Western Australian Consolidated Acts Western Australian Consolidated Acts[s. 2]
[Heading inserted by No. 62 of 2011 s. 14.]
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 (GOLDSWORTHY-NIMINGARRA) 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 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 12 April 1972 approved by and
scheduled to the Iron Ore (Goldsworthy-Nimingarra) Agreement 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 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 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 11(5b) to be granted to the Joint Venturers under the Mining
Act 1978 ; or
(b) an
easement or a lease requested under clause 11(5b) to be granted to the
Joint Venturers under the LAA,
and as the context requires such tenure if granted;
(2) by inserting after
clause 8B the following new clauses:
" Community development plan
8C. (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 8 or 16C, 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
8D. (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 8 or 16C, 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 11(3) the following new subclause:
"(3a) Notwithstanding
clause 16A(2)(b)(iv), detailed proposals may refer to activities on
tenure which is proposed to be granted pursuant to subclause (1) 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 11(5) the following new subclauses:
" Application for Eligible Existing Tenure to be
held pursuant to this Agreement
(5a) (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 16A(2)(b)(iv) as tenure
held pursuant to this Agreement.
Application for Special Advance Tenure to be
granted pursuant to this Agreement
(5b) Without limiting clause 11(4), 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 16C) 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.
(5c)
The decisions of the Minister under subclauses (5a) and
(5b) 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 clause 11
by:
(a)
deleting in subclause (6) "subclause (5)" and substituting
"subclauses (5), (5a) and (5b); and
(b)
deleting in subclause (6a) "and (4)" and substituting ", (4), (5a) and
(5b)";
(6) in clause 12A
by deleting " allow crossing places for roads stock and other railways and
also";
(7) by inserting after
clause 12A the following new clause:
" Crossings over Railway
12B. 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
railway of the Joint Venturers, 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 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.";
(8) by inserting after
clause 16B the following new clause:
" Transfer of rights to section of
Goldsworthy-Nimingarra Railway
16BA. The Joint Venturers may surrender their
lease or leases over the section of the railway held pursuant to this
Agreement that is described in clause 9DA of the agreement approved by
the Iron Ore (Mount Goldsworthy) Agreement Act 1964 in accordance with
and as contemplated by that clause.";
(9) in clause 16C
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 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 12B shall apply
mutatis mutandis to any Railway or Railway spur line constructed pursuant to
this clause."; and
(10) by deleting
clause 33(1)(ii) 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;".
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 |
[Schedule 4 inserted by No. 62 of 2011
s. 14.]