Western Australian Consolidated Acts Western Australian Consolidated Acts[s. 3]
[Heading amended by No. 19 of 2010
s. 4.]
THIS AGREEMENT is made this 22nd day of December 1994
BETWEEN
THE HONOURABLE RICHARD FAIRFAX COURT , B.Com., 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 MINERAL DEPOSITS PTY. LTD. ACN
000 154 067 a company incorporated in the State of New South Wales
and having its principal place of business in the State of Western Australia
at Suite 2, 72 Melville Parade, South Perth (hereinafter called “the
Company” in which term shall be included its successors and permitted
assigns) of the other part.
WHEREAS:
(a) the
Company has established within the Mining Leases hereinafter defined heavy
mineral sands deposits of tonneages and grades sufficient to warrant economic
recovery and marketing;
(b) the
Company has put forward a project proposal for a mining operation which will
have a capacity to produce not less than 500,000 tonnes per year of heavy
mineral products for transportation from the Mining Leases to the Port of
Bunbury for export;
(c) the
Company and the State have agreed with respect to the funding of the initial
costs of constructing a power line to the minesite and of constructing or
upgrading certain public roads to be used for product haulage as hereinafter
appears;
(d) the
Company has undertaken to continue to investigate economically viable means to
add value to ilmenite from the Mining Leases through processing activities
within Western Australia and to report the results of such investigations to
the Minister on a regular basis; and
(e) the
State for the purpose of promoting employment opportunity and development
within Western Australia has agreed to enter into this Agreement to assist the
establishment of the proposed mining operation upon and subject to the terms
of this Agreement.
NOW THIS AGREEMENT WITNESSES:
Definitions
1. In this Agreement subject to the
context —
“advise”, “apply”,
“approve”, “approval”, “consent”,
“notify”, “request”, or “require”, means
advise, apply, approve, approval, consent, notify, request, or require in
writing as the case may be and any inflexion or derivation of any of those
words has a corresponding meaning;
“approved proposal” means a proposal
approved or determined under this Agreement;
“Berth C” means the Bunbury Port
Authority’s planned Berth C comprising a wharf, conveyor, ship loading
facilities and storage area to be situated on the northern side of the Inner
Harbour of the port;
“Berth 2” means the Bunbury Port
Authority’s general purpose berth known as Berth 2 and situated on the
southern side of the Inner Harbour of the port;
“Bunbury Port Authority” means the
body corporate established pursuant to the Bunbury Port Authority
Act 1909 ;
“Clause” means a clause of this
Agreement;
“Commissioner of Main Roads” means the
Commissioner of Main Roads appointed under the Main Roads Act 1930 ;
“Commissioner of Railways” means the
Commissioner of the Western Australian Government Railways for the time being
in office under the Government Railways Act 1904 ;
“Commonwealth” means the Commonwealth
of Australia and includes the Government for the time being thereof;
“Company’s workforce” means the
persons (and the dependents of those persons) engaged whether as employees,
agents or contractors in the Company’s activities under this Agreement;
“EP Act” means the
Environmental Protection Act 1986 ;
“haulage route” means those parts of
the route between the Mining Leases and the northern end of the Capel bypass
shown coloured red and green on the plan marked “A” initialled by
or on behalf of the parties hereto for the purpose of identification;
“heavy minerals” means titaniferous
minerals (including ilmenite rutile and leucoxene) and magnetite zircon
monazite kyanite staurolite xenotime and garnet obtained from the Mining
Leases;
“heavy mineral concentrates” means
heavy mineral ore concentrated prior to separation into component heavy
minerals;
“heavy mineral products” means
commercially valuable heavy minerals recovered for sale by the separation into
its component minerals of heavy mineral concentrates;
“Land Act” means the Land
Act 1933 ;
“laws relating to traditional usage”
means laws applicable from time to time in Western Australia in respect of
rights or entitlements to or interests in land or waters which rights,
entitlements or interests are acknowledged, observed or exercisable by
Aboriginal persons (whether communally or individually) in accordance with
Aboriginal traditions, observances, customs or beliefs;
“local authority” means the council of
a municipality that is a city, town or shire constituted under the Local
Government Act 1960 ;
“ Mining Act” means the Mining
Act 1978 ;
“Mining Leases” means mining leases
Nos. M70/574, M70/575, M70/576, M70/577, M70/747 and M70/787 and according to
the requirements of the context shall describe the area of land demised as
well as the instrument by which it is demised;
“Minister” means the Minister in the
Government of the State for the time being responsible for the administration
of the Act to ratify this Agreement and pending the passing of that Act means
the Minister for the time being designated in a notice from the State to the
Company and includes the successors in office of the Minister;
“Minister for Mines” means the
Minister in the Government of the State for the time being responsible for the
administration of the Mining Act;
“month” means calendar month;
“notice” means notice in writing;
“person” or “persons”
includes bodies corporate;
“port” means the port as defined in
section 2 of the Bunbury Port Authority Act 1909 ;
“public road” means a road as defined
by the Road Traffic Act 1974 ;
“said State” means the State of
Western Australia;
“SECWA” means the State Energy
Commission of Western Australia as described in section 7 of the State
Energy Commission Act 1979 and includes, in respect of any particular
statutory function of the State Energy Commission under the State Energy
Commission Act, any successor of the State Energy Commission in respect of
that statutory function;
“SECWA Agreement” means the agreement
to be entered into between SECWA and the Company in respect of supply of
electricity to the Mining Leases;
“specified date” means the date
specified in any current notice from the Company to the Bunbury Port Authority
pursuant to subclause (1) of Clause 12;
“subclause” means subclause of the
Clause in which the term is used;
“this Agreement” “here of”
and “hereunder” refer to this Agreement whether in its original
form or as from time to time added to varied or amended.
