Western Australian Consolidated Acts Western Australian Consolidated Acts[s. 2]
[Heading amended by No. 19 of 2010
s. 4.]
THIS AGREEMENT made the day of
One thousand nine
hundred and seventy-three BETWEEN THE HONOURABLE JOHN TREZISE TONKIN, M.L.A.,
THE PREMIER OF THE STATE OF WESTERN AUSTRALIA acting for and on behalf of the
said State and its instrumentalities from time to time (hereinafter called
“the State”) of the one part and NORTHERN MINING CORPORATION N.L.
a company incorporated under the Companies Act 1961 of the State of
Victoria in the Commonwealth of Australia and having its registered office in
the State of Western Australia situate at 442 Murray Street Perth (hereinafter
called “the Company” which expression shall where the context so
admits or requires extend to and include the successors assigns and appointees
of the Company) of the other part.
WHEREAS:
(a) The Company is exploring and investigating the
possibility of the mining areas hereinafter defined containing deposits of
iron ore.
(b) Research is being conducted by the Company
with the object of establishing satisfactory ore crushing, screening, and
upgrading procedures in the treatment of iron ore from the mining areas.
NOW THIS AGREEMENT WITNESSETH as follows —
1. In this Agreement subject to the
context —
“apply”, “appoint”, “approve”,
“approval”, “consent”, “certify”,
“direct”, “notify”, “require” , or
“request” means apply, appoint, approve, approval, consent,
certify, direct, notify, require, or request in writing as the case may be;
“approved proposals” means proposals of the Company which are
approved or are deemed to be approved by the Minister pursuant to this
Agreement;
“associated company” means —
(a) any Company notified by the company to the
Minister which has a paid-up capital of not less than two million dollars and
is incorporated in the United Kingdom, the United States of America, or the
Commonwealth of Australia and which —
(i) is promoted by the Company for all or any of
the purposes of this Agreement and in which the Company holds not less than
twenty per centum of the issued ordinary share capital or —
(ii) is related within the meaning of
section 6 of the Companies Act 1961 to the Company or to any company in
which the Company holds not less than twenty per centum of the issued ordinary
share capital and —
(b) any other company which the Minister approves
as an associated company for the purposes of this Agreement.
“Company’s wharf” means any wharf utilised by the Company
for the purpose of shipping iron ore products produced as the result of the
operation of this Agreement and whether the same be a wharf constructed by or
on behalf of the Company a wharf used by the Company in conjunction with
another or others (including the State) or any temporary structure approved by
the Minister as the Company’s wharf for the time being for the purposes
of this Agreement;
“Clause” means a clause of this Agreement;
“commencement date” means the date on which this Agreement is
executed by all the parties hereto;
“Commission” means the State Electricity Commission of Western
Australia;
“Commonwealth” means the Commonwealth of Australia and includes
the Government thereof for the time being;
“direct shipping ore” means iron ore which has an average pure
iron content of not less than sixty per centum which will not pass through a 6
millimetre mesh screen and which is sold without concentration or other
beneficiation other than crushing and screening;
“export date” means the date on which the ship carrying the first
shipment of iron ore products shipped by the Company under this Agreement
(other than iron ore shipped solely for testing purposes) sails from the port
at which it has been loaded;
“financial year” means a year commencing on and including the 1st
day of July;
“fine ore” means iron ore which has an average pure iron content
of not less than sixty per centum which will pass through a 6 millimetre mesh
screen and which is sold without concentration or other beneficiation other
than crushing and screening;
“fines” means iron ore (not being direct shipping ore or fine ore)
which will pass through a 6 millimetre mesh screen;
“f.o.b. revenue” means the price for iron ore products the subject
of any shipment or sale which is payable by the purchaser thereof to the
Company or an associated company, less all export duties and export taxes
payable on such iron ore products and less all costs and charges properly
incurred and payable on such iron ore products by the Company or an associated
company to the State or a third party from the time when the iron ore products
are placed on ship at the Company’s wharf to the time when the iron ore
products are delivered and accepted by the purchaser, there being included in
such costs and charges —
(1) ocean freight;
(2) marine insurance;
(3) port and handling charges at port of
discharge;
(4) costs of delivery from port of discharge to a
smelter nominated by the purchaser;
(5) weighing, sampling, assaying, inspection and
representation costs incurred on discharge or delivery;
(6) shipping agency charges;
(7) import taxes payable to the country of the
port of discharge;
(8) demurrage incurred after loading and at port
of discharge; and
(9) such other costs and charges as the parties
(having regard inter alia to such matters as the parties to and the bona fide
nature of the transaction as the result of which the cost or charge was
incurred) shall agree to include or failing agreement as fixed by arbitration
as hereinafter provided.
For the purpose of this definition —
(a) the Minister may from time to time in respect
of any of the costs or charges mentioned in Items (1) to (9) (inclusive)
above incurred in relation to any particular shipment or sale notify the
Company that he does not regard the cost or charge as being properly incurred
and in that event should the Company disagree with the Minister’s
decision it may refer the matter in question to arbitration as hereinafter
provided but unless and until it is otherwise determined such cost or charge
shall be treated as being not properly incurred and if otherwise determined
the State shall refund to the Company any royalty paid by the Company on the
basis that the charge was not properly incurred;
(b) notwithstanding anything contained in this
definition to the contrary, a cost or charge as set out in items (1) to
(8) inclusive of this definition shall not (unless and until the Minister so
determines) be deemed to be properly incurred if such charge is directly or
indirectly imposed upon or incurred by the Company or an associated company
pursuant to an arrangement entered into between the Company and the State;
(c) in the event of the parties failing to agree
to the inclusion of a cost or charge which might be included pursuant to
item (9) and referring the matter to arbitration then unless and until it
is otherwise determined such cost or charge shall be excluded but if it is
determined that the same should be included the State shall refund to the
Company any royalty paid by reason of the same having been excluded;
“integrated iron and steel industry” means an industry for the
manufacture of iron and steel or for the manufacture of steel from iron ore by
a process which does not necessarily involve the production of pig iron or
basic iron in the production of steel;
“iron ore” means iron ore from the mining areas;
“iron ore concentrates” means products (whether in pellet or other
form) resulting from secondary processing but does not include metallised
agglomerates;
“iron ore pellets” means iron ore in pellet or other form produced
by pelletisation or a more advanced reduction or other treatment or process
from iron ore mined on the mineral lease;
“iron ore products” is an inclusive term covering iron ore of all
grades obtained from the mineral lease and also all products produced by
secondary and tertiary processing any part of such iron ore;
“Land Act” means the Land Act 1933 ;
“locally used ore” means iron ore used by the Company or an
associated company within the Commonwealth for secondary processing or
tertiary processing and includes iron ore used by any other person in the said
State for secondary processing or tertiary processing;
“metallised agglomerates” means products resulting from the
reduction of iron ore or iron ore concentrates by any method whatsoever and
having an iron content of not less than eighty five per centum;
“mineral lease” means the mineral lease or mineral leases referred
to in Clause 12(1) and includes any renewal thereof and where the context
so permits shall describe the area of land demised as well as the instrument
by which it is demised;
“mine townsite” means a townsite or townsites established by the
Company on or near the mining areas pursuant to this Agreement and includes
any existing townsite approved by the Minister;
“ Mining Act” means the Mining Act 1904 ;
“mining areas” means the area delineated and coloured green on the
plan marked “A” together with such of the areas delineated and
coloured blue on that plan over which rights of occupancy pursuant to
section 276 of the Mining Act may at any time (whether before or after
the commencement of this Agreement) be granted to the Company or transferred
to the Company with the approval of the Minister for Mines;
“Minister” means the Minister in the Government of the said State
for the time being responsible for the administration of this Agreement;
“Minister for Mines” means the Minister in the Government of the
said State for the time being responsible for the administration of the Mining
Act;
“notice” means notice in writing;
“ore” means iron ore;
“parties” means the parties to this Agreement;
“person” or “persons” includes bodies corporate;
“port” means a new port to be established near Geraldton under the
control of the Geraldton Port Authority in implementation of approved
proposals hereunder whether the same be established by the Company exclusively
or by it in conjunction with another or others (including the State) and
should no such new port be established the term means any existing port
developed or used by the Company for the purposes of this Agreement by
arrangement with another or others (including the State) and in either case
the term extends to and includes as well as the land upon which the
Company’s wharf is erected also the adjacent land serving the
Company’s wharf and the adjacent land on which it is proposed to locate
or on which could be located or in fact is located secondary processing plants
crushing grinding and screening facilities stock piling yards electric power
generating plant petroleum storage and other ancillary facilities;
“port townsite” subject to the provisions of Clause 26 means
the town of Geraldton including those environs of that town within the Shires
of Chapman Valley and Greenough;
“Railways Commission” means the Western Australian Government
Railways Commission established pursuant to the Government Railways
Act 1904 ;
“said State” means the State of Western Australia;
“secondary processing” means the concentration or other
beneficiation of iron ore otherwise than by crushing or screening and includes
thermal electrostatic magnetic and gravity processing and the production of
pellets iron ore concentrates metallised agglomerates and sponge iron;
“steel” means steel in the form of steel billets or manufactured
steel products;
“tertiary processing” means the production of pig iron by blast
furnace smelting the production of steel by any means whatsoever and the
further processing of steel into special shapes and alloys;
“this Agreement” “hereof” and “hereunder”
includes this Agreement as from time to time added to varied or amended;
“tonne” means a tonne of 1000 kilograms net dry weight;
“Transfer of Land Act” means Transfer of Land Act 1893 ;
“wharf” includes any jetty structure;
“Year 1” means the year next following the export date and
“year” followed immediately by any other numeral has a
corresponding meaning.
Interpretation 2
2. (1) In this
Agreement —
(a) monetary references are references to
Australian currency unless otherwise specifically expressed;
(b) power given under any clause other than
Clause 47 to extend any period or date shall be without prejudice to the
power of the Minister under Clause 47;
(c) marginal notes 2 do not affect the
interpretation or construction; and
(d) reference to an Act includes the amendments to
that 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.
(2) Where any
provision of this Agreement constitutes an agreement or undertaking by one of
the parties to make a payment or to perform some act or to carry out some
obligation or to assume some responsibility or liability or to grant some
right concession or advantage that party shall by its execution hereof be
deemed to have covenanted and agreed with the other party accordingly.
(3) The State and the
Minister shall be deemed to have power and authority to exercise all such
powers and discretions and to do all such other acts matters and things as may
be required or be necessary to be exercised or done in order to carry out and
give effect to the provisions of this Agreement and in particular the State
and the Minister shall be deemed to have power —
(i) to close or vary the alignments or boundaries
of any public road and —
(ii) to resume as and for a public work any land
or other estate right or interest in land.
Effect on existing Acts 2
3. As from the date hereof all the provisions of
this Agreement shall operate and take effect notwithstanding the provisions of
any other Act or any law to the contrary and for the purposes of this
Agreement and without limiting the generality of the foregoing the
undermentioned Acts shall be deemed modified and amended to the extent
indicated namely —
(a) the Mining Act by deleting Sections 277
and 282 thereof;
(b) the Land Act —
(i) by deleting subsections (1) and (2) of
Section 45A thereof and by substituting the following —
“45A (1) Notwithstanding anything contained in the last
preceding Sections of this Part (Part IV) of this Act the Governor may
dispense with the requirements thereof as to the sale of town or country lands
and may approve of any lot being offered for sale or for leasing in the manner
prescribed in subsection (2) of this Section.
(2) Upon the Governor signifying approval pursuant to subsection (1) of
this Section in respect of any such lands the Minister may offer the said
lands or any part thereof for sale or may grant leases or licences thereof for
such price or prices and for such period or periods (including rights of
renewal) and upon and subject to such other terms and conditions and in such
form as the Minister may think fit provided that the price period or other
terms and conditions shall not be inconsistent with the provisions of any
agreement executed by the Premier of the State of Western Australia acting for
and on behalf of the said State pursuant to the authority in that behalf given
by an Act of the Parliament of the said State.”;
(ii) by deleting the proviso to Section 116
thereof;
(iii) by deleting Sections 135 and 143
thereof;
(c) the Public Works Act 1902
— by deleting subsections (2) to (7) inclusive of
Section 17 thereof and also the whole of Section 17A thereof;
(d) Section 82 of the Mining Act and
Section 81D of the Transfer of Land Act shall not apply to a mortgage or
charge in the form commonly known as a floating charge given by the Company or
an associated company pursuant to Clause 41 or to a transfer or
assignment in exercise of a power of sale contained in any such mortgage or
charge;
(e) no lease sublease licence or other title or
right granted or assigned under or pursuant to this Agreement shall be subject
to or capable of partition and the provisions of Part XVI of the
Property Law Act 1969 shall not apply thereto.
Right to enter Crown land 2
4. To the extent reasonably necessary for the
purpose of the investigations and studies and subject to the adequate
protection of the environment (including flora and fauna) and the affected
land and improvements thereon the State shall permit the Company to enter into
and upon Crown land other than the mining areas (including the lands the
subject of a pastoral lease) and to survey possible sites for its proposed
operations under this Agreement.
