Western Australian Consolidated Acts Western Australian Consolidated Acts[s. 2]
[Heading inserted by No. 45 of 2008
s. 6.]
THIS AGREEMENT is made this 28 th day of July 2008
BETWEEN
THE HONOURABLE ALAN JOHN CARPENTER MLA., Premier of the State of Western
Australia acting for and on behalf of the said State and its instrumentalities
from time to time ( State )
AND
ILUKA RESOURCES LIMITED ACN 008 675 018 of Level 23, 140 St Georges
Terrace, Perth, Western Australia ( Company ).
RECITALS
A. The State and the Company are now the parties
to the agreement dated 27 June 1975 which was ratified by and is
scheduled to the Mineral Sands (Eneabba) Agreement Act 1975 and which as
subsequently varied is referred to in this Agreement as the “ Principal
Agreement ” .
B. In order to prolong the economic life of its
Narngulu mineral processing facilities as the quantities of heavy mineral
concentrates produced from the Mining Lease diminish, the Company wishes, as
part of its operations under the Principal Agreement, to handle at such
facilities the separation into heavy minerals of heavy mineral concentrates
produced from its Jacinth-Ambrosia Project in South Australia and, with the
Minister’s consent, of heavy mineral concentrates produced by itself or
third parties from other projects within Australia or overseas.
C. The State for the purpose of promoting the
development of the heavy minerals sands industry generally in Western
Australia and employment opportunities generally in the Mid-West region of
Western Australia has agreed to vary the Principal Agreement upon the terms
and conditions set out in this Agreement to enable the Company to undertake
such new activities as part of its operations under the Principal Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. Subject to the context, the words and
expressions used in this Agreement have the same meanings respectively as they
have in and for the purpose of the Principal Agreement.
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 prior to 31 December 2008 or such later
date as the parties may agree.
3. (1) Clause 4
does not come into operation unless or until an Act passed in accordance with
clause 2 ratifies this Agreement.
(2) If by
31 December 2008, or such later date as may be agreed pursuant to
clause 2, clause 4 has not come into operation then unless the
parties hereto otherwise agree this Agreement shall cease and determine and
neither party hereto shall have any claim against the other party with respect
to any matter or thing arising out of done performed or omitted to be done or
performed under this Agreement.
(3) On clause 4
coming into operation all the provisions of this Agreement will operate and
take effect despite any enactment or other law.
4. The Principal Agreement is hereby varied as
follows:
(1) in clause 1:
(a)
by inserting the following new definitions in
their appropriate alphabetical position:
“Jacinth-Ambrosia Project” means the project, currently
being undertaken by the Company, in the Eucla Basin of South Australia for the
mining and concentration of rock soil or sand bearing heavy minerals;
“Narngulu mineral processing facilities” means the Meru
separation plant, the Narngulu synthetic rutile plant and associated
facilities constructed under this Agreement at Narngulu;
“Non-Mining Lease ore” means any rock soil or sand bearing
heavy minerals mined from areas other than within the Mining Lease and whether
within or outside Australia;
(b)
by deleting the definition of “heavy mineral
concentrates” and substituting the following new definition:
“heavy mineral concentrates” means:
(a) ore;
(b) Non-Mining Lease ore,
concentrated prior to separation into component heavy minerals;”
(2) in
clause 6C(2) by deleting “section 40(1)(b)” and
substituting “Part IV”;
(3) by deleting
“If” at the beginning of clause 7 and substituting
“Subject to Clause 7A, if”;
(4) by inserting after
clause 7 the following new clause:
“ Non-Mining
Lease heavy mineral concentrates
7A.
(1) During the continuance of this
Agreement and while the Company is still mining ore from the Mining Lease the
Company may, subject to the EP Act and the other provisions of this Agreement,
submit to the Minister its fully detailed proposals (including, in connection
with any proposed new works or modifications to existing works, plans where
practicable and specifications where reasonably required by the Minister and
any other details normally required by a local government in whose area any
such new or modified works are to be situated) with respect to the separation
into heavy minerals at the Narngulu mineral processing facilities of heavy
mineral concentrates produced from the Jacinth-Ambrosia Project, and subject
to subclause (5) from other Non-Mining Lease ore, and if the Company so
wishes the production at the Narngulu mineral processing facilities of heavy
mineral products from such heavy minerals, and the transport and shipment of
such heavy minerals and heavy mineral products produced which proposals shall
include the location, area, lay-out, 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:
(a) the unloading and storage
at the port of heavy mineral concentrates to be used in such operations;
(b) the transport by road of
such heavy mineral concentrates from the port to the Narngulu mineral
processing facilities;
(c) the modification or
expansion of the Narngulu mineral processing facilities including, without
limitation, by the construction of new works as part of those facilities;
(d) the separation of such
heavy minerals concentrates into heavy minerals;
(e) the production (if the
Company so wishes) of any heavy mineral products from such heavy minerals
including, without limitation, synthetic rutile from ilmenite;
(f) water supplies;
(g) gas and electricity
supplies;
(h) the transport by road of
such heavy minerals and heavy mineral products from the Narngulu mineral
processing facilities to the port for export;
(i)
storage and ship loading facilities at the port for such export;
(j) the storage upon the
Mining Lease during the continuance of this Agreement of monazite and any
other heavy minerals separated from the heavy mineral concentrates;
(k) disposal of waste rock
and tailings;
(l) any other works, services
or facilities desired by the Company in connection with the proposed
operations; and
(m) subject to
subclause (5)(c), any leases, licences or other tenure of land required
from the State;
(n) measures to be taken for
the protection and management of the environment including rehabilitation
and/or restoration of storage areas upon the Mining Lease.
