Western Australian Current Acts Western Australian Current Acts[s. 2]
[Heading amended: No. 19 of 2010 s. 4.]
THIS AGREEMENT is made the 11th day of October 1983, 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 first part NEW BROKEN
HILL CONSOLIDATED LIMITED a Company deemed by Act of parliament of the State
of Victoria to be incorporated in the State of Victoria and having its
principal place of business in the State of Western Australia at 18th Floor,
191 St. George’s Terrace, Perth (hereinafter called “NBHC”),
THE ZINC CORPORATION, LIMITED a company deemed by Act of Parliament of the
State of Victoria to be incorporated in the State of Victoria and having its
principal place of business in the State of Western Australia at 18th Floor,
191 St. George’s Terrace, Perth (hereinafter called “ZC”),
ASHTON MINING LIMITED a company incorporated in the State of Victoria and
having its principal place of business in the State of Western Australia at
6th Floor, 189 St. George’s Terrace, Perth (hereinafter called
“Ashton”), TANAUST PROPRIETARY LIMITED a company incorporated in
the State of Victoria and having its principal place of business in the State
of Western Australia at 2nd Floor, Cecil Building, 6 Sherwood Court, Perth
(hereinafter called “Tanaust”), A.O. (AUSTRALIA) PTY. LIMITED a
company incorporated in the State of Victoria and having its principal place
of business in the State of Western Australia at 6th Floor, 189 St.
George’s Terrace, Perth (hereinafter called “AO”) and
NORTHERN MINING CORPORATION N.L. a company incorporated in the State of
Victoria and having its principal place of business in the State of Western
Australia at 2nd Floor, 31 Ventnor Avenue, West Perth (hereinafter called
“Northern Mining”) of the second part (the said parties of the
second part being hereinafter collectively called “the Joint
Venturers” in which term shall be included their respective successors
and permitted assigns and appointees) and CRA LIMITED a company incorporated
in the State of Victoria and having its principal place of business in the
State of Western Australia at 191 St. George’s Terrace, Perth,
(hereinafter called “the Guarantor”) of the third part.
WHEREAS:
(a) on the 17th day of November, 1981 the State,
CRA Exploration Pty. Limited, Ashton, Tanaust, AO, Northern Mining and the
Guarantor entered into an agreement which was ratified by the Diamond (Ashton
Joint Venture) Agreement Act 1981 and is hereinafter referred to as “the
principal Agreement”;
(b) by an agreement effective as from the 1st day
of July, 1982 CRA Exploration Pty. Limited assigned all its interest in and
under the principal Agreement to NBHC and ZC; and
(c) the parties have agreed to new arrangements in
respect of the accommodation of the Joint Venturers’ mine workforce and
royalty payable under the principal Agreement and desire to vary 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 “relevant town” and substituting the
following —
“
“relevant town” means in relation to the Argyle mining area and
the Ellendale mining area respectively a town established in the Kimberley
region by the Joint Venturers as a housing area for their mine workforce
pursuant to an approved proposal and may in either case with the approval of
the Minister include an existing town;”;
(b) by
deleting in the definition of “relevant townsite”, “the
relevant town” and substituting the following —
“a relevant
town”.
(2) Clause 7 subclause
(1) —
(a) by
deleting the following —
“shall make
provision where appropriate for the necessary workforce and associated
population required to enable the Joint Venturers to mine and recover diamonds
from ore from the area the subject of the proposals and”;
(b) by
deleting paragraph (c) and substituting the following paragraphs —
“(c)
accommodation for the mine workforce in the Kimberley region comprising, in
the discretion of the Joint Venturers, any one or more of the following
—
(i)
establishment of a relevant town;
(ii)
assimilation into any existing town; and
(iii)
establishment of accommodation facilities for the mine
workforce to commute from elsewhere within the said State
including the
provision of utilities, services and associated facilities;
(cc) any
arrangements to commute the mine workforce from any place or places within the
said state desired by the Joint Venturers;”.
(3) Clause 21
subclause (9) —
by deleting subclause
(9) and substituting the following subclauses —
“(9)
Notwithstanding that the Joint Venturers have installed equipment to generate
electricity at the Argyle mining area pursuant to the provisions of subclause
(3) of this Clause, the Joint Venturers shall upon request by the State at any
time or times before 31st December, 1988 enter into negotiations with the
State Energy Commission with a view to the establishment on terms and
conditions to be agreed between the State Energy Commission and the Joint
Venturers of hydro electric generation works on the Ord River and distribution
works to supply, inter alia , the Argyle mining area and any relevant town at
the Argyle mining area.
