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Mining (Ok Tedi Restated Eighth Supplemental Agreement) Act 1995

No. 48 of 1995.

Mining (Ok Tedi Restated Eighth Supplemental Agreement) Act 1995.
Certified on: / /20 .

INDEPENDENT STATE OF PAPUA NEW GUINEA.

No. 48 of 1995.

Mining (Ok Tedi Restated Eighth Supplemental Agreement) Act 1995.

ARRANGEMENT OF SECTIONS.

INDEPENDENT STATE OF PAPUA NEW GUINEA.

AN ACT

entitled

Mining (Ok Tedi Restated Eighth Supplemental Agreement) Act 1995,

Being an Act to provide for the approval and implementation of the Restated Eighth Supplemental Agreement relating to the development of certain mineral deposits in the Ok Tedi region of the Western Province.

COMPLIANCE WITH CONSTITUTIONAL REQUIREMENTS.

(1) This Act, to the extent that it regulates or restricts a right or freedom referred to in Subdivision III.3.C. (qualified rights) of the Constitution, namely–

(a) the right to freedom of conscience, thought and religion and the practice of a person’s religion and beliefs, including freedom to manifest and propagate a person’s religion and beliefs in such a way as not to interfere with the freedom of others, conferred by Section 45 of the Constitution; and

(b) the right to freedom of expression and publication conferred by Section 46 of the Constitution; and

(c) the right peacefully to assemble and associate and to form or belong to, or not to belong to, political parties, industrial organizations and other associations conferred by Section 47 of the Constitution; and

(d) the right to freedom of choice of employment in any calling for which a person has the qualifications (if any) lawfully required conferred by Section 48 of the Constitution,

is a law that is made (pursuant to Section 38 of the Constitution)–

(e) taking account of the National Goals and Directive Principles (including, in particular, the goals that Papua New Guinea should, among other things, be economically independent and its economy basically self-reliant and that Papua New Guinea’s natural resources and environment should, among other things, be conserved and used for the collective benefit of all Papua New Guineans) and the Basic Social Obligations (including, in particular, the obligation to protect Papua New Guinea and to safeguard the national wealth, resources and environment in the interests not only of the present generation but also of future generations), for the purpose of giving effect to the public interest in public safety, public order, pubic welfare, the protection of children and persons under disability (whether legal or practical) and the development of underprivileged or less advanced groups or areas; and

(f) in order to protect the exercise of the rights and freedoms of others; and

(g) to make provision for cases where the exercise of one such right may conflict with the exercise of another.

(2) Insofar as this Act or any of the Acts referred to in Subsections (4)(a), (b), (c), (d), (e), (f), (g) and (i) involves a compulsory taking of possession of property or a compulsory acquisition of an interest in or right over property within the meaning of Section 53 of the Constitution–

(a) the purposes and reasons for each such taking and acquisition are declared and described to be–

(i) to facilitate the efficient and economical development and operation of the Project so that, as recorded in the Preamble to this Act, it might continue its significant contributions to the advancement of the social and economic welfare of the people of Papua New Guinea in general, and the people of Western Province in particular, including, without limitation, the contributions recorded in the Preamble to this Act; and

(ii) better to give effect to the other matters set out in, and in the recitals to, the Restated Eighth Supplemental Agreement, and in the recitals to, the agreements set out in the schedules to the other Acts referred to above,

and each of those purposes and reasons is hereby also declared to be described as–

(iii) a public purpose; and

(iv) a reason that is reasonably justified in a democratic society that has a proper regard for the rights and dignity of mankind;

for the purposes of Section 53 of the Constitution and for the purposes of any other relevant law; and

(b) the obligations undertaken by the Company under the Principal Agreement, including in particular, but without limitation, those provisions of the Principal Agreement that are inserted by the Restated Eighth Supplemental Agreement, constitute compensation procured (and accordingly made) by, and made on behalf of, the State in connection with each such taking and acquisition.

