[s. 2]
[Heading inserted: No. 14 of 2023 s. 6.]
THIS AGREEMENT made this fifth day of November, 1979, BETWEEN THE HONOURABLE
SIR CHARLES WALTER MICHAEL COURT, K.C.M.G., O.B.E., 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 THE GRIFFIN COAL MINING COMPANY LIMITED a
company incorporated under the provisions of the Statutes of Western Australia
and having its registered office at 24 King’s Park Road, West Perth, in
the said State (hereinafter called “the Company” in which term
shall be included the Company and its successors and permitted assigns and
appointees) of the other part.
WHEREAS:
(a) the
Company is engaged in the mining of coal at Collie and desires to expand its
activities and increase production and has applied for additional coal mining
leases;
(b) the
State desires to ensure that the coal resource at Collie is developed in the
most economic and practicable way and that the coal requirements of the State
Energy Commission and Industry in Western Australia are adequately safeguarded
consistent with the purposes of this Agreement;
(c) by
agreement dated 29th March, 1979 the State Energy Commission entered into an
agreement with the Company to purchase coal for use in its power stations
during a 25 year period from certain coal mining leases held by the Company.
NOW THIS AGREEMENT WITNESSETH —
Definitions 1
1. In this Agreement subject to the context
—
“advise”, “apply”,
“approve”, “approval”, “consent”,
“certify”, “direct”, “notify”,
“request”, or “require”, means advise, apply, approve,
approval, consent, certify, direct, notify, request, or require in writing as
the case may be and any inflexion or derivation of any of these words has a
corresponding meaning;
“associated company” means —
(a) any
company or corporation providing for the purpose of this Agreement capital of
not less than $2 000 000 or the equivalent thereof which is incorporated or
formed within the United Kingdom the United States of America or Australia or
such other country as the Minister may approve and which —
(i)
is promoted by the Company for all or any of the purposes
of this Agreement and in which the Company or some other company or
corporation acceptable to the Minister has not less than a 25% interest or
some lesser interest acceptable to the Minister; or
(ii)
is related within the meaning of that term as used in
section 6 of the Companies Act 1961 , to any company or corporation in which
the Company or some other company or corporation acceptable to the Minister
holds not less than 25% of the issued ordinary share capital; and
(iii)
is notified to the Minister by the Company as being such
a company;
(b) any
company or corporation approved in writing by the Minister;
“Clause” means a clause of this
Agreement;
“commencement date” means the date the
Bill referred to in Clause 3 comes into operation as an Act;
“Commonwealth” means the Commonwealth
of Australia and includes the Government for the time being thereof;
“Company’s Coal Mining Leases”
means such of the coal mining leases referred to in Schedule “A”
hereof together with such of the coal mining leases granted to the Company
pursuant to Clause 21 as the Company holds from time to time during the
currency of this Agreement;
“Conservator of Forests” means the
person for the time being holding or acting in the office of the Conservator
of Forests under the provisions of the Forests Act;
“Country Areas Water Supply Act” means
the Country Areas Water Supply Act 1947 ;
“Forests Act” means the Forests Act
1918 ;
“Land Act” means the Land Act 1933 ;
“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 (unless a contrary
intention is expressed) the Mining Act 1904 and the amendments thereto and the
regulations made thereunder as in force at the date of execution of this
Agreement;
“mining areas” means the areas over
which the Company at the date hereof holds coal mining leases under the Mining
Act referred to in Schedule “A” hereof together with the areas in
respect of which the Company has at the date hereof applied for coal mining
leases under the Mining Act referred to in Schedules “B” and
“C” hereof;
“mining plan” means any plan to be
furnished to the Minister pursuant to Clause 14;
“Minister” means the Minister in the
Government of the State for the time being responsible (under whatsoever
title) 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 to
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;
“overall scheme” refers to the overall
scheme in Clause 6;
“person” or “persons”
includes bodies corporate;
“private road” means a road (not being
a public road) which is either constructed by the Company in accordance with
its proposals as approved by the Minister pursuant to Clause 7 or agreed by
the parties to be a private road for the purpose of this Agreement;
“public road” means a road as defined
by the Road Traffic Act 1974 ;
“Public Works Act” means the
Public Works Act 1902 ;
“Railways Commission” means the
Western Australian Government Railways Commission established pursuant to the
Government Railways Act 1904 ;
“said State” means the State of
Western Australia;
“State Energy Commission” means the
State Energy Commission of Western Australia established pursuant to the State
Energy Commission Act 1945 ;
“State Energy Commission contract”
means the contract referred to in recital (c) to this Agreement;
“State forest” means land dedicated
under the Forests Act as a State forest;
“this Agreement” “hereof”
and “hereunder” refer to this Agreement whether in its original
form or as from time to time added to varied or amended;
“timber” includes trees when they have
fallen or have been felled, and whether sawn, hewn, split or otherwise
fashioned;
“timber reserve” means land reserved
pursuant to the Forests Act for forestry purposes;
“year 1” means the 12 month period
commencing on 1st July, 1980 and ending on 30th June, 1981 and
“year” followed immediately by any other numeral has a
corresponding meaning.
Interpretation 1
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 35 to extend any period or date
shall be without prejudice to the power of the Minister under Clause 35;
(c)
marginal notes do not affect the interpretation or construction 1 ; and
(d)
reference to an Act other than the Mining 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.
Initial obligations of the State 1
3. The State shall —
(a)
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 31st
December, 1980; and
(b) to
the extent reasonably necessary for the purposes of this Agreement allow the
Company to enter upon Crown lands.
Ratification and operation 1
4. (1) The provisions
of this Agreement other than this Clause and Clauses 1, 2 and 3 shall not come
into operation until the Bill referred to in Clause 3 has been passed by the
Parliament of Western Australia and comes into operation as an Act.
(2) If before 31st
December, 1980 the said Bill is not passed then unless the parties hereto
otherwise agree this Agreement shall then cease and determine and neither of
the parties hereto shall have any claim against the other of them with respect
to any matter or thing arising out of, done, performed or omitted to be done
or performed under this Agreement.
(3) 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.
