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Mining (Ok Tedi Tenth Supplemental Agreement) Act 2013

PAPUA NEW GUINEA

MINING (OK TEDI TENTH SUPPLEMENTAL AGREEMENT) ACT 2013

No. 9 of 2013

Certified on: 19 SEP 2013

Mining (Ok Tedi Tenth Supplemental Agreement) Act 2013.

ARRANGEMENT OF SECTIONS.

1. Compliance with Constitutional requirements.
2. Interpretation.
3. Effect in relation to laws of Papua New Guinea.
4. Shareholders of OTML.
5. Compensation.
6. Operation of PNGSDP.
7. Taxation.
8. No limitation of proceedings.
9. Act binds the State.

___________________

No. of 2013

AN ACT

Entitled

Mining (Ok Tedi Tenth Supplemental Agreement) Act 2013.

Being an Act to provide for the shareholding of shares in Ok Tedi Mining Limited for the long term benefit of the people of Papua New Guinea, and particularly for the people of the Western Province and for related purposes,

MADE by the National Parliament.

1. 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 from arbitrary search of person or property and entry of premises, conferred by Section 44 of the Constitution; and

(b) the right to freedom from 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

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

(d) 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

(e) 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 —

(f) taking account of the National Goals and Directive Principles (including, in particular, the goals that Papua New Guinea should, amongst other things, be economically independent and its economy basically self-reliant and that Papua New Guinea's natural resources and environment should, amongst other things, be conserved and used for the collective benefit of all Papua New Guineans) and the Basic Social Obligations (including, in particular, the obligations 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, public 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

(g) in order to protect the exercise of the rights and freedom of others; and

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

(2) Insofar as this Act 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, such taking or acquisition only applies to or is in relation to the property of a person who is not a citizen for the purposes of Section 53(7) of the Constitution.

(3) This Act, to the extent that it creates or otherwise gives rise to rights, privileges, obligations or 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 urgent national interest:

(a) the Mining (Ok Tedi Agreement) Act (Chapter 363); and

(b) the Mining (Ok Tedi Supplemental Agreement) Act (Chapter 363A); and

(c) the Mining (Ok Tedi Second Supplemental Agreement) Act (Chapter 363B); and

(d) the Mining (Ok Tedi Third Supplemental Agreement) Act (Chapter 363C); and

(e) the Mining (Ok Tedi Fourth Supplemental Agreement) Act (Chapter 363D); and

(f) the Mining (Ok Tedi Fifth Supplemental Agreement) Act (Chapter 363E); and

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

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

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

(j) the Mining (Restated Eighth Supplemental Agreement) Act 1995; and

(k) the Mining (Ok Tedi Mine Continuation)(Ninth Supplemental Agreement) Act 2001; and

(l) this Act.

2. INTERPRETATION.

In this Act, unless the contrary intention appears -

"Affiliate" in relation to a corporation means any corporation which is related to that corporation within the meaning of the Companies Act 1997;

"agreement" means an agreement between one or more persons which may be oral or written and includes a deed;

"BHP Billiton Party" means BHP Billiton and its Affiliates (except OTML and its subsidiaries) and its and their directors, officers, employees and agents and former directors, officers, employees and agents;

"BHP Billiton" means BHP Billiton Limited (ABN 49 004 028 077), a company incorporated in the State of Victoria in the Commonwealth of Australia;

"BHP Minerals" means BHP Minerals Holdings Proprietary Limited (ABN 43 005 744 025), a company incorporated in the State of Victoria in the Commonwealth of Australia;

"charge" has the meaning set out in the Companies Act 1997;

"Charge" means the Equitable Mortgage of Shares agreement between PNGSDP and Insinger Trust (Singapore) Limited dated 7 February 2002 as amended from time to time;

"Commissioner General" means the Commissioner General of Internal Revenue appointed under Section 6 of the Income Tax Act 1959;

"company" has the meaning set out in the Companies Act 1997;

"constitution" has the meaning set out in the Companies Act 1997;

"director" has the meaning set out in the Companies Act 1997;

"Fifth Restated Shareholders Agreement" means an agreement of that title dated 28 January 2011 between the State, MROT2, OTML and PNGSDP;

"MROT2" means Mineral Resources Ok Tedi No.2 Limited, a company incorporated in Papua New Guinea;

"Ok Tedi mine" means the open cut copper mine of that name in the Star Mountains in the Western Province of Papua New Guinea;

"OTDF" means Ok Tedi Development Foundation Limited, a company incorporated in Papua New Guinea;

"OTML" means Ok Tedi Mining Limited, a company incorporated in Papua New Guinea;

"PNGSDP" means PNG Sustainable Development Program Limited, a company limited by guarantee incorporated in the Republic of Singapore;

"Proceedings" means any civil, administrative or criminal action to enforce a penalty or recover costs, expenses, damages or compensation, and includes any inquiry, commission of inquiry or investigation of any kind;

"Registrar" has the meaning set out in the Companies Act 1997;

"share register" has the meaning set out in the Companies Act 1997;

"share" has the meaning set out in the Companies Act 1997;

"shareholder" has the meaning set out in the Companies Act 1997;

"Subsidiaries" means -

(a) PNG Microfinance Limited, a company incorporated in Papua New Guinea; and

(b) PNG Energy Developments Limited, a company incorporated in Papua New Guinea; and

(c) Western Power Sustainable Power Limited, a company incorporated in Papua New Guinea; and

(d) Cloudy Bay Sustainable Forestry Limited, a company incorporated in Papua New Guinea; and

(e) Star Mountains Institute of Technology Limited, a company incorporated in Papua New Guinea;

"subsidiary" has the meaning set out in the Companies Act 1997.