(3) This Act, to the extent that it creates or otherwise gives rise to rights, privileges, obligations and duties that are not the same as between citizens, is intended to be a law for the special benefit, welfare, protection and advancement of members of underprivileged and less advanced groups and residents of less advanced areas for the purposes of Section 55 of the Constitution.

(4) For the purposes of any Organic Law from time to time and for the time being implementing Part VIA of the Constitution, it is hereby declared that each of the following Acts relates, in its entirety, to a matter of national interest:–

(a) the Mining (Ok Tedi Agreement) Act 1976;

(b) the Mining (Ok Tedi Supplemental Agreement) Act 1980;

(d) the Mining (Ok Tedi Third Supplemental Agreement) Act 1983;

(e) the Mining (Ok Tedi Fourth Supplemental Agreement) Act 1985;

(f) the Mining (Ok Tedi Fifth Supplemental Agreement) Act 1985;

(g) the Mining (Ok Tedi Sixth Supplemental Agreement) Act 1986;

(h) the Mining (Ok Tedi Agreements) (Amendment) Act 1986;

(i) the Mining (Ok Tedi Seventh Supplemental Agreement) Act 1986; and

(j) this Act.

INTERPRETATION.

(1) Unless otherwise defined in this Act, words and expressions which are given a certain meaning in the Principal Agreement or in the Restated Eighth Supplemental Agreement are used in this Act with the same meanings.

(2) In this Act, unless the contrary intention appears–

“Compensation Claim” includes any claim, demand, suit or right of action (and whether alleging negligence or any other wrong or liability whatsoever) in connection with, or purportedly or allegedly in connection with, any one or more of the Project, the Principal Agreement, any agreement that varies or amends or is supplemental to the Principal Agreement and any statute or other law that relates to the Principal Agreement or any such agreement, being a claim, demand, suit or right of action which exists or is made or asserted against any one or more of–

(a) the Company;

(b) the State;

(d) any other person involved with or in any way associated with the Project,

in connection with, or purportedly or allegedly in connection with, any one or more of–

(e) any disposal of overburden, tailings or other Waste (as defined in Clause 29 of the Principal Agreement);

(f) any Pollution (as defined in Clause 29 of the Principal Agreement);

(g) (without limitation to Paragraphs (e) and (f)), any effects resulting from the Company’s operations upon the physical Environment (as defined in Clause 29 of the Principal Agreement), the streams and rivers, the inhabitants and the biota of the Mining Area or the land, streams and rivers flowing therefrom;

(h) any effect upon, or loss, taking, acquisition, forfeiture, extinction or determination of, or of possession of, any property or any interest or right in or over property;

(i) any non-compliance with or non-observance of the requirements of–

(i) any one or more of Clauses 29, 29A, 29B, 29C, 29D, 29E, 29F and 29G of the Principal Agreement;

(ii) any other provision of the Principal Agreement, any agreement varying, amending or supplementing the Principal Agreement, the Approved Proposals or any other obligation, being a provision that relates to a matter referred to in Paragraph (e), (f) or (g); or

(iii) any combination of the foregoing; and

(j) Part VII of the Mining Act 1992 or any corresponding or similar provisions of any other law whatsoever (whether previously in force, now in force or hereafter in force),

and whether or not that claim, demand, suit or right of action–

(k) extends to any other matter;

(l) seeks–

(i) the payment of damages, compensation or any other form of monetary relief; or

(ii) any form of non-monetary relief; or

(iii) any combination of the foregoing; and

(m) arose, was commenced, or relates to circumstances existing–

(i) before or at the time at which this Act came into operation; or

(ii) at anytime after the time at which this Act came into operation.

