Pilbara Energy Project Agreement (Termination) Bill 2013 - 50-1...Pilbara Energy Project Agreement...

50—1 page i

Western Australia

Pilbara Energy Project Agreement

(Termination) Bill 2013

Contents

1. Short title 2

2. Commencement 2

3. Act amended 2

4. Long title amended 2

5. Section 3 amended 2

6. Section 5 inserted 3

5. Ratification and operation of termination agreement 3

7. Schedule 2 inserted 3

Schedule 2 — Termination agreement

Western Australia

LEGISLATIVE ASSEMBLY

Pilbara Energy Project Agreement

(Termination) Bill 2013

A Bill for

An Act to amend the Pilbara Energy Project Agreement Act 1994 to

provide for the ratification of an agreement for the termination of

the Pilbara Energy Project Agreement and for related purposes.

The Parliament of Western Australia enacts as follows:

Pilbara Energy Project Agreement (Termination) Bill 2013

s. 1

page 2

1. Short title 1

This is the Pilbara Energy Project Agreement (Termination) 2

Act 2013. 3

2. Commencement 4

This Act comes into operation as follows — 5

(a) sections 1 and 2 — on the day on which this Act 6

receives the Royal Assent; 7

(b) the rest of the Act — on the day after that day. 8

3. Act amended 9

This Act amends the Pilbara Energy Project Agreement 10

Act 1994. 11

4. Long title amended 12

In the long title delete “works.” and insert: 13

14

works and to ratify a further agreement for the termination 15

of that agreement. 16

17

5. Section 3 amended 18

In section 3 insert in alphabetical order: 19

20

termination agreement means the agreement a copy of 21

which is set out in Schedule 2; 22

23


s. 6

page 3

6. Section 5 inserted 1

After section 4 insert: 2

3

5. Ratification and operation of termination 4

agreement 5

(1) The termination agreement is ratified. 6

(2) Without limiting or otherwise affecting the operation of 7

the Government Agreements Act 1979, the termination 8

agreement is to operate and take effect despite any 9

other Act or law. 10

11

7. Schedule 2 inserted 12

After Schedule 1 insert: 13


s. 7

page 4

1

Schedule 2 — Termination agreement 2

[s. 3] 3

2013 4

5

6

THE STATE OF WESTERN AUSTRALIA 7

8

9

and 10

11

12

ALINTA DEWAH PTY LTD 13

ACN 083 051 950 14

15

16

ALINTA DEWAP PTY LTD 17

ACN 058 070 689 18

19

20

21

22

23

24

25

PILBARA ENERGY PROJECT AGREEMENT 1993 26

TERMINATION AGREEMENT 27

28

29

30

31

32

33

[Solicitor’s details] 34

35


s. 7

page 5

THIS AGREEMENT is made this 8th day of NOVEMBER 2013 1

2

BETWEEN 3

4

THE HONOURABLE COLIN JAMES BARNETT, MEc., M.L.A., Premier 5

of the State of Western Australia, acting for and on behalf of the said State and 6

its instrumentalities from time to time (hereinafter called “the State”) of the 7

