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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Barrow Island Bill 2003
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Definitions 2
4. Notes not part of the law 3
Part 2 -- Ratification of Agreement
5. Agreement ratified and implementation authorised 4
Part 3 -- Use of reserve under the Land
Administration Act 1997
6. Leasing parts of the reserve 5
7. Licences affecting the reserve 6
8. Easements affecting the reserve 8
9. No more than 300 ha in total of uncleared land to be
leased, or the subject of licences or easements 9
10. Status and purposes of reserve not affected 10
Part 4 -- Conveyance and underground
disposal of carbon dioxide
11. Petroleum Pipelines Act 1969 applies to pipelines on
Barrow Island for conveyance of carbon dioxide 11
12. Petroleum Safety Act 1999 applies to operations on
Barrow Island concerning carbon dioxide 11
13. Disposal of carbon dioxide underground 11
Part 5 -- Miscellaneous
14. Requirement to obtain authorisations under other laws
not affected 14
15. Limitations on gas processing projects on Barrow
Island 14
230--2 page i
Barrow Island Bill 2003
Contents
16. Land used for gas processing project purpose is
rateable land 15
17. Regulations 15
18. Review of Act on cessation of Agreement 15
Schedule 1 -- Gorgon Gas Processing
and Infrastructure Project
Agreement 16
page ii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended during consideration in detail)
Barrow Island Bill 2003
A Bill for
An Act --
· to ratify, and authorise the implementation of, an agreement
between the State and the Gorgon joint venturers relating to a
proposal to undertake offshore production of natural gas and
other petroleum and a gas processing and infrastructure project
on Barrow Island; the agreement having been entered into
having regard to the need to minimise environmental disturbance
on Barrow Island (a class A nature reserve) and providing for the
support of conservation programs relating to Barrow Island and
other parts of the State;
· to make provisions to enable land on Barrow Island (but no more
than 300 ha in total of uncleared land) to be used, under the Land
Administration Act 1997, for gas processing project purposes;
· to make provisions as to the conveyance and underground
disposal of carbon dioxide recovered during gas processing on
Barrow Island,
and for incidental purposes.
The Parliament of Western Australia enacts as follows:
page 1
Barrow Island Bill 2003
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Barrow Island Act 2003.
2. Commencement
5 (1) Subject to subsection (2), this Act comes into operation on the
day on which it receives the Royal Assent.
(2) Section 12 comes into operation --
(a) if the Petroleum Safety Act 1999 has come into
operation before the day on which this Act receives the
10 Royal Assent, on that day;
(b) otherwise, on the day on which the Petroleum Safety
Act 1999 comes into operation.
3. Definitions
In this Act --
15 "Barrow Island lease" means the petroleum lease dated
27 February 1967 granted under the Petroleum Act 1936
and registered as Number 1H and named "Barrow Island"
under that Act and includes that lease as renewed,
substituted or varied;
20 Note: though repealed by the Petroleum Act 1967, the Petroleum Act 1936
continues to apply to the Barrow Island lease and renewals of it (see
the Petroleum Act 1967 s. 134).
"Barrow Island lessee" means the lessee under the Barrow
Island lease;
25 "BI Act Minister" means the Minister to whom the
administration of this Act is for the time being committed;
"CALM Act Minister" means the Minister to whom the
administration of the Conservation and Land Management
Act 1984 is for the time being committed;
page 2
Barrow Island Bill 2003
Preliminary Part 1
s. 4
"carbon dioxide" means gases consisting predominantly of
carbon dioxide recovered during gas processing on Barrow
Island;
"gas" means natural gas and other petroleum;
5 "gas processing project purpose" includes, without limiting
the ordinary meaning of the term, any of the following --
(a) the conveyance by pipeline of gas or a product of gas
processing;
(b) the provision of support facilities and services --
10 (i) for any gas processing project on Barrow
Island; or
(ii) for purposes of the Barrow Island lease;
(c) the provision of emergency shelter facilities on
Barrow Island;
15 (d) any other purpose ancillary or beneficial to a gas
processing project purpose;
"LA Act" means Land Administration Act 1997;
"LA Act Minister" has the meaning given to "Minister" in the
LA Act section 3(1);
20 "the Agreement" means the Gorgon Gas Processing and
Infrastructure Project Agreement, a copy of which is set out
in Schedule 1, and includes the Agreement as varied from
time to time in accordance with its provisions;
"the reserve" means class A reserve no. 11648 comprising the
25 whole of Barrow Island that is reserved under the LA Act
section 41 for the purpose of conservation of flora and
fauna.
4. Notes not part of the law
Notes in this Act are provided to assist understanding and do not
30 form part of the Act.
page 3
Barrow Island Bill 2003
Part 2 Ratification of Agreement
s. 5
Part 2 -- Ratification of Agreement
5. Agreement ratified and implementation authorised
(1) The Agreement is ratified.
(2) The implementation of the Agreement is authorised.
5 (3) Without limiting or otherwise affecting the application of the
Government Agreements Act 1979, the Agreement operates and
takes effect despite any other Act or law.
page 4
Barrow Island Bill 2003
Use of reserve under the Land Administration Act 1997 Part 3
s. 6
Part 3 -- Use of reserve under the Land
Administration Act 1997
6. Leasing parts of the reserve
(1) The LA Act Minister may, under the LA Act section 79, grant a
5 lease of land that is part of the reserve for a gas processing
project purpose, even though that land is part of the reserve, but
subject to section 9.
(2) For the purposes of subsection (1), the LA Act is to be read as
requiring the consent of the BI Act Minister for the LA Act
10 Minister to do any of the following in relation to a lease referred
to in that subsection --
(a) grant the lease;
(b) fix the duration of the lease under the LA Act
section 79(1)(b);
15 (c) determine an option for the renewal of the lease under
the LA Act section 79(3)(a);
(d) extend the term of or vary a provision of the lease under
the LA Act section 79(4);
(e) give an approval under the LA Act section 18(7) in
20 relation to the lease where the lease is granted to a
person who is not a party to the Agreement;
(f) accept the surrender of the lease under the LA Act
section 81(1);
(g) order the lease to be forfeited under the LA Act
25 section 35(3);
(h) remove fixtures from, or cause improvements to, the
leased land under the LA Act section 92(3);
(i) grant an option for the lease under the LA Act
section 88(1);
30 (j) vary a condition of a sublease of the lease under the
LA Act section 81(3).
page 5
Barrow Island Bill 2003
Part 3 Use of reserve under the Land Administration Act 1997
s. 7
(3) For the purposes of subsection (1), the LA Act is to be read as
requiring the consent of the CALM Act Minister for the LA Act
Minister to determine or vary, under the LA Act
section 79(1)(c), a condition of a lease referred to in
5 subsection (1) that relates to or affects the conservation of flora
and fauna on the reserve.
(4) The LA Act Minister is not to grant a lease referred to in
subsection (1) in relation to an area of the reserve that would, if
granted, coincide with or overlap the area to which the Barrow
10 Island lease relates, unless the Barrow Island lease --
(a) has been surrendered under the Petroleum Act 1936
section 66 in respect of the area to which the lease
relates; or
(b) is otherwise no longer in force in respect of the area to
15 which the lease relates.
Note: though repealed by the Petroleum Act 1967, the Petroleum Act 1936
continues to apply to the Barrow Island lease and renewals of it (see
the Petroleum Act 1967 s. 134).
(5) For the purposes of granting a lease referred to in
20 subsection (1), the Petroleum Act 1936 section 66 is to be read
as enabling the Barrow Island lessee, at any time with the
consent of the Governor, to surrender any part of the Barrow
Island lease including the natural surface and below the natural
surface to a depth specified in the instrument of surrender.
25 (6) The LA Act sections 12, 14 and 35(4)(a)(i) do not apply to a
lease referred to in subsection (1) or a proposed lease of that
kind.
(7) The LA Act section 18 does not apply to a lease referred to in
subsection (1) that is granted to a person who is a party to the
30 Agreement.
7. Licences affecting the reserve
(1) The LA Act Minister may, under the LA Act section 91, grant a
licence in respect of land that is part of the reserve for a gas
page 6
Barrow Island Bill 2003
Use of reserve under the Land Administration Act 1997 Part 3
s. 7
processing project purpose, even though that land is part of the
reserve, but subject to section 9.
(2) For the purposes of subsection (1), the LA Act is to be read as
requiring the consent of the BI Act Minister and, if the Barrow
5 Island lessee's consent is required under the Barrow Island
lease, the Barrow Island lessee for the LA Act Minister to do
any of the following in relation to a licence referred to in that
subsection --
(a) grant the licence;
10 (b) fix or extend the duration of the licence under the LA
Act section 91(2)(a);
(c) amend a provision of the licence under the LA Act
section 91(2)(d).
(3) For the purposes of subsection (1), the LA Act is to be read as
15 requiring the consent of the CALM Act Minister for the LA Act
Minister to determine, under the LA Act section 91(2)(b), or
vary, a condition of a licence referred to in subsection (1) that
relates to or affects the conservation of flora and fauna on the
reserve.
20 (4) For the purposes of subsection (1), the LA Act is to be read as
requiring the consent of the BI Act Minister for the LA Act
Minister to do any of the following in relation to a licence
referred to in that subsection --
(a) give an approval under the LA Act section 18(7) in
25 relation to the licence where the licence is granted to a
person who is not a party to the Agreement;
(b) terminate the licence under the LA Act section 91(3).
(5) For the purposes of subsection (1), the LA Act section 91(5) is
to be read as providing that nothing in that Act prevents the
30 simultaneous existence on the same area of the reserve of --
(a) a licence referred to in subsection (1); and
page 7
Barrow Island Bill 2003
Part 3 Use of reserve under the Land Administration Act 1997
s. 8
(b) a mining or petroleum right, as that term is defined in
the LA Act section 3(1), including a right under the
Barrow Island lease.
