Western Australian Consolidated Acts Western Australian Consolidated Acts[s. 3]
[Heading amended by No. 19 of 2010
s. 4.]
PILBARA ENERGY PROJECT AGREEMENT
THIS AGREEMENT is made the 30th day of November 1993
B E T W E E N:
THE HONOURABLE RICHARD FAIRFAX COURT , B.Com., M.L.A. Premier of the State of
Western Australia, acting for and on behalf of the said State and its
instrumentalities from time to time (hereinafter called “the
State”) of the one part and BHP MINERALS PTY. LTD. ACN
008 694 782 a company incorporated in the State of
Western Australia and having its registered office at Level 18,
200 St. George’s Terrace, Perth, BHP ENERGY HOLDINGS
PTY. LTD. ACN 058 025 960 a company incorporated in the
State of Western Australia and having its registered office at Level 18, 200
St. George’s Terrace, Perth, and BHP POWER HOLDINGS PTY. LTD.
ACN 058 169 743 a company incorporated in the State of Western
Australia and having its registered office at Level 18, 200 St. George’s
Terrace, Perth, (hereinafter collectively called “the Joint
Venturers” in which term shall be included their respective successors
and permitted assigns) of the other part.
W H E R E A S:
(a) for the purpose of providing gas and
electricity to the operations carried on pursuant to the Iron Ore Agreements
(as hereinafter defined) and facilitating access by industrial consumers to
gas and electricity the Joint Venturers intend to develop a gas turbine power
station of at least 100 megawatts at Port Hedland, a 355mm diameter buried gas
pipeline from an off-take point in the vicinity of Karratha to the power
station and either a 220 kilovolt high voltage transmission line from the
power station to Newman or a gas pipeline system from an off-take point in the
vicinity of Newman on the proposed gas transmission pipeline between Dampier
and Kalgoorlie and a gas turbine power station of at least 70 megawatts
at Newman;
(b) the State, for the purpose of promoting
employment opportunity and industrial development in Western Australia, has
agreed to assist the establishment and operation of the said works upon and
subject to the terms of this Agreement; and
(c) by an agreement of even date herewith and made
between the State of the one part and Pilbara Iron Limited, the said BHP
Minerals Pty. Ltd., Mitsui-Itochu Iron Pty. Ltd. and CI Minerals Australia
Pty. Ltd. of the other part, the State has agreed to the deletion of
clauses 12, 13, 14, 15, 16 and 16A of the Mount Newman Agreement upon and
subject to the construction of the works referred to in recital (a) hereof.
NOW THIS AGREEMENT WITNESSES:
Definitions
1. In this Agreement subject to the
context —
“advise” , “apply” ,
“approve” , “approval” , “consent”,
“certify” , “direct” , “notify” ,
“request” , or “require” , means advise, apply,
approve, approval, consent, certify, direct, notify, request, or require in
writing as the case may be and any inflexion or derivation of any of those
words has a corresponding meaning; “approved proposal” means a
proposal approved or determined under this Agreement;
“Clause” means a clause of this
Agreement;
“Commonwealth” means the Commonwealth
of Australia and includes the Government for the time being thereof;
“Electricity Act” means the
Electricity Act 1945 ;
“EPA Act” means the
Environmental Protection Act 1986 ;
“gas pipeline” means a gas pipeline
system for the transmission and distribution of gas and includes a 355mm
diameter steel pipeline commencing at an off-take point in the vicinity of
Karratha and extending to the power station;
“Goldsworthy-Nimingarra Agreement”
means the Agreement (as amended from time to time) ratified by the Iron Ore
(Goldsworthy-Nimingarra) Agreement Act 1972 ;
“Iron Ore Agreements” means the
Goldsworthy-Nimingarra Agreement, the Marillana Creek Agreement, the
McCamey’s Monster Agreement, the Mount Goldsworthy Agreement and the
Mount Newman Agreement;
“Joint Venturers’ workforce”
means the persons (and the dependents of those persons) engaged whether as
employees, agents or contractors in the construction and operation of the gas
pipeline, the power station, the Newman facilities and any Port Hedland
facilities;
“Land Act” means the Land
Act 1933 ;
“laws relating to traditional usage”
means laws applicable from time to time in Western Australia in respect of
rights or entitlements to or interests in land or waters which rights,
entitlements or interests are acknowledged, observed or exercisable by
Aboriginal persons (whether communally or individually) in accordance with
Aboriginal traditions, observances, customs and beliefs;
“local authority” means the council of
a municipality that is a city, town or shire constituted under the Local
Government Act 1960 ;
“Marillana Creek Agreement” means the
Agreement (as amended from time to time) ratified by the
Iron Ore (Marillana Creek) Agreement Act 1991 ;
“McCamey’s Monster Agreement”
means the Agreement (as amended from time to time) the execution of which was
authorized by the Iron Ore (McCamey’s Monster) Agreement Authorization
Act 1972 ;
“Minister” means the Minister in the
Government of the State for the time being responsible for the administration
of the Act to ratify this Agreement and pending the passing of that Act means
the Minister for the time being designated in a notice from the State to the
Joint Venturers and includes the successors in office of the Minister;
“month” means calendar month;
“Mount Goldsworthy Agreement” means
the Agreement (as amended from time to time) approved by the
Iron Ore (Mount Goldsworthy) Agreement Act 1964 ;
“Mount Newman Agreement” means the
Agreement (as amended from time to time) approved by the
Iron Ore (Mount Newman) Agreement Act 1964 ;
“Newman facilities” means a system for
the transmission of electricity from the power station to Newman by way of a
220 kilovolt high voltage transmission line between the power station and
Newman and includes facilities to transmit electricity to operations carried
on pursuant to the Marillana Creek Agreement or, at the option of the Joint
Venturers, a gas turbine power station of at least 70 megawatts at Newman and
a gas pipeline system to that power station from an off-take point in the
vicinity of Newman on the proposed gas transmission pipeline between Dampier
and Kalgoorlie;
“notice” means notice in writing;
“Petroleum Pipelines Act” means the
Petroleum Pipelines Act 1969 ;
“person” or “persons”
includes bodies corporate;
“Port Hedland facilities” means the
facilities (if any) to be provided by the Joint Venturers to transmit
electricity from the power station to operations carried on at Port Hedland
pursuant to the Iron Ore Agreements and to mining operations under the
Goldsworthy-Nimingarra Agreement and the Mount Goldsworthy Agreement.