Interpretation
2. In this Agreement —
(a)
monetary references are references to Australian currency unless otherwise
specifically expressed;
(b)
power given under any clause other than Clause 25 to extend any period or
date shall be without prejudice to the power of the Minister under
Clause 25;
(c)
clause headings do not affect the interpretation or construction;
(d)
words in the singular shall include the plural and words in the plural shall
include the singular according to the requirements of the context;
(e) one
gender includes the other genders; and
(f)
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, except that in the
case of a reference to the State Energy Commission Act 1979 , a reference
to that Act relating to any particular subject matter or statutory function of
the State Energy Commission includes a reference to any Act or particular
provision passed in substitution therefor relating to that same or a similar
subject matter or statutory function.
Ratification and operation
3. (1) 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
30 June 1995 or such later date as the parties may agree.
(2) The provisions of
this Agreement other than this Clause and Clauses 1 and 2 shall not come
into operation until the Bill referred to in subclause (1) has been
passed by the Parliament of Western Australia and comes into operation as an
Act.
(3) If before
30 June 1995 or such later date as aforesaid the said Bill has not
commenced to operate as an Act then unless the parties hereto otherwise agree
this Agreement shall then cease and determine and no party hereto shall have
any claim against any other party hereto with respect to any matter or thing
arising out of done performed or omitted to be done or performed under this
Agreement.
(4) On the said Bill
commencing to operate as an Act all the provisions of this Agreement shall
operate and take effect notwithstanding the provisions of any Act or law.
Company to submit proposals
4. (1) The Company
shall on or before 31 December 1995 (or by such extended date as the
Minister may allow as hereinafter provided) and subject to the EP Act, the
laws relating to traditional usage and the provisions of this Agreement submit
to the Minister to the fullest extent reasonably practicable its detailed
proposals (including plans where practicable and specifications where
reasonably required by the Minister and any other details normally required by
the local authority in which area the project is to be situated) for a mining
and treatment project with a capacity to produce not less than 500,000 tonnes
per year of heavy mineral products and the transport and shipment through the
port of heavy mineral products which proposals shall make provision for the
Company’s workforce required in connection with the project 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 concentration of heavy mineral ore from the Mining Leases and the
separation of heavy mineral concentrates into heavy mineral products including
plant facilities and the transport of heavy mineral products to the port;
(b)
accommodation of construction and permanent workforce;
(c)
water supplies;
(d)
energy supplies;
(e)
storage and ship loading of heavy mineral products at the port;
(f) use
of local professional services, labour and materials and measures to be taken
with respect to the engagement and training of employees by the Company, its
agents and contractors;
(g) any
other works, services or facilities desired by the Company;
(h) an
environmental management programme as to measures to be taken, in respect of
the Company’s activities under this Agreement, for rehabilitation and
the protection and management of the environment.
Order of proposals
(2) Each of the
proposals pursuant to subclause (1) 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 (h) of
subclause (1).
Additional submissions
(3) At the time when
the Company submits the said proposals it shall —
(a)
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 therefor and shall, if required by the Minister,
consult with the Minister with respect thereto; and
(b)
furnish to the Minister’s satisfaction evidence of —
(i)
marketing arrangements demonstrating the Company’s
ability profitably to sell or use heavy minerals and heavy mineral products in
accordance with the said proposals;
(ii)
the availability of finance necessary for the fulfilment
of the operations to which the said proposals refer; and
(iii)
the readiness of the Company to embark upon and proceed
to carry out the operations referred to in the said proposals.
Consideration of proposals
5. (1) Subject to the
EP Act and laws relating to traditional usage, in respect of proposals
submitted pursuant to subclause (1) of Clause 4 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 (1) of Clause 4 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,
PROVIDED ALWAYS that
where implementation of any proposals hereunder has been approved pursuant to
the EP Act 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 makes such alterations to the proposals as may be
necessary to make them accord with those conditions or procedures.
Advice of Minister’s decision
(2) The Minister shall
within two months after receipt of the said proposals pursuant to
subclause (1) of Clause 4 or where the said proposals are to be
assessed under section 40(1)(b) of the EP Act or where laws relating to
traditional usage apply, then within two months after service on him of an
authority under section 45(7) of the EP Act or satisfaction of the
requirements under laws relating to traditional usage (as the case may be)
give notice to the Company of his decision in respect to the proposals.
Consultation with Minister
(3) If the decision of
the Minister is as mentioned in either of paragraphs (b) or (c) of
subclause (1) 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.
Minister’s decision subject to arbitration
(4) If the decision of
the Minister is as mentioned in either of paragraphs (b) or (c) of
subclause (1) and the Company considers that the decision is unreasonable
the Company within two months after receipt of the notice mentioned in
subclause (2) 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 (1)
shall not be referable to arbitration hereunder.
Arbitration award
(5) An award made on
an arbitration pursuant to subclause (4) shall have force and effect as
follows —
(a) if
by the award the dispute is decided against the Company then unless the
Company within 3 months after delivery of the award gives notice to the
Minister of its acceptance of the award this Agreement shall on the expiration
of that period of 3 months cease and determine; or
(b) if
by the award the dispute is decided in favour of the Company the decision
shall take effect as a notice by the Minister that he is so satisfied with and
approves the matter or matters the subject of the arbitration.
Effect of non-approval of proposals
(6) Notwithstanding
that under subclause (1) any proposals of the Company are approved by the
Minister or determined by arbitration award, unless each and every such
proposal and matter is so approved or determined by 31 December 1996
or by such extended date or period if any as the Company shall be granted
pursuant to the provisions of this Agreement then the Minister may give to the
Company 12 months notice of intention to determine this Agreement and
unless before the expiration of the said 12 months period all the
detailed proposals and matters are so approved or determined this Agreement
shall cease and determine subject however to the provisions of Clause 30.