(6) The LA Act sections 12 and 14 do not apply to a licence
5 referred to in subsection (1) or a proposed licence of that kind.
(7) The LA Act section 18 does not apply to a licence referred to in
subsection (1) that is granted to a person who is a party to the
Agreement.
8. Easements affecting the reserve
10 (1) The LA Act Minister may, under the LA Act section 144, grant
an easement in respect of land that is part of the reserve for a
gas processing project purpose, even though that land is part of
the reserve, but subject to section 9.
(2) For the purposes of subsection (1) --
15 (a) while the Barrow Island lease is in force --
(i) the references in the LA Act Part 8 to the
management body are to be read as if they were
references to the BI Act Minister; and
(ii) the references in the LA Act Part 8 to the lessee
20 or any other person having any interest, right,
title, or power in respect of the relevant land are
to be read as if they were references to --
(I) each person to whom is granted a lease
referred to in section 6(1), a licence
25 referred to in section 7(1) or an
easement referred to in section 8(1); and
(II) if the Barrow Island lessee's consent is
required under the Barrow Island lease,
the Barrow Island lessee;
30 and
(b) when the Barrow Island lease is not in force, the
references in the LA Act Part 8 to the management body
page 8
Barrow Island Bill 2003
Use of reserve under the Land Administration Act 1997 Part 3
s. 9
are to be read as if they were references to the BI Act
Minister.
(3) For the purposes of subsection (1), the LA Act is to be read as
requiring the consent of the CALM Act Minister for the LA Act
5 Minister to specify, under the LA Act section 144(1)(b), or vary,
a condition of an easement referred to in subsection (1) that
relates to or affects the conservation of flora and fauna on the
reserve.
(4) For the purposes of subsection (1), the LA Act is to be read as
10 requiring the consent of the BI Act Minister for the LA Act
Minister to do any of the following in relation to an easement
referred to in that subsection --
(a) give an approval under the LA Act section 18(7) in
relation to the easement where the easement is granted
15 to a person who is not a party to the Agreement;
(b) order the easement to be cancelled under the LA Act
section 145;
(c) order the easement to be forfeited under the LA Act
section 35(3).
20 (5) The LA Act sections 12, 14, 35(4)(a)(i) and 44 do not apply to
an easement referred to in subsection (1), or a proposed
easement of that kind.
(6) The LA Act section 18 does not apply to an easement referred
to in subsection (1) that is granted to a person who is a party to
25 the Agreement.
9. No more than 300 ha in total of uncleared land to be leased,
or the subject of licences or easements
(1) The total area of uncleared land made up by the parts of the
reserve that are the subject of leases referred to in section 6(1),
30 licences referred to in section 7(1) or easements referred to in
section 8(1) is not to exceed 300 ha.
page 9
Barrow Island Bill 2003
Part 3 Use of reserve under the Land Administration Act 1997
s. 10
(2) In subsection (1) --
"uncleared land" means land that is not cleared at the time of
the grant, in relation to the land, of a lease referred to in
section 6(1), a licence referred to in section 7(1) or an
5 easement referred to in section 8(1).
10. Status and purposes of reserve not affected
(1) Despite the grant of a lease referred to in section 6(1), a licence
referred to in section 7(1) or an easement referred to in
section 8(1) --
10 (a) the reserve remains a class A reserve under the LA Act
reserved for the purpose of conservation of flora and
fauna; and
(b) the grant is not to be treated as reducing the area of, or
excising an area from, the reserve for the purposes of the
15 LA Act section 42(4).
(2) Nothing in this Act affects the operation of the LA Act
section 45(3).
page 10
Barrow Island Bill 2003
Conveyance and underground disposal of carbon dioxide Part 4
s. 11
Part 4 -- Conveyance and underground disposal of
carbon dioxide
11. Petroleum Pipelines Act 1969 applies to pipelines on Barrow
Island for conveyance of carbon dioxide
5 (1) The provisions of the Petroleum Pipelines Act 1969 apply as if
there were included in the definition of "petroleum" in
section 4(1) of that Act a reference to carbon dioxide.
(2) Despite paragraph (b)(ii) of the definition of "pipeline" in
section 4(1) of the Petroleum Pipelines Act 1969, that definition
10 is to be treated as including a pipeline for the conveyance of
carbon dioxide to a place on Barrow Island for the purpose of
disposing of the carbon dioxide in an underground reservoir or
other subsurface formation.
12. Petroleum Safety Act 1999 applies to operations on Barrow
15 Island concerning carbon dioxide
The provisions of the Petroleum Safety Act 1999 apply as if
there were included in the definition of "petroleum" in section 3
of that Act a reference to carbon dioxide.
13. Disposal of carbon dioxide underground
20 (1) A person must not inject carbon dioxide into an underground
reservoir or other subsurface formation for the purpose of
disposing of the carbon dioxide unless the person has the BI Act
Minister's approval under this section to do so.
Penalty: $50 000.
25 (2) An application for the BI Act Minister's approval under this
section --
(a) is to be made in the form and manner approved by the
BI Act Minister;
page 11
Barrow Island Bill 2003
Part 4 Conveyance and underground disposal of carbon dioxide
s. 13
(b) is to be accompanied by particulars of --
(i) the position, size, capacity and geological
structure of the underground reservoir or other
subsurface formation;
5 (ii) the rate of the proposed disposal of the carbon
dioxide, the volume and composition of the
carbon dioxide proposed to be disposed of and
the expected duration of the proposed disposal;
(iii) the methods proposed to be used for the injection
10 and disposal of the carbon dioxide;
(iv) the capability of the underground reservoir or
other subsurface formation to confine the
disposed carbon dioxide; and
(v) technical advice and data available to the
15 applicant in relation to the proposed disposal;
and
(c) is to be accompanied by the prescribed fee, if any.
(3) The BI Act Minister may, at any time, require the applicant --
(a) to give the BI Act Minister, within the time specified by
20 that Minister, further information in writing in
connection with the application; or
(b) to inform such other persons as the BI Act Minister
considers necessary that the application has been made.
(4) In considering an application under this section the BI Act
25 Minister may seek, and have regard to, the advice or
information of any person on a matter that in the opinion of that
Minister is relevant to the proposed disposal.
(5) The BI Act Minister is not to give his or her approval under this
section unless the BI Act Minister has consulted, and had regard
30 to the advice, if any, of --
(a) the LA Act Minister;
(b) the CALM Act Minister; and
page 12
Barrow Island Bill 2003
Conveyance and underground disposal of carbon dioxide Part 4
s. 13
(c) any other person who is required to be informed under
subsection (3)(b) of the application.
(6) The BI Act Minister may grant his or her approval under this
section subject to any condition or restriction including, without
5 limiting the generality of the Minister's discretion, a condition
as to --
(a) the payment of money to the State;
(b) indemnification of the State; or
(c) the transferability or otherwise of the approval.
page 13
Barrow Island Bill 2003
Part 5 Miscellaneous
s. 14
Part 5 -- Miscellaneous
14. Requirement to obtain authorisations under other laws not
affected
(1) The grant of --
5 (a) a lease referred to in section 6(1);
(b) a licence referred to in section 7(1);
(c) an easement referred to in section 8(1); or
(d) an approval under section 13,
does not affect the requirement to obtain under any written law
10 (including the Petroleum Pipelines Act 1969 as modified by
section 11) a licence, permit, lease, approval, consent,
registration, reservation, exemption or any other kind of
authorisation to do an act that would be unlawful if done
without the relevant authorisation.
15 (2) A requirement to obtain under the LA Act an authorisation
referred to in subsection (1) is subject to the modifications to the
LA Act made under Part 3.
(3) Nothing in subsection (1) affects the operation of the
Agreement.
20 15. Limitations on gas processing projects on Barrow Island
(1) Any gas processing project on Barrow Island must be the
subject of a Government agreement as defined in the
Government Agreements Act 1979 section 2.
(2) Subsection (1) does not apply to gas processing under the
25 Barrow Island lease.
(3) After the Barrow Island Coordination Council is formed under
clause 13 of the Agreement, a person cannot operate a gas
processing project on Barrow Island unless the person is a
participant in the Council.
page 14
Barrow Island Bill 2003
Miscellaneous Part 5
s. 16
16. Land used for gas processing project purpose is rateable
land
For the avoidance of doubt in the interpretation of the Local
Government Act 1995 section 6.26(2)(a)(i), it is declared that
5 any part of the reserve that, at a particular time, is being used for
a gas processing project purpose, is not being used or held for a
public purpose.
17. Regulations
The Governor may make regulations prescribing all matters that
10 are required or permitted by this Act to be prescribed, or are
necessary or convenient to be prescribed, for giving effect to the
purposes of this Act.
18. Review of Act on cessation of Agreement
(1) In the event that the Agreement ceases under clause 4(1) or 8(6)
15 of the Agreement, the BI Act Minister is to carry out a review of
the operation and effectiveness of this Act as soon as is
practicable after the day on which the Agreement ceases, and in
the course of that review that Minister is to consider and have
regard to --
20 (a) the need for the continuation of the operation of this
Act; and
(b) such other matters as appear to that Minister to be
relevant to the operation and effectiveness of this Act.
