Western Australian Consolidated Acts Western Australian Consolidated Acts[s. 10]
[Heading inserted by No. 62 of 2011 s. 17.]
2011
THE HONOURABLE COLIN JAMES BARNETT
PREMIER OF THE STATE OF WESTERN AUSTRALIA
AND
BHP IRON ORE (JIMBLEBAR) PTY. LTD.
ACN 009 114 210
________________________________________________________________
IRON ORE (McCAMEY'S MONSTER) 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 IRON ORE (JIMBLEBAR) PTY. LTD. ACN 009 114 210 of Level 17, St
Georges Square, 225 St Georges Terrace, Perth, Western Australia ( Company ).
RECITALS:
A. The State and the Company are now the parties
to the agreement authorised by and scheduled to the
Iron Ore (McCamey's Monster) Agreement Authorisation 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 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 13(2b) to be granted to the Joint Venturers under the Mining
Act 1978 ; or
(b) an
easement or a lease requested under clause 13(2b) to be granted to the
Joint Venturers under the LAA,
and as the context requires such tenure if granted;
(2) in clause 9
by:
(a) in
subclause (1):
(i)
deleting "Subject to Clause 11A, if" and
substituting "If"; and
(ii)
deleting ", 11A"; and
(b) in
subclause (6), deleting "or Clause 11A";
(3) by inserting after
clause 9B the following new clauses:
" Community development plan
9BA. (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 9 or
11E, 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
9BB. (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 9 or 11E, 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.";
(4) by deleting clause 11A;
(5) in
clause 11B(4) by deleting "clauses 9 or 11A as the case may be" and
substituting "clause 9";
(6)
in clause 11C(2)(a) by deleting "clauses 11A or" and
substituting "clause";
(7)
in clause 11E 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 the 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 19(2aa) shall apply
mutatis mutandis to any Railway or Railway spur line constructed pursuant to
this clause.";
(8) in
clause 13 by:
(a)
inserting at the end of subclause (1) the following new
paragraph:
"Notwithstanding clause 11C(2)(b)(iv), detailed proposals may
refer to activities on tenure which is proposed to be granted pursuant to this
subclause 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) 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 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 11C(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 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 11E) 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; 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.
(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 the
renumbered subclause (2d), deleting "and (2)" and inserting ", (2), (2a)
and (2b)";
(9) in
clause 19(2) by:
(a)
deleting all words in subclause (2) after "other
railways which now exist"; and
(b)
inserting after subclause (2) the following
new subclause:
" Crossings over Railway
(2aa) 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 Joint Venturers’ said railway 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 said 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;"; and
(10) in
clause 31(1), by deleting paragraphs (aa) and (ab) and substituting
the following paragraph:
"(ab)
on iron ore products being fine ore where such fine ore is 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;".
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 IRON ORE )
(JIMBLEBAR) PTY LTD
)
ACN 009 114 210
)
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 |
[Schedule 6 inserted by No. 62 of 2011
s. 17.]