Implementation of proposals
(7) Subject to and in
accordance with the EP Act and any approvals and licences required under that
Act and laws relating to traditional usage the Company shall implement the
proposals as approved or determined pursuant to this Clause in accordance with
the terms thereof.
Additional proposals
6. If the Company at any time during the
continuance of this Agreement desires to significantly modify expand or
otherwise vary its activities carried on pursuant to this Agreement (including
levels of production) beyond those activities specified in approved proposals
or to mine minerals from the Mining Leases in addition to heavy minerals or to
extend mining (whether of heavy minerals or other minerals) into any area of
the Mining Leases not the subject of the approved proposals it shall give
notice of such desire to the Minister and within 2 months thereafter
shall 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 (h) of subclause (1) of Clause 4 and other
relevant information as the Minister may require. The provisions of
Clause 4 and Clause 5 (other than subclauses (5)(a) and (6))
shall mutatis mutandis apply to proposals submitted pursuant to this Clause
with the additional provision that the Company may withdraw such proposals 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 same.
Subject to and in accordance with the EP Act and any approvals and licences
required under that Act and laws relating to traditional usage the Company
shall implement proposals approved or determined pursuant to this Clause in
accordance with the terms thereof.
Protection and management of the environment
7. (1) The Company
shall in respect of the matters relating to the environment which are the
subject of approved proposals, carry out a continual programme of
investigation, research and monitoring to ascertain the effectiveness of the
measures they are taking both generally and pursuant to the approved proposals
for rehabilitation and the protection and management of the environment.
(2) The Company shall
during the currency of this Agreement submit to the Minister —
(a) not
later than 31 July 1997 and 31 July in each year thereafter (except
those years in which a comprehensive report is required to be submitted
pursuant to paragraph (b) of this subclause) a brief report concerning
investigations, research and monitoring carried out pursuant to
subclause (1) and the implementation by the Company of the elements of
the approved proposals relating to rehabilitation and the protection and
management of the environment in the year ending 31 May immediately preceding
the due date for the brief report; and
(b) not
later than 31 July 1999 and 31 July in each third year thereafter, a
comprehensive report on the result of such investigations and research and the
implementation by the Company of the elements of the approved proposals
relating to rehabilitation and the protection and management of the
environment during the three year period ending 31 May immediately preceding
the due date for the detailed report together with a mining plan setting forth
the proposed mining operations of the Company during the three year period
commencing 1 June immediately preceding such due date and the programme
proposed to be undertaken by the Company during that period in regard to
investigation and research under subclause (1) and the implementation by
the Company of the elements of the approved proposals relating to
rehabilitation and the protection and management of the environment.
(3) The Minister may
within 2 months of receipt of a report pursuant to paragraph (b) of
subclause (2) notify the Company that he —
(a)
requires amendment of the report and/or programme for the ensuing
3 years; or
(b)
requires additional detailed proposals to be submitted for rehabilitation and
the protection and management of the environment.
(4) The Company shall
within 2 months of receipt of a notice pursuant to paragraph (a) of
subclause (3) submit to the Minister an amended report and/or programme
as required. The Minister shall afford the Company full opportunity to consult
with him on his requirements during the preparation of any amended report or
programme.
(5) The Minister may
within 1 month of receipt of an amended report or programme pursuant to
subclause (4) notify the Company that he requires additional detailed
proposals to be submitted for rehabilitation and the protection and management
of the environment.
(6) The Company shall
within 2 months of receipt of a notice pursuant to paragraph (b) of
subclause (3) or subclause (5) submit to the Minister additional
detailed proposals as required and the provisions of subclauses (1), (2),
(3), (4) and (5)(b) of Clause 5 shall mutatis mutandis apply to those
proposals.
(7) Subject to and in
accordance with the EP Act and any approvals and licences required under that
Act and laws relating to traditional usage the Company shall implement the
decision of the Minister or an award on arbitration as the case may be in
accordance with the terms thereof.
Mining Leases
8. (1) During the
currency of this Agreement each of the Mining Leases shall, subject to
compliance by the Company with the terms and conditions applicable thereto (as
modified by this Clause) be held under and subject to the Mining Act modified
as follows —
(a) the
term of each Mining Lease shall be for a period of 21 years commencing
from its date of grant with the right during the currency of this Agreement to
take two successive renewals of the said term each for a further period for
21 years upon the same terms and conditions, subject to the sooner
determination of the said term upon 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 each Mining Lease;
(b) the
Company shall not be required to comply with the expenditure conditions
imposed by or under the Mining Act in regard to the Mining Leases; and
(c) the
Company shall lodge with the Department of Minerals and Energy at Perth
—
(i)
such periodical reports (except reports in the form of
Form 5 of the Mining Regulations 1981 or other reports relating to expenditure
on the Mining Leases) and returns as may be prescribed in respect of mining
leases pursuant to regulations under the Mining Act provided that the Minister
for Mines may waive any requirement for provision of technical data in respect
of areas within the Mining Leases;
(ii)
on an annual basis, a report on ore reserves within the
Mining Leases (using the scheme recommended by the Australasian Institute of
Mining and Metallurgy and the Australian Mining Industry Council or future
equivalent) together with a list of any geotechnical, metallurgical,
geochemical and geophysical investigations carried out during the year and, if
requested by the Department, details of any of those investigations;
(iii)
reports on drilling operations and drill holes where the
main purpose of the drilling was to discover or define future ore reserves on
the Mining Leases and, if requested by the Department, reports on drilling
done within blocks of proven ore for the purpose of mine planning.