(2) The BI Act Minister is to prepare a report based on his or her
25 review made under subsection (1) and, as soon as is practicable
after the preparation of the report, is to cause the report to be
laid before each House of Parliament.
page 15
Barrow Island Bill 2003
Schedule 1 Gorgon Gas Processing and Infrastructure Project Agreement
Schedule 1 -- Gorgon Gas Processing and Infrastructure
Project Agreement
[s. 3]
THIS AGREEMENT is made this 9th day of September 2003
5
BETWEEN:
THE HONOURABLE GEOFFREY IAN GALLOP, B.Ec., MA., MPhil.,
DPhil., M.L.A., Premier of the State of Western Australia, acting for and on
10 behalf of the said State and its instrumentalities from time to time (hereinafter
called "the State") of the one part; and
CHEVRONTEXACO AUSTRALIA PTY. LTD. ABN 29 086 197 757 of
Level 24 QV1 Building, 250 St George's Terrace, Perth, Western Australia,
TEXACO AUSTRALIA PTY. LTD. ABN 18 081 647 047 of Level 24 QV1
15 Building, 250 St George's Terrace, Perth, Western Australia, MOBIL
AUSTRALIA RESOURCES COMPANY PTY. LIMITED ABN
38 000 113 217 of 12 Riverside Quay, Southbank, Melbourne, Victoria and
SHELL DEVELOPMENT (AUSTRALIA) PROPRIETARY LIMITED
ABN 14 009 663 576 of Level 28 QV1 Building, 250 St George's Terrace,
20 Perth, Western Australia (hereinafter collectively called "the Joint Venturers" in
which term shall be included their respective successors and permitted assigns)
of the other part.
WHEREAS:
A. The Joint Venturers are the holders of the Title Areas (as hereinafter
25 defined) granted under the Petroleum (Submerged Lands) Act 1967 of
the Commonwealth and propose to undertake offshore production of
natural gas and other petroleum from those areas and a gas processing
and infrastructure project as hereinafter defined as the Project on
Barrow Island.
30 B. The State, for the purpose of promoting industrial development in
Western Australia and the supply of gas to the mainland of Western
Australia, desires to facilitate the establishment of the Project upon and
subject to the terms of this Agreement.
page 16
Barrow Island Bill 2003
Gorgon Gas Processing and Infrastructure Project Agreement Schedule 1
C. The State and the Joint Venturers recognise the need for employment
and training opportunities for the Western Australian workforce and for
participation in the proposed development by suppliers manufacturers
contractors and consultants resident in Western Australia.
5 D. The State and the Joint Venturers acknowledge the high biodiversity
value on Barrow Island and the need for this Agreement to provide for
net environmental, social and economic benefits for current and future
generations and the need for minimisation of environmental impact of
the Project on Barrow Island.
10 NOW THIS AGREEMENT WITNESSES:
Definitions
1. In this Agreement subject to the context:
"advise", "apply", "approve", "approval", "consent", "certify",
"direct", "notice", "notify", "request", or "require", means advise,
15 apply, approve, approval, consent, certify, direct, notice, 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;
"Associated Entity" means:
(a) in relation to a Joint Venturer other than Shell Development
20 (Australia) Proprietary Limited ("Shell"):
(i) a body corporate, partnership or other legal entity which
is directly or indirectly controlled by the Joint Venturer;
(ii) a body corporate, partnership or other legal entity which
directly or indirectly controls the Joint Venturer; or
25 (iii) a body corporate, partnership or other legal entity which
is directly or indirectly controlled by a body corporate,
partnership or other legal entity which directly or
indirectly controls the Joint Venturer; and
(b) in relation to Shell:
30 (i) N.V. Koninklijke Nederlandsche Petroleum
Maatscappij ("Royal Dutch");
page 17
Barrow Island Bill 2003
Schedule 1 Gorgon Gas Processing and Infrastructure Project Agreement
(ii) The 'Shell' Transport and Trading Company, plc ("Shell
Transport"); and
(iii) any company (other than Shell) which is for the time
being directly or indirectly controlled by Royal Dutch
5 and Shell Transport or either of them.
For the purpose of this definition, a body corporate, partnership or other
legal entity ("Entity") is directly controlled by another Entity or
Entities holding shares carrying the majority of votes exercisable at a
general meeting of the first mentioned Entity; and a particular Entity is
10 indirectly controlled by an Entity or Entities (the "parent Entity or
Entities") if a series of Entities can be specified, beginning with the
parent Entity or Entities and ending with the particular Entity, so related
that each Entity in the series, except the parent Entity or Entities, is
directly controlled by one or more of the Entities earlier in the series;
15 "approved proposal" means a proposal approved or deemed to be
approved under this Agreement;
"Barrow Island Coordination Council" or "BICC" means the group
referred to in clause 13;
"BICC Participants" means the participants in the BICC from time to
20 time;
"Barrow Island lease" has the meaning given to it in the Ratifying Act;
"BI Lessee" means the lessee from time to time under the Barrow
Island lease;
"CALM Act" means the Conservation and Land Management
25 Act 1984;
"CALM Act Minister" means the Minister to whom the administration
of the CALM Act is for the time being committed;
"Commencement Date" means the date on which the Ratifying Act
comes into operation;
30 "Commonwealth" means the Commonwealth of Australia and includes
the Government for the time being thereof;
"DCLM" means the Department of Conservation and Land
Management referred to in section 32 of the CALM Act;
page 18
Barrow Island Bill 2003
Gorgon Gas Processing and Infrastructure Project Agreement Schedule 1
"Domgas Project" means any domestic gas treatment plant within the
Gas Processing Area on Barrow Island and a pipeline connection or
connections to deliver natural gas from that plant to domestic gas
infrastructure on the mainland of Western Australia;
5 "EP Act" means the Environmental Protection Act 1986;
"Executive Director" means the executive director of DCLM referred
to in section 36(1) of the CALM Act;
"First long term lease" means the first long term lease granted by the
State to the Joint Venturers for the purposes of establishment of a gas
10 processing plant pursuant to an approved proposal under clause 7 and
includes that lease, if renewed or varied, as so renewed or varied;
"Gas Processing Area" means the areas of Barrow Island not
exceeding in aggregate 300 hectares, as described in section 9 of the
Ratifying Act;
15 "gas processing project purpose" has the meaning given to it in the
Ratifying Act;
"Greater Gorgon Area" means the areas which are the subject of
Retention Leases WA-15-R, WA-17-R, WA-18-R, WA-19-R,
WA-20-R, WA-21-R, WA-22-R, WA-23-R, WA-24-R, WA-25-R and
20 WA-26-R, Exploration Permits WA-253-P, WA-267-P and WA-268-P
and graticular blocks 439, 440, 511, 512, 583 and 584 of Exploration
Permit WA-205-P, or of titles derived from those titles, which are held
during the term of this Agreement by any person under such titles
granted pursuant to the Petroleum (Submerged Lands) Act 1967 of the
25 Commonwealth;
"LA Act" means the Land Administration Act 1997, as amended by the
Ratifying Act;
"laws relating to native title" means laws applicable from time to time
in Western Australia in respect of native title and includes the Native
30 Title Act 1993 (Commonwealth);
"local government" means a local government established under the
Local Government Act 1995;
"Minister" means the Minister in the Government of the State for the
time being responsible for the administration of the Act to ratify this
page 19
Barrow Island Bill 2003
Schedule 1 Gorgon Gas Processing and Infrastructure Project Agreement
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;
5 "Net Conservation Benefits" means demonstrable and sustainable
additions to or improvements in biodiversity conservation values of
Western Australia targeting, where possible, the biodiversity
conservation values affected or occurring in similar bioregions to
Barrow Island;
10 "person" or "persons" includes bodies corporate;
"petroleum" has the meaning given to it in the Petroleum (Submerged
Lands) Act 1967 of the Commonwealth;
"Project" means the processing of gas or other petroleum from within
the Title Areas and, subject to this Agreement, gas or other petroleum
15 from the Greater Gorgon Area and other areas to produce, by staged
phases of development, some or all of:
(a) liquefied natural gas or other petroleum based products for sale
within Australia and/or overseas;
(b) natural gas or processed natural gas or other petroleum based
20 products for sale or industrial use on Barrow Island; and
(c) processed natural gas and the pipeline transportation of such gas
to the mainland of Western Australia for sale within Australia,
and all related activities including construction, operation and
maintenance of pipelines, transport, carbon dioxide disposal and other
25 ancillary services and facilities;
"Ratifying Act" means the Act that ratifies this Agreement;
"Title Areas" means the areas which, at the Commencement Date, are
the subject of Retention Leases WA-2-R, WA-3-R, WA-4-R, WA-5-R,
WA-14-R and WA-16-R and graticular blocks 153, 154, 225, 226, 296,
30 297, 368 and 369 within Exploration Permit WA-205-P and in which
interests are held during the term of this Agreement by any or all of the
Joint Venturers under titles granted pursuant to the Petroleum
(Submerged Lands) Act 1967 of the Commonwealth;
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Gorgon Gas Processing and Infrastructure Project Agreement Schedule 1
"this Agreement", "hereof" and "hereunder" refer to this Agreement
as from time to time added to, varied or amended.
Interpretation
2. (1) In this Agreement:
5 (a) monetary references are references to Australian
currency unless otherwise specifically expressed;
(b) power given under any clause other than clause 24 to
extend any period or date shall be without prejudice to
the power of the Minister under clause 24;
10 (c) clause headings do not affect 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;
15 (e) one gender includes the other genders;
(f) a covenant or agreement by more than one person
binds, and is enforceable against, those persons jointly
and each of them severally;
(g) reference to an Act includes the amendments to that
20 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;
(h) reference to any other document includes that
document as from time to time added to, varied or
25 amended and notwithstanding any change in the
identity of the parties;
(i) reference to a clause or schedule is a reference to a
clause or schedule to this Agreement, and a reference
to a subclause or paragraph is a reference to the
30 subclause of the clause or paragraph of the clause or
subclause as the case may be in, or in relation to,
which the reference is made; and
(j) "including" means "including, but not limited to".
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Schedule 1 Gorgon Gas Processing and Infrastructure Project Agreement
(2) Nothing in this Agreement shall be construed to exempt the
State or the Joint Venturers from compliance with or to
require the State or the Joint Venturers to do anything contrary
to any law relating to native title or any lawful obligation or
5 requirement imposed on the State or the Joint Venturers as the
case may be pursuant to any law relating to native title.