first part, 8

9

ALINTA DEWAH PTY LTD ACN 083 051 950 of Level 13, 1 William 10

Street, Perth, Western Australia and ALINTA DEWAP PTY LTD ACN 11

058 070 689 of Level 13, 1 William Street, Perth, Western Australia 12

(hereinafter called "Joint Venturers" in which term shall be included their 13

successors and permitted assigns) of the second part. 14

15

WHEREAS: 16

17

A. The State and the Joint Venturers are the parties to the agreement 18

dated 30 November 1993, which agreement was ratified by the 19

Pilbara Energy Project Agreement Act 1994 (WA), as varied by 20

agreements dated 7 June 1994, 16 October 1995 and 31 March 1998. 21

The first mentioned agreement as so varied is referred to in this 22

Agreement as "the Principal Agreement". 23

B. The State and the Joint Venturers wish to terminate the Principal 24

Agreement in the manner and on the terms set out in this Agreement. 25

26


s. 7

page 6

NOW THIS AGREEMENT WITNESSES: 1

1. Definitions 2

In this Agreement subject to the context: 3

"Deed of Assignment and Covenant 1999" means the document 4

entitled "Deed of Assignment, Covenant and Acknowledgment in 5

relation to the Pilbara Energy Project State Agreement" dated 6

4 February 1999 between the State, the PEPA Minister, Duke Energy 7

WA Holdings Pty Ltd (now known as Alinta DEWAH Pty Ltd), BHP 8

Minerals Pty Ltd, Duke Energy WA Power Pty Ltd (now known as 9

Alinta DEWAP Pty Ltd) and Duke Energy Australian Holdings Pty 10

Ltd (now known as Alinta EH Pty Ltd); 11

"EP Act" means the Environmental Protection Act 1986 (WA); 12

"Iron Ore Beneficiation Termination Agreement" means the 13

agreement ratified by and scheduled within Part 7 of the Iron Ore 14

Agreements Legislation (Amendment, Termination and Repeals) 15

Act 2011 (WA); 16

"Land Act Minister" means the Minister for Lands, a body corporate 17

under section 7 of the Land Administration Act; 18

"Land Administration Act" means the Land Administration 19

Act 1997 (WA); 20

"laws relating to native title" means laws applicable from time to time 21

in Western Australia in respect of native title and includes the Native 22

Title Act 1993 (Cth); 23

"Mining Act" means the Mining Act 1978 (WA); 24

"Minister" means the Minister in the Government of the State for the 25

time being responsible for the administration of the Act to ratify this 26

Agreement and pending the passing of that Act means the Minister for 27

the time being designated in a notice from the State to the Joint 28

Venturers and includes the successors in office of the Minister; 29

"Minister for Mines" means the Minister in the Government of the 30

State for the time being responsible for the administration of the 31

Mining Act; 32


s. 7

page 7

"Newman Facilities" means the power station facilities constructed 1

under or pursuant to the Principal Agreement at Newman comprising: 2

(a) the turbines; 3

(b) the electrical switchyard, including associated on-site 4

electrical feeders; 5

(c) the gas receival facility; 6

(d) the diesel unloading and forwarding pumps and associated 7

diesel storage tanks; 8

(e) the oily water treatment system and associated evaporation 9

pond; and 10

(f) associated plant, equipment and infrastructure, including gas 11

distribution infrastructure, 12

each at the date of this Agreement located upon Mineral Lease 244SA 13

and contained within the boundaries of the area shown in Plan D of 14

Schedule A; 15

"Operative Date" has the meaning given in clause 3(2); 16

"PEPA Minister" means the Minister in the Government of the State 17

for the time being responsible for the administration of the Principal 18

Agreement; 19

"PEPA Titles" means the following titles granted pursuant to the 20

Principal Agreement and continuing as at the Operative Date: 21

(a) Crown lease L371264 in respect of the Port Hedland power 22

station; and 23

(b) any Crown easement granted in respect of the Port Hedland 24

Transmission Lines; 25

"Port Hedland Facilities" means the power station facilities 26

constructed under or pursuant to the Principal Agreement: 27

(a) at Port Hedland, comprising; 28

(i) the Port Hedland power station, at the date of this 29

Agreement on land the subject of lot 255 on 30

deposited plan 192056 contained within Crown land 31


s. 7

page 8

volume 3104 folio 330 and being land the subject of 1

Crown lease L371264 in favour of the Joint 2

Venturers, comprising: 3

(A) the turbines; 4

(B) the electrical switchyard, including 5

associated on-site electrical feeders; 6

(C) the gas receival facility; 7

(D) the diesel unloading and forwarding pumps 8

and associated diesel storage tanks; 9

(E) the oily water treatment system and 10

associated evaporation pond; and 11

(F) associated plant, equipment and 12

infrastructure, including gas distribution 13

infrastructure, 14

("Port Hedland power station") and contained 15

within the boundaries of the area shown in Plan A of 16