Additional areas
(2) Notwithstanding
the provisions of the Mining Act the Company may from time to time during the
currency of this Agreement apply to the Minister for approval that the
provisions of this Agreement be extended to a mining lease or mining leases
held by the Company under the Mining Act. The Minister shall confer with the
Minister for Mines in regard to any such application and if they approve the
application the provisions of this Agreement shall thereafter during the term
of this Agreement apply to such mining lease or mining leases as if they were
Mining Leases.
Scott River Road
(3) Notwithstanding
anything to the contrary contained in the Mining Leases, the Company shall
have the right to mine Scott River Road within the Mining Leases subject to it
providing at its cost during mining suitable deviations of the road to a
standard acceptable to the Minister after consultation with the Commissioner
of Main Roads and the relevant local authority. Following mining the Company
shall at its cost restore the road to an alignment and standard to the
satisfaction of the Minister after consultation with the Commissioner of Main
Roads.
Royalties
9. (1) The Company
shall pay to the State in respect of all minerals mined or produced from the
Mining Leases and used, sold, transferred or otherwise disposed of royalties
at the rates from time to time prescribed under or pursuant to the provisions
of the Mining Act.
(2) The Company shall
comply with the provisions of the Mining Act and regulations thereunder with
respect to the filing of production reports and royalty returns and the
assessment, verification and payment of royalties.
Roads
10. (1) Except as
provided in subclause (5) or as otherwise approved by the Minister in
consultation with the Commissioner of Main Roads and the relevant local
authority, the Company shall not use any roads other than the haulage route
for the transport of heavy minerals, heavy mineral concentrates and heavy
mineral products between the Mining Leases and the northern end of the Capel
bypass.
Road works
(2) The State shall
cause the haulage route to be constructed to a standard suitable for the
haulage of heavy minerals, heavy mineral concentrates and heavy mineral
products and shall use all reasonable endeavours to ensure such works are
completed by the time heavy minerals, heavy mineral concentrates or heavy
mineral products are to be transported on a regular basis from the Mining
Leases pursuant to the approved proposals.
Contribution to cost of road works
(3) (a)
The Company shall pay to the State an amount and
at such time or times as shall be agreed between the Company and the State
towards the cost to construct that part of the haulage route coloured red on
the said plan marked “A”.
(b) Any
expenditure incurred by the Company on preliminary design, site studies and
land acquisition for the haulage route and approved by the Minister after
consultation with the Commissioner of Main Roads for the purposes of this
subclause shall be credited against the amount payable by the Company under
paragraph (a) of this subclause.
Maintenance of haulage route
(4) (a)
The State shall maintain or cause to be maintained
all public roads comprising the haulage route which are under the control of
the Commissioner of Main Roads or a local authority and which are used by the
Company for the purposes of this Agreement to a standard suitable, in the
opinion of the Commissioner of Main Roads, for the transport of heavy
minerals, heavy mineral concentrates or heavy mineral products pursuant to the
approved proposals.
(b)
Until such time as the Company ceases permanently to use the haulage route for
its transport requirements pursuant to the approved proposals the Company
shall pay to the State such proportion or proportions as may be agreed from
time to time by the Company and the Commissioner of Main Roads of the cost of
maintaining the sections comprising that part of the haulage route which is
coloured red on the said plan marked “A”.
Interim route
(5) In the event that
the road works mentioned in subclause (2) are not completed by the time
therein mentioned the Minister after consultation with the Commissioner of
Main Roads, the relevant local authority and the Company shall determine an
interim route for use by the Company for its transport requirements under this
Agreement pending completion of those works. The Company shall not be required
to make any capital contribution to any upgrading of the interim route
necessary for the use thereof by the Company but shall pay such reasonable
proportion of the cost of maintaining the interim route during its use as is
agreed by the Minister, after consultation with the Commissioner of Main Roads
and the relevant local authority, and the Company.
Damage to roads
(6) (a)
Subject to paragraph (b), in the event that
for or in connection with the Company’s operations hereunder any use by
the Company or any person engaged by the Company of any public road results in
excessive damage to or deterioration of any such public road (other than fair
wear and tear) the Company shall pay to the State or the local authority as
the case may require the whole or an equitable part of the total cost of
making good the damage or deterioration as may be reasonably required by the
Commissioner of Main Roads in consultation with the relevant local authority
having regard to the use of such public road by others.
(b) The
provisions of paragraph (a) shall not apply in respect of roads the
subject of subclause (5) or to any section of the haulage route referred
to in subclause (4)(b) for which a specific arrangement has been entered
into pursuant to subclause (4).
Road making materials
(7) If the
Commissioner of Main Roads is given access to the Mining Leases for the
purpose of recovering laterite, sand or other materials for use in the
construction or upgrading of the haulage route, such materials shall be
recovered by the Commissioner of Main Roads without charge by or cost to the
Company provided that if, at the request of the Commissioner of Main Roads,
the Company agrees to carry out any excavation, processing, stockpiling,
loading or transporting of such materials the Company shall be entitled to
recover any reasonable direct costs of so doing from the Commissioner of Main
Roads.
Power
11. (1) The State
shall cause SECWA to construct a 132 kV power line from Manjimup Substation to
an electrical 132/22 kV substation at Beenup for the supply of electrical
power required for the Company’s operations pursuant to this Agreement
and shall use all reasonable endeavours to ensure that electrical power from
SECWA is available when required for the operations of the project in
accordance with approved proposals.
Cost of works
(2) (a)
The Company shall pay to SECWA an amount and at
such time or times as shall be agreed between the Company and the State
towards the costs of the power line referred to in subclause (1). All
payments made by the Company to SECWA in respect of route investigations and
the preparation of an environmental submission for the said power line shall
be credited against the amount payable by the Company under this paragraph.