“power station” means a gas turbine
power station with a nominal total installed capacity of at least 100
megawatts;
“power station site” means the land
proposed by the Joint Venturers as the site for the power station as shown
coloured red on the plan marked “X” initialled by or on behalf of
the parties hereto for the purposes of identification or such other land
approved as the power station site pursuant to approved proposals;
“private roads” means the roads
referred to in subclause (1) of Clause 15 and any other roads
constructed by the Joint Venturers in accordance with an approved proposal or
agreed by the parties to be a private road for the purposes of this Agreement;
“processing agreement” means an
agreement entered into between the State and BHP Minerals Pty. Ltd. alone or
with a person or persons approved by the Minister and ratified by the
Parliament of Western Australia which creates obligations with regard to the
processing of iron ore in lieu of similar obligations existing at the date of
this Agreement under the Iron Ore Agreements other than the Mount Newman
Agreement;
“project” means the power station, the
gas pipeline, the Newman facilities and any Port Hedland facilities;
“public road” means a road as defined
by the Road Traffic Act 1974 ;
“Public Works Act” means the
Public Works Act 1902 ;
“said State” means the State of
Western Australia;
“State Energy Commission” means The
State Energy Commission of Western Australia as described in section 7 of
the State Energy Commission Act 1979 ;
“subclause” means subclause of the
Clause in which the term is used;
“this Agreement” “hereof”
and “hereunder” refer to this Agreement whether in its original
form or as from time to time added to varied or amended.
Interpretation
2. In this Agreement —
(a)
monetary references are references to Australian currency unless otherwise
specifically expressed;
(b)
power given under any clause other than Clause 28 to extend any period or
date shall be without prejudice to the power of the Minister under
Clause 28;
(c)
clause headings do not affect the interpretation or construction;
(d)
words in the singular shall include the plural and words in the plural shall
include the singular according to the requirements of the context;
(e) one
gender includes the other genders;
(f)
reference to an Act includes the amendments to that 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; and
(g) any
covenant or agreement on the part of the Joint Venturers hereunder shall be
deemed to be a joint and several covenant or agreement as the case may be.
Initial obligation of the State
3. The State shall introduce and sponsor a Bill in
the Parliament of Western Australia to ratify this Agreement and endeavour to
secure its passage as an Act prior to 31 December 1993 or such later
date as may be agreed between the parties hereto.
Ratification and operation
4. (1) The provisions
of this Agreement other than this Clause and Clauses 1, 2 and 3 shall not
come into operation unless and until —
(a) the
Bill to ratify this Agreement as referred to in Clause 3; and
(b) a
Bill to ratify the agreement referred to in recital (c) to this Agreement
are passed as Acts
before 31 December 1993 or such later date (if any) as the parties
hereto agree upon.
(2) If before
31 December 1993 or such later agreed date the said Bills have not
commenced to operate as Acts then unless the parties hereto otherwise agree
this Agreement shall then cease and determine and no party hereto shall 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.
(3) On the said Bills
commencing to operate as Acts all the provisions of this Agreement shall
operate and take effect notwithstanding the provisions of any Act or law.
Initial obligations of the Joint Venturers
5. (1) The Joint
Venturers shall continue their field and office engineering, environmental,
market and finance studies and other matters necessary to enable them to
finalise and to submit to the Minister the detailed proposals referred to in
Clause 6.
(2) The Joint
Venturers shall keep the State fully informed in writing quarterly as to the
progress and results of their activities under subclause (1).
(3) The Joint
Venturers shall cooperate with the State and consult with the representatives
or officers of the State regarding matters referred to in subclauses (1)
and (2) and any other relevant studies in relation to those subclauses that
the Minister may wish to undertake.
(4) For the purposes
of this Clause and to the extent reasonably necessary to enable the Joint
Venturers to carry out their obligations under this Clause subject to laws
relating to traditional usage and to the adequate protection of the
environment (including flora and fauna) —
(a) the
State shall, subject to the adequate protection of the land affected
(including improvements thereon), allow the Joint Venturers to enter upon
Crown lands (including land the subject of a pastoral lease); and
(b) the
Joint Venturers may subject to the Petroleum Pipelines Act and any
authorisations required under that Act enter land to carry out surveys and
other works in relation to the gas pipeline and in relation to the Newman
facilities and any Port Hedland facilities subject to section 82 of the
Public Works Act and authorisation pursuant to that section exercise the
powers set out in that section as if those facilities were works under that
Act.
Joint Venturers to submit proposals
6. (1) Subject to and
in accordance with the EP Act, the laws relating to traditional usage and the
provisions of this Agreement the Joint Venturers shall on or before
30 June 1994 submit to the Minister to the fullest extent reasonably
practicable their detailed proposals (including plans where practicable and
specifications where reasonably required by the Minister and any other details
normally required by the local authority in which area any of the works are to
be situated and by the State Energy Commission in relation to electricity
generating or transmission works) with respect to the establishment and
operation of the project and shall include the location, area, gas pipelines
and transmission line routes, lay-out, design, quantities, materials and time
programme for the commencement and completion of construction or the provision
(as the case may be) of each of the following matters, namely —
(a) the
power station site and routes for gas pipeline or pipelines and electricity
transmission lines and any leases, licences or easements of land required from
the State;
(b) the
power station;
(c) the
gas pipeline;
(d) the
Newman facilities;
(e) any
Port Hedland facilities desired by the Joint Venturers;
(f)
roads serving the power station, the gas pipeline the Newman facilities and
any Port Hedland facilities;
(g)
accommodation and ancillary facilities for the Joint Venturers’
workforce on or in the vicinity of the power station site and housing or other
appropriate accommodation and facilities generally for the Joint
Venturers’ workforce;
(h)
water supply;
(i)
any other works, services or facilities desired by the
Joint Venturers;
(j) use
of local labour professional services manufacturers suppliers contractors and
materials; and
(k) an
environmental management programme as to measures to be taken in respect of
the Joint Venturers’ activities under this Agreement, for rehabilitation
and the protection and management of the environment.
Order of proposals
(2) Each of the
proposals pursuant to subclause (1) may with the approval of the Minister
or if so required by him be submitted separately and in any order as to the
matter or matters mentioned in one or more of paragraphs (a) to (k) of
subclause (1).
Use of existing infrastructure
(3) The proposals
relating to any of the matters mentioned in subclause (1) of this Clause
may with the approval of the Minister and that of any third parties concerned
instead of providing for the construction of new facilities of the kind
therein mentioned other than the gas pipeline, the power station and the
Newman facilities (other than any gas pipeline forming part of those
facilities) provide for the use by the Joint Venturers upon reasonable terms
and conditions of any existing facilities of such kind.
Additional submissions
(4) At the time when
the Joint Venturers submit the said proposals they shall submit to the
Minister details of any services (including any elements of the project
investigations design and management) and any works materials plant equipment
and supplies that they propose to consider obtaining from or having carried
out or permitting to be obtained from or carried out outside Australia
together with their reasons therefor and shall, if required by the Minister,
consult with the Minister with respect thereto.