Rights of occupancy of mining areas 2
5. As soon as practicable after the commencement
date the State shall upon application by the Company cause to be granted to
the Company the sole and exclusive right to search and prospect for iron ore
in the mining areas (but excluding therefrom any existing prospecting areas,
claims, leases, or authorised holdings under the Mining Act and any land
alienated or in the course of alienation and any land reserved (not being
Crown land within the meaning of the Mining Act).) by granting to the Company
rights of occupancy pursuant to section 276 of the Mining Act over the
Temporary Reserves contained in the mining areas for the period and upon and
subject to the following terms and conditions —
Existing rights to be surrended 2
(a) the rights of occupancy shall be granted
subject to the condition precedent that the Company surrenders all its
existing rights of occupancy in respect of the mining areas to the Minister
for Mines;
Period of rights of occupancy 2
(b) the rights of occupancy shall be for a period
expiring five years after the commencement date;
Consideration of rights of occupancy 2
(c) the Company shall within one month after the
commencement date and thereafter on the first and every subsequent anniversary
of the commencement date during the continuance of the period of the rights of
occupancy pay to the State as consideration for the rights of occupancy in
advance an annual fee of one thousand dollars for each Temporary Reserve
comprised in the mining areas and in addition ten dollars for each square
kilometre or part of a square kilometre of the mining areas for the time being
subject to the rights of occupancy;
(d) the Company shall in so far as it has not
already done so at its expense and in accordance with a programme first
approved by the Minister for Mines prospect the mining areas to the
satisfaction of the Minister for Mines during the term of such rights;
Reports 2
(e) the Company shall during the term of the
rights of occupancy furnish to both the Minister and the Minister for Mines an
annual report on all operations carried out in the mining areas by or on
behalf of the Company;
Other mining tenements 2
(f) the Minister for Mines may grant to any person
(including the Company) mining tenements pursuant to the Mining Act for any
mineral other than iron ore within the mining areas if the Minister for Mines
is satisfied that such grant would be unlikely to materially prejudice or
interfere with the Company’s operations under this Agreement;
Determination of occupancy 2
(g) the rights of occupancy shall forthwith cease
and determine on the happening of any of the following events
namely —
(i) upon the Company by notice to the Minister
relinquishing the same; or
(ii) upon the period of the rights of occupancy
expiring by effluxion of time; or
(iii) upon the State granting to the Company a
mineral lease pursuant to Clause 12 (notwithstanding that the instrument
of such lease may not be issued); or
(iv) upon the Company making default in the due
and punctual payment of any annual fee payable pursuant to paragraph (c)
of this Clause and failing to comply with a notice from the State specifying
such default and calling upon the Company to remedy the same within a period
of fourteen days of the service of such notice; or
(v) upon the Company making default in the due
performance or observance of any of the other of the terms and conditions upon
and subject to which the rights of occupancy were granted and failing to
comply with a notice from the State specifying such default and calling upon
the Company to remedy the same within a period of fourteen days of the service
of such notice.
6. (1) The Company
shall insofar as it has not already done so to the satisfaction of the
Minister, commence as soon as reasonably practicable and carry out at its
expense (with the assistance of experienced consultants where
appropriate) —
(a) a thorough geological and (as necessary)
geophysical investigation and proving of the iron ore deposits in the mining
areas and the testing and sampling of such deposits;
(b) a reconnaissance of site of the operations
proposed pursuant to this Agreement together with the preparation of suitable
maps and drawings;
(c) an engineering investigation of the route for
a railway from the mining areas to the port or to connect with any existing or
proposed railway and for this purpose the Company shall in consultation with
the Railways Commission carry out such investigations as may be agreed;
(d) an engineering investigation of a port site;
(e) a study of the technical and economic
feasibility of the mining transporting handling and shipping of iron ore from
the mining areas;
(f) the planning for the development of a suitable
mine townsite and where appropriate a suitable port townsite (including design
of housing utilities and associated facilities and social cultural and civic
facilities) in consultation with the State having due regard to the possible
or probable use of the same by others as well as the Company;
(g) the investigation, in areas approved by the
Minister, of suitable water supplies for mining industrial and mine townsite
purposes;
(h) metallurgical and market research; and
(i) an assessment of the environmental effects
likely to result from operations pursuant to this Agreement together with
outlines of proposals to minimise any deleterious effects on the environment.
Port investigations 2
(2) After consultation
with the Minister concerning the result of the investigations and surveys
mentioned in paragraph (d) of subclause (1) of this Clause the
Company shall employ or retain experienced consultant engineers acceptable to
the State to investigate report upon and make recommendations as to the best
overall development of a port at such location as appears to be most suitable
to the Company’s proposed operations hereunder. The Company shall
require such engineers when making such report and recommendations to have
full regard for the general development of the port with a view to its
reasonable use by others and the Company shall furnish to the State copies of
such reports and recommendations. When submitting to the Minister pursuant to
Clause 7 detailed proposals in regard to the matters mentioned in this
subclause the Company shall so far as reasonably practicable ensure that the
detailed proposals —
(a) do not materially depart from the reports and
recommendations of such engineers;
(b) provide for the best overall development of
the port so far as the same relates to the Company’s activities;
(c) disclose any conditions of user; and
(d) where alternative proposals are submitted the
Company’s preferences in regard thereto.
(3) The Company shall
collaborate with and keep the State fully informed by quarterly reports as to
the progress and results of the Company’s operations under subclauses
(1) and (2) of this Clause. The Company shall as and when the Minister may
reasonably require furnish the Minister with copies of all appropriate reports
received by it from consultants in connection with the matters referred to in
this Clause and with copies of all relevant findings made and reports prepared
by the Company.
(4) If the State
concurrently carries out its own investigations and reconnaissances in regard
to all or any of the matters mentioned in subclauses (1) and (2) of this
Clause the Company shall co-operate with the State therein and so far as it is
reasonably practicable so to do shall consult with the representatives or
officers of the State and make full disclosures and give expressions of
opinion regarding the matters referred to in those subclauses.
(5) The State shall if
required assist the Company in completing its investigations and studies
pursuant to this Clause and shall furnish such advice and commentaries as the
Company may require and as may be practicable for the State so to do.
Company’s proposals 2
7. (1) As soon as
practicable after the completion of the investigations mentioned in
Clause 6 the Company shall submit to the Minister proposals as to the
location of the port and an outline in sufficient detail to enable the
Minister to satisfy himself as to the suitability, technical feasibility and
practicability, of the proposed development of the port (having regard to the
matters mentioned in paragraph (a) of subclause (2) of this Clause).
The Minister shall within two months after such submission notify the Company
whether he approves or otherwise of such proposals or the Minister may within
that time himself suggest an alternative proposal. If the Minister does not
approve of the Company’s proposals or if he himself submits an
alternative proposal the Minister shall disclose his reasons for so doing in
the said notice and afford the company ample opportunity to consult with him
to submit further or alternative proposals and to consider any alternative
proposal suggested by the Minister. When considering any of the
Company’s proposals and in making his own proposal the Minister shall
have regard to the possible future requirements of others (including the
State) and no preference or other priority shall be given to the Company or
its proposals by reason only that the proposals were submitted for
consideration before proposals from any other party.
(2) Subject to the
proposals or any alternative proposals as to the location and development of
the port being approved the Company shall on or before the fifth anniversary
of the commencement date or on or before such later date as the Minister may
approve or as may be determined by arbitration as hereinafter provided submit
to the Minister subject to the provisions of this Agreement detailed proposals
which shall include (where practicable) appropriate plans and (where
reasonably required by the Minister) appropriate specifications in respect of
the mining of iron ore on and the future development of the mining areas (or
so much thereof as is likely to be comprised in the mineral lease mentioned in
Clause 12) and detailed particulars as to the measures proposed to be
taken for the protection of the environment should the said proposals be
approved or deemed to be approved and also (to the fullest extent reasonably
practicable) detailed particulars as to the location area layout design number
materials to be used in and time programme for the commencement and completion
of the construction or the provision (as the case may be) of each of the
following matters —
(a) (to the extent not already covered by the
proposals mentioned in subclause (1) of this Clause) the port and port
development including the dredging thereof and the disposal and depositing of
the spoil the provision of navigational aids and a fair contribution to their
maintenance the Company’s wharf the berth and swinging basin proposed in
connection with the Company’s use thereof and the port installations
facilities and services to be available all of which are to be of such nature
and extent as to be capable of and suitable for adaptation to permit use of
the Company’s wharf by ships having a capacity to carry 150 000
tonnes of iron ore;
(b) the railway from the mining areas to the port
or to connect with an existing railway and the proposed operation of such
railway;
(c) the development of the mine townsite and where
appropriate the port townsite including services and facilities in relation
thereto;
(d) housing;
(e) water supply;
(f) roads;
(g) generation transmission and distribution of
electricity;
(h) airfields;
(i) the leases licences or other tenures of land
jetty structures and mooring areas (if any) required from the State;
(j) disposal of waste materials;
(k) drainage;
(l) dust control measures; and
(m) any other works, services or facilities
proposed or required by the Company.
Order of proposals 2
(3) The proposals may
with the approval of the Minister and shall if so required by the State be
submitted separately and in any order as to the matter or matters mentioned in
one or more of paragraphs (a) to (m) of subclause (2) of this
Clause.
Use of existing infrastructure 2
(4) The proposals
relating to any of the matters mentioned in subclause (2) of this Clause
may with the approval of the Minister and that of any third parties concerned
instead of providing for the construction of new facilities of the kind
therein mentioned provide for the use by the company upon reasonable terms and
conditions of any existing facilities of such kind.
Marketing and financial arrangements 2
(5) At the time when
the Company submits the said proposals it shall furnish to the State’s
satisfaction in all respects evidence of —
(a) marketing arrangements demonstrating the
Company’s ability to profitably sell iron ore and iron ore products in
accordance with the said proposals;
(b) the availability of finance necessary for the
fulfilment of the operations to which the said proposals refer; and
(c) the readiness of the Company to embark upon
and proceed to carry out the operations referred to in the said proposals.
(6) Notwithstanding
anything contained in this Agreement the State’s determination in
respect of the Company’s proposals relating to the location of the port
and in respect of proposals relating to the development of the port (insofar
as such proposals concern the development of the port for use by or in
conjunction with others) and the location of the port townsite shall be final
and no such determination may be referred to arbitration by the Company.
Consideration of proposals 2
8. (1) On receipt of
the said proposals the Minister shall —
(a) approve of the said proposals either wholly or
in part without qualification or reservation; or
(b) defer consideration of or decision upon the
same until such time as the Company submits a further proposal or proposals in
respect of some other of the matters mentioned in subclause (2) of
Clause 7 not covered by the said proposals; or
(c) require as a condition precedent to the giving
of his approval to the said proposals that the Company makes such alteration
thereto or complies with such conditions in respect thereto as he (having
regard to the circumstances including the overall development of and the use
by others as well as the Company of all or any of the facilities proposed to
be provided) thinks reasonable and in such a case the Minister shall disclose
his reasons for such conditions.
Advice of Minister’s decision 2
(2) The Minister shall
within two months after receipt of the said proposals give notice to the
Company of his decision in respect to the same.
(3) If the decision of
the Minister is as mentioned in either of paragraphs (b) or (c) of
subclause (1) of this Clause the Minister shall afford the Company full
opportunity to consult with him and should it so desire to submit new
proposals either generally or in respect to some particular matter.
Minister’s decision subject to arbitration 2
(4) If the decision of
the Minister is as mentioned in the said paragraph (c) and the Company
considers that the condition precedent is unreasonable the Company may within
two months after receipt of the notice mentioned in subclause (2) of this
Clause elect to refer to arbitration in the manner hereinafter provided the
question of the reasonableness of the condition precedent.
Reasonableness of Minister’s decision 2
(5) In addition to any
other matter to which the arbitrator is required to have regard in considering
the reasonableness of any decision of the Minister made pursuant to
subclause (1) of this Clause the Minister shall not be regarded to have
acted unreasonably if he shall defer his decision on a proposal made in
relation to the matters mentioned in paragraph (i) of subclause (2)
of Clause 7 until the said proposals in relation to the matters mentioned
in the other paragraphs of subclause (2) of Clause 7 have become or
deemed to have become approved proposals and the Company has complied with the
provisions of subclause (5) of Clause 7.
(6) An award made on
an arbitration pursuant to subclause (4) of this Clause shall have force
and effect as follows —
(a) if by the award it is adjudged that the
condition precedent is reasonable then the decision of the Minister in respect
to the said proposals shall stand; or
(b) if by the award it is adjudged that the
condition precedent is unreasonable then the said proposals shall be deemed to
have been approved by the Minister in the form in which the same were
submitted.
