Western Australian Current Acts Western Australian Current Acts[s. 3]
[Heading inserted: No. 58 of 1971 s. 4; amended:
No. 19 of 2010 s. 4.]
THIS AGREEMENT made the fifteenth day of October One thousand nine hundred and
sixty-four BETWEEN THE HONOURABLE DAVID BRAND M.L.A., Premier and Treasurer 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 CONSOLIDATED GOLD FIELDS (AUSTRALIA) PTY.
LIMITED a Company incorporated under the Companies Ordinances of the
Australian Capital Territory and having its executive office at A.M.P.
Building Circular Quay, Sydney in the State of New South Wales and its
registered office in the State of Western Australia (hereinafter referred to
as “the said State”) at London House Saint George’s Terrace
Perth CYPRUS MINES CORPORATION a Corporation incorporated in the State of New
York in the United States of America and having its executive offices situate
at 1234 Pacific Mutual Building 523 West Sixth Street Los Angeles Californa in
the said United States of America and UTAH CONSTRUCTION & MINING CO. a
Corporation incorporated in the State of Delaware in the United States of
America and having its executive offices situate at 550 California Street San
Francisco in the said United States of America (hereinafter called “the
Joint Venturers” in which term shall be included the Joint Venturers and
each of them and their and each of their respective successors and assigns) of
the other part.
WHEREAS: —
(a)
Pursuant to an agreement made between the parties and approved by the Iron Ore
(Mount Goldsworthy) Agreement Act 1962 the Joint Venturers at a total cost in
excess of the sum mentioned in clause 3(1) of that Agreement proceeded to the
carrying out of the work in that subclause mentioned in relation to the export
of iron ore both from Depuch Island and from elsewhere.
(b) The
Joint venturers firstly are satisfied that the mining area defined in Clause 1
of the said Agreement (being mining area A as defined in Clause 1 of this
Agreement) contains iron ore of tonnages and grades sufficient to warrant
economic recovery and marketing secondly have carried out certain
investigations relating to the mining from that mining area of iron ore and
the transport by rail and shipment of that ore thirdly desire to enter into a
contract or contracts for the export sale of that ore based on export from a
port or place other than Depuch Island and fourthly desire to have certain
rights as hereinafter mentioned with respect to the mining areas defined as
mining area B and mining area C in Clause 1 hereof.
(c) The
Joint Venturers agree to investigate in due course the feasibility of the
beneficiation of ore from the mining areas hereinafter mentioned and of
establishing within the State of Western Australia an industry for additional
upgrading of such beneficiated ore and to review this matter from time to time
with a view to their being in a position to submit to the State proposals for
such establishment as hereinafter provided.
NOW THIS AGREEMENT WITNESSETH: —
Interpretation 4
1. In this Agreement subject to the context
—
“associated company” means —
(a) any
company having a paid-up capital of not less than one million pounds
(£1,000,000) notified in writing by the Joint Venturers or any of them to
the Minister which is incorporated in the United Kingdom the United States of
America or the Commonwealth of Australia and which —
(i)
is promoted by the Joint Venturers or any of them for all
or any of the purposes of this Agreement and in which the Joint Venturers or
any of them hold not less than twenty per cent. (20%) of the issued ordinary
share capital; or
(ii)
is related within the meaning of the term subsidiary in
section 6 of the Companies Act 1961 to any company in which the Joint
Venturers or any of them hold 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 Joint Venturers or any of
them in their business or operations hereunder;
“commencement date” means the date
referred to as the commencement date in clause 7(3) hereof;
“Commonwealth” means the Commonwealth
of Australia and includes the Government for the time being thereof;
“deposits townsite” means the townsite
to be established on or near the mining areas pursuant to this Agreement;
“direct shipping ore” means iron ore
which has an average pure iron content or 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;
“export date” means the earlier of the
following dates namely —
(a) the
date or extended date if any referred to in clause 9(1) of this Agreement;
(b) the
date when the Joint Venturers first export iron ore hereunder (other than iron
ore shipped solely for testing purposes);
“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 and
payable by the purchaser thereof to the Joint Venturers or an associated
company less all export duties and export taxes payable to the Commonwealth on
the export of the iron ore and all costs and charges properly incurred and
payable by the Joint Venturers from the time the ore shall be placed on ship
at the Joint Venturers’ 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) all costs properly
incurred in delivering the ore from port of discharge to the smelter and
evidenced by relevant invoices;
(5) all weighing
sampling assaying inspection and representation costs;
(6) all shipping
agency charges after loading on and departure of ship from the Joint
Venturers’ wharf; and
(7) all import taxes
by the country of the port of discharge;
“harbour” means the port or harbour at
or near Port Hedland or such other port or place mutually agreed on and
serving the Joint Venturers’ wharf;
“industry for additional upgrading of
beneficiated ore” means an industry for the additional refining of
beneficiated ore by some form of semi reduction direct reduction or other
mutually agreed process;
“iron ore contracts” means the
contract or contracts referred to in clause 5(2)(b) hereof;
“Joint Venturers’ wharf” means
the wharf to be constructed by the Joint Venturers pursuant to this Agreement
for the shipment of iron ore from the mineral lease or (except for the
purposes of the definition of “harbour”) other the temporary wharf
for the time being approved by the Minister as the Joint Venturers’