(b) The
electrical substation at Beenup referred to in subclause (1) shall be
constructed by SECWA but at the expense of the Company.
(c) If
between the beginning of the electricity supply period and
1 January 2006 SECWA uses or reasonably expects to use the power
line referred to in subclause (1) to supply a new or increased expected
maximum demand to a mining or industrial customer of SECWA, where the new or
aggregate expected increase in demand exceeds 1000KW and the expected
aggregate increased amount of energy so supplied per calendar year exceeds
900,000 KWH, then SECWA shall make a refund to the Company, calculated and
payable in accordance with the terms of the SECWA Agreement or on such other
terms as are agreed between SECWA and the Company, of a proportion of the
monies paid by the Company pursuant to paragraph (a) of this subclause.
Electricity generation
(3) In the event SECWA
is unable to provide supply of power to the Company or the Company or SECWA
gives notice pursuant to its supply contract with SECWA of its intention to
terminate that contract or the Company wishes to generate all or part of its
electricity requirements as permitted by the supply contract the Company may
—
(a) in
accordance with its approved proposals hereunder and subject to the provisions
of the Electricity Act 1945 and the approval and requirements of SECWA
pursuant to any Act or the SECWA Agreement, install and operate without cost
to the State, at an appropriate location equipment to generate electricity of
sufficient capacity for its operations hereunder;
(b)
transmit power within the areas of its mining operations and from those areas
subject to the provisions of the Electricity Act 1945 and the approval
and requirements of SECWA pursuant to any Act or the SECWA Agreement.
Port facilities
12. (1) Within
30 days of the date on which the proposals submitted by the Company
pursuant to paragraph (e) of subclause (1) of Clause 4 become
approved proposals the Company shall give notice to the Bunbury Port Authority
of the date (being a date not less than 12 months after the date of the
notice) on which it reasonably anticipates commencing shipment of product from
Bunbury Port. The Company shall promptly give notice to the Bunbury Port
Authority of any change it reasonably anticipates from time to time in the
specified date (which may not be earlier in time than the specified date).
(2) If the Bunbury
Port Authority gives notice to the Company at least 9 months prior to the
specified date that it reasonably anticipates that Berth C will be available
by the specified date to meet the Company’s storage shiploading and
shipping requirements pursuant to the approved proposals, the Company shall
provide or arrange for the provision of storage and connection to the Bunbury
Port Authority’s conveyor and shiploading facilities appropriate for the
project requirements at Berth C after consultation with the Bunbury Port
Authority and at the Company’s cost unless otherwise agreed with the
Bunbury Port Authority.
(3) If the Bunbury
Port Authority gives notice to the Company at least 9 months prior to the
specified date that it reasonably anticipates that Berth C will not be
available by the specified date to meet the Company’s storage and
shipping requirements pursuant to the approved proposals but will be available
to meet the Company’s storage and shipping requirements pursuant to the
approved proposals within six months of the specified date, then the Bunbury
Port Authority shall agree with the Company on appropriate arrangements for
the use by the Company of Berth C for its product storage facilities and of
Berth 2 for the Company’s portable shiploading facilities until such
time as Berth C is fully available for the Company’s use.
(4) If the Bunbury
Port Authority does not give either of the notices to the Company referred to
in subclauses (2) and (3) then the Bunbury Port Authority shall agree
with the Company on appropriate arrangements for the use by the Company of
Berth 2 for its product storage facilities and shipping arrangements for the
purposes of this Agreement PROVIDED THAT if Berth C is subsequently developed
and becomes available for use by the Company then the Company shall relocate
its storage facilities to Berth C at its cost except where otherwise agreed
with the Bunbury Port Authority within 12 months of notice to do so from
the Bunbury Port Authority, which notice shall not be given before
31 December 2001 without the consent of the Company.
(5) The arrangements
for the use by the Company of Berth C and Berth 2 pursuant to the foregoing
subclauses shall be on such reasonable terms as are agreed between the Company
and the Bunbury Port Authority or, failing agreement, determined by the
Minister after consultation with the Company and the Bunbury Port Authority.
Such terms shall include, in the case of each berth, a lease in favour of the
Company at reasonable rental and on reasonable terms of suitable land adjacent
to the berth on which the Company shall erect its storage facilities and, in
the case of Berth 2, the payment by the Bunbury Port Authority to the
Company, upon a relocation by the Company to Berth C pursuant to the proviso
to subclause (4) of the sum of $1,000 as consideration for the sale by
the Company to the Bunbury Port Authority of the Company’s storage
facilities at Berth 2.
Use of local labour professional services and materials
13. (1) The Company
shall, for the purposes of this Agreement —
(a)
except in those cases where the Company can demonstrate it is impracticable so
to do, use labour available within the said State 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 the said State or if such services are not
available within the said State 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 suitably qualified 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; and
(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.
(2) Except as
otherwise agreed by the Minister the Company shall in every contract entered
into with a third party for the supply of services labour works materials
plant equipment and supplies for the purposes of this Agreement require as a
condition thereof that such third party shall undertake the same obligations
as are referred to in subclause (1) and shall report to the Company
concerning such third party’s implementation of that condition.
(3) The Company shall
submit a report to the Minister at monthly intervals or such longer period as
the Minister determines commencing from the date of this Agreement concerning
its implementation of the provisions of this Clause together with a copy of
any report received by the Company pursuant to subclause (2) 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.
(4) The Company shall
keep the Minister informed on a regular basis as determined by the Minister
from time to time or otherwise as reasonably 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.