9. (1) After the
Company’s proposals submitted pursuant to Clause 7(1) have been
approved by the State and the Company has complied with the provisions of
Clause 7(5) to the satisfaction of the State, the State undertakes that
it will guarantee any loan or loans to the Company in respect of the
construction of the railway referred to in Clause 20(1), subject
to: —
(a) the State first approving of the Lender and
the terms and conditions of the loan or loans and the form of the securities
therefor;
(b) the Company demonstrating to the State that it
is unable to arrange satisfactory terms for financing the construction of the
railway without the aforesaid guarantee;
(c) the terms and conditions of the guarantee
being determined by the State.
(2) The total liability of the State under this
Clause shall not exceed forty-two million dollars.
(3) The provisions of Clause 50 shall not
apply to this Clause.
Additional Proposals 2
10. (1) If the Company
at any time during the continuance of this Agreement desires to modify expand
or otherwise substantially vary its activities beyond those specified in any
approved proposals the Company shall give notice of such desire to the
Minister and within two months thereafter shall subject to the provisions of
this Agreement submit to the Minister detailed proposals in respect of all
matters covered by such notice and such of the other matters mentioned in
paragraphs (a) to (m) of subclause (2) of Clause 7 as the
Minister may require. The provisions of Clauses 7 and 8 shall mutatis
mutandis apply to detailed proposals submitted pursuant to this subclause.
Basis of Submission 2
(2) In the event of
the Company submitting detailed proposals pursuant to subclause (1) of
this Clause, or, if as a consequence of it submitting detailed proposals
pursuant to Clause 34 or 35, the Minister requires further detailed
proposals to be submitted on any of the said matters mentioned in
paragraphs (a) to (m) of subclause (2) of Clause 7, then
subject as provided in subclause (3) of this Clause the additional
proposals shall be submitted on the basis that should the same become approved
proposals the provisions of Clause 26 shall apply mutatis mutandis in
respect of any increase in the extent of the services and facilities mentioned
in subclause (1) of Clause 26 and also in respect of the provision
of the additional services or facilities (whether of the kind mentioned in
subclause (1) of Clause 26 or not) occasioned in either case by the
additional proposals becoming approved proposals.
Determination of extent of Company’s obligations 2
(3) The extent of the
Company’s responsibilities under Clause 26 to provide the capital
cost of and to maintain any increased or additional services and facilities of
the kind mentioned in subclause (1) of that Clause occasioned by the
additional proposals or any of them becoming approved proposals shall be
determined by the Minister after discussion and negotiation on such matters
with the Company and in making such determination the Minister shall have
regard inter alia to the current and anticipated composition of any mining or
other town affected and the extent to which the ordinary responsibilities of
the State with respect to the provision of the capital cost of such services
and facilities are to be assumed by the State in the light of the
State’s current capital resources at that time.
Determination before implementation of proposals 2
11. In any of the following events
namely —
(a) if all of the rights of occupancy cease and
determine pursuant to paragraph (g) of Clause 5 (other than
subparagraph (iii) ); or
(b) if the Company gives to the State notice of
its intention to abandon or discontinue the investigations and the studies; or
(c) if the Company fails within the time (or any
extension thereof) limited by subclause (2) of Clause 7 to submit
any proposals and fails to satisfy the Minister that it is then diligently and
actively conducting the necessary investigations and studies incidental to the
preparation of the proposals; or
(d) if the effect of an award made upon an
arbitration under subclause (4) of Clause 8 is that the decision of
the Minister is to stand and the Company fails within three months after the
making of the award to give notice that it accepts the same and proposes
forthwith to implement the proposals in respect of which the award was
made —
the State may give to the Company one month’s notice determining this
Agreement and on the expiration of such notice this Agreement shall cease and
determine and neither party shall have any claim against the other in respect
of any matter or thing arising out of or done or performed or omitted to be
done or performed under this Agreement except as provided under
Clause 44.
Mineral lease 2
12. (1) As soon as
practicable after the said proposals become approved proposals and the Company
has complied with the provisions of subclause (5) of Clause 7 the
State shall in accordance with the relevant approved proposal on the
application of the Company cause to be granted to it a mineral lease in the
form set out in the Schedule to this Agreement for the mining of iron ore from
such part or parts of the land comprised in the mining areas as is or are then
subject to the rights of occupancy and referred to in the said proposals. The
following provisions shall apply to the mineral lease —
(a) the total area of the land the subject thereof
shall not exceed seven hundred and seventy-seven square kilometres;
(b) the boundaries of the land comprising such
area shall be so located as to form either a rectangular parallelogram or
rectangular parallelograms or as near thereto as is practicable;
(c) the rent reserved thereby shall be that fixed
in subclause (4) of this Clause;
(d) the Company shall therein covenant to pay to
the State in addition to the said rent the royalties fixed in Clause 32;
(e) subject to the due payment by the Company of
the said rent and royalties and to the due performance and observance by the
Company of its other obligations thereunder and of its obligations under this
Agreement the term thereof will be twenty-one years as from the date of the
granting thereof but the Company shall during the continuance of this
Agreement have the right to take successive renewals of the said term each for
a period of twenty-one years upon the same terms and conditions subject to the
sooner determination of the said term upon the cessation or determination of
this Agreement, such right to be exercisable by the Company making written
application for any such renewal not later than one month before the
expiration of the current term of the mineral lease;
(f) subject to paragraphs (a) to (e)
inclusive of this subclause and as in this Agreement otherwise provided all
relevant provisions of the Mining Act and the Regulations thereunder shall
apply but subject to the Company discharging and carrying out its obligations
under this Agreement the Company shall not be required to comply with the
labour conditions imposed by the said Act in respect of mineral leases.
(2) The State shall
cause to be made any survey necessary to define the area and boundaries of the
land to be comprised in the mineral lease and the Company shall upon demand
made on or after the completion of such survey pay to the State the cost
thereof. The Minister for Mines may decline to issue the instrument for the
mineral lease until such survey is completed.
Surrender of part of mineral lease 2
(3) Notwithstanding
the provisions of paragraph (e) of subclause (1) of this Clause the
Company may from time to time (with abatement of future rent in respect to the
area surrendered but without any abatement of rent already paid or any rent
which has become due and has been paid in advance) surrender to the state all
or any portion or portions (of reasonable size and shape) of the mineral
lease.
Rent 2
(4) The rent payable
by the Company under the mineral lease shall be an annual rent (payable
annually in advance) of a sum equal to 1.7297 dollars per hectare calculated
on the total area of land for the time being the subject of the mineral lease.
The said rent shall run as from the date of the granting of the mineral lease
and the first payment of rent shall become due and payable within one month of
the grant of the mineral lease notwithstanding that the survey mentioned in
subclause (2) of this Clause may not have been commenced or completed or
the instrument for the mineral lease may not have been issued.
(5) The State shall to
such extent as may be reasonably practicable on the application of the Company
from time to time grant to the Company or assist it in obtaining the grant of
leases and other rights for limestone, dolomite, granite, diorite, silica sand
and other minerals and substances reasonably required by the Company for the
purposes of this Agreement.
Other mining tenements 2
(6) The State shall
not during the continuance of this Agreement register any claim or grant any
lease or other mining tenement under the Mining Act or otherwise whereby any
person other than the Company might under the laws relating to mining or
otherwise obtain any rights to mine or take natural substances (other than
petroleum as defined by the Petroleum Act 1967 ) from within the mineral
lease unless the Minister reasonably determines that the registration or grant
is not likely to materially prejudice or interfere with the Company’s
operations hereunder.
Access over mineral lease 2
(7) The Company shall
at all times permit the State and third parties (with or without stock
vehicles and rolling stock) to have access to and to pass over the mineral
lease (by separate route, road or railway) so long as that access and passage
does not materially prejudice or interfere with the operations of the Company
under this Agreement.
State may resume land 2
13. The State may as and for a public work under
the Public Works Act 1902 , resume any land required for the purposes of
this Agreement and notwithstanding any other provisions of that Act may sell
lease or otherwise dispose of the land to the Company. The Company shall pay
to the State on demand the costs of and incidental to any land resumed at the
request of and on behalf of the Company pursuant to this Clause.
Other Leases 2
14. (1) The State
shall in accordance with the approved proposals as and when required by the
Company so to do cause to be granted to the Company such other leases of Crown
lands as the parties may consider reasonable and necessary for all or any of
the following purposes namely town sites, private roads, railway lines and
sidings, tailing areas, overburden areas, water pipelines, pumping
installations and reservoirs, airport, power transmission lines and stockpile
areas and for any other of the purposes of this Agreement. Such leases shall
be granted for such periods at such rentals and upon and subject to such other
terms and conditions as shall be reasonable having regard to the obligations
of the Company under this Agreement.
Special Leases 2
(2) Pursuant to
subclause (1) of this Clause the State shall when required by the Company
so to do cause to be granted to it —
(a) a special lease (or special leases) of Crown
land at the mine townsite for residential, professional, business, commercial
and industrial purposes and for the purpose of providing communal facilities.
Such special lease shall be granted upon all usual terms and conditions and in
particular shall contain the following provisions —
(i) the term thereof (unless sooner determined)
shall expire on the same date as that on which the term of the mineral lease
or any renewal thereof terminates or is determined;
(ii) the rental payable thereunder shall be one
peppercorn per annum payable if and when demanded;
(iii) the Company shall have the right during
the continuance thereof to purchase (for a price comparable with that charged
by the State for other Crown land released for freehold sale in similar towns
in the general region of the Company’s operations) the fee simple of any
parcel or lot being part of the land thereby demised on which is erected
buildings or structures (not being dwellings) costing at least ten thousand
dollars or dwellings costing at least seven thousand dollars;
(iv) the Company shall have the right during the
continuance thereof notwithstanding the provisions of the
Sale of Land Act 1970 to sell any parcel or lot being part of the land
thereby demised on condition that the purchaser erects on such land buildings
or structures (not being dwellings) costing at least ten thousand dollars or
dwellings costing at least seven thousand dollars;
(b) a special lease (or special leases) of Crown
land at or near the port for industrial stockpiling, ship loading, power
generation and other similar purposes. Such special lease shall be granted
upon all usual terms and conditions and in particular shall contain the
following provisions —
(i) the term thereof shall (unless sooner
determined) expire on the same date as that on which the term of the mineral
lease or any renewal thereof terminates or is determined;
(ii) the rental payable thereunder shall be an
annual rental payable in advance to be agreed for the first twenty-one years
and thereafter reviewed at seven year intervals and in each case based on a
valuation of the land the subject of the said special leases by a competent
and experienced land valuer appointed by the State and acceptable to the
Company;
(c) notwithstanding the provisions contained in
the mineral lease or any other lease granted pursuant to either of
paragraphs (a) or (b) of this subclause hereby the rent payable
thereunder and the times at which such rent is so payable are fixed, the
Company shall during the continuance of this Agreement from and after the
commencement of Year 16 pay to the State as and by way of an additional annual
rent to that payable under such one or more of such leases as the Company may
from time to time at its option in a notice to the State designate a sum equal
to 24.6052 cents per tonne on all iron ore products in respect of which a
royalty is payable under this Agreement such additional rent to be paid at the
same times and in the same manner as the said royalty.
15. The State agrees that subject to the
performance by the Company of its obligations hereunder the State shall not
resume or suffer or permit to be resumed by an instrumentality or by any local
or other authority of the said State any portion of the land the subject of
any special lease mentioned in subclause (2) of Clause 14 the
resumption of which would materially impede the Company’s works and
activities thereon or any portion of the land the subject of the mineral lease
whereon any of the Company’s works are situate in accordance with
proposals approved hereunder the resumption of which would materially impede
the Company’s mining or other activities thereon nor shall the State
create or grant or permit or suffer to be created or granted by an
instrumentality or authority of the said State any road right of way or
easement of any nature or kind whatsoever over or in respect of the land
comprised in the said leases whereon any of the Company’s works are
situate in accordance with proposals approved hereunder without the consent of
the Company first had and obtained which consent the Company agrees it shall
not arbitrarily or unreasonably withhold.
16. Except as provided by this Agreement the State
shall not impose or permit or suffer any instrumentality of the said State or
any local or other authority to impose discriminatory taxes, rates or charges
of any nature whatever on or in respect of the titles, property or other
assets, products, materials or services used or produced by or through the
operations of the Company hereunder and the State shall not take or permit any
such instrumentality or any local or other authority to take any other
discriminatory action that would deprive the Company of any rights granted or
intended to be granted to it under this Agreement.
17. The State shall ensure that the mineral lease
and any lands the subject of any Crown grant lease licence or easement granted
to the Company under this Agreement and all freehold and leasehold land
occupied by the Company in accordance with or the subject of proposals
approved hereunder shall be and remain zoned for use or otherwise protected
during the currency of this Agreement so that the operations of the Company
hereunder may be undertaken and carried out thereon without any interference
or interuption by the State by any State agency or instrumentality or by any
local or other authority of the State on the ground that such operations are
contrary to any zoning by-law regulation or order.