Schedule A; 17

(ii) the 66kV transmission line from the Port Hedland 18

power station to Boodarie on the area the subject of 19

the proposed easement shown in deposited plans 20

30122, 32820, 33649 and 400582; 21

(iii) the 66kV transmission line from the Port Hedland 22

power station to the Wedgefield substation on the 23

area the subject of the proposed easement shown in 24

deposited plans 219101 and 400582; and 25

(iv) the 66kV transmission line from the Port Hedland 26

power station to the Murdoch Drive substation on the 27

area the subject of the proposed easement shown in 28

deposited plans 219101 and 400582; 29

(together, "Port Hedland Transmission Lines") and 30

contained within the boundaries of the area shown in Plan B 31

of Schedule A; and 32


s. 7

page 9

(b) at Boodarie near Port Hedland, comprising: 1

(i) the turbines; 2

(ii) the electrical switchyard, including associated on-site 3

electrical feeders; 4

(iii) the gas receival facility; and 5

(iv) associated plant, equipment and infrastructure, 6

including gas distribution infrastructure; 7

located at the date of this Agreement upon General Purpose 8

Leases 45/78, 45/79, 45/89, 45/90, and 45/102 and contained 9

within the boundaries of the areas shown in Plan C of 10

Schedule A ("Boodarie power station"); and 11

(v) the underground electrical feeders connecting the 12

turbines referred to in paragraph (b)(i) above with the 13

electrical switchyard referred to in paragraph (b)(ii) 14

above as shown in Plan B of Schedule A; 15

"this Agreement", "hereof" and "hereunder" refer to this 16

Agreement, whether in its original form or as from time to time added 17

to, varied or amended. 18

2. Interpretation 19

(1) In this Agreement: 20

(a) clause headings do not affect interpretation or construction; 21

(b) words in the singular shall include the plural and words in the 22

plural shall include the singular according to the requirements 23

of the context; 24

(c) one gender includes the other genders; 25

(d) a covenant or agreement by more than one person binds, and 26

is enforceable against, those persons jointly and each of them 27

severally; 28

(e) reference to an Act includes the amendments to that Act for 29

the time being in force and also any Act passed in 30

substitution therefor or in lieu thereof and the regulations for 31

the time being in force thereunder; 32


s. 7

page 10

(f) reference in this Agreement to any other document includes 1

that document as from time to time added to, varied or 2

amended and notwithstanding any change in the identity of 3

the parties; 4

(g) reference to a clause or schedule is a reference to a clause in 5

or schedule to this Agreement, and a reference to a subclause 6

or paragraph is a reference to the subclause of the clause or 7

paragraph of the clause or subclause as the case may be in, or 8

in relation to, which the reference is made; 9

(h) "including" means "including, but not limited to"; and 10

(i) reference to a "person" includes a body corporate. 11

(2) Nothing in this Agreement shall be construed to exempt the State or 12

the Joint Venturers from compliance with or to require the State or the 13

Joint Venturers to do anything contrary to any law relating to native 14

title or any lawful obligation or requirement imposed on the State or 15

the Joint Venturers as the case may be pursuant to any law relating to 16

native title. The provisions of this Agreement shall not operate so as 17

to require the State or the Land Act Minister to grant or vary, or cause 18

to be granted or varied, any lease licence or other right or title until all 19

processes necessary (if any) under any laws relating to native title to 20

enable that grant or variation to proceed, have been completed. 21

(3) Nothing in this Agreement shall be construed to exempt the Joint 22

Venturers from compliance with any requirement in connection with 23

the protection of the environment arising out of or incidental to its 24

activities under this Agreement that may be made by or under the EP 25

Act. 26

3. Ratification and operation 27

(1) This Agreement, other than this clause and clauses 1 and 2, does not 28

come into operation except in accordance with subclause (2). 29

(2) This Agreement, other than this clause and clauses 1 and 2, comes 30

into operation on the day on which it is ratified by an Act of the 31

Parliament of Western Australia ("Operative Date") unless, before 32

that day, it terminates under subclauses (4) or (5). 33

(3) The State must introduce in the Parliament of Western Australia 34

before 30 April 2014, or a later date agreed between the parties to this 35


s. 7

page 11

Agreement, a Bill to ratify this Agreement and must endeavour to 1

secure its passage as an Act. 2

(4) If by 30 September 2014 this Agreement has not been ratified by an 3

Act of the Parliament of Western Australia then, unless the parties to 4