Consideration of proposals
7. (1) Subject to the
EP Act and laws relating to traditional usage, in respect of each proposal
pursuant to subclause (1) of Clause 6 the Minister
shall —
(a)
approve of the proposal without qualification or reservation; or
(b)
defer consideration of or decision upon the same until such time as the Joint
Venturers submit a further proposal or proposals in respect of some other of
the matters mentioned in subclause (1) of Clause 6 not covered by
the said proposal; or
(c)
require as a condition precedent to the giving of his approval to the said
proposal that the Joint Venturers make such alteration thereto or comply with
such conditions in respect thereto as he (having regard to the circumstances
including the overall development of and the use by others as well as the
Joint Venturers of all or any of the facilities proposed to be provided)
thinks reasonable and in such a case the Minister shall disclose his reasons
for such alterations or conditions,
PROVIDED ALWAYS that
where implementation of any proposals hereunder have been approved pursuant to
the EP Act subject to conditions or procedures, any approval or decision of
the Minister under this Clause shall if the case so requires incorporate a
requirement that the Joint Venturers make such alterations to the proposals as
may be necessary to make them accord with those conditions or procedures.
Advice of Minister’s decision
(2) The Minister shall
within two months after receipt of proposals pursuant to subclause (1) of
Clause 6 or where the proposals are to be assessed under
section 40(1)(b) of the EP Act or where laws relating to traditional
usage apply then within two months after service on him of an authority under
section 45(7) of the EP Act or satisfaction of the requirements under
laws relating to traditional usage (as the case may be) give notice to the
Joint Venturers of his decision in respect to the proposals.
Consultation with Minister
(3) If the decision of
the Minister is as mentioned in either of paragraphs (b) or (c) of
subclause (1) the Minister shall afford the Joint Venturers full
opportunity to consult with him and should they so desire to submit new or
revised proposals either generally or in respect to some particular matter.
Minister’s decision subject to arbitration
(4) If the decision of
the Minister is as mentioned in either of paragraphs (b) or (c) of
subclause (1) and the Joint Venturers consider that the decision is
unreasonable the Joint Venturers within two months after receipt of the notice
mentioned in subclause (2) may elect to refer to arbitration in the
manner hereinafter provided the question of the reasonableness of the decision
PROVIDED THAT any requirement of the Minister pursuant to the proviso to
subclause (1) shall not be referable to arbitration hereunder.
Arbitration award
(5) An award made on
an arbitration pursuant to subclause (4) shall have force and effect as
follows —
(a) if
by the award the dispute is decided against the Joint Venturers then unless
the Joint Venturers within 3 months after delivery of the award give
notice to the Minister of their acceptance of the award this Agreement shall
on the expiration of that period of 3 months cease and determine; or
(b) if
by the award the dispute is decided in favour of the Joint Venturers the
decision shall take effect as a notice by the Minister that he is so satisfied
with and approves the matter or matters the subject of the arbitration.
Effect of non-approval of proposals
(6) Notwithstanding
that under subclause (1) any proposals of the Joint Venturers are
approved by the Minister or determined by arbitration award, unless each and
every such proposal and matter is so approved or determined by
30 June 1995 or by such extended date or period if any as the Joint
Venturers shall be granted or be entitled to pursuant to the provisions of
this Agreement then the Minister may give to the Joint Venturers
12 months notice of intention to determine this Agreement and unless
before the expiration of the said 12 months period all the detailed
proposals and matters are so approved or determined this Agreement shall cease
and determine subject however to the provisions of Clause 30.
Implementation of proposals
(7) Subject to and in
accordance with the EP Act and any approvals and licences required under that
Act and laws relating to traditional usage the Joint Venturers shall implement
the approved proposals in accordance with the terms thereof so that each of
the power station, the gas pipeline, the Newman facilities and any Port
Hedland facilities is constructed by 31 December 1996. For the
purpose of this subclause, the power station, the gas pipeline, the Port
Hedland facilities and the Newman facilities shall be deemed to be constructed
when they are able to be used for the purposes for which they were built.
Extension or termination of Agreement
8. (1) The dates set
forth in subclause (1) of Clause 6 and subclauses (6) and (7)
of Clause 7 will be extended (in addition to any extension granted
pursuant to Clause 27 or 28) upon request of either the Joint Venturers
or the State for such reasonable period or periods as may be necessary from
time to time to enable either of the parties hereto to comply with laws
relating to traditional usage.
(2) The Joint
Venturers may at any time before the approval or determination of the
proposals required pursuant to subclause (1) of Clause 6 determine
this Agreement by notice to the State whereupon this Agreement shall cease and
determine and neither the state nor the Joint Venturers shall have any claim
against the other of them with respect to any matter or thing arising out of,
done, performed or omitted to be done or performed under this Agreement.
Additional proposals
9. (1) If the Joint
Venturers at any time during the continuance of this Agreement desire to
significantly modify expand or otherwise vary their activities carried on
pursuant to any approved proposals they shall give notice of such desire to
the Minister and within 2 months thereafter shall submit to the Minister
detailed proposals in respect of all matters covered by such notice and such
of the other matters mentioned in paragraphs (a) to (k) of
subclause (1) of Clause 6 as the Minister may require.
(2) The provisions of
Clause 6 and Clause 7 (other than subclauses (5), (6) and (7)
of Clause 7) shall mutatis mutandis apply to detailed proposals submitted
pursuant to this Clause with the proviso that the Joint Venturers may withdraw
such proposals at any time before approval thereof or, where any decision of
the Minister in respect thereof is referred to arbitration, within
3 months after the award by notice to the Minister that they shall not be
proceeding with the same. Subject to and in accordance with the EP Act and any
approvals and licences required under that Act and laws relating to
traditional usage the Joint Venturers shall implement approved proposals
pursuant to this Clause in accordance with the terms thereof.
Petroleum Pipelines Act modification
10. (1) The Joint
Venturers shall provide to the Minister, as part of their proposals for the
gas pipeline pursuant to subclause (1) of Clause 6 and for any gas
pipeline forming part of the Newman facilities, the information and other
matters referred to in paragraphs (c) — (j) of
section 8(1) of the Petroleum Pipelines Act and sections 8(2), 8(3),
8(4) and 8(5) shall apply mutatis mutandis to those proposals as if those
proposals were an application for a licence under that Act but otherwise
section 8 of that Act shall not apply in relation to the gas pipeline.