(3) 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
10 of or incidental to their activities under this Agreement that
may be made pursuant to the EP Act or the Ratifying Act.
Ratification and operation
3. (1) The State shall introduce and sponsor a Bill in the State
Parliament of Western Australia to ratify this Agreement and
15 endeavour to secure its passage and commencement as an Act
prior to 31 December 2003 or such later date as may be agreed
between the parties hereto.
(2) The provisions of this Agreement other than this clause and
clauses 1 and 2 will not come into operation until the Bill
20 referred to in subclause (1) has been passed by the State
Parliament of Western Australia and comes into operation as
an Act.
(3) If by 31 December 2003 or later agreed date the said Bill has
not commenced to operate as an Act then, unless the parties
25 hereto otherwise agree, this Agreement will then cease and
determine and no party hereto will have any claim against any
other party hereto with respect to any matter or thing arising
out of, done, performed, or omitted to be done or performed
under this Agreement.
30 (4) On the said Bill commencing to operate as an Act all the
provisions of this Agreement will operate and take effect
notwithstanding the provisions of any Act or law.
Preparatory work
4. (1) The Joint Venturers shall continue their field and office
35 geological, geotechnical, engineering, environmental, social
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Gorgon Gas Processing and Infrastructure Project Agreement Schedule 1
impact, heritage, marketing and finance studies and
investigations into other matters as they consider necessary to
enable them to finalise and to submit proposals under this
Agreement and shall report in writing thereon to the State at
5 quarterly intervals or such longer periods as may be approved
by the Minister. If such preparatory work leads the Joint
Venturers to conclude at any time prior to submission of their
complete detailed proposals under clause 7(1) that the Project
cannot successfully be established in accordance with this
10 Agreement, the Joint Venturers shall consult with the Minister
thereon and following such consultation, if they are still of
that mind, they may within 21 days after the consultation
notify the Minister that they do not intend to submit such
proposals and, upon that notification, this Agreement shall
15 cease and determine.
(2) With each report pursuant to subclause (1) the Joint Venturers
shall also advise the State of the then expected Western
Australian and other Australian content of their proposed
works and, in relation thereto, the matters the subject of
20 clause 15(4).
(3) The Joint Venturers shall co-operate with the State and
consult with the representatives or officers of the State
regarding matters referred to in subclause (1) and any other
relevant studies in relation thereto that the Minister may wish
25 to undertake and shall join with the State in any studies into
infrastructure that the Minister and the Joint Venturers agree
should be undertaken.
(4) If so requested by the Joint Venturers the State shall, at the
cost of the Joint Venturers, exercise any powers available to it
30 pursuant to the Barrow Island lease in relation to access for
the Joint Venturers to land within that lease for the purposes
of this clause.
(5) For the purpose of this Agreement, the Joint Venturers in
relation to any land the subject of approved proposals or
35 proposed as land to be granted in accordance with proposals
under this Agreement shall be deemed to be within the
expression "the owner of any land" for the purposes of
section 18 of the Aboriginal Heritage Act 1972.
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Schedule 1 Gorgon Gas Processing and Infrastructure Project Agreement
Overall development - existing infrastructure
5. (1) Having regard to the Class A Nature Reserve status of Barrow
Island, the provisions of the Ratifying Act, the need to
minimise environmental disturbance and the impact on
5 conservation values on Barrow Island by the avoidance of
duplication of services, facilities and infrastructure and that no
more than 300 hectares of uncleared land (as described in
section 9 of the Ratifying Act) is available for this and other
future gas processing developments on Barrow Island, the
10 Joint Venturers in their planning and preparations for
proposals shall take into account and make provision as far as
practicable for use and sharing of services, facilities and
infrastructure. The Joint Venturers and the State shall
co-operate and consult with each other regarding these
15 matters, State Government policies and development
objectives, the Joint Venturers' commercial requirements and
any other relevant matters that the Minister or the Joint
Venturers may wish to consider.
(2) Subject to clause 21 the Joint Venturers shall, if so requested
20 by the Minister or by another existing or prospective occupant
of Barrow Island, enter into negotiations for the sharing or
supply, in both cases on reasonable commercial terms and
subject to there being spare capacity available, of the Joint
Venturers' services, facilities and infrastructure on Barrow
25 Island. The implementation of such arrangements shall not be
precluded by this Agreement.
Reservation of areas
6. (1) The Gas Processing Area shall be reserved by the State solely
for the provision of land areas for the establishment of
30 projects to process or use natural gas and other petroleum
from the Title Areas and the Greater Gorgon Area (together
with ancillary processing or use of gas and other petroleum
from the Barrow Island lease or elsewhere if approved by the
Minister), and for associated activities to such projects and the
35 Minister shall not consent to the grant of any lease, easement
or licence under the Ratifying Act which is inconsistent with
this reservation.
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Gorgon Gas Processing and Infrastructure Project Agreement Schedule 1
(2) For the period from the Commencement Date to
31 December 2009 the State shall reserve to the Joint
Venturers areas within the Gas Processing Area of 150
hectares in the aggregate from which they may seek the grant
5 of long term leases of land for the purposes of the Project and
easements for carbon dioxide pipelines, control lines and
ancillary services under the LA Act in accordance with
approved proposals.
(3) The State shall also reserve areas within the Gas Processing
10 Area of not less than 50 hectares for the grant of easements
under the LA Act for petroleum pipelines, control lines and
ancillary services associated with gas and other petroleum
processing within the Gas Processing Area by the Joint
Venturers and other occupants of the Gas Processing Area.
15 (4) If the Joint Venturers or any other occupants of the Gas
Processing Area are granted any easement under
subclause (3), the State shall ensure that they locate their
pipelines and other lines and services within such easement
and implement arrangements for risk management and risk
20 allocation so as to allow others to install lines within the
easement associated with gas and other petroleum processing
within the Gas Processing Area.
(5) The Joint Venturers shall, where reasonably practicable,
locate their construction and laydown areas within the 150
25 hectares reserved under subclause (2) or within cleared land
and may seek the grant of short term leases under the LA Act
over such areas in accordance with approved proposals.
(6) The Joint Venturers shall also, where reasonably practicable
and subject to implementation of reasonable arrangements for
30 risk management and risk allocation, allow third parties to
locate temporary construction and laydown areas on areas
within the 150 hectares reserved under subclause (2). If the
State reserves areas for or grants titles to third parties in
respect of other parts of the Gas Processing Area or other
35 cleared land, the State shall, without limiting subclause (5),
ensure that the Joint Venturers have equivalent construction
and laydown rights over such areas.
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Schedule 1 Gorgon Gas Processing and Infrastructure Project Agreement
(7) In respect of any area reserved pursuant to subclause (2)
which is not the subject of an approved proposal or approved
proposals at 31 December 2009, the State and the Joint
Venturers shall consult with each other regarding the market
5 situation and gas reserves in the Title Areas and the Greater
Gorgon Area and the Joint Venturers' continued requirement
for the area or any part thereof. Any portions of the area not
reasonably required by the Joint Venturers at the discretion of
the Joint Venturers, shall be released from the reservation.
10 Any area not so released shall continue to be reserved under
subclause (8) until 31 December 2014 or the sooner cessation
of this Agreement.
(8) In respect of any area continuing to be reserved pursuant to
subclauses (2) and (7) which is not the subject of an approved
15 proposal or approved proposals at 31 December 2014, the
State and the Joint Venturers shall consult with each other
regarding the market situation and gas reserves in the Title
Areas and the Greater Gorgon Area and the Joint Venturers'
continued requirement for the area. After such consultation
20 the Minister at his discretion, may cancel the reservation or
extend the whole or any part thereof that is then not the
subject of an approved proposal for such period not exceeding
5 years as the Minister may determine.
(9) If the date 31 December 2008 referred to in clause 7(1) is
25 extended pursuant to clause 24 then the dates
31 December 2009 and 31 December 2014 in subclauses (2),
(7) and (8) shall respectively be automatically extended for
the same length of time.
(10) If the Joint Venturers wish to use land within the Gas
30 Processing Area beyond that which is reserved for them from
time to time, they may request permission to bring forward a
proposal under this Agreement in respect of that land and the
Minister may in his discretion allow this.
(11) The Minister shall advise the Joint Venturers of any land
35 within the Gas Processing Area that the State is considering
reserving or granting to a third party for the establishment and
operation of plant for the treatment of natural gas and other
petroleum, its processing, storage and/or shipment and
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Gorgon Gas Processing and Infrastructure Project Agreement Schedule 1
associated ancillary structures and for incidental and ancillary
purposes and, if requested by the Joint Venturers, the Minister
shall consult with them in this regard.
Joint Venturers to submit Proposals
5 7. (1) Subject to the provisions of this Agreement, the Joint
Venturers shall, on or before 31 December 2008, or by such
extended date as may be allowed pursuant to clause 24 or
clause 30(3), submit to the Minister to the fullest extent
reasonably practicable their detailed proposals (including
10 plans where practicable and specifications where reasonably
required by the Minister and any other details normally
required by a local government in whose area any works are
to be situated) with respect to the Project including, subject to
and in accordance with clause 5, their proposals for the use
15 and/or sharing of existing services, facilities or infrastructure
on Barrow Island, which proposals shall include the location,
area, provisions relating to management of quarantine risk,
lay-out, design (including design features to enable future
delivery of gas to the mainland), quantities, materials and time
20 program for the commencement and completion of
construction or the provision (as the case may be) of each of
the following matters, namely:
(a) a pipeline or pipelines bringing untreated natural gas
and other petroleum from the Title Areas to Barrow
25 Island, including details of how the pipeline or
pipelines will deliver or be expanded to deliver the
untreated gas required for the establishment of a
Domgas Project in accordance with clause 17;
(b) pipelines to be situated on Barrow Island;
30 (c) the treatment plant;
(d) disposal of carbon dioxide (including by injection or
sale);
(e) shipping facilities and services;
(f) quarantine management plan in respect of Barrow
35 Island;
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Schedule 1 Gorgon Gas Processing and Infrastructure Project Agreement
(g) water supply;
(h) power supply;
(i) accommodation for construction and permanent
workforce;
5 (j) a social impact management plan including education,
health and policing services and community facilities;
(k) use of local professional services labour and materials
and measures to be taken with respect to the
engagement and training of employees by the Joint
10 Venturers, their agents and contractors;
(l) any leases, licences or easements required from the
State;
(m) airport and heliport facilities;
(n) any other works, service or facilities desired by the
15 Joint Venturers;
(o) establishment and operation of the Barrow Island
Coordination Council; and
(p) closure plan including rehabilitation and long term
management plan for injected carbon dioxide.
