Western Australian Current Acts Western Australian Current Acts[s. 2]
[Heading inserted: No. 62 of 2011 s. 6.]
2011
THE HONOURABLE COLIN JAMES BARNETT
PREMIER OF THE STATE OF WESTERN AUSTRALIA
AND
BHP BILLITON MINERALS PTY. LTD.
ACN 008 694 782
MITSUI-ITOCHU IRON PTY. LTD.
ACN 008 702 761
ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY. LTD.
ACN 009 256 259
________________________________________________________________
IRON ORE (MOUNT NEWMAN) 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-ITOCHU IRON
PTY. LTD. ACN 008 702 761 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, 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 26 August 1964, approved by and scheduled to
the Iron Ore (Mount Newman) 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. 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 Company under the Mining Act 1978; or
(ii) a lease or easement granted to
the Company 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 Company for the grant to it 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 Company comes into operation;
“Special Advance Tenure” means:
(a) a
miscellaneous licence or general purpose lease requested under clause 8(2b) to
be granted to the Company under the Mining Act 1978; or
(b) an
easement or a lease requested under clause 8(2b) to be granted to the Company
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 Company
acknowledges the need for community and social benefits flowing from this
Agreement.
(3) The Company agrees
that:
(a) it
shall prepare a plan which describes the Company’s proposed strategies
for achieving community and social benefits in connection with its activities
under this Agreement; and
(b) the
Company 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 Company that the Minister approves the plan as submitted or
notify the Company of changes which the Minister requires be made to the plan.
If the Company is unwilling to accept the changes which the Minister requires
it 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 Company 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, 9A or 9E, the Company 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 Company shall
at least annually report to the Minister about the Company’s
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
Company 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 Company 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 Company
acknowledges the need for local industry participation benefits flowing from
this Agreement.
(3) The Company agrees
that it 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 Company 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 Company 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 Company 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 Company 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 Company that the
strategies of the Company referred to in subclause (3)(a) will include
strategies of the Company 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
Company 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, 9A or 9E, the Company 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 Company shall implement the plan provided under
this Clause.
(7) The Company 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) in clause 8:
(a) by
inserting after paragraph (b)(ii) of subclause (1) 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);”;
(b) by
inserting after subclause (2) the following new subclauses:
“ Application
for Eligible Existing Tenure to be held pursuant to this Agreement
(2a)
(a) The Minister may
at the request of the Company 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 Company.
(b)
Eligible Existing Tenure the subject of an approval by the Minister under this
subclause will be held by the Company 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 Company 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 Company is
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
(2b)
Without limiting clause 8(1)(c), the Minister may at the request
of the Company from time to time made during the continuance of this Agreement
approve Special Advance Tenure being granted to the Company pursuant to this
Agreement if:
(a) the
Company proposes to submit detailed proposals under this Agreement (other than
under clause 9E) to construct works installations or facilities on the
Relevant Land and the Company’s 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 Company; and
(d) if
the Company does 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
subclause (3), by deleting “subclause (2)” and substituting
“subclauses (2), (2a) and (2b)”;
(d) in
subclause (3B), by deleting “subclause (1)” and inserting
“subclauses (1), (2a) and (2b)”;
(4) in clause 9(2) by:
(a) in
paragraph (a), deleting “allow crossing places for roads stock and other
railways and”; and
(b)
inserting after paragraph (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 Company’s railway the Company shall:
(i)
if applicable, give its 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 Company’s railway so long as such grant does not in the
Minister’s opinion unduly prejudice or interfere with the activities of
the Company 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
Company;”;
(c) in
paragraph (j), deleting subparagraphs (ii) and (iia) and substituting the
following paragraph:
“(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;”; and
(5) 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 Company 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 Company in relation
to the affected land as the holder of the miscellaneous licence, relative to
its rights as the holder 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
Company 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:
“(l) The provisions of clause 9(2)(aa) shall
apply mutatis mutandis to any Railway or Railway spur line constructed
pursuant to this clause.”.
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-ITOCHU IRON )
PTY. LTD ACN 008
702 761
)
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 |
[Eighth Schedule inserted: No. 62 of 2011 s. 6.]