(2) For the purposes
of this Agreement in respect of the gas pipeline and any gas pipeline forming
part of the Newman facilities and any licence or licences relating thereto the
Petroleum Pipelines Act shall be deemed modified by —
(a) the
substitution for section 10 of the following section —
“10. The
Minister may on application made pursuant to clause 11(1) of the
agreement (as amended from time to time) ratified by the
Pilbara Energy Project Agreement Act 1994 grant a licence in accordance
with the provisions of that agreement and cause to be published in the
Government Gazette a notice that the licence has been granted.”;
(b) in
subsection (5) of section 21 by inserting —
(i)
after “own petroleum” the
following —
“or petroleum of
other persons which the licensee has contracted to convey”; and
(ii)
after “so conveyed” the
following —
“Provided that
any direction as to amounts to be paid shall not be determined until after
consultation between the Minister, the Minister administering the
Pilbara Energy Project Agreement Act 1994 and the Joint Venturers under
the agreement ratified by that Act”;
(c) the
deletion of paragraph (c) in the definition of “pipeline” in
section 4;
and
(d) the
deletion of sections 9, 11, 12, 13, 19, 24, 26, 27 and 28.
Lands
11. (1) On application
made by the Joint Venturers, not later than 3 months after all their
proposals submitted pursuant to subclause (1) of Clause 6 have been
approved or determined and the Joint Venturers have complied with the
provisions of subclause (4) of Clause 6, the State shall in
accordance with the approved proposals grant to the Joint Venturers, or
arrange to have the appropriate authority or other interested instrumentality
of the State grant, for periods coterminous with the mineral lease defined in
clause 1 of the Mount Newman Agreement or other periods agreed between
the Joint Venturers and the State and on such terms and conditions as shall be
reasonable having regard to the requirements of the Joint
Venturers —
(a) a
lease of the power station site;
(b) a
pipeline licence in respect of the gas pipeline and any gas pipeline forming
part of the Newman facilities;
(c)
leases or easements for access roads to the Joint venturers’ works under
this Agreement; and
(d)
other leases licences or easements as appropriate in respect of the project
under and, except as
otherwise provided in this Agreement, subject to the Land Act or the
Petroleum Pipelines Act as the case may require (each as modified by this
Agreement).
Licence fees and rentals
(2) (a)
The Joint Venturers shall pay in respect of the
pipeline licences referred to in paragraph (b) of subclause (1) and
any other licences granted hereunder pursuant to the Petroleum Pipelines Act,
licence fees in accordance with the Petroleum Pipelines Act.
(b) In
respect of other licences and leases and easements granted hereunder the Joint
Venturers shall pay reasonable rentals or other reasonable amounts to be
agreed between the Minister and the Joint Venturers.
Modification of Land Act
(3) For the purpose of
this Agreement in respect of any land leased to the Joint Venturers by the
State the Land Act shall be deemed to be modified by —
(a) the
substitution for subsection (2) of section 45A of the following
subsection —
“(2) Upon the
Minister signifying approval pursuant to subsection (1) of this section
in respect of any such land the same may subject to this section be
leased.”;
(b) the
deletion of the proviso to section 116;
(c) the
deletion of section 135;
(d) the
deletion of section 143;
(e) the
inclusion of a power to grant occupancy rights over land on such terms and
conditions as the Minister for Lands may determine;
(f) the
inclusion of a power to grant leases or licences for terms or periods and on
such terms and conditions (including renewal rights) and in forms consistent
with the provisions of this Agreement in lieu of the terms or periods, the
terms and conditions and the forms referred to in the Land Act .
The provisions of this
subclause shall not operate so as to prejudice the rights of the State to
determine any lease licence or other right or title in accordance with the
other provisions of this Agreement.
Stone sand clay and gravel
(4) The State shall in
accordance with approved proposals grant to the Joint Venturers a mining lease
or mining leases for the obtaining of stone sand clay and gravel for the
construction of the project such mining lease or mining leases to be granted
under and, except as otherwise provided herein, subject to the
Mining Act 1978 but limited in term to a reasonable period required for
construction of the project and rehabilitation in accordance with the approved
proposals of the leased areas. No royalty shall be payable under the
Mining Act 1978 in respect of stone sand clay and gravel obtained from
any such mining lease.
Surrounding land
(5) With respect to
the area coloured blue on the said plan marked “X” (“the
blue area”) the State shall ensure —
(a) that
the boundaries of the Port Hedland Town Planning Scheme within the blue area
at the date of this Agreement shall not be altered;
(b) that
the part of the blue area within those boundaries shall not be zoned urban;
and
(c) that
neither the State nor its agencies shall approve residential development in
the part of the blue area outside those boundaries
without in each case
prior consultation with the Joint Venturers by the Minister.
Use of local labour professional services and materials
12. (1) The Joint
Venturers shall, for the purposes of this Agreement —
(a)
except in those cases where the Joint Venturers can demonstrate it is
impracticable so to do, use labour available within Western Australia or if
such labour is not available then, except as aforesaid, use labour otherwise
available within Australia;
(b) as
far as it is reasonable and economically practicable so to do, use the
services of engineers surveyors architects and other professional consultants
experts and specialists, project managers, manufacturers, suppliers and
contractors resident and available within Western Australia or if such
services are not available within Western Australia then, as far as
practicable as aforesaid, use the services of such persons otherwise available
within Australia;
(c)
during design and when preparing specifications, calling for tenders and
letting contracts for works materials plant equipment and supplies (which
shall at all times, except where it is impracticable so to do, use or be based
upon Australian Standards and Codes) ensure that suitably qualified Western
Australian and Australian suppliers manufacturers and contractors are given
fair and reasonable opportunity to tender or quote;
(d) give
proper consideration and where possible preference to Western Australian
suppliers manufacturers and contractors when letting contracts or placing
orders for works, materials, plant, equipment and supplies where price quality
delivery and service are equal to or better than that obtainable elsewhere or,
subject to the foregoing, give that consideration and where possible
preference to other Australian suppliers manufacturers and contractors; and
(e) if
notwithstanding the foregoing provisions of this subclause a contract is to be
let or an order is to be placed with other than a Western Australian or
Australian supplier, manufacturer or contractor, give proper consideration and
where possible preference to tenders arrangements or proposals that include
Australian participation.
(2) Except as
otherwise agreed by the Minister the Joint Venturers shall in every contract
entered into with a third party for the supply of services labour works
materials plant equipment or supplies for the purposes of this Agreement
require as a condition thereof that such third party shall undertake the same
obligations as are referred to in subclause (1) and shall report to the
Joint Venturers concerning such third party’s implementation of that
condition.
(3) The Joint
Venturers shall submit a report to the Minister at monthly intervals or such
longer period as the Minister determines commencing from the date of this
Agreement concerning their implementation of the provisions of this Clause
together with a copy of any report received by the Joint Venturers pursuant to
subclause (2) during that month or longer period as the case may be
PROVIDED THAT the Minister may agree that any such reports need not be
provided in respect of contracts of such kind or value as the Minister may
from time to time determine.
