Western Australian Consolidated Acts Western Australian Consolidated Acts[s. 2]
[Heading amended by No. 19 of 2010
s. 4.]
THIS AGREEMENT is made this 14th day of June 1990
BETWEEN:
THE HONOURABLE CARMEN MARY LAWRENCE, B.Psych., Ph.D., M.L.A., 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
HAMERSLEY IRON PTY. LIMITED a company incorporated in Victoria and having its
principal office in the State of Western Australia at 191 St. George’s
Terrace, Perth (hereinafter called “the Company” in which term
shall be included its successors and assigns) of the other part.
WHEREAS:
(a) the State and the Company are the parties to
the agreement dated the 30th day of July, 1963 which agreement was approved by
and is scheduled to the Iron Ore (Hamersley Range) Agreement Act 1963 ;
(b) the said agreement has been varied by the
following agreements made between the parties hereto —
(i)
an agreement dated the 27th day of October, 1964 which
agreement was approved by and is scheduled to the
Iron Ore (Hamersley Range) Agreement Act Amendment Act 1964 ;
(ii)
an agreement dated the 8th day of October, 1968 which
agreement was approved by and is scheduled to the
Iron Ore (Hamersley Range) Agreement Act Amendment Act 1968 ;
(iii)
an agreement dated the 9th day of May, 1979 which
agreement was approved by and is scheduled to the
Iron Ore (Hamersley Range) Agreement Act Amendment Act 1979 ;
(iv)
an agreement dated the 26th day of April, 1982 which
agreement was approved by and is scheduled to the Iron Ore (Hamersley Range)
Agreement Amendment Act 1982 ;
(v)
an agreement dated the 28th day of May, 1987 which
agreement was ratified by and is scheduled to the Iron Ore (Hamersley Range)
Agreement Amendment Act 1987 ; and
(vi)
an agreement dated the 27th day of October, 1987 which
agreement was ratified by and is scheduled to the Iron Ore (Hamersley Range)
Agreement Act (No. 2) 1987 ,
and as so varied is referred to in this Agreement
as “the Principal Agreement”;
(c) the agreement dated the 8th day of October,
1968 referred to in paragraph (ii) of recital (b) hereof has been varied
by the following agreements made between the State and
the Company —
(i)
an agreement dated the 10th day of March, 1972 which
agreement was approved by and is scheduled to the
Iron Ore (Hamersley Range) Agreement Act Amendment Act 1972 ;
(ii)
an agreement dated the 5th day of October, 1976 which
agreement was approved by and is scheduled to the
Iron Ore (Hamersley Range) Agreement Act Amendment Act 1976 ;
(iii)
the agreement dated the 26th day of April, 1982 referred
to in paragraph (iv) of recital (b) hereof;
(iv)
the agreement dated the 28th day of May, 1987 referred to
in paragraph (v) of recital (b) hereof; and
(v)
the agreement dated the 27th day of October, 1987
referred to in paragraph (vi) of recital (b) hereof,
and as so varied is referred to in this Agreement
as “the Paraburdoo Agreement”; and
(d) the parties wish to vary the Principal
Agreement and the Paraburdoo Agreement.
NOW THIS DEED WITNESSETH —
1. Subject to the context the words and
expressions used in this Agreement have the same meanings as they have in and
for the purpose of the Principal Agreement and the Paraburdoo Agreement
respectively.
2. The State shall introduce and sponsor a Bill in
the Parliament of Western Australia to ratify this Agreement and endeavour to
secure its passage as an Act.
3. The subsequent clauses of this Agreement shall
not operate unless and until the Bill to ratify this Agreement referred to in
clause 2 hereof is passed as an Act before the 30th day of June, 1990 or
such later date if any as the parties hereto may agree.
4. The Principal Agreement is hereby varied as
follows —
(1)
Clause 1 —
(a) by
deleting the definitions of “direct shipping ore”, “fine
ore”, “fines”, “f.o.b. revenue” and “iron
ore concentrates”;
(b) by
inserting, in the appropriate alphabetical positions, the following
definitions —
“ “agreed
or determined” means agreed between the Company and the Minister or,
failing agreement within three months of the Minister giving notice to
the Company that he requires the value of a quantity of iron ore to be
agreed or determined, as determined by the Minister (following, if requested
by the Company, consultation with the Company and its consultants in regard
thereto) and in agreeing or determining a fair and reasonable market value of
such iron ore assessed at an arm’s length basis the Company and/or the
Minister as the case may be shall have regard to the prices for that type of
iron ore prevailing at the time the price for such iron ore was agreed between
the Company and the purchaser in relation to the type of sale and the market
into which such iron ore was sold and where prices beyond the deemed f.o.b.