wharf for the purposes hereof during the period to which such approval
relates;
“Land Act” means the Land Act 1933 ;
“mineral lease” means the mineral
lease referred to in clause 8(1) hereof or 8(2)(a) hereof and includes any
renewal thereof and where the context so permits shall extend to and be deemed
to include a mineral lease granted under the provisions of clause 11(6) hereof
and any renewal thereof;
“Mining Act” means the Mining Act 1904
;
“mining area “A” means the area
delineated and coloured red on the plan marked “A” initialled by
or on behalf of the parties hereto for the purposes of identification;
“mining area “B” means the area
delineated and coloured blue on the plan marked “B” initialled by
or on behalf of the parties hereto for the purposes of identification;
“mining area “C” means the area
delineated and coloured green on the plan marked “C” initialled by
or on behalf of the parties hereto for the purposes 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 Joint Venturers and includes the successors in office of the
Minister;
“month” means calendar month;
“notice” means notice in writing;
“person” or “persons”
includes bodies corporate;
“port townsite” means the townsite to
be established pursuant to this Agreement near the harbour;
“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 agglomeration, pelletization or comparable changes in the physical
character of iron ore;
“special lease” means a special lease
or license to be granted in terms of this Agreement under the Ratifying Act
the Land Act or the Jetties Act 1925 and include any renewal thereof;
“this Agreement” “hereof”
and “hereunder” includes this Agreement as from time to time added
to varied or amended;
“ton” means a ton of two thousand two
hundred and forty (2,240) lbs. net dry weight;
“townsite” in relation to the townsite
to be established near the harbour means a townsite (whether or not
constituted and defined under section 10 of the Land Act) primarily to
facilitate the Joint Venturers’ operations in and near the harbour and
for employees of the Joint Venturers and in relation to mining area
“A” mining area “B” and mining area “C”
means such a townsite or townsites which is or are established by the Joint
Venturers for the purposes of their operations and employees on or near mining
area “A” mining area “B” and mining area
“C” or any one or more of them in lieu of a townsite or townsites
constituted and defined under section 10 of the Land Act;
“wharf” includes any jetty structure;
“year 1” means the year next following
the export 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 therefore 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 24 hereof to extend any period or date shall be without
prejudice to the power of the Minister under the said clause 24;
marginal notes shall not affect the interpretation
or construction hereof 4 .
any covenant or agreement on the part of the Joint
Venturers hereunder will be deemed to be a joint and several covenant or
agreement as the case may be.
the phases in which it is contemplated that this
Agreement will operate are as follows —
(a)
Phase 1 — the period from the execution hereof by the parties hereto
until the commencement date;
(b)
Phase 2 — the period from the commencement date until a plant for
secondary processing or an industry for additional upgrading of beneficiated
ore is established by the joint venturers hereunder or by another company or
party as referred to in clause 12 or clause 13 hereof whichever first occurs;
(c)
Phase 3 — (operative if the Joint Venturers commence secondary
processing before establishing an industry for additional upgrading of
beneficiated ore hereunder) — the period from the commencement of
secondary processing by the Joint Venturers hereunder until the Joint
Venturers have established an industry for additional upgrading of
beneficiated ore hereunder which period shall include a continuation of Phase
2 operations; and
(d)
Phase 4 — the period after the Joint Venturers have established an
industry for additional upgrading of beneficiated ore hereunder which period
shall include a continuation of Phase 2 operations.
Obligations of the State during Phase 1 4
2. The State shall —
(a) upon
application by the Joint Venturers at any time prior to the 31 st day of
March, 1965 (and surrender of the then existing rights of occupancy already
granted in respect of any portions of mining area “A”) cause to be
granted to the Joint Venturers and to the Joint Venturers 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 mining area
“A” under section 276 of the Mining Act at a rental at the rate of
four pounds (£4) per square mile per annum payable quarterly in advance
for the period expiring on the 31st December, 1965 and shall then and
thereafter subject to the continuance of this Agreement cause to be granted to
the Joint Venturers 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
notwithstanding its currency shall expire —
(i)
on the date of application for a mineral lease by the
Joint Venturers under either clause 8(1) or clause 8(2)(a) hereof;
(ii)
at the expiration of one month from the commencement
date;
(iii)
on the determination of this Agreement pursuant to its
terms; or
(iv)
on the day of the receipt by the State of a notice from
the Joint Venturers to the effect that the Joint Venturers abandon and cancel
this Agreement,
whichever shall first
happen;
(b)
introduce and sponsor a Bill in the Parliament of Western Australia to ratify
this Agreement and endeavour to secure its passage prior to the 15th day of
December, 1964;
(c) to
the extent reasonably necessary for the purposes of clauses 4, 5 and 11 hereof
allow the Joint Venturers to enter upon Crown lands (including land the
subject of a pastoral lease) and survey possible sites for a harbour wharf
railway townsite (both in or near the harbour and on or near mining area
“A” mining area “B” and mining area “C”)
stockpiling processing and other areas required for the purposes of this
Agreement; and
(d) at
the request and cost of the Joint Venturers co-operate with the Joint
Venturers in the discharge of their obligations under clause 4(1)(a) hereof.
