Western Australian Consolidated Acts Western Australian Consolidated Acts[s. 3]
[Heading inserted by No. 61 of 2011
s. 18.]
2011
THE HONOURABLE COLIN JAMES BARNETT
PREMIER OF THE STATE OF WESTERN AUSTRALIA
AND
HOPE DOWNS IRON ORE PTY. LTD.
ACN 071 514 308
HAMERSLEY WA PTY. LTD.
ACN 115 004 138
________________________________________________________________
IRON ORE (HOPE DOWNS) AGREEMENT 1992
RATIFIED VARIATION AGREEMENT
________________________________________________________________
[Solicitor's details]
THIS AGREEMENT is made this 9th 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
HOPE DOWNS IRON ORE PTY LTD ACN 071 514 308 of Level 3, Hppl House,
28-42 Ventnor Avenue, West Perth, Western Australia and HAMERSLEY WA PTY. LTD.
ACN 115 004 138 of Level 22, Central Park, 152-158 St Georges
Terrace, Perth, Western Australia ( Joint Venturers ).
RECITALS:
A. The State and the Joint Venturers are now the
parties to the agreement dated 30 November 1992 ratified by and
scheduled to the Iron Ore (Hope Downs) Agreement Act 1992 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 23(2c) to be granted to the Company under the
Mining Act 1978; or
(b) an
easement or a lease requested under Clause 23(2c) to be granted to the
Company under the LAA,
and as the context requires such tenure if granted;
(2) in
clause 2(e) by inserting after "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 notwithstanding references in this
Agreement to the LAA)";
(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, 15, 15C and 27
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, 15, 15C and 27,
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) by deleting
clause 13(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;
(5) in clause 15C
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 24(2a) shall
apply mutatis mutandis to any Railway or Railway spur line constructed
pursuant to this Clause.";
(6) in clause 23
by:
(a)
inserting at the end of subclause (1) the following new paragraph:
"Notwithstanding Clause 15A(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 (2b) and (2c)";
(c) in
subclause (2a), deleting "subclause (1)" and substituting
"subclauses (1), (2b) and (2c)"; and
(d)
inserting after subclause (2a) the following new subclauses:
"Application for Eligible Existing Tenure to be held pursuant to this
Agreement
(2b) (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 15A(2)(b)(iv) as tenure held
pursuant to this Agreement.
Application for Special Advance Tenure to be granted pursuant to this
Agreement
(2c) 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 15C) 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.
(2d) The decisions of
the Minister under subclauses (2b) and (2c) 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."; and
(7) in clause 24
by:
(a)
deleting in subclause (2) all words after "other railways which now
exist"; and
(b)
inserting after subclause (2) the following new subclause:
"Crossings over Railway
(2a) 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 said 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 said 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.".
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 HOPE
)
DOWNS IRON ORE PTY. LTD.
)
ACN 071 514 308 was hereunto affixed
) [C.S.]
in accordance with its constitution
)
in the presence of:
)
|
[Signature] | |
Tadeusz J Watroba |
|
Director | | |
| | | |
|
[Signature] | |
Jay Newby |
|
Secretary | | |
THE COMMON SEAL of
)
HAMERSLEY WA PTY. LTD.
) [C.S.]
ACN
115 004 138 was hereunto affixed
)
by authority of the Directors in the presence of:
)
|
[Signature] | |
Robert Paul Shannon |
|
Director | | |
| | | |
|
[Signature] | |
Helen Fernihough |
|
Secretary | | |
[Schedule 3 inserted by No. 61 of 2011
s. 18.]