point are being considered the deductions mentioned in the definition of
f.o.b. value;
“deemed f.o.b.
point” means on ship at the Company’s wharf;
“deemed f.o.b.
value” means an agreed or determined value of the iron ore at the time
the iron ore becomes liable to royalty established on the basis that the
iron ore was sold f.o.b. at the deemed f.o.b. point;
“fine ore”
means iron ore (not being iron ore concentration products) which is nominally
sized minus six millimetres;
“f.o.b.
value” means —
(i)
in the case of iron ore shipped and sold by the Company,
the price which is payable for the iron ore by the purchaser thereof to
the Company or an associated company or, where the Minister considers,
following advice from the appropriate Government department, that the price
payable in respect of the iron ore does not represent a fair and reasonable
market value for that type of iron ore assessed at an arm’s length
basis, such amount as is agreed or determined as representing such a fair and
reasonable market value, less all export duties and export taxes payable to
the Commonwealth on the export of the iron ore and all costs and charges
properly incurred and payable by the Company from the time the iron ore shall
be placed on ship at the Company’s wharf to the time the same is
delivered and accepted by the purchaser including —
(1) ocean freight;
(2) marine insurance;
(3) port and handling
charges at the port of discharge;
(4) all costs properly
incurred in delivering the iron ore from port of discharge to the smelter and
evidenced by relevant invoices;
(5) all weighing
sampling assaying inspection and representation costs;
(6) all shipping
agency charges after loading on and departure of ship from the Company’s
wharf;
(7) all import taxes
by the country of the port of discharge; and
(8) such other costs
and charges as the Minister may in his discretion consider reasonable in
respect of any shipment or sale;
(ii)
in all other cases, the deemed f.o.b. value.
For the purpose of subparagraph (i) of this
definition, it is acknowledged that the consideration payable in an
arm’s length transaction for iron ore sold solely for testing purposes
may be less than the fair and reasonable market value for that iron ore and in
this circumstance where the Minister in his discretion is satisfied such
consideration represents the entire consideration payable, the Minister shall
be taken to be satisfied that such entire consideration represents the fair
and reasonable market value;
“iron ore”
includes iron ore concentration products;
“iron ore
concentration products” means saleable products from iron ore which
has —
(i)
been treated in the Heavy Medium Drum Plants, the Heavy
Medium Cyclone Plant or the Wet High Intensity Magnetic Separation Plant of
the Mount Tom Price concentration plant; or
(ii)
passed through the primary wet screens of the Mount Tom
Price concentration plant with the intention that it would be treated in the
said Heavy Medium Drum Plants, Heavy Medium Cyclone Plant or Wet High
Intensity Magnetic Separation Plant but which was not able to be so treated in
the normal course of operating practice because of malfunction in any of those
plants or maintenance or repair of or operational plant surges of the feed to
any of those plants.
The Minister may
approve other iron ore upgrading plants of the Company for the purpose of this
definition;
“lump ore”
means iron ore (not being iron ore concentration products) which is nominally
sized plus six millimetres minus thirty millimetres;”;
(c) in
the definition of “associated company”, by deleting
“section 6 of the Companies Act 1961 ” and substituting the
following —
“section 7 of the Companies (Western
Australia) Code ”;
(d) in
the definition of “metallised agglomerates”, by deleting
“iron ore concentrates” and substituting the
following —
“iron ore concentration products”;
(e) in
the definition of “mineral lease”, by inserting after
“10F” the following —
“or 10I”.
(2)
Clause 9(1)(b) —
in the proviso, by deleting
“concentrates” and substituting the following —
“concentration products”.
(3)
Clause 10(2)(j) —
by deleting paragraph (j) of
clause 10(2) and substituting the following paragraph —
“(j) pay to the
State royalty on all iron ore from the mineral lease (other than iron ore
shipped solely for testing purposes and in respect of which no purchase price
or other consideration is payable or due) as follows —
(i)
on lump ore and on fine ore where such fine ore is not
sold or shipped separately as such at the rate of 7.5% of the f.o.b. value;
(ii)
on fine ore sold or shipped separately as such at the
rate of 3.75% of the f.o.b. value;
(iii)
on iron ore concentration products at the rate of 3.25%
of the f.o.b. value;
(iv)
on all other iron ore of whatever kind at the rate of
7.5% of the f.o.b. value.
Where iron ore concentration products are 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 concentration products so
produced being equal to the proportion that the amount of iron in the iron ore
from the mineral lease used in the production of
those iron ore concentration 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;”.