Water
14. (1) Subject to the
Water Authority Act 1984 and other relevant Acts and in accordance with
the approved proposals the State shall grant or cause to be granted to the
Company a licence to develop and draw its water requirements from the source
specified in those proposals and dispose of mine dewatering water at the
Company’s cost but without charge (other than generally applicable
administration fees), on such terms and conditions as are necessary to ensure
good water resource management and the protection of neighbouring areas as the
Minister may from time to time require and during the continuance of this
Agreement grant renewals of any such licence PROVIDED HOWEVER that should that
source prove inadequate to meet the project water requirements the State may
on at least 6 months prior notice to the Company (or on at least
48 hours prior notice if in the opinion of the Minister an emergency
situation exists) limit the amount of water which may be taken from that
source at any one time or from time to time to the maximum which in the
opinion of the Minister that source is hydrologically capable of meeting as
aforesaid.
(2) The Company shall
to the extent that it is practical and economical design construct and operate
all plant and equipment used in its activities under this Agreement so as to
minimise water consumption and shall at all times use all reasonable
endeavours to minimise the consumption of water in its activities under this
Agreement and ensure the most efficient use of the available water resources.
(3) The State shall
ensure that it is a condition of the grant of a licence to third parties to
draw water from the same source as the Company following the commencement of
the Agreement that in the event that the capacity of the water source is
reduced, such reduction shall be first applied to the third parties and
thereafter if further reduction is necessary, the Company’s requirements
shall be reduced by such amount as may be agreed by the Minister and the
Company.
(4) Nothing in this
Agreement shall be construed to exempt the Company from any liability to the
State or to third parties arising out of or caused by extraction of water from
the Mining Leases by dewatering or any discharge or escape from the Mining
Leases of water obtained by dewatering.
Rail transport
15. (1) Subject to
subclause (2) if the State constructs a railway to Beenup suitable for
the transport to Bunbury of heavy minerals, heavy mineral concentrates and
heavy mineral products the Company shall have the right to use the railway on
such reasonable terms and conditions as are agreed with the Commissioner of
Railways PROVIDED THAT as part of such terms the Company shall not be required
to contribute to the capital costs to construct the railway.
(2) Should the Company
desire to significantly expand its operations under this Agreement and as a
consequence the operation of a railway for product haulage from the Mining
Leases to Bunbury may in the opinion of the Company and the Commissioner of
Railways become commercially viable, the Company and the Commissioner of
Railways shall enter into discussions with a view to reaching agreement on
terms and conditions (including sharing the cost of construction of the
railway) for the transport to Bunbury of all or some part of the
Company’s production of heavy minerals, heavy mineral concentrates and
heavy mineral products.
Other infrastructure
16. At any time the Company submits to the
Minister proposals pursuant to Clause 6 the Company shall confer with the
Minister and the relevant local authorities with a view —
(a) to
ensuring that appropriate planning is being made for the provision of adequate
serviced land for housing the Company’s workforce; and
(b) to
assisting in the cost of providing community, recreation, civic and social
amenities, where appropriate, having due regard to the size of the
Company’s workforce and the scope of the Company’s operations to
be carried out pursuant to this Agreement.
Zoning
17. The State shall ensure after consultation with
the relevant local authority that the Mining Leases shall be and remain zoned
for use or otherwise protected during the currency of this Agreement so that
the activities of the Company hereunder may be undertaken and carried out
thereon without any interference or interruption by the State or by any State
agency or instrumentality or by any local or other authority of the State on
the ground that such activities are contrary to any zoning by-law regulation
or order.
Rating
18. (1) Except where a
basis for rating is otherwise agreed in writing between the Company and the
relevant local authority, 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 the Mining Leases (except any part or parts thereof on which
accommodation units or housing for the Company’s workforce is erected or
which is occupied in connection with such accommodation units or housing 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
activities carried out by the Company pursuant to approved proposals) 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 and further as regards the Mining Leases that the
unimproved value thereof shall be calculated on the basis that the Mining
Leases are mining leases under the Mining Act and not as land held pursuant to
an agreement made with the Crown in right of the State and scheduled to an Act
approving the agreement.
(2) It is hereby
declared and agreed that the provisions of section 533B of the Local
Government Act 1960 shall not apply to any lands the subject of this
Agreement.
No discriminatory rates
19. Except as provided in this Agreement the State
shall not impose, nor shall it permit or authorise any of its agencies or
instrumentalities or any local or other authority of the State to impose
discriminatory taxes rates or charges of any nature whatsoever on or in
respect of the titles property or other assets products materials or services
used or produced by or through the activities of the Company in the conduct of
its business hereunder nor will the State take or permit to be taken by any
such State authority any other discriminatory action which would deprive the
Company of full enjoyment of the rights granted and intended to be granted
under this Agreement.
No resumption
20. Subject to the performance by the Company of
its obligations under this Agreement the State shall not during the currency
of this Agreement without the consent of the Company resume nor suffer nor
permit to be resumed by any State instrumentality or by any local or other
authority of the State any of the works installations plant equipment or other
property for the time being belonging to the Company and the subject of or
used for the purpose of this Agreement or any of the works on the lands the
subject of any lease or licence granted to the Company in terms of this
Agreement AND without such consent (which shall not be unreasonably withheld)
the State shall not create or grant or permit or suffer to be created or
granted by any instrumentality or authority of the State as aforesaid any road
right-of-way water right or easement of any nature or kind whatsoever over or
in respect of any such lands which may unduly prejudice or interfere with the
Company’s activities under this Agreement.
Assignment
21. (1) Subject to the
provisions of this Clause the Company may at any time with the consent of the
Minister assign mortgage charge sublet or dispose of the whole or any part of
the rights of the Company hereunder (including its rights to or as the holder
of the Mining Leases) and of the obligations of the Company hereunder and
subject however in the case of an assignment subletting or disposition to the
assignee sublessee or disponee (as the case may be) executing in favour of the
State (unless the Minister otherwise determines) 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
subletting or disposition.