20 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 any matter or matters
mentioned in subclause (1).
25 Additional submissions
(3) (a) Each time that the Joint Venturers submit a proposal
or proposals under this clause they shall submit to the
Minister in respect of that proposal or proposals
details of any services (including any elements of the
30 project investigations design and management) and
any works materials plant equipment and supplies that
they propose to consider obtaining from or having
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Barrow Island Bill 2003
Gorgon Gas Processing and Infrastructure Project Agreement Schedule 1
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.
5 (b) At the time when the Joint Venturers submit the
complete detailed proposal or proposals required
under this clause they shall confirm or address further
the matters referred to in paragraph (a) and shall also
submit to the Minister:
10 (i) evidence to the reasonable satisfaction of the
Minister as to the availability of finance
necessary to carry out the Project; and
(ii) evidence to the reasonable satisfaction of the
Minister as to the readiness of the Joint
15 Venturers in all other respects to carry out the
Project.
(4) If the complete detailed proposals submitted under this clause
do not include a proposal to inject carbon dioxide recovered
during gas processing, the Minister may notify the Joint
20 Venturers within 60 days after submission of those proposals
that he will not consider the proposals. On such notification
the proposals shall lapse and clause 8(3) shall apply in relation
to the submission of further proposals by the Joint Venturers.
The Minister's decision under this subclause shall not be
25 referable to arbitration under clause 30.
(5) The provisions of clause 23 shall not apply to this clause.
Consideration of proposals
8. (1) Subject to clause 7(4), in respect of each proposal pursuant to
clause 7(1) the Minister shall:
30 (a) approve 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
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Barrow Island Bill 2003
Schedule 1 Gorgon Gas Processing and Infrastructure Project Agreement
matters mentioned in clause 7(1) 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
5 make such alteration thereto or comply with such
conditions in respect thereto as he thinks reasonable,
and in such a case the Minister shall disclose his
reasons for such alterations or conditions,
PROVIDED ALWAYS that:
10 (d) 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
15 Venturers make such alterations to the proposals as
may be necessary to make them accord with those
conditions or procedures; and
(e) subject to clause 8(1)(d), if the proposals include
details of the conditions and restrictions that have
20 been imposed on an approval to inject carbon dioxide
under section 13 of the Ratifying Act, the Minister
may not make any decision under clause 8(1)(b) or (c)
which is inconsistent with those conditions and
restrictions.
25 Advice of Minister's decision
(2) The Minister shall, within two months after receipt of
proposals pursuant to clause 7(1) and compliance by the Joint
Venturers with clause 7(3), give notice to the Joint Venturers
of his decision in respect to the proposals PROVIDED
30 THAT:
(a) where a proposal is to be assessed under
section 40(1)(b) of the EP Act the Minister shall give
notice to the Joint Venturers of his decision in respect
to the proposal within 2 months after the later
35 happening of the receipt of the proposal and the
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Barrow Island Bill 2003
Gorgon Gas Processing and Infrastructure Project Agreement Schedule 1
service on him of an authority under section 45(7) of
the EP Act; and
(b) where a proposal will or may require the State to do
any act which affects any native title rights and
5 interests the Minister shall give notice to the Joint
Venturers of his decision in respect to the proposal
within 2 months of the later happening of the receipt
of the proposal and the completion of all processes
required by laws relating to native title to be
10 undertaken by the State before that act may be done
by the State.
Consultation with Minister
(3) If the decision of the Minister is as mentioned in clause 7(4)
or in either of paragraphs (b) or (c) of subclause (1), the
15 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
20 (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 2 months after receipt of the notice mentioned in
subclause (2), may elect to refer to arbitration in the manner
25 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
30 (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
35 Minister of their acceptance of the award, this
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Barrow Island Bill 2003
Schedule 1 Gorgon Gas Processing and Infrastructure Project Agreement
Agreement shall on the expiration of that period of
3 months 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,
5 done, performed or omitted to be done or performed
under this Agreement; or
(b) if by the award the dispute is decided in favour of the
Joint Venturers, the decision shall take effect as (and
be deemed to be) a notice by the Minister that he is so
10 satisfied with and approves the matter or matters the
subject of the arbitration.
Effect of non-approval of proposals - termination
(6) Notwithstanding that under this clause any proposals of the
Joint Venturers under clause 7(1) are approved by the
15 Minister or deemed to be approved as a consequence of an
arbitration award, unless each and every such proposal and
matter is so approved or deemed to be approved by
31 December 2009 or by such extended date or period if any
as the Joint Venturers shall be granted pursuant to clause 24 or
20 clause 30(3) then, notwithstanding anything to the contrary in
this Agreement, this Agreement shall on that date cease and
determine.
Variation of proposals
(7) Notwithstanding clause 22 the Minister may during the
25 implementation of approved proposals approve variations to
those proposals.
Implementation of approved proposals
9. The Joint Venturers shall implement approved proposals in accordance
with the terms thereof.
30 Additional proposals
10. (1) Subject to clause 5, 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
35 such desire to the Minister and, within 2 months thereafter,
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Barrow Island Bill 2003
Gorgon Gas Processing and Infrastructure Project Agreement Schedule 1
shall submit to the Minister detailed proposals in respect of all
matters covered by such notice and such of the other matters
mentioned in clause 7(1) as the Minister may require.
(2) The provisions of subclause (1) shall not apply to matters the
5 subject of clause 17.
(3) The provisions of clause 7 and clause 8 (other than
clauses 8(5)(a) and (6)) shall mutatis mutandis apply to
detailed proposals submitted pursuant to this clause, with the
proviso that the Joint Venturers may withdraw such proposals
10 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 it shall
not be proceeding with the same.
Net Conservation Benefits
15 11. (1) The Joint Venturers shall pay to the State $40 million, by
instalments to be indexed in accordance with subclause (3)
from 1 January 2004, for ongoing programs that will provide
Net Conservation Benefits.
(2) Each instalment under subclause (1) shall become due and
20 payable, and shall be paid into a special purpose trust account,
as follows:
(a) by an initial instalment of $3 million within one
month following the Commencement Date or upon
establishment of the account in accordance with
25 subclause (5), whichever is the later; and
(b) thereafter by further instalments totalling $37 million
(indexed in accordance with subclause (3))
commencing within one month of approval of
complete detailed proposals submitted under clause 7
30 and continuing in accordance with a schedule of
payments to be agreed between the Joint Venturers
and the Minister, in consultation with the CALM Act
Minister, prior to the approvals of those proposals.
(3) Each instalment under subclause (1) shall be adjusted
35 immediately prior to payment in accordance with the
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Schedule 1 Gorgon Gas Processing and Infrastructure Project Agreement
following formula (unless the adjustment would result in a
reduction in the instalment) and the Joint Venturers shall
become liable to pay the adjusted amount in accordance with
this clause:
Bx C
5 A=
D
Where:
A = the adjusted amount of the instalment.
B = the unadjusted amount of the instalment, as at
1 January 2004.
10 C = the Consumer Price Index All Groups Perth last
published by the Australian Bureau of Statistics
before 1 January in the year of the adjustment.
D = the Consumer Price Index All Groups Perth last
published by the Australian Bureau of Statistics
15 before 1 January 2004.
(4) If either:
(a) the Consumer Price Index All Groups Perth ceases to
be published; or
(b) the method of calculation of the Consumer Price
20 Index All Groups Perth substantially alters,
then the Consumer Price Index All Groups Perth is to be
replaced by the nearest equivalent index and any necessary
consequential amendments are to be made. That replacement
index and those amendments are to be determined as follows:
25 (c) by agreement between the Joint Venturers and the
Minister; or
(d) if they do not agree within 6 months, by the
Australian Statistician or his nominee (acting as an
expert and not as an arbitrator), whose decision is
30 binding and conclusive.
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Gorgon Gas Processing and Infrastructure Project Agreement Schedule 1
(5) The special purpose trust account under subclause (2) shall be
established pursuant to section 69 of the CALM Act and shall
be subject to arrangements for governance, consultation and
reporting to be agreed between the Joint Venturers and the
5 Minister, in consultation with the CALM Act Minister, as
soon as practicable after the date of this Agreement. If
section 69 of the CALM Act is repealed or substantially
amended during the term of this Agreement, the Joint
Venturers and the Minister shall promptly agree on an
10 alternative equivalent special purpose trust account and any
necessary alterations to the arrangements for governance,
consultation and reporting.
(6) No additional proposals shall be submitted under clause 10 for
expansion of the Project beyond nameplate capacity of
15 10mtpa LNG production (or the equivalent gas input for other
petroleum based product) until proportionate funding
additional to the $40 million referred to above has been agreed
between the Joint Venturers and the State. Establishment and
expansion of a Domgas Project by the Joint Venturers shall
20 not be subject to additional Net Conservation Benefits
payments.
