 1 July 2012 to 30 June 2013 (inclusive of both
dates); and
(C) 7.5% of the f.o.b. value, for ore
shipped on or after 1 July 2013;”;
(10) by deleting
clause 9(2)(j)(iia);
(11) by inserting
after clause 9D the following new clause:
“ Transfer of rights to section of
Goldsworthy-Nimingarra Railway
9DA (1) The Joint
Venturers may as an additional proposal pursuant to clause 7A propose that
they be granted a lease under the LAA and pursuant to this Agreement over the
section of the railway held pursuant to the agreement ratified by the
Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 that is:
(a) near the Port of Port Hedland; and
(b) west of the intersection of that railway with
the railway constructed pursuant to the agreement approved by the
Iron Ore (Mount Newman) Agreement Act 1964 ,
subject to and conditional upon the Joint Venturers (as defined in the former
agreement) surrendering wholly or in part (and upon such terms as the Minister
considers reasonable) its lease or leases over that section of railway.
(2) The provisions of clause 7B shall mutatis
mutandis apply to any such additional proposal, except that the
Minister’s right to refuse to approve a proposal under clause 7B(1) does
not apply to a proposal contemplated by this clause.
(3) The Joint Venturers acknowledge that the lease
referred to in subclause (1) will on reasonable terms and conditions allow for
crossings relating to the proposed Boodarie industrial estate infrastructure
corridor (including the grant of tenure and rights reasonably necessary for
infrastructure and utilities proposed to be constructed and operated within
such corridor).”;
(12) in clause 9E by:
(a)
deleting in subclause (1) ““LAA” means the
Land Administration Act 1997 (WA)”;
(b)
inserting after subclause (3)(c) the following new paragraph:
“(d) Without limiting subclause (9), the
Minister may waive the requirement under this clause for the Joint Venturers
to obtain and to furnish the consent of a title holder if the title holder has
refused to give the required consent and the Minister is satisfied that:
(i)
the title holder’s affected land is or was subject
to a miscellaneous licence granted under the Mining Act 1978 for the purpose
of a railway to be constructed and operated in accordance with this Agreement;
and
(ii)
in the Minister’s opinion, the title holder’s
refusal to give the required consent is not reasonable in all the
circumstances including having regard to
(A) the rights of the Joint Venturers in
relation to the affected land as the holders of the miscellaneous licence,
relative to their rights as the holders of the sought Special Railway Licence
or Lateral Access Road Licence (as the case may be); and
(B) the terms of any agreement between the
Joint Venturers and the title holder.”;
(c)
deleting in subclause (4)(a) the comma after “the provisions of this
Agreement” and substituting “and”; and
(d) in
subclause (7):
(i)
deleting all words in paragraph (c) after “at the
date of such inclusion”; and
(ii)
inserting after paragraph (k) the following new
paragraph:
“(1) The provisions of clause 9(2)(aa) shall
apply mutatis mutandis to any Railway or Railway spur line constructed
pursuant to this clause.”;
(13) in clause 12 by:
(a) in
subclause (1), deleting the definition of “approved production limit
under this clause”;
(b) in
subclause (5)(a):
(i)
deleting “Subject to subclauses (6) to (9) of this
Clause if” and substituting “If”; and
(ii)
deleting “produce more than the approved production
limit under this Clause or to”; and
(c)
deleting subclauses (6), (7), (8) and (9) and substituting the following new
subclause:
“(6) For the avoidance of doubt, nothing in
this clause 12 requires the Joint Venturers to seek or obtain the
Minister’s approval or consent (by submitting proposals or otherwise) to
a mere increase in production limits.”; and
(14) by deleting
clause 12A.
EXECUTED as a deed.
SIGNED by the HONOURABLE
)
COLIN JAMES BARNETT
)
in the presence of:
)
|
[Signature] | |
[Signature] |
|
Signature of witness | | |
| | | |
|
Peter Goodall | | |
|
Name of witness | | |
EXECUTED by BHP BILLITON
)
MINERALS PTY. LTD. ACN 008 694 782 )
in
accordance with section 127(1) of
)
the Corporations Act
)
|
[Signature] | |
[Signature] |
|
Signature of Director | |
Signature of Secretary |
| | | |
|
Uvashni Raman | |
Robin Lees |
|
Full Name | |
Full Name |
EXECUTED by MITSUI IRON ORE
)
CORPORATION PTY. LTD
)
ACN 050 157 456 in accordance with
)
section 127(1) of the Corporations Act
)
|
[Signature] | |
[Signature] |
|
Signature of Director | |
Signature of Secretary |
| | | |
|
Ryuzo Nakamura | |
Jiahe He |
|
Full Name | |
Full Name |
SIGNED by Shuzaburo Tsuchihashi
)
as attorney for ITOCHU MINERALS &
)
ENERGY OF AUSTRALIA PTY. LTD. )
ACN 009
256 259 under power
)
of attorney dated 27 October 2011
)
in the presence of:
)
|
[Signature] | |
[Signature] |
|
Signature of witness | |
Signature of Attorney |
| | | |
|
Yasushi Fukumura | |
Shuzaburo Tsuchihashi |
|
Name | |
Name |
[Sixth Schedule inserted: No. 62 of 2011 s. 10.]