(2) Notwithstanding
anything contained in or anything done under or pursuant to subclause (1)
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 in this Agreement and in the
Mining Leases the subject of an assignment mortgage subletting or disposition
under subclause (1) PROVIDED THAT the Minister may agree to release the
Company from such liability where the Minister considers such release will not
be contrary to the interests of the State.
(3) Notwithstanding
the provisions of the Mining Act —
(a) no
assignment mortgage charge sublease or disposition made or given pursuant to
this Clause of or over the Mining Leases by the Company or any assignee
sublessee or disponee who has executed and is for the time being bound by deed
of covenant made pursuant to this Clause; and
(b) no
transfer assignment mortgage or sublease made or given in exercise of any
power contained in any such mortgage or charge
shall require any
approval or consent other than such consent as may be necessary under this
Clause and no equitable mortgage or charge shall be rendered ineffectual by
the absence of any approval or consent (otherwise than as required by this
Clause) or because the same is not registered under the provisions of the
Mining Act.
Variation
22. (1) The parties to
this Agreement 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 the
Mining Leases for the purpose of more efficiently or satisfactorily
implementing or facilitating any of the objects of this Agreement.
(2) The Minister shall
cause any agreement made pursuant to subclause (1) in respect of any
addition substitution cancellation or variation of the provisions of this
Agreement to be laid on the Table of each House of Parliament within
12 sitting days next following its execution.
(3) Either House may,
within 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.
Force majeure
23. This Agreement shall be deemed to be made
subject to any delays in the performance of the obligations under this
Agreement and to the temporary suspension of continuing obligations under this
Agreement 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 earthworks floods storms tempest washaways fire (unless caused by the
actual fault or privity of the party responsible for such performance) act of
war act of public enemies riots civil commotions strikes pickets industrial
boycotts lockouts stoppages restraint of labour or other similar acts (whether
partial or general) acts or omissions of the Commonwealth shortages of labour
or essential materials reasonable failure to secure contractors delays of
contractors inability to profitably sell products produced pursuant to this
Agreement 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 use its best
endeavours to minimise the effects of such causes as soon as possible after
the occurrence.
Further processing
24. (1) During the
continuance of this Agreement the Company shall undertake ongoing
investigations into the technical and economic feasibility of establishing
facilities within the said State either alone or in association with others
for the further processing of ilmenite obtained from the Mining Leases and as
and when requested by the Minister, but not more frequently than once in every
two years, shall submit detailed reports of its investigations to the date of
request and its conclusions in regard thereto.
(2) The State may
undertake similar investigations in respect of ilmenite and other heavy
mineral products obtained from the Mining Leases and, for this purpose, the
Company shall provide the State within a reasonable time of request with such
information as the State may reasonably request. The Company shall not be
obliged to supply technical information of a confidential nature or financial
and economic information the disclosure of which would unduly prejudice
contractual or commercial arrangements between the Company and third parties,
but will use reasonable endeavours to arrange for the supply of this or like
information on request by the State.
(3) If as a result of
investigations undertaken under subclause (1) or (2), the Company or the
State reasonably concludes that further processing of ilmenite or other heavy
mineral products from the Mining Leases by the Company alone or in association
with others is technically and economically feasible, then the State and the
Company shall consult on the implementation of such further processing.
(4) If following
consultation under subclause (3) the Company is unwilling to proceed with
implementation of such further processing on a timetable acceptable to the
State, the State may allow a third party to carry out that implementation but
the State will not grant to the third party terms and conditions more
favourable on the whole than it was prepared to grant to the Company. In such
circumstances, the Company will if required by the third party, but without
prejudice to the Company’s contractual obligations to other parties,
supply ilmenite or other heavy mineral products as the case requires to the
third party at such place as the third party and the Company agree or, failing
agreement, as is determined by the Minister in sufficient quantities and
appropriate rates to meet the requirements of the third party for at least the
first ten years of its operations at a reasonable price but in any event not
more than the equivalent (taking into account the place of delivery to the
third party) of the average f.o.b. values then being obtained by the Company
for its exports of ilmenite or other heavy mineral products. The Minister may
relieve the Company in whole or in part of its obligations under this
subclause where the Company demonstrates to the satisfaction of the Minister
that full or partial supply of the required ilmenite or other heavy mineral
products is not practicable on economic or technical grounds.
(5) The Company may at
any time apply to the Minister for approval that the carrying out by the
Company or related bodies corporate of alternative mineral processing
investments be accepted by the State in lieu of all or some part of the
Company’s obligations pursuant to this Clause.
Power to extend periods
25. Notwithstanding any provision of this
Agreement 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 or in any approved proposal 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.
Indemnity
26. 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 activities hereunder or arising
out of or in connection with the construction maintenance or use by the
Company or its servants agents contractors or assignees of the Company’s
works or services the subject of this Agreement or the plant apparatus or
equipment installed in connection therewith PROVIDED THAT subject to the
provisions of any other relevant Act such indemnity shall not apply in
circumstances where the State, its servants, agents, or contractors are
negligent in carrying out work for the Company pursuant to this Agreement.
Commonwealth licences and consents
27. (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
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).
Subcontracting
28. The State shall ensure that without affecting
the liabilities of the parties under this Agreement either party shall have
the right from time to time to entrust to third parties the carrying out of
any portions of the activities which it is authorised or obliged to carry out
hereunder.
