Western Australian Consolidated Acts Western Australian Consolidated Acts[s. 2]
[Heading inserted by No. 61 of 2011 s. 14.]
2011
THE HONOURABLE COLIN JAMES BARNETT
PREMIER OF THE STATE OF WESTERN AUSTRALIA
AND
MOUNT BRUCE MINING PTY. LTD.
ACN 008 714 010
________________________________________________________________
IRON ORE (MOUNT BRUCE) 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
MOUNT BRUCE MINING PTY. LTD. ACN 008 714 010 of Level 22, Central
Park, 152-158 St Georges Terrace, Perth, Western Australia ( Company ).
RECITALS:
A. The State and the Company are the parties to
the agreement dated 10 March 1972, ratified by and scheduled to the
Iron Ore (Mount Bruce) 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 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:
(a)
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 7(3b) to be granted to the Company under the Mining Act 1978;
or
(b) an
easement or a lease requested under clause 7(3b) to be granted to
the Company under the LAA,
and as the context requires such tenure if granted;
(b)
inserting after the words "reference in this Agreement to an Act shall include
the amendments to such Act for the time being in force and also any Act passed
in substitution therefor or in lieu thereof and the regulations for the
time being in force thereunder" the words "(and for the avoidance of doubt
this principle, subject to the context and without limitation to its
application to other Acts, may apply in respect of references to the Land Act
and the Mining Act notwithstanding references in this Agreement to the LAA
and the Mining Act 1978 )";
(2) in
clause 7(1) by inserting after paragraph (c) the following new
paragraph:
"Notwithstanding clause 20C(2)(b)(iv), detailed proposals may refer to
activities on tenure which is proposed to be granted pursuant to this
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).";
(3) by inserting after
clause 7(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 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 20C(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 7(2), 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 20E) 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.
(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.";
(4) in clause 7
by:
(a)
deleting in subclause (4) "subclause (3)" and substituting
"subclauses (3), (3a) and (3b)"; and
(b)
deleting in subclause (4a) "and (2)" and substituting ", (2), (3a) and
(3b)";
(5) by inserting after
clause 11B the following new clauses:
"Community development plan
11C. (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 5, 11 or 20E, 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
11D. (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 their 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 5, 11 or 20E, 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.";
(6) in
clause 12(1) by:
(a)
deleting in paragraph (a) "allow crossing places for roads stock and
other railways and also";
(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;"; and
(c)
deleting paragraph (h)(ii) and substituting the following 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;"; and
(7) in clause 20E
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 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 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 12(1)(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 | | |
| | | |
|
Stephen Bombardieri | | |
|
Name of witness | | |
THE COMMON SEAL of MOUNT )
BRUCE MINING PTY.
LIMITED )
ACN 008 714 010 was hereunto
affixed ) [C.S.]
by
authority of the Directors in the )
presence of:
)
|
[Signature] | |
Robert Paul Shannon |
|
Director | | |
| | | |
|
[Signature] | |
Helen Fernihough |
|
Secretary | | |
[Fifth Schedule inserted by No. 61 of 2011
s. 14.]