Rating 2
18. The State shall ensure that notwithstanding
the provisions of any Act or anything done or purported to be done under any
Act the valuation of all lands (whether of a freehold or leasehold nature) the
subject of this Agreement (except as to any part upon which a permanent
residence shall be erected or which is occupied in connection with that
residence and except as to any part upon which there stands any improvements
that are used in connection with a commercial undertaking not directly related
to the mining transportation processing and shipment of iron ore or iron ore
products) shall for rating purposes under the Local Government Act 1960
be deemed to be on the unimproved value thereof and no such lands shall be
subject to any discriminatory rate, PROVIDED THAT nothing in this Clause shall
prevent the Company making the election provided for by Section 533B of
the Local Government Act 1960.
Construction of plant 2
19. The Company shall within four years next
following the date on which all the said proposals required to be submitted
hereunder have become approved proposals or at such later date as the Minister
may approve at a cost of not less than eighty million dollars construct
install provide and do all things necessary to enable it to mine from the
mineral lease to transport by rail to the Company’s wharf and to
commence shipment therefrom in commercial quantities at an annual rate of not
less than one million tonnes of iron ore and without lessening the generality
of this provision the Company shall within the aforesaid period or extended
period as the case may be —
(a) construct install and provide upon the mineral
lease or in the vicinity thereof or at the port (as the case may be) mining
plant and equipment crushing screening stockpiling and car loading plant and
facilities power house workshop and other things of a design and capacity
adequate to enable the Company to meet and discharge its obligations hereunder
and to mine handle load and deal with not less than three thousand tonnes of
iron ore per day such capacity to be built up progressively to not less than
ten thousand tonnes of iron ore per day within three years next following the
export date;
(b) actually commence to mine transport by rail
and ship from the Company’s wharf iron ore from the mineral lease so
that the average annual rate during the first two years after export date
shall not be less than one million tonnes.
20. (1) The Company
shall submit to the Minister for approval the proposed route of the railway
(as hereinafter defined) and the Minister shall within two months of the
receipt of such submission advise the Company of his decision. In considering
the Company’s submission the Minister shall have due regard to the
shortest practicable route of the railway. The Company, having first obtained
the approval of the Minister to the proposed route as aforesaid, and subject
to the provisions of this Clause, shall at its expense and in accordance with
the relevant approved proposal construct or arrange to have constructed a
railway having a 1.435 metre gauge between a mining site or sites within or
adjacent to the mining areas and the port. Such railway and other works and
appurtenances required to be provided by the Company pursuant to this Clause
on the railway lease (as defined in subclause (2) of this Clause) are
hereinafter referred to as “the railway”.
(2) The Company shall
give notice to the State in advance of its intention to commence construction
of the railway. Upon the receipt of such notice the State shall so soon as
conveniently may be —
Acquisition of land 2
(a) at the expense of the Company acquire such
land as may be necessary and exercise such statutory powers to enable the
construction of the railway; and
Lease of land to Company 2
(b) grant to the Company for a term of eighteen
years a lease of the land so acquired and all other land that may be necessary
to enable the construction use and operation of the railway at an annual
rental of one peppercorn in accordance with the provisions of this Agreement.
Such lease (in this Clause called “the railway lease”) shall
contain a covenant by the Company to construct the railway and such other
covenants and provisos as are reasonably necessary for the protection of the
State as lessor.
(3) The provisions of
section 96 of the Public Works Act 1902 shall not apply to the
construction of the railway.
Determination of Lease 2
(4) The railway shall
not be subject to tenant’s rights in the Company and at the expiration
or sooner determination of the said lease the Company’s rights and
interest in the railway (whether or not fixtures) shall subject as hereinafter
provided absolutely cease and vest or revest in the State and become the
absolute property (freed from all encumbrances) of the State which shall not
be obliged to pay any compensation to the Company in respect of the railway.
Construction of Railway and protective devices 2
(5) The construction
of the railway shall be carried out to the standards of and in accordance with
plans and specifications approved by the Railways Commission which
specifications shall provide inter alia for grade separation when required by
the State at all intersections with any other railways and, having regard to
the requirements of the Commissioner of Main Roads, for grade separation when
required by the State at all intersections with major roads and such warning
and protective devices including flashing lights and boom gates at all
intersections with other roads.
Operation by Railways Commission 2
(6) The Railways Commission
shall —
(a) notwithstanding the provisions of subclauses
(1) and (2) of this Clause be solely responsible for the operation of the
railway for its use by the Company and the Railways Commission;
(b) during the continuance of this Agreement
subject to the Company complying with its obligations hereunder in relation to
its use of rail transport and in particular subject to the number of wagons
provided by the Company being sufficient for the purpose, operate such trains
as the Company may reasonably require for the transport of iron ore products
limestone and other commodities for the purposes of this Agreement and allow
such trains carrying the Company’s iron ore such priority over other
traffic on the railway as is reasonable in the circumstances, and subject
thereto;
(c) be entitled to operate on the railway such
trains other than those for the purposes of the Company’s operations
hereunder as may be practicable.
Maintenance by Railways Commission 2
(7) The Railways
Commission shall at its expense maintain the railway together with all
locomotives brakevans and wagons used on the railway.
Notice of requirements 2
(8) The Company shall
provide to the satisfaction of the Railways Commission not less than two years
in advance of its requiring to use rail transport such particulars of its
requirements as to the use of the railway (including the anticipated or
provisional annual tonneages from time to time likely to be available for
transport) as shall enable the Railways Commission to make arrangements to
meet those requirements and shall thereafter give adequate notice of any
change in those requirements.
Provision and maintenance of equipment by Company 2
(9) The Company shall
on land occupied by it at the mining site or sites and at the port (other than
on land the subject of the railway lease) at its own cost provide and maintain
such sidings, shunting loops, spurs and other rail connections and
appurtenances (including all necessary signals and safety devices) as the
Railways Commission may reasonably require for its operations under
subclause 6(b) of this Clause and loading and unloading facilities
sufficient to meet the Company’s train operating requirements and
terminal equipment (including weighing devices) with such staff as may be
adequate to ensure the proper operation of such facilities and equipment.
(10) The Company shall
provide sufficient wagons including spare wagons (of a design and to a
specification approved by the Railways Commission) to carry all iron ore
products limestone and other commodities required to be transported for the
Company between the mining areas and the port and where in the opinion of the
Railways Commission any such wagons are no longer capable of being maintained
and serviced by the Railways Commission, provide replacement wagons.
Locomotives and brake-vans 2
(11) The Company shall
if and when required by the Railways Commission provide sufficient locomotives
and brakevans (of a design and to a specification approved by the Railways
Commission) for the transport of the iron ore products limestone and all other
commodities required to be transported for the Company on the railway and the
Railways Commission shall lease from the Company the locomotives and brakevans
so provided on such terms and conditions as the parties may agree.
Loading of wagons 2
(12) The Company shall
ensure that all wagons are properly trimmed and are loaded to tonneages
approved by the Railways Commission.
Connection of Railway to State rail system 2
(13) The Railways
Commission may connect the railway to either the existing State rail system or
any new system to be operated by the State at a point or points to be
determined by the Minister and shall give notice to the Company in advance of
its intention to make such connections.
Rail Freight Charges 2
(14) During the continuance of this
Agreement —
(a) The Company shall pay to the Railways
Commission freight in respect of the commodities carried for the Company
pursuant to this Agreement. The freight rate shall be determined by the
Railways Commission from time to time but shall not exceed the actual cost to
the Railways Commission of operating and maintaining the railway in accordance
with the Company’s requirements under this Agreement including (where
the Company has exclusive use of the railway) the costs of necessary
replacements or (where the Company does not have such exclusive use) a fair
contribution thereto and to the standard normally required by the Railways
Commission together with a management fee not exceeding 12½% of such
operating and maintenance costs.
(b) Freight shall be payable by monthly payments
in the month next following the month of haulage on the basis of the estimated
costs of operating and maintaining the railway and shall be subject to annual
adjustment after the expiration of each year. The State shall at the request
of the Company procure the certificate of the Auditor General of the State as
to the correctness of the Railways Commission’s costs of operating and
maintaining the railway.
Use of railway by others 2
(15) In the event of
the Railways Commission making use of the railway to carry freight for other
persons within eighteen years of the date of this Agreement and moving over
the railway in any one year within that period 100 000 tonnes or more of
bulk products the State shall require such other user to make a fair
contribution to the cost of the establishment of the railway and from the
proceeds of any such contribution or contributions shall pay to the Company
such amount as shall be equitable.
21. (1) Subject to the
State having assured to the Company all necessary rights in or over Crown
Lands available for the purpose the Company shall at its own cost and expense
construct such new roads as it may reasonably require for the purposes of this
Agreement, such roads to be of such widths, of such materials, with such
fences, gates, and warning devices, crossings (level or grade separated where
required) and pass-overs for cattle sheep and other livestock and along such
routes as the parties shall agree after consideration of the requirements of
the Commissioner of Main Roads. Except to the extent that the Company’s
relevant approved proposal otherwise provides, the Company shall allow the
public to use free of charge any roads constructed or upgraded pursuant to or
for the purposes of this Agreement so long as such use shall not unduly
prejudice or interfere with the Company’s operations hereunder.
Use of public roads 2
(2) The Company shall
have the right to use any public roads that may from time to time exist in the
area of its operations under this Agreement both prior to the commencement
date and also in the course of its operations hereunder. If the exercise by
the Company of such right results in or is likely to result in intensive use
of any public road whereby excessive damage or deterioration is caused thereto
or whereby the road becomes inadequate for use by the Company and the public,
the Company shall upon demand (except where and to the extent that the
Commissioner of Main Roads agrees to bear the whole or part of such cost) pay
to the State or the local authority concerned or other authority having
control of such road the cost (or an equitable proportion thereof having
regard to the use of such road by others) of preventing or making good such
damage or deterioration or of upgrading the road to a standard commensurate
with the increased traffic.
Upgrading of public roads 2
(3) If required by the
Company the State shall at the Company’s cost and expense (except where
and to the extent that the Commissioner of Main Roads agrees to bear the whole
or any part of the cost) widen upgrade or realign any public road existing
from time to time which the Company desires to use for its operations
hereunder over which the State has control subject to the prior approval of
the Commissioner of Main Roads to the proposed work.
Liability for use of roads 2
(4) (a)
For the purpose of determining whether and the
extent to which —
(i) the Company is liable to any person or body
corporate (other than the State) or
(ii) an action is maintainable by any such person
or body corporate
in respect of the death or injury of any person or damage to any property
arising out of the use of any of the roads for the construction or maintenance
of which the Company is responsible hereunder and for no other purpose the
Company shall be deemed to be a municipality and the said roads shall be
deemed to be streets under the care control and management of the Company.
(b) For
the purposes of this subclause the terms “municipality”
“street” and “care control and management” shall have
the meanings which they respectively have in the Local Government
Act 1960.
Water 2
General water requirements 2
22. (1) The Company
having complied with its obligations under Clause 6(1)(g) shall give to
the State not less than two years notice in appropriate detail of its
estimated consumption of potable water at the port and the mine townsite other
than for construction purposes (which amounts or such other amounts as shall
be agreed between the parties are in this Clause called “the
Company’s general water requirements”).
(2) Upon receipt of
such notice the State shall in collaboration with the Company and in
accordance with an agreed programme and budget at the expense of the Company
search for suitable subterranean water sources sufficient to supply the
Company’s general water requirements in areas agreed to by the parties.
Development of water sources 2
(3) In the event that
the search referred to in subclause (2) of this Clause identifies and
proves subterranean water sources which the parties agree are adequate to
supply the Company’s general water requirements the State shall, in
accordance with the relevant approved proposal and an agreed programme and
budget, construct or arrange to have constructed at the Company’s
expense all bores, valves, pipelines, meters, tanks, equipment and
appurtenances (in this Clause called “the water works”) necessary
to supply the Company’s general water requirements.
Additional capacity 2
(4) The State may in
its discretion construct the water works to achieve a capacity greater than
that needed to meet the Company’s general water requirements and in that
event the Company shall pay to the State a sum or sums to be agreed between
the parties as being the Company’s fair share of the cost of providing
the said facilities works or appurtenances.
(5) The State shall in
accordance with the relevant approved proposal supply the Company’s
general water requirements at the port and mine townsite from sources
developed by the State pursuant to subclauses (3) and (4) of this Clause up to
the amount and rate set forth in the notice given pursuant to
subclause (1) of this Clause PROVIDED HOWEVER that should such sources
prove hydrologically inadequate to meet the Company’s general water
requirements the State may limit the amount of water which may be taken from
such sources at any one time or from time to time to the maximum which such
sources are hydrologically capable of meeting.
Mine water requirements 2
(6) The Company shall
give to the State not less than six months notice in appropriate detail in
respect of its requirements of potable and non potable water other than for
construction purposes both at the mine and elsewhere within or near the mining
areas to implement its obligations hereunder (which amounts or such other
amounts as shall be agreed between the parties are in this Clause called
“the Company’s mine water requirements”).
