PILBARA ENERGY PROJECT AGREEMENT (TERMINATION) BILL 2013
EXPLANATORY MEMORANDUM
Section 1
Contains the short title of the Act.
Section 2
Paragraph (a) provides that sections 1 and 2 of the Act come into operation on the day
on which the Act receives Royal Assent.
Paragraph (b) provides that the remainder of the Act comes into operation on the day
after the Act receives Royal Assent.
Section 3
Specifies that the Act amends the Pilbara Energy Project Agreement Act 1994 (Principal
Act).
Section 4
Provides that the long title of the Principal Act is amended by deleting “works.” and
inserting “works and to ratify a further agreement for the termination of that agreement.”
Section 5
Provides that section 3 (Interpretation) of the Principal Act is amended by inserting the
new definition of “termination agreement”, which means the agreement a copy of which
is set out in Schedule 2 of the Principal Act.
Section 6
Inserts a new section 5 (Ratification and operation of termination agreement) into the
Principal Act which:
(1)
ratifies the termination agreement; and
(2)
provides for the termination agreement to operate despite any other Act or law,
without limiting or affecting the operation of the Government Agreements Act
1979.
Section 7
Inserts as Schedule 2 to the Principal Act a copy of the termination agreement.
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PILBARA ENERGY PROJECT AGREEMENT (TERMINATION) BILL 2013
EXPLANATORY MEMORANDUM
SCHEDULE 2
PILBARA ENERGY PROJECT AGREEMENT 1993
TERMINATION AGREEMENT
PARTIES
The Honourable Colin James Barnett, Premier of the State of Western Australia acting
for and on behalf of the Government of the said State and its instrumentalities (“the
State”), Alinta DEWAH Pty Ltd and Alinta DEWAP Pty Ltd (together “Joint Venturers”).
RECITALS
A. Provides details of the State Agreement dated 30 November 1993 as originally
ratified by the Pilbara Energy Project Agreement Act 1994 (WA) and of past
variations made to it. The State Agreement as so varied is called “the Principal
Agreement”.
B. Advises that the State and the Joint Venturers wish to terminate the Principal
Agreement in the manner and on the terms set out in the Termination Agreement.
OPERATIVE CLAUSES
Definitions
Clause 1
Provides the following definitions:
“Deed of Assignment and Covenant 1999” means the document entitled “Deed of
Assignment, Covenant and Acknowledgement in relation to the Pilbara Energy Project
State Agreement” dated 4 February 1999 between the State, the PEPA Minister, Duke
Energy WA Holdings Pty Ltd (now known as Alinta DEWAH Pty Ltd), BHP Minerals Pty
Ltd, Duke Energy WA Power Pty Ltd (now known as Alinta DEWAP Pty Ltd) and Duke
Energy Australian Holdings Pty Ltd (now known as Alinta EH Pty Ltd).
“EP Act” defined as the Environmental Protection Act 1986 (WA).
“Iron Ore Beneficiation Termination Agreement” defined as the agreement ratified by
and scheduled within Part 7 of the Iron Ore Agreements Legislation (Amendment,
Termination and Repeals) Act 2011 (WA).
“Land Act Minister” defined as the Minister for Lands, a corporate body under section 7
of the Land Administration Act.
“Land Administration Act” defined as the Land Administration Act 1997 (WA).
“laws relating to native title” defined as the laws applicable from time to time in
Western Australia in respect of native title and includes the Native Title Act 1993 (Cth).
“Mining Act” defined as the Mining Act 1978 (WA).
“Minister” defined as the State Government Minister for the time being responsible for
the administration of the Act to ratify the Termination Agreement and pending the
passing of that Act means the Minister, including successors, for the time being
designated in a notice from the State to the Joint Venturers.
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PILBARA ENERGY PROJECT AGREEMENT (TERMINATION) BILL 2013
EXPLANATORY MEMORANDUM
“Minister for Mines” defined as the State Government Minister for the time being
responsible for the administration of the Mining Act.
“Newman Facilities” defined as the power station facilities as described constructed
under or pursuant to the Principal Agreement at Newman located upon Mineral Lease
244SA and contained within the boundaries of the area shown in Plan D of Schedule A.
“Operative Date” has the meaning given in clause 3(2).
“PEPA Minister” defined as the State Government Minister for the time being
responsible for the administration of the Principal Agreement.
“PEPA Titles” defined as Crown lease L371264 in respect of the Port Hedland power
station; and any Crown easement granted in respect of the Port Hedland Transmission
Lines, granted under the Principal Agreement and continuing as at the Operative Date.
