Western Australian Consolidated Acts Western Australian Consolidated Acts[s. 2]
[Heading inserted by No. 17 of 1985 s. 6;
amended by No. 19 of 2010 s. 4.]
THIS AGREEMENT made the 8th day of March, 1985 BETWEEN THE HONOURABLE BRIAN
THOMAS BURKE, 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 WESTERN
MINING CORPORATION LIMITED a company incorporated in the State of Victoria and
having its registered office in such State at 360 Collins Street, Melbourne
(hereinafter with its successors permitted assigns and appointees called
“the Company”) of the other part.
WHEREAS:
(a)
Poseidon Limited a company incorporated under the Companies Act of the State
of South Australia and registered in the State of Western Australia as a
foreign company (hereinafter called “Poseidon”) was a party to the
Agreement defined in section 2 of the Poseidon Nickel Agreement Act 1971
;
(b) the
said Agreement was varied by agreement dated the 9th day of April, 1973 (the
said Agreement as varied being hereinafter referred to as “the principal
Agreement”);
(c)
Poseidon Limited by deed of assignment dated the 9th day of April, 1973
assigned a one half share of its right title interest claim and demand in the
principal Agreement to the Company;
(d)
Poseidon Limited by deed of assignment dated the 4th day of February, 1974
assigned its remaining one half share of its right title interest claim and
demand in the principal Agreement to Windarra Nickel Mines Pty. Ltd.;
(e)
Windarra Nickel Mines Pty. Ltd. by deed of assignment dated the 13th day of
July, 1978 assigned all its right title interest claim and demand in the
principal Agreement to the Shell Company of Australia Limited;
(f) The
Shell Company of Australia Limited by deed of assignment dated the 3rd day of
April, 1984 assigned all its right title interest claim and demand in the
principal Agreement to the Company;
(g) the
Company and the State are now the parties to the principal Agreement; and
(h) the
parties desire to vary the provisions of the principal Agreement.
NOW THIS AGREEMENT WITNESSETH:
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 provisions of this Agreement shall not come
into operation until a Bill to approve and ratify this Agreement is passed by
the Legislature of the said State and comes into operation as an Act.
3. The principal Agreement is hereby varied as
follows —
(1) Clause
1 —
(a) by
deleting the definition of “Mining Act” and inserting the
following definitions —
“ “ Mining Act 1904 ” means
the Mining Act 1904 and the amendments thereto and the regulations made
thereunder as in force on the 31st day of December, 1981;
“ Mining Act 1978 ” means the
Mining Act 1978 ; ”;
(b) by
inserting after the definition of “Mining areas” the following
definition —
“ “Mining Lease” means the
mining lease referred to in subclause (1) of Clause 12A and includes any
renewal thereof and according to the requirements of the context shall
describe the land leased as well as the instrument by which it is
leased; ”;
(c) by
deleting the definition of “Minister for Mines” and inserting the
following definition —
“ “Minister for Minerals and
Energy” means the Minister in the Government of the State for the time
being responsible (under whatsoever title) for the administration of the
Mining Act 1904 and the Mining Act 1978 ; ”;
(d) by
inserting, in the paragraph commencing “Reference in this Agreement to
an Act”, after “Act”, where it first occurs, the
following —
“ other than the Mining Act 1904
”.
(2) Clause
6 —
(a) by
inserting after “the said proposals” the
following —
“ or should the Company desire to mine
minerals other than ore ”;
(b) by
deleting “ mutatis mutandis .” and substituting the
following —
“ mutatis mutandis PROVIDED that in the
event of arbitration the award on arbitration shall be final and shall be
accepted and given effect to by the parties and the provisions of Clause 5
dealing with cessation and determination of this Agreement shall not apply.
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. ”.