Reserves of coal for State Energy Commission 1
5. The parties agree that during the currency of
this Agreement fifty per centum of the aggregate of the extractable reserves
of coal from time to time existing in the coal mining leases held by the
Company and set out in Schedule “A” hereof (other than coal mining
leases numbered 449, 450, 453, 454, 532 and 537) together with all coal mining
leases issued to the Company pursuant to Clause 21 in respect of applications
for coal mining leases referred to in Schedule “B” hereof shall be
reserved to satisfy the needs of the State Energy Commission and such
proportion of the said reserves (or so much thereof as the State Energy
Commission may from time to time require) shall be made available to the State
Energy Commission pursuant to mutually acceptable commercial arrangements to
be entered into between the Company and the State Energy Commission.
Initial obligations of the Company-overall scheme 1
6. The Company shall, having regard to the desire
of the State to ensure that the coal resource at Collie is mined in the most
economic and practicable way, forthwith prepare an overall scheme for the
exploration and development of the Company’s coal resource contained in
the mining areas taking full account of the need to satisfy the coal
requirements of both the State Energy Commission and Industry in the said
State for the projected period of this Agreement and the need to take adequate
steps to progressively rehabilitate all areas mined for coal within the
Company’s Coal Mining Leases whether mined by the Company or some other
party before or after the date of this Agreement. The Company shall furnish
the Minister with a copy of the overall scheme at the time of submitting
proposals under subclause (1) of Clause 7.
Company to submit proposals 1
7. (1) On or before
the commencement of year 1 (or thereafter within such extended time as the
Minister may allow as hereinafter provided) and subject to the provisions of
this Agreement the Company shall having due regard to the State Energy
Commission contract submit to the Minister to the fullest extent reasonably
practicable its detailed proposals (which proposals shall include plans where
appropriate and specifications where reasonably required by the Minister) for
the exploration and development of the Company’s coal resource referred
to in the overall scheme for the 15 year period from the commencement of year
1 to the end of year 15 and including 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; namely —
(a)
measures to be taken for the mining of coal by open-cut methods and deep
mining methods consistent with the purposes of this Agreement;
(b)
details of the total tonneage of coal which the Company proposes to mine in
each of years 1 to 15 inclusive;
(c) the
processing of coal where the Company proposes to proceed with production of
processed coal on a commercial basis or to sell coal to another party who
proposes to process the coal;
(d)
roads;
(e)
power supply;
(f) the
clearing of timber;
(g) the
collection and disposal of water (including water pumped or drawn from mines);
(h)
water courses and any alteration to their regime;
(i)
any other works, services or facilities desired by the
Company, including any railway requirements;
(j) use
of local professional services, labour and materials;
(k) any
leases, licences or other tenures of land required from the State; and
(l)
measures to be taken in accordance with best modern practice for the
protection and management of the environment including rehabilitation and/or
restoration of the mined areas referred to in Clause 6 and the workings
associated therewith, the prevention of the discharge of tailings, slimes,
pollutants or overburden into the surrounding country, water courses, lakes or
underground water supplies, the prevention of soil erosion and forest disease
and, to the extent that the Company is responsible for implementing the
matters referred to in paragraphs (a) to (k) of this subclause, consideration
of the environmental effects relating thereto.
Order of proposals 1
(2) The proposals may
with the approval of the Minister and shall if so required by the State be
submitted separately and in any order as to the matter or matters mentioned in
one or more of paragraphs (a) to (l) of subclause (1) of this Clause.
Use of existing infrastructure 1
(3) The proposals
relating to any of the matters mentioned in subclause (1) of this Clause may
with the approval of the Minister and that of any third parties concerned
instead of providing for the construction of new facilities of the kind
therein mentioned provide for the use by the Company upon reasonable terms and
conditions of any existing facilities of such kind.
Consideration of proposals 1
8. (1) On receipt of
the said proposals the Minister shall —
(a)
approve of the said proposals either wholly or in part without qualification
or reservation; or
(b)
defer consideration of or decision upon the same until such time as the
Company submits a further proposal or proposals in respect of some other of
the matters mentioned in subclause (1) of Clause 7 not covered by the said
proposals; or
(c)
require as a condition precedent to the giving of his approval to the said
proposals that the Company makes such alteration thereto or complies with such
conditions in respect thereof as he thinks reasonable and in such a case the
Minister shall disclose his reasons for such conditions.
Advice of Minister’s decision 1
(2) The Minister shall
within 2 months after receipt of the said proposals give notice to the Company
of his decision in respect to the same.
Consultation with Minister 1
(3) If the decision of
the Minister is as mentioned in either of paragraphs (b) or (c) of subclause
(1) of this Clause the Minister shall afford the Company full opportunity to
consult with him and should it so desire to submit new proposals either
generally or in respect to some particular matter.
Minister’s decision subject to arbitration 1
(4) If the decision of
the Minister is as mentioned in either of paragraphs (b) or (c) of subclause
(1) of this Clause and the Company considers that the decision is unreasonable
the Company may within 2 months after receipt of the notice mentioned in
subclause (2) of this Clause elect to refer to arbitration in the manner
hereinafter provided the question of the reasonableness of the decision.
Arbitration award 1
(5) An award made on
an arbitration pursuant to subclause (4) of this Clause shall have force and
effect as follows —
(a) if
by the award 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 1
(6) Notwithstanding
that under subclause (1) of this cause any detailed 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 the
commencement of year 2 or by such extended date 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 37.
Implementation of proposals 1
(7) The Company shall
Implement the approved proposals in accordance with the terms thereof.
Company’s obligations for further proposals 1
9. (1) The Company
shall submit to the Minister detailed proposals for the exploration and
development of the coal resource contained in the Company’s Coal Mining
Leases and as to such of the matters mentioned in paragraphs (a) to (l) of
subclause (1) of Clause 7 as the Minister may require —
(a) for
the 15 year period from the commencement of year 16 to the end of year 30, on
or before the end of year 15, and
(b) for
the 12 year period from the commencement of year 31 to the end of year 42, on
or before the end of year 30.
(2) At the times the
Company submits proposals pursuant to subclause (1) of this Clause the Company
shall furnish to the satisfaction of the Minister evidence that the Company
has used reasonable endeavours to negotiate an agreement with the State Energy
Commission for the supply of coal consistent with the entitlements of the
State Energy Commission in terms of Clause 5 for the period covered by the
relevant proposal.
(3) The provisions of
Clause 7 and Clause 8 (other than subclauses (5) and (6)) shall mutatis
mutandis apply to detailed proposals submitted pursuant to this Clause. The
Company shall implement the approved proposals in accordance with the terms
thereof.