(10) Subject to
subclause (9) of this Clause and notwithstanding that they have installed
equipment to generate electricity at the Argyle mining area pursuant to the
provisions of subclause (3) of this Clause, the Joint venturers may during the
continuance of this Agreement enter into negotiations with the State Energy
Commission with a view to obtaining further or alternative electricity for the
Argyle mining area and any relevant town at the Argyle mining area.
(11) The provisions of
subclauses (9) and (10) of this Clause shall not oblige the Joint Venturers or
the State Energy Commission to enter into any agreement with the other
pursuant to any negotiations under those subclauses and the provisions of
subclause (1) of this Clause shall not apply to any such negotiations or to
any agreement that may result from those negotiations.”.
(4) By inserting after
Clause 24 the following clauses —
“ Provision for
mine workforce 6
24A. The Joint
venturers shall make provision for the mine workforce serving the Argyle
mining area and the Ellendale mining area respectively in any one or more (in
their discretion) of the following ways —
(a)
commuting the mine workforce on a regular basis, as determined by the Joint
Venturers in accordance with approved proposals, from any place or places
within the said State to the relevant mining area and the provision of
necessary accommodation facilities at or in the vicinity of the relevant
mining area;
(b) the
establishment of a relevant town;
(c) the
assimilation of the mine workforce into any existing town in the Kimberley
region.
Modification of Mines
Regulation Act 6
24B. (1)
For the purpose of this Agreement in respect of any mining
operations of the Joint Venturers under this Agreement the Mines Regulation
Act 1946 shall, where such mining operations are being conducted in accordance
with a schedule of work approved by the Minister for Mines, be deemed to be
modified by the deletion of paragraph (c) of subsection (1) of section 38.
(2) Where in the
opinion of the Minister for Mines any schedule of work approved for the
purpose of subclause (1) of this Clause should be altered for reasons of
safety the Joint Venturers shall consult with the Minister for Mines with a
view to making any alterations to that schedule as the Minister may consider
reasonable in the circumstances.”.
(5) Clause 25 —
(a)
subclause (1) —
by deleting
“Should the approved proposals” and substituting the following
—
“Where any
approved proposals”;
(b)
subclause (4) —
by deleting “If
the approved proposals” and substituting the following —
“Where any
approved proposals”;
(c)
subclause (5) —
by deleting
“Should the approved proposals” and substituting the following
—
“Where any
approved proposals”;
(d)
subclause (6) —
by deleting “the
relevant townsite” and substituting the following —
“a relevant
townsite”.
(6) By deleting Clause
26.
(7) Clause 29 —
(a)
subclause (1) —
(i)
by inserting in paragraph (I) of the definition of
“allowable deductions” after “this Agreement” the
following —
“or the Act to
ratify the agreement dated 11th October, 1983 varying this Agreement”;
(ii)
by inserting in paragraph (v) of the definition of
“allowable capital expenditure” after “and”, where it
last occurs, the following —
“any”;
(b)
subclause (5) paragraph (c) —
(i)
by inserting after “paid” where it first
occurs the following —
“or where any
offset has or offsets have been deducted pursuant to Clause 29C, the estimated
royalty that would have been paid but for that offset or those offsets”;
(ii)
by inserting after “period” where it occurs
in subparagraph (i) and in subparagraph (ii) the following —
“but excluding
any offsets deducted therefrom pursuant to Clause 29C”.
(8) By inserting after
Clause 29 the following clauses —
“29A. The Joint
Venturers shall pay to the State —
(a)
royalties in the manner and at the times provided in Clause 29 and any
increase thereto pursuant to subclause (6) of Clause 30; and
(b) an
additional royalty under this Agreement in the manner and at the times
provided in Clause 29B.
Further royalty
provisions 6
29B. (1)
The Joint Venturers shall pay to the State an additional royalty
of $50,000,000 in the manner and at the times following —
(a) as
to $25,000,000 or such lesser amount as the Minister may allow, within 7 days
after the date of approval by the Minister of the proposals submitted by the
Joint Venturers pursuant to paragraph (B) of subclause (1) of Clause 7
(hereinafter called “the approval date”); and
(b) as
to the balance, within 45 days of the approval date or within such later time
or times as the Minister may allow.
