Western Australian Current Acts Western Australian Current Acts[s. 2]
[Heading amended: No. 19 of 2010 s. 4.]
THIS AGREEMENT under Seal made the 10th day of March One thousand nine hundred
and seventy-two BETWEEN THE HONOURABLE JOHN TREZISE TONKIN, M.L.A., Premier of
the State of Western Australia, acting for and on behalf of the said State and
Instrumentalities thereof from time to time (hereinafter called “the
State”) of the one part and MOUNT BRUCE MINING PTY. LIMITED a company
incorporated under the Companies Act 1961 of the said State and having its
registered office at 191 St. George’s Terrace Perth (hereinafter called
“the Company” which expression will include the successors and
assigns of the Company) of the other part.
WHEREAS —
(a) The
Company and Hamersley are satisfied from investigations which prior to 1971
cost over three million dollars ($3,000,000), that the mining areas defined in
clause 1 hereof contain iron ore of tonnages and grades sufficient to warrant
economic recovery and marketing;
(b) The
Company agrees that investigations should be made with a view to the
establishment of a plant for the production of metallised agglomerates or a
plant for the production of steel with a view to its being in a position to
submit to the State proposals for such establishment as are hereinafter
provided.
NOW THIS AGREEMENT WITNESSETH —
1. In this Agreement subject to the context
—
“approve” “approval”
“consent” or “direct” means approve, approval, consent
or direct in writing as the case may be;
“associated company” means —
(a) any
company notified in writing by the Company to the Minister which is
incorporated in the United Kingdom the United States of America or the
Commonwealth of Australia and which is —
(i)
a subsidiary of the Company within the meaning of the
term “subsidiary” in section 6 of the Companies Act 1961 ;
(ii)
promoted by the Company for all or any of the purposes of
this Agreement and in which the Company holds not less than two million
dollars ($2,000,000) of the issued ordinary share capital;
(iii)
a company in which the Company or Hamersley holds not
less than twenty per cent (20%) of the issued ordinary share capital; or
(iv)
a company which is related within the meaning of that
term in the aforesaid section to the Company or to any company in which the
Company holds not less than twenty per cent (20%) of the issued ordinary share
capital; and
(b) any
company approved in writing by the Minister for the purposes of this Agreement
which is associated directly or indirectly with the Company in its business or
operations hereunder;
“associated company of Hamersley”
means —
(a) a
company defined as an “associated company” within the meaning of
the Agreement a copy of which is set out in the First Schedule to the Iron Ore
(Hamersley Range) Agreement Act 1963-1968 ; or
(b) any
company approved in writing by the Minister as an associated company of
Hamersley for the purposes of this Agreement;
“the commencement date” means the 30th
day of June, 1972.
“Commonwealth” means the Commonwealth
of Australia and includes the Government for the time being thereof;
“Company’s wharf” means any
wharf constructed by or on behalf of the Company pursuant to this Agreement
for the shipment of ore from the mineral lease any wharf established by
Hamersley at Dampier in the said State or any temporary wharf for the time
being approved by the Minister as the Company’s wharf for the purposes
hereof during the period to which such approval relates;
“Dampier” includes East Intercourse
Island;
“direct shipping ore” means iron ore
which has an average pure iron content of not less than sixty per cent (60%)
which will not pass through a one half (½) inch mesh screen and which is
sold without concentration or other beneficiation other than crushing and
screening;
“financial year” means a year
commencing on and including the 1st day of July;
“fine ore” means iron ore which has an
average pure iron content of not less than sixty per cent (60%) which will
pass through a one half (½) inch mesh screen and which is sold without
concentration or other beneficiation other than crushing and screening;
“fines” means iron ore (not being
direct shipping ore or fine ore) which will pass through a one half (½)
inch mesh screen;
“f.o.b. revenue” means the price for
iron ore from the mineral lease the subject of any shipment or sale which is
payable by the purchaser thereof to the Company or an associated company, less
all export duties and export taxes of all kinds whatsoever and less all costs
and charges properly incurred and payable by the Company to the State or a
third party from the time the ore shall be placed on ship at the
Company’s wharf to the time the same is delivered and accepted by the
purchaser, including —
(1)
ocean freight;
(2)
marine insurance;
(3)
port and handling charges at the port of discharge;
(4)
costs of delivering the ore from port of discharge to the
smelter;
(5)
weighing, sampling, assaying, inspection and representation
costs incurred on discharge or delivery;
(6)
shipping agency charges;
(7)
import taxes by the country of the port of discharge; and
(8)
such other costs and charges at the Minister may in his
discretion consider reasonable in respect of any shipment or sale.
For the purposes of this definition —
(a)
The Minister may (in respect of costs or charges
as set out in items (1) to (7) inclusive of this definition) notify the
Company in writing that in respect of any shipment or sale he does not regard
a cost or charge as having been properly incurred and in such case the Company
may refer the matter to arbitration hereunder and unless and until such matter
is resolved in favour of the Company, such cost or charge shall not be deemed
to have been properly incurred.
(b)
Notwithstanding anything contained in this
definition to the contrary, a cost or charge as set out in items (1) to (7)
inclusive of this definition shall not (unless the Minister so determines in
accordance with the provisions of paragraph (c) of this definition) be deemed
to be properly incurred if such charge is directly or indirectly imposed upon
or incurred by the Company or an associated company pursuant to an arrangement
entered into between the Company and the State.
(c)
Costs or charges other than those set out in items
(1) to (7) inclusive of this definition and costs and charges to which
paragraph (b) of this definition applies shall be deemed to be properly
incurred if the Minister in his discretion so determines and in making his
determination the Minister shall have regard to such matters as the parties to
and the bona fide nature of the transaction resulting in the cost or charge.
“Hamersley” means Hamersley Iron Pty.
Limited a company incorporated under the Companies Act 1961 of the State of
Victoria;
“integrated iron and steel industry”
means an industry for the manufacture of iron and steel or for the manufacture
of steel from iron ore by a process which does not necessarily involve the
production of pig iron or basic iron in the production of steel;
“iron ore concentrates” means products
(whether in pellet or other form) resulting from secondary processing but does
not include metallised agglomerates;
“Land Act” means the Land Act 1933 ;
“mineral lease” means the mineral
lease referred to in sub-clause (2) of clause 4 hereof and includes any
renewal thereof;
“Mining Act” means the Mining Act 1904
;
“mining areas” means the areas
delineated and coloured red on the plan marked “A” initialled by
or on behalf of the parties hereto for the purpose of identification;
“Minister” means the Minister in the
Government of the said State for the time being responsible (under whatsoever
title) for the administration of the Ratifying Act and pending the passing of
that Act means the Minister for the time being designated in a notice from the
State to the Company and includes the successors in office of the Minister;
“metallised agglomerates” means
products resulting from the reduction of iron ore or iron ore concentrates by
any method whatsoever and having an iron content of not less than eighty-five
percent (85%);
“month” means calendar month;
“notice” means notice in writing;
“ore” means iron ore;
“person” or “persons”
includes bodies corporate;
“port” means the port or harbour
developed or to be developed pursuant to this Agreement and shall include such
adjacent land area to serve the Company’s wharf but shall not include
the port established by Hamersley at Dampier nor such adjacent land as is
leased by Hamersley to serve that port;
“port townsite” means the townsite
determined pursuant to this Agreement to be expanded and developed near the
port;
“Ratifying Act” means the Act to
ratify this Agreement and referred to in clause 3 hereof;
“said State” means the State of
Western Australia;
“secondary processing” means
concentration or other beneficiation of iron ore other than by crushing or
screening and includes thermal electrostatic magnetic and gravity processing
and pelletisation and the production of metallised agglomerates;
“special lease” means a special lease
or licence to be granted in terms of this Agreement under the Ratifying Act
the Land Act or the Jetties Act 1926 and includes any renewal thereof;
“this Agreement” “hereof”
and “hereunder” include this Agreement as from time to time added
to varied or amended;
“steel” means steel in the form of
steel billets or manufactured steel products;
“ton” means a ton of two thousand two
hundred and forty (2,240) lbs. net dry weight;
“townsite” means a townsite or
townsites established by the Company on or near the mining areas pursuant to
this Agreement;
“wharf” includes any jetty structure;
“year 1” means the year next following
the commencement date and “year” followed immediately by any other
numeral has a corresponding meaning;
reference in this Agreement to an Act shall
include the amendments to such 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;
power given under any clause of this Agreement
other than clause 52 hereof to extend any period or date shall be without
prejudice to the power of the Minister under the said Clause 52;
marginal notes shall not affect the interpretation
or construction hereof 3 ;
Initial Obligations of State 3
2. 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;
(b) to
the extent reasonably necessary for the purposes of this Agreement allow the
Company to enter upon Crown lands (including land the subject of a pastoral
lease) and survey possible sites for a port, wharf, railways, townsites,
plants for the production or iron ore concentrates, metallised agglomerates,
pig iron, foundry iron and steel, an integrated iron and steel industry, and
stockpiling, processing and other areas required for the purposes of this
Agreement.
Ratification and Operation 3
3. (1) Sub-clause (2)
of clause 3 hereof and the subsequent clauses (other than clauses 52, 54 and
55) of this Agreement shall not operate unless and until —
(a) the
Bill to ratify this Agreement as referred to in paragraph (a) of clause 2
hereof is passed as an Act before the 30th day of June 1972 or such later date
if any as the parties hereto may mutually agree upon; and
(b)
Bills to ratify each of the agreements referred to in the First Schedule
hereto are passed as Acts before the 30th day of June 1972 or such later date
if any as the parties hereto may mutually agree upon.
If the said Bills are not passed before that date or later date or dates (as
the case may be) this Agreement will then cease and determine and neither of
the parties hereto will 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 save as provided in clause 22 of this
Agreement.
(2) The following
provisions of this Agreement shall notwithstanding the provisions of any Act
or law operate and take effect namely —
(a) the
provisions of clauses 4 and 7, the proviso to paragraph (a) of sub-clause (1)
of clause 12, sub-clause (2) of clause 12, clauses 15, 16, 17, 18, 24, 25, 26,
27, 29, 44, 46, 47, 51, 52, 53, 54 and 55;
(b)
subject to paragraph (a) of this subclause the State and the Minister
respectively shall have all the powers discretions and authorities necessary
or requisite to enable them to carry out and perform the powers discretions
authorities and obligations conferred or imposed upon their respectively
hereunder;
(c) no
future Act of the said State will operate to increase the Company’s
liabilities or obligations hereunder with respect to rents or royalties; and
(d) the
State may, as for a public work under the Public Works Act 1902 , resume any
land or any estate or interest in land required for the purpose of this
Agreement and may lease or otherwise dispose of the same to the Company.
Obligation of State Rights of Occupancy 3
4. (1) The State shall
forthwith (subject to the surrender of the rights of occupancy as referred to
in sub-clause (2) of clause 2 of the Agreement firstly referred to in the
First Schedule hereto) cause to be granted to the Company and to the Company
alone rights of occupancy for the purposes of this Agreement (including the
sole right to search and prospect for iron ore) over the whole of the mining
areas under Section 276 of the Mining Act at a rental at a rate of eight
dollars ($8) per square mile per annum payable quarterly in advance for the
period expiring on the 31st day of December, 1972, and shall then and
thereafter subject to the continuance of this Agreement cause to be granted to
the Company as may be necessary successive renewals of such last mentioned
rights of occupancy (each renewal for a period of twelve (12) months at the
same rental and on the same terms) the last of which renewals shall
notwithstanding its currency expire —
(i)
on the date of grant of a mineral lease to the Company
under subclause (2) of this clause; or
(ii)
on the determination of this Agreement pursuant to its
terms whichever shall first happen.
Mineral lease 3
(2) The Company may at
any time after the grant to it of the said rights of occupancy and before the
end of year 2 apply for a mineral lease of any part or parts (not exceeding in
total area three hundred (300) square miles and in the shape of a rectangular
parallelogram or rectangular parallelograms or as near thereto as is
practicable) of the mining areas and thereupon the State shall cause any
necessary survey to be made of the land so applied for (the cost of which
survey to the State will be recouped or repaid to the State by the Company on
demand after completion of the survey) and shall cause to be granted to the
Company a mineral lease of the land so applied for (notwithstanding the survey
in respect thereof has not been completed but subject to such corrections as
may be necessary to accord with the survey when completed) for iron ore in the
form of the Second Schedule hereto for a term which subject to the payment of
rents and royalties hereinafter mentioned and to the performance and
observance by the Company of its obligations under the mineral lease and
otherwise under this Agreement shall be for a period of twenty-one (21) years
therefor with rights to successive renewals of twenty-one (21) years upon the
same terms and conditions but subject to earlier determination upon the
cessation or determination of this Agreement PROVIDED HOWEVER that the Company
may from time to time (without abatement of any rent then paid or payable in
advance) surrender to the State any portion or portions (of reasonable size
and shape) of the mineral lease.
(3) If by the end of
year 2 the Company has not applied for a mineral lease as hereinbefore
provided this Agreement shall cease and determine subject however to the
provisions of sub-clause (13) of clause 5 and clause 22 hereof.
Proposals of the Company 3
5. (1) The
Company’s obligations to submit proposals under sub-clause (3) of this
clause and its obligations under clause 6 paragraph (n) of sub-clause (1) of
clause 12 and clause 13 hereof shall all be subject to the condition precedent
that hereafter either of the following events occurs, namely —
(a) that
at least fifty-one per cent (51%) of the issued ordinary share capital of the
Company ceases to be held by any one or more of Hamersley, an associated
company of Hamersley or associated companies of Hamersley at a time when the
Company is the holder of the rights of occupancy required to be granted under
sub-clause (1) of clause 4 hereof or (after a mineral lease has been granted
under sub-clause (2) of the said clause 4) at a time when the Company is the
holder of the said mineral lease; or
(b) the
said rights of occupancy cease to be held by the Company or any one or more of
Hamersley, an associated company of Hamersley or associated companies of
Hamersley (otherwise than by reason of the expiry thereof) or (after the said
mineral lease has been granted as aforesaid) the said mineral lease ceases to
be held by the Company or any one or more of Hamersley, an associated company
of Hamersley or associated companies of Hamersley.
(2) If hereafter
either of the events mentioned in sub-clause (1) of this clause occurs then
—
(a)
Insofar as has not already been done to the satisfaction of the Minister the
Company will commence forthwith and carry out at its expense (with the
assistance of experienced consultants where appropriate) —
(i) a reconnaissance of sites of
proposed operations pursuant to the Agreement together with the preparation of
suitable maps and drawings;
(ii) an engineering investigation of
the route for a railway from the mining areas to the port or to connect with
Hamersley’s existing railway (as the case may be);
(iii) a study of the technical and
economic feasibility of the mining transporting handling and shipping of ore
from the mining areas;
(iv) the planning of a suitable
townsite and the development of the port townsite in consultation with the
State and having due regard for use by others as well as the Company;
(v) the investigation, in areas
approved by the Minister of suitable water supplies for mining industrial and
townsite purposes;
(vi) metallurgical and market
research.