Additional proposals 1
10. If the Company at any time during the
continuance of this Agreement desires to significantly vary its activities
carried on pursuant to this Agreement to a greater extent than those specified
in any 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 (l) of subclause (1) of Clause 7 as the
Minister may require. The provisions of Clause 7 and Clause 8 (other than
subclauses (5) and (6)) shall mutatis mutandis apply to detailed proposals
submitted pursuant to this subclause. The Company shall implement the approved
proposals in accordance with the terms thereof.
Protection and management of the environment 1
11. (1) The Company
shall in respect of the matters referred to in paragraph (l) of subclause (1)
of Clause 7 and which are the subject of approved proposals under this
Agreement, carry out a continuous programme of investigation and research
including monitoring and the study of sample areas to ascertain the
effectiveness of the measures it is taking pursuant to its approved proposals
for rehabilitation and the protection and management of the environment.
Reports 1
(2) The Company shall
during the currency of this Agreement at yearly intervals commencing from the
date when the Company’s proposals are approved submit an interim report
to the Minister concerning investigations and research carried out pursuant to
subclause (1) of this Clause and at 3 yearly intervals commencing from such
date submit a detailed report to the Minister on the result of the
investigations and research during the previous 3 years.
Additional proposals 1
(3) The Minister may
within 2 months of the receipt of the detailed report pursuant to subclause
(2) of this Clause notify the Company that he requires additional detailed
proposals to be submitted in respect of all or any of the matters the subject
of the detailed report.
(4) The Company shall
within 2 months of the receipt of a notice given pursuant to subclause (3) of
this Clause submit to the Minister additional detailed proposals as required
and the provisions of Clause 7 and Clause 8 (other than subclauses (5) and
(6)) where applicable shall mutatis mutandis apply in respect of such
proposals.
(5) The Company shall
implement the decision of the Minister or an award made on an arbitration as
the case may be in accordance with the terms thereof.
Access 1
12. The Company shall permit the Minister or any
officer or other person authorised in that behalf by him to enter upon any
land for the purpose of making any survey, inspection or examination for the
purpose of this Agreement.
Implementation of approved proposals relating to the environment 1
13. The Company may with the consent of the
Conservator of Forests arrange for the Conservator of Forests to carry out on
behalf of the Company any approved proposal relating to the environment at the
cost in all respects of the Company.
Mining plan to be furnished to Minister 1
14. During the currency of this Agreement the
Company shall from the commencement of year 1 and thereafter at 5 yearly
intervals furnish to the Minister in sufficient detail a plan of the
Company’s proposed mine development and coal production under this
Agreement for the ensuing 5 years.
Use of local professional services labour and materials 1
15. (1) The Company
shall for the purposes of this Agreement as far as it is reasonable and
economically practicable —
(a) use
the services of engineers, surveyors, architects and other professional
consultants resident and available within the said State;
(b) use
labour available within the said State;
(c) when
calling for tenders and letting contracts for works materials plant equipment
and supplies ensure that Western Australian suppliers manufacturers and
contractors are given reasonable opportunity to tender or quote; and
(d) give
proper consideration and where possible preference to Western Australian
suppliers manufacturers and contractors when letting contracts or placing
orders for works materials plant equipment and supplies where price quality
delivery and service are equal to or better than that obtainable elsewhere.
(2) The Company shall
from time to time during the currency of this Agreement when requested by the
Minister submit a report concerning its implementation of the provisions of
subclause (1) of this Clause.
Roads 1
16. (1) The Company
shall —
(a) be
responsible for the cost of the construction and maintenance of all private
roads which shall be used in its operations hereunder;
(b) at
its own cost make such provision as shall ensure that all persons and vehicles
(other than those engaged upon the Company’s operations and its invitees
and licensees) are excluded from use of any such private roads; and
(c) at
any place where such private roads are constructed by the Company so as to
cross any railways or public roads provide and maintain at its cost such
reasonable protection as may be required by the Commissioner of Main Roads or
the Railways Commission as the case may be.
Spillage of coal 1
(2) The Company shall
use its best endeavours to minimize spillages of coal on private or public
roads and shall remove spillage and clean up roads whenever such spillage
occurs.
Public Roads 1
(3) The State shall
maintain or cause to be maintained those public roads under the control of the
Commissioner of Main Roads or a local authority which may be used by the
Company to a standard similar to comparable public roads maintained by the
Commissioner of Main Roads or a local authority as the case may be.
(4) In the event that
the Company’s operations hereunder require the use of a public road
referred to in subclause (3) of this Clause which is inadequate for the
purpose, or result in excessive damage or deterioration of any such public
road (other than fair wear and tear) the company shall pay to the State the
whole or an equitable part of the total cost of any upgrading required or of
making good the damage or deterioration as may be reasonably required by the
Commissioner of Main Roads having regard to the use of such public road by
others.
Liability 1
(5) The parties hereto
further covenant and agree with each other that —
(a) for
the purposes of determining whether and the extent to which —
(i)
the Company is liable to any person or body corporate
(other than the State); or
(ii)
an action is maintainable by any such person or body
corporate
in respect of the
death or injury of any person or damage to any property arising out of the use
of any of the roads referred to in subclause (1) of this Clause for the
maintenance of which the Company is solely responsible hereunder and for no
other purpose the Company shall be deemed to be a municipality and the said
roads shall be deemed to be streets under the care control and management of
the Company; and
(b) for
the purposes of this Clause the terms “municipality”
“street” and “care control and management” shall have
the meanings which they respectively have in the Local Government Act 1960 .
Rail 1
Loading facilities 1
17. (1) Pursuant to
the need of the Company to transport coal by rail the Company shall in
accordance with plans and specifications approved by the Railways Commission
at its own cost provide or cause to be provided, maintain and operate coal
loading facilities including weighing facilities sufficient to meet train
operating requirements together with a staff adequate to ensure the proper
operation of all such coal loading facilities.
Loading and trimming of wagons and loading rates 1
(2) The Company shall
ensure that —
(a) all
wagons are loaded within the authorised axle load capacity and shall be
subject to such minimum load per wagon and per train as may be set by the
Railways Commission;
(b) the
load in all wagons is properly trimmed to permit safe transport at all times;
and
(c)
loading and unloading rates as prescribed by the Railways Commission from time
to time are adhered to.