Ratification and operation 4
3. (1) Clauses 8, 9,
10 (other than paragraphs (d) and (1) thereof) 12-22 both inclusive and 24 of
this agreement shall not operate unless and until the Bill to ratify this
Agreement as referred to in clause 2(b) hereof is passed as an Act before the
31st day of December, 1964, or such later date if any as the parties hereto
may mutually agree upon. If the Bill is not so passed before that date or
later date (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 except as hereinafter
provided in clause 10(d) hereof.
(2) If the Bill to
ratify this Agreement is passed as an Act before the date or later date if any
referred to in sub-clause (1) of this clause the following provisions of this
clause shall notwithstanding the provisions of any Act or law thereupon
operate and take effect namely —
(a) the
provisions of clause 8 the proviso to paragraph (a) of subclause (2) of clause
9 subclause (3) of clause 9 paragraphs (a) (f) (g) (h) (i) (k) and (m) of
clause 10 and clauses 21, 23, 24, and 27 shall take effect as though the same
had been brought into force and had been enacted by the Ratifying Act;
(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 them respectively
hereunder;
(c) no
future Act of the said State will operate to increase the Joint
Venturers’ 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 purposes of this
Agreement and may lease or otherwise dispose of the same to the Joint
Venturers;
(e) on
the coming into operation of the Ratifying Act the said recited agreement
approved by the Iron Ore (Mount Goldsworthy) Agreement Act 1962 , is cancelled
except as to any antecedent liability accrued thereunder and undischarged.
Obligations of Joint Venturers during Phase 1 4
4. (1) The Joint
Venturers (having at a total cost in excess of one million pounds
(£1,000,000) as from the 27th day of February 1962 been continuously
engaged in the matters hereinafter in this subclause mentioned) shall prior to
the 31st day of December 1964 (or such extended date if any the Minister may
approve or as may be determined by arbitration in manner hereinafter provided)
complete the matters hereinafter in this subclause mentioned and everything
necessary to enable them to finalise and to submit to the Minister the
detailed proposals and other matters referred to in clause 5(2)(a) hereof. The
matters first referred to in this subclause are —
(a) a
thorough geological and (as necessary) geophysical investigation of the iron
ore deposits in mining area “A” and the testing and sampling of
such deposits;
(b) a
general reconnaissance of the various sites of proposed operations pursuant to
the Agreement;
(c) an
engineering investigation of the route for a railway from the mining area
“A” to the harbour and wharf installation for the export of the
iron ore;
(d) an
engineering investigation of a harbour site at or near Port Hedland or such
other port or place mutually agreed on and a wharf site therein for the
purposes of the Joint Venturers but having regard to the proper development
use and capacity of the harbour as a whole by persons and corporations other
than the Joint Venturers;
(e) an
investigation of suitable water supplies for the townsites and harbour or port
services;
(f) the
planning of suitable townsites in consultation with the State but having due
regard to the general development of the port townsite and (if and to the
extent applicable) the deposits townsite for use by others as well as the
Joint Venturers; and
(g)
metallurgical and market research.
(2) The Joint
venturers shall keep the State fully informed at least quarterly commencing
within one (1) quarter after the execution hereof as to the progress and
results of the Joint Venturer’s operations under subclause (1) of this
clause.
(3) If the State
concurrently carries out its own investigations and reconnaissances in regard
to all or any of the matters mentioned in subclause (1) of this clause or any
alternative harbour site the Joint Venturers 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 subclause.
(4) The Joint
Venturers will employ and retain expert consultant engineers to investigate
report upon and make recommendations in regard to the sites for and design of
the Joint Venturers’ wharf (including areas for installations
stockpiling and other purposes in the harbour area) reasonably required by the
Joint Venturers under this Agreement but in such regard the Joint Venturers
will require the consultant engineers to have full regard for the general
development of the harbour area and the dredging thereof and of approaches
thereto with a view to the reasonable use by others of the harbour area and
approaches and the Joint Venturers will furnish to the State copies of such
report and recommendations. When submitting to the Minister detailed proposals
as referred to in clause 5(2)(a) hereof in regard to the matters mentioned in
this subclause the Joint Venturers will so far as reasonably practicable
ensure that the detailed proposals —
(a) do
not materially depart from the report and recommendations of the consultant
engineers;
(b)
provide for the best overall development of the harbour area so far as the
same relates to the Joint Venturers’ activities; and
(c)
disclose any conditions of user and where alternative proposals are submitted
the Joint Venturers’ preferences in regard thereto.
Joint Venturers to submit proposals 4
5. (1) The Joint
Venturers having submitted to the Minister their proposals for the location of
a site for the harbour the Minister will within one month after execution of
this Agreement notify the Joint Venturers of his approval or otherwise or may
submit an alternative proposal.