(b) The
Company shall collaborate with and keep the State fully informed with
quarterly reports as to the progress and results of the Company’s
operations under paragraph (a) of this sub-clause. The Company shall furnish
the Minister with copies of all reports received by it from consultants in
connection with the matters referred to in paragraph (a) of this sub-clause
and with copies of all findings made and reports prepared by it.
(c) If
the State concurrently carries out its own investigations and reconnaissances
in regard to all or any of the matters mentioned in paragraph (a) of this
sub-clause or any port site the Company shall co-operate with the State
therein and so far as reasonably practicable will consult with the
representatives or officers of the State and make full disclosures and
expressions of opinion regarding matters referred to in this sub-paragraph.
(d) The
Company will employ or retain or ensure that experienced consultant engineers
(approved by the Minister) are employed or retained to investigate report upon
and make recommendations in regard to the sites reasonably required by the
Company under this Agreement for the overall development of a suitable port if
necessary for the Company’s operations hereunder (including the
Company’s wharf, areas for installations, stockpiling and other purposes
in the port) but in such regard the Company will require such engineers to
have full regard for the general development of the port with a view to the
reasonable use by others of the port and the Company will furnish to the State
copies of such report and recommendations. When submitting to the Minister
detailed proposals as referred to in sub-clause (3) of this clause hereof in
regard to the matters mentioned in this paragraph the Company will so far as
reasonably practicable ensure that the detailed proposals —
(i) do not materially depart from
the report and recommendation of such engineers;
(ii) provide for the best overall
development of the port so far as the same relates to the Company’s
activities; and
(iii) disclose any conditions of
user and where alternative proposals are submitted the Company’s
preferences in regard thereto.
(3) If hereafter
either of the events mentioned in sub-clause (1) of this clause occurs but
subject to the provisions of sub-clause (10) of this clause the Company shall
by the end of the period of three (3) years after the occurrence of that event
(or such extended date if any as the Minister may approve) and subject to the
provisions of this Agreement unless and to the extent otherwise agreed by the
Minister submit to the Minister to the fullest extent reasonably practicable
its detailed proposals (including plans where practicable and specifications
where reasonably required by the Minister) with respect to the mining by the
Company of iron ore from the mining areas (or so much thereof as shall be
comprised within the mineral lease) with a view to the transport and shipment
of the iron ore mined including (where applicable) the location area layout
design number 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)
(i)
if the Company proposes initially to utilise for the shipment of iron
ore the port established by Hamersley at Dampier aforesaid, provisions for
expansion of that port if necessary; or
(ii) if
the Company proposes initially to utilise for the shipment of iron ore some
other port provision for the port and port development including dredging and
depositing of spoil the provision of navigational aids the Company’s
wharf (the plans and specifications for which wharf shall be submitted to and
be subject to the approval of the State) the berth and swinging basin for the
Company’s use and port installations facilities and services all of
which shall permit of adaptation so as to enable the use of the
Company’s wharf by vessels having an ore carrying capacity of not less
than sixty thousand (60,000) tons;
(b)
the railway from the mining areas to the port of
to connect with Hamersley’s existing railway (as the case may be) and
its proposed operation including joint user conditions (if any) fencing (if
any) crossing places and grade separation (where appropriate) or other forms
of acceptable protection at intersections with public roads;
(c)
townsite and port townsite development and
services and facilities in relation thereto;
(d)
housing;
(e)
water supply;
(f)
generation transmission and distribution of
electricity;
(g)
roads;
(h)
mining crushing screening handling transport and
storage of ore;
(i) air fields;
(j)
any leases licences or other tenures of land
required form the State;
(k)
disposal of waste materials;
(l)
drainage;
(m)
dust control; and
(n)
any other works services or facilities proposed or
desired by the Company.
(4) The Company shall
have the right to submit to the Minister its detailed proposals aforesaid in
regard to a matter or matters the subject of any of the sub-paragraphs
numbered (a) to (n) inclusive of sub-clause (3) of this clause as and when the
detailed proposals become finalised by the Company PROVIDED THAT where any
such matter is the subject of any one of those provisions which refer to more
than one subject matter the detailed proposals will relate to and cover each
of the matters mentioned in that provision.
(5) If the Company
proposes initially to utilise for the shipment of iron ore some port other
than the said port established by Hamersley it shall notwithstanding
sub-clause (4) of this clause submit as its first proposals proposals for the
site for that port and the Minister will within two (2) months after receipt
of the proposals give to the Company notice of his approval thereof or
otherwise. If the Minister does not approve the proposals then he shall within
three (3) months after the giving of his notice submit alternative proposals
for another site for the port. If the said site proposed by the Minister is
not within two (2) months accepted by the Company by notice to the State the
State shall as hereinafter provided permit the development and use ( inter
alia ) for the purpose of this Agreement of a port at Legendre and the Company
may within three (3) months after the expiration of the period of two (2)
months last mentioned submit to the Minister proposals for the development an
use of a port at Legendre as aforesaid (including proposals as to the matters
mentioned in sub-paragraph (ii) of paragraph (a) of sub-clause (3) of this
clause) and including proposals if required by the Minister or desired by the
Company as to user of a port at Legendre in conjunction with others (including
terms and conditions involving the participation in such development and use
by another party or other parties nominated in the proposals). Within two (2)
months after receipt of the proposals the Minister shall give to the Company
notice of his approval or otherwise in respect thereof and shall be at liberty
to specify in such notice such alterations to the proposals as are fair and
reasonable having regard to the interests of the Company and any other party
nominated as aforesaid (including alterations which are fair and reasonable as
aforesaid and which involve the participation in such development and use by
another party or other parties nominated by the Minister). If the Minister
specifies any such alterations then the Company may subject to the provisions
of sub-clause (6) of this clause elect by notice to the State to refer to
arbitration and then two (2) months thereafter shall refer to arbitration as
provided in clause 53 hereof any dispute as to whether the alterations
specified by the Minister are fair and reasonable as aforesaid. If the Company
refers to arbitration any such dispute but by the award on arbitration the
question is decided in favour of the Minister the Company may if it considers
and it can demonstrate to the reasonable satisfaction of the Minister who
shall not act unreasonably that the alterations to the proposals found by the
award to have been fair and reasonable nevertheless would render the
Company’s participation in the development and use of a port at Legendre
not feasible from the point of view of the Company for any reason whatsoever
(whether technical economic or otherwise) by notice to the State given within
two (2) months after the award withdraw its said proposals and in that event
the parties shall continue to negotiate with a view to agreeing upon a site
for the port (either at Legendre or elsewhere) and the terms and conditions
fair and reasonable for the development and use of the port. If the parties
have not reached agreement within three (3) months then either party can
terminate the negotiations. If by the award on arbitration the dispute is
decided in favour of the Company the Minister shall be deemed to have approved
the Company’s proposal without the alteration or alterations in
question. Notwithstanding the foregoing the Company may at any time prior to
the time —
(i) agreement is reached as
aforesaid as to a site for the port (other than at Legendre);
(ii) proposals submitted as
aforesaid in relation to a port at Legendre are approved without alteration or
are deemed to have been so approved; or
(iii) two (2) months after the
Minister specifies alterations to proposals submitted as aforesaid in relation
to Legendre (if the Company fails to refer to arbitration as aforesaid any
dispute in relation thereto) or, the Company having referred such a dispute to
arbitration, after the award on arbitration (as the case may be)
whichever is the earliest, elect by notice to the State to utilise for the
shipment of iron ore the port established by Hamersley at Dampier aforesaid
and thereupon but without prejudice to the provisions of sub-clause (9) of
this clause sub-clauses (3) and (7) of this clause shall be read and construed
as if the Company had initially proposed so to utilise the said port
established by Hamersley and the Company shall submit to the Minister its
detailed proposals as required pursuant to subclause (3) of this clause.
(6) Notwithstanding
anything contained in this Agreement the Minister’s determination in
respect of the Company’s proposals relating to the location of the port
and the proposals relating to the development of the port (insofar as such
development proposals concern the development of the port for use by or in
conjunction with others) and the location of the port townsite shall be final
and no such determination shall be referred to arbitration by the Company.
Consideration of Company’s Proposals 3
(7) Within two (2)
months after receipt of any of the detailed proposals required to be submitted
by the Company pursuant to sub-clause (3) of this clause (other than a
proposal of the kind mentioned in subclause (5) of this clause) the Minister
shall give to the Company notice either of his approval of the proposals
submitted or of alterations desired thereto and in the latter case shall
afford to the Company opportunity to consult with and to submit new proposals
to the Minister. Within two (2) months of the receipt of the notice the
Company may elect by notice to the State to refer to arbitration and within
two (2) months thereafter shall refer to arbitration as provided in clause 53
hereof any dispute as to the reasonableness of the Minister’s decision.
If by the award on arbitration the dispute is decided against the Company then
unless the Company within three (3) months after delivery of the award
satisfies and obtains the approval of the Minister as to the matter or matters
the subject of the arbitration this Agreement shall on the expiration of that
period of three (3) months cease and determine (save as provided in sub-clause
(13) of clause 5 and clause 22 hereof) but if the question is decided in
favour of the Company the decision will 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.
Extension of time 3
(8) The arbitrator
arbitrators or umpire (as the case may be) of any submission to arbitration
hereunder is hereby empowered upon application by either party hereto to grant
any interim extension of time or date referred to herein which having regard
to the circumstances may reasonably be required in order to preserve the
rights of either or both the parties hereunder and an award in favour of the
Company may in the name of the Minister grant any further extension of time
for that purpose.
(9) Notwithstanding
that under the preceding provisions of this clause any detailed proposals
submitted by the Company pursuant to sub-clause (3) of this clause are
approved by the Minister or determined by arbitration award unless each and
every such proposal is so approved or determined by the end of a period of
three (3) years and five (5) months after the occurrence of either of the
events mentioned in sub-clause (1) of this clause or by such extended date if
any as shall be granted pursuant to the provisions hereof then at any time
after the end of the said period or last such extended date as the case may be
the Minister may give to the Company twelve (12) months notice of intention to
determine this Agreement and unless before the expiration of the said twelve
(12) months period all such proposals are so approved or determined this
Agreement shall cease and determine subject however to the provisions of
sub-clause (13) of clause 5 and clause 22 hereof.
(10) If the Company
desires to mine transport and ship iron ore from the mining areas prior to the
occurrence of either of the events mentioned in sub-clause (1) of this clause
the Company shall submit to the Minister detailed proposals as aforesaid as to
all of the matters mentioned in sub-clause (3) of this clause and its time
schedule for the implementation thereof and the provisions of sub-clause (5)
and sub-clause (7) of this clause shall mutatis mutandis apply to the approval
or determination of those proposals provided that if agreement is not reached
as to any matter submitted as mentioned in the said sub-clause (5) and
sub-clause (7) and the Company is not entitled to or fails to refer to
arbitration any dispute in relation thereto or does so refer the dispute but
by the award on arbitration the question is decided in favour of the Minister
and if within two (2) months after the decision of the Minister or the award
on arbitration the Company notifies the Minister that it does not accept the
decision or award then the proposals shall be deemed not to have been
approved, or determined and this Agreement shall continue as if the Company
had never submitted any proposals under this sub-clause (without prejudice to
the Company’s right to submit further proposals under this sub-clause).
To the extent to which the company submits proposals under this sub-clause and
those proposals are approved or determined as aforesaid the Company shall be
relieved from the obligations it might hereafter have under the said
sub-clause (3) to submit proposals to the Minister and to the extent to which
the Company complies with those proposals it shall be relieved from the
obligation it might thereafter have under clause 6 hereof.
(11) The Company may
at any time after it has submitted proposals (either in compliance with its
obligations under sub-clause (3) of this clause or pursuant to sub-clause (10)
of this clause) which have been approved or determined under this clause and
under which the Company proposes initially to utilise for the shipment of iron
ore the port established by Hamersley at Dampier aforesaid submit to the
Minister detailed proposals as aforesaid for the utilisation for the shipment
of iron ore of some other port including proposals as to the matters mentioned
in sub-paragraph (ii) of paragraph (a) of the said sub-clause (3) the
provisions of sub-clause (5) of this clause (other than the last sentence
thereof) and the provisions of sub-clause (7) of this clause (in both cases as
modified by the proviso to the first sentence of sub-clause (10) of this
clause) shall mutatis mutandis apply to the approval or determination of those
proposals.
(12) The Company shall
(except to the extent agreed with the Minister) comply with proposals
submitted under sub-clause (10) or sub-clause (11) of this clause and approved
or determined aforesaid.
(13) Notwithstanding
the preceding provisions of this clause, if under any arbitration under
sub-clause (7) of this clause the dispute is decided against the Company and
subsequently this Agreement ceases and determines pursuant to the said
sub-clause (7) or to sub-clause (9) of this clause the State will not for a
period of three (3) years after such determination enter into a contract with
any other party for the mining transport and shipment of iron ore from the
mining areas on terms more favourable on the whole to the other party than
those which would have applied to the Company hereunder if the question had
been determined in favour of the Company.
6. Subject to the provisions of sub-clause (10) of
clause 5 hereof the Company shall by the end of the period of two (2) years
after the last of the proposals submitted under sub-clause (3) of clause 5
hereof is approved or determined as aforesaid and in accordance therewith but
subject to any variation approved pursuant to clause 47 hereof and at a cost
of not less than fifty million dollars ($50,000,000) construct install provide
and do all things necessary to enable it to mine from the mineral lease and to
transport by rail to the Company’s wharf and to commence shipment
therefrom in commercial quantities at an annual rate of not less than one
million (1,000,000) tons or iron ore and without lessening the generality of
this provision the Company shall be the end of the said period of two (2)
years —
(a)
construct install and provide upon the mineral
lease or in the vicinity thereof mining plant and equipment crushing screening
stockpiling and car loading plant and facilities a power house a workshop and
other things of a design and capacity adequate to enable the Company to mine
handle load and deal with not less than three thousand (3,000) tons of iron
ore per day;
(b)
actually commence to mine and transport by rail
iron ore from the mineral lease so that the average annual rate during the
first two (2) years shall not be less than one million (1,000,000) tons;
(c)
subject to the State having assured to the Company
all necessary rights in or over Crown lands available for the purpose
construct in a proper and workmanlike manner and in accordance with recognised
standards of railways of a similar nature operating under similar conditions
and along a route approved or determined under this clause (but subject to the
provisions of the Public Works Act 1902 to the extent that they are
applicable) the railway the subject of proposals determined or approved under
this clause having a four feet eight and one-half inch (4ft. 8½in.) gauge
and including inter alia any necessary deviations, loops, spurs, sidings,
crossings, points, bridges, signalling switches and other works and
appurtenances and shall provide for crossing places grade separation (where
appropriate) or other protective devices including flashing lights and boom
gates at major road crossings or intersections with existing railways and
operate such railway with sufficient and adequate locomotives freight cars and
other railway stock and equipment to haul at least one million (1,000,000)
tons of iron ore per annum; and
(d)
carry out such other works as are proposed to be
carried out under the proposals as approved or determined under clause 5
hereof.