this Agreement otherwise agree, this Agreement terminates on that 5

day and no party hereto will have any claim against any other party 6

hereto with respect to any matter or thing arising out of, done, 7

performed, or omitted to be done or performed under this Agreement. 8

(5) The parties agree that, if the Principal Agreement is otherwise 9

determined in accordance with its provisions on a day prior to the 10

Operative Date, then this Agreement shall also terminate on and from 11

that day and no party hereto will have any claim against any other 12

party hereto with respect to any matter or thing arising out of, done, 13

performed, or omitted to be done or performed under this Agreement. 14

4. Termination of Principal Agreement 15

(1) Subject to subclause (2), the Principal Agreement is hereby 16

terminated with effect on and from the Operative Date and, except as 17

otherwise provided in this Agreement, neither the State nor the Joint 18

Venturers shall have any claim against the other with respect to any 19

matter or thing in or arising out of the Principal Agreement. 20

(2) Notwithstanding subclause (1): 21

(a) the Joint Venturers shall remain liable for any antecedent 22

breach or default under the Principal Agreement and in 23

respect of any indemnity given under the Principal 24

Agreement; and 25

(b) clause 14 of the Principal Agreement shall be deemed to 26

subsist in its application to the Port Hedland Facilities and the 27

Newman Facilities respectively until the earlier of: 28

(i) the grant of electricity generation and electricity 29

transmission licences or integrated regional licences 30

under the Electricity Industry Act 2004 (WA) in 31

relation to the Port Hedland Facilities and the 32

Newman Facilities (as the case may be); or 33


s. 7

page 12

(ii) the date that is 12 months after the Operative Date, or 1

such later date agreed by the Minister (but not 2

exceeding 15 months after the Operative Date). 3

(3) (a) Subject to subclause (2) and on and from the Operative Date: 4

(i) the Joint Venturers as the holders of the PEPA Titles, 5

the Port Hedland Facilities and the Newman Facilities 6

shall cease to have the benefit of any rights and 7

privileges conferred by the Principal Agreement; and 8

(ii) each PEPA Title shall otherwise continue in force, 9

subject to its terms and conditions and under and 10

subject to the provisions of the Land Administration 11

Act, for a period not exceeding 3 months after the 12

Operative Date (or such greater period agreed by the 13

Minister) pending the variation of its terms and 14

conditions as contemplated by paragraph (b). 15

(b) The State acknowledges that the Joint Venturers intend to 16

make application for the grant of titles and, having regard to 17

paragraph (a), variation of the PEPA Titles under and in 18

accordance with the Land Administration Act and subject to 19

the interests and rights of third parties and the obligations of 20

the State to third parties, and to the extent relevant having 21

regard to clause 4(3)(e) of the Iron Ore Beneficiation 22

Termination Agreement, for such periods and on such terms 23

and conditions including commercial rentals and renewal 24

rights as the Land Act Minister may consider reasonable 25

having regard to the requirements of the Joint Venturers in 26

respect of the Port Hedland Facilities and the Newman 27

Facilities. As at the date of this Agreement, the parties 28

anticipate the Joint Venturers making the applications 29

described in column 2 of the table to Schedule B in respect of 30

the grant or variation, on or after the Operative Date, of titles 31

relating to the facilities described in column 1 of that table. 32

(c) The State further acknowledges that the Joint Venturers 33

intend to make application for the grant of easements for the 34

construction and operation of roads to access the Boodarie 35

power station and the Newman power station respectively 36

under and in accordance with the Land Administration Act 37


s. 7

page 13

and subject to the interests and rights of third parties and the 1

obligations of the State to third parties, and to the extent 2

relevant having regard to clause 4(3)(e) of the Iron Ore 3

Beneficiation Termination Agreement, for such periods and 4

on such terms and conditions including commercial easement 5

fees as the Land Act Minister may consider reasonable. 6

(d) If the registered holders of Mineral Lease 244SA and Crown 7

lease K858923 surrender a portion of the land (including if 8

such surrender is limited to depth) that is subject to those 9

leases for the purpose of facilitating the grant to the Joint 10

Venturers of a lease under section 79 of the Land 11

Administration Act for the Newman Facilities as 12

contemplated by paragraph (b) above, the State shall, 13

notwithstanding the terms of section 19 of the Mining Act, 14