DCLM costs
12. (1) The Joint Venturers shall, during the term of this Agreement
after approval of complete detailed proposals submitted under
25 clause 7:
(a) pay to DCLM full cost recovery to cover all
management costs of DCLM (to include a
contribution to corporate support costs and the cost of
salaries, including labour on-costs and other costs of
30 the officers engaged therein); and
(b) provide within facilities on Barrow Island and from
normal support services all food and accommodation,
office and laboratory facilities, transport to and from
Barrow Island and a dedicated motor vehicle, plus any
35 other services and facilities agreed by DCLM and the
Joint Venturers,
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Schedule 1 Gorgon Gas Processing and Infrastructure Project Agreement
reasonably required by DCLM to maintain a permanent
management presence on Barrow Island for the purpose of
managing the Project's presence in relation to island and
marine conservation and to carry out its role and responsibility
5 in respect of the Joint Venturers' operations and activities
under this Agreement.
(2) The term "permanent management presence" in subclause (1)
includes:
(a) the capacity to provide for full time independent
10 quarantine audit on Barrow Island and the mainland of
Western Australia; and
(b) the capacity to ensure that all onsite and offsite areas
including marine are appropriately monitored,
researched and managed in relation to primary and
15 secondary (direct and indirect) impacts in order to
ensure that the total island marine and terrestrial
ecology is being properly monitored and managed and
to ensure that the ecological knowledge base is being
properly developed.
20 (3) To the extent DCLM claims reimbursement from the Joint
Venturers, DCLM shall provide such substantiation as the
Joint Venturers may reasonably request of DCLM's costs
under subclause (1).
(4) The maximum amount payable by the Joint Venturers under
25 subclause (1)(a) shall be limited to $1 million per calendar
year during major construction phases of the Project and
$750,000 per calendar year during other times. These limits
shall be pro rated in respect of periods of less than a calendar
year and shall be indexed annually on the same basis set out in
30 clause 11(3).
(5) The Joint Venturers' obligations under subclause (1)(b) shall
be limited to providing the accommodation and other facilities
and services for the presence of three officers on Barrow
Island during major construction phases and two officers at
35 other times.
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Gorgon Gas Processing and Infrastructure Project Agreement Schedule 1
Barrow Island Coordination Council
13. The Joint Venturers shall prior to receiving approval of their
complete detailed proposals under clause 7 make
arrangements with the BI Lessee satisfactory to the Minister,
5 in consultation with the CALM Act Minister, to form and
operate the Barrow Island Coordination Council in accordance
with the following principles:
(a) The formation and operation of the BICC shall not
limit any rights or powers of DCLM in relation to the
10 management of Barrow Island except to the extent, if
any, that DCLM agrees.
(b) The BICC shall commence operation on a nominated
date within one month of approval of the proposals
and the commitments of the BICC Participants shall
15 relate to, and only to, matters, activities and events
that occur after that date.
(c) All of the Joint Venturers and the BI Lessee shall
participate in the BICC either directly or through a
properly authorised joint venture operator as their
20 agent.
(d) The BICC Participants shall nominate one of the
BICC Participants as the BICC Manager with
authority to undertake, and to represent all the BICC
Participants in relation to, all BICC activities from
25 time to time.
(e) The matters to be coordinated by the BICC are:
(i) providing a single point of contact and
interaction for DCLM in relation to the
management of issues related generally to the
30 operations of the BICC Participants on
Barrow Island;
(ii) liaising with DCLM in relation to the terms
and implementation of the management plan
under Division 1 of Part 5 of the CALM Act
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Schedule 1 Gorgon Gas Processing and Infrastructure Project Agreement
so far as it relates generally to the operations
of the BICC Participants on Barrow Island;
(iii) establishing, monitoring and reviewing from
time to time procedures to apply to quarantine
5 of all people and materials brought to Barrow
Island for the purposes of the operations of
any of the BICC Participants;
(iv) planning and coordinating the BICC's role in
emergency response to and undertaking,
10 where necessary, remediation of any
suspected or actual breach of quarantine in the
operations of any of the BICC Participants;
(v) planning and coordinating the BICC's role in
emergency response to and undertaking,
15 where necessary, remediation of escape of
hydrocarbons or other pollutants from the
operations on Barrow Island of any of the
BICC Participants;
(vi) reporting to the Minister and DCLM at least
20 annually on all BICC activities in the
preceding 12 months; and
(vii) other matters agreed between the BICC
Participants from time to time.
(f) The BICC Participants shall fund all the activities of
25 the BICC.
(g) The BICC Participants shall undertake direct
obligations to the State in respect of their involvement
in the BICC.
(h) In addition to its commitments as a BICC Participant,
30 each BICC Participant shall remain responsible and
liable for its own environmental and other obligations
relating to its operations on Barrow Island.
(i) The State shall require as a pre-condition to any grant
of a lease, easement or licence under the LA Act that
35 the grantee is a BICC Participant. If the State
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proposes to grant such tenure to a person who is not a
BICC Participant, it must give at least 6 months notice
to the BICC Participants and provide, or require the
proposed grantee to provide them with details of the
5 grantee's proposed operations on Barrow Island and
of its technical and financial capacity. The BICC
Participants shall, subject to the proposed grantee
doing likewise, negotiate promptly and in good faith
with a view to admitting the proposed grantee as a
10 BICC Participant and they shall admit the grantee if:
(i) the third party has undertaken all of the same
obligations to the State as the other BICC
Participants have undertaken in respect of
their involvement in the BICC;
15 (ii) the BICC Participants, acting reasonably, are
satisfied that the additional issues and risks
associated with the proposed activities of the
third party on Barrow Island can adequately
be managed by the BICC; and
20 (iii) the BICC Participants, acting reasonably, are
satisfied that the third party is capable of
meeting all its commitments as a BICC
Participant, including commitments to other
BICC Participants, and has entered into such
25 instruments and provided such security as
may reasonably be required by the BICC
Participants to ensure that those commitments
are met.
Protection and management of the environment
30 14. The Joint Venturers shall in respect of their activities and operations
hereunder comply in all respects with the EP Act and all requirements
and conditions applicable thereunder or pursuant thereto.
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Use of local labour professional services and materials
15. (1) Except as otherwise agreed by the Minister the Joint
Venturers shall, for the purposes of this Agreement -
(a) except in those cases where the Joint Venturers can
5 demonstrate it is not reasonable and economically
practicable so to do, use labour available within
Western Australia (using all reasonable endeavours to
ensure that as many as possible of the workforce be
recruited from the Pilbara) or if such labour is not
10 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
15 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
20 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
25 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;
30 (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
35 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
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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
5 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 where price, quality, delivery
10 and service are otherwise equal or better.
(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
15 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.
20 (3) The Joint Venturers shall submit a report to the Minister at
quarterly intervals from the Commencement Date to the date
of the first submission of proposals under clause 7 and
thereafter at monthly intervals or such longer period as the
Minister determines concerning its implementation of the
25 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
30 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
35 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
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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.
Leases, licences and easements
5 16. (1) The State shall in accordance with the Ratifying Act and the
Joint Venturers' approved proposals grant to the Joint
Venturers or arrange to have the appropriate authority of the
State grant to the Joint Venturers for such periods and on such
terms and conditions including rentals and renewal rights as
10 shall be reasonable having regard to the requirements of the
Joint Venturers and as are consistent with the terms of this
Agreement and the approved proposals leases and where
applicable licences and easements under the LA Act for all or
any of the purposes of the Joint Venturers' activities
15 hereunder.
(2) The First long term lease shall be for a term of 60 years from
the date of approval of the complete detailed proposals under
clause 7. At least 5 years before expiry of the First long term
lease, the Minister and the Joint Venturers shall consult with
20 each other about whether and on what basis the State proposes
to grant any further tenure for industrial purposes over the
land the subject of the First long term lease and whether the
Joint Venturers propose to continue the Project. If the State
proposes to grant any such further tenure and the Joint
25 Venturers propose to continue the Project, the State shall,
subject to subclause (6), offer such tenure to the Joint
Venturers at least 2 years before expiry of the First long term
lease. The State shall not, during the 5 years after expiry of
the First long term lease, offer or grant to any person any
30 tenure over the land that was the subject of the First long term
lease unless the Joint Venturers have first been offered and
refused such tenure on terms and conditions at least as
favourable to them as the terms and conditions of the tenure
offered or granted to the other person.
35 (3) All other long term land titles issued pursuant to approved
proposals shall have terms which expire at the same time as
or, if agreed between the State and the Joint Venturers, on a
date before the expiry of the First long term lease and the Joint
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Venturers shall also have rights of consultation and first
refusal, as contained in subclause (2), in respect of continued
tenure over the areas the subject of those titles. The Joint
Venturers' rights of first refusal under subclauses (2) and (3)
5 shall survive expiry of this Agreement due to expiry of the
First long term lease.
(4) The rental or charges for the First long term lease and other
land titles granted to the Joint Venturers by the State shall, at
the time of grant, be set at levels commensurate with rentals
10 and charges payable in respect of equivalent titles granted for
the purposes of other then existing large gas processing
projects in the Pilbara region which are not subject to
Government agreements (as defined in the Government
Agreements Act 1979).
15 (5) The State's obligations under subclause (1) shall, subject to
subclause (6), include:
(a) at the cost of the Joint Venturers, exercising any
powers available to the State pursuant to the Barrow
Island lease to enable the grant of leases, easements
20 and licences to the Joint Venturers; and
(b) granting or arranging on terms and conditions to be
agreed between the State and the Joint Venturers the
grant from time to time of leases, easements or
licences in respect of land then used by the Joint
25 Venturers for gas processing project purposes if so
requested by the Joint Venturers to enable continued
use thereof after expiry or surrender of the Barrow
Island lease over the relevant area.
