[s. 5]
[Heading inserted: No. 29 of 1994 s. 10; 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 ORE (JIMBLEBAR) PTY. LTD. ACN 009 114 210 (formerly
called Hancock Mining Limited) a company incorporated in the State of Western
Australia and having its registered office at Level 18, 200 St George’s
Terrace, Perth (hereinafter called “the Company”) of the other
part.
WHEREAS:
(a) the State and the Company (pursuant to certain
assignments) are now the parties to 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 (hereinafter called “the
Principal Agreement”);
(b) the State and the Company wish to vary the
Principal Agreement.
NOW THIS AGREEMENT WITNESSES —
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 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
Iron Pty. Ltd., BHP Australia Coal Pty. Ltd., CI Minerals Australia Pty. Ltd.
and Mitsui Iron Ore Corporation Pty. Ltd. of the other part to vary the Iron
Ore (Mount Goldsworthy) Agreement; and
(iii)
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
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 1 —
in the definition of “approved
proposal” , by inserting after “Clause 8”, where it secondly
occurs, the following —
“and includes proposals approved or deemed
to be approved under Clauses 9 or 11A”.
(2) Clause 9(1)
—
by deleting “If” and substituting the
following —
“Subject to Clause 11A, if”.
(3) Clause 9(2)
by deleting “or if as a consequence of their
submitting detailed proposals pursuant to Clause 33 the Minister requires
further detailed proposals to be submitted on any of the said matters
mentioned in paragraphs (a) - (m) of subclause (2) of Clause 7” and
substituting the following —
“or Clause
11A”.
(4) Clause 11A
by inserting after Clause 11 the following clause
—
Limits on mining
“ 11A.
(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 mineral lease which has been consented to
from time to time by the Minister pursuant to subclauses (5) or (6) of this
Clause and which is the subject of proposals approved or deemed to be approved
pursuant to subclause (7) 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 12 of the
Mount Goldsworthy 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;
“Marillana Creek Agreement” means the
agreement (as amended from time to time) ratified by the
Iron Ore (Marillana Creek) Agreement Act 1991 ;
“Mount Goldsworthy Agreement” means
the agreement (as amended from time to time) approved by the
Iron Ore (Mount Goldsworthy) Agreement Act 1964 ;
“Processing Agreement” means the
agreement (as amended from time to time) ratified by the
Iron Ore Processing (BHP Minerals) Agreement Act 1994 .
(2) After the 1st day of April 1994, except
for the production of iron ore in accordance with the approval of the Minister
of the 5th day of March 1993 the Joint Venturers shall not produce iron ore
under this Agreement unless there is an approved production limit under this
Clause.
(3) Where the there is an approved
production limit under this Clause, the Joint Venturers shall not produce iron
ore under this Agreement 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.
(4) If the Joint Venturers desire to
establish or increase an 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) - (m) of subclause (2) of Clause 7).
(5) The Minister shall advise the Joint
Venturers within two months of receipt by the Minister of a notice under
subclause (4) of this Clause whether or not he consents in principle to the
proposed limit or increase PROVIDED THAT the Minister shall consent in
principle to the proposed limit or increase —
(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 limit or increase 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.
(6) 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 limit or increase 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 limit or increase or withhold his approval of
the proposed limit or increase. 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.
(7) (a)
If the Minister consents in principle to a proposed limit or 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 Clause 7 (other than subclauses (1) and (6)) and
Clause 8 shall 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 subclause then, subject to and in accordance
with the Environmental Protection Act 1986 and any approvals and licences
required under that Act, the Joint Venturers shall implement proposals
approved or deemed to be approved pursuant to this Clause in accordance with
the terms thereof.
(5) Clause 22 —
(a) by
deleting the subclause designations (1), (2), 2a), (3), (4), (5) and (6) and
substituting respectively the subclause designations (2), (3), (4), (5), (6),
(7) and (8);
(b) by
inserting as the first subclause the following —
“ (1)
The Joint Venturers may 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 and may transmit power to and within the areas of their mining
operations or elsewhere subject to the provisions of the Electricity Act 1945
and the approval and requirements of the State Energy
Commission pursuant to any Act. ”;
(c) in
subclause (2), as renumbered by paragraph (a) of this clause, by deleting
“For the purposes of facilitating integration of electricity generation
and transmission facilities in the areas where the Joint Venturers carry on
operations under this Agreement” and substituting the following —
“ Subject to subclause (1), ”;
(d) in
subclause (3), as renumbered by paragraph (a) of this subclause, by deleting
“subclause (1)” and substituting the following —
“ subclause (2) ”;
(e) in
subclause (4), as renumbered by paragraph (a) of this subclause, by deleting
“subclause (2)” and substituting the following —
“ subclause (3) ”;
(f) in
subclause (6), as renumbered by paragraph (a) of this subclause, by deleting
“subclause (3)” and substituting the following —
“ subclause (5) ”.
(6) By deleting
Clauses 33, 34, 35, 36, 37 and 38.
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 |
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Colin Barnett
MINISTER FOR RESOURCES DEVELOPMENT
THE COMMON SEAL of |
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Director R J Carter
Secretary Ada Lian Davies
[Schedule 3 inserted: No. 29 of 1994 s. 10.]