(4) The Joint
Venturers shall keep the Minister informed on a regular basis as determined by
the Minister from time to time or otherwise as required by the Minister during
the currency of this Agreement of any services (including any elements of the
project investigations design and management) and any works materials plant
equipment and supplies that it may be proposing to obtain from or have carried
out or permit to be obtained from or carried out outside Australia together
with its reasons therefor and shall as and when required by the Minister
consult with the Minister with respect thereto.
Protection and management of the environment
13. (1) The Joint
Venturers shall in respect of the matters referred to in paragraph (k) of
subclause (1) of Clause 6 and which are the subject of approved
proposals, carry out a continuous programme including monitoring to ascertain
the effectiveness of the measures they are taking pursuant to such approved
proposals for rehabilitation and the protection and management of the
environment and shall as and when reasonably required by the Minister from
time to time submit to the Minister a detailed report thereon.
(2) Whenever as a
result of their activities pursuant to subclause (1) or otherwise
information becomes available to the Joint Venturers which in order to more
effectively rehabilitate, protect or manage the environment may necessitate or
could require any changes or additions to any approved proposals or require
matters not addressed in any such proposals to be addressed the Joint
Venturers shall forthwith notify the Minister thereof and with such
notification shall submit a detailed report thereon.
(3) The Minister may
within 2 months of the receipt of a detailed report pursuant to
subclauses (1) or (2) notify the Joint Venturers that he requires
additional detailed proposals to be submitted in respect of all or any of the
matters the subject of the report and such other reasonable matters as the
Minister may require in connection therewith.
(4) The Joint
Venturers shall within 2 months of receipt of a notice given pursuant to
subclause (3) submit to the Minister additional detailed proposals as
required and the provisions of subclauses (1), (2), (3) and (4) of
Clause 7 shall mutatis mutandis apply.
(5) Subject to and in
accordance with the EP Act and any approvals and licences required under that
Act the Joint Venturers shall implement the decision of the Minister or any
award on arbitration as the case may be in accordance with the terms thereof.
14. For the purpose of this Agreement in respect
of the construction and operation of the power station, the Newman facilities
and any Port Hedland facilities the Electricity Act shall be deemed to be
modified by —
(a) the
deletion of sections 7, 8, 12, 13(4), (5) and (6), 17, 32(1)(a), (d) and
(1) and 43;
(b) the
deletion of “Commission” wherever it occurs in
sections 13(1), (2) and (3), 14, 16 and 20 and the substitution in each
case of the following —
“Minister”;
(c) in
section 28 —
(i)
by inserting after “this Act” in
paragraph (a) the following —
“as modified by
the Agreement (as amended from time to time) ratified by the
Pilbara Energy Project Agreement Act 1994 ”; and
(ii)
by inserting after “the Act” the
following —
“as modified as
aforesaid”; and
(d) the
addition at the end of section 33(1) of the following
proviso —
“PROVIDED THAT
to the extent of any inconsistency between approved proposals under the
agreement (as amended from time to time) ratified by the
Pilbara Energy Project Agreement Act 1994 and any by-laws made pursuant
to this subsection, the approved proposals will prevail.”.
Roads — Private roads
15. (1) The Joint
Venturers shall —
(a) be
responsible for the cost of the construction and maintenance of all private
roads which shall be used in their activities hereunder;
(b) at
their own cost erect signposts and take other steps that may be reasonable in
the circumstances to prevent any persons and vehicles other than those engaged
upon the Joint Venturers’ activities and their invitees and licensees
from using the private roads; and
(c) at
any place where any private roads are constructed by the Joint Venturers so as
to cross any railways or public roads provide at their cost such reasonable
protection and signposting as may be required by the Commissioner of Main
Roads or the Railways Commission as the case may be.
Maintenance of public roads
(2) The State shall
maintain or cause to be maintained those public roads under the control of the
Commissioner of Main Roads or a local authority which may be used by the Joint
Venturers for the purposes of this Agreement to a standard similar to
comparable public roads maintained by the Commissioner of Main Roads or a
local authority as the case may be.
Upgrading of public roads
(3) In the event that
for or in connection with the Joint Venturers’ activities hereunder the
Joint Venturers or any person engaged by the Joint Venturers uses or wishes to
use a public road (whether referred to in subclause (2) or otherwise)
which is inadequate for the purpose, or any use by the Joint Venturers or any
person engaged by the Joint Venturers of any public road results in excessive
damage to or deterioration thereof (other than fair wear and tear) the Joint
Venturers shall pay to the State or the local authority as the case may
require the whole or an equitable part of the total cost of any upgrading
required or of making good the damage or deterioration as may be reasonably
required by the Commissioner of Main Roads having regard to the use of such
public road by others.
Acquisition of private roads
(4) Where a road
constructed by the Joint Venturers for their own use is subsequently required
for public use, the State may, after consultation with the Joint Venturers and
so long as resumption thereof shall not unduly prejudice or interfere with the
activities of the Joint Venturers under this Agreement, resume and dedicate
such road as a public road. Upon any such resumption the State shall pay to
the Joint Venturers such amount as is reasonable.
Water
16. The water requirements of the Joint Venturers
for their operations under this Agreement shall be obtained in accordance with
the provisions of the Water Authority Act 1984 or other relevant Act.
Access to integrated power systems
17. (1) The State
shall ensure that the State Energy Commission shall, where it is reasonable
and practicable so to do, grant the Joint Venturers access for bulk
electricity transmission at a capacity of not less than 66 kilovolts to any
integrated system of power supply of the State Energy Commission in the
Pilbara area for the purpose of the supply of electricity to operations
carried on pursuant to the Iron Ore Agreements or any of them or the
processing agreement (if any) but any such access shall be subject to
arrangements to be agreed between the Joint Venturers and the State Energy
Commission or, failing agreement, determined by the Minister.
(2) The Joint
Venturers are empowered to enter into any arrangements for the sale and
exchange of power to or with the State Energy Commission as may be agreed
between the Joint Venturers and the State Energy Commission.
Gas Undertakings Act exemption
18. The provisions of the
Gas Undertakings Act 1947 shall have no application to the Joint
Venturers in relation to sales by the Joint Venturers for industrial purposes
of gas conveyed through the gas pipeline.
Training levy exemption
19. The provisions of the
Building and Construction Industry Training Levy Act 1990 and the
Building and Construction Industry Training Fund and Levy Collection
Act 1990 shall have no application to the Joint Venturers when acting
pursuant to and in accordance with the provisions of this Agreement.