(6) The grant or offer of any title or other tenure under
30 subclauses (2), (3) or (4) shall be subject to and may only be
made in accordance with the Ratifying Act.
(7) If the Joint Venturers obtain approval under Part 4 of the
Ratifying Act to inject into the Dupuy aquifer or other
aquifers or depleted reservoirs carbon dioxide recovered
35 during gas processing, the State, subject to ongoing
compliance by the Joint Venturers with relevant regulatory
requirements, shall not revoke, restrict or vary, or permit
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revocation, restriction or variation of the approval during the
term of this Agreement except in accordance with the
approval.
Gas to mainland
5 17. (1) The Joint Venturers shall reserve or procure the reservation of
gas within the Title Areas sufficient for the delivery of 2000
petajoules to the mainland. This reservation shall reduce by
the number of petajoules of natural gas from the Project
delivered to the mainland from time to time.
10 (2) The Joint Venturers shall submit to the Minister by
31 December 2010 proposals for the establishment of a
Domgas Project by 31 December 2012, including design
features to enable the progressive expansion of the
connection(s) to deliver at least 300 terajoules ("TJ") per day
15 of natural gas. The provisions of clause 10(3) shall apply to
proposals under this clause.
(3) From the Commencement Date until at least 300 TJ per day of
natural gas is first delivered from Barrow Island to domestic
gas infrastructure on the mainland the Joint Venturers shall:
20 (a) actively and diligently undertake:
(i) ongoing marketing of natural gas in Western
Australia (including investigation of proposals
for using such gas as petrochemical
feedstock); and
25 (ii) design, engineering and other relevant
activities in relation to establishment of a
Domgas Project; and
(b) report progress on these matters to the Minister on an
annual basis or more often as may be required by the
30 Minister.
(4) To assist in his review of matters under subclause (3), the
Minister may at any time after lodgement of complete detailed
proposals under clause 7(1) until at least 300 TJ per day of
natural gas is first delivered from Barrow Island to domestic
35 gas infrastructure on the mainland, appoint at the cost of the
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Joint Venturers (subject to an agreed budget) an agreed person
who is independent of the parties and does not have any
conflict of interest with other companies involved in the
Western Australian domestic gas industry to advise him of the
5 extent to which the Joint Venturers have actively and
diligently undertaken ongoing marketing in accordance with
subclause (3). The Joint Venturers will provide on a
confidential basis to such person, information on their
marketing activities including indicative prices, quantities and
10 qualities of natural gas offered for sale.
(5) The provisions of clause 23 shall not apply to this clause.
(6) If the Joint Venturers anticipate a need to extend the dates
referred to in subclause (2), or to further extend any later dates
previously agreed by the Minister, they shall consult with the
15 Minister and then, at least 90 days after such consultations
commence, lodge a request with the Minister seeking such
extension or further extension.
(7) If the Joint Venturers seek to extend the dates referred to in
subclause (2), or to further extend any later dates previously
20 agreed by the Minister, on the grounds that a Domgas Project
is not then Commercially Viable, the request shall include
information that identifies the circumstances which would
make a Domgas Project Commercially Viable and address
their likelihood of occurrence and also include an analysis of
25 the Commercial Viability of a Domgas Project, including the
assumptions, the methodology and the conclusions reached by
the Joint Venturers.
(8) If the Minister receives a request under subclause (7), he is
required to make a determination of Commercial Viability
30 under this clause. For that purpose, the Minister may, or if so
requested by the Joint Venturers shall, at the cost of the Joint
Venturers, appoint an independent expert ("Independent
Expert") to prepare a report and recommendation to the
Minister as to whether or not a Domgas Project is then
35 Commercially Viable. The election by the Minister or the
request by the Joint Venturers to appoint an Independent
Expert shall be made within 20 days of the Joint Venturers'
request for extension under subclause (7). For the purposes of
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this sub-clause the following arrangements will apply in
relation to the Independent Expert:
(a) the identity of the Independent Expert and the terms
of reference for the conduct of the Independent
5 Expert's work (covering matters such as process and
budgets, but not the tests of Commercial Viability
itself) are to be agreed between the Minister and the
Joint Venturers or, failing agreement within 50 days
of the election or request to appoint, determined by
10 the President of the Institution of Engineers
(Australia);
(b) the Independent Expert shall comply with the terms of
reference and enter into a confidentiality undertaking
in favour of the State and the Joint Venturers and any
15 other relevant third parties if appropriate;
(c) the Joint Venturers and the State may make written
and, if so requested by the Independent Expert, oral
submissions to the Independent Expert in relation to
Commercial Viability;
20 (d) the Joint Venturers and the State shall use all
reasonable endeavours to make available to the
Independent Expert all information relevant to the
matter and which the Independent Expert reasonably
requires in order to make a recommendation;
25 (e) the Independent Expert must prepare and provide the
Minister with a report and recommendation as to
Commercial Viability within 80 days of his or her
appointment or such other period as agreed to by the
parties;
30 (f) the Minister shall give the Joint Venturers a copy of
the report and recommendation within 7 days of
receipt from the Independent Expert; and
(g) the Independent Expert will act as an expert and not as
an arbitrator.
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(9) The Minister's decision as to whether or not to grant an
extension:
(a) must be made within 90 days of request by the Joint
Venturers, or if an Independent Expert is appointed,
5 within 50 days of receipt of the Independent Expert's
report and recommendation;
(b) must be based only on whether a Domgas Project is
then Commercially Viable, taking due regard of any
recommendation of the Independent Expert; and
10 (c) shall not be subject to arbitration under clause 30.
(10) Unless the Minister otherwise agrees the Joint Venturers shall
not expand the Project beyond that provided for in the
complete detailed proposals approved under clause 7 until
proposals for a Domgas Project under subclause (2) have been
15 approved. The Minister in making his decision shall take into
account such matters including Commercial Viability as the
Minister considers relevant. The Minister's decision shall not
be subject to arbitration under clause 30.
(11) If the Minister gives consent to an expansion under
20 subclause (10), that subclause and this subclause shall
continue to apply mutatis mutandis to any subsequent
expansion of the Project.
(12) If the Joint Venturers make a request under subclause (7) at
least 200 days before the deadline date which they are seeking
25 to have extended but, upon occurrence of that date, the
Minister has not made a decision whether or not to extend, the
Joint Venturers will not be considered to be in default for
failing to meet the deadline at least until such decision has
been made.
30 (13) For the purposes of this clause:
(a) "Commercially Viable", in relation to a Domgas
Project means that a Domgas Project could be
established in conjunction with an LNG or other gas
processing facility within the Gas Processing Area on
35 Barrow Island such that the commercial rates of return
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Schedule 1 Gorgon Gas Processing and Infrastructure Project Agreement
(including recovery of all capital and operating costs,
taxes, royalties and other charges associated with the
delivery of domestic gas) meet or exceed the
minimum return considered acceptable for this type of
5 project by a reasonable petroleum developer or by
investors or lenders to this type of project.
"Commercial Viability" shall have a corresponding
meaning.
(b) Commercial Viability shall be determined for a
10 Domgas Project having regarding to prevailing market
conditions, and using proven technology readily
available within the industry. Market conditions
include market access, contract duration, prices,
certainty and timing of market opportunities.
15 (c) A Domgas Project can not be claimed to be not
Commercially Viable only because of an
unwillingness by the Joint Venturers to acquire or to
apply proven technology, financial or human
resources.
20 (d) The cost of gas delivered to the inlet flange of the
Domgas Project shall be deemed to be the average
landed cost at Barrow Island of gas from the Title
Areas assuming all the gas usage for gas processing at
that time plus 300 TJ per day of domestic gas.
25 (e) Where Commercial Viability is dependent upon
combining a development with other third party
developments or accessing third party facilities or
technology, a Domgas Project will not be considered
to be Commercially Viable if the Joint Venturers,
30 using all reasonable endeavours, are unable to
complete an agreement with that party, on reasonable
commercial terms which provides an acceptable rate
of return.
Processing and use of gas from other areas
35 18. (1) In addition to gas and other petroleum from the Title Areas,
the Joint Venturers may process and use gas and other
petroleum produced from the Greater Gorgon Area and the
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Barrow Island lease provided they give the Minister prior
notice.
(2) The Joint Venturers may process and use gas and other
petroleum produced from other areas provided they have the
5 prior consent of the Minister.
No discriminatory charges
19. 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 government or other authority of
10 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
15 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 or intended to be
granted under this Agreement.
Zoning
20 20. The State shall ensure after consultation with the relevant
local government that the lands the subject of any leases,
easements and licences granted to the Joint Venturers under
this Agreement will be and remain zoned for use or otherwise
protected during the currency of this Agreement so that the
25 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 government or other authority
of the State on the ground that such activities are contrary to
30 any zoning by-law, regulation or order.
Assignment
21. (1) Subject to the provisions of this clause the Joint Venturers or
any of them may at any time assign, mortgage, charge, sublet
or dispose of to each other or to an Associated Entity as of
35 right, or to any other company or person with the consent of
the Minister (which consent shall not be unreasonably
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Schedule 1 Gorgon Gas Processing and Infrastructure Project Agreement
withheld) the whole or any part of the rights of the Joint
Venturers hereunder (including their rights as the holders of
any land title hereunder) and of the obligations of the Joint
Venturers hereunder subject however in the case of an
5 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
10 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 (1) the Joint Venturers will at
15 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 PROVIDED THAT the Minister may agree to
release the Joint Venturers or any of them from such liability
20 where the Minister considers such release will not be contrary
to the interests of the State.
Variation
22. (1) The parties to this Agreement may from time to time by
agreement in writing add to, substitute for, cancel or vary all
25 or any of the provisions of this Agreement for the purpose of
more efficiently or satisfactorily implementing or facilitating
any of the objects of this Agreement. For the avoidance of
doubt, the parties may not agree to extend the Gas Processing
Area beyond 300 hectares.