(2) Subject to
agreement (as to which the provisions of clause 25 do not apply) being reached
as to the site for the harbour then by the 31st day of December 1964 or such
extended date if any as the Minister may approve or as may be determined by
arbitration as aforesaid the Joint Venturers will where not already done
submit to the Minister —
(a) to
the fullest extent reasonably practicable their detailed proposals (including
plans where practicable and specifications where reasonably required by the
Minister) with respect so far as relevant —
(A) to the mining area “A” (or
so much thereof as shall be comprised within the mineral lease) by the Joint
Venturers during the three (3) years next following the commencement of such
mining with a view to the transport and shipment of the iron ore mined and
their outline proposals with respect to such mining during the next following
seven (7) years; and
(B) to the transport and shipment of iron
ore to be mined by the Joint Venturers hereunder during the operation of Phase
2 of this Agreement —
and including the
location area lay-out 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 —
(i)
the harbour and harbour development including dredging
the depositing of spoil the provision of navigational aids the Joint
Venturers’ 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 Joint Venturers’ use and harbour installations
facilities and services all of which shall permit of adaptation so as to
enable initially the use of the harbour and wharf by vessels having an ore
carrying capacity of not less than thirty thousand (30,000) tons and
thereafter to progressively develop the harbour installation facilities and
services so as to enable within the next three (3) years the use of the
harbour and wharf by vessels having an ore-carrying capacity of not less than
forty thousand (40,000) tons;
(ii)
the railway between mining area “A” and the
Joint Venturers’ wharf and works ancillary to or connected with the
railway and its proposed operation including fencing (if any) and crossing
places;
(iii)
townsites on mining area “A” and near the
harbour and development services and facilities in relation thereto;
(iv)
housing;
(v)
water supply;
(vi)
roads (including details of roads in respect of which it
is not intended that the provisions of clause 9(2)(b) shall operate); and
(vii)
any other works services or facilities proposed or
desired by the Joint Venturers;
and
(b)
(subject to the provisions of subclause (4) of this clause) satisfactory
evidence firstly of the making or likelihood of making a suitable contract or
suitable contracts or the sale by the Joint Venturers hereunder and shipment
from the Joint Venturers’ wharf of not less than ten million
(10,000,000) tons of iron ore (and/or processed iron ore) from the mineral
lease including not less than two million (2,000,000) tons in the aggregate in
the first two (2) years next following the export date and not less than one
million (1,000,000) tons per year in each and every year of each succeeding
year thereafter secondly of the availability of finance necessary for the
fulfilment of the Joint Venturers’ proposals hereunder relating to the
iron ore export project the subject of Phase 2 of this Agreement and thirdly
of any necessary license to the Joint Venturers from the Commonwealth to
export hereunder iron ore the subject of the iron ore contracts in the
quantities at the rate or rates and in the years stated in the contracts.
(3) The Joint
Venturers shall have the right to submit to the Minister their detailed
proposals aforesaid in regard to a matter or matters the subject of any of the
subparagraphs numbered (i) to (vii) inclusive of paragraph (a) of subclause
(2) of this clause as and when the detailed proposals become finalised by the
Joint Venturers PROVIDED THAT where any such matter is the subject of a
subparagraph which refers to more than one subject matter the detailed
proposals will relate to and cover each of the matters mentioned in the
subparagraph PROVIDED FURTHER that the first detailed proposals submitted to
the Minister relate to and cover the matters mentioned in subparagraph (i) of
the said paragraph (a) of the said subclause (2) and that the last two
detailed proposals submitted to the Minister relate to and cover the iron ore
contracts and the finance necessary for the iron ore export project.
(4) If the Joint
Venturers should in writing and within the time later in this subclause
mentioned request the Minister to grant an extension or any further extension
of time beyond the 31st day of December, 1964 (or such later date if any
previously granted or approved by the Minister) within which to make the iron
ore contracts and then demonstrates to the satisfaction of the Minister that
the Joint Venturers have duly complied with their other obligations hereunder
have genuinely and actively but unsuccessfully endeavoured to make the iron
ore contracts on a competitive basis and reasonably require an additional
period for the purpose of making iron ore contracts the Minister will grant
such extension as is warranted in the circumstances as follows —
(a) for
up to six (6) months on request made within one month of the 31st day of
December, 1964;
(b) if
an extension is granted under paragraph (a) of this subclause then further for
up to three (3) years on request made within one month of the expiration of
the period of extension granted under the said paragraph (a);
(c) if
an extension is granted under paragraph (b) of this subclause then further for
up to two (2) years on request made within one month of the expiration of the
period of extension granted under the said paragraph (b) unless the Minister
shows to the Joint Venturers satisfactory evidence that some third party is
able and willing if made the lessee of the mineral lease to obtain and duly
fulfil that party’s obligations under contracts or the sale of iron ore
(or processed iron ore) from the leased land which contracts are comparable
with iron ore contracts under this Agreement on terms from the State not more
favourable on the whole (having regard inter alia to initial expenditure) to
that party than those applicable to the Joint Venturers hereunder;
subject always and in every case to the condition that the Joint Venturers
duly comply (or comply to the satisfaction of the Minister) with their other
obligations hereunder.
Consideration of other proposals under clause 5(2) 4
6. (1) Within two (2)
months after receipt of the detailed proposals of the Joint Venturers in
regard to any of the matters mentioned in clause 5(2)(a) hereof the Minister
shall give to the Joint Venturers notice either his approval of the proposals
or of alterations desired thereto and in the latter case shall afford to the
Joint Venturers opportunity to consult with and to submit new proposals to the
Minister. The Minister may make such reasonable alterations to or impose such
reasonable conditions on the proposals or new proposals (as the case may be)
as he shall think fit having regard to the circumstances including the overall
development and use (subject to the provisions of clause 8(5)(a) and (b)
hereof) by others as well as the Joint Venturers but the Minister shall in any
notice to the Joint Venturers disclose his reasons for any such alteration or
condition. Within two (2) months of the receipt of the notice the Joint
Venturers may elect by notice to the State to refer to arbitration and within
two (2) months thereafter shall refer to arbitration as hereinafter provided
any dispute as to the reasonableness of any such alteration or condition. If
by the award on arbitration the dispute is decided against the Joint Venturers
then unless the Joint Venturers within three (3) months after delivery the
award satisfy and obtain 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
clause 10(d) hereof) but if the question is decided in favour of the Joint
Venturers 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.