(4)
Clause 10(2)(k) —
(a) by
deleting “or iron ore concentrates the subject of royalty hereunder and
shipped sold” and substituting the following —
“(and in respect of
iron ore concentration products specifying whether they fall within
paragraph (i) or (ii) of the definition of iron
ore concentration products) the subject of royalty hereunder and shipped sold
transferred or otherwise disposed of”;
(b) by
deleting “of iron ore concentrates produced or iron ore used and in
respect of all iron ore shipped or sold” and substituting the
following —
“thereof or if the f.o.b. value is not then
finally calculated, agreed or determined”;
(c) by
inserting after “of such iron ore” the
following —
“or on the basis of estimates as agreed or
determined”;
(d) by
deleting “f.o.b. revenue realised in respect of the shipments shall have
been ascertained” and substituting the following —
“f.o.b. value shall have been finally
calculated, agreed or determined”.
(5)
Clause 10(2)(n) —
(a) by
inserting after “the Company” the following —
“including
contracts”;
(b)
deleting “f.o.b. revenue payable in respect of any shipment of iron ore
hereunder the Company will take reasonable steps” and substituting the
following —
“f.o.b. value in respect of any shipment
sale transfer or other disposal or use or production of iron ore hereunder
the Company will take reasonable steps (i) to provide the Minister with
current prices for iron ore and other details and information that may be
required by the Minister for the purpose of agreeing or determining the f.o.b.
value and (ii)”;
(c) by
deleting “hereunder; and” and substituting the following-
“hereunder.”.
(6) By deleting
clause 10(2)(o).
(7) By inserting after
clause 10H the following clause —
Brockman No. 2 Detritals Deposit
“10I. (1)
Notwithstanding the provisions of the Mining Act or the
Mining Act 1978 the Company may on or before the 1st day of October, 1990
or such later date as the parties may agree apply to the Minister for Mines
for inclusion in the mineral lease of such of the land coloured red on the
plan marked ‘D’ (initialled by or on behalf of the parties hereto
for the purpose of identification) as the Company at the time of such
application holds under exploration licences granted under the
Mining Act 1978 and the Minister for Mines shall, subject to the Company
surrendering the lands so applied for out of the exploration licences include
the land so applied for (hereinafter called “the Brockman No. 2
Detritals Deposit”) in the mineral lease by endorsement on the
mineral lease subject to such of the conditions of the surrendered exploration
licences as the Minister for Mines determines but otherwise subject to the
same terms covenants and conditions as apply to the mineral lease (with such
apportionment of rents as is necessary) and notwithstanding that the survey of
the Brockman No. 2 Detritals Deposit has not been completed but subject
to correction to accord with the survey when completed at the Company’s
expense.
(2) On or before the
1st day of October, 1990 (or thereafter within such extended time as the
Minister may allow as hereinafter provided) the Company shall submit to the
Minister to the fullest extent reasonably practicable its detailed proposals
(which proposals shall include plans where practicable and specifications
where reasonably required by the Minister) with respect to the mining of
iron ore from the Brockman No. 2 Detritals Deposit and the transportation
of iron ore mined to the Company’s Paraburdoo-Dampier railway which
proposals shall make provision for the necessary workforce and associated
population required to enable the Company to mine and recover iron ore from
the Brockman No. 2 Detritals Deposit and shall include the location,
area, layout, design, quantities, materials and time programme for the
commencement and completion of construction or the provision (as the case may
be) of each of the following matters, namely
(a) the
mining and recovery of iron ore including mining crushing screening handling
transport and storage of iron ore and plant facilities;
(b)
roads;
(c)
housing and accommodation for the persons engaged in the development and/or
mining of the Brockman No. 2 Detritals Deposit and associated activities
including the provision of utilities, services and associated facilities;
(d)
water supply;
(e)
power supply;
(f)
iron ore transportation;
(g)
airstrip and other airport facilities and services;
(h) any
other works, services or facilities desired by the Company;
(i)
use of local labour professional services manufacturers
suppliers contractors and materials and measures to be taken with respect to
the engagement and training of employees by the Company its agents and
contractors;
(j) any
leases licences or other tenures of land required from the State; and
(k) an
environmental management programme as to measures to be taken, in respect of
the Company’s activities at the Brockman No. 2 Detritals Deposit,
for rehabilitation and the protection and management of the environment.
(3) The proposals
pursuant to subclause (2) of this clause may with the approval of the
Minister or if so required by him be submitted separately and in any order as
to the matter or matters mentioned in one or more of paragraphs (a) to
(k) of that subclause.