30 (2) The Minister shall cause any agreement made pursuant to
subclause (1) 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
35 disallowing the agreement, but if after the last day on which
the agreement might have been disallowed neither House has
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passed such a resolution the agreement shall have effect from
and after that last day.
Force majeure
23. Subject to clause 7(5) and clause 17(5), this Agreement shall be
5 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, except in either case any
obligations to pay monies to the State or any instrumentality of the
State, that may be caused by or arise from circumstances beyond the
10 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
15 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,
20 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
25 the said causes shall promptly give notice to the other party or parties 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
24. Notwithstanding any provision of this Agreement, the Minister may at
30 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 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.
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Determination of Agreement
25. (1) If:
(a) (i) the Joint Venturers make default which the
State considers material in the due
5 performance or observance of any of the
covenants or obligations of the Joint
Venturers in this Agreement, or
(ii) the Joint Venturers abandon or repudiate this
Agreement or abandon or repudiate their
10 activities under this Agreement,
and such matter is not remedied within a period of
180 days after notice is given by the State as provided
in subclause (2) or if the matter is referred to
arbitration, then within the period mentioned in
15 subclause (3); or
(b) the Joint Venturers or any of them goes 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
20 Joint Venturers is assigned to another Joint Venturer
or to an assignee approved by the Minister under
clause 21;
the State may by notice to the Joint Venturers determine this
Agreement.
25 (2) The notice to be given by the State to the Joint Venturers in
terms of subclause (1)(a) shall specify the nature of the default
or other ground so entitling the State to exercise such right of
determination.
(3) (a) If the Joint Venturers contest the alleged default or
30 other ground referred to in subclause (1)(a) 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,
35 the Joint Venturers shall comply with the arbitration
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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 were not dilatory in pursuing the
5 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 subclause (1)(a) has not been
remedied within a period of 180 days after receipt of the
10 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
15 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
20 the Joint Venturers to the State on demand.
(5) For the purposes of this clause, remediation of defaults may
with the approval of the Minister include one or both of
payment of reasonable compensation and substantial
commencement of a reasonable program of remediation which
25 will take longer than 180 days provided that failure by the
Joint Venturers to pay such compensation or to complete such
program shall itself constitute a default by them under this
Agreement.
Effect of cessation or determination of Agreement
30 26. On the cessation or determination of this Agreement:
(a) except as otherwise agreed by the Minister the rights of the
Joint Venturers to, in or under this Agreement shall thereupon
cease and determine but without prejudice to the liability of
any of the parties hereto in respect of any antecedent breach or
35 default under this Agreement or in respect of any guarantee or
indemnity given under this Agreement;
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(b) the Joint Venturers shall forthwith pay to the State all money
which may then have become payable or accrued due; and
(c) save as aforesaid and as otherwise provided in this Agreement
none of the parties shall have any claim against the other of
5 them with respect to any matter or thing in or arising out of
this Agreement.
Indemnity
27. (1) Unless the Minister and the Joint Venturers otherwise agree in
writing, the Joint Venturers shall indemnify and keep
10 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
15 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 subject
20 to the provisions of any relevant Act such indemnity will 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.
(2) The State shall notify the Joint Venturers as soon as
25 practicable of:
(a) receipt of any written demand or notice or the service
or institution of Proceedings; or
(b) becoming aware of the occurrence of any act or
omission which is likely to give rise to a Third Party
30 Claim.
(3) If a Third Party Claim is made, the State shall:
(a) unless prohibited by law, provide the Joint Venturers
with all information, relevant to the Third Party Claim
and any Proceedings, that the Joint Venturers may
35 reasonably require from time to time;
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(b) receive and give due consideration to opinions,
requests and submissions from the Joint Venturers in
relation the Third Party Claim or Proceedings;
(c) act with due regard to the interests of the Joint
5 Venturers;
(d) if requested by the Joint Venturers and at the Joint
Venturers' cost, join the Joint Venturers to any
Proceedings;
(e) involve the Joint Venturers in any negotiations and
10 discussions between the State and the third party
relating to the Third Party Claim or Proceedings;
(f) not make any admission, offer, promise or payment or
compromise or settle the Third Party Claim or
Proceedings without the consent of the Joint
15 Venturers;
(g) at the cost of the Joint Venturers, co-operate with the
Joint Venturers in defending any Third Party Claim;
and
(h) not hinder the Joint Venturers, at their own cost, from
20 making any offer, promise or payment or
compromising or settling the Third Party Claim or
Proceedings.
(4) Clause 30 applies to any dispute under this clause.
(5) For the purposes of this clause, the following words have the
25 following meanings:
"Proceedings" means any civil, criminal, administrative or
arbitral proceedings, mediation or other form of dispute
resolution (whether or not held in conjunction with any civil,
criminal, administrative or arbitral proceedings) relating to a
30 Third Party Claim;
"State" includes the servants, agents and contractors of the
State; and
page 55
Barrow Island Bill 2003
Schedule 1 Gorgon Gas Processing and Infrastructure Project Agreement
"Third Party Claim" means a claim by a third party against
the State which could give rise to a claim by the State for
indemnity under this clause.
Subcontracting
5 28. Without affecting the liabilities of the parties under this Agreement both
the State and the Joint Venturers will have the right from time to time to
entrust to one or more Joint Venturers or to third parties the carrying out
of any portions of the activities which it is or they are authorised or
obliged to carry out hereunder.
10 No resumption
29. The State shall not during the currency hereof 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
15 being belonging to the Joint Venturers and the subject of or used for the
purpose of this Agreement nor any of the works on the lands the subject
of any lease, easement or licence granted to the Joint Venturers in terms
of this Agreement AND without such consent (which shall not be
unreasonably withheld) the State shall not create or grant or permit or
20 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 any such lands which
may unduly prejudice or interfere with the Joint Venturers' operations
hereunder.
25 Arbitration
30. (1) Any dispute or difference between the State and the Joint
Venturers arising out of or in connection with this Agreement,
the construction of this Agreement or as to the rights duties or
liabilities of either of them under this Agreement or as to any
30 matter to be agreed upon between them under this Agreement
shall, in default of agreement between them 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 each party may be
35 represented before the arbitrator by a duly qualified legal
practitioner or other representative.
page 56
Barrow Island Bill 2003
Gorgon Gas Processing and Infrastructure Project Agreement Schedule 1
(2) Except where otherwise provided in this Agreement, the
provisions of this clause will not apply to any case where the
State, the Minister or any other Minister in the Government of
the State is by this Agreement given either expressly or
5 impliedly a discretionary power.
(3) The arbitrator of any submission to arbitration under this
Agreement is hereby empowered upon the application of
either the State or the Joint Venturers, to grant in the name of
the Minister any interim extension of any period or variation
10 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 to the arbitration and
an award may in the name of the Minister grant any further
extension or variation for that purpose.
15 Consultation
31. The Joint Venturers shall during the currency of this Agreement consult
with and keep the State 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
20 agency, authority, instrumentality or other body) which is likely to
significantly affect the overall interest of the State under this
Agreement.
Stamp duty
32. (1) The State shall exempt this Agreement from any stamp duty
25 which but for the operation of this clause would or might be
assessed and chargeable on it.
(2) Any lease or agreement for lease from the Minister for Lands
under the LA Act shall be subject to item 6(1) of the Third
Schedule to the Stamp Act 1921.
30 Notices
33. Any notice consent or other writing authorised or required by this
Agreement to be given or sent by the State to the Joint Venturers will be
deemed to have been duly given or sent if signed by the Minister or by
any senior officer of the Public Service of the State acting by the
35 direction of the Minister and forwarded by prepaid post or handed to the
page 57
Barrow Island Bill 2003
Schedule 1 Gorgon Gas Processing and Infrastructure Project Agreement
Joint Venturers at their addresses as hereinbefore set forth or other
address in Western Australia nominated by the Joint Venturers to the
Minister and by the Joint Venturers to the State if signed on their
behalf by any person or persons authorised by the Joint Venturers or by
5 their solicitors as notified to the State from time to time and forwarded
by prepaid post to 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.
10 Term of Agreement
34. Subject to the provisions of clauses 4(1), 8(5), 8(6), 25 and 26, this
Agreement shall expire on the expiration or sooner determination of the
First long term lease.
Applicable law
15 35. This Agreement is to 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.
SIGNED by THE PREMIER THE HONOURABLE
GEOFFREY IAN GALLOP MLA
in the presence of: Geoff Gallop
Signature
C M Brown
THE MINISTER FOR STATE DEVELOPMENT
THE HONOURABLE CLIVE MORRIS BROWN
MLA
page 58
Barrow Island Bill 2003
Gorgon Gas Processing and Infrastructure Project Agreement Schedule 1
EXECUTED by CHEVRONTEXACO
AUSTRALIA PTY LTD
ABN 29 086 197 757 pursuant to
Section 127(1) of the
Corporations Act James W Johnson
Director/Secretary
Paul M Oen
Director
EXECUTED by TEXACO
AUSTRALIA PTY LTD
ABN 18 081 647 047 pursuant to
Section 127(1) of the
Corporations Act James W Johnson
Director/ Secretary
Paul M Oen
Director
EXECUTED by MOBIL AUSTRALIA
RESOURCES COMPANY PTY.
LIMITED ABN 38 000 113 217
Pursuant to a Power of
Attorney by Neil David Theobald N D Theobald
Signature
A L Groves
Witness
page 59
Barrow Island Bill 2003
Schedule 1 Gorgon Gas Processing and Infrastructure Project Agreement
EXECUTED by SHELL
DEVELOPMENT (AUSTRALIA)
PTY LTD ABN 14 009 663 576
pursuant to Section 127(1)
of the Corporations Act Gavin Ryan
Director/Secretary
Christopher Gunner
Director
page 60
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