(2) Any of the proposals pursuant to
subclause (1) may with the approval of the Minister, be submitted
separately and in any order as to the matters mentioned in one or more of
paragraphs (a) to (n) of subclause (1). Until all of its proposals
under this Clause have been approved the Company may withdraw and may resubmit
any proposal but the withdrawal of any proposal shall not affect the
obligations of the Company to submit a proposal under this Clause in respect
of the subject matter of the withdrawn proposal.
(3) The Company shall, whenever any of the
following matters referred to in this subclause are proposed by the Company
(whether before or during the submission of proposals under this Clause),
submit to the Minister details of any services (including any elements of the
project investigations, design and management) and any works, materials,
plant, equipment and supplies that it proposes to consider obtaining from or
having carried out or permitting to be obtained from or carried out outside
Australia, together with its reasons therefore and shall, if required by the
Minister, consult with the Minister with respect thereto.
(4) The provisions of subclauses (5)
and (6) of Clause 6B and the provisions of Clause 6C shall mutatis
mutandis apply to detailed proposals submitted pursuant to this Clause
including pursuant to subclause (6) of this Clause. For the avoidance of
doubt the reference in subclause (1)(b) of Clause 6C to
“subclause (3) of Clause 6B” is to be read as a
reference to subclause (1) of this Clause.
(5) Notwithstanding any other provisions of
this Agreement the Company shall not without the Minister’s prior
consent submit proposals under this Clause:
(a) in respect of more than
600,000 tonnes (in aggregate) of heavy minerals concentrates; or
(b) in respect of heavy
mineral concentrates obtained other than from the Jacinth-Ambrosia Project; or
(c) for the grant of any
leases, licences or other tenure to support the undertaking of operations
pursuant to such proposals; or
(d) to bring heavy mineral
concentrates into Western Australia otherwise than through the port or to
export heavy minerals or heavy mineral products obtained from such heavy
minerals otherwise than through the port.
(6) Subject to subclause (5) if the
Company at any time during the continuance of this Agreement desires to
significantly modify expand or otherwise vary its activities in relation to
Non-Mining Lease ore that are the subject of this Agreement and that may be
carried on by it pursuant to this Agreement beyond those activities specified
in any proposals submitted and approved pursuant to this Clause it shall give
notice of such desire to the Minister and shall within 2 months
thereafter submit to the Minister detailed proposals in respect of all matters
covered by such notice and such of the other matters mentioned in
subclause (1) as the Minister may require.
(7) To avoid doubt the parties acknowledge
that the provisions of this Agreement do not apply to the mining of Non-Mining
Lease ore, the production of heavy mineral concentrates from such ore or to
the transport of such heavy mineral concentrates to Western Australia.”;
(5) in clause 12
by inserting the following new subclause:
“(17)
This Clause does not apply to the transport of heavy
mineral concentrates produced from Non-Mining Lease ore or to heavy minerals
or heavy mineral products produced from such heavy mineral
concentrates.”;
(7) by inserting in
clause 20 the following new subclause:
“(4)
(a) In this
subclause :
“Mining
Lease heavy mineral concentrates” means ore concentrated prior to
separation into component heavy minerals; and
“Non-Mining Lease heavy mineral concentrates” means Non-Mining
Lease ore concentrated prior to separation into component heavy minerals.
(b) The Company may with the
approval from time to time of the Minister blend a heavy mineral resulting
from the separation of Mining Lease heavy mineral concentrates with the same
type of heavy mineral resulting from the separation of Non-Mining Lease heavy
mineral concentrates.
(c) The authority given under
paragraph (b) is subject to the Minister being reasonably satisfied that
there is in place adequate systems and controls for the correct apportionment
between the Mining Lease and the areas from within which Non-Mining Lease ore
is being mined of the quantities of the relevant heavy mineral being blended
and which systems and controls monitor production, concentration, processing,
transportation, stockpiling and shipping activities in respect of all such
blended heavy minerals. If at any time the Minister ceases to be so satisfied
he may, after consulting the Company and provided that Company has not within
three (3) months after the commencement of such consultation addressed the
matters of concern to the Minister to his satisfaction, by notice in writing
to the Company suspend the above authority in respect of the relevant blending
arrangements until he is again satisfied in terms of this paragraph (c).
(d) If any blending occurs as
contemplated by this subclause then for the purposes of calculating royalty as
provided in subclause (1) on the quantity of heavy mineral resulting from
the separation of Mining Lease heavy mineral concentrates and used in the
admixture, the gross sale price of the blended heavy mineral product as set
out in the invoices relating to the sale (and converted if necessary to
Australian currency in accordance with the Mining Regulations 1981 ) shall be
apportioned to the abovementioned quantity of heavy mineral (as its gross
invoice value) in the same proportion as that quantity of heavy mineral bears
to the total quantity of the blended heavy mineral product.” ;
(8) by deleting
clause 23; and
(9) by inserting after
clause 39 the following new clause:
“ Term of
Agreement
39A.
Subject to the provisions of Clauses 32 and 33, this
Agreement shall expire on the earlier of:
(a) the date occurring
5 years (or with the Minister’s approval such longer time not
exceeding 7 years) after the Company ceases to mine ore from the Mining
Lease; and
(b) the expiration or sooner
determination of the Mining Lease.”
EXECUTED as a deed.
SIGNED by THE HONOURABLE )
ALAN JOHN CARPENTER
)
in the presence of:
)
A J Carpenter
Name
Kent Frederick Alott
Kent Alott
THE COMMON SEAL of )
ILUKA RESOURCES LIMITED
)
ACN 008 675 018 was hereto affixed
) [C.S.]
in accordance
with its constitution )
in the presence of:
)
David Robb
Director
C. Wilson Director
/Secretary
[Schedule 3 inserted by No. 45 of 2008 s. 6.]