“Compensation Proceedings” means any proceedings whatsoever before any court or other forum, whether commenced or contemplated to be commenced before, at or after the time at which this Act came into operation, and whether in Papua New Guinea or elsewhere, in connection with a Compensation Claim, except to the extent that–

(a) those proceedings are in respect of any non-compliance with or non-observance of the requirements of any one or more of Clauses 29A, 29B, 29C, 29D, 29E, 29F and 29G of the Principal Agreement; or

(b) those proceedings seek a determination by an expert under Clause 29C.4 of the Principal Agreement; or

(d) those proceedings seek a determination in accordance with Clause 29F.1 of the Principal Agreement; or

(e) those proceedings are commenced or maintained or otherwise continued by one or more of the following and by no other person (directly or indirectly), namely–

(i) the State (in its capacity either as party to the Principal Agreement or as a shareholder in the Company, but not otherwise);

(ii) the Broken Hill Proprietary Company Limited;

(iii) BHP Minerals Holdings Proprietary Limited;

(iv) Inmet Mining Corporation; or

(v) the Company; or

(f) those proceedings are proceedings with respect to a question relating to the interpretation or application of any provision of a Constitutional Law (including any question as to the validity of a law or proposed law),

but does not include the Existing Foreign Proceedings, and for the purposes of this definition a reference to “proceedings” includes, without limitation–

(g) proceedings at first instance; or

(h) interlocutory proceedings; or

(i) proceedings by way of appeal; or

(j) proceedings seeking review of any judicial or administrative act; or

(k) proceedings seeking any prerogative writ or any order or relief to similar effect;

“Existing Compensation Claim” means a Compensation Claim that existed at the time at which this Act came into operation;

“Existing Foreign Proceedings” means the proceedings the subject of proceedings No. 5782, No. 5980, No. 6861 and No. 6862 of 1994 in the Supreme Court of Victoria, Australia as those proceedings were respectively constituted on 15 November 1995, there being one plaintiff and 24 represented persons in proceeding No. 5782 of 1994, two plaintiffs in proceeding No. 5980 of 1994, 22 plaintiffs in proceeding No. 6861 of 1994 and 26 plaintiffs in proceeding No. 6862 of 1994;

“Principal Agreement” means the agreement a copy of which is set out in the schedule to the Mining (Ok Tedi Agreement) Act 1976 as varied, amended and supplemented by the agreements respectively set out in the schedules to the Acts referred to in Sections 1(4) (b), (c), (d), (e), (f), (g) and (i) and by the Restated Eighth Supplemental Agreement;

“Restated Eighth Supplemental Agreement” means the supplemental agreement a copy of which is set out in Schedule 1.

APPROVAL OF AGREEMENT.

The Restated Eighth Supplemental Agreement is approved and, subject only to Section 5(3), has effect according to its tenor.

EFFECT IN RELATION TO LAWS OF PAPUA NEW GUINEA.

The Restated Eighth Supplemental Agreement has the force of law for the full term provided for therein as if contained in this Act and shall apply notwithstanding anything to the contrary in any other law in force in the country.

COMPENSATION PROCEEDINGS.

(1) Subject only to this section and to Clauses 29A, 29B, 29C, 29D, 29E, 29F, 29G, 29H and 29I of the Principal Agreement, the provisions of Clause 29 of the Principal Agreement–

(a) cover (and have at all times covered) the field in respect of, and express (and have at all times expressed) completely, exhaustively and exclusively the regime applicable to, the regulation of environmental management and protection with respect to the Project and the Company’s operations (including, without limitation with respect to the disposal of overburden, tailings or other Waste (as defined in Clause 29 of the Principal Agreement) and all other effects resulting from the Company’s operations upon the physical Environment (as defined in Clause 29 of the Principal Agreement), the land, the streams and rivers, the inhabitants and the biota of the State); and

(b) prevail (and have at all times prevailed) over any inconsistent law in force in the State (other than this Section and Clauses 29A, 29B, 29C, 29D, 29E, 29F, 29G, 29H and 29I of the Principal Agreement), whether in force before or at the time that Clause 5 of the Restated Eighth Supplemental Agreement becomes effective or at any time thereafter and, notwithstanding Clause 9.8 of the Principal Agreement, prevail (and have at all times prevailed) also over the Approved Proposals.

(2) Subsection (1) does not apply in connection with the Existing Foreign Proceedings.