Further Obligations of State 3
7. (1) As soon as
conveniently may be after any proposals have been approved or determined under
this Agreement the State shall in accordance with such of those proposals as
require the State to accept obligations —
(a)
grant to the Company a lease or leases under the
Mining Act or if mutually agreed a lease or leases under the Land Act
(notwithstanding any of the provisions of those Acts) of such area of land for
any railway proposed to be constructed under the proposals as the Company
shall require at a peppercorn rental and for such term or period and on such
terms and conditions (including renewal rights) as shall be reasonable having
regard to the requirements of the Company hereunder and to the provisions of
this Agreement (the Mining Act being deemed to be so amended varied and
modified as to enable such lease or leases to be granted);
Lands 3
(b)
grant to the Company for such terms or periods and
on such terms and conditions (including renewal rights) as subject to the
proposals shall be reasonable having regard to the requirements of the Company
hereunder and to the overall development and access to and use by others of
lands the subject of any grant to the Company and of services and facilities
provided by the Company —
at peppercorn rental — special leases of Crown lands for the
purposes of the townsite or railway proposed to be constructed or provided
under the proposals;
and
at rentals as prescribed by law or as are otherwise
reasonable — leases rights mining tenements reserves and licences in on
or under Crown lands
under the Mining Act, the Jetties Act 1926 or under the provisions of the
Land Act modified as in sub-clause (3) of this clause provided (as the case
may require) as the Company reasonably requires for its works and operations
hereunder including the construction or provision of railways wharves plants
for the production of iron ore concentrates, metallised agglomerates, pig iron
foundry iron and steel, an intergrated iron and steel industry, airstrips,
roads water supplies and stone and soil for construction purposes; and
Services and
Facilities 3
(c)
provide any services or facilities subject to the
Company bearing and paying the capital cost involved if reasonably
attributable to or resulting from the Company’s project and operations
hereunder and reasonable charges for maintenance and operation except
operation charges in respect of education hospital and police services and
except where and to the extent that the State otherwise agrees —
subject to such terms and conditions as may be approved or determined as
aforesaid PROVIDED THAT from and after the twentieth anniversary of the date
hereof the Company will in addition to the rentals already referred to in this
paragraph pay to the State during the currency of this Agreement after such
anniversary as aforesaid a rental (which if the Company so requests shall be
allocated in respect of such one or more of the special leases or other leases
granted to the Company hereunder and remaining current) equal to twenty-five
(25) cents per ton on all iron ore and iron ore concentrates in respect of
which royalty is payable under paragraph (h) of sub-clause (1) of clause 12
hereof in any financial year such additional rental to be paid within three
(3) months after shipment sale or use as the case may be of the iron ore and
iron ore concentrates SO NEVERTHELESS that the additional rental to be paid
under this proviso shall be not less than three hundred thousand dollars
($300,000) in respect of any such year and the Company will within three (3)
months after expiration of that year pay to the State as further rental the
difference between three hundred thousand dollars ($300,000) and the
additional rental actually paid in respect of that year but any amount so paid
in respect of any financial year in excess of the rental payable for that year
at the rate of twenty-five (25) cents per ton as aforesaid shall be offset by
the Company against any amount payable by them to the State above the minimum
amounts payable to the State under this paragraph in respect of the two (2)
financial years immediately following the financial year in respect of which
the said minimum sum was paid.
Other Rights 3
(2) The State shall on
application by the Company cause to be granted to it such machinery and
tailings leases (including leases for the dumping of overburden) and such
other leases licences reserves and tenements under the Mining Act or under the
provisions of the Land Act modified as in sub-clause (3) of this clause
provided as the Company may reasonably require and request for its purposes
under this Agreement on or near the mineral lease.
(3) For the purposes
of paragraph (b) of sub-clause (1) and sub-clause (2) of this clause
section 81D of the Transfer of Land Act 1893 shall not apply and the Land Act
shall be deemed to be modified by —
(a)
the substitution for sub-section (2) of section
45A of the following sub-section:
(2) Upon the Governor signifying approval
pursuant to sub-section (1) of this section in respect of any such land the
same may subject to this section be leased;
(b)
the deletion of the proviso to section 116;
(c)
the deletion of section 135;
(d)
the deletion of section 143;
(e)
the inclusion of a power to offer for leasing land
within or in the vicinity of any townsite notwithstanding that the townsite
has not been constituted a townsite under section 10; and
(f)
the inclusion of a power to 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 for the terms or periods and upon the terms and conditions and in
the forms referred to in the Act and upon application by the Company in forms
consistent as aforesaid in lieu of the forms referred to in the Act.
(4) The provisions of
sub-clause (3) of this clause shall not operate so as to prejudice the right
of the State to determine any lease licence or other right or title in
accordance with the other provisions of this Agreement.
(5) The State further
covenants with the Company that the State —
Non-interference with
Company’s rights 3
(a)
shall not during the currency of this Agreement
register any claim or grant any lease or other mining tenement under the
Mining Act or otherwise by which any person other than the Company or an
associated company will obtain under the laws relating to mining or otherwise
any rights to mine or take the natural substances (other than petroleum as
defined in the Petroleum Act 1967 ) within the mineral lease 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;
No resumption 3
(b)
subject to the provisions of sub-clause (2) of
clause 18 hereof and subject to the performance by the Company of its
obligations under this Agreement shall not during the currency hereof without
the consent of the Company resume nor suffer nor permit to be resumed by any
State instrumentality or by any local or other authority of the said State any
of the works installations plant equipment or other property for the time
being belonging to the Company and the subject of or used for the purposes of
this Agreement nor any of the lands the subject of any lease or licence
granted to the Company in terms of this Agreement AND without such consent
(which shall not be unreasonably withheld) the State will not create or grant
or permit or suffer to be created or granted by any instrumentality or
authority of the State as aforesaid any road right-of-way or easement of any
nature or kind whatsoever over or in respect of any such lands, which may
unduly prejudice or interfere with the Company’s operations hereunder;
Labour requirements 3
(c)
shall if so requested by the Company and so far as
its powers and administrative arrangements permit use reasonable endeavours to
assist the Company to obtain adequate and suitable labour for the construction
and the carrying out of the works and operations referred to in this Agreement
including suitable immigrants for that purpose;
No discriminatory
rates 3
(d)
except as provided in this Agreement shall not
impose nor permit nor authorise any of its agencies or instrumentalities or
any local or other authority of the State to impose discriminatory taxes rates
or charges of any nature whatsoever on or in respect of the titles property or
other assets products materials or services used or produced by or through the
operations of the Company in the conduct of the Company’s business
hereunder nor will the State take or permit to be taken by any such State
authority any other discriminatory action which would deprive the Company of
full enjoyment of the rights granted and intended to be granted under this
Agreement;
Rights to other
minerals 3
(e)
shall where and to the extent reasonably
practicable on application by the Company from time to time grant or assist in
obtaining the grant to the Company of prospecting rights and mining leases
with respect to limestone dolomite and other minerals reasonably required by
the Company for its purposes under this Agreement; and
Consents to
improvements on leases 3
(f)
shall as and when required by the Company (but
without prejudice to the foregoing provisions of this Agreement relating to
the approval or determination of proposals submitted hereunder) consent in
writing where and to the extent that the Minister considers to be reasonably
justified to the Company making improvements for the purpose of this Agreement
on the land comprised in any lease granted by the State to the Company
pursuant to this Agreement PROVIDED THAT the Company shall also obtain any
other consents legally required in relation to such improvements.
(6) The Company shall
not have any tenant rights in improvements made by the Company on the land
comprised in any lease granted by the State to the Company pursuant to this
Agreement in any case where pursuant to clause 23 hereof such improvements
will remain or become the absolute property of the State.
Iron Ore Concentrates 3
8. (1) The Company
shall before the end of year 4 (or within such extended period not exceeding a
further two (2) years as the Company satisfies the Minister that the Company
reasonably requires and the Minister approves and such further or other
extended period as may be determined by arbitration as hereinafter provided)
—
(a)
submit to the Minister detailed proposals for the
establishment within the said State of a plant for the production of iron ore
concentrates;
(b)
in accordance with those proposals as finally
approved or determined as hereinafter in this clause provided complete the
construction of that plant at a total cost of not less than forty million
dollars ($40,000,000); and
(c)
actually commence to produce iron ore concentrates
from that plant and export those iron ore concentrates over the
Company’s wharf at an average annual rate during the two (2) years next
following the date on which the Company first exports such iron ore
concentrates in commercial quantities of not less than one million (1,000,000)
tons and
the Company will by the end of year 9 (or by the end of such extension of that
period as is equal to the aggregate of any extension approved by the Minister
pursuant to the preceding provisions of this sub-clause and any extension
determined by arbitration as hereinbefore mentioned in this sub-clause)
increase the productive capacity of such plant to a minimum to three million
(3,000,000) tons or iron ore concentrates per annum.
(2) The Minister shall
within two (2) months of the receipt of such proposals give to the Company
notice either of his approval of the proposals (which approval shall not be
unreasonably withheld) or of any objections raised or alterations desired
thereto and in the latter case shall afford to the Company an opportunity to
consult with and to submit new proposals to the Minister. If within two (2)
months of receipt of such notice agreement is not reached as to the proposals
the Company may within a further period of two (2) months elect by notice to
the State to refer to arbitration as hereinafter provided any dispute as to
the reasonableness of the Minister’s decision. If by the award on
arbitration the question is decided in favour of the Company the Minister
shall be deemed to have then approved the proposals of the Company.
(3) The arbitrator,
arbitrators or umpire (as the case may be) of any submission to arbitration
hereunder is hereby empowered upon application by either party hereto to grant
any interim extension of time or date referred to herein which having regard
to the circumstances may reasonably be required in order to preserve the
rights of either or both parties hereunder and an award in favour of the
Company may in the name of the Minister grant any further extension of time
for that purpose.
(4) The Company may at
any time notify the Minister that it desires to reduce or limit the capacity
of the plant hereinbefore referred to in this clause to a capacity of five
hundred thousand (500,000) tons of iron ore concentrates per annum and upon
the Company so notifying the Minister —
(a)
sub-clause (1) of this clause shall be read
construed and take effect as if the words and figures “forty million
($40,000,000)” and “one million (1,000,000)” (where firstly
and secondly appearing) therein were “twenty-five million dollars
($25,000,000)” and “five hundred thousand (500,000)”
respectively and as if the words and figures “and the Company will by
the end of year 9 (or by the end of such extension of that period as is equal
to the aggregate of any extension approved by the Minister pursuant to the
proceeding provisions of this sub-clause and any extension determined by
arbitration as hereinbefore mentioned in this sub-clause) increase the
productive capacity of such plant to a minimum of three million (3,000,000)
tons of iron ore concentrates per annum” were deleted therefrom; and
(b)
any proposals in relation to the said plant
submitted and/or approved or determined pursuant to this clause prior to the
Company so notifying the Minister shall be read construed and take effect as
if they were correspondingly amended; and
(c)
clause 10 hereof shall come into operation.
(5) Notwithstanding
anything hereinbefore contained in this clause if the Company can demonstrate
to the satisfaction of the Minister that it is able to construct the said
plant for the production of iron ore concentrates in accordance with proposals
submitted pursuant to this clause as approved or determined for a sum less
than forty million dollars ($40,000,000) or if the Company has notified the
Minister pursuant to sub-clause (4) of this clause for a sum less than
twenty-five million dollars ($25,000,000) the Minister may in his discretion
approve a lesser sum which shall then be substituted for the sum of forty
million dollars ($40,000,000) or the sum of twenty-five million dollars
($25,000,000) as the case may be.
(6) Notwithstanding
anything to the contrary contained or implied in this Agreement if the
capacity of Hamersley’s existing pelletising plant is, or from time to
time hereafter increases beyond two million (2,000,000) tons per annum —
(a)
each of the capacities mentioned in sub-clause (1)
and sub-clause (4) of this clause shall from time to time be reduced by the
amount of the excess above two million (2,000,000) tons to the intent ( inter
alia) that —
(i) if prior to the end of the
period first mentioned in sub-clause (1) of this clause (as extended as
therein provided) the capacity of Hamersley’s said plant is or hereafter
increases to at least two million five hundred thousand (2,500,000) tons per
annum and (whether before or after such increase) the Company notifies the
Minister pursuant to the said sub-clause (4) the Company shall not have any
obligation whatsoever under this clause;
(ii) if prior to the end of the
period last mentioned in sub-clause (1) of this clause (as extended as therein
provided) the capacity of Hamersley’s said plant is or hereafter
increases to at least three million (3,000,000) tons per annum but not to five
million (5,000,000) tons per annum but the Company does not notify the
Minister pursuant to the said sub-clause (4) the only obligation of the
Company under this clause will be to complete, within the said State and by
the end of the said period (extended as aforesaid) the construction of a plant
for the production of iron ore concentrates having a productive capacity equal
to the difference between the annual capacity of Hamersley’s said plant
as increased from time to time and five million (5,000,000) tons per annum;
and
(iii) if prior to the end of the
period last mentioned in sub-clause (1) of this clause (as extended as therein
provided) the capacity of Hamersley’s said plant is or hereafter
increases to at least five million (5,000,000) tons per annum then the Company
will not have any obligation whatsoever under this clause notwithstanding that
it does not notify the Minister pursuant to the said sub-clause (4);
(b)
each of the amounts of forty million dollars
($40,000,000) and twenty-five million ($25,000,000) previously mentioned in
this clause shall be reduced by such amount as is mutually agreed or failing
agreement, as is determined by arbitration pursuant to clause 53 hereof;
and this clause shall be read construed and take effect accordingly.