(4) On receipt of
the said proposals the Minister shall subject to the
Environmental Protection Act 1986 —
(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 this clause 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 of other parties 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
PROVIDED ALWAYS that
where implementation of any proposals hereunder has been approved pursuant to
the Environmental Protection Act 1986 subject to conditions or
procedures, any approval or decision of the Minister under this clause shall
if the case so requires incorporate a requirement that the Company make such
alterations to the proposals as may be necessary to make them accord with
those conditions or procedures.
(5) The Minister shall
within two months after receipt of the said proposals or, if applicable,
within two months of service on him of an authority under section 45(7)
of the Environmental Protection Act 1986 give notice to the Company of
his decision in respect of the same.
(6) If the decision of
the Minister is as mentioned in either of paragraphs (b) or (c) of
subclause (4) of this clause the Minister shall afford the Company full
opportunity to consult with him and should it so desire to submit new or
revised proposals either generally or in respect to some particular matter.
(7) If the decision of
the Minister is as mentioned in either of paragraphs (b) or (c) of
subclause (4) of this clause and the Company considers that the decision
is unreasonable the Company within two months after receipt of the notice
mentioned in subclause (5) of this clause may elect to refer to
arbitration in the manner hereinafter provided the question of the
reasonableness of the decision
PROVIDED THAT any
requirement of the Minister pursuant to the proviso to subclause (4) of
this clause shall not be referable to arbitration hereunder.
(8) The Company may
withdraw its proposals submitted pursuant to subclause (2) of this clause
at any time before approval thereof or, where any decision of the Minister in
respect thereof is referred to arbitration, within 3 months after the
award by notice to the Minister that it shall not be proceeding with the
proposed mining of the Brockman No. 2 Detritals Deposit.
(9) The Company shall
implement the proposals as approved by the Minister or an award made on
arbitration (except where the proposals are withdrawn) as the case may be in
accordance with the terms thereof and in such implementation shall comply with
all requirements in connection with the protection of the environment that may
be made by the State or by any State agency or instrumentality or any local or
other authority or statutory body of the State pursuant to any Act
from time to time in force.
(10) (a)
If the Company at any time during the continuance
of this Agreement desires to significantly modify expand or otherwise vary its
activities at the Brockman No. 2 Detritals Deposit beyond those specified
in any proposals approved or determined under this clause it shall give notice
of such desire to the Minister and if required by the Minister within two
months of the giving of such notice shall submit to the Minister within such
period as the Minister may reasonably allow detailed proposals in respect of
all matters covered by such notice and such of the other matters mentioned in
paragraphs (a) to (k) of subclause (2) of this clause as the
Minister may require. The provisions of subclauses (3) to (8) of this
clause shall mutatis mutandis apply to detailed proposals submitted pursuant
to this subclause. The Company shall implement the proposals as approved by
the Minister or an award made on arbitration as the case may be in accordance
with the terms thereof and the provisions of subclause (9) of this
clause.
(b) If
the Minister does not require the Company to submit proposals under
paragraph (a) of this subclause the Company may, subject to compliance
with all applicable laws, proceed with the modification expansion or variation
of its activities the subject of the notice to the Minister under that
paragraph.
(11) (a)
The Company shall, in respect of the matters
referred to in paragraph (k) of subclause (2) of this clause and
which are the subject of proposals approved or determined under this clause
carry out a continuous programme including monitoring to ascertain the
effectiveness of the measures it is taking pursuant to such proposals for
rehabilitation and the protection and management of the environment and shall
as and when reasonably required by the Minister from time to time (but not
more frequently than once in every twelve months) submit to the Minister a
detailed report thereon.
(b)
Whenever as a result of its monitoring under paragraph (a) of this
subclause or otherwise information becomes available to the Company which in
order to more effectively rehabilitate, protect or manage the environment may
necessitate or could require any changes or additions to any proposals
approved or determined under this clause or require matters not addressed in
any such proposals to be addressed the Company shall forthwith notify the
Minister thereof and with such notification shall submit a detailed report
thereon.
(c) The
Minister may within two (2) months of the receipt of a detailed report
pursuant to paragraphs (a) or (b) of this subclause notify the Company
that he requires additional detailed proposals to be submitted in respect of
all or any of the matters the subject of the report and such other matters as
the Minister may require.
(d)
The Company shall within two months of the receipt of a notice given pursuant
to paragraph (c) of this subclause submit to the Minister additional
detailed proposals as required and the provisions of subclauses (4), (5),
(6), (7), (9) and (10) of this clause and this subclause shall mutatis
mutandis apply in respect of such proposals.