Extensions and additions to track 1
(3) If the Company
requires any additional railway track (including all necessary loops, spurs
and sidings) to service any new coal loading station required by the Company
within the Company’s Coal Mining Leases then the Railways Commission
shall, subject to first agreeing with the Company upon the route such railway
track shall follow, the cost of construction thereof and the terms of payment,
provide such railway track in accordance with plans and specifications
determined by the Railways Commission at the cost of the Company. The
provisions of Clause 42 shall not apply if the Company and the Railways
Commission do not reach agreement as aforesaid. Any such additional railway
track so provided shall be maintained by the Railways Commission at the
expense of the Company to such standards as the Railways Commission shall
specify.
Mining 1
(4) The Company shall
ensure that mining adjacent to the railway shall be carried out in such manner
as not to endanger the railway. The Company shall obtain the prior approval of
the Railways Commission before commencing any mining which might be likely to
affect the stability of the railway.
Railway crossing 1
(5) Notwithstanding
the provisions of paragraph (c) of subclause (1) of Clause 16 the Company
shall be permitted access over the Railway only at crossings approved by the
Railways Commission.
Diversion of railway 1
(6) The Company may
during the currency of this Agreement request the Railways Commission to
divert any portion of the Railway within the Company’s Coal Mining
Leases if in the opinion of the Minister such portion interferes with the
logical and economical development of the Company’s Coal Mining Leases.
On receipt of such request the Railways Commission shall with reasonable
expedition determine an alternative route for the Railway satisfactory to the
Railways Commission and for this purpose may require the Company to provide
land at the Company’s expense. The Railways Commission shall subject to
the availability of land divert the Railway at the Company’s expense
within 18 months of the determination of the alternative route as aforesaid.
Additional rail requirements 1
(7) Where the Company
requires the use of rail facilities for the transport of coal from the
Company’s Coal Mining Leases to a port for export overseas pursuant to
any agreement entered into by the Company with the approval of the Minister
pursuant to Clause 25, the Company shall give reasonable notice to the
Railways Commission of its requirements for additional rolling stock, track,
improvements siding or other facilities and subject to the Railways Commission
approving such requirements and the Company entering into satisfactory
arrangements for their provision and their financing by the Company, the
Railways Commission will provide such requirements.
Electricity 1
Non-interference with Muja power station water supply and transmission lines 1
18. (1) The Company
shall not carry out any operations pursuant to this Agreement so as to
interfere with or endanger the Muja power station or the bores pumps pipelines
and appurtenant works supplying water thereto or any transmission lines
therefrom.
Diversion of transmission lines 1
(2) The Company may
from time to time request the State Energy Commission to divert any portion of
its transmission lines, and on receipt of such request the State Energy
Commission shall with reasonable expedition determine an alternative route for
the transmission lines satisfactory to the State Energy Commission and for
this purpose may require the Company to provide land at the Company’s
expense. The State Energy Commission shall subject to the availability of land
divert at the expense of the Company the transmission lines within 12 months
of the determination of the alternative route as aforesaid.
Water 1
19. (1) Subject to any
right of the Company to utilize or otherwise dispose of water occurring in or
collecting on the Company’s Coal Mining Leases (including water pumped
or drawn from mines) in accordance with any proposal approved hereunder, the
Company shall permit the State or any instrumentality of the State to use so
much of such water remaining as is required by the State or such
instrumentality of the State PROVIDED HOWEVER that nothing in this Clause
shall be deemed to affect any agreement or arrangement between the Company and
the State Energy Commission as to such water, or shall diminish any obligation
upon the Company to comply with the provisions of any Act or law of the State.
(2) Where any proposed
mining activity of the Company is likely to affect the availability to the
State of water from any bore within the Company’s Coal Mining Leases the
Company will give to the State such reasonable notice thereof as will enable
the State to make alternative arrangements for the provision of such water.
Forests 1
20. (1) Where pursuant
to any proposals approved hereunder, the Company is authorised to enter any
State forest or timber reserve for the purposes of exploratory drilling,
clearing of timber and undergrowth, or mining, the Company shall give to the
Conservator of Forests not less than 6 months prior notice of its intention to
so enter and the Conservator may impose upon the Company, conditions as to
such entry for the protection of the State Forest or timber reserve
(consistent with the relevant approved proposal). Such conditions may include
provision for —
(a) the
prohibition of the use by the Company of certain roads and tracks;
(b) the
use by the Company of routes as directed by the Conservator; and
(c) the
disposal of unused coal and overburden.
Permit to take timber for mining purposes 1
(2) Notwithstanding
the provisions of subclause (1) of this Clause, the Company shall from time to
time as may be necessary apply for a permit under the Forests Act to fell,
cut, split and remove timber for mining purposes and provided that the Company
is not in default hereunder and subject to the provisions hereof the
Conservator of Forests shall (unless the permit applied for conflicts with the
relevant working plan of the Conservator of Forests prepared pursuant to
Section 31 of the Forests Act) issue such permit (upon payment of the
appropriate fee) modified where necessary to enable the Company to carry out
its obligations under this Agreement.
Coal mining leases to be granted to the Company 1
21. (1)
(a) Within 60 days after all its proposals
submitted pursuant to Clause 7 have been approved the Company shall notify the
State of such of those applications for coal mining leases referred to in
Schedule “B” and Schedule “C” hereof which the Company
desires to be approved and the State shall cause to be granted to the Company
the coal mining leases so applied for (notwithstanding that the survey in
respect thereof has not been completed but subject to such corrections to
accord with the survey when completed at the Company’s expense) such
coal mining leases to be granted under and, except as otherwise provided in
this Agreement subject to the Mining Act.
(b) Upon
the granting of the coal mining leases pursuant to paragraph (a) of this
subclause the rights of the Company as the holder of any remaining
applications for coal mining leases referred to in Schedule “B”
and Schedule “C” hereof shall forthwith cease and determine (but
without any refund of rent already paid).
Term of coal mining leases granted under this Clause 1
(2) Subject to the
performance by the Company of its obligations under this Agreement and except
as otherwise provided in this Agreement under the Mining Act, the term of any
coal mining lease granted to the Company pursuant to subclause (1) of this
Clause shall be for a period of 21 years commencing from the date of the
Company’s notification to the State referred to in the said subclause
(1) with the right during the currency of this Agreement to take a renewal of
the said term for a further 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 such renewal not later than 1 month
before the expiration of the initial term of any such coal mining leases.