cause the Minister for Mines to exempt that portion of the 15

land from mining under that section for the term of that lease 16

(including as renewed or extended). 17

(4) (a) On and from the Operative Date the Joint Venturers will 18

indemnify and keep indemnified the State and its employees, 19

agents and contractors in respect of all actions, suits, claims, 20

demands or costs of third parties arising out of or in 21

connection with any work carried out by the Joint Venturers 22

pursuant to the Principal Agreement or relating to their 23

operations under the Principal Agreement or arising out of or 24

in connection with the construction, maintenance or use by 25

the Joint Venturers or their employees, agents, contractors or 26

assignees of the Joint Venturers' works or services the subject 27

of the Principal Agreement or the plant, apparatus or 28

equipment installed in connection with the Principal 29

Agreement. 30

(b) The indemnity in paragraph (a) shall remain in force for a 31

period ending on the date which is 20 years after: 32

(i) the date agreed between the State and the Joint 33

Venturers; or 34


s. 7

page 14

(ii) if the parties fail to agree a date under 1

subparagraph (i), the date determined by the State, 2

as being the date of cessation of all operations (including as 3

expanded or otherwise modified) originally established under 4

and pursuant to the Principal Agreement (including the Port 5

Hedland Facilities and the Newman Facilities). 6

(c) The Joint Venturers will indemnify and keep indemnified the 7

State and its employees, agents and contractors in respect of 8

all actions, suits, claims, demands or costs of third parties 9

arising out of or in connection with any works or activities of 10

the Joint Venturers or their employees, agents or contractors 11

or assignees on and subsequent to the Operative Date relating 12

to operations (including as expanded or otherwise modified) 13

that were originally established under or pursuant to the 14

Principal Agreement (including the Port Hedland Facilities 15

and the Newman Facilities). 16

(d) The indemnity in paragraph (c) remains in force for a period 17

ending on the same date as the indemnity in paragraph (a). 18

5. Release of State and PEPA Minister from Deed of Assignment 19

and Covenant 1999 20

On and from the Operative Date, the Joint Venturers release the State 21

and the PEPA Minister from any obligation, liability or claim relating 22

to the acknowledgement and agreement of the State and the PEPA 23

Minister set out in clause 6 of the Deed of Assignment and Covenant 24

1999. 25

6. Assignment 26

A Joint Venturer may only assign, mortgage or charge or otherwise 27

dispose of its rights and obligations under this Agreement with the 28

consent of the Minister and such consent may be given subject to 29

conditions. 30

31

7. Applicable Law 32

This Agreement is to be interpreted according to the law for the time 33

being in force in the State of Western Australia. 34


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SCHEDULE A 1

PORT HEDLAND FACILITIES AND NEWMAN FACILITIES 2

Plan A 3

Port Hedland power station 4

5


s. 7

page 16

Plan B 1

Port Hedland Transmission Lines 2

3


s. 7

page 17

Plan C 1

Boodarie power station 2

3


s. 7

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Plan D 1

Newman Facilities 2

3


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SCHEDULE B 1

ANTICIPATED TENURE FOR FACILITIES 2

3

Port Hedland Facilities Tenure Application under Land

Administration Act (and applicable

section reference)

At Port Hedland

Port Hedland power station Variation to Crown Lease (s79)

Port Hedland Transmission Lines Crown Easement (s144) or Variation of Easement (s144) if any Crown easement is granted in respect of the Port Hedland

Transmission Lines as at the Operative Date.

At Boodarie

Boodarie power station Crown Lease (s79)

Newman Facilities

Newman power station Crown Lease (s79)

4


s. 7

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EXECUTED as a deed. 1

2

SIGNED by THE HONOURABLE ) 3

COLIN JAMES BARNETT ) [Signature] 4

in the presence of: ) 5

6

7

8

[Signature] 9

Signature of witness 10

11

12

SCOTT FRY 13

Name of witness 14

15

16

17

18

EXECUTED by ALINTA DEWAH ) 19

PTY LTD ACN 083 051 950 ) 20

in accordance with section 127(1) of ) 21

the Corporations Act ) 22

23

24

25

[Signature] [Signature] 26

Signature of Director Signature of Secretary 27

28

29

KEN WOOLLEY MICHAEL RICHES 30

Full Name Full Name 31

32

33


s. 7

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EXECUTED by ALINTA DEWAP ) 1

PTY LTD ACN 058 070 689 ) 2

in accordance with section 127(1) of ) 3

the Corporations Act ) 4

5

6

7

[Signature] [Signature] 8

Signature of Director Signature of Secretary 9

10

11

KEN WOOLLEY MICHAEL RICHES 12

Full Name Full Name 13

14

15

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