Determination of Agreement
29. (1) In any of the
following events namely if —
(a)
(i) the Company makes default
which the State considers material in the due performance or observance of any
of the covenants or obligations of the Company in this Agreement or in the
Mining Leases on its part to be performed or observed; or
(ii)
the Company abandons or repudiates this Agreement or its
activities under this Agreement and such default is not remedied or such
activities resumed within a period of 180 days after notice is given by
the State as provided in subclause (2) or, if the default or abandonment
is referred to arbitration, then within the period mentioned in
subclause (3); or
(b) the
Company goes into liquidation (other than voluntary liquidation for the
purpose of reconstruction) and unless within 3 months from the date of
such liquidation the interest of the Company is assigned to an assignee
approved by the Minister under Clause 21
the State may by
notice to the Company determine this Agreement.
(2) The notice to be
given by the State in terms of paragraph (a) of subclause (1) 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 21 whose name and address for service of notice has previously
been notified to the State by the Company or any such assignee mortgagee
chargee or disponee.
(3) (a)
If the Company contests the alleged default
abandonment or repudiation referred to in paragraph (a) of
subclause (1) the Company shall within 60 days after notice given by
the State as provided in subclause (2) refer the matter in dispute to
arbitration.
(b) If
the question is decided against the Company, the Company shall comply with the
arbitration award within a reasonable time to be fixed by that award PROVIDED
THAT if the arbitrator finds that there was a bona fide dispute and that the
Company was not dilatory in pursuing the arbitration, the time for compliance
with the arbitration award shall not be less than 90 days from the date
of such award.
(4) If the default
referred to in paragraph (a) of subclause (1) shall not have been
remedied after receipt of the notice referred to in that subclause 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 actual 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 of Agreement
30. On the cessation or determination of this
Agreement —
(a)
except as otherwise agreed by the Minister the rights of the Company to in or
under this Agreement and the rights of the Company or of any assignee of the
Company or any mortgagee to in or under the Mining Leases shall thereupon
cease and determine but without prejudice to the liability of either of the
parties hereto in respect of any antecedent breach or default under this
Agreement or in respect of any indemnity given under this Agreement;
(b) the
Company shall forthwith pay to the State all moneys which may then have become
payable or accrued due;
(c) save
as aforesaid and as otherwise provided in this Agreement neither of the
parties shall have any claim against the other of them with respect to any
matter or thing in or arising out of this Agreement.
Consultation
31. The Company shall during the currency of this
Agreement consult with and keep the State fully informed on a confidential
basis concerning any action that the Company proposes to take with any third
party (including the Commonwealth or any Commonwealth constituted agency
authority instrumentality or other body) which might significantly affect the
overall interest of the State under this Agreement.
Arbitration
32. (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 under this Agreement 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 and settled by arbitration under the
provisions of the Commercial Arbitration Act 1985 and notwithstanding
section 20(1) of that Act each party may be represented before the
arbitrator by a duly qualified legal practitioner or other representative.
(2) Except where
otherwise provided in this Agreement, 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 arbitrator of
any submission to arbitration under this Agreement is 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 under this
Agreement and an award may in the name of the Minister grant any further
extension or variation for that purpose.
Stamp duty exemption
33. (1) The State
shall exempt from any stamp duty which but for the operation of this Clause
would or might be assessed and chargeable on —
(a) this
Agreement;
(b)
instruments of transfer under the Mining Act, of even date with this
Agreement, by BHP Minerals Pty. Ltd. ACN 008 694 782 to the
Company of mining leases Nos. M70/574, M70/575, M70/576, M70/577 and
M70/787; and
(c) any
assignment made by the Company in conformity with the provisions of
subclause (1) of Clause 21 of its interest in this Agreement (and
the Mining Leases) to a body corporate related, within the meaning of the
Corporations Law, to the Company
PROVIDED THAT this
subclause shall cease to apply if the Company does not provide the evidence
required by subclause (3)(b) of Clause 4 by
31 December 1995 and in any event shall not apply to any instrument
or other document executed or made more than 2 years from the date
hereof.
(2) If prior to the
date on which the Bill referred to in Clause 3 to ratify this Agreement
is passed as an Act stamp duty has been assessed and paid on any instrument or
other document or transaction referred to in subclause (1) the State when
such Bill is passed as an Act shall on demand refund any stamp duty paid on
any such instrument or other document or transaction to the person who paid
the same.
Notices
34. Any notice consent or other writing authorised
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 or hand to the Company at its address
hereinbefore set forth or other address in the said State nominated by the
Company to the Minister and by the Company if signed on its behalf by any
person or persons authorised by the Company or by its solicitors as notified
to the State from time to time and forwarded by prepaid post or handed to the
Minister and except in the case of personal service any such notice consent or
writing shall be deemed to have been duly given or sent on the day on which it
would have been delivered in the ordinary course of post.
Environmental protection
35. 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 its
activities under this Agreement that may be made pursuant to the EP Act.
Term of Agreement
36. Subject to the provisions of
subclause (6) of Clause 5 and Clauses 29 and 30, this Agreement
shall expire on the expiration or sooner determination of the last of mining
leases Nos. M70/574, M70/575, M70/576, M70/577, M70/747 and M70/787 to expire
or determine.
Applicable law
37. This Agreement shall be interpreted according
to the law for the time being in force in the State of Western Australia.
IN WITNESS WHEREOF this Agreement has been executed by or on behalf of the
parties hereto the day and year first hereinbefore mentioned.
|
SIGNED by the said MINISTER FOR RESOURCES DEVELOPMENT |
) |
COLIN BARNETT |
|
SIGNED for and on behalf of MINERAL DEPOSITS PTY. LTD. by its duly appointed
Attorney, Ian Roy Egan, under Power of Attorney dated
30 November 1994 in the presence of: |
) |
|
HAULAGE ROUTE
CAPEL — BEENUP SECTION
PLAN A