(2) Within two (2)
months after receipt of evidence iron the Joint Venturers with regard to the
matters mentioned in clause 5(2)(b) hereof to the reasonable satisfaction of
the Minister the State will give to the Joint Venturers notice either that it
is satisfied with such evidence (in which case the proposals in relation to
those matters will be deemed approved) or not in which case the State shall
afford the Joint Venturers an opportunity to consult with and to submit
further evidence to the Minister. If within thirty (30) days of receipt of
such notice further evidence has not been submitted to the Minister’s
reasonable satisfaction and his approval obtained thereto the Joint Venturers
may within a further period of thirty (30) days elect by notice to the State
to refer to arbitration as hereinafter provided and will within two (2) months
thereafter refer to arbitration any dispute as to the reasonableness of the
Minister’s decision. If by the award on arbitration the dispute is
decided against the Joint Venturers then unless the Joint Venturers within
three (3) months after delivery of the award satisfy and obtain 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 cease and determine
(save as provided in clause 10(d) hereof) but if the question is decided in
favour of the Joint Venturers the decision will take effect as a notice by the
Minister that he is so satisfied with and has approved the matter or matters
the subject of the arbitration.
Extension of time 4
7. (1) 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 Joint
Venturers may in the name of the Minister grant any further extension of time
for that purpose.
(2) Notwithstanding
that under clause 6 hereof any detailed proposals of the Joint Venturers are
approved by the State or the Minister or determined by arbitration award
unless each and every such proposal and matter is so approved or determined by
the 28th day of February, 1965 or by such extended date if any as the Joint
Venturers shall be entitled to or shall be granted pursuant to the provisions
hereof then at any time after the said 28th day of February, 1965 or if any
extension or extensions should be granted under clause 5(4) hereof or any
other provision of this Agreement then on or after the expiration of the last
of such extensions the Minister may give to the Joint Venturers twelve (12)
months notice of intention to determine this Agreement and unless before the
expiration of the said twelve (12) months period all the detailed proposals
and matters are so approved or determined this Agreement shall cease and
determine subject however to the provisions of clause 10(d) hereof.
Commencement date 4
(3) Subject to the
approval by the Minister or determination by arbitration as herein provided of
each and every of the detailed proposals and matters referred to in clause
5(2) hereof the date upon which the last of those proposals of the Joint
Venturers shall have been so approved or determined shall be the commencement
date for the purposes of this Agreement.
(4) If under any
arbitration under clause 6 hereof the dispute is decided against the Joint
Venturers and subsequently but before the commencement date this Agreement
ceases and determines 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 mining area “A” on terms
more favourable on the whole to the other party than those which would have
applied to the Joint Venturers hereunder if the question had been determined
in favour of the Joint Venturers.
Mineral lease before commencement date 4
8. (1) As soon as
conveniently may be before the commencement date the State shall after
application is made by the Joint Venturers for a mineral lease of any part or
parts (not exceeding in total area 300 square miles and in the shape of a
parallelogram or parallelograms) of mining area “A” cause any
necessary survey to be made of the lands applied for (the cost of which survey
shall be recouped or repaid to the State by the Joint Venturers on demand
after completion of the survey) and shall cause to be granted to the Joint
Venturers as tenants in common in equal shares a mineral lease thereof for
iron ore in the form of the Schedule hereto for a term which subject to the
payment of rental hereinafter mentioned and to the performance and observance
by the Joint Venturers of their obligations under the mineral lease and
otherwise under this Agreement shall be for a period commencing from the date
of issue of the mineral lease and expiring on the commencement date but
subject to earlier determination upon the cessation or determination of this
Agreement.