(2) If the amount of
$25,000,000 referred to in paragraph (a) of subclause (1) of this Clause or
such lesser amount as the Minister may allow as therein provided is not paid
by the Joint Venturers to the State within 30 days of the coming into
operation of the Act to ratify the agreement dated 11th October, 1983 varying
this Agreement, the Joint Venturers shall pay interest at the rate of 14% per
annum on the said sum of $50,000,000 for the period from whichever is the
later of 14th November, 1983 or the approval date to the date on which the
said amount of $25,000,000 (or such lesser amount as aforesaid) is paid to the
State such interest to be paid to the State at the time of payment of the said
sum of $25,000,000 (or such lesser amount as aforesaid).
(3) The Joint
venturers shall on demand by the State from time to time pay to the State
interest at the rate of 14% per annum on so much of the said sum of
$50,000,000 as may from time to time after the expiration of 7 days from the
approval date be unpaid.
29C. (1)
Subject to subclause (2) of this Clause, the amount of royalties
that become due for payment by the Joint Venturers in respect of diamonds
recovered from the areas the subject of this Agreement under Clause 29 and any
increase thereto pursuant to subclause (6) of Clause 30 in respect of each
quarter set forth in the Schedule below shall be partially offset by the
amount shown as the scheduled offset amount for each quarter.
SCHEDULE.
|
Production Year |
|
Scheduled |
|---|---|---|
|
1986 . . . . . . . . . . . . |
First . . . . . . . . . . . . . . . . . |
$1,000,000 |
| |
Second . . . . . . . . . . . . . . . |
$1,000,000 |
| |
Third . . . . . . . . . . . . . . . . . |
$1,000,000 |
| |
Fourth . . . . . . . . . . . . . . . . |
$1,000,000 |
|
1987 . . . . . . . . . . . . |
First . . . . . . . . . . . . . . . . . |
$1,625,000 |
| |
Second . . . . . . . . . . . . . . . |
$1,625,000 |
| |
Third . . . . . . . . . . . . . . . . . |
$1,625,000 |
| |
Fourth . . . . . . . . . . . . . . . . |
$1,625,000 |
|
1988 . . . . . . . . . . . . |
First . . . . . . . . . . . . . . . . . |
$1,875,000 |
| |
Second . . . . . . . . . . . . . . . |
$1,875,000 |
| |
Third . . . . . . . . . . . . . . . . . |
$1,875,000 |
| |
Fourth . . . . . . . . . . . . . . . . |
$1,875,000 |
|
1989 . . . . . . . . . . . . |
First . . . . . . . . . . . . . . . . . |
$2,000,000 |
| |
Second . . . . . . . . . . . . . . . |
$2,000,000 |
| |
Third . . . . . . . . . . . . . . . . . |
$2,000,000 |
| |
Fourth . . . . . . . . . . . . . . . . |
$2,000,000 |
|
1990 . . . . . . . . . . . . |
First . . . . . . . . . . . . . . . . . |
$1,500,000 |
| |
Second . . . . . . . . . . . . . . . |
$1,500,000 |
| |
Third . . . . . . . . . . . . . . . . . |
$1,500,000 |
| |
Fourth . . . . . . . . . . . . . . . . |
$1,500,000 |
|
1991 . . . . . . . . . . . . |
First . . . . . . . . . . . . . . . . . |
$1,500,000 |
| |
Second . . . . . . . . . . . . . . . |
$1,500,000 |
| |
Third . . . . . . . . . . . . . . . . . |
$1,500,000 |
| |
Fourth . . . . . . . . . . . . . . . . |
$1,500,000 |
|
1992 . . . . . . . . . . . . |
First . . . . . . . . . . . . . . . . . |
$2,000,000 |
| |
Second . . . . . . . . . . . . . . . |
$2,000,000 |
| |
Third . . . . . . . . . . . . . . . . . |
$2,000,000 |
| |
Fourth . . . . . . . . . . . . . . . . |
$2,000,000 |
|
1993 . . . . . . . . . . . . |
First . . . . . . . . . . . . . . . . . |
$1,000,000 |
| |
Second . . . . . . . . . . . . . . . |
$1,000,000 |
| |
Third . . . . . . . . . . . . . . . . . |
$1,000,000 |
| |
Fourth . . . . . . . . . . . . . . . . |
$1,000,000 |
(2) Whenever the
scheduled offset amount for a quarter plus any amount added thereto as
hereinafter provided exceeds 50% of the royalty otherwise due for payment in
respect of that quarter the amount that may be offset for that quarter shall
be limited to an amount equal to 50% of that royalty and the excess together
with interest on such excess at the rate of 14% per annum calculated from the
date of payment of the royalty for the quarter to which the excess relates to
subject to the proviso first hereinafter contained) whichever is the sooner of
the date upon which royalty in respect of such succeeding quarter is paid or
the date upon which such royalty becomes payable shall be carried forward and
applied by the Joint Venturers to increase the scheduled offset amount
applicable to the next succeeding quarter by the amount carried forward (which
increased amount shall then become the scheduled offset amount for that
quarter) PROVIDED THAT where in such succeeding quarter a royalty is payable
by the Joint Venturers pursuant to subparagraph (i) of paragraph (c) of
subclause (5) of Clause 29 including any increase effected thereto pursuant to
subclause (6) of Clause 30 the excess and the interest then accrued thereon or
so much thereof as does not exceed 50% of that royalty shall be retired by
offset to the extent thereof against that royalty AND PROVIDED FURTHER that in
the event that any such excess remains at the end of 1993 then it shall be
carried forward and applied by the Joint Venturers in the manner provided in
this subclause (2) until the amount of any such excess is reduced to zero.