Zoning
20. The State shall ensure after consultation with
the relevant local authority that the power station site and any other lands
the subject of any lease, licence or easement granted to the Joint Venturers
under this Agreement shall be and remain zoned for use or otherwise protected
during the currency of this Agreement so that the activities of the Joint
Venturers hereunder may be undertaken and carried out thereon without any
interference or interruption by the State or by any State agency or
instrumentality or by any local or other authority of the State on the ground
that such activities are contrary to any zoning by-law regulation or order.
Rating
21. (1) The State
shall ensure that notwithstanding the provisions of any Act or anything done
or purported to be done under any Act the valuation of the lands the subject
of any lease licence or easement granted pursuant to this Agreement (except
any parts of such lands on which accommodation units or housing for the Joint
Venturers’ workforce is erected or which is occupied in connection with
such accommodation units or housing and except as to any part upon which there
stands any improvements that are used in connection with a commercial
undertaking not directly related to the activities carried out by the Joint
Venturers pursuant to approved proposals) shall for rating purposes under the
Local Government Act 1960 , be deemed to be on the unimproved value
thereof and no such lands shall be subject to any discriminatory rate.
(2) It is hereby
declared and agreed that the provisions of section 533B of the Local
Government Act 1960 shall not apply to any lands the subject of this
Agreement.
No discriminatory rates
22. Except as provided in this Agreement the State
shall not impose, nor shall it permit or authorise any of its agencies or
instrumentalities or any local or other authority of the State to impose
discriminatory taxes rates or charges of any nature whatsoever on or in
respect of the titles property or other assets products materials or services
used or produced by or through the activities of the Joint Venturers in the
conduct of their business hereunder nor will the State take or permit to be
taken by any such State authority any other discriminatory action which would
deprive the Joint Venturers of full enjoyment of the rights granted and
intended to be granted under this Agreement.
No resumption
23. Subject to the performance by the Joint
Venturers of their obligations under this Agreement the State shall not during
the currency of this Agreement without the consent of the Joint Venturers
resume nor suffer nor permit to be resumed by any State instrumentality or by
any local or other authority of the State any of the works installations plant
equipment or other property for the time being belonging to the Joint
Venturers and the subject of or used for the purpose of this Agreement AND
without the consent of the Joint Venturers (which shall not be unreasonably
withheld) the State shall not create or grant or permit or suffer to be
created or granted by any instrumentality or authority of the State as
aforesaid any road right-of-way water right or easement of any nature or kind
whatsoever over or in respect of the power station site which may unduly
prejudice or interfere with the Joint Venturers’ activities under this
Agreement.
Resumption for the purposes of this Agreement
24. (1) The State is
hereby empowered to resume as and for a public work under the
Public Works Act, any land required for the gas pipeline, the power station
site, the Newman facilities and any Port Hedland facilities in accordance with
approved proposals and notwithstanding any other provisions of that Act may
grant leases licenses or easements of that land to the Joint Venturers and the
provisions of subsections (2) to (7) inclusive of section 17 and
section 17A of that Act shall not apply to or in respect of that land or
the resumption thereof. The Joint Venturers shall pay to the State on demand
the costs of and incidental to any land resumed at the request of and on
behalf of the Joint Venturers.
(2) For the purposes
of this Agreement, and in the Public Works Act, when construed for the
purposes of this Agreement, a reference to “land” shall be read as
extending to any land, or to any portion of any land, or to the subsoil,
surface or airspace relating thereto and to any estate, right, title,
easement, lease, licence, privilege, or other interest, in, over, under,
affecting or in connection with that land or any portion, stratum or other
specified sector of that land (whether or not that interest is an interest
recognisable at Common Law).
Assignment
25. (1) Subject to the
provisions of this Clause the Joint Venturers or any of them may at any time
with the consent of the Minister assign mortgage charge sublet or dispose of
to each other or to any other company or person the whole or any part of the
rights of the Joint Venturers hereunder (including their rights to or as the
holders of any lease licence or easement) and of the obligations of the Joint
Venturers hereunder subject however in the case of an assignment subletting or
disposition to the assignee sublessee or disponee (as the case may be)
executing in favour of the State (unless the Minister otherwise determines) a
deed of covenant in a form to be approved by the Minister to comply with
observe and perform the provisions hereof on the part of the Joint Venturers
to be complied with observed or performed in regard to the matter or matters
the subject of such assignment subletting or disposition.
(2) Notwithstanding
anything contained in or anything done under or pursuant to subclause (l)
the Joint Venturers shall at all times during the currency of this Agreement
be and remain liable for the due and punctual performance and observance of
all the covenants and agreements on their part contained in this Agreement and
in any lease licence or easement the subject of an assignment mortgage
subletting or disposition under subclause (1) PROVIDED THAT the Minister
may agree to release the Joint Venturers or any of them from such liability
where the Minister considers such release will not be contrary to the
interests of the State.
(3) Notwithstanding
the provisions of the Land Act and the Petroleum Pipelines Act , insofar as
the same or any of them may apply —
(a) no
assignment mortgage charge sublease or disposition made or given pursuant to
this Clause during the currency of this Agreement of or over any lease licence
or easement granted under or pursuant to this Agreement by the Joint Venturers
or any assignee sublessee or disponee who has executed and is for the time
being bound by deed of covenant made pursuant to this Clause; and
(b) no
transfer assignment mortgage or sublease made or given during the currency of
the Agreement in exercise of any power contained in any such mortgage or
charge
shall require any
approval or consent other than such consent as may be necessary under this
Clause.
Variation
26. (1) The parties to
this Agreement may from time to time by agreement in writing add to substitute
for cancel or vary all or any of the provisions of this Agreement or of any
lease licence easement grant or other title granted under or pursuant to this
Agreement for the purpose of more efficiently or satisfactorily implementing
or facilitating any of the objects of this Agreement.
(2) The Minister shall
cause any agreement made pursuant to subclause (1) in respect of any
addition substitution cancellation or variation of the provisions of this
Agreement to be laid on the Table of each House of Parliament within 12
sitting days next following its execution.
(3) Either House may,
within 12 sitting days of that House after the agreement has been laid before
it pass a resolution disallowing the agreement, but if after the last day on
which the agreement might have been disallowed neither House has passed such a
resolution the agreement shall have effect from and after that last day.
Force majeure
27. This Agreement shall be deemed to be made
subject to any delays in the performance of the obligations under this
Agreement and to the temporary suspension of continuing obligations under this
Agreement that may be caused by or arise from circumstances beyond the power
and control of the party responsible for the performance of those obligations
including without limiting the generality of the foregoing delays or any such
temporary suspension as aforesaid caused by or arising from act of God force
majeure earthquakes floods storms tempest washaways fire (unless caused by the
actual fault or privity of the party responsible for such performance) act of
war act of public enemies riots civil commotions strikes lockouts stoppages
restraint of labour or other similar acts (whether partial or general) acts or
omissions of the Commonwealth shortages of labour or essential materials
reasonable failure to secure contractors delays of contractors and factors due
to overall world economic conditions or factors due to action taken by or on
behalf of any government or governmental authority (other than the State or
any authority of the State) or factors that could not reasonably have been
foreseen PROVIDED ALWAYS that the party whose performance of obligations is
affected by any of the said causes shall promptly give notice to the other
party of the event or events and shall use its best endeavours to minimise the
effects of such causes as soon as possible after the occurrence.