Phase 2 obligations of State 4
(2) As soon as
conveniently may be after the commencement date the State shall —
Mineral lease after commencement date 4
(a)
after application is made by the Joint Venturers 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 parallelogram or parallelograms) of mining area
“A” in conformity with the Joint Venturers’ detailed
proposals under clause 5(2)(a)(A) hereof as finally approved or determined
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 Joint
Ventures on demand after completion of the survey) and shall cause to be
granted to the Joint Venturers as tenants in common in equal shares a mineral
lease thereof for iron ore in the form of the Schedule hereto for a term which
subject to the payment of rents and royalties hereinafter mentioned and to the
performance and observance by the Joint Venturers of their obligations under
the mineral lease and otherwise under this Agreement shall be for a period of
twenty-one (21) years commencing from the commencement date 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 Joint Venturers may
from time to time (without abatement of any rent then paid or payable in
advance) surrender to the State all or any portion or portions (of reasonable
size and shape) of the mineral lease;
Under Joint Venturers’ proposals 4
(b) in
accordance with the Joint Venturers’ proposals as finally approved or
determined under clause 6 hereof and as require the State to accept
obligations —
Lands 4
(i)
grant to the Joint Venturers as tenants in common in
equal shares in fee simple or for such terms or periods and on such terms and
conditions (including renewal rights) as subject to the proposals (as finally
approved or determined as aforesaid) shall be reasonable having regard to the
requirements of the Joint Venturers hereunder and to the overall development
of the harbour and access to and use by others of lands the subject of any
grant to the Joint Venturers and of services and facilities provided by the
Joint Venturers —
for nominal
consideration — townsite lots;
at peppercorn rental
— special leases of Crown lands within the harbour area the townsites
and the railways; and
at rentals as
prescribed by law or are otherwise reasonable — leases rights mining
tenements easements reserves and licenses 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
subclause (2) of this clause provided (as the case may require) as the Joint
Venturers reasonably require for their works and operations hereunder
including the construction or provision of the railway wharf roads airstrip
water supplies and stone and soil for construction purposes; and
Services and facilities 4
(ii)
provide any services or facilities subject to the Joint
Venturers bearing and paying the capital cost involved if reasonably
attributable to or resulting from the Joint Venturers’ 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 finally approved or determined as aforesaid PROVIDED
THAT from and after the fifteenth anniversary of the export date or the
twentieth anniversary of the date hereof whichever shall first occur (provided
that the said twentieth anniversary shall be extended one (1) year for each
year this Agreement has been continued in force and effect under clause 5(4)
hereof) the Joint Venturers 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 subject to its being
payable by the Joint Venturers to the State may from time to time at the
option of the Joint Venturers be payable in respect of such one or more of the
special leases or other leases granted to the Joint Venturers under this
paragraph and remaining current) equal to two shillings and sixpence (2s. 6d.)
per ton on all iron ore and iron ore concentrates in respect of which royalty
is payable under clause 9(2)(j) hereof in any financial year such additional
rental to be paid within three (3) months after shipment sale use or
production as the case may be of the iron ore or iron ore concentrates SO
NEVERTHELESS that the additional rental to be paid under this proviso shall
not be less than seventy-five thousand pounds (£75,000) in respect of any
such year and if a mineral lease of mining area “B” and mining
area “C” or of any part or parts thereof respectively has beeen
granted to the Joint Venturers under clause 11(6) hereof the additional rental
to be paid as aforesaid shall thereafter be not less than one hundred and
fifty thousand pounds (£150,000) in respect of any such year and the
Joint Venturers will within three (3) months after expiration of that year pay
to the State as further rental the difference between seventy-five thousand
pounds (£75,000) or one hundred and fifty thousand pounds (£150,000)
(whichever is applicable as aforesaid) 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 two
shillings and six-pence (2s. 6d.) per ton as aforesaid shall be offset by the
Joint Venturers 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; and
Other rights 4
(c) on
application by the Joint Venturers cause to be granted to them such machinery
and tailings leases (including leases for the dumping of overburden) and such
other leases licenses reserves and tenements under the Mining Act or under the
provisions of the Land Act modified as in subclause (2) of this clause
provided as the Joint Venturers may reasonably require and request for their
purposes under this Agreement on or near the mineral lease;
(3) For the purposes
of subparagraph (i) of paragraph (b) and paragraph (c) of subclause (1) of
this clause the Land Act shall be deemed to be modified by —
(a) the
substitution for subsection (2) of section 45A of the following subsection:
(2) Upon the Governor
signifying approval pursuant to subsection (1) of this section in respect of
any such land the same may subject to this section be sold or leased;
(b) the
deletion of the proviso to section 116;
(c) the
deletion of section 135;
(d) the
deletion of section 143;
(e) the
inclusion of a power to offer for sale or 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 offer for sale or grant leases or licenses 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 Joint Venturers in forms consistent
as aforesaid in lieu of in the forms referred to in the Act.
(4) The provisions of
subclause (2) of this clause shall not operate so as to prejudice the rights
of the State to determine any lease license or other right or title in
accordance with the other provisions of this Agreement.
(5) The State further
covenants with the Joint Venturers’ that the State —
Non-interference with Joint Venturers’ rights 4
(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 Joint Venturers 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 1936
) 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
Joint Venturers hereunder assuming the taking by the Joint Venturers of all
reasonable steps to avoid the interference;
No resumption 4
(b)
subject to the performance by the Joint Venturers of their obligations under
this Agreement shall not during the currency hereof without the consent of the
Joint Venturers 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 Joint Venturers and the subject of or used for the purposes
of this Agreement nor any of the lands the subject of any lease or license
granted to the Joint Venturers 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 Joint Venturers’ operations
hereunder;
Labour requirements 4
(c)
shall if so requested by the Joint Venturers and so far as its powers and
administrative arrangements permit use reasonable endeavours to assist the
Joint Venturers to obtain adequate and suitable labour for the construction
and the carrying out of the work and operations referred to in this Agreement
including suitable immigrants for that purpose;
No discriminatory rates 4
(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 operation of the
Joint Venturers in the conduct of the Joint Venturers’ business
hereunder nor will the State take or permit to be taken any such State
authority any other discriminatory action which would deprive the Joint
Venturers of full enjoyment of the rights granted and intended to be granted
under this Agreement.