(7) The Company shall
in collaboration with the State search for and make investigations to
establish the availability of suitable subterranean water sources within the
mineral lease or at other locations approved by the Minister and shall employ
and retain experienced ground water consultants where appropriate and shall
furnish the Minister with copies of the consultants’ reports or
alternatively if so requested by the Company the State shall carry out the
said search and investigations at the Company’s expense.
Construction of mine water works 2
(8) In the event that
the search referred to in subclause (7) of this Clause identifies and
proves subterranean water sources which the parties agree are adequate to
supply the Company’s mine water requirements, the Company shall provide
and construct at its expense to standards and in accordance with designs
approved by the Minister and in accordance with its relevant proposals the
works necessary to draw transport use and dispose of water drawn from sources
licensed to the Company pursuant to subclause (9) of this Clause (in this
Clause called “the mine water works”).
Licence 2
(9) The Company shall
make application to the State for one or more licences to draw the
Company’s mine water requirements up to the amounts and at rates not
less in total than those set forth in the notice given pursuant to
subclause (6) of this Clause from suitable subterranean water sources
identified pursuant to the search and investigation mentioned in
subclause (7) of this Clause and as are agreed to be adequate and the
State shall in accordance with the relevant approved proposal grant to the
Company such licence or licences PROVIDED HOWEVER that should any such source
prove hydrologically inadequate to meet the Company’s mine water
requirements, the State may limit the amount of water which may be taken from
such source at any one time or from time to time to the maximum which such
sources are hydrologically capable of meeting.
Surrender of licence 2
(10) If during the
currency of a licence granted under the provisions of this Clause the Minister
is of the opinion that it is desirable that the sources of potable water
licensed to the Company and the mine water works established in respect
thereof by the Company pursuant to subclause (8) of this Clause be made
available to the State for such purposes, inter alia , as water conservation,
water management, utilisation of unused hydrological capacity, supply of water
to third parties (where such supply will not materially prejudice the
Company’s operations hereunder) and establishment of a regional water
supply system incorporating the area of operations of the Company the Minister
shall (after first affording the Company an opportunity to consult with him)
so notify the Company and the Company shall after the expiration of six months
from the date of such notice surrender such licence or licences (other than a
licence granted exclusively for non potable water) and relinquish to the State
the ownership control and operation of such part of the works as relate to
potable water. The State shall thereupon assume the ownership control and
operation of such works. The State shall not be liable to pay the Company
compensation in respect of such works relinquished or the licence or licences
so surrendered. Immediately after the surrender of such licence or licences
the State shall (subject only to the continued hydrological availability of
water from such sources previously licensed to the Company) commence and
thereafter continue to supply water to the Company up to the same amount and
at the same rate as that which the Company would have been entitled to draw
under such surrendered licence or licences and the proviso to
subclause (9) of this Clause shall in like manner apply to this
subclause.
(11) The State may in
its discretion develop any district or regional water supply and for the
purposes thereof construct mine water works to a greater capacity than that
required to supply the Company’s mine water requirements but in that
event the cost of the mine water works so constructed shall be shared by the
parties in such manner as may be agreed to be fair in all the circumstances.
Non-potable water 2
(12) The Company shall
so design and construct its plant and facilities for the mining handling
processing and transportation of iron ore that as far as practicable
non-potable water may be used therein.
Charges for water 2
(13) The Company shall
pay to the State for all water supplied by it for the purposes of this
Agreement a fair price to be negotiated between the parties which shall be
equal to the actual cost incurred by the State in supplying water to the
Company including operating maintenance and overhead costs and a provision for
replacement of the water works or the mine water works (as may be applicable).
Notwithstanding the foregoing the Company shall pay to the State in respect of
water supplied by the State to the Company for townsite purposes such charges
as are levied from time to time pursuant to the provisions of the
Country Areas Water Supply Act 1947.
Additional water search 2
(14) Should the State
at any time pursuant to the provisos to subclauses (5) and (9) of this
Clause limit the amount of water to be taken from the water sources therein
mentioned, the Company shall collaborate with the State in a search at the
Company’s expense for new or additional subterranean water sources with
a view to restoring the full quantity or quantities of water required by the
Company and such search shall (if necessary and agreed between the parties)
extend to and include investigations into surface water resources pursuant to
subclause (15) of this Clause.
Surface water 2
(15) Without prejudice
to the provisions of subclause (9) of this Clause the Company shall
collaborate with the State in an investigation of surface water catchments
storage dams and reticulation facilities should water supplies from available
underground sources prove insufficient to meet the Company’s general
water requirements and the Company’s mine water requirements and the
Company shall if it proposes to utilise such water catchments and/or storage
dams pay to the State a sum or sums to be agreed towards the cost of such
investigation and towards the cost of constructing any water storage dam or
dams and reticulation facilities required PROVIDED THAT the State may in its
sole discretion elect to construct a water storage dam or dams and
reticulation facilities having a capacity in excess of that required to supply
the Company’s needs and in that event the Company’s contribution
shall be limited to a fair and reasonable proportion of the total cost of
constructing such water storage dam or dams and reticulation facilities.
Rights in Water and Irrigation Act 2
(16) Any reference in
this Clause to a licence is a reference to a licence under the
Rights in Water and Irrigation Act 1914 and the provisions of that Act
relating A to water rights and licences shall except where inconsistent with
the provisions of this Agreement apply to any water sources developed for the
Company’s purposes under this Agreement.
Sea water licence 2
(17) Upon the request
of the Company the State shall grant to the Company a licence to draw from the
sea at the port its requirements of sea water in accordance with the relevant
approved proposal hereunder.
Electricity 2
Electricity facilities 2
23. (1) The Company
shall in accordance with the approved proposals construct without cost or
expense to the State the necessary plant equipment and systems (in this Clause
called “electricity facilities”) for the generation and
transmission of electricity needed to enable the Company to carry out its
obligations hereunder. The Company shall not take transmission lines beyond
any mining area or beyond the port area without the prior approval of the
Commission (which approval may be given subject to such terms and conditions
as the Commission determines). The Company shall so design and construct the
electricity facilities as to facilitate their ultimate connection with similar
facilities owned by the Commission or other third parties.
Purchase of electricity 2
(2) Notwithstanding
the provisions of subclause (1) of this Clause (and for the purpose of
facilitating integration of electricity generation and transmission facilities
in areas where the Company operates) the Company shall be at liberty to
purchase electricity from the Commission and third parties or to negotiate
with the Commission or third parties for the augmentation of the facilities of
the Commission and such third parties to enable them to supply the Company in
lieu of the Company providing electricity facilities pursuant to
subclause (1) of this Clause.
Acquisition of facilities 2
(3) The State may at
any time give to the Company twelve months’ notice of its intention to
acquire and may thereafter acquire the Company’s electricity facilities
or any part thereof up to the first point of voltage breakdown or such other
appropriate point as may be agreed, at a price to be agreed between the
parties and the Company shall take all such steps as may be necessary to
effect the acquisitions. The State undertakes that in such event the Company
shall for its purposes hereunder have first call on the power generated and
transmitted by such electricity facilities so acquired and the State
undertakes subject only to its inability to supply power for any of the
reasons set forth in Clause 40 to supply the Company with power for its
purposes hereunder up to the normal continuous full load capacity of the
electricity facilities so acquired and that in the event of such inability to
supply power occurring the State shall take all possible steps to restore such
supply regardless of the time or day when such inability arises and may call
upon the Company to provide employees for that purpose at the State’s
expense.
Charges for electricity 2
(4) In the event of
the State acquiring the Company’s electricity facilities the Company
shall pay to the Commission the cost of all electricity supplied to the
Company by the Commission at a rate equal to the standard tariff from time to
time applying to the Commission’s system less the difference (if any)
between the Commission’s standard tariff in force at the time of the
State’s acquisition of the electricity facilities and the
Company’s costs of operating the electricity facilities (including inter
alia appropriate capital charges) at the time of the said acquisition. The
Commission’s rate for electricity supplied calculated as aforesaid shall
apply only in respect of an amount of electricity equal to the continuous full
load capacity of the electricity facilities so acquired and the Company shall
pay for all electricity supplied to it by the Commission in excess of such
amount at the Commission’s standard tariff applicable from time to time.
(5) Should the
Company’s relevant approved proposal provide for the Commission to
reticulate electricity to houses occupied by the Company’s work-force
and by any other persons connected directly with the Company’s
operations whether employees or not and to commercial establishments directly
connected with such operations, the Company shall sell to the Commission in
bulk electricity in sufficient quantities to meet the needs of such work-force
persons and establishments at a price equal to the Company’s actual cost
of generating and transmitting such electricity including, inter alia ,
appropriate capital charges.
Port and Company’s Wharf 2
24. (1)
(a) The Company shall develop the port, construct
the Company’s wharf and carry out all necessary dredging of approach
channels, swinging basin and berth at the Company’s wharf and provide
and be responsible for the cost of maintenance (where the Company is the sole
user and the State does not obtain any revenue in respect thereof) or a fair
contribution thereto of all necessary buoys, beacons, markers, navigational
aids, lighting equipment and services and facilities including where necessary
the provision of tugs tug service berths and pilot boats to the requirements
of the Geraldton Port Authority in accordance with the Company’s
relevant approved proposal.
(b)
Notwithstanding the provisions of paragraph (a) of this subclause, the
parties recognise that it may be to their advantage for the State to provide
all or some of the said works mentioned in the said paragraph and in such case
the State shall confer with the Company and the other users and potential
users of the port as to the manner in which and the terms and conditions upon
which the State should provide such works. The Company shall pay to the State
such sum or sums as the parties agree (not exceeding the amount that would
have been payable had the Company carried out the said works) towards the cost
of the said works provided by the State.
(2) (a)
Subject to the payment to the Company of the
charges prescribed by and for the time being payable under any by-laws made by
the Company in respect of the use by others of the Company’s wharf and
subject to the due compliance with the other requirements and conditions
prescribed by such by-laws or should there be no such by-laws for the time
being in force then subject to the payment of such charges and the due
compliance with such requirements and conditions as in either case shall be
reasonable having regard to the cost to the Company of the construction and
operation of the Company’s wharf the Company shall permit the State and
(where it does not prejudice the existing use of the facilities in the port of
Geraldton) third parties to use the Company’s wharf and the port
installations, wharf machinery equipment and wharf and port services and port
facilities constructed or provided by the Company in connection therewith if
and for so long as such user shall not materially prejudice or interfere with
the operations of the Company under this Agreement.
(b)
Subject to the provisions of Clause 25 nothing in this Agreement shall be
construed to limit the application of the Shipping and Pilotage Act 1967
.
No charge for handling of cargoes 2
25. The State undertakes that subject to the
Company at its expense providing all works buildings dredging and things of a
capital nature reasonably required for its operations hereunder at or in the
vicinity of the port no charge or levy shall be made by the State or by any
State agency authority or instrumentality in relation to the loading of
outward or the unloading of inward cargoes from the Company’s wharf
whether such cargoes shall be the property of the Company or of any other
person or corporation but the State accepts no obligations to undertake such
loading or unloading and may make the usual charges from time to time
prevailing in respect of services rendered by the State or by any State agency
authority or instrumentality or by any local or other authority on behalf of
the State and may charge vessels using the Company’s wharf ordinary
light conservancy and tonneage dues.
Townsites Establishment 2
26. (1)
(a) The parties recognise that based on
preliminary planning the Company intends to expand and develop the town of
Geraldton including those environs of the town within the Shires of Chapman
Valley and Greenough for the port townsite and an existing town for its mine
townsite but should the approved proposals provide for the establishment of a
new town at the mine townsite the Company shall at its cost and in accordance
with the approved proposals —
(i) provide at the mine townsite such housing
accommodation services and works (including sewerage reticulation and
treatment works water supply works and main drainage works and also social
cultural and civic facilities) as may be necessary in order to provide for the
needs of persons (and the dependants of those persons) connected directly with
the Company’s operations under this Agreement, whether or not such
persons are employed by the Company;
(ii) provide at the mine townsite all necessary
public roads and buildings required for educational, hospital, medical,
police, recreation, fire and other services;
(iii) provide all equipment required for the
operation and proper functioning of the services and works referred to in
subparagraphs (i) and (ii) of this paragraph; and
(iv) service maintain and where necessary repair
and renovate the housing accommodation services and works mentioned in
subparagraphs (i) and (ii) of this paragraph;
(v) (subject to and in accordance with by-laws
from time to time to be made and altered by the Company which include
provisions for fair and reasonable prices rentals or charges or if no such
by-laws are made or in force then at such prices rentals or charges and upon
and subject to such terms and conditions as are fair and reasonable) ensure
that the said housing accommodation services and works are at all times
readily available to persons requiring the same being employees licensees or
agents of the Company or persons engaged in providing a legitimate and normal
service to or for the Company or its employees licensees or agents including
the dependants of such persons; and
(vi) ensure that the roads buildings and other
works mentioned in subparagraph (ii) of this paragraph and the equipment
mentioned in subparagraph (iii) of this paragraph are readily available
free of charge to those desiring to use the same.