Power to extend periods
28. Notwithstanding any provision of this
Agreement the Minister may at the request of the Joint Venturers from time to
time extend or further extend any period or vary or further vary any date
referred to in this Agreement or in any approved proposal for such period or
to such later date as the Minister thinks fit whether or not the period to be
extended has expired or the date to be varied has passed.
Determination of Agreement
29. (1) In any of the
following events namely if —
(a)
(i) the Joint Venturers make
default which the State considers material in the due performance or
observance of any of the covenants or obligations of the Joint Venturers in
this Agreement or in any lease licence or easement granted or assigned under
this Agreement on their part to be performed or observed;
or
(ii)
the Joint Venturers abandon or repudiates this Agreement
or their activities under this Agreement
and such default is
not remedied or such activities resumed within a period of 180 days after
notice is given by the State as provided in subclause (2) or, if the
default or abandonment is referred to arbitration, then within the period
mentioned in subclause (3); or
(b) the
Joint Venturers or any of them go into liquidation (other than a voluntary
liquidation for the purpose of reconstruction) and unless within 3 months
from the date of such liquidation the interest of the Joint Venturer is
assigned to another Joint Venturer or to an assignee approved by the Minister
under Clause 25
the State may by
notice to the Joint Venturers determine this Agreement.
(2) The notice to be
given by the State in terms of paragraph (a) of subclause (1) shall
specify the nature of the default or other ground so entitling the State to
exercise such right of determination and where appropriate and known to the
State the party or parties responsible therefor and shall be given to the
Joint Venturers and all such assignees mortgagees chargees and disponees for
the time being of the Joint Venturers said rights to or in favour of whom or
by whom an assignment mortgage charge or disposition has been effected in
terms of Clause 25 whose name and address for service of notice has
previously been notified to the State by the Joint Venturers or any such
assignee mortgagee chargee or disponee.
(3) (a)
If the Joint Venturers contest the alleged default
abandonment or repudiation referred to in paragraph (a) of
subclause (1) the Joint Venturers shall within 60 days after notice
given by the State as provided in subclause (2) refer the matter in
dispute to arbitration.
(b) If
the question is decided against the Joint Venturers, the Joint Venturers shall
comply with the arbitration award within a reasonable time to be fixed by that
award PROVIDED THAT if the arbitrator finds that there was a bona fide dispute
and that the Joint Venturers was not dilatory in pursuing the arbitration, the
time for compliance with the arbitration award shall not be less than
90 days from the date of such award.
(4) If the default
referred to in paragraph (a) of subclause (1) shall not have been
remedied after receipt of the notice referred to in that subclause or within
the time fixed by the arbitration award as aforesaid the State instead of
determining this Agreement as aforesaid because of such default may itself
remedy such default or cause the same to be remedied (for which purpose the
State by agents workmen or otherwise shall have full power to enter upon lands
occupied by the Joint Venturers and to make use of all plant machinery
equipment and installations thereon) and the actual costs and expenses
incurred by the State in remedying or causing to be remedied such default
shall be a debt payable by the Joint Venturers to the State on demand.
Effect of cessation or determination of Agreement
30. (1) On the
cessation or determination of this Agreement pursuant to subclause (6) of
Clause 7 or Clause 29 —
(a)
except as otherwise agreed by the Minister the rights of the Joint Venturers
to in or under this Agreement and the rights of the Joint Venturers or of any
assignee of the Joint Venturers or any mortgagee to in or under any lease
licence or easement or right granted hereunder or pursuant hereto shall
thereupon cease and determine but without prejudice to the liability of either
of the parties hereto in respect of any antecedent breach or default under
this Agreement or in respect of any indemnity given under this Agreement;
(b) the
Joint Venturers shall forthwith pay to the State all moneys which may then
have become payable or accrued due;
(c) save
as aforesaid and as otherwise provided in this Agreement neither of the
parties shall have any claim against the other of them with respect to any
matter or thing in or arising out of this Agreement.
(2) Subject to the
provisions of subclause (3) upon the cessation or determination of this
agreement except as otherwise determined by the Minister all buildings
erections and other improvements (including the gas pipeline, any gas pipeline
forming part of the Newman facilities and all electricity transmission works
constructed pursuant to this Agreement) erected on any land then occupied by
the Joint Venturers under any other lease licence easement grant or other
title made under or pursuant to this Agreement shall become and remain the
absolute property of the State without the payment of any compensation or
consideration to the Joint Venturers or any other party and freed and
discharged from all mortgages and other encumbrances and the Joint Venturers
shall do and execute all such deeds documents and other acts matters and
things (including surrenders) as the State may reasonably require to give
effect to the provisions of this subclause.
(3) In the event of
the Joint Venturers immediately prior to the cessation or determination of
this Agreement or within three months after such cessation or determination
desiring to remove any of their fixed or movable plant and equipment
(including gas turbines at the power station and any power station constructed
hereunder at Newman) or any part thereof from any part of the land occupied by
them at the date of such cessation or determination they shall give to the
State notice of such desire and thereby shall grant to the State the right or
option exercisable within 3 months thereafter to purchase in situ such
fixed or moveable plant and equipment at a fair valuation to be agreed between
the parties or failing agreement determined by arbitration under this
Agreement.
Environmental protection
31. Nothing in this Agreement shall be construed
to exempt the Joint Venturers from compliance with any requirement in
connection with the protection of the environment arising out of or incidental
to its activities under this Agreement that may be made pursuant to the EP
Act.
Indemnity
32. The Joint Venturers shall indemnify and keep
indemnified the State and its servants agents and contractors in respect of
all actions suits claims demands or costs of third parties arising out of or
in connection with any work carried out by or on behalf of the Joint Venturers
pursuant to this Agreement or relating to their activities hereunder or
arising out of or in connection with the construction maintenance or use by
the Joint Venturers or their servants agents contractors or assignees of the
Joint Venturers’ works or services the subject of this Agreement or the
plant apparatus or equipment installed in connection therewith PROVIDED THAT
the foregoing provisions of this Clause shall not apply to any resumption by
the State pursuant to Clause 24 AND PROVIDED FURTHER THAT subject to the
provisions of any other relevant Act such indemnity shall not apply in
circumstances where the State, its servants, agents, or contractors are
negligent in carrying out work for the Joint Venturers pursuant to this
Agreement.