Modification of term of existing coal mining leases 1
(3) Notwithstanding
anything to the contrary contained in any coal mining lease referred to in
Schedule “A” hereof upon the approval of the Company’s
proposals pursuant to Clause 7, the term of such coal mining leases shall,
subject to the provisions of this Agreement remain current during the
continuance of this Agreement.
Effect of determination of Agreement on existing coal mining leases 1
(4) In the event that
this Agreement is determined during the currency of the State Energy
Commission contract —
(a) each
of coal mining leases Nos. 449, 450, 453, 454, 532 and 537 will subject to its
terms and conditions and the Mining Act continue in force for the balance of
the period during which the State Energy Commission contract continues in
force, or for the balance of its unexpired term or any renewed term, whichever
is the longer;
(b) any
other coal mining lease referred to in Schedule “A” hereof then in
existence will subject to its terms and conditions and the Mining Act continue
in force for the balance of its unexpired term;
(c) if
coal mining leases Nos. 458, 459, 460, 463, 464, 465 and 466 expire by
effluxion of time during the currency of the State Energy Commission contract
the State shall cause to be granted to the Company a special lease of such
part or parts of the surface of the land comprised in such coal mining leases
as may be necessary to enable the Company to fulfil its obligations under the
State Energy Commission contract. Such special lease shall be granted upon
such terms and conditions as shall be reasonable having regard to the
requirements of the Company and shall be for a term expiring on the date that
the State Energy Commission contract terminates or is determined.
Other conditions 1
(5) The
Company’s Coal Mining Leases shall be subject to such conditions as the
Minister for Mines may reasonably require from time to time for the purpose of
reducing or making good injury to the surface of the land therein or injury to
anything on or below the surface of that land.
Labour conditions 1
(6) 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 labour conditions imposed by or under the Mining Act in regard to the
Company’s Coal Mining Leases.
Other mining tenements 1
(7) (a)
The State shall not during the currency of this
Agreement register any claim or grant any lease or other mining tenement under
the Mining Act or any similar title under any Act passed in substitution
therefor or in lieu thereof or otherwise by which any person other than the
Company or an associated company will obtain under the laws related to mining
or otherwise any rights to mine or take the natural substances (other than
petroleum in a liquid or gaseous state) within the Company’s Coal Mining
Leases unless the Minister reasonably determines that it is not likely to
unduly prejudice or to interfere with the operations of the Company hereunder
assuming the taking by the Company of all reasonable steps to avoid the
interference.
(b) In
the event of the registration of any claim or grant of any lease or other
mining tenement or other similar title other than a prospecting area pursuant
to paragraph (a) of this subclause, the land contained therein shall be deemed
to be automatically excised from the Company’s Coal Mining Leases (with
abatement of future rent in respect of the land excised but without any
abatement of rent already paid or any rent which has become due and has been
paid in advance).
Access over the Company’s Coal Mining Leases 1
(8) The Company shall
not prohibit the State and third parties with the consent of the State (with
or without stock vehicles and rolling stock) from having access to and passing
over the Company’s Coal Mining Leases (by separate route, road or
Railway) so long as that access and passage does not materially prejudice or
interfere with the operations of the Company under this Agreement.
Mining on privately owned land 1
(9) The Company shall
not commence any mining or related operations for the purposes of this
Agreement on privately owned land within the Company’s Coal Mining
Leases above the depth of 31 metres from the surface of such land unless and
until it has entered into a written agreement with the owner and occupier of
such land for the purpose of providing for compensation (to be assessed or
determined in accordance with the provisions of the Mining Act or any Act
passed in substitution therefor or in lieu thereof) arising out of its
operations or proposed operations on the land and has lodged a true copy of
the agreement with the Department of Mines.
Surrender of Company’s Coal Mining Leases or parts thereof 1
(10) Notwithstanding
the provisions of this Clause the Company may from time to time with the
approval of the Minister for Mines and subject to survey if required by the
Minister for Mines at the Company’s expense surrender to the State all
or any portion or portions (of reasonable size and shape) of the
Company’s Coal Mining Leases provided that such portion or portions have
been rehabilitated in accordance with approved proposals hereunder (with
abatement of future rent in respect to the area surrendered but without any
abatement of rent already paid or any rent which has become due and has been
paid in advance) and the provisions of Section 115 of the Mining Act are
modified accordingly.
Amendment of the Mining Act 1
(11) For the purposes
of the Company’s Coal Mining Leases the definition of “Private
Land” in Section 136 of the Mining Act shall be deemed to be modified by
deleting therefrom the passage “except coal mining”.
(12) The Company shall
prior to the date of notification to the State referred to in subclause (1) of
this Clause have the right to enter upon and explore the areas covered by the
Company’s applications for coal mining leases referred to in Schedule
“B” and Schedule “C” hereof on such terms and
conditions as the Minister shall approve PROVIDED THAT in the case of
privately owned land the consent of the owner and occupier shall first be
obtained.
Leases, licences, permits and easements 1
22. The State shall in accordance with the
Company’s approved proposals grant to the Company, or arrange to have
the appropriate authority or other interested instrumentality of the State
grant for such periods and on such terms and conditions (including renewal
rights where appropriate) as shall be reasonable having regard to the
requirements of the Company, leases, licences, permits and easements for any
purposes related to the Company’s operations under this Agreement.
Modification of Land Act 1
23. For the purpose of this Agreement in respect
of any land sold or leased to the Company by the State the Land Act shall be
deemed to be modified by —
(a) the
substitution for subsection (2) of section 45A of the following subsection
—
“(2) Upon the
Governor signifying approval pursuant to subsection (1) of this section in
respect of any such land the same may subject to this section be sold or
leased;”;
(b) the
deletion of the proviso to section 116;
(c) the
deletion of section 135;
(d) the
deletion of section 143; and
(e) the
inclusion of a power to offer for sale or grant leases or licences for terms
or periods and on such terms and conditions (including renewal rights) and in
forms consistent with the provisions of this Agreement in lieu of the terms or
periods, the terms and conditions and the forms referred to in the Land Act .
The provisions of this Clause shall not operate so as to prejudice the rights
of the State to determine any lease licence or other right or title in
accordance with the other provisions of this Agreement.