Company may make use of certain plant and facilities established by Hamersley
3
9. Notwithstanding anything to the contrary
contained or implied in this Agreement any proposals submitted pursuant to
clause 5 hereof may be proposals involving (as may be agreed by the Company
with Hamersley) the use of all or any of the following, namely, the port
established by Hamersley at Dampier in the said State, the channel, wharf,
berth, swinging basin, port installations, airstrip, townsite, road,
facilities and services established or to be established by Hamersley at
Dampier, the whole or part of Hamersley’s existing railway from Tom
Price to Dampier (including any extension thereof from Tom Price to
Paraburdoo) and any locomotives, freight cars and other railway stock or
equipment now or thereafter provided by Hamersley and subject to approval or
determination of such proposals under clause 5 hereof, the obligations of the
Company under the said clause 5 shall be modified accordingly.
Substitution of 1,000,000 tons metallised agglomerates capacity for 2,500,000
tons iron ore concentrates capacity 3
10. If the Company gives notice to the Minister as
provided in sub-clause (4) of clause 8 hereof then —
(1) The Company will
before the end of year 6 (or such extended date if any as the Minister may
approve) submit to the Minister detailed proposals for the establishment
within the said State of plant for the production of metallised agglomerates
containing provision that such plant will by the end of year 8 (or by the end
of such extension of that period approved by the Minister pursuant to the
preceding provision of this sub-clause) have the capacity to produce not less
than one million (1,000,000) tons of metallised agglomerates annually. Such
capacity shall be additional to the respective capacities in respect of which
the Company may be obliged to submit proposals pursuant to clause 32 hereof.
(2) The Minister shall
within two (2) months of receipt of proposals pursuant to sub-clause (1) of
this clause give to the company notice either of his approval of those
proposals (which approval shall not unreasonably be withheld) or of any
objections raised or alterations desired thereto and in the latter case shall
afford the Company an opportunity to consult with and to submit new proposals
to the Minister. If within two (2) months of receipt of such notice, agreement
is not reached as to the proposals the Company may within a further period of
two (2) months elect by notice to the State to refer to arbitration as
provided in clause 53 of this Agreement any dispute as to the reasonableness
of the Minister’s decision. If by the award on arbitration the question
is decided in favour of the Company the Minister shall be deemed to have
approved of the proposals of the Company.
(3) The Company will
(except to the extent otherwise agreed with the Minister and subject always to
clause 33 hereof) before the end of the time specified in sub-clause (1) of
this clause complete the construction of plant in accordance with the
Company’s proposals as finally approved or determined under this clause.
(4) The arbitrator,
arbitrators or umpire (as the case may be) of any submission to arbitration
hereunder is hereby empowered upon application by either party hereto to grant
any interim extension of time or date referred to herein which having regard
to the circumstances may reasonably be required in order to preserve the
rights of either or both the parties hereunder and an award in favour of the
Company may in the name of the Minister grant any further extension of time
for that purpose.
Additional Proposals 3
11. (1) In the event
that the Company desires —
(a)
to expand its activities beyond those specified in
the Company’s proposals as approved pursuant to clause 5 hereof; or
(b)
to undertake secondary processing; or
(c)
to undertake the production of steel,
the Company shall so notify the Minister who may, consequent upon the outcome
of the negotiations of the parties pursuant to sub-clause (2) of this clause,
require the Company to submit proposals in respect of all or any of the
matters referred to in paragraphs (a) to (n) of sub-clause (3) of clause 5
hereof and in clauses 19 and 20 hereof and the Company shall to the extent of
such requirement submit such proposals. The provisions of clauses 5, 19 and 20
hereof shall, so far as they are applicable, apply to such proposals mutatis
mutandis .
(2) The extent to
which the Company will be required to provide or contribute towards the
capital costs of services and facilities and the maintenance thereof pursuant
to clauses 19 and 20 hereof in consequence of such proposed expansion or
undertaking shall be determined by the Minister following negotiations on such
matters and in making his determination the Minister shall have regard inter
alia to the current and anticipated composition of the town and the extent to
which the ordinary responsibilities of the State with respect to the provision
of the capital cost of such services and facilities are to be assumed by it in
the light of the State’s then current capital resources.
Obligations of Company 3
12. (1) Throughout the
continuance of this Agreement the Company shall —
Operation of railway 3
(a)
operate any railway constructed by it in a safe
and proper manner and where and to the extent that it can do so without unduly
prejudicing or interfering with its operations hereunder allow crossing places
for roads stock and other railways and also transport the passengers and carry
the freight of the State and of third parties on the railway subject to and in
accordance with by-laws (which shall include provision for reasonable charges)
from time to time to be made altered and repealed as provided in sub-clause
(2) of this clause and subject thereto or if no such by-laws are made or in
force then upon reasonable terms and at reasonable charges (having regard to
the cost of the railway to the Company) PROVIDED THAT in relation to its use
of the railway the Company shall not be deemed to be a common carrier at
common law or otherwise;
Compliance with Laws 3
(b)
in the construction operation maintenance and use
of any work installation plant machinery equipment service or facility
provided or controlled by the Company comply with and observe the provisions
hereof and subject thereto the laws for the time being in force in the said
State;
Maintenance 3
(c)
at all times keep and maintain in good repair and
working order and condition and where necessary replace all such works
installations plant machinery and equipment and any railway the
Company’s wharf roads (other than the public roads referred to in clause
15 hereof) and water and power supplies for the time being the subject of this
Agreement;
Shipment of and price
for ore 3
(d)
subject to the provisions of this Agreement ship
from the company’s wharf all ore mined from the mineral lease and sold
and use its best endeavours to obtain therefor the best price possible having
regard to market conditions from time to time prevailing and will not sell any
direct shipping ore as fine ore or fines PROVIDED THAT this paragraph shall
not apply to ore used for the production of iron ore concentrates or in a
plant for the production of metallised agglomerates or steel in any part of
the said State lying north of the twenty-sixth parallel of latitude;
Access through mining
areas 3
(e)
allow the State and third parties to have access
(with or without stock vehicles and rolling stock) over the mineral lease (by
separate route road or railway) PROVIDED THAT such access over shall not
unduly prejudice or interfere with the Company’s operations hereunder.
Protection for
inhabitants 3
(f)
subject to and in accordance with by-laws (which
shall include provision for reasonable charges) from time to time to be made
and altered as provided in sub-clause (2) of this clause and subject thereto
or if no such by-laws are made or in force then upon reasonable terms and at
reasonable charges (having regard to the cost thereof to the Company) allow
the inhabitants for the time being of the townsite being employees licencees
or agents of the Company or persons engaged in providing a legitimate and
normal service to or for the company or its employees licencees or agents to
make use of the water power recreational health and other services or
facilities provided or controlled by the Company;
Use of local labour
and materials 3
(g)
so far as reasonably and economically practicable
use labour available within the said State and give preference to bona fide
Western Australian manufacturers and contractors in the placement of orders
for works materials plant equipment and supplies where price quality delivery
and service are equal to or better than that obtainable elsewhere. In calling
tenders and/or letting contracts for works material plant equipment and
supplies required by the Company, the Company will so call tender quotations
or by other methods of procurement make provision that bona fide Western
Australian manufacturers and contractors are given reasonable opportunity to
tender quote or otherwise be properly considered for such works materials
plant equipment and supplies;
Royalties 3
(h)
pay to the State royalty on all iron ore from the
mineral lease shipped or sold (other than iron ore shipped solely for testing
purposes) or (in the circumstances mentioned in sub-paragraph (iv) of this
paragraph) on iron ore concentrates produced from iron ore from the mineral
lease or on other iron ore from the mineral lease used as mentioned in
sub-paragraph (iv) of this paragraph as follows —
(i) on
direct shipping ore and on fine ore and fines where such fine ore or fines are
not sold or shipped separately as such (not being locally used ore) at the
rate of seven and one half per centum (7½%) of the f.o.b. revenue
(computed at the rate of exchange prevailing on date of receipt by the Company
of the purchase price in respect of ore shipped or sold hereunder) PROVIDED
NEVERTHELESS that such royalty shall not be less than sixty (60) cents per ton
(subject to sub-paragraph (vi) of this paragraph) in respect of ore the
subject of any shipment or sale;
(ii) on
fine ore sold or shipped separately as such (not being locally used ore) at
the rate of three and three quarter per centum (3¾%) of the f.o.b.
revenue (computed as aforesaid) PROVIDED NEVERTHELESS that such royalty shall
not be less than thirty (30) cents per ton (subject to sub-paragraph (vii) of
this paragraph) in respect of ore the subject of any shipment or sale;
(iii) on
fines sold or shipped separately as such (not being locally used ore) at the
rate of fifteen (15) cents per ton;
(iv) on
locally used ore (not being iron ore used for producing iron ore concentrates)
and on iron ore concentrates produced from locally used ore and shipped or
sold or used in plant for the production of steel or in an integrated iron and
steel industry or in plant for the production of metallised agglomerates
(other than iron ore concentrates shipped solely for testing purposes) at the
rate of fifteen (15) cents per ton;
(v) on
all other iron ore (not being locally used ore) at the rate of seven and one
half per centum (7½%) of the f.o.b. revenue (computed as aforesaid)
without any minimum royalty;
(vi) if
the amount ascertained by multiplying the total tonnage of direct shipping ore
shipped or sold (and liable to royalty under sub-paragraph (i) of this
paragraph) in any financial year by sixty (60) cents is less than the total
royalty which would be payable in respect of that ore but for the operation of
the proviso to that sub-paragraph then that proviso shall not apply in respect
of direct shipping ore shipped or sold in that year and at the expiration of
that year any necessary adjustments shall be made accordingly;
(vii) if
the amount ascertained by multiplying the total tonnage of fine ore shipped or
sold separately as such (and liable to royalty under sub-paragraph (ii) of
this paragraph) in any financial year by thirty (30) cents is less than the
total royalty which would be payable in respect of that ore but for the
operation of the proviso to that subparagraph then that proviso shall not
apply in respect of fine ore shipped or sold separately as such in that year
and at the expiration of that year any necessary adjustments shall be made
accordingly;
(viii)
the royalty at the rate of fifteen (15) cents per ton referred to in
sub-paragraphs (iii) and (iv) of this paragraph shall be adjusted up or down
(as the case may be) as at the first day of January 1969 and as at the
beginning of every fifth year thereafter in accordance with any variation in
the average of the basic prices of foundry pig iron c.i.f. Australian capital
city ports as announced by The Broken Hill Proprietary Company Limited or any
subsidiary thereof from time to time during the calendar year immediately
preceding the date at which the adjustment is required to be made as compared
with such average for the calendar year 1963;
(ix) for
the purpose of this paragraph “locally used ore” means iron ore
used by the Company or an associated company both within the Commonwealth and
within the limits referred to in paragraph (m) of this clause for secondary
processing or in an integrated iron and steel industry or in plant for the
production of steel and includes iron ore used by any other person or company
north of the twenty-sixth parallel of latitude in the said State for secondary
processing or in an integrated iron and steel industry or in plant for the
production of steel; and
(x)
where iron ore concentrates are produced from an admixture of iron ore from
the mineral lease and other iron ore a portion (and a portion only) of the
iron ore concentrates so produced being equal to the proportion which the
amount of iron in the iron ore from the mineral lease used in the production
of those iron ore concentrates bears to the total amount of iron in the iron
ore so used shall be deemed to be produced from iron ore from the mineral
lease;
Payment of Royalties 3
(i) within fourteen (14) days after
the quarter days the last days of March June September and December in each
year furnish to the Minister a return showing the quantity of all iron ore
and/or iron ore concentrates the subject of royalty hereunder and shipped sold
or used (as the case may be) during the quarter immediately preceding the due
date of the return and shall not later than two (2) months after such due date
pay to the Minister the royalty payable in respect of iron ore and/or iron ore
concentrates used and in respect of all iron ore and/or iron ore concentrates
shipped or sold pay to the Minister on account of the royalty payable
hereunder a sum calculated on the bases of invoices or provisional invoices
(as the case may be) rendered by the Company to the purchaser (which invoices
the Company shall render without delay simultaneously furnishing copies
thereof to the Minister) of such iron ore and/or iron ore concentrates and
shall from time to time in the next following appropriate return and payment
make (by the return and by cash) all such necessary adjustments (and give to
the Minister full details thereof) when the f.o.b. revenue realised in respect
of the shipments shall have been ascertained;
Rent for Mineral Lease
3
(j)
by way of rent for the mineral lease pay to the
State annually in advance a sum equal to thirty-five (35) cents per acre of
the area for the time being the subject of the mineral lease commencing on and
accruing from the commencement of its term PROVIDED THAT after production is
commenced in commercial quantities within the said State from a plant
constructed by the Company for secondary processing or for iron and steel
manufacture or steel manufacture (whichever is first constructed pursuant to
this Agreement) if and during the period that the total area for the time
being comprised within the mineral lease —
(i) is
not more than one hundred (100) square miles the annual rent shall be twenty
(20) cents per acre;
(ii) is
over one hundred (100) square miles but not more than one hundred and fifty
(150) square miles the annual rent shall be twenty-five (25) cents per acre;
and
(iii) is
over one hundred and fifty (150) square miles but not more than two hundred
(200) square miles the annual rent shall be thirty (30) cents per acre;
Other rentals 3
(k)
pay to the State the rental referred to in the
proviso to sub-clause (1) of clause 7 hereof if and when such rental shall
become payable;
Inspection 3
(l)
permit the Minister or his nominee to inspect at
all reasonable times the books of account and records of the Company relative
to any shipment sale or use of ore hereunder including sale contracts and to
take copies or extracts therefrom and for the purposes of determining the
f.o.b. revenue payable in respect of any shipment of ore hereunder the Company
will take reasonable steps to satisfy the State either by certificate of a
competent independent party acceptable to the State or otherwise to the
Minister’s reasonable satisfaction as to all relevant weights and
analyses and will give due regard to any objection or representation made by
the Minister or his nominee as to any particular weight or assay of ore which
may affect the amount of royalty payable hereunder; and
Export to places
outside the Commonwealth 3
(m)
ensure that unless with the prior written approval
of the Minister to do otherwise all ore from the mineral lease shipped
pursuant to this Agreement will be off-loaded at a place outside the
Commonwealth without such prior written approval the Company shall forthwith
on becoming aware thereof give to the State notice of the fact and pay to the
State in respect of the ore the subject of the shipment such further and
additional rental calculated at a rate not exceeding one dollar ($1) per ton
of the ore as the Minister shall demand without prejudice however to any other
rights and remedies of the State hereunder arising from the breach by the
Company of the provisions hereof. If ore is shipped in a vessel not owned by
the Company or an associated company or any other company in which the Company
has a controlling interest and such ore is off-loaded in the Commonwealth the
Company will not be or be deemed to be in default hereunder if it takes
appropriate action to prevent a recurrence of such an off-loading PROVIDED
FURTHER that the foregoing provisions of this paragraph shall not apply in any
case (including any unforeseeable diversion of the vessel for necessary
repairs or arising from force majeure or otherwise) where the Company could
not reasonably have been expected to take steps to prevent that particular
off-loading PROVIDED ALSO that the provisions of this paragraph shall not
apply —
(i) to
ore used in secondary processing or in an integrated iron and steel industry
or in plant for the production of steel by the Company or an associated
company within the said State;
(ii) to
ore so used by the Company or an associated company within the Commonwealth
but outside the said State to the extent that the tonnage of ore so used does
not in any year exceed fifty per centum (50%) of the total quantity of ore
used in secondary processing or in an integrated iron and steel industry or in
plant for the production of steel by the Company or an associated company
within the State; or
(iii) to
ore so used by the Company or an associated company within the Commonwealth
but outside the said State in excess of fifty per centum (50%) of the total
quantity of ore used in secondary processing or in an integrated iron and
steel industry or in plant for the production of steel by the Company or an
associated company within the said State with the prior approval of the
Minister as aforesaid.