(3) For the purposes of the Existing Foreign Proceedings only, the deletion effected by Clause 5.2 of the Restated Eighth Supplemental Agreement shall be deemed not to have been effected.

(4) The fact that the Company has undertaken the obligations imposed upon it by Clauses 29B, 29C, 29E and 29F of the Restated Eighth Supplemental Agreement–

(a) constitutes an absolute defence to any Compensation Proceedings to the extent that they relate to an Existing Compensation Claim; and

(b) constitutes an absolute defence to any Compensation Proceedings to the extent that they do not relate to an Existing Compensation Claim,

whether or not that defence is pleaded, and whether those Compensation Proceedings are commenced before, on or after the date upon which the Company permanently ceases mining and milling operations and that defence may be relied upon not only by the Company but also by any other party to the relevant Compensation Proceedings.

(5) Under the law of Papua New Guinea, no–

(a) cause of action; or

(b) other right,

exists–

(d) in relation to a Compensation Claim that is not an Existing Compensation Claim,

which may form a basis for Compensation Proceedings.

(6) Under the law of Papua New Guinea, any act or omission that would, notwithstanding this Act, constitute a basis for Compensation Proceedings is–

(a) to the extent that such Compensation Proceedings would relate to an Existing Compensation Claim; and

(b) to the extent that such Compensation Proceedings would not relate to an Existing Compensation Claim,

justifiable within the meaning of the rule known as the rule in Phillips v Eyre (1870) LR 6 QB 1.

(7) Under the law of Papua New Guinea, there is no civil liability in respect of any act or omission that would, notwithstanding this Act, constitute a basis for Compensation Proceedings–

(a) to the extent that such Compensation Proceedings would relate to an Existing Compensation Claim; and

(b) to the extent that such Compensation Proceedings would not relate to an Existing Compensation Claim.

(8) There shall be no presumption that, under the law of Papua New Guinea, the legal position that exists in connection with the Existing Foreign Proceedings is different from the legal position that exists, as a result of this section, in connection with Compensation Proceedings.

(9) This section is intended to be a provision for the limitation of actions for the purposes of Section 53 of the Constitution.

ANCILLARY POWERS OF MINISTER.

Notwithstanding anything in any other law in force in the country at any time (whether before or after the commencement of this Act), the Minister has power, on behalf of the State, to make all grants, issues, renewals and extensions required by or under the Restated Eighth Supplemental Agreement to be made by the State, and is not bound in that regard by any provisions of any such law requiring or permitting any authority, consent, approval, report, recommendation, appeal, procedure or formality, or by any similar provisions.

MISCELLANEOUS.

(1) A Chief Warden appointed under the Mining Act 1992 shall have (in addition to the functions, powers and duties that are specified in, or allocated or referred under, the Mining Act 1992 and any other law) the functions, powers and duties that it is contemplated by this Act and the Principal Agreement that a Chief Warden should have.

(2) A Warden appointed under the Mining Act 1992 shall have (in addition to the functions, powers and duties that are specified in the Mining Act 1992 and any other law) the functions, powers and duties that it is contemplated by this Act and the Principal Agreement that a Warden should have.

(3) The acts and deeds of a clan leader in respect of any matter referred to in Clauses 29, 29A, 29B, 29C, 29D, 29E, 29F, 29G, 29H and 29I of the Principal Agreement shall bind each person on behalf of whom that clan leader purports to be acting, and where a clan leader purports to be acting on behalf of the whole of that clan leader’s clan, the clan leader’s acts and deeds bind each existing and future member of that clan leader’s clan, including, without limitation, children and persons who are subsequently born into, or who subsequently join, that clan.

(4) The certificate of a Warden appointed under the Mining Act 1992 shall be conclusive evidence, in the case of a dispute, as to whether or not a person is a clan leader of a particular clan and as to whether or not a particular person is a member of that clan.

SCHEDULE 1

RESTATED EIGHTH SUPPLEMENTAL AGREEMENT