Liaison for townsite development 1
24. The Company shall from time to time liaise
with the State and the local municipal authority with a view to ensuring that
appropriate planning and adequate provision is being made for serviced land to
be available for housing development commensurate with the Company’s
operations hereunder.
Agreements with other parties 1
25. (1) The Company
shall not, without the consent of the Minister enter into any agreement for
the sale of coal for export from the State.
(2) Subject to the
provisions of Clause 10 the Company shall not, in any of years 1 to 15
inclusive, enter into any agreement without the consent of the Minister for
the supply of coal which exceeds the tonneage of coal which pursuant to the
provisions of paragraph (b) of subclause (1) of Clause 7 and Clause 8 has been
determined as the maximum tonneage which the Company may sell in the relevant
year.
(3) Notwithstanding
the provisions of subclauses (1) and (2) of this Clause, the Company shall
advise the Minister of any agreement entered into by the Company for the
supply of coal after the commencement date with any person or persons other
than the State Energy Commission and shall submit to the Minister in respect
of such agreement such details as the Minister may require.
Royalties 1
26. (1) The Company
shall pay to the State in respect of all coal mined or produced by the Company
from the Company’s Coal Mining Leases and sold by it royalties at the
rates from time to time prescribed under or pursuant to the provisions of the
Mining Act or any Act passed in substitution therefor or in lieu thereof.
Return and payment of royalties 1
(2) The Company shall
during the continuance of this Agreement within 14 days after the last day of
each month (commencing with the last day of the month in which the
commencement date occurs) furnish to the Minister for Mines a return showing
such particulars as the Minister for Mines requires to enable the calculation
of the royalty payable under this Clause and shall pay to the Minister for
Mines, at the time of furnishing the return the royalty payable hereunder.
Inspection 1
(3) The Company shall
permit the Minister for Mines or his nominee to inspect at all reasonable
times and to take copies of or extracts from all books of account and records
of the Company as are relevant for the purpose of determining the amount of
royalty payable under this Clause and if required by the State take reasonable
steps to satisfy the State either by certificate of a competent independent
party acceptable to the State or otherwise to the reasonable satisfaction of
the Minister for Mines as to all relevant weights and analyses and shall give
due regard to any objection or representation made by the Minister for Mines
or his nominee as to any particular weight or analysis of coal mined or
produced by the Company from the Company’s Coal Mining Leases and sold
by it which may affect the amount of royalty payable hereunder.
Zoning 1
27. The State shall after consultation with the
relevant local authority ensure that the Company’s Coal Mining Leases
and any lands the subject of any Crown grant lease licence or easement granted
to the Company under this Agreement and all freehold and leasehold land
occupied by the Company in accordance with or the subject of proposals
approved hereunder shall be and remain zoned for use or otherwise protected
during the currency of this Agreement so that the operations of the Company
hereunder may be undertaken and carried out thereon without any interference
or interruption by the State by any State agency or instrumentality or by any
local authority or other authority of the State on the ground that such
operations are contrary to any zoning by-law regulation or order.
Rating 1
28. The State shall ensure that notwithstanding
the provisions of any Act or anything done or purported to be done under any
Act the valuation of all lands (whether of a freehold or leasehold nature) the
subject of this Agreement (except as to any part upon which a permanent
residence shall be erected or which is occupied in connection with that
residence and except as to any part upon which there stands any improvements
that are used in connection with a commercial undertaking not directly related
to the mining of coal), shall for rating purposes under the Local Government
Act 1960 be deemed to be on the unimproved value thereof and no such lands
shall be subject to any discriminatory rate, PROVIDED THAT nothing in this
Clause shall prevent the Company making the election provided for by section
533B of the Local Government Act 1960 .
No discriminatory rates 1
29. Except as provided by this Agreement the State
shall not impose or permit or suffer any instrumentality of the said State or
any local authority or other authority to impose discriminatory taxes, rates
or charges of any nature whatever on or in respect of the titles, property or
other assets, products, materials or services used or produced by or through
the operations of the Company hereunder and the State shall not take or permit
any such instrumentality or any local authority or other authority to take any
other discriminatory action that would deprive the Company of any rights
granted or intended to be granted to it under this Agreement.
Resumption for the purposes of this Agreement 1
30. The State may as and for a public work under
the Public Works Act, resume any land required for the purposes of this
Agreement and notwithstanding any other provisions of that Act may sell lease
or otherwise dispose of the land to the Company. The Company shall pay to the
State on demand the costs of and incidental to any land resumed at the request
of and on behalf of the Company pursuant to this Clause.
No resumption 1
31. The State agrees that subject to the
performance by the Company of its obligations hereunder the State shall not
resume or suffer or permit to be resumed by an instrumentality or by any local
authority or other authority of the said State any portion of the land the
subject of any lease mentioned in Clause 22 the resumption of which would
materially impede the Company’s works and activities thereon or any
portion of the land the subject of the Company’s Coal Mining Leases
whereon any of the Company’s works are situate in accordance with
proposals approved hereunder the resumption of which would materially impede
the Company’s mining or other activities thereon nor shall the State
create or grant or permit or suffer to be created or granted by an
instrumentality or authority of the said State any road right of way or
easement of any nature or kind whatsoever over or in respect of the land
comprised in the said leases whereon any of the Company’s works are
situate in accordance with proposals approved hereunder without the consent of
the Company first had and obtained which consent the Company agrees it shall
not arbitrarily or unreasonably withhold.
Assignment 1
32. (1) Subject to the
provisions of this Clause the Company may at any time —
(a)
assign mortgage charge sublet or dispose of to an associated company as of
right or to any other company or person with the consent of the Minister the
Company’s Coal Mining Leases or any of them or the whole or any part of
the rights of the Company hereunder (including its rights to or as the holder
of any lease licence easement grant or other title) and of the obligations of
the Company hereunder PROVIDED THAT the consent of the Minister shall not be
required in respect of any mortgage charge or assignment existing at the date
hereof;
(b)
appoint as of right an associated company or with the consent of the Minister
any other company or person to exercise all or any of the powers functions and
authorities that are or may be conferred on the Company hereunder;
subject however in the case of an assignment subletting or disposition to the
assignee sublessee disponee or the appointee (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 obligations of the Company as lessee of the Company’s Coal
Mining Leases (if appropriate) and 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 disposition or appointment.