Port townsite air
field 3
(n)
pay to the State or local authority concerned a
sum or sums to be agreed as a fair and reasonable proportion of the cost of
expanding the capacity of any existing air field near the port townsite to
cater for the additional air traffic resulting from the implementation of the
Company’s proposals hereunder.
Other works and
facilities 3
(o)
in accordance with the Company’s approved
proposals and as may be further required pursuant to clause 11 hereof provide
any other works services facilities building or equipment necessary for
carrying out the Company’s obligations hereunder.
By-laws 3
(2) The Governor in
Executive Council may upon recommendation by the Company make alter and repeal
by-laws for the purpose of enabling the Company to fulfil the obligations
under paragraph (a) of sub-clause (1) of this clause and under clause 14
hereof and (unless and until the port townsite is declared a townsite pursuant
to section 10 of the Land Act) under paragraph (f) of sub-clause (1) of this
clause and under clauses 17 and 18 hereof upon terms and subject to conditions
(including terms and conditions as to user charging and limitation of the
liability of the Company) as set out in such by-laws consistent with the
provisions hereof. Should the State at any time consider that any by-law made
hereunder has as a result of altered circumstances become unreasonable or
inapplicable then the Company shall recommend such alteration or repeal
thereof as the State may reasonably require or (in the event of there being
any dispute as to the reasonableness of such requirement) then as may be
decided by arbitration hereunder.
Port and Company’s Wharf 3
13. (1) The Company
shall develop the port, construct the Company’s wharf and carry out all
necessary dredging of approach channels, swinging basin and berth at the
Company’s wharf and provide all necessary buoys, beacons, markers,
navigational aids, lighting equipment and services and facilities in
accordance with the Company’s relevant approved proposal hereunder.
(2) Notwithstanding
the provisions of sub-clause (1) of this clause, the parties recognise that it
may be advantageous for the State to provide all or any of the works
thereunder mentioned and in such case the parties hereto shall together with
other users and potential users of the port confer as to the manner in and the
conditions upon which the State should provide such works to the mutual
advantage of all. The Company shall pay to the State a sum or sums to be
agreed (not exceeding the amount that would have been payable had the Company
carried out the said works) towards the cost of the said works provided by the
State.
Use of Wharf and Facilities 3
14. (1) The Company
shall subject to and in accordance with by-laws (which shall include provision
for reasonable charges) from time to time to be made and altered as provided
in sub-clause (2) of clause 12 hereof and subject thereto, or if no such
by-laws are made or in force then upon reasonable terms and at reasonable
charges (having regard to the cost thereof to the Company) allow the State and
third parties to use the Company’s wharf and port installations wharf
machinery and equipment and wharf and port services and port facilities
constructed or provided by it PROVIDED THAT such use shall not unduly
prejudice or interfere with the Company’s operations hereunder and that
such use shall be subject to the prior approval of the Company.
(2) Subject to the
provisions of clause 24 hereof nothing in this Agreement shall be construed to
limit the application of the Shipping and Pilotage Act 1967 .
Roads 3
15. (1) The Company
shall subject to the State having assured to the Company all necessary rights
in or over Crown lands or reserves available for the purpose at its own cost
and expense and in accordance with its proposals as approved hereunder
construct such new roads as the Company may reasonably require for the
purposes of this Agreement, such roads to be of such widths, of such
materials, with such gates and warning devices, crossings (level or grade
separated where warranted) and pass-overs for cattle and for sheep and along
such routes as the parties hereto shall agree after consideration of the
requirements of the respective shire councils through whose districts any such
roads may pass and after prior consultation with the Minister. Except to the
extent that the Company’s relevant proposal as finally approved or
determined under clause 5 hereof otherwise provides, the Company shall allow
the public to use free of charge any roads constructed or upgraded under this
sub-clause PROVIDED THAT such use shall not unduly prejudice or interfere with
the Company’s operations hereunder.
(2) The Company shall
have the right to use any public roads that may from time to time exist in the
area of its operations under this Agreement both prior to the commencement
date and also in the course of the Company’s operations hereunder. If
the exercise by the Company of such right results in or is likely to result in
intensive use of any public road whereby excessive damage or deterioration is
caused thereto or whereby that road becomes inadequate for use by the Company
and the public, the Company will upon demand (except where and to the extent
that the Commissioner of Main Roads or the local or other authority agrees to
bear the whole or part of such cost) pay to the State or the local authority
concerned or other authority having control of such road the cost of
preventing or making good such damage or deterioration or of upgrading the
road to a standard commensurate with the increased traffic.
(3) If required by the
Company the State shall at the Company’s cost and expense (except where
and to the extent that the Commissioner of Main Roads agrees to bear the whole
or any part of the cost) widen upgrade or re-align any public road existing
from time to time which the Company desires to use for its operations
hereunder over which the State has control subject to the prior approval of
the Commissioner of Main Roads to the proposed work.
Liability of Company 3
16. It is hereby agreed and declared that —
(a)
for the purposes of determining whether and to 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 for the maintenance of
which the Company is 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;
(b)
for the purposes of this paragraph the terms
“municipality” “street” and “care control and
management” shall have the meanings which they respectively have in the
Local Government Act 1960 .
Water 3
17. (1) The Company
shall give to the State not less than two (2) years notice of its estimated
water consumption at the port and port townsite (which amounts or such other
amounts as shall be agreed between the parties hereto are hereinafter called
“the Company’s coastal water requirements”).
(2) Upon receipt of
such notice the State shall in collaboration with the Company and in
accordance with a mutually agreed programme and budget at the expense of the
Company search for suitable subterranean water sources in areas agreed to by
the parties hereto.
(3) In the event that
the search referred to in sub-clause (2) of this clause identifies and proves
subterranean water sources which are mutually agreed to be adequate to supply
the Company’s coastal water requirements the State shall, in accordance
with a mutually agreed programme and budget, construct or arrange to have
constructed at the Company’s expense all bores, valves, pipelines,
meters, tanks, equipment and appurtenances necessary to supply the
Company’s coastal water requirements.
(4) If, within six
months of the commencement of the respective negotiations between the parties
pursuant to sub-clause (2) and sub-clause (3) of this clause towards agreeing
a programme and budget, the parties have not reached agreement, then the
latest proposal of the State with respect to such programme and budget shall
be deemed to be mutually agreed for the purposes of this clause PROVIDED such
agreement shall not prejudice the Company’s right to require the State
to undertake supplementary water studies in the areas agreed pursuant to
sub-clause (2) of this clause, as the Company may require and at the
Company’s expense.
(5) The State may in
its discretion construct the water supply facilities or any related works or
appurtenances mentioned in sub-clause (3) of this clause to achieve a capacity
greater than that needed to meet the Company’s coastal water
requirements and in that event the Company shall pay to the State a sum or
sums to be agreed between the parties hereto as being the Company’s fair
share of the cost of providing the said facilities works or appurtenances.
(6) The State shall
supply to the Company from sources developed by the State pursuant to
sub-clauses (3) and (5) of this clause water up to an amount and at a rate not
less than that set forth in the notice given pursuant to subclause (1) and of
this clause PROVIDED HOWEVER that should such sources prove hydrologically
inadequate to meet the Company’s coastal water requirements the State
may limit the amount of water which may be taken from such sources at any one
time or from time to time to the maximum which such sources are hydrologically
capable of meeting as aforesaid.
(7) The Company shall
give to the State not less than six (6) months notice in respect of its
requirements of water both at the townsite and within the mineral lease to
implement its obligations hereunder (which amounts or such other amounts as
shall be agreed between the parties hereto are hereinafter called “the
Company’s inland water requirements”).
(8) The Company shall
in collaboration with the State search for and make investigations to
establish the availability of suitable subterranean water sources within the
mineral lease or at other locations approved by the State and will employ and
retain experienced ground water consultants where appropriate and will furnish
the Minister with copies of the consultants’ reports or alternatively if
so requested by the Company the State shall carry out the said search and
investigations at the Company’s expense.
(9) The Company shall
provide and construct at its own expense to standards and in accordance with
designs approved by the State in accordance with its relevant proposals all
necessary bores valves pipelines meters tanks equipment and appurtenances
necessary to draw transport use and dispose of water drawn from sources
licensed to the Company.
(10) The Company shall
make application to the State for a licence to draw water up to an amount and
at a rate not less than that set forth in the notice given pursuant to
sub-clause (7) hereof from suitable subterranean water sources identified
pursuant to the search and investigation referred to in sub-clause (8) of this
clause and as are agreed to be adequate and the State shall grant to the
Company such licence PROVIDED HOWEVER that should such sources prove
hydrologically inadequate to meet the Company’s inland water
requirements, the State may limit the amount of water which may be taken from
such sources at any one time or from time to the maximum which such sources
are hydrologically capable of meeting as aforesaid.
(11) If during the
currency of a licence granted under the provisions of this clause the Minister
is of the opinion that it would be desirable for water conservation purposes
or water management purposes that sources of water licensed to the Company be
controlled and operated by the State as part of a regional water supply
scheme, the Minister may on giving six (6) months prior notice to the Company
of his intention, revoke the licence and take over the Company’s water
supply facilities in each case without payment of compensation. Immediately
from the revocation of such licence the State shall, subject only to the
continued hydrological availability of water from such sources, commence and
thereafter continue to supply water to an amount and at a rate required by the
Company being the amount and rate to which the Company was entitled under such
revoked licence and the proviso of sub-clause (10) of this clause shall in
like manner apply to this sub-clause.
(12) The State may in
its discretion develop any district or regional water supply and for the
purposes thereof construct any works of the kind mentioned in sub-clause (9)
of this clause to a greater capacity than that required to supply the
Company’s inland water requirements but in that event the cost of the
works as so enlarged shall be shared by the parties hereto in such manner as
may be agreed to be fair in all the circumstances.
(13) The Company shall
design and construct its plant and facilities for the mining handling
processing and transportation of ore so that as far as practicable non potable
water may be used therein.
(14) The Company shall
pay to the State for water supplied by it pursuant to sub-clause (6) and
sub-clause (11) of this clause a fair price to be negotiated between the
parties hereto having regard to the actual cost of operating and maintaining
the supply and provision for replacement of the water supply facilities.
Notwithstanding the foregoing in respect of water supplied by the State to the
Company as aforesaid for domestic purposes the Company shall pay to the State
therefor charges as levied from time to time pursuant to the provisions of the
Country Areas Water Supply Act 1947 .
(15) The State may
grant to a third party rights to draw water from sources from which the
Company draws water always provided however that —
(a)
where the Company has paid (in whole or in part)
any moneys in respect of the investigation proving development and utilization
of such sources as provided pursuant to this clause, the State shall require
as a condition of such grant that where such third party is or will be a
substantial user of water that party shall reimburse to the Company a
proportion of such moneys as the Minister determines is fair and reasonable
having regard inter alia to the proportion which that party’s actual or
potential requirements for water bears to the total capacity of such sources;
and
(b)
where the Company draws water from a source
developed wholly at its expense pursuant to this clause, the State shall
ensure that it is a condition of such grant to third parties that in the event
that the capacity of the source is reduced, such reduction shall be first
applied to such third parties and thereafter if further reduction is necessary
the State’s and the Company’s requirements shall be reduced in
such proportion as may be agreed.
(16) Without prejudice
to the provision of sub-clause (10) of this clause the Company shall
collaborate with the State in an investigation of surface water, catchments
and storage dams should water supplies from available under-ground sources
prove insufficient to meet the Company’s coastal water requirements and
the Company’s inland water requirements and the Company shall if it
proposes to utilise such water catchments and/or storage dams pay to the State
a sum or sums to be agreed towards the cost of such investigation and towards
the cost of constructing any water storage dam or dams and reticulation
facilities required PROVIDED THAT the State may in its sole discretion elect
to construct a water storage dam or dams and reticulation facilities having a
capacity in excess of that required to supply the Company’s needs and in
that event the Company’s contribution shall be limited to a fair and
reasonable proportion of the total cost of constructing such water storage dam
or dams and reticulation facilities.
(17) Any reference in
this clause to a licence is a reference to a licence under the Rights in Water
and Irrigation Act 1914 and the provisions of that Act relating to water
rights and licences shall except where inconsistent with the provisions of
this Agreement apply to any water sources developed for the Company’s
purposes under this Agreement.
Electricity 3
18. (1) The Company
shall in accordance with its proposals as approved construct without cost or
expense to the State facilities for the generation and transmission of
electricity needed to enable the Company to carry out its obligations
hereunder and design and construct its electrical generation plant equipment
and transmission system so as to facilitate the ultimate connection of such
plant equipment and transmission system with facilities owned by the State
Electricity Commission or other third parties.
(2) The State may at
any time give to the Company twelve months’ notice of its intention to
acquire and may thereafter acquire the Company’s electrical generation
plant equipment and transmission system or any of them up to the first point
of voltage breakdown or such other appropriate point as may be agreed, at a
price to be agreed between the parties and the Company will take all such
steps as may be necessary to give effect to the acquisition. The State
undertakes that in such event the Company shall have first priority for its
purposes hereunder on the power generated by such plant and equipment or
capable of being transmitted along such systems and the State guarantees
subject only to its inability to supply power for any of the reasons set forth
in clause 51 hereof to supply the Company with power for all its purposes
hereunder up to the normal continuous full load capacity of such plant and
equipment and the State undertakes that in the event of such inability to
supply power the State shall take all possible steps to restore such supply
regardless of the time or day when such inability to supply power arises and
may call upon the Company to provide employees for that purpose.