(12) The Company
shall, in respect of its activities at the Brockman No. 2 Detritals
Deposit in lieu of the provisions of clause 10(2)(i) of this
Agreement —
(a)
except in those cases where the Company can demonstrate it is impracticable so
to do, use labour available within Western Australia or if such labour is not
available then, except as aforesaid, use labour otherwise available within
Australia;
(b) as
far as it is reasonable and economically practicable so to do, use the
services of engineers surveyors architects and other professional consultants
experts and specialists, project managers, manufacturers, suppliers and
contractors resident and available within Western Australia or if such
services are not available within Western Australia then, as far as
practicable as aforesaid, use the services of such persons otherwise available
within Australia;
(c)
during design and when preparing specifications calling for tenders and
letting contracts for works materials plant equipment and supplies (which
shall at all times, except where it is impracticable so to do, use or be based
upon Australian Standards and Codes) ensure that Western Australian and
Australian suppliers manufacturers and contractors are given fair and
reasonable opportunity to tender or quote;
(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 or,
subject to the foregoing, give that consideration and where possible
preference to other Australian suppliers manufacturers and contractors;
(e) if
notwithstanding the foregoing provisions of this subclause a contract is to be
let or an order is to be placed with other than a Western Australian or
Australian supplier, manufacturer or contractor, give proper consideration and
where possible preference to tenders arrangements or proposals that include
Australian participation;
(f)
except as otherwise agreed by the Minister in every contract entered into with
a third party for the supply of services labour works materials plant
equipment and supplies require as a condition thereof that such third party
shall undertake the same obligations as are referred to in
paragraphs (a) — (e) of this subclause and shall report
to the Company concerning such third party’s implementation of that
condition;
(g)
submit a report to the Minister at monthly intervals or such longer period as
the Minister determines commencing from the 1st day of October, 1990
concerning its implementation of the provisions of this subclause together
with a copy of any report received by the Company pursuant to
paragraph (f) of this subclause during that month or longer period as the
case may be PROVIDED THAT the Minister may agree that any such reports need
not be provided in respect of contracts of such kind or value as the Minister
may from time to time determine; and
(h) keep
the Minister informed on a regular basis as determined by the Minister
from time to time or otherwise as required by the Minister during the currency
of this Agreement of any services (including any elements of the project
investigations design and management) and any works materials plant equipment
and supplies that it may be proposing to obtain from or have carried out or
permit to be obtained from or carried out outside Australia together with its
reasons therefor and shall as and when required by the Minister consult with
the Minister with respect thereto.
(13) The Company shall
be responsible for the provision at no cost to the State in Tom Price of
suitable accommodation if required for its employees and the dependants of its
employees and for other persons (and dependants of those persons) engaged in
the development and/or mining of the Brockman No. 2 Detritals Deposit and
associated activities.
(14) The Company shall
except as otherwise agreed by the Minister pay to the State or the appropriate
authority the capital cost of establishing and providing additional services
and facilities and associated equipment including sewerage and water supply
schemes, main drains, education, police and hospital services in Tom Price to
the extent to which those additional works and services are made necessary by
reason of the persons (and their dependants) engaged in the development and/or
mining of the Brockman No. 2 Detritals Deposit and associated activities
residing therein or by reason of the Company’s activities in relation to
the Brockman No. 2 Detritals Deposit or such proportion of any such cost
as may be agreed by the Minister taking into account the permanent or
temporary nature of the services or facilities. The additional services, works
and associated equipment referred to in this subclause shall be provided by
the State (or the State shall cause the same to be provided) to a standard
normally adopted by the State in providing new services works and associated
equipment in similar cases in comparable towns.
(15) The Company shall
confer with the Minister and the relevant local authority with a view to
assisting in the cost of providing at Tom Price appropriate community
recreation, civic, social and commercial amenities if required as a result of
the development and/or mining of the Brockman No. 2 Detritals Deposit and
associated activities.”.
5. The Paraburdoo Agreement is hereby varied as
follows —
(1)
Clause 6(2)(b) —
in the proviso, by deleting
“concentrates” in both cases where it occurs and substituting in
each place the following —
“concentration
products”.
(2)
Clause 7(4) —
(a) by
deleting “, (n) and (o)” and substituting the
following —
“and (n)”;
(b) in
paragraph (f), by deleting “therefrom:” and substituting the
following —
“therefrom.”;
(c) by
deleting paragraph (g).
IN WITNESS WHEREOF these presents have been executed the day and the year
first hereinbefore written.
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SIGNED by the said |
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J. M BERINSON
MINISTER FOR RESOURCES
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THE COMMON SEAL of |
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[C.S.] |
Director M. A. O’LEARY
Secretary G. BABON
[Tenth Schedule inserted by No. 32 of 1990
s.6.]