“Port Hedland Facilities” defined as the power station facilities constructed under or
pursuant to the Principal Agreement:
(a) at Port Hedland comprising;
(i) the Port Hedland power station (and associated facilities as described), at the
date of this Agreement on land the subject of lot 255 on deposited plan
192056 contained within Crown land volume 3104 folio 330 and being land
the subject of Crown lease L371264 in favour of the Joint Venturers ("Port
Hedland power station") and contained within the boundaries of the area
shown in Plan A of Schedule A;
(ii) the 66kV transmission line from the Port Hedland power station to Boodarie
on the area the subject of the proposed easement shown in deposited plans
30122, 32820, 33649 and 400582;
(iii) the 66kV transmission line from the Port Hedland power station to the
Wedgefield substation on the area the subject of the proposed easement
shown in deposited plans 219101 and 400582; and
(iv) the 66kV transmission line from the Port Hedland power station to the
Murdoch Drive substation on the area the subject of the proposed easement
shown in deposited plans 219101 and 400582;
(together, "Port Hedland Transmission Lines") and contained within the
boundaries of the area shown in Plan B of Schedule A; and
(b) at Boodarie near Port Hedland, comprising:
(i) the turbines;
(ii) the electrical switchyard, including associated on-site electrical feeders;
(iii) the gas receival facility; and
(iv) associated plant, equipment and infrastructure, including gas distribution
infrastructure;
located at the date of this Agreement upon General Purpose Leases 45/78, 45/79,
45/89, 45/90, and 45/102 and contained within the boundaries of the areas shown
in Plan C of Schedule A ("Boodarie power station"); and
(v) the underground electrical feeders connecting the turbines referred to in
paragraph (b)(i) above with the electrical switchyard referred to in paragraph
(b)(ii) above as shown in Plan B of Schedule A;
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PILBARA ENERGY PROJECT AGREEMENT (TERMINATION) BILL 2013
EXPLANATORY MEMORANDUM
“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
Clause 2(1)
Sets out principles for interpreting the Termination Agreement.
Clause 2(2)
Provides that nothing in the Termination Agreement shall be construed to exempt the
State or the Joint Venturers from compliance with laws relating to native title. The State
or the Land Act Minister are not required to grant or vary any title until all processes
necessary (if any) under any laws relating to native title have been completed.
Clause 2(3)
Provides that nothing in the Termination Agreement shall be construed to exempt the
Joint Venturers from compliance with the EP Act.
Ratification and operation
Clause 3(1)
Provides that the Termination Agreement (except clauses 1 to 3) does not come into
operation except in accordance with clause 3(2).
Clause 3(2)
Provides that the Termination Agreement (except clauses 1 to 3) comes into operation
on the day that it is ratified by an Act of Parliament (“the Operative Date”) unless it
terminates prior to that day under clauses 3(4) or 3(5). Accordingly, by virtue of section 6
of the Act (the provision that ratifies the Termination Agreement) coming into operation
the day after the Act receives Royal Assent (in accordance with section 2(b) of the Act),
the Operative Date is the day after the Act receives Royal Assent.
Clause 3(3)
The State commits to introduce a Bill into State Parliament prior to 30 April 2014 or such
later date as the parties may agree and must endeavour to secure its passage as an Act.
Clause 3(4)
Provides, unless the parties otherwise agree, for the termination of the Termination
Agreement (and without any party having a claim against any other) if by 30 September
2014 the Bill has not been ratified by an Act.
Clause 3(5)
Specifies that if the Principal Agreement is determined on a day prior to the Operative
Date, then the Termination Agreement will also terminate on and from that day, and
without any party having a claim against any other.
Termination of Principal Agreement
Clause 4(1)
States, subject to clause 4(2), that the Principal Agreement is terminated on and from the
Operative Date and without the State or the Joint Venturers having any claim against the
other except as otherwise provided in the Termination Agreement.
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PILBARA ENERGY PROJECT AGREEMENT (TERMINATION) BILL 2013
EXPLANATORY MEMORANDUM
Clause 4(2)
Provides that, notwithstanding clause 4(1):
(a) the Joint Venturers shall remain liable for any antecedent breach or default and in
respect of any indemnity given under the Principal Agreement; and
(b) the provisions of clause 14 of the Principal Agreement continue to operate with
respect to the Port Hedland Facilities and Newman Facilities until the earlier of:
(i) the grant of electricity generation and electricity transmission licences or
integrated regional licences under the Electricity Industry Act 2004 (WA) in
relation to the aforementioned facilities; or
(ii) the date that is 12 months after the Operative Date or a later date agreed by
the Minister (but not exceeding 15 months after the Operative Date).