(3) In the event of
the State acquiring the Company’s facilities or any of them as provided
by sub-clause (2) of this clause the Company shall pay to the State
Electricity Commission the cost of all electricity supplied to the Company by
the Commission at a rate equal to the standard tariff applying from time to
time to the Commission’s system less the difference (if any) between the
Commission’s standard tariff in force at the time of the State’s
acquisition of the facilities pursuant to sub-clause (2) of this clause and
the Company’s costs of operating those facilities (including inter alia
appropriate capital charges) at the time of the said acquisition. The
Commission’s rate for electricity calculated as aforesaid shall apply to
an amount of electricity equal to the continuous full load capacity of the
facilities so acquired and the Company shall pay for all electricity supplied
to it by the Commission in excess of such amount at the Commission’s
standard tariff applicable from time to time.
Townsite 3
19. (1) The Company
shall collaborate with the State in the planning, location and development of
the townsite and shall employ an experienced town planner to prepare a town
plan for initial and long-term town development which town plan shall be
submitted by the Company as part of proposals pursuant to clause 5(3)(c)
hereof.
(2) The Company shall,
at its cost in accordance with the relevant approved proposal, provide and
maintain at the townsite and make available —
(i) at such prices, rentals or
charges and upon such terms and conditions as are fair and reasonable under
the circumstances, housing accommodation, services and works including
sewerage reticulation and treatment works, water supply works, main drainage
works and civic facilities; and
(ii) without charge public roads and
buildings and other works and equipment required for educational, hospital,
medical, police, recreation, fire or other services,
to the extent to which any of the foregoing are necessary to provide for the
needs of persons and the dependants of such persons engaged in connection with
the Company’s operations hereunder whether or not employed by the
Company.
(3) The Company shall
at its cost equip the buildings referred to in sub-clause (2) of this clause
to a standard normally adopted by the State in similar types of buildings in
comparable townsites.
(4) The Company shall
provide at its cost adequate housing, accommodation for married and single
staff directly connected with the educational, hospital, medical and police
services referred to in sub-clause (2)(ii) of this clause.
(5) The extent of the
obligations of the Company pursuant to sub-clauses (3) and (4) of this clause
shall be determined by the proportion which the Company’s contribution
to the cost of the facilities and services set forth in sub-clause (2) of this
clause bears to the total cost of such facilities and services.
Existing Towns 3
20. The Company shall as the occasion may require
enter into negotiations with the State with a view to achieving the
assimilation into a suitable existing coastal town of such of the
Company’s work force at the port or any other workers employed by the
Company (including the dependants of such persons) as shall reside at or near
or shall frequent the port. Subject to the provisions of clause 11 hereof the
Company shall pay to the State or the appropriate authority the capital cost
of establishing and providing additional services and facilities and
associated equipment including sewerage and water supply schemes, main drains,
education, police and hospital services to the extent to which those
additional works and services are made necessary in that town as a result of
the operations of the Company. The additional services, works and associated
equipment referred to in this clause shall be provided by the State to a
standard normally adopted by the State in providing new services works and
associated equipment in similar cases in comparable towns.
Determination of Agreement 3
21. In any of the following events namely if the
Company shall make default in the due performance or observance of any of the
covenants or obligations to the State herein or in any lease sub-lease licence
or other title or document granted or assigned under this Agreement on its
part to be performed or observed and shall fail to remedy that default within
reasonable time after notice specifying the default is given to it by the
State (or if the alleged default is contested by the Company and promptly
submitted to arbitration within a reasonable time fixed by 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) if the Company shall abandon or repudiate its
operations under this Agreement or if the Company shall go 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 and the rights of the Company hereunder and under any lease
licence easement or right granted hereunder or pursuant hereto or if the
Company shall surrender the entire mineral lease as permitted under sub-clause
(2) of clause 4 hereof this Agreement and the rights of the Company hereunder
and under any lease licence easement or right granted hereunder or pursuant
hereto shall thereupon determine; PROVIDED HOWEVER that if the Company shall
fail to remedy and default (other than any default under any of clauses 8, 10,
32, 33, 34 and 35 hereof) 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 itself remedy such default or cause
the same to be remedied (for which purpose the State by agents workmen or
otherwise shall have full power to enter upon lands occupied by the Company
and to make use of all plant machinery equipment and installations thereon)
and the costs and expenses incurred by the State in remedying or causing to be
remedied such default shall be a debt payable by the Company to the State on
demand.
Effect of determination of Agreement 3
22. On the cessation or determination of this
Agreement —
(i)
except as otherwise agreed by the Minister the rights of
the Company to in or under this Agreement and the rights of the Company or of
any assignee of the Company or any mortgagee to in or under the mineral lease
and any other lease licence easement or right granted hereunder or pursuant
hereto shall thereupon cease and determine but without prejudice to the
liability of either of the parties hereto in respect of any antecedent breach
or default under this Agreement or in respect of any indemnity given
hereunder;
(ii)
the Company shall forthwith pay to the State all moneys
which may then have become payable or accrued due;
(iii)
the Company shall forthwith furnish to the State complete
factual statements of the investigations referred to in recital (a) hereof and
of any work research surveys and reconnaissances carried out by the Company
pursuant to the provisions of this Agreement if and insofar as such statements
may not have been furnished provided that the Company shall not be obliged to
supply technical information of a confidential nature with respect to
processes that have been developed by the Company alone or with others or
acquired from other sources and that is not generally available to the iron
ore industry, or financial and economic information of a confidential nature
that if, disclosed, could unduly prejudice the contractual or commercial
arrangements between the Company and third parties;
(iv)
save as aforesaid and as provided in sub-clause (13) of
clause 5 hereof and in clause 23 hereof neither of the parties hereto shall
have any claim against the other of them with respect to any matter or thing
in or arising out of this Agreement.
Effect on determination of lease 3
23. On the cessation or determination of any lease
licence or easement granted hereunder by the State to the company or (except
as otherwise agreed by the Minister) to an associated company or other
assignee of the Company under clause 43 hereof of land for any wharf port
installation railway or housing at any townsite near any such port constructed
or established by the Company pursuant to this Agreement the improvements and
things other than plant equipment and removable buildings erected on the
relevant land and provided for in connection therewith shall remain or become
the absolute property of the State without compensation and freed and
discharged from all mortgages and encumbrances and the Company will do and
execute such documents and things (including surrenders) as the State may
reasonably require to give effect to this provision. In the event of the
Company immediately prior to such expiration or determination or subsequent
thereto deciding to remove locomotives, rolling stock plant equipment and
removable buildings owned by the Company or any of them from any land it shall
not do so without first notifying the State in writing of its decision and
thereby granting to the State the right or option exercisable within three (3)
months thereafter to purchase at valuation in situ the said plant equipment
and removable buildings or any of them. Such valuation shall be mutually
agreed or in default of agreement shall be made by such competent valuer as
the parties may appoint or failing agreement as to such appointment then by
two competent valuers one to be appointed by each party or by an umpire
appointed by such valuers should they fail to agree.
No charge for the handling of cargoes 3
24. The State covenants that subject to the
Company at its own expense providing all works buildings dredging and things
of a capital nature reasonably required for its operations hereunder at or in
the vicinity of the port no charge or levy shall be made by the State or by
any State authority in relation to the loading of outward or the unloading of
inward cargoes from the Company’s wharf whether such cargoes shall be
the property of the Company or of any other person or corporation but the
State accepts no obligations to undertake such loading or unloading and may
make the usual charges from time to time prevailing in respect of services
rendered by the State or by any State agency or instrumentality or other local
or other authority of the State and may charge vessels using the
Company’s wharf ordinary light conservancy and tonnage dues.
Zoning 3
25. The State covenants that the mineral lease and
the lands the subject of any lease licence or easement granted to the Company
under this Agreement 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 or other authority of the State on the ground that such operations are
contrary to any zoning by-law regulation.
Rentals and Evictions 3
26. The State covenants that any State legislation
for the time being in force in the said State relating to the fixation of
rentals shall not apply to any houses belonging to the Company in the port
townsite and the townsite and that in relation to each such house the Company
shall have the right to include as a condition of its letting thereof that the
Company may take proceedings for eviction of the occupant if the latter shall
fail to abide by and observe the terms and conditions of occupancy or if the
occupant shall cease to be employed by the Company.
Labour conditions 3
27. The State covenants 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 mineral lease.
Subcontracting 3
28. 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.
Rating 3
29. 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 treatment transportation shipment and processing of ore and
products derived therefrom, which excepted parts shall be subject to the
provisions of the Local Government Act) shall for rating purposes 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 .
Environmental Protection 3
30. 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
Company’s operations hereunder that may be made pursuant to any Act from
time to time in force by the State or by any State agency or instrumentality
or any local or other authority or statutory body of the State.
Company to elect whether to produce metallised agglomerates or steel 3
31. Before the end of year 6 (or such extended
date if any as the Minister may approve) the Company shall either —
(a) give
to the Minister notice that it proposes to comply with the provisions of
clause 32 hereof; or
(b) give
to the Minister notice that it proposes to comply with the provisions of
clause 34 hereof.
Metallised agglomerates 3
32. If pursuant to clause 31 hereof the Company
gives to the Minister notice that it proposes to comply with the provisions of
this clause then —
(1) the company will
—
(a)
before the end of year 6 (or such extended date if
any as the Minister may approve) submit to the Minister detailed proposals for
the establishment within the said State of plant for the production of
metallised agglomerates containing provision that such plant will by the end
of year 8 (or such extended date if any as the Minister may approve) have the
capacity to produce not less than one million (1,000,000) tons of metallised
agglomerates annually;
(b)
before the end of year 8 (or such extended date if
any as the Minister may approve) submit to the Minister detailed proposals for
the expansion of the productive capacity of such plant to not less than two
million (2,000,000) tons of metallised agglomerates annually by the end of
year 10 (or such extended date if any as the Minister may approve); and
(c)
before the end of year 10 (or such extended date
if any as the Minister may approve) submit to the Minister detailed proposals
for the further expansion of the productive capacity of such plant to not less
than three million (3,000,000) tons of metallised agglomerates annually by the
end of year 12 (or such extended date if any as the Minister may approve).
If Minister gives notice clauses 35 to 39 and 41 to operate 3
(2) The Minister may
at any time after receipt of the notice referred to in clause 31(a) hereof and
before the expiration of two (2) months after the receipt of any proposals
submitted pursuant to sub-clause (1) of this clause give to the Company notice
that notwithstanding the Company’s proposal to comply with the
provisions of this clause the State requires the provisions of clauses 35, 36,
37, 39 and 41 hereof to apply and upon the giving of such notice —
(a)
the provisions of sub-clauses (1), (3), (4) and
(5) of this clause shall cease to operate and neither the Company nor the
Minister shall have any further or continuing obligation thereunder; and
(b)
the provisions of clauses 35, 36, 37, 39 and 41
hereof shall come into operation.
(3) If the Minister
does not give to the Company notice pursuant to sub-clause (2) of this clause
then the Minister shall within two (2) months of the receipt of each of the
proposals referred to in sub-clause (1) of this clause give to the Company
notice either of his approval of those proposals (which approval shall not
unreasonably be withheld) or of any objections raised or alterations desired
thereto and in the latter case shall afford the Company an opportunity to
consult with and to submit new proposals to the Minister. If within two (2)
months of receipt of such notice, agreement is not reached as to the proposals
the Company may within a further period of two (2) months elect by notice to
the State to refer to arbitration as provided in clause 53 of this Agreement
any dispute as to the reasonableness of the Minister’s decision. If by
the award on arbitration the question is decided in favour of the Company the
Minister shall be deemed to have approved the proposals of the Company.
(4) The Company will
(except to the extent otherwise agreed with the Minister and subject always to
clause 33 hereof) within the respective times specified in paragraphs (a), (b)
and (c) of sub-clause (1) of this clause complete the construction of plant in
accordance with such proposals as finally approved or determined under this
clause.
(5) The arbitrator
arbitrators or umpire (as the case may be) of any submission to arbitration
hereunder is hereby empowered upon application by either party hereto to grant
any interim extension of time or date referred to herein which having regard
to the circumstances may reasonably be required in order to preserve the
rights of either or both parties hereunder and an award in favour of the
Company may in the name of the Minister grant any further extension of time
for that purpose.
If metallised agglomerates not feasible 3
33. (1) If the Company
at any time considers that the construction of plant for the production of
metallised agglomerates as required to be proposed under clause 9 or clause 32
hereof or as required pursuant to any proposals finally approved or determined
under those clauses (hereinafter called “the metallising
operation”) is for any technical, economic and/or other reason not
feasible then the Company may (without prejudice to its rights (if any) under
clause 51 of this Agreement) submit to the Minister the reasons why it
considers the metallising operation is not feasible, together with supporting
data and other information.
(2) Within two (2)
months after receipt of a submission from the Company under sub-clause (1) of
this clause the Minister shall notify the Company whether or not he agrees
with its submission.
(3) If the Minister
notifies the Company that he does not agree with its submission then at the
request of the Company made within two (2) months after receipt by the Company
of the notification from the Minister, the Minister will appoint a tribunal
(hereinafter called “the Tribunal”) of three persons (one of whom
shall be a Judge of the Supreme Court of Western Australia or failing him a
Commissioner appointed pursuant to section 49 of the Supreme Court Act 1935
and the others of whom shall have appropriate technical or economic
qualifications) to decide whether or not the metallising operation is feasible
and the Tribunal in reaching its decision shall take into account ( inter alia
) the Company’s submission, the amount of capital required for the
metallising operation, the availability of that capital at that time on
reasonable terms and conditions, the likelihood of the Company being able to
sell metallised agglomerates at sufficient prices and in sufficient quantities
and for a sufficient period to justify the metallising operation having regard
to the amount and rate of return on total funds that would be involved in or
in connection with the production and sale of metallised agglomerates by the
Company and the comparable amount and rate of return on total funds employed
in comparable metallurgical processes in Australia.
(4) If the Minister
notifies the Company that he agrees with its submission of if on reference to
the Tribunal the Tribunal decides that the metallising operation is not
feasible then —
(a)
the Company will not have any obligation or
further obligation to submit proposals in respect of the metallising operation
as provided in clause 10 or clause 32 hereof or to carry out such proposals in
respect thereof as may have been finally approved or determined pursuant to
those clauses;
(b)
the Minister and the Company will forthwith confer
with a view to agreeing on the substitution for the Company’s
obligations in respect of the metallising operation the obligation to carry
out some other feasible operation (related directly to the mining and
metallurgical industry) representing an economic development within the said
State approximately equivalent to the metallising operation.