Limitation on Company’s obligations 2
(b)
Nothing contained in paragraph (a) of this subclause shall be construed
as placing on the Company an obligation to provide and pay for personnel
required to operate the educational hospital medical or police services
mentioned in that paragraph.
(2) The Company shall
at its cost equip all the buildings mentioned in paragraph (a) of
subclause (1) of this Clause to the extent and of a standard at least
equal to that normally adopted by the State in similar types of buildings used
for similar purposes in comparable townsites.
Staff Housing 2
(3) The Company shall
at its cost provide adequate housing accommodation for married and single
staff directly connected with the educational hospital medical and police
services mentioned in subparagraphs (i) and (ii) of paragraph (a) of
subclause (1) of this Clause.
Existing Towns 2
(4) If the approved
proposals provide for the assimilation into any existing town of the whole or
part of the Company’s work-force (including their dependants) and any
other persons (including their dependants) connected directly with the
Company’s operations (whether employees of the Company or not) whereby
the normal population of such existing town is increased then the Company
shall subject to the provisions of subclause (3) of Clause 10 bear
the cost of the provision at that existing town of the matters mentioned in
subparagraphs (i) (ii) and (iii) of paragraph (a) of
subclause (1) of this Clause to the extent as shall be necessary in order
to provide for the needs of the said increase in population of such existing
town. The said additional housing services works and equipment may be provided
by the State or by another party under an agreement with the State and in
either case shall be to the extent and of a standard at least equal to that
normally adopted by the State in similar types of buildings used for similar
purposes in comparable towns. The Company shall pay to the State or such other
party such proportion of the cost of such additional housing services works
and equipment and the planning thereof as is fair and reasonable having regard
to the extent of the said increase in the population of such existing town.
(5) Should the
approved proposals place an obligation on the State to provide for any of the
matters mentioned in subparagraphs (i), (ii) and (iii) of
paragraph (a) of subclause (1) of this Clause or require the State
to procure and accept the responsibility of the provision of any services and
facilities the State shall provide or procure the provision of the same but
(unless the approved proposals otherwise provide) subject to the following
conditions namely —
(a) that the State is satisfied that the need to
provide such services and facilities results from or is reasonably
attributable to the Company’s operations under this Agreement; and
(b) the Company agrees to bear the capital cost
involved and thereafter to pay reasonable charges for the maintenance and
operation of the said services or facilities other than the operation charges
in respect of education hospital medical and police services.
27. Nothing in this Agreement shall be construed
to exempt the Company from compliance with any requirement in connection with
the protection of the environment arising out of or incidental to the
operations of the Company hereunder that may be made by the State or any State
agency or instrumentality or any local or other authority or statutory body of
the State pursuant to any Act for the time being in force.
Compliance with State laws 2
28. The Company shall in the construction
operation maintenance and use of any work installation plant machinery
equipment service or facility provided or controlled by the Company comply
with and observe the provisions of this Agreement and subject thereto the laws
for the time being in force in the said State.
Maintenance of Installations 2
29. The Company shall at all times keep and
maintain in good repair and working order and where necessary replace all such
works installations plant machinery and equipment wharfs roads (other than
public roads unless and to the extent otherwise provided herein) and water and
power supplies for the time being the subject of this Agreement.
Use of local professional services, labour and materials 2
30. The Company shall for the purposes of this
Agreement as far as it is reasonably and economically
practicable —
(a) use the services of engineers surveyors
architects and other professional consultants resident and available within
the said State;
(b) use labour available within the said State;
(c) when calling for tenders and letting contracts
for works materials plant equipment and supplies ensure that Western
Australian suppliers manufacturers and contractors are given reasonable
opportunity to tender or quote; and
(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 and service are equal to or better than
that obtainable elsewhere.
Commonwealth licences and consents 2
31. (1) The Company
shall from time to time make application to the Commonwealth or to the
Commonwealth constituted agency, authority or instrumentality concerned for
the grant to it of any licence or consent under the laws of the Commonwealth
of Australia necessary to enable or permit the Company to enter into this
Agreement and to perform any of its obligations hereunder.
(2) On request by the
Company the State shall make representations to the Commonwealth or to the
Commonwealth constituted agency authority or instrumentality concerned for the
grant to the Company of any licence or consent mentioned in subclause (1)
of this Clause.
Royalty 2
32. (1) The Company
shall during the continuance of this Agreement pay to the State a royalty on
all iron ore products (other than iron ore shipped solely for testing
purposes) at the rates herein specified in respect of each particular class of
iron ore product as follows —
(a) on iron ore products (being direct shipping
ore and fine ore and fines not sold or shipped separately as such) not being
locally used ore — at the rate of seven and one half per
centum of the f.o.b. revenue (computed at the rate of exchange prevailing on
date of receipt by the Company of the purchase price of such iron ore
products) PROVIDED NEVERTHELESS that subject as provided in paragraph (e)
of this subclause the total royalty payable under this paragraph shall not be
less than the sum ascertained by multiplying 59.0524 cents by the total weight
in tonnes of such iron ore products the subject of any shipment or sale;
(b) on iron ore products (being fine ore and fines
so sold or shipped separately as such) not being locally used
ore — at the rate of seven and one half per centum of the
f.o.b. revenue (computed as mentioned in paragraph (a) of this subclause)
PROVIDED NEVERTHELESS that subject as provided in paragraph (f) of this
subclause the total royalty payable under this paragraph shall not be less
than the sum ascertained by multiplying 29.5262 cents by the total weight in
tonnes of such iron ore products the subject of any shipment or sale;
(c)
(i) on iron ore products
(being such as are produced by the secondary processing of iron ore by the
Company or an associated company within the Commonwealth); or
(ii)
on locally used ore (not being iron ore used in the
secondary processing of iron ore by the Company or an associated company
within the Commonwealth) —
at the rate of 14.7631 cents per tonne;
(d) on all other iron ore products (not being
locally used ore) at the rate of seven and one half per centum of the f.o.b.
revenue (computed as aforesaid) without any minimum royalty;
(e) if the amount ascertained by multiplying
59.0524 cents by the total weight in tonnes of direct shipping ore shipped or
sold (and liable to royalty under paragraph (a) of this subclause) in any
financial year is less than the total royalty which would be payable in
respect of that ore but for the operation of the proviso to that paragraph
then that proviso shall not apply in respect of direct shipping ore shipped or
sold in that year and at the expiration of that year any necessary adjustments
shall be made;
(f) if the amount ascertained by multiplying
29.5262 cents by the total weight in tonnes of fine ore and fines shipped or
sold separately as such (and liable to royalty under paragraph (b) of
this subclause) in any financial year is less than the total royalty which
would be payable in respect of that ore but for the operation of that proviso
to that paragraph then that proviso shall not apply in respect of fine ore and
fines shipped or sold separately as such in that year and at the expiration of
that year any necessary adjustments shall be made;
(g) the rate of royalty of 14.7631 cents per tonne
mentioned in paragraph (c) of this subclause shall be adjusted up or down
(as the case may be) as at the first day of January 1969 and as at the
beginning of every fifth year thereafter in accordance with any variation in
the average of the basic prices of foundry pig iron c.i.f. Australian capital
city ports as announced by The Broken Hill Proprietary Company Limited or any
subsidiary thereof from time to time during the calendar year immediately
preceding the date at which the adjustment is required to be made as compared
with such average for the calendar year 1963;
(h) where iron ore products produced from
secondary processing hereunder are so produced from an admixture of iron ore
from the mineral lease and other iron ore, a portion (and a portion only) of
the iron ore products so produced being equal to the proportion which the
amount of iron in the iron ore from the mineral lease used in the production
of those iron ore products bears to the total amount of iron in the iron ore
so used, shall be deemed to be produced from iron ore from the mineral lease.
Payment of royalties 2
(2) The Company shall
during the continuance of this Agreement within fourteen days after the
following quarter days namely the last days of March June September and
December in each year (commencing with the quarter day next following the
export date) furnish to the Minister a return showing the quantity of all iron
ore products on which royalty is payable hereunder and shipped sold or used
(as the case may be) during the quarter immediately preceding the due date of
the return and shall not later than two months after such due date pay to the
Minister the royalty payable in respect of such of the iron ore products
mentioned in subclause (1) of this Clause as are locally used and shall
also pay to the Minister in respect of such of the said iron ore products as
are shipped or sold a sum on account of the royalty payable hereunder
calculated on the basis of the invoices or provisional invoices (as the case
may be) rendered by the Company to the purchaser (which invoices the Company
shall render without delay and simultaneously shall furnish copies thereof to
the Minister) and shall from time to time when the f.o.b. revenue realised in
respect of the shipments has been ascertained in the next following
appropriate return and payment make (in the return and by cash) all such
necessary adjustments and give to the Minister full details thereof.
(3) The Company shall
permit the Minister or his nominee at all reasonable times to inspect the
books of account and records of the Company relative to the Company’s
operations hereunder and to any shipment sale or use of iron ore products
hereunder including sales contracts and to take copies or extracts therefrom.
For the purpose of determining the f.o.b. revenue payable in respect of any
shipment or sale of iron ore products hereunder the Company shall take
reasonable steps (either by the certificate of a competent independent party
acceptable to the Minister or otherwise to the Minister’s satisfaction)
to satisfy the State as to the correctness of all relevant weights assays and
analyses and shall give due regard to any objection or representation made by
the Minister or his nominee as to any particular weight assay or analysis that
may affect the amount of royalty payable hereunder. The information obtained
by the Minister or his nominee as a result of any such inspection shall be
used only for the purposes of verifying the amount of royalty payable by the
Company and for no other purpose and shall not be disclosed by the State the
Minister or his nominee to any other party for any other purpose.
33. (1) Subject to the
provisions of subclause (3) of this Clause the Company shall not at any
time during the continuance of this Agreement, unless the Minister otherwise
permits, offload or permit to be offloaded any iron ore products shipped
pursuant to this Agreement at a place within the Commonwealth.
(2) Where iron ore
products are offloaded in breach of subclause (1) of this Clause the
Company shall forthwith after becoming aware of that event notify the Minister
and shall without prejudice to any other rights or remedies of the State by
reason of the breach on demand pay to the State such sum as the Minister may
determine but not more than a sum representing one dollar per tonne on the
quantity of iron ore products offloaded.
(3) The Company shall
not be deemed to have committed a breach of this Clause if iron ore products
are offloaded at a place within the Commonwealth in any of the following
circumstances —
(a) where the iron ore products are shipped in a
vessel that is not owned by the Company or an associated company and the
Company satisfies the Minister that it has taken appropriate steps to ensure
that iron ore products will not again be offloaded in breach of this Clause;
or
(b) because the vessel in which the iron ore
products are being carried is unforeseeably diverted for necessary repairs or
because of a force majeure or other unforeseeable cause and the Company
satisfies the Minister that because of any such event it could not take or be
reasonably expected to have taken steps to prevent the offloading; or
(c) where the weight of iron ore products
offloaded in any part of the Commonwealth in any year and used by the Company
or an associated company within the Commonwealth but outside the said State
does not exceed fifty per centum (or such other percentage as the Minister
approves) of the weight of locally used ore consumed used or otherwise applied
in the said State for that year.
Secondary processing proposals 2
34. (1)
The Company shall from time to time renew the
investigations already commenced by it as to the feasibility of establishing
within the said State a plant for secondary processing of iron ore from the
mineral lease and will by the end of Year 10 (or within such extended time as
the Minister may allow) submit to the Minister detailed proposals for the
establishment of such a plant on the following basis —
(a) the plant to be of such design and dimensions
that it will progressively have the capacity to process
annually —
(i) by the end of Year 12 — not
less than five hundred thousand tonnes of iron ore;
(ii) by the end of Year 13 — not
less than one million tonnes of iron ore;
(iii) by the end of Year 16 — not
less than two million tonnes of iron ore;
(b) the capital cost involved to be not less than
forty million dollars unless the Company utilises a less expensive but at
least equally satisfactory method of secondary processing of iron ore than any
at present known to either party.
(2) If such detailed
proposals are submitted by the Company to the Minister within the time
mentioned in subclause (1) of this Clause the Minister shall within two
months of the receipt thereof give to the Company notice either of his
approval of the said proposals or of any objections he has or alterations he
desires thereto. In the latter case the Minister shall afford the Company an
opportunity to consult with and to submit new or further proposals to him and
if within thirty days after receipt of such notice agreement is not reached as
to the said proposals the Company may within a further period of thirty days
by notice to the State elect to refer to arbitration as hereinafter provided
any question as to the reasonableness of the Minister’s decision. If by
the award on the arbitration the question is decided in favour of the Company
the Minister shall be deemed to have approved of the said proposals as
submitted by the Company.