(2) Notwithstanding
anything contained in or anything done under or pursuant to subclause (1) of
this Clause the Company shall at all times during the currency of this
Agreement be and remain liable for the due and punctual performance and
observance of all the covenants and agreements on its part contained herein
and in any lease licence easement grant or other title the subject of an
assignment mortgage subletting or disposition or appointment under subclause
(1) of this Clause PROVIDED THAT the Minister may agree to release the Company
from such liability where he considers such release will not be contrary to
the interests of the State.
(3) Notwithstanding
the provisions of the Mining Act, the Transfer of Land Act 1893 and the
Land Act, insofar as the same or any of them may apply —
(a) no
assignment mortgage charge sublease or disposition made or given pursuant to
this Clause of or over the Company’s Coal Mining Leases or any other
lease sublease licence reserve or tenement granted hereunder or pursuant
hereto by the Company or any assignee sublessee disponee or appointee 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 1
33. (1) The parties
hereto may from time to time by agreement in writing add to substitute for
cancel or vary all or any of the provisions of this Agreement or of any lease
licence easement or right granted hereunder or pursuant hereto for the purpose
of more efficiently or satisfactorily implementing or facilitating any of the
objects of this Agreement.
(2) The Minister shall
cause any agreement made pursuant to subclause (1) of this Clause 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 1
34. This Agreement is deemed to be made subject to
any delays in the performance of the obligations hereunder and to the
temporary suspension of the continuing obligations (other than for payment of
moneys due) hereunder that may be caused by or arise from circumstances beyond
the power and control of the party responsible for the performance of those
obligations including without limiting the generality of the foregoing delays
or any such temporary suspension as aforesaid caused by or arising from Act of
God force majeure earthquakes 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
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 and inability profitably to sell coal or factors due to overall
world economic conditions or factors due to action taken by or on behalf of
any government or governmental authority or factors that could not reasonably
have been foreseen PROVIDED ALWAYS that the party whose performance of
obligations is affected by any of the said causes shall promptly give notice
to the other party of the event or events and shall minimise the effect of
such causes as soon as possible after the occurrence.
Power to extend periods 1
35. 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 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.
Determination of Agreement 1
36. (1) In any of the
following events namely if the Company makes default which the State considers
material in the due performance or observance of any of the covenants or
obligations to the State herein or in the Company’s Coal Mining Leases
or any of them or in any lease sublease licence or other title or document
granted or assigned under this Agreement on its part to be performed or
observed or if the Company abandons or repudiates its operations under this
Agreement and such default is not remedied or such operations resumed within a
period of 180 days after notice as provided in subclause (2) of this Clause is
given by the State (or — if the alleged default (or the materiality
thereof) abandonment or repudiation is contested by the Company and within 60
days after such notice is submitted by the Company to arbitration —
within a reasonable time fixed by the arbitration award but not less than 90
days after the making of the arbitration award where the question is decided
against the Company the arbitrator finding that there was a bona fide dispute
and that the Company had not been dilatory in pursuing the arbitration) or if
the Company goes into liquidation (other than a voluntary liquidation for the
purpose of reconstruction) then and in any of such events the State may by
notice to the Company determine this Agreement.
(2) The notice to be
given by the State in terms of subclause (1) of this Clause shall specify the
nature of the default or other ground so entitling the State to exercise such
right of determination and where appropriate and known to the State the party
or parties responsible therefor and shall be given to the Company and all such
assignees mortgagees chargees and disponees for the time being of the
Company’s Coal Mining Leases or any of them and 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 32 whose name and address
for service or notice has previously been notified in writing to the State by
the Company of any such assignee mortgagee chargee or disponee.
(3) The abandonment or
repudiation by or liquidation of the Company referred to in subclause (1) of
this Clause means the abandonment or repudiation by or the liquidation of all
of them the Company and all assignees and appointees who have executed and are
for the time being bound by a deed of convenant in favour of the State as
provided in Clause 32.
(4) If the default
referred to in subclause (1) of this Clause shall not have been remedied after
such notice or within the time fixed by the arbitration award as aforesaid the
State instead of determining this Agreement as aforesaid because of such
default may, subject to the rights of the holder of any mortgage charge or
assignment existing at the date of this Agreement itself remedy such default
or cause the same to be remedied (for which purpose the State by agents
workmen or otherwise shall have power to enter upon lands occupied by the
Company and to make use of all plant machinery equipment and installations
thereon) and the costs and expenses incurred by the State in remedying or
causing to be remedied such default shall be a debt payable by the Company to
the State on demand.
(5) Notwithstanding
the provisions of this Clause, the determination by the State Energy
Commission of the State Energy Commission contract, by reason of the
established default of the Company under such contract, shall be deemed to be
a breach of this Agreement entitling the State to determine this Agreement
forthwith by notice to the Company. The State shall cause a copy of such
notice to be served upon all such assignees, mortgagees, chargees and
disponees for the time being of the Company’s Coal Mining Leases or any
of them and 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 32 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.
Effect of cessation and determination of Agreement 1
37. (1) Upon the
cessation or determination of this Agreement —
(a)
except as otherwise agreed by the Minister the rights of the Company and those
of any assignee or mortgagee of the Company under this Agreement or under any
coal mining lease granted to the Company pursuant to subclause (1) of Clause
21 or any other lease, licence, easement or right granted hereunder or
pursuant hereto and all the right title and interest of the Company and of any
such assignee or mortgagee in and to any land wherever situated granted to the
Company or to such assignee for any other of the purposes of this Agreement
shall thereupon cease and determine, but without prejudice to the liability of
either of the parties in respect of any antecedent breach or default under
this Agreement or in respect of any indemnity given hereunder; and
(b) the
Company shall forthwith pay to the State all moneys that may then have been
payable or accrued due hereunder; and
(c)
except as provided in this Clause or otherwise provided in this Agreement
neither of the parties shall have any claim against the other of them in
respect to any matter or thing contained in or arising out of this Agreement.
(2) Subject to the
provisions of subclause (3) of this Clause upon the cessation or determination
of this Agreement all buildings erections and other improvements erected on
any land other than land held by the Company pursuant to any of the coal
mining leases referred to in Schedule “A” hereof then occupied by
the Company or any associated company or assignee of the Company under any
coal mining lease granted to the Company pursuant to Clause 21 or any other
lease, licence, easement, right or grant made hereunder for the purpose hereof
shall become and remain the absolute property of the State without the payment
of any compensation or consideration to the Company or any other party and
freed and discharged from all mortgages and other encumbrances and the Company
shall do and execute all such deeds documents and other acts matters and
things (including surrenders) as the State may reasonably require to give
effect to the provisions of this subclause.