(3) Clause
11 —
(a) in
subclause (5) — by inserting after “subclause (4)”
the following —
“ or subclause (7) ”;
(b) in
subclause (6) — by deleting “the licence” and
substituting the following —
“ a licence ”;
(c) in
subclause (7) —
(i)
by deleting “the State”, where it last occurs
in the first sentence, and substituting the following —
“ the parties hereto ”;
(ii)
by deleting the last sentence and substituting the
following —
“ The State shall grant to the Company a
licence to develop and draw from such sources sufficient water (subject to
continued availability) to meet that portion of the Company’s daily
water requirements not obtainable from sources developed pursuant to subclause
(4) of this Clause on such terms and conditions as the Minister may
approve. ”;
(d) by
deleting subclause (8).
(4) By inserting after
Clause 12 the following clause —
“ Mining Lease 2
12A. (1)
The State shall upon the surrender by the Company of its right
title and interest in mineral leases numbered 38/27 to 38/89 (both inclusive)
granted pursuant to the provisions of Clause 12 (in this clause called
“the surrendered mineral leases”) cause to be granted to the
Company at rentals specified from time to time in the Mining Act 1978 a
Mining Lease of the land comprised in the surrendered mineral leases
(notwithstanding that the survey in respect thereof has not been completed but
subject to such corrections to accord with the survey when completed) such
Mining Lease to be granted under and, except as otherwise provided in this
Agreement, subject to the Mining Act 1978 but in the form of the Third
Schedule hereto and in respect of all minerals and subject to such of the
conditions of the surrendered mineral leases as the Minister for Minerals and
Energy determines.
Term 2
(2) Subject to the
performance by the Company of its obligations under this Agreement and the
Mining Act 1978 and notwithstanding any provisions of the
Mining Act 1978 to the contrary, the term of the Mining Lease shall be
for a period of 21 years commencing from the date of the grant thereof with
the right during the currency of this Agreement to take successive renewals of
the said term each for a period of 21 years upon the same terms and conditions
subject to the sooner determination of the said term upon the cessation or
determination of this Agreement such right to be exercisable by the Company
making written application for any such renewal not later than 1 month before
the expiration of the current term of the Mining Lease.
Apportionment of rent 2
(3) The Minister for
Minerals and Energy shall make such apportionment of rents as may be necessary
in respect of the surrendered mineral leases.
Expenditure 2
(4) The State shall
ensure that during the currency of this Agreement and subject to compliance
with its obligations hereunder the Company shall not be required to comply
with the expenditure conditions imposed by or under the Mining Act 1978
in regard to the Mining Lease. ”.
(5) Clause
16 —
(a)
subclause (1) —
(i)
by inserting after “mineral leases” the
following —
“ or the Mining Lease ”;
(ii)
by deleting “ Mining Act.” and substituting
the following —
“ Mining Act 1904 or the
Mining Act 1978 as the case may be. ”;
(b)
subclause (2) — by deleting “ Mining Act” and
substituting the following —
“ Mining Act 1904 ”.
(6) Clause
18 — by deleting paragraph (a) and the marginal note
thereto.
(7) Clause
20 — by inserting after “mineral leases” the
following —
“ or the Mining Lease ”.
(8) By deleting Clause
22 and the marginal note thereto.
(9) Clause
32 — by inserting after “mineral leases” the
following —
“ or the Mining Lease ”.
(10) Clause 36
subclause (3) —
(a) by
deleting “section 82 of the Mining Act and of regulations 192 and 193
made thereunder and of ” and substituting the
following —
“ section 82 of the Mining Act 1904 and
regulations 192 and 193 made thereunder, regulations 77 and 110 made under the
Mining Act 1978 and ”;
(b) by
deleting “the Mining Act.” and substituting the
following —
“ the Mining Act 1904 or the Mining
Act 1978 . ”.
(11) By inserting
after the Second Schedule the following Schedule —
“ THE THIRD SCHEDULE
WESTERN AUSTRALIA
POSEIDON NICKEL AGREEMENT ACT 1971
MINING LEASE
Mining Lease No.