(5) If within two (2)
months after the Minister notifies the Company that he agrees with its
submission or (as the case may be) within two (2) months after the Tribunal
has announced its decision that the metallising operation is not feasible the
Minister and the Company have not reached agreement under subclause (4)(b) of
this clause then the Minister will instruct the Tribunal to decide whether any
and if so what other feasible operation of the kind referred to in that
subclause is capable of being and should be undertaken by the Company and the
Tribunal in reaching its decision thereon shall have regard to any submissions
made to it by the Minister and by the Company and also ( inter alia ) to the
amount of capital required for such other operation, the availability of that
capital at that time on reasonable terms and conditions, the likelihood of the
Company being able to sell the product of such operation at sufficient prices
and in sufficient quantities and for a sufficient period to justify the same
having regard to the amount and rate of return on total capital that would be
involved in or in connection with that other operation and the comparable
amount and rate of return on total funds employed in comparable processes in
Australia.
(6) If the Minister
and the Company reach agreement under subclause (4)(b) of this clause or if on
reference to the Tribunal under sub-clause (5) of this clause the Tribunal
decides that some other feasible operation is capable of being and should be
undertaken by the Company then this Agreement shall be altered to give effect
to that agreement or as the case may be that decision and the Company shall be
obliged to comply with the obligations imposed on it as a result of such
alteration.
(7) If the Company
makes a submission to the Minister under sub-clause (1) of this clause then
the period from the time of making that submission to the time when the
Minister notifies the Company that he does not agree with its submission or
(if the Company requests the Minister as provided in subclause (3) of this
clause) to the time (if any) when the Tribunal decides that the metallising
operation is feasible shall be added to the respective times by which the
Company is required to comply with any of its obligations under clause 10 or
as the case may be under clause 32 hereof.
(8) The Company may
invoke the foregoing provision of this clause at any time and from time to
time in respect of all or any of its obligations arising under clause 10 or
clause 32 hereof and the references to the metallising operation in those
provisions shall as the case may require be read and construed as referring to
the one or more of those obligations in respect of which those provisions are
invoked by the Company. PROVIDED THAT the Company may not without the consent
of the Minister invoke the foregoing provisions of this clause in respect of
its obligations under clause 32 hereof until it has pursuant to that clause
constructed plant having the capacity to produce not less than one million
(1,000,000) tons of metallised agglomerates annually. If the Minister does not
give such consent within one (1) month after application therefor by the
Company the provisions of sub-clause (2) of clause 32 hereof shall operate as
if the Minister had given notice to the Company pursuant to that sub-clause
and the Minister shall be deemed to have given such notice accordingly and the
Company shall be released from any obligations pursuant to this clause and
clause 32 hereof accordingly.
Production of steel if Company elects to produce steel 3
34. If pursuant to clause 31 hereof the Company
gives to the Minister notice that it proposes to comply with the provisions of
this clause then —
(1) The Company will
before the end of year 17 submit to the Minister detailed proposals for the
establishment within the said State of plant for the production of steel
containing provision that such plant will by the end of year 22 have the
capacity to produce not less than five hundred thousand (500,000) tons of
steel annually and will by the end of year 27 have the capacity to produce not
less than one million (1,000,000) tons of steel annually.
(2) The Minister shall
within two (2) months of receipt of such proposals give to the Company notice
of his approval of those proposals (which approval shall not unreasonably be
withheld) or of any objections raised or alterations desired thereto and in
the latter case shall afford the Company an opportunity to consult with and to
submit new proposals to the Minister. If within two (2) months of receipt of
such notice, agreement is not reached as to the proposals the Company may
within a further period of two (2) months elect by notice to the State to
refer to arbitration as provided in clause 53 of this Agreement any dispute as
to the reasonableness of the Minister’s decision. If by the award on
arbitration the question is decided in favour of the Company the Minister
shall be deemed to have approved the proposals of the Company.
(3) The Company will
(except to the extent otherwise agreed with the Minister) before the end of
the respective times specified in sub-clause (1) of this clause complete the
construction of plant in accordance with the Company’s proposals as
finally approved or determined under this clause.
(4) The arbitrator
arbitrators or umpire (as the case may be) of any submission to arbitration
hereunder is hereby empowered upon application by either party hereto to grant
any interim extension of time or date referred to herein which having regard
to the circumstances may reasonably be required in order to preserve the
rights of either or both the parties hereunder and an award in favour of the
Company may in the name of the Minister grant any further extension of time
for that purpose.
Production of steel if Minister requires Company to produce steel 3
35. (1) The provisions
of this clause and of clauses 36, 37, 38, 39 and 41 hereof shall not operate
unless and until the Minister has given notice or is deemed to have given
notice to the Company pursuant to sub-clause (2) of clause 32 hereof.
(2) The Company will
in due course investigate the feasibility of establishing an integrated iron
and steel industry within the said State and will from time to time review
this matter with a view to its being in a position before the end of year 17
to submit to the Minister detailed proposals for such industry (capable
ultimately of producing one million (1,000,000) tons of steel per annum)
containing provision that —
(a)
by the end of year 22 productive capacity will be
at an annual rate of not less than and during year 23 production will be not
less than five hundred thousand (500,000) tons of pig iron foundry iron or
steel (hereinafter together refered to as “product”) of which not
less than two hundred and fifty thousand (250,000) tons will be steel;
(b)
production will progressively increase so that by
the end of year 26 productive capacity will be at an annual rate of not less
than and during year 27 production will be not less than one million
(1,000,000) tons of product (of which not less than five hundred thousand
(500,000) tons will be steel) and by the end of year 28 productive capacity
will be at an annual rate of not less than and during year 29 production will
be not less than one million (1,000,000) tons of steel; and
(c)
the capital cost involved will be not less than
eighty million dollars ($80,000,000) unless the Company utilises a less
expensive but at least equally satisfactory method of manufacture than any at
present known to either party.
(3) If before the end
of year 17 such proposals are submitted by the Company to the Minister the
Minister shall within two (2) months of the receipt thereof give to the
Company notice either of his approval of the proposals (which approval shall
not unreasonably be withheld) or of any objections raised or alterations
desired thereto and in the latter case shall afford to the Company an
opportunity to consult with and to submit new proposals to the Minister. If
within thirty (30) days of receipt of such notice agreement is not reached as
to the proposals the Company may within a further period of thirty (30) days
elect by notice to the State to refer to arbitration as hereinafter provided
any dispute as to the reasonableness of the Minister’s decision. If by
the award on arbitration the question is decided in favour of the Company the
Minister shall be deemed to have then approved the proposals of the Company.
(4) If such proposals
are not submitted by the Company to the Minister before the end of year 17 or
if such proposals are so submitted but are not approved by the Minister within
two (2) months after receipt thereof then (subject to any extension of time
granted under subclause (3) of clause 8 hereof) if by the end of year 20 (or
extended date if any) the State gives to the Company notice that some other
company or party (hereinafter referred to as “the Third Party”)
has agreed to establish an integrated iron and steel industry within the said
State (using iron ore from the mineral lease) on terms not more favourable on
the whole to the Third Party than those proposed by or available to the
Company hereunder then this Agreement will (subject to the provisions of
clauses 22 and 23 and clauses 38 and 41 hereof) cease and determine at the end
of year 27 or at the date by which the Third Party has substantially
established that industry whichever is the later.
(5) If by the end of
year 20 (or extended date if any) the State has not given to the Company any
such notice as is referred to in subclause (4) of this clause that subclause
shall thereupon cease to have effect except that (to the extent that they can
from time to time operate) the provisions of subclause (4) of this clause
shall revive (for a period of three (3) years) at the end of year 30 and at
the end of each successive period of thirteen (13) years thereafter in such a
way that each year referred to in that subclause shall be read as the year
(13) or (as the case may require) a multiple of thirteen (13) years thereafter
(subject to extensions of dates if any as aforesaid).
(6) The Company may at
any time after the end of year 17 submit proposals for an integrated iron and
steel industry if at that time it has not received any notice under subclause
(4) of this clause and the provisions of subclauses (2) and (3) of this clause
shall apply to such proposals.
(7) Except as provided
in subclause (4) of this clause this Agreement will continue in operation
subject to compliance by the Company with its obligations hereunder and with
such proposals by the Company as are approved by the Minister.
(8) Notwithstanding
anything contained herein no failure by the Company to submit to the Minister
proposals as aforesaid nor any non-approval by the Minister of such proposals
shall constitute a breach of this Agreement by the Company and the only
consequences arising from such failure or non-approval (as the case may be)
will be those set out in subclause (4) of this clause.
“Substantial establishment” 3
36. The Third Party shall have substantially
established a plant for an integrated iron and steel industry when and not
before that party’s integrated iron and steel industry has the capacity
to produce one million (1,000,000) tons of steel per annum and the Minister
has notified the Company that he is satisfied that that party will proceed
bona fide to operate its plant or industry.
Terms “not more favourable” 3
37. In deciding whether for the purposes of clause
35 hereof the terms granted by the State to some company or party are not more
favourable on the whole than those proposed by or available to the Company
regard shall be had inter alia to all the obligations that would have
continued to devolve on the Company had it proceeded with iron and steel
manufacture or steel manufacture including its obligations in regard to
secondary processing and its obligations to establish or construct works and
facilities for the mining transportation by rail and shipment of iron ore and
restrictions relating thereto and its obligations to pay rent additional
rental and royalty and also to the need for the other company or party to pay
on a fair and reasonable basis for or for the use of property accruing to the
State under clause 23 hereof and made available by the State to that company
or party but also to any additional or equivalent obligations to the State
assumed by that company or party.
Supply of iron ore by others 3
38. If at the date upon which this Agreement
ceases and determines pursuant to clause 35 hereof the Company remains under
any obligation for the supply of iron ore arising out of a contract or
contracts entered into by the Company with the consent of the Minister the
Company may give notice to the Minister that it desires the State to ensure
that the Third Party is obligated to discharge such remaining obligations.
Forthwith upon receipt of such notice the State will ensure that the Third
Party is obligated to discharge such obligations in accordance with such
contract or contracts on a basis that is fair and reasonable as between the
Company and the Third Party or if desired to supply iron ore to the Company
into ships on such fair and reasonable basis.
Supply of iron ore to others 3
39. The Company covenants and agrees with the
State that should the Company remain in possession of the mineral lease for
any period during which the Third Party is operating or is ready to operate a
plant for an integrated iron and steel industry and have available to it
facilities for the purpose then during such period (whenever commencing) the
Company will supply the Third Party with iron ore from the mineral lease (not
exceeding in all five million (5,000,000) tons per annum unless otherwise
agreed) —
(i) at such rates and grade (as may
reasonably be available and be required);
(ii) at such points on the
Company’s railway;
(iii) at such price; and
(iv) on such other terms and
conditions as may mutually be agreed between the Company and the State or
failing agreement decided by arbitration between them PROVIDED ALWAYS that the
price shall unless otherwise agreed between them be equivalent to the total
cost of production and transport incurred by the Company (including reasonable
allowance for depreciation and all overhead expenses) plus ten per centum
(10%) of such total cost.
Acceleration of Company’s steel obligations 3
40. If before the first day of January 1977 the
State gives to the Company notice that it is willing to supply the Company at
all times from the commencement of the first day of January, 1986 and
thereafter during the continuance in operation of this Agreement with all the
Company’s requirements for electrical power anywhere within a radius of
thirty (30) miles from the Post Office at Dampier and anywhere within a radius
of thirty (30) miles from the northernmost point of Cape Lambert in the said
State (including all electrical power from time to time required by the
Company for secondary processing, for the production of iron and/or steel and
for all ancillary purposes including crushing, screening and loading, and the
operation of any port or ports but not including electrical power from time to
time required by the Company for any townsite or townsites established or to
be established by the Company) at a total cost to the Company of six tenths of
a cent (0.6c) per kilowatt hour and supplied by the State at points reasonably
adjacent to the respective places at which it is from time to time required by
the Company, then the State and the Company will forthwith enter into an
agreement for the supply of such electrical power accordingly, and from and
after the date when such agreement is entered into and so long as the State
complies with all its obligations under the said agreement clauses 34 and 35
hereof shall be read construed and take effect as if each numeral appearing
therein immediately after the word “year” were a numeral six (6)
less than each such numeral.
41. If by the end of the year first referred to in
sub-clause (2) of clause 35 hereof (or any later time to which that time has
been extended by the Minister) detailed proposals for an integrated iron and
steel industry as referred to in sub-clause (2) of clause 35 hereof are not
submitted by the Company to the Minister then the Minister may at any time
before the expiration of two (2) months after the end of that year (or as the
case may be that later time) give to the Company notice that the provisions of
clauses 35, 36, 37, 38 and 39 hereof are to cease to operate and upon the
giving of such notice all those provisions will cease to operate and should
any notice have by then been given by the Minister to the Company pursuant to
sub-clause (4) of clause 35 hereof such last mentioned notice shall cease to
have and shall be deemed not to have had any force or effect.
Indemnity 3
42. The Company will 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 any wharf railway or other works
or services the subject of this Agreement or the plant apparatus or equipment
installed in connection therewith and will also indemnify and keep indemnified
the State against all actions suits compensation claims demands or costs by
third parties under the Ratifying Act the Public Works Act 1902 the Land Act
or any other Act in respect of or as a consequence of the resumption or
deprivation of the use of any land where such resumption or deprivation of the
use of any land where such resumption or deprivation of use is made or done by
the State for the purpose of granting to the Company a lease right mining
tenement easement reserve or licence pursuant to sub-clause (2) of clause 4
and sub-clause (1) of clause 7 hereof.
Assignment 3
43. (1) Subject to the
provision of this clause the Company may at any time —
(a)
assign mortgage charge sublet or dispose of to an
associated company or associated companies as of right and to any other
company or companies or person or persons with the consent in writing of the
Minister 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; and
(b)
appoint as of right an associated company or
associated companies or with the consent of the Minister any other company or
companies or person or persons to exercise all or any of the powers functions
and authorities which are or may be conferred on the Company hereunder;
subject however to the assignee or assignees or (as the case may be) the
appointee or appointees executing in favour of the State a deed of covenant in
a form to be approved by the Minister to comply with observe and perform the
provisions hereof on the part of the Company to be complied with observed or
performed in regard to the matter or matters so assigned or (as the case may
be) the subject of the appointment.
(2) Notwithstanding
anything contained in or anything done under or pursuant to sub-clause (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 under the said sub-clause (1).