(3) If such detailed
proposals are not submitted by the Company to the Minister within the time
mentioned in subclause (1) of this Clause or if such proposals are so
submitted but are not approved by the Minister within two months of receipt
thereof (or within such further time as the Minister may desire to take before
delivering his decision) then the following provisions shall
apply —
(a) subject as provided in paragraph (c) of
this subclause the Company shall not after the end of Year 12 export iron ore
hereunder at an annual rate in excess of five million tonnes unless prior to
Year 10 the Minister has already approved of the Company entering into a
contract or contracts for the export of iron ore at an annual rate in excess
of five million tonnes; and
(b) if by the end of Year 13 the State gives to
the Company notice that some other company or party (hereinafter referred to
as “the Third Party”) has agreed to establish within the said
State a plant for secondary processing of iron ore from the mineral lease on
terms not more favourable on the whole to the Third Party than those proposed
by or available to the Company hereunder then this Agreement shall (subject as
hereinafter provided) cease and determine at the end of Year 21 or at the date
on which the Third Party shall substantially establish the said plant in
accordance with terms agreed between the State and the Third Party whichever
date is the later;
(c) if by the end of Year 13 the State has not
given to the Company a notice pursuant to the provisions of paragraph (b)
of this subclause then the provisions of paragraph (a) of this subclause
shall as from the end of Year 13 cease to operate and have effect.
Submission of proposals after Year 10 2
(4) Notwithstanding
the provisions of subclause (3) of this Clause the Company may
nevertheless at any time after the end of Year 10 submit proposals for the
establishment of the said plant if at the time it has not received a notice
pursuant to the provisions of paragraph (b) of subclause (3) of this
Clause and the provisions of subclause (2) of this Clause shall apply to
such proposals but the Company may not submit such proposals between the end
of Year 10 and the end of Year 21 if during that time it receives notice from
the Minister that he is negotiating with the Third Party and such notice is
not subsequently withdrawn. In the event of negotiations between the Minister
and the Third Party being terminated the Minister shall withdraw such notice.
(5) Notwithstanding
anything contained herein the failure by the Company to submit proposals to
the Minister a pursuant to subclause (1) of this Clause or the
non-approval by the Minister of any proposals so submitted shall not
constitute a breach of this Agreement by the Company but subject as herein
otherwise provided the only consequence arising from such failure or
non-approval will be that set out in subclause (3) of this Clause.
Provisions applying to proposals 2
(6) Subject as in this
Clause otherwise provided the provisions of Clauses 7, 8 and 10 shall
apply mutatis mutandis to detailed proposals made pursuant to this Clause.
Iron and steel industry 2
35. (1) The Company
shall in due course during the continuance of this Agreement investigate the
feasibility of establishing an integrated iron and steel industry within the
said State and shall by the end of Year 20 (or within such extended time as
the Minister may allow) submit to the Minister detailed
proposals —
EITHER for the establishment of such an industry, to be capable ultimately of
producing 250 000 tonnes of steel per annum on the following
basis —
(a) the extent dimension design and construction
thereof to be such that will permit the same having the capacity to produce
progressively annually —
(i) by the end of Year 25 — not
less than 125 000 tonnes of processed products consisting of pig iron,
foundry iron and steel of which not less than 62 500 tonnes shall be
steel;
(ii) by the end of Year 29 — not
less than 250 000 tonnes of processed products of which not less than
125 000 tonnes shall be steel;
(iii) by the end of Year 31 — not
less than 250 000 tonnes of processed products which shall be comprised
entirely of steel;
(b) the capital cost involved to be not less than
fifty million dollars unless the Company utilises a less expensive but at
least equally satisfactory method of production than any at present known to
either of the parties
OR for joining with an existing or proposed iron and steel making venture
within the said State to produce steel pursuant to an agreement with the State
on a basis that the Company’s obligations in that venture are not less
than the Company’s obligations referred to in the first alternative in
this subclause.
(2) If before the end
of Year 20 such proposals are submitted by the Company to the Minister the
State shall within two months of the receipt thereof give to the Company
notice either of its approval of the proposals (which approval shall not be
unreasonably withheld) or of any objections raised or alterations desired
thereto and in the latter case shall afford to the Company an opportunity to
consult with and to submit new proposals to the Minister. If within thirty
days of receipt of such notice agreement is not reached as to the proposals
the Company may within a further period of thirty days elect by notice to the
State to refer to arbitration as hereinafter provided any dispute as to the
reasonableness of the Minister’s decision. If by the award on
arbitration the question is decided in favour of the Company the Minister
shall be deemed to have then approved the proposals of the Company.
(3) If such proposals
are not submitted by the Company to the Minister before the end of Year 20 or
if such proposals are so submitted but are not approved by the Minister within
two months after receipt thereof then if by the end of Year 23 (or extended
date if any) the State gives to the Company notice that some other company or
party (hereinafter referred to as “the Fourth Party”) has agreed
to establish either —
(a) a plant for secondary processing within the
said State of iron ore from the mineral lease (if proposals by the Company for
the establishment of such a plant have not previously been submitted to and
approved by the Minister) on terms not more favourable on the whole to the
Fourth Party than those proposed by or available to the Company hereunder; or
(b) an integrated iron and steel industry within
the said State (using iron ore from the mineral lease) on terms not more
favourable on the whole to the Fourth Party than those proposed by or
available to the Company hereunder;
then and in either case the Minister shall forthwith notify the Company in
reasonable detail of the proposals of the Fourth Party and allow the Company a
reasonable opportunity to submit counter proposals or to enter into
negotiations with such Fourth Party with a view to participating in the
proposed activities of such Fourth Party. If at the end of twelve months from
the date of the Minister’s notification the Minister is not satisfied
with such counter proposals (which counter proposals are not arbitrable
hereunder) or with the outcome of such negotiations then the Minister may,
either require the Company to supply to such Fourth Party quantities of iron
ore in addition to but otherwise in accordance with the provisions of
Clause 38 but not exceeding a total of ten million tonnes in any year
(which amount is inclusive of the Company’s obligations to the Fourth
Party under Clause 38) or, notify the Company that this Agreement will
determine whereupon this Agreement shall cease and
determine —
(i) in the case of the Fourth Party proceeding
with secondary processing then when the Fourth Party has substantially
established the plant referred to in paragraph (a) of this subclause;
(ii) in the case of the Fourth Party proceeding
with an integrated iron and steel industry then (if proposals by the Company
for a plant for secondary processing have previously been submitted to and
approved by the Minister) at the end of Year 30 or at the date by which the
Fourth Party has substantially established that industry whichever is the
later; and
(iii) in the case of the Fourth Party proceeding
with an integrated iron and steel industry then (if proposals by the Company
for a plant for secondary processing have not previously been submitted to and
approved by the Minister) at the date by which the Fourth Party has
substantially established that industry.
(4) If by the end of
Year 23 (or extended date if any) the State has not given to the Company any
such notice as is referred to in subclause (3) of this Clause that
subclause shall thereupon cease to have effect except that (to the extent they
can from time to time operate) the provisions of subclause (3) of this
Clause shall revive (for a period of three years) at the end of Year 33 and at
the end of each successive period of thirteen years thereafter in such a way
that each year referred to in that subclause shall be read as the year
thirteen years or (as the case may require) a multiple of thirteen years
thereafter (subject to extensions of dates if any as aforesaid).
(5) The Company may at
any time after the end of Year 20 submit proposals for an integrated iron and
steel industry if at that time it has not received any notice under
subclause (3) of this Clause and the provisions of subclauses (1) and (2)
of this Clause shall apply to such proposals.
(6) Except as provided
in subclause (3) of this Clause this Agreement shall continue in
operation subject to compliance by the Company with its obligations hereunder
and with such proposals by the Company as are approved by the Minister.
(7) Notwithstanding
anything contained herein no failure by the Company to submit to the Minister
proposals as aforesaid nor any non-approval by the Minister of such proposals
shall constitute a breach of this Agreement by the Company and the only
consequences arising from such failure, or non-approval (as the case may be)
will be those set out in subclause (3) of this clause.
36. For the purposes of this Agreement the Third
Party or the Fourth Party shall be deemed to have substantially established a
plant for secondary processing or an integrated iron and steel industry when
and not before that party’s secondary processing plant has the capacity
to treat not less than two million tonnes of iron ore per annum or (as the
case may be) that party’s integrated iron and steel industry has the
capacity to produce 250 000 tonnes of steel per annum and in either case
the Minister has notified the Company that he is satisfied that that party
will proceed bona fide to operate its plant or industry.
Terms “not more favourable” 2
37. In deciding whether for the purposes of
Clause 34 or Clause 35 the terms granted by the State to some
company or party are not more favourable on the whole than those proposed by
or available to the Company regard shall be had inter alia to the quantities
and grades of iron ore available to the Company and to all the obligations
which would have continued to devolve on the Company had it proceeded with
secondary processing or (as the case may be) iron and steel manufacture or
steel manufacture including their obligations to mine transport by rail and
ship iron ore and restrictions relating thereto to pay rent additional rental
and royalty and (in the case of secondary processing by a third party pursuant
to Clause 34) to termination of rights as provided in Clause 35 if
proposals for iron and steel manufacture or steel manufacture are not brought
to fruition and also to the need for the other company or party to pay on a
fair and reasonable basis for or for the use of property accruing to the State
and made available by the State to that company or party but also to any
additional or equivalent obligations to the State assumed by that company or
party PROVIDED HOWEVER that if after the end of Year 33 the Minister gives
notice to the Company under Clause 35 that another company or party has
agreed to establish either secondary processing or an integrated iron and
steel industry but not both then the latter company or party need not have any
obligation to establish both.
Supply of iron ore to others 2
38. The Company covenants and agrees with the
State 6 that should the company remain in possession of the mineral lease for
any period during which the Third Party or the Fourth Party is operating or is
ready to operate a plant for secondary processing of iron ore or an integrated
iron and steel industry then during such period (whenever commencing) the
Company shall supply the Third Party or the Fourth Party or both (as the case
may be) with iron ore (not exceeding in all five million tonnes per annum
unless otherwise agreed) —
(i) at such rates and grades as may reasonably be
available and be required;
(ii) at such points on the Company’s
railway;
(iii) at such price; and
(iv) on such other terms and conditions
as may be agreed between the Company and the State or failing agreement
determined by arbitration PROVIDED ALWAYS that the price shall unless
otherwise agreed be equivalent to the total cost of production and transport
incurred by the Company (including reasonable allowance for depreciation and
all overhead expenses) plus ten per centum of such total cost.
Protection for current contracts 2
39. If this Agreement should cease and determine
pursuant to the provisions of Clause 34 or Clause 35 and if at the
date of such cessation or determination the Company is under an obligation
arising under a current contract or contracts with some other party with the
consent of the Minister to supply iron ore to that other party the Company may
give notice of that fact to the Minister and request the State to ensure that
the Third Party or the Fourth Party (as the case may be) takes over and
assumes liability for the due and punctual discharge of the Company’s
said obligations or alternatively agrees to supply iron ore to enable it to
discharge its said obligations and the State shall forthwith upon receipt of
such notice or as soon as possible or practicable thereafter do or cause to be
done all such acts matters or things as may be fair and reasonable in the
circumstances to comply with the Company’s said request.
40. This Agreement is deemed to be made subject to
any delays in the performance of the obligations hereunder and to the
temporary suspension of the continuing obligations hereunder that may be
caused by or arise from circumstances beyond the 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
floods storms tempest washaways fire (unless caused by the actual fault or
privity of the Company) act of war act of public enemies riots civil
commotions strikes lockouts stoppages restraint of labour or other similar
acts (whether partial or general) shortages of labour or essential materials
reasonable failure to secure contractors delays of contractors and inability
profitably to sell iron ore products or 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 the said causes
shall promptly give notice to the other party of the event or events and shall
minimise the effect of such causes as soon as possible after their occurrence.
41. (1) Subject to the
provisions of this Clause the Company may at any time —
(a) assign mortgage charge sublet or dispose of to
an associated company as of right or to any other company or person with the
consent of the Minister the whole or any part of the rights of the Company
hereunder (including its rights to or as the holder of any lease licence
easement grant or other title) and of the obligations of the Company
hereunder; and
(b) appoint as of right an associated company or
with the consent of the Minister any other company or person to exercise all
or any of the powers functions and authorities that are or may be conferred on
the Company hereunder:
subject however to the assignee or the appointee (as the case may be)
executing in favour of the State 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 the Company to be complied with observed or performed in regard to
the matter or matters the subject of such assignment mortgage charge
subletting disposition or appointment.
(2) Notwithstanding
anything contained in or anything done under or pursuant to subclause (1)
of this Clause the Company shall at 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 its part contained herein
and in any lease licence easement grant or other title the subject of an
assignment mortgage subletting or disposition or appointment under
subclause (1) of this Clause.