Clause 4(3)(a)
Provides that, subject to clause 4(2) and on and from the Operative Date:
(i) the Joint Venturers as holders of the PEPA Titles, the Port Hedland Facilities and
the Newman Facilities will cease to have the benefits conferred by the Principal
Agreement; and
(ii) each PEPA Title currently held under the Principal Agreement will continue in
force under the Land Administration Act for a period no longer than 3 months after
the Operative Date (or such greater period agreed by the Minister) pending the
variation of its terms and conditions.
Clause 4(3)(b)
Provides that the State acknowledges that the Joint Venturers intend to make application
for the grant of titles and variation of the PEPA Titles under the Land Administration Act.
Such application will be subject to the rights and interests of third parties, the obligations
of the State to third parties and having regard to clause 4(3)(e) of the Iron Ore
Beneficiation Termination Agreement, for such periods and on terms and conditions as
the Land Act Minister may consider reasonable in respect of the Port Hedland Facilities
and Newman Facilities. The parties anticipate the Joint Venturers making application for
the grant or variation of titles as described in Schedule B on or after the Operative Date.
Clause 4(3)(c)
Provides that the State further acknowledges that the Joint Venturers intend to make
application for the grant of easements for the construction and operation of roads to
access the Boodarie power station and Newman power station under the Land
Administration Act. Such application will be subject to the rights and interests of third
parties, the obligations of the State to third parties and having regard to clause 4(3)(e) of
the Iron Ore Beneficiation Termination Agreement, for such periods and on terms and
conditions as the Land Act Minister may consider reasonable.
Clause 4(3)(d)
States that if the registered holders of Mineral Lease 244SA and Crown lease K858923
surrender a portion of the land (including limited to depth) subject to those leases for the
purpose of facilitating the grant of a Crown lease to the Joint Venturers under section 79
of the Land Administration Act in respect of the Newman Facilities, the State shall cause
the Minister for Mines to exempt that portion of land from mining under section 19 of the
Mining Act for the term of that lease (including as renewed or extended).
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PILBARA ENERGY PROJECT AGREEMENT (TERMINATION) BILL 2013
EXPLANATORY MEMORANDUM
Clause 4(4)(a)
Requires that the Joint Venturers indemnify and keep indemnified the State in respect of
all actions, claims etc of third parties arising out of or in connection with any work carried
out by the Joint Venturers or its assignees pursuant to the Principal Agreement or
relating to their operations under the Principal Agreement.
Clause 4(4)(b)
Specifies that the indemnity in clause 4(4)(a) remains in force for 20 years from:
(i) the date agreed between the State and the Joint Venturers; or
(ii) if the parties fail to agree a date, the date determined by the State, as being the
date of cessation of all operations (including expansions and modifications)
originally established under and pursuant to the Principal Agreement (including
the Port Hedland Facilities and the Newman Facilities).
Clause 4(4)(c)
Requires that the Joint Venturers indemnify and keep indemnified the State in respect of
all actions, claims etc of third parties arising out of or in connection with any work or
activities of the Joint Venturers or its assignees on and subsequent to the Operative Date
relating to operations (including expansions and modifications) that were originally
established under and pursuant to the Principal Agreement (including the Port Hedland
Facilities and the Newman Facilities).
Clause 4(4)(d)
Specifies that the indemnity in clause 4(4)(c) remains in force for a period ending on the
same date as the indemnity in clause 4(4)(a).
Release of State and PEPA Minister from Deed of Assignment and Covenant 1999
Clause 5
Provides that, on and from the Operative Date, the Joint Venturers release the State and
the PEPA Minister from any obligation, liability or claim relating to the acknowledgement
and agreement set out in clause 6 the Deed of Assignment and Covenant 1999.
Under clause 6 of the Deed of Assignment and Covenant 1999, the State and the PEPA
Minister acknowledged and agreed (subject to any relevant government and third party
approvals and consents being obtained), the intended tenure to be granted to the Joint
Venturers for the Newman Facilities and Port Hedland Facilities.
Assignment
Clause 6
Provides that a Joint Venturer may only assign, mortgage, charge or dispose of its rights
and obligations under the Termination Agreement with the consent (which may be
subject to conditions) of the Minister.
Applicable Law
Clause 7
States that the Termination Agreement is subject to the laws of Western Australia.
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PILBARA ENERGY PROJECT AGREEMENT (TERMINATION) BILL 2013
EXPLANATORY MEMORANDUM
SCHEDULE A
Shows the Port Hedland Facilities and Newman Facilities.
Plan A
Shows the Port Hedland power station.
Plan B
Shows the Port Hedland Transmission Lines.
Plan C
Shows the Boodarie power station.
Plan D
Shows the Newman Facilities.
SCHEDULE B
Lists the tenure that the parties anticipate the Joint Venturers making application under
the Land Administration Act for the Port Hedland Facilities and Newman Facilities.
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