44. Notwithstanding the provisions of section 82
of the Mining Act and of regulations 192 and 193 made thereunder and of
section 81D of the Transfer of Land Act 1893 insofar as the same or any of
them may apply —
(a)
no mortgage or charge in a form commonly known as
a floating charge made or given pursuant to clause 43 hereof over any lease
licence reserve or tenement granted hereunder or pursuant hereto by the
Company or any assignee or appointee who has executed, and if for the time
being bound by a deed of covenant made pursuant to clause 43 hereof;
(b)
no transfer or assignment made or given at any
time in exercise of any power of sale contained in any such mortgage or
charge;
shall require any approval or consent (other than such consent as may be
necessary under clause 43 hereof) and no such mortgage or charge shall be
rendered ineffectual as an equitable charge by the absence of any approval or
consent (otherwise that as required by clause 43 hereof) or because the same
is not registered under the provisions of the Mining Act.
45. The Company may arrange for any obligation
undertaken by the Company hereunder (including any obligation to erect a plant
or plants for the production of or any obligation to produce iron ore
concentrates metallised agglomerates, pig iron, foundry iron or steel and any
obligation arising out of proposals being approved deemed to have been
approved or determined under this Agreement to construct a railway and/or to
provide locomotives freight cars and other railway stock and equipment
therefor) to be undertaken either wholly or partially by any associated
company or associated companies or with the Minister’s consent (which
consent shall not be unreasonably withheld) by any other company or companies
and fulfilment of any such obligation in whole or in part by such associated
company or associated companies or by that other company or companies shall be
deemed to be fulfilment (wholly or partially as the case may be) of that
obligation by the Company hereunder. Where such associated company or
associated companies or such other company or companies now has or at some
future time has installed or provided a plant or plants for the production of
iron ore concentrates, metallised agglomerates, pig iron foundry iron or
steel, or a railway or other facilities any increase in the capacity of
carried out under arrangements made by the Company with such associated
company or associated companies or (with the prior consent of the Minister as
aforesaid) with such other company or companies shall to the extent of the
increase reduce or (as the case may be) extinguish any obligation of the
Company to provide such capacity.
Variation 3
46. (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 implementing or facilitating any of the objects of this Agreement.
(2) Where in the
opinion of the Minister an agreement made pursuant to sub-clause (1) of this
clause would constitute a material or substantial alteration of the rights or
obligations of either party hereto, the Agreement shall contain a provision to
that effect and the Minister shall cause that agreement to be laid on the
table of each House of Parliament within twelve sitting days of the date of
its execution.
(3) If either House
does not pass a resolution disallowing the agreement, within twelve sitting
days of that House after the agreement has been laid before it, the agreement
shall have effect, from and after the last day on which the agreement might
have been disallowed.
Variation of Proposals 3
47. The Minister may from time to time at the
request of the Company approve variations in the detailed proposals relating
to any railway or port site and/or port facilities or dredging programme or
townsite or town planning or any other facilities or services or other plans
specifications or proposals which may have been approved pursuant to this
Agreement and in considering such variation shall have regard to any changes
consequent upon joint user proposals of any such works facilities or services
and other relevant factors arising after the date hereof. Where the variation
referred to in this clause constitutes a material or substantial alteration to
the rights and/or obligations of either party as set out in this Agreement the
provisions of clause 46 shall apply.
Joint user 3
48. (1) The Company
shall be entitled at any time and from time to time with the prior approval in
writing of the Minister to enter into an agreement with any third party for
the joint construction maintenance and user or for the joint user only of any
work constructed or agreed to be constructed by the Company pursuant to the
terms of this Agreement or by such other party pursuant to any agreement
entered into by it with the State and in any such event any amount expended in
or contributed to the cost of such construction by the Company shall for the
purpose of the calculation of the sum agreed to be expended on that work by
the Company under this Agreement and if so approved by the Minister be taken
and accepted as an amount equal to the total amount expended (whether by the
Company or the said third party or by them jointly) in the construction of
such work.
(2) When any agreement
entered into by the Company with some other company or person results in that
other company or person discharging all or any of the obligations undertaken
by the Company under this Agreement or renders it unnecessary for the Company
to discharge any obligation undertaken by it hereunder the Minister will
discharge or temporarily relieve the Company from such part of its obligations
as is reasonable having regard to the extent of any period for which the other
company or person actually effects the discharge of those obligations.
Alteration of works 3
49. It at any time the State finds it necessary to
request the Company to alter the situation of any of the installations or
other works (other than the Company’s wharf) erected constructed or
provided hereunder and gives to the Company notice of the request the Company
shall within a reasonable time after receipt of the notice but at the expense
in all things (including increased running costs) of the State (unless the
alteration is rendered necessary by reason of a breach by the Company of any
of its obligations hereunder) alter the situation thereof accordingly.
Export Licence 3
50. (1) On request by
the Company the State shall make representations to the Commonwealth for the
grant to the Company of a licence or licenses under Commonwealth law for the
export of ore in such quantities and at such rate or rates as shall be
reasonable having regard to the terms of this Agreement the capabilities of
the Company and to maximum tonnages of ore for the time being permitted by the
Commonwealth for export from the said State and in a manner or terms not less
favourable to the Company (except as to rate or quantity) than the State has
given or intends to give in relation to such licence or licenses to any other
exporter of ore from the said State.
(2) If at any time the
Commonwealth limits by export licence the total permissible tonnage of ore for
export from the said State then the Company will at the request of the State
and within three (3) months of such request inform the State whether or not it
intends to export to the limit of the tonnage permitted to it under
Commonwealth licences in respect of the financial year next following and if
it does not so intend will co-operate with the State in making representation
to the Commonwealth with a view to some other producer in the said State being
licensed by the Commonwealth to export such of the tonnage permitted by the
Commonwealth in respect of that year as the Company does not require and such
other producer may require. Such procedure shall continue to be followed year
by year during such time as the Commonwealth limits by export licence the
total permissible tonnage of ore for export from the said State.
(3) The Company shall
be in default hereunder if at any time it fails to obtain any licence or
licences under Commonwealth law for the export of ore as may be necessary for
the purpose of enabling the Company to fulfil its obligations hereunder or if
any such licence is withdrawn or suspended by the Commonwealth and such
failure to obtain or such withdrawal or suspension (as the case may be) is due
to some act or default by the Company or to the Company not being bona fide in
its application to the Commonwealth or otherwise having failed to use its best
endeavours to have the licence granted or restored (as the case may be) but
save as aforesaid if at any time any necessary licence is not granted or any
licence granted to the Company shall be withdrawn or suspended by the
Commonwealth and so that as a result thereof the Company is not for the time
being permitted to export at least the tonnage it has undertaken with the
State it will export then the Company shall not be obliged to export that
tonnage during the period such licence is not granted or is withdrawn or
suspended. The State shall at all times be entitled to apply on behalf of the
Company (and is hereby authorised by the Company so to do) for any licence or
licences under Commonwealth law for the export of ore as may from time to time
be necessary for the purposes of this Agreement.
Delays 3
51. This Agreement shall be deemed to be made
subject to any delays in the performance of obligations under this Agreement
and to the temporary suspension of continuing obligations hereunder which may
be occasioned by or arise from circumstances beyond the power and control of
the party responsible for the performance of such obligations including delays
or any such temporary suspension as aforesaid caused by or arising from Act of
God force majeure floods storms tempests washaways fire (unless caused by the
actual fault or privity of the Company) act of war act of public enemies riots
civil commotion strikes lockouts stoppages restraint of labour or other
similar acts (whether partial or general) shortages of labour or essential
materials reasonable failure to secure contractors delays of contractors and
inability (common in the iron ore export industry) to profitably sell iron
ore, inability (common in the iron ore concentrates export industry) to
profitably sell iron ore concentrates or inability to profitably sell
metallised agglomerates or factors due to overall world economic conditions or
factors which could not reasonably have been foreseen PROVIDED ALWAYS that the
party whose performance of obligations is affected by any of the said causes
shall minimise the effect of the said causes as soon as possible after the
occurrence.
Power to extend periods 3
52. Notwithstanding any provision hereof the
Minister may at the request of the Company from time to time extend any period
or date referred to in this Agreement for such period or to such later date as
the Minister thinks fit and the extended period or later date where advised to
the Company by notice from the Minister shall be deemed for all purposes
hereof substituted for the period or date so extended.
Arbitration 3
53. Any dispute or difference between the parties
arising out of or in connection with this Agreement or any agreed amendment or
variation thereof or agreed addition thereto or as to the construction of this
Agreement or any such amendment variation or addition or as to the rights
duties or liabilities of either party thereunder 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
PROVIDED THAT except where this Agreement makes express provision for
arbitration hereunder or except where by this Agreement the Minister is
required to act reasonably or not to act unreasonably this clause shall not
apply to any case where the Minister is by this Agreement given either
expressly or impliedly a power or discretion to approve consent direct or
otherwise act in any particular way.
Notices 3
54. Any notice consent or other writing authorised
or required by this Agreement to be given or sent shall be deemed to have been
duly given or sent by the State if signed by the Minister or by any senior
officer of the Public Service of the said 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 said 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 as
notified to the State from time to time and forwarded by prepaid post to the
Minister and any such notice consent in writing shall be deemed to have been
duly given or sent on the day on which it would be delivered in the ordinary
course of post.
Exemption from stamp duty 3
55. (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 tenement lease easement licence or other right or
interest;
(c)
any assignment sub-lease or disposition (other
than by way of mortgage or charge) or any appointment made in conformity with
the provisions of sub-clause (1) of clause 43 hereof; and
(d)
any assignment sub-lease or disposition (other
than by way of mortgage or charge) or any appointment to or in favour of the
Company or an associated company of any interest right obligation power
function or authority which has already been the subject of an assignment
sub-lease disposition or appointment executed pursuant to sub-clause (1) of
clause 43 hereof;
PROVIDED THAT this clause shall not apply to any instrument or other document
executed or made more than seven (7) years from the date hereof.
(2) If prior to the
date on which the Bill referred to in clause 2(a) hereof 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 sub-clause (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.
Interpretation 3
56. This Agreement shall be interpreted according
to the law for the time being in force in the said State.
FIRST SCHEDULE
Firstly — The Agreement under seal of even date herewith between the
Honourable John Trezise Tonkin, M.L.A., Premier of the State of Western
Australia acting for and on behalf of the said State and Instrumentalities
thereof of the first part HANCOCK PROSPECTING PTY. LTD. and WRIGHT PROSPECTING
PTY. LTD. of the second part.
Secondly — The Agreement under seal of even date herewith between the
Honourable John Trezise Tonkin, M.L.A., Premier of the State of Western
Australia acting for and on behalf of the said State and Instrumentalities
thereof of the one part and Hamersley of the other part.
SECOND SCHEDULE
WESTERN AUSTRALIA
IRON ORE (MOUNT BRUCE) AGREEMENT ACT 1972
MINERAL LEASE
LEASE NO. GOLDFIELD
ELIZABETH THE SECOND by the Grace of God of the United Kingdom Australia and
Her other Realms and Territories Queen, Head of the Commonwealth, Defender of
the Faith:
TO ALL WHOM THESE PRESENTS shall come GREETINGS:
KNOW YE that WHEREAS by an Agreement made the
day of 1972 BETWEEN the STATE OF
WESTERN AUSTRALIA of the one part and MOUNT BRUCE MINING PTY. LIMITED
(hereinafter called “the Company” which expression will include
the successors and assigns of the Company) of the other part the said State
has agreed to grant to the Company a mineral lease or leases of portion or
portions of the lands referred to in the said Agreement as the mining areas
and whereas the said Agreement was ratified by the Iron Ore (Mount Bruce)
Agreement Act 1972 , which said Act ( inter alia ) authorised the grant of a
mineral lease or leases to the Company NOW WE in consideration of the rents
and royalties reserved by and of the provisions of the said Agreement and in
pursuance of the said Act DO BY THESE PRESENTS GRANT AND DEMISE unto the
Company subject to the said provisions ALL THOSE pieces or
parcels or land situated in the Goldfield(s) containing
approximately acres and (subject to such corrections as may be
necessary to accord with the survey when made) being the land shaded pink on
the plan in the Schedule hereto and all those mines, veins, seams, lodes and
deposits of iron ore in on or under the said land (hereinafter called
“the said mine”) together with all rights, liberties, easements,
advantages and appurtenances thereto belonging or appertaining to a lessee of
a mineral lease under the Mining Act 1904 including all amendments thereof for
the time being in force and all regulations made thereunder for the time being
in force (which Act and regulations are hereinafter referred to as “the
Mining Act”) or to which the Company is entitled under the said
Agreement TO HOLD the said land and mine and all and singular the premises
hereby demised
for the full term of twenty-one years from the day of
19 with the right to renew the same from time to time for further periods,
each of twenty-one years as provided in but subject to the said Agreement for
the purposes but upon and subject to the terms covenants and conditions set
out in the said Agreement and to the Mining Act (as modified by the said
Agreement) YIELDING and paying therefor the rent and royalties as set out in
the said Agreement AND WE DO hereby declare that this lease is subject to the
observance and performance by the Company of the following covenants and
conditions, that is to say —
(1) The Company shall
and will use the land bona fide exclusively for the purposes of the said
Agreement.
(2) Subject to the
provisions of the said Agreement the Company shall and will observe, perform
and carry out the provisions of the Mines Regulation Act 1946 , and all
amendments thereof for the time being in force, and the regulations for the
time being in force made thereunder and subject to and also as modified by the
said Agreement the Mining Act so far as the same effect or have reference to
this lease.
PROVIDED THAT this lease and any renewal thereof shall not be determined or
forfeited otherwise than under and in accordance with the provisions of the
said Agreement.
PROVIDED FURTHER that all petroleum on or below the surface of the demised
land is reserved to Her Majesty with the right to Her Majesty or any person
claiming under her or lawfully authorised in that behalf to have access to the
demised land for the purpose of searching for and for the operations of
obtaining petroleum in any part of the land under the provisions of the
Petroleum Act 1967 .
IN WITNESS whereof we have caused our Minister for Mines to affix his seal and
set his hand hereto at Perth in the said State of Western Australia and the
common seal of the Company has been affixed hereto this
day of 19
THE SCHEDULE ABOVE REFERRED TO:
IN WITNESS WHEREOF these presents have been executed the day and year first
hereinbefore written.
|
SIGNED by the said THE HONOURABLE JOHN TREZISE TONKIN, M.L.A. in the presence
of — |
|
JOHN T. TONKIN. |
DON MAY,
Minister for
Mines.
|
THE COMMON SEAL OF MOUNT BRUCE MINING PTY. LIMITED was hereto affixed in the
presence of — |
|
(C.S.) |
R. T. MADIGAN,
Director.
JOHN CALDER,
Secretary.
[First Schedule amended: No. 94 of 1976 s. 4.]