Rights to other minerals 4
(e)
shall where and to the extent reasonably practicable on application by the
Joint Venturers from time to time grant or assist in obtaining the grant to
the Joint Venturers of prospecting rights and mining leases with respect to
limestone dolomite and other minerals reasonably required by the Joint
Venturers for their purposes under this Agreement; and
Consents to improvements on leases 4
(f)
shall as and when required by the Joint Venturers (but without prejudice to
the foregoing provisions of this Agreement relating to the detailed proposals
and matters referred to in clause 5(2) hereof) consent in writing where and to
the extent that the Minister considers to be reasonably justified to the Joint
Venturers making improvements for the purposes of this Agreement on the land
comprised in any lease granted by the State to the Joint Venturers pursuant to
this Agreement PROVIDED THAT the Joint Venturers shall also obtain any other
consents legally required in relation to such improvements.
(6) The Joint
Venturers shall not have any tenant rights in improvements made by the Joint
Venturers on the land comprised in any lease granted by the State to the Joint
Venturers pursuant to this Agreement in any case where pursuant to clause
10(e) hereof such improvements will remain or become the absolute property of
the State.
Phase 2 obligations of the Joint Venturers to construct 4
9. (1) The Joint
Venturers shall within three (3) years next following the commencement date
(or within such extended period not exceeding a further two years as the Joint
Venturers may satisfy the Minister that the Joint Venturers reasonably require
and the Minister approves), and at a cost of not less than twenty million
pounds (£20,000,000) (inclusive of the said recited costs of one million
pounds (£1,000,000)) construct install provide and do all things
necessary to enable them to mine from the mineral lease to transport by rail
to the Joint Venturers’ wharf and to commence shipment therefrom in
commercial quantities at an annual rate of not less than one million
(1,000,000) tons of iron ore and without lessening the generality of this
provision the Joint Venturers shall within the aforesaid period or extended
period as the case may be —
On mining areas 4
(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 power house workshop and other things of a design
and capacity adequate to enable the Joint Venturers to meet and discharge
their obligations hereunder and under the iron ore contracts and to mine
handle load and deal with not less than three thousand (3,000) tons of iron
ore per diem such capacity to be built up progressively to not less than six
thousand (6,000) tons of iron ore per diem within three (3) years next
following the export date;
To commence exports 4
(b)
actually commence to mine transport by rail and ship from the Joint
Venturers’ wharf iron ore from the mineral lease so that the average
annual rate during the first two years shall not be less than one million
(1,000,000) tons;
To construct railway 4
(c)
subject to the State having assured to the Joint Venturers 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 clause 6 hereof (but subject to the provisions of
the Public Works Act 1902 to the extent that they are applicable) a four feet
eight and one-half inches (4′ 8½″) gauge railway (with all
necessary signalling switch and other gear and all proper or usual works) from
mining area “A” to the Joint Venturers’ wharf and will
provide for crossing places and the running of 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 to the Joint
Venturers’ wharf or as required for the purposes of this Agreement;
To make roads 4
(d)
subject to the State having assured to the Joint Venturers all necessary
rights in or over Crown lands or reserves available for the purpose construct
by the said date such new roads as the Joint Venturers reasonably require for
their purposes hereunder of such widths with such materials gates crossings
and passovers for cattle and for sheep and along such routes as the parties
hereto shall mutually agree after discussion with the respective shire
councils through whose districts any such roads may pass and subject to prior
agreement with the appropriate controlling authority (being a shire council or
the Commissioner of Main Roads) as to terms and conditions the Joint Venturers
may at their own expense and risk except as otherwise so agreed upgrade or
realign any existing road;
To construct wharf 4
(e)
construct the Joint Venturers’ wharf in accordance with plans and
specifications for the construction thereof previously approved or determined
under clause 6 hereof on the site previously approved or determined for the
purpose; and
To carry out proposals 4
(f) in
accordance with the Joint Venturers’ proposals as finally approved or
determined under clause 6 hereof and as require the Joint Venturers to accept
obligations —
(i)
dredge the berth at the Joint Venturers’ wharf and
the channel and approaches thereto and any necessary swinging basin;
(ii)
lay out and develop the townsites and provide adequate
and suitable housing recreational and other facilities and services;
(iii)
construct and provide roads housing school water and
power supplies and other amenities and services; and
(iv)
construct and provide other works (if any) including an
airstrip.
