Western Australian Current Acts Western Australian Current Acts[s. 10]
[Heading inserted: No. 62 of 2011 s. 17.]
2011
THE HONOURABLE COLIN JAMES BARNETT
PREMIER OF THE STATE OF WESTERN AUSTRALIA
AND
BHP IRON ORE (JIMBLEBAR) PTY. LTD.
ACN 009 114 210
________________________________________________________________
IRON ORE (McCAMEY’S MONSTER) AGREEMENT 1972
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 IRON ORE (JIMBLEBAR) PTY. LTD. ACN 009 114 210 of Level 17, St Georges
Square, 225 St Georges Terrace, Perth, Western Australia ( Company ).
RECITALS:
A. The State and the Company are now the parties
to the agreement authorised by and scheduled to the Iron Ore (McCamey’s
Monster) Agreement Authorisation Act 1972 and which as subsequently added to,
varied or amended is referred to in this Agreement as the “ Principal
Agreement ”.
B. The State and the Company wish to vary the
Principal Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. Interpretation
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 13(2b)
to be granted to the Joint Venturers under the Mining Act 1978 ; or
(b) an
easement or a lease requested under clause 13(2b) to be granted to the Joint
Venturers under the LAA,
and as the context requires such tenure if granted;
(2) in clause 9 by:
(a) in
subclause (1):
(i)
deleting “Subject to Clause 11A, if” and
substituting “If”; and
(ii)
deleting “, 11A”; and
(b) in
subclause (6), deleting “or Clause 11A”;
(3) by inserting after
clause 9B the following new clauses:
“ Community development plan
9BA. (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 Clauses 9 or 11E, 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
9BB. (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 Clauses 9 or 11E, 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.”;
(4) by deleting clause
11A;
(5) in clause 11B(4)
by deleting “clauses 9 or 11A as the case may be” and substituting
“clause 9”;
(6) in clause
11C(2)(a) by deleting “clauses 11A or” and substituting
“clause”;
(7) in clause 11E 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 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:
“(l) The provisions of clause 19(2aa) shall
apply mutatis mutandis to any Railway or Railway spur line constructed
pursuant to this clause.”;
(8) in clause 13 by:
(a)
inserting at the end of subclause (1) the following new paragraph:
“Notwithstanding clause 11C(2)(b)(iv), detailed proposals may refer to
activities on tenure which is proposed to be granted pursuant to this
subclause 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).”;
(b)
renumbering subclause (2a) as subclause (2d) and inserting the following new
subclauses before the renumbered subclause (2d):
“ Application for Eligible Existing Tenure
to be held pursuant to this Agreement
(2a) (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 11C(2)(b)(iv) as tenure held pursuant to
this Agreement.
Application for Special Advance Tenure to be
granted pursuant to this Agreement
(2b) 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 11E) 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; 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.
(2c) The decisions of
the Minister under subclauses (2a) and (2b) 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.”;
(c) in
the renumbered subclause (2d), deleting “and (2)” and inserting
“, (2), (2a) and (2b)”;
(9) in clause 19(2)
by:
(a)
deleting all words in subclause (2) after “other railways which now
exist”; and
(b)
inserting after subclause (2) the following new subclause:
“ Crossings over Railway
(2aa) 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’ said railway the Joint Venturers shall:
(a) 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 said 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
(b) 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;”; and
(10) in clause 31(1),
by deleting paragraphs (aa) and (ab) and substituting the following paragraph:
“(ab) on iron
ore products being fine ore where such fine ore is sold or shipped separately
as such – at the rate of:
(i)
5.625% of the f.o.b. value, for ore shipped prior to or
on 30 June 2012;
(ii)
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
(iii)
7.5% of the f.o.b. value, for ore shipped on or after 1
July 2013;”.
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 IRON ORE )
(JIMBLEBAR) PTY LTD
)
ACN 009 114 210
)
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 |
[Schedule 6 inserted: No. 62 of 2011 s. 17.]