The Minister for Minerals and Energy a corporation sole established by the
Mining Act 1978 with power to grant leases of land for the purposes of
mining in consideration of the rents hereinafter reserved and of the covenants
on the part of the Lessee described in the First Schedule to this lease and of
the conditions hereinafter contained and pursuant to the Mining Act 1978
(except as otherwise provided by the Agreement (hereinafter called “the
Agreement”) described in the Second Schedule to this lease) hereby
leases to the Lessee the land more particularly delineated and described in
the Third Schedule to this lease for all minerals subject however to the
exceptions and reservations set out in the Fourth Schedule to this lease and
to any other exceptions and reservations which subject to the Agreement are by
the Mining Act 1978 and by any Act for the time being in force deemed to
be contained herein to hold to the Lessee this lease for a term of twenty-one
years commencing on the date set out in the Fifth Schedule to this lease upon
and subject to such of the provisions of the Mining Act 1978 except as
otherwise provided by the Agreement as are applicable to mining leases granted
thereunder and to the covenants and conditions herein contained or implied and
any further conditions or stipulations set out in the Sixth Schedule to this
lease the Lessee paying therefor the rents and royalties as provided in the
Agreement with the right during the currency of the Agreement and in
accordance with the provisions of the Agreement to take successive renewals of
the term each for a further period of twenty-one years upon the same terms and
conditions subject to the sooner determination of the said term upon cessation
or determination of the Agreement PROVIDED ALWAYS that this lease and any
renewal thereof shall not be determined or forfeited otherwise than in
accordance with the Agreement.
In this lease —
— “Lessee” includes the
successors and permitted assigns of the Lessee and if the Lessee be more than
one the respective successors and permitted assigns of each Lessee.
— If the Lessee be more than one the
liability of the Lessee hereunder shall be joint and several.
— Reference to an Act includes all
amendments to that Act and to any Act passed in substitution therefor or in
lieu thereof and to the regulations and by-laws for the time being in force
thereunder.
FIRST SCHEDULE
WESTERN MINING CORPORATION LIMITED a company incorporated in the State of
Victoria and having its registered office in such State at 360 Collins Street,
Melbourne.
SECOND SCHEDULE
The Agreement ratified by the Poseidon Nickel Agreement Act 1971
including any amendments to that Agreement.
THIRD SCHEDULE
(Description of land)
Section 1 :
Section 2 :
Locality :
Mineral Field:
Area, etc.:
Being the land delineated on Original Plan No. and recorded in the
Department of Mines, Perth.
FOURTH SCHEDULE
All petroleum as defined in the Petroleum Act 1967 on or below the
surface of the land the subject of this lease is reserved to the Crown in
right of the State of Western Australia with the right of the Crown in right
of the State of Western Australia and any person lawfully claiming thereunder
or otherwise authorised to do so to have access to the land the subject of
this lease for the purpose of searching for and for the operations of
obtaining petroleum (as so defined) in any part of the land.
FIFTH SCHEDULE
(Date of commencement of the lease)
SIXTH SCHEDULE
(Any further conditions or stipulations)
In witness whereof the Minister for Minerals and Energy has affixed his seal
and set his hand hereto this day of
19 . ”.
4. Notwithstanding anything contained in the
principal Agreement, Mineral Lease numbered 38/84 shall be deemed to have been
at all material times held under and pursuant to the provisions of the
principal Agreement.
5. Any reference in the principal Agreement (as
amended by this Agreement) to the “Minister for Mines” shall be
read and construed as a reference to the “Minister for Minerals and
Energy”.
IN WITNESS WHEREOF this Agreement has been executed by or on behalf of the
parties hereto the day and year first hereinbefore written.
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SIGNED BY THE HONOURABLE BRIAN THOMAS BURKE, M.L.A., in the presence
of — DAVID PARKER. MINISTER FOR MINERALS AND ENERGY |
|
BRIAN BURKE. |
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THE COMMON SEAL of WESTERN MINING CORPORATION LIMITED was hereto affixed in
the presence of — DIRECTOR H. S. AMOS J. W. WINTERBOTTOM, |
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[C.S.] |
[Schedule 2 inserted by No. 17 of 1985 s. 6.]