(3) In the event of
the Company immediately prior to the cessation or determination of this
Agreement or subsequently thereto desiring to remove any of its fixed or
movable plant and equipment from any part of the land occupied by it at the
date of such cessation or determination other than land held by the Company
pursuant to any of the coal mining leases referred to in Schedule
“A” hereof the Company shall give to the State notice of such
desire and thereby shall grant to the State the right or option exercisable
within 3 months thereafter to purchase in situ the said fixed or movable plant
and equipment or any part thereof at a fair valuation to be agreed between the
parties or failing agreement determined by arbitration hereunder.
(4) The determination
of this Agreement shall not affect the operation of subclause (4) of Clause
21.
Environmental protection 1
38. Nothing in this Agreement shall be construed
to exempt the Company from compliance with any requirement in connection with
the protection of the environment arising out of or incidental to the
operations of the Company hereunder that may be made by the State or any State
agency or instrumentality or any local or other authority or statutory body of
the State pursuant to any Act for the time being in force.
Indemnity 1
39. 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 the Company pursuant to this
Agreement or relating to its operations 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.
Licences and consents 1
40. The Company shall make all necessary
applications from time to time to the proper authorities and the Commonwealth
and the State for the grant to it of any licences or consents required under
Commonwealth or State law to permit it to enter this Agreement and perform its
obligations hereunder.
Stamp duty exemption 1
41. (1) The State
shall exempt from any stamp duty which but for the operation of this Clause
would or might be chargeable on —
(a) this
Agreement;
(b) any
instrument executed by the State pursuant to this Agreement granting to or in
favour of the Company or any permitted assignee of the Company any lease
licence easement or right granted or demised hereunder or pursuant hereto; and
(c) any
assignment sublease or disposition (other than by way of mortgage or charge)
and any appointment to or in favour of the Company or an associated company of
any interest right obligation power function or authority made pursuant to the
provisions of this Agreement.
PROVIDED THAT this Clause shall not apply to any instrument or other document
executed or made more than 7 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 referred to in subclause (1) of this Clause 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 to the person who paid the same.
Arbitration 1
42. (1) Any dispute or
difference between the parties arising out of or in connection with this
Agreement the construction of this Agreement or as to the rights duties or
liabilities of either party hereunder or as to any matter to be agreed upon
between the parties under this Agreement shall in default of agreement between
the parties and in the absence of any provision in this Agreement to the
contrary be referred to the arbitration of two arbitrators one to be appointed
by each party the arbitrators to appoint their umpire before proceeding in the
reference and every such arbitration shall be conducted in accordance with the
provisions of the Arbitration Act 1895 .
(2) Except where
proposals are pursuant to the provisions of this Agreement referred to
arbitration, the provisions of this Clause shall not apply to any case where
the State the Minister or any other Minister in the Government of the said
State is by this Agreement given either expressly or impliedly a discretionary
power.
(3) The arbitrators or
umpire (as the case may be) of any submission to arbitration hereunder are
hereby empowered upon the application of either of the parties to grant in the
name of the Minister any interim extension of any period or variation of any
date referred to herein which having regard to the circumstances may
reasonably be required in order to preserve the rights of that party or of the
parties hereunder and an award may in the name of the Minister grant any
further extension or variation for that purpose.
Notices 1
43. Any notice consent or other writing authorised
by or required by this Agreement to be given or sent shall be deemed to have
been duly given or sent by the State if signed by the Minister or by any
senior officer of the Public Service of the State acting by the direction of
the Minister and forwarded by prepaid post to the Company at its registered
office for the time being in the State and by the Company if signed on its
behalf by a director manager or secretary of the Company or by any person or
persons authorised by the Company in that behalf or by its solicitors (which
solicitors have been notified to the State from time to time) and forwarded by
prepaid post to the Minister and any such notice consent or writing shall be
deemed to have been duly given or sent (unless the contrary be shown) on the
day on which it would be delivered in the ordinary course of post.
Consultation 1
44. 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.
Sub-contracting 1
45. 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 operations which it is authorised or obliged to carry out
hereunder.
State Energy Commission contract 1
46. Nothing in this Agreement shall affect the
rights and obligations of the Company or the State Energy Commission under the
State Energy Commission contract.
Inconsistency 1
47. Where any provision in any coal mining lease
referred to in Schedule “A” hereof held by the Company during the
currency of this Agreement is inconsistent with any provision of this
Agreement this Agreement shall prevail.
Applicable law 1
48. This Agreement shall be interpreted according
to the law for the time being in force in the said State.
SCHEDULE “A”
Coal mining leases under the Mining Act held by the Company at the date of
this Agreement 448, 514, 537, 449, 450, 451, 452, 515, 532, 453, 454, 455,
456, 457, 458, 459, 460, 461, 462, 463, 464, 465, 466.
SCHEDULE “B”
Applications for coal mining leases under the Mining Act in the name of the
Company at the date of this Agreement which if granted would be subject to the
reservation of coal to satisfy the needs of the State Energy Commission as
provided in Clause 5. 735, 722, 721, 720, 719, 724, 725, 713, 710, 714, 711,
718, 715, 712, 709, 708, 707, 705, 704, 706.
SCHEDULE “C”
Applications for coal mining leases under the Mining Act in the name of the
Company at the date of this Agreement which if granted would not be subject to
the reservation of coal to satisfy the needs of the State Energy Commission as
provided in Clause 5. 634, 633, 642, 636, 756, 744, 635, 745, 746, 751, 752,
753, 747, 748, 749, 682, 681, 680, 651, 652, 754, 755, 661, 750, 648, 643,
645, 637, 638, 644, 640, 639.
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 THE HONOURABLE SIR CHARLES WALTER MICHAEL COURT, K.C.M.G.,
O.B.E., M.L.A. in the presence of: |
|
CHARLES COURT |
ANDREW MENSAROS
...................................................................
Minister
for
Industrial Development.
THE COMMON SEAL of THE GRIFFIN COAL MINING COMPANY LIMITED was hereunto
affixed by authority of the Board of Directors, and in the presence of: |
|
(C.S.) |
Director. STOWE.
Secretary. D. JESSUP.