Commonwealth licences and covenants
33. (1) The Joint
Venturers shall from time to time make application to the Commonwealth or to
the Commonwealth constituted agency, authority or instrumentality concerned
for the grant to them of any licence or consent under the laws of the
Commonwealth necessary to enable or permit the Joint Venturers to enter into
this Agreement and to perform any of their obligations hereunder.
(2) On request by the
Joint Venturers the State shall make representations to the Commonwealth or to
the Commonwealth constituted agency authority or instrumentality concerned for
the grant to the Joint Venturers of any licence or consent mentioned in
subclause (1).
Subcontracting
34. The State shall ensure that without affecting
the liabilities of the parties under this Agreement either party shall have
the right from time to time to entrust to third parties the carrying out of
any portions of the activities which it is authorised or obliged to carry out
hereunder.
Stamp duty exemption
35. (1) The State
shall exempt from any stamp duty which but for the operation of this Clause
would or might be assessed and chargeable on —
(a) this
Agreement;
(b) any
instrument executed by the State pursuant to this Agreement granting to or in
favour of the Joint Venturers or any permitted assignee any lease licence or
easement; and
(c)
assignments made in conformity with the provisions of subclause (1) of
Clause 25 as follows —
(i)
an assignment by BHP Power Holdings Pty. Ltd. to Mitsui
Iron Ore Corporation Pty. Ltd. or a related body corporate of that company;
(ii)
an assignment by BHP Energy Holdings Pty. Ltd. to CI
Minerals Australia Pty Ltd or a related body corporate of that company;
or
(d)
subject to paragraph (b) of subclause (2) —
(i)
a purchase by Mitsui Iron Ore Corporation Pty. Ltd. or a
related body corporate of that company of all the issued share capital of
BHP Power Holdings Pty. Ltd.;
(ii)
a purchase by CI Minerals Australia Pty. Ltd. or a
related body corporate of that company of all the issued share capital of BHP
Energy Holdings Pty. Ltd.;
PROVIDED THAT this
subclause shall not apply to any instrument or other document executed or made
more than 2 years from the date hereof.
(2) (a)
In subclause (1), “related body
corporate” means a body corporate related within the meaning of that
term as used in section 50 of the Corporations Law.
(b) The
provisions of paragraph (d) of subclause (1) shall only apply if at
the time of a purchase therein mentioned the only assets of the company the
share capital of which is being purchased are its interest in this Agreement
and any property held or developed for the purpose of this Agreement.
(3) If prior to the
date on which the Bill referred to in Clause 3 to ratify this Agreement
is passed as an Act stamp duty has been assessed and paid on any instrument or
other document or transaction referred to in subclause (1) the State when
such Bill is passed as an Act shall on demand refund any stamp duty paid on
any such instrument or other document or transaction to the person who paid
the same.
Arbitration
36. (1) Any dispute or
difference between the parties arising out of or in connection with this
Agreement the construction of this Agreement or as to the rights duties or
liabilities of either party under this Agreement or as to any matter to be
agreed upon between the parties under this Agreement shall in default of
agreement between the parties and in the absence of any provision in this
Agreement to the contrary be referred to and settled by arbitration under the
provisions of the Commercial Arbitration Act 1985 and notwithstanding
section 20(1) of that Act each party may be represented before the
arbitrator by a duly qualified legal practitioner or other representative.
(2) Except where
otherwise provided in this Agreement, the provisions of this Clause shall not
apply to any case where the State the Minister or any other Minister in the
Government of the said State is by this Agreement given either expressly or
impliedly a discretionary power.
(3) The arbitrator of
any submission to arbitration under this Agreement is hereby empowered upon
the application of either of the parties to grant in the name of the Minister
any interim extension of any period or variation of any date referred to
herein which having regard to the circumstances may reasonably be required in
order to preserve the rights of that party or of the parties under this
Agreement and an award may in the name of the Minister grant any further
extension or variation for that purpose.
Consultation
37. The Joint Venturers shall during the currency
of this Agreement consult with and keep the State fully informed on a
confidential basis concerning any action that the Joint Venturers propose to
take with any third party (including the Commonwealth or any Commonwealth
constituted agency authority instrumentality or other body) which might
significantly affect the overall interest of the State under this Agreement.
Supply of gas and electricity
38. (1) The State
authorises the sale or supply of gas, electricity and/or throughput capacity
of the gas pipeline and the gas pipeline forming part of the Newman facilities
by each of the Joint Venturers to operations carried on pursuant to the Iron
Ore Agreements or any of them or the processing agreement (if any) pursuant to
agreements entered into between the Joint Venturers or any of them and the
persons carrying on those operations.
(2) In respect of any
persons (other than those referred to in subclause (1)) wishing to obtain
gas or electricity from the Joint Venturers, the Joint Venturers shall supply
those persons at reasonable commercial rates from any uncontracted or
unutilised capacity of the works constructed pursuant to this Agreement.
Notices
39. Any notice consent or other writing authorised
or required by this Agreement to be given or sent shall be deemed to have been
duly given or sent by the State if signed by the Minister or by any senior
officer of the Public Service of the said State acting by the direction of the
Minister and forwarded by prepaid post or handed to the Joint Venturers at
their respective addresses in the said State hereinbefore set forth or other
address in the said State nominated by the Joint Venturers to the Minister
from time to time and by the Joint Venturers if signed on their behalf by any
person or persons authorised by them or by their solicitors as notified to the
State from time to time and forwarded by prepaid post or handed to the
Minister and except in the case of personal service any such notice consent or
writing shall be deemed to have been duly given or sent on the day on which it
would be delivered in the ordinary course of post.
Term of Agreement
40. Subject to the provisions of
subclause (6) of Clause 7 and Clauses 29 and 30 this Agreement
shall expire on the expiration or sooner determination or surrender of the
lease granted pursuant to Clause 11 of the power station site.
Applicable law
41. This Agreement shall be interpreted according
to the law for the time being in force in the State of Western Australia.
IN WITNESS WHEREOF this Agreement has been executed by or on behalf of the
parties hereto the day and year first hereinbefore mentioned.
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SIGNED by the said THE HONOURABLE RICHARD FAIRFAX COURT in the presence of: COLIN BARNETT MINISTER FOR RESOURCES DEVELOPMENT |
) |
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THE COMMON SEAL of BHP MINERALS PTY. LTD. was hereunto affixed by authority of
the Directors:
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) |
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THE COMMON SEAL of BHP ENERGY HOLDINGS PTY. LTD. was hereunto affixed by
authority of the Directors:
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) |
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THE COMMON SEAL of BHP POWER HOLDINGS PTY. LTD. was hereunto affixed by
authority of the Directors:
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) |
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