3. EFFECT IN RELATION TO LAWS OF PAPUA NEW GUINEA.

The provisions of this Act shall apply notwithstanding anything to the contrary in any other law in force in the country, and to the extent of any inconsistency between this Act and the Mining (Ok Tedi Mine Continuation)(Ninth Supplemental Agreement) Act 2001, this Act shall prevail.

4. SHAREHOLDERS OF OTML.

(1) On the coming into operation of this Act -

(a) all ordinary shares held by PNGSDP in the share capital of OTML shall be cancelled and cease to exist; and

(b) 122,200,000 new, fully paid ordinary shares in the share capital of OTML free of any encumbrance, charge or equitable interest shall be issued to the State.

(2) The share register of OTML is amended on and from the coming into operation of this Act to reflect the shareholding of the State in OTML as set out in Subsection (1).

(3) The register of companies required to be kept pursuant to section 395 of the Companies Act 1997 is amended on and from the coming into operation of this Act to reflect the shareholders of OTML as set out in Subsection (1).

(4) Nothing in Subsection (1) restricts the rights, liabilities or powers of -

(a) MROT2 or the State as shareholders of OTML including, without limiting the foregoing, the right to receive dividends, the right to vote on resolutions and the right to sell or otherwise dispose of their shares in OTML; or

(b) OTML as a company registered under the Companies Act 1997 including, without limiting the foregoing, the power to issue new shares or otherwise restructure its share capital following the coming into operation of this Act in accordance with the Companies Act 1997.

(5) All references to PNGSDP in the constitution of OTML and in the Fifth Restated Shareholders Agreement shall, on and from the coming into operation of this Act, be read and construed as a reference to the State.

(6) On and from the coming into operation of this Act, the Charge is void and of no legal effect and shall not create any interest of any nature whatsoever over any share in OTML.

5. COMPENSATION.

(1) The Prime Minister, acting on the advice of the National Executive Council, may, by notice in the National Gazette, declare whether compensation will be payable to any person in respect of the effects of this Act and, if so, the amount of compensation payable and the terms on which compensation will be payable and this declaration is to be done in the deliberate judgment of the Prime Minister, acting on the advice of the National Executive Council.

(2) A declaration under Subsection (1) is, for all purposes, conclusive evidence as to whether compensation is payable to the persons, the subject of the declaration, in respect of the effects of this Act, the amount of such compensation, the persons to whom compensation will be paid and the terms on which compensation will be paid.

(3) The amount of compensation, if any, declared by the Prime Minister, acting on the advice of the National Executive Council, pursuant to Subsection (1) shall be paid by the State to the person so declared in accordance with the terms set out in such declaration.

(4) Notwithstanding any other section of this Act, nothing in this Act imposes any obligation on the State or any other person to pay compensation in respect of the effects of this Act other than pursuant to a declaration made under Subsection (1).

6. OPERATION OF PNGSDP.

Notwithstanding anything to the contrary in any Act, the State has all necessary powers to restructure PNGSDP and its operations to ensure that PNGSDP applies its funds for the exclusive benefit of the people of Western Province.

7. TAXATION.

Notwithstanding anything to the contrary in any Act, nothing in this Act shall impose or create any obligation or liability on any person to pay any amount pursuant to the -

(a) Goods and Services Tax Act 2003; or

(b) Income Tax Act 1959; or

(c) Stamp Duties Act (Chapter 117).

8. NO LIMITATION OF PROCEEDINGS.

Notwithstanding anything to the contrary in any Act, a provision in an agreement including, without limiting the foregoing, an agreement which has the force of law by virtue of an Act, in which a person is expressed to waive, release, discharge or otherwise limit that person's chose in action or other right to initiate, pursue or enforce Proceedings against or in relation to a BHP Billiton Party in connection with any matter relating to or arising from that BHP Billiton Party's involvement in or dealings with OTML or the Ok Tedi mine shall be null and void to the extent of such waiver, release, discharge or other limitation.

9. ACT BINDS THE STATE.

This Act binds the State.

__________________

I hereby certify that the above is a fair print of the Mining (Ok Tedi Tenth Supplemental Agreement) Act 2013 which has been made by the National Parliament.

Clerk of the National Parliament.
19 SEP 2013

I hereby certify that the Mining (Ok Tedi Tenth Supplemental Agreement) Act 2013 was made by the National Parliament on 18^th September, 2013, by an absolute majority in accordance with the Constitution.

Speaker of the National Parliament.
19 SEP 2013