Western Australian Consolidated Acts Western Australian Consolidated Acts[s. 3]
[Heading inserted by No. 62 of 2011 s. 21.]
2011
THE HONOURABLE COLIN JAMES BARNETT
PREMIER OF THE STATE OF WESTERN AUSTRALIA
AND
BHP BILLITON MINERALS PTY. LTD.
ACN 008 694 782
ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY. LTD.
ACN 009 256 259
MITSUI IRON ORE CORPORATION PTY. LTD.
ACN 050 157 456
________________________________________________________________
IRON ORE (MARILLANA CREEK) AGREEMENT 1991
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, ITOCHU MINERALS
& ENERGY OF AUSTRALIA PTY. LTD. ACN 009 256 259 of Level 22, 221 St
Georges Terrace, Perth, Western Australia and MITSUI IRON ORE CORPORATION PTY.
LTD. ACN 050 157 456 of Level 24, 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 20 December 1990 ratified by and
scheduled to the Iron Ore (Marillana Creek) Agreement Act 1991 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; 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 22(2b) to be granted to the Company under the Mining Act; or
(b) an
easement or a lease requested under clause 22(2b) to be granted to the
Company under the LAA,
and as the context requires such tenure if
granted;
(2) in
clause 10(1) by deleting "produce more than 5,500,000 tonnes of iron ore
per annum for transportation from the mining lease or to";
(3) by inserting after
clause 10B the following new clauses:
" Community development plan
10C. (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 10, 11 or 14C, 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
10D.
(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 10, 11 or
14C, 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.";
(4) in clause 11 by:
(a) in
subclause (1), deleting the definition of "approved production limit
under this Clause";
(b)
in subclause (2):
(i) deleting "produce iron ore under
this Agreement for transportation in any calendar year in excess of the
approved production limit nor shall" and substituting "increase";
(ii)
deleting "exceed" and substituting "above";
(c) in subclause 3, deleting "the
approved production limit under this Clause or";
(d) deleting subclause (5);
(e) in
subclause (8)(a):
(i) deleting "approved production limit
or"; and
(ii)
deleting ", in respect of a consent in relation to
a proposed increase in the approved mine workforce,"; and
(f) inserting after
subclause (8) a new subclause as follows:
"(9) For the avoidance
of doubt, nothing in this clause 11 requires the Company to seek or
obtain the Minister's approval or consent (by submitting proposals or
otherwise) to a mere increase in production limits.";
(5) in clause 13(1) by:
(a) deleting
paragraph (aa); and
(b)
deleting paragraph (ac) and substituting the following paragraph:
"(ac) on fine ore and on pisolite fine ore 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;";
(6)
in clause 14C 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 23A shall apply mutatis mutandis to any Railway or Railway spur
line constructed pursuant to this clause.";
(7)
in clause 21(2)(a) by deleting "the approved
production limit or";
(8)
in clause 22 by:
(a)
inserting at the end of subclause (1) the
following new paragraph:
"Notwithstanding clause 14A(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).";
(b) in subclause (2) inserting
after "The provisions of this subclause" the words "and subclauses (2a)
and (2b)";
(c)
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 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 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 14A(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 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 14C) 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 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.";
(d) in the renumbered
subclause (2d), deleting "subclause (1)" and substituting
"subclauses (1), (2a) and (2b)";
(9)
in clause 23(2) by deleting all words in the
subclause after " railways which now exist"; and
(10) by inserting after clause 23 the
following new clause:
"23A.
Crossings over Rail Spur
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 rail spur referred to in
clause 23 the Company shall:
(a) 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 rail spur 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
(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 Company.".
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 5 inserted by No. 62 of 2011
s. 21.]