By-laws 2
42. The Governor in Executive Council may upon the
recommendation of the Company make alter and repeal by-laws for the purpose of
enabling the Company to fulfil its obligations under Clauses 23(5) and
24(2) and (unless and until the townsite concerned is declared a townsite
pursuant to Section 10 of the Land Act) under Clause 26(1)(a)(v)
upon terms and subject to conditions (including terms and conditions as to
user charging and limitation of the liability of the Company) consistent with
the provisions hereof. If at any time it appears that any by-law made
hereunder has as a result of altered circumstances become unreasonable or
inapplicable then the Company shall recommend to the Governor that he makes
such alteration or repeal thereof as the State may reasonably require or (in
the event of there being any dispute as to the reasonableness of such
requirement) as may be decided by arbitration as herein provided.
43. (1) In any of the
following events namely if the Company makes default which the State considers
material in the due performance or observance of any of the convenants or
obligations to the State herein or in any lease sublease licence or other
title or document granted or assigned under this Agreement on its part to be
performed or observed or if the Company abandons or repudiates its operations
under this Agreement and such default is not remedied or such operations
resumed within a period of one hundred and eighty (180) days after notice as
provided in subclause (2) of this Clause is given by the State
(or — if the alleged default abandonment or repudiation is
contested by the Company and within sixty (60) days after such notice is
submitted by the Company to arbitration — within a reasonable
time fixed by the arbitration award but not less than ninety (90) days after
the making of the arbitration award where the question is decided against the
Company the arbitrator finding that there was a bona fide dispute and that the
Company had not been dilatory in pursuing the arbitration) or if the Company
goes into liquidation (other than a voluntary liquidation for the purpose of
reconstruction) then and in any of such events the State may by notice to the
Company determine this Agreement and the rights of the Company hereunder and
under any lease licence easement or right granted hereunder or pursuant hereto
shall thereupon determine.
(2) The notice to be
given by the State in terms of subclause (1) of this Clause shall specify
the nature of the default or other ground so entitling the State to exercise
such right of determination and where appropriate and known to the State the
party or parties responsible therefor and shall be given to the Company and
all such assignees mortgagees chargees and disponees for the time being of the
Company’s said rights to or in favour of whom or by whom an assignment
mortgage charge or disposition has been effected in terms of Clause 41
whose name and address for service of notice has previously been notified in
writing to the State by the Company or any such assignee mortgagee chargee or
disponee.
(3) The abandonment or
repudiation by or liquidation of the Company referred to in subclause (1)
of this Clause means the abandonment or repudiation by or the liquidation of
all of them the Company and all assignees and appointees who have executed and
are for the time being bound by a deed of covenant in favour of the State as
provided in Clause 41.
(4) If the default
referred to in subclause (1) of this Clause shall not have been remedied
after such notice 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 otherwise shall
have full power to enter upon lands occupied by the Company and to make use of
all plant machinery equipment and installations thereon) and the costs and
expenses incurred by the State in remedying or causing to be remedied such
default shall be a debt payable by the Company to the State on demand.
Effect of cessation and determination of Agreement 2
44. (1) Upon the
cessation or determination of this Agreement —
(a) except as otherwise agreed by the Minister the
rights of the Company and those of any assignee or mortgagee of the Company
under this Agreement or under the mineral lease or any other lease, licence,
easement or right granted hereunder or pursuant hereto and all the right title
and interest of the Company and of any such assignee or mortgagee in and to
any land wherever situated granted to the Company or to such assignee for any
other of the purposes of this Agreement shall thereupon cease and determine,
but without prejudice to the liability of either of the parties in respect of
any antecedent breach or default under this Agreement or in respect of any
indemnity given hereunder; and
(b) the Company shall forthwith pay to the State
all monies that may then have been payable or accrued due hereunder; and
(c) except as provided in this Clause or otherwise
provided in this Agreement neither of the parties shall have any claim against
the other of them in respect to any matter or thing contained in or arising
out of this Agreement.
(2) Subject to the
provisions of subclause (3) of this Clause upon the cessation or
determination of this Agreement all buildings erections and other improvements
erected on any land then occupied by the Company or any associated company or
assignee of the Company under the mineral lease or any other lease, licence,
easement, right or grant made hereunder for the purpose hereof (including the
wagons and other facilities and appurtenances provided by the Company pursuant
to Clause 20 and including also the Company’s wharf) shall become
and remain the absolute property of the State without the payment of any
compensation or consideration to the Company or any other party and freed and
discharged from all mortgages and other encumbrances and the Company shall do
and execute all such deeds documents and other acts matters and things
(including surrenders) as the State may reasonably require to give effect to
the provisions of this subclause.
(3) In the event of
the Company immediately prior to the cessation or determination of this
Agreement or subsequently thereto desiring to remove any of its electricity
generating plant and transmission system or any of its other fixed or movable
plant and equipment from any part of the land occupied by it at the date of
such cessation or determination the Company shall give to the State notice of
such desire and thereby shall grant to the State the right or option
exercisable within three months thereafter to purchase in situ the said
electricity generating plant transmission system and other fixed or movable
plant and equipment or any part thereof at a fair valuation to be agreed
between the parties or failing agreement determined by arbitration hereunder.
45. The Company shall indemnify and keep
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 Company
pursuant to this Agreement or relating to its operations or arising out of or
in connection with the construction maintenance operation or use by the
Company or its servants agents contractors appointees or assignees of the
works or services constructed maintained operated or used by it under this
Agreement or the plant apparatus or equipment installed in connection
therewith.
Variation 2
46. (1) The parties
may from time to time by agreement in writing add to substitute for cancel or
vary all or any of the provisions of this Agreement or of any lease licence
easement or right granted hereunder or pursuant hereto for the purpose of more
efficiently or satisfactorily implementing or facilitating any of the objects
of this Agreement.
(2) Where in the
opinion of the Minister an agreement made pursuant to subclause (1) of
this Clause constitutes a material or substantial alteration of the rights or
obligations of either party, the agreement shall contain a declaration to that
effect and the Minister shall cause that agreement to be laid upon the Table
of each House of Parliament within the twelve sitting days next following its
execution.
(3) Either House may,
within twelve (12) sitting days of that House after the agreement has been
laid before it, pass a resolution disallowing the agreement, but if, after the
last day on which the agreement might have been disallowed neither House has
passed such a resolution the agreement shall have effect from and after that
last day.
Power to extend periods 2
47. The Minister may at the request of the Company
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.
Notices 2
48. Any notice consent or other writing authorised
by or required by this Agreement to be given or sent shall be deemed to have
been duly given or sent by the State if signed by the Minister or by a senior
officer of the Public Service of the said State acting by the direction of the
Minister and forwarded by prepaid post to the Company at its registered office
for the time being in the said State and by the Company if executed by the
Company or signed for and on behalf of the Company by any person or persons
authorised by the Company in that behalf or by its solicitors (which
solicitors have been notified to the State from time to time) and forwarded by
prepaid post to the Minister at his office in Perth in the said State and
every such notice consent or writing shall be deemed to have been duly given
or sent on the day on which it would be delivered to the addressee in the
ordinary course of post.
49. (1) The State
shall exempt from any stamp duty which but for the operation of this Clause
would or might be chargeable thereon —
(a) this Agreement;
(b) any instrument executed by the State pursuant
to this Agreement granting to or in favour of the Company or any associated
company or permitted assignee of the Company any tenement lease easement
licence or other right or interest;
(c) any assignment sublease or disposition (other
than by way of mortgage or charge) and any appointment to or in favour of the
Company or an associated company of any interest right obligation power
function or authority made pursuant to the provisions of Clause 41.
(2) This Clause does
not apply to any instrument or other document executed or made more than seven
years after the date of the execution hereof.
50. (1) Any dispute or
difference between the parties arising out of or in connection with this
Agreement the construction of this Agreement or as to the rights duties or
liabilities of either party hereunder or as to any matter to be agreed upon
between the parties under this Agreement shall in default of agreement between
the parties and in the absence of any provision in this Agreement to the
contrary be referred to the arbitration of two arbitrators one to be appointed
by each party the arbitrators to appoint their umpire before proceeding in the
reference and every such arbitration shall be conducted in accordance with the
provisions of the Arbitration Act 1895 .
(2) Except where
proposals are pursuant to the provisions of this Agreement referred to
arbitration, the provisions of this Clause shall not apply to any case where
the State the Minister or any other Minister in the Government of the said
State is by this Agreement given either expressly or impliedly a discretionary
power.
(3) The arbitrators or
umpire (as the case may be) of any submission to arbitration hereunder are
hereby empowered upon the application of either of the parties to grant in the
name of the Minister any interim extension of any period or variation 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 hereunder and an award may in the name of the Minister grant any
further extension or variation for that purpose.
Applicable Law 2
51. This Agreement shall be interpreted according
to the law for the time being in force in the said State.
WESTERN AUSTRALIA
Mining Act 1904
MINERAL LEASE
LEASE NO. MINERAL FIELD
ELIZABETH THE SECOND, by the Grace of God of the United Kingdom, Australia and
Her other Realms and Territories Queen, Head of the Commonwealth, Defender of
the Faith. TO ALL TO WHOM these presents shall come,
GREETING:
KNOW YE that —
WHEREAS by an Agreement made the
day of 1973 between the Honourable JOHN
TREZISE TONKIN, MLA the Premier of the State of Western Australia acting for
and on behalf of the said State and its instrumentalities for the time being
(hereinafter called “the State”) of the one part and NORTHERN
MINING CORPORATION N.L. a company incorporated under the Companies
Act 1961 of the State of Victoria and having its registered office in the
State of Western Australia at
(in the said Agreement and herein called “the Company” which
expression shall include the successors and permitted assigns and appointees
of the Company) of the other part (being the agreement referred to in
section 2 of the Iron Ore (Murchison) Agreement Authorization Act 1973 )
the State agreed to cause to be granted to the Company a mineral lease or
leases.
AND WHEREAS the said Agreement was executed by the State pursuant to the
authority granted by the Iron Ore (Murchison) Agreement Authorization Act
1973 and the same operates and takes effect as provided in the said
Act.
NOW WE in consideration of the rents and royalties reserved by and of the
provisions of the said Agreement and in pursuance of the said Act DO BY THESE
PRESENTS GRANT AND DEMISE unto the Company subject to the said provisions ALL
THOSE pieces and parcels of land situated in the
Gold Field containing approximately hectares (subject to such
corrections as may be necessary to accord with the survey when made) and
particularly described and delineated on the plan in the Schedule hereto and
all those mines, veins, seams, lodes and deposits of iron ore in on or under
the said land (hereinafter called “the said mine”) together with
all rights, liberties, easements, advantages and appurtenances thereto
belonging or appertaining to a lessee of a mineral lease under the Mining
Act 1904 , including all amendments thereof for the time being in force
and all regulations made thereunder for the time being in force (which Act and
regulations are hereinafter referred to as “the Mining Act”) or to
which the Company is entitled under the said Agreement TO HOLD the said land
and mine and all and singular the premises hereby demised for the full term of
twenty-one years from the day of 19 with the
right to renew the same from time to time for further periods each of
twenty-one years as provided in but subject to the said Agreement for the
purposes of the said Agreement but upon and subject to the terms covenants and
conditions set out in the said Agreement and to the Mining Act (as modified by
the said Agreement) YIELDING and paying therefor the rent and royalties as set
out in the said Agreement. AND WE do hereby declare that this lease is subject
to the observance and performance by the Company of the following covenants
and conditions, that is to say —
(1) that the Company shall and will use the land
bona fide exclusively for the purposes of the said Agreement;
(2) subject to the provisions of the said
Agreement the Company shall and will observe, perform, and carry out the
provisions of the Mines Regulation Act 1946 , and all amendments thereof for
the time being in force and the regulations for the time being in force made
thereunder and (subject to and as modified by the said Agreement) those of the
Mining Act in so far as the same affect or have reference to this lease; and
(3) that the Company shall if required by the
Minister for Mines supply information of a geological nature relating to the
Company’s operations on the demised land.
PROVIDED THAT this lease and any renewal thereof shall not be determined or
forfeited otherwise than under and in accordance with the provisions of the
said Agreement.
PROVIDED FURTHER that all petroleum on or below the surface of the demised
land is reserved to Her Majesty with the right to Her Majesty or any person
claiming under her or lawfully authorised in that behalf to have access to the
demised land for the purpose of searching for and for the operations of
obtaining petroleum in any part of the land under the provisions of the
Petroleum Act 1967.
IN WITNESS whereof we have caused our Minister for Mines to affix his seal and
set his hand hereto at Perth in our said State of Western Australia and the
common seal of the Company has been affixed hereto this
day of 19
THE SCHEDULE ABOVE REFERRED TO
In WITNESS whereof this Agreement has been executed the day and year first
hereinbefore written.
|
SIGNED by the said THE |
|
MINISTER FOR DEVELOPMENT
AND DECENTRALISATION.
MINISTER FOR MINES.
|
The common seal of NORTHERN |
|
DIRECTOR.
SECRETARY.