(3) The scheduled
offset amounts mentioned in subclause (1) of this Clause shall apply in
respect of any royalty, tax or other impost whatsoever that may be levied or
imposed by the State at any time in the future in lieu of royalty payable
pursuant to this Agreement.
(4) If the State takes
action otherwise than in accordance with the terms of this Agreement whereby
the Joint Venturers lose the benefit of this Agreement any outstanding
scheduled offset amounts shall, except where the State has taken such action
after an abandonment by the Joint Venturers of this Agreement or their
operations under this Agreement, become amounts owing by the State to the
Joint Venturers at the respective times they would have otherwise been
available as offset amounts pursuant to Clause 29C.”.
(9) Clause 30
subclause 6 —
by deleting in factor
R “payable pursuant to Clause 29 for that year”
and substituting the
following —
“that would be
payable pursuant to Clause 29 for that year unaffected by any offsets deducted
therefrom pursuant to Clause 29C”.
(10) by deleting
“the revelant town”, wherever it occurs in the principal
Agreement, and substituting the following —
“any relevant
town”.
4. The Guarantor hereby consents to this
Agreement.
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 BRIAN THOMAS BURKE, M.L.A. in the presence
of — MALCOLM J. BRYCE. Minister for Economic Development and Technology |
|
|
|
SIGNED SEALED AND DELIVERED for and on behalf NEW BROKEN HILL CONSOLIDATED
LIMITED by its duly authorised attorney THOMAS BARLOW under Power of Attorney
dated the 10th day of October, 1983 in the presence of — M. A. O’LEARY. |
|
T. BARLOW. |
|
SIGNED SEALED AND DELIVERED for and on behalf of THE ZINC CORPORATION, LIMITED
by its duly authorised attorney THOMAS BARLOW under Power of Attorney dated
the 10th day of October, 1983 in the presence of — M. A. O’LEARY. |
|
(L.S.) T. BARLOW. |
|
SIGNED for and on behalf of ASHTON MINING LIMITED by its duly appointed
Attorney RORY EDWARD STANLEY ARGYLE under Power of Attorney dated the7th day
of October, 1983 in the presence of — G. BILLARD. |
|
R. E. S. ARGYLE. |
|
SIGNED for an on behalf of TANAUST PROPRIETARY LIMITED by its duly appointed
Attorney RORY EDWARD STANLEY ARGYLE under Power of Attorney dated the 7th day
of October, 1983 in the presence of — G. BILLARD. |
|
R. E. S. ARGYLE. |
|
SIGNED for an on behalf of A.O. (AUSTRALIA) PTY. LIMITED by its duly appointed
Attorney RORY EDWARD STANLEY ARGYLE under Power of Attorney dated the 7th day
of October, 1983 in the presence of — G. BILLARD. |
|
R. E. S. ARGYLE. |
|
THE COMMON SEAL of NORTHERN MINING CORPORATION N.L. was hereunto affixed by
authority of the Board of Directors in the presence of — Director C. L. S. HEWITT. Director A. G. BIRCHMORE. |
|
|
|
SIGNED SEALED AND DELIVERED for and on behalf of CRA LIMITED by its duly
authorised attorney THOMAS BARLOW under Power of Attorney dated the 10th day
of October, 1983 in the presence of — M. A. O’LEARY. |
|
T. BARLOW. |
[Schedule 3 inserted: No. 12 of 1983 s. 7.]