(2) Throughout the
continuance of this Agreement the Joint Venturers shall —
Operation of railway 4
(a)
operate their railway in a safe and proper manner and where and to the extent
that they can do so without unduly prejudicing or interfering with their
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 subclause (3) 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
Joint Venturers) PROVIDED THAT in relation to their use of the said railway
the Joint Venturers shall not be deemed to be a common carrier at common law
or otherwise;
Use of roads by others 4
(b)
except to the extent that the Joint Venturers’ proposals as finally
approved or determined under clause 6 hereof otherwise provide allow the
public to use free of charge any roads (to the extent that it is reasonable
and practicable so to do) constructed or upgraded under this clause PROVIDED
THAT such use shall not unduly prejudice or interfere with the Joint
Venturers’ operations hereunder;
Compliance with laws 4
(c) in
the construction operation maintenance and use of any work installation plant
machinery equipment service or facility provided or controlled by the Joint
Venturers comply with and observe the provisions hereof and subject thereto
the laws for the time being in force in the said State;
Maintenance 4
(d) 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 the railway wharf roads (other than the public roads referred to
in clause 10(b) hereof) dredging and water and power supplies for the time
being the subject of this Agreement;
Shipment of and price for ore 4
(e) ship
from the Joint Venturers’ wharf all iron ore mined from the mineral
lease and sold and use their best endeavours to obtain therefor the best price
possible having regard to market conditions from time to time prevailing
PROVIDED THAT this paragraph shall not apply to iron ore used for secondary
processing or for the industry for additional upgrading of beneficiated ore in
any part of the said State lying north of the twenty-sixth parallel of
latitude;
Use of wharf and facilities 4
(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
subclause (3) 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 Joint Venturers) allow the State and third
parties to use the Joint Venturers’ wharf and harbour installations
wharf machinery and equipment and wharf and harbour services and (subject to
subclause (4) of this clause) harbour facilities PROVIDED THAT such use shall
not unduly prejudice or interfere with the Joint Venturers’ operations
hereunder and that the entire control and all personnel for or in respect of
such use shall be provided by or with the approval of the Joint Venturers;
Access through mining areas 4
(g)
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 Joint Venturers’ operations hereunder;
Protection for inhabitants 4
(h)
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
subclause (3) 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 Joint Venturers) allow the inhabitants for
the time being of the port townsite being employees licensees or agents of the
Joint Venturers or persons engaged in providing a legitimate and normal
service to or for the Joint Venturers or those employees licensees or agents
to make use of the water power recreational health and other services or
facilities provided or controlled by the Joint Venturers;
Use of local labour and materials 4
(i)
so far as reasonably and economically practicable use
labour materials plant equipment and supplies available within the said State
where it is not prejudicial to the interest of the Joint Venturers so to do;
Royalties 4
(j) pay
to the State royalty on all iron ore from the mineral lease shipped or sold
(other than ore shipped solely for testing purposes) or (in the circumstances
mentioned in subparagraph (iv) of this paragraph) on iron ore concentrates
produced from iron ore from the mineral lease or on other ore from the mineral
lease used as mentioned in subparagraph (iv) of this paragraph as follows
—
(i)
on direct shipping ore (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 Joint
Venturers of the purchase price in respect of ore shipped or sold hereunder)
PROVIDED NEVERTHELESS that such royalty shall not be less than six shillings
(6/-) per ton (subject to subparagraph (vi) of this paragraph) in respect of
ore the subject of any shipment or sale;
(ii)
on fine ore (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
three shillings (3/-) per ton (subject to subparagraph (vii) of this
paragraph) in respect of ore the subject of any shipment or sale;
(iii)
on fines (not being locally used ore) at the rate of one
shilling and sixpence (1s. 6d.) per ton;
(iv)
on iron ore concentrates produced from locally used ore
by secondary processing and on locally used ore (not being iron ore used for
producing iron ore concentrates subject to royalty hereunder) at the rate of
one shilling and sixpence (1s. 6d.) 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)
(for averaging purposes) if the amount ascertained by
multiplying the total tonnage of direct shipping ore shipped or sold (and
liable to royalty under subparagraph (i) of this paragraph) in any financial
year by six shillings (6/-d.) 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 direct shipping
ore shipped or sold in that year and at the expiration of that year any
necessary adjustments shall be made accordingly;
(vii)
(for averaging purposes) if the amount ascertained by
multiplying the total tonnage of fine ore shipped or sold (and liable to
royalty under subparagraph (ii) of this paragraph) in any financial year by
three shillings (3/-d.) 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 in that year and at the expiration of that year any necessary
adjustments shall be made accordingly; and
(viii)
the royalty at the rate of one shilling and sixpence
(1/6d.) per ton referred to in subparagraphs (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
proportionately to the variation of the average of the prices payable for
foundry pig iron f.o.b. Adelaide during the last full calendar year preceding
the date at which the adjustment is to be made as compared with the average of
those prices during the calendar year 1963.
For the purposes of
this paragraph “locally used ore” means iron ore used by the Joint
Venturers or an associated company both within the Commonwealth and within the
limits referred to in paragraph (o) of this clause for secondary processing or
in an industry for additional upgrading of beneficiated ore 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 industry for
additional upgrading of beneficiated ore;
Payment of royalties 4
(k)
within fourteen days after the quarter days the last days of March June
September and December in each year commencing with the quarter day next
following the first commercial shipment of iron ore from the Joint
Venturers’ wharf furnish to the Minister a return showing the quantity
of all iron ore or iron ore concentrates the subject of royalty hereunder and
shipped sold used or produced (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 concentrates produced or iron ore used and in respect of
all iron ore shipped or sold pay to the Minister on account of the royalty
payable hereunder a sum calculated on the basis of invoices or provisional
invoices (as the case may be) rendered by the Joint Venturers to the purchaser
(which invoices the Joint Venturers shall render without delay simultaneously
furnishing copies thereof to the Minister) of such iron ore 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 4
(l) by
of rent for the mineral lease pay to the State annually in advance a sum equal
to three shillings and sixpence (3s. 6d.) per acre of the area for the time
being the subject of the mineral lease commencing on and accruing from the
commencement date PROVIDED THAT after the Joint Venturers commence production
in commercial quantities within the said State from a plant for secondary
processing or for an industry for additional upgrading of beneficiated ore
(whichever is first constructed) 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 two shillings (2s.) 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 two
shillings and sixpence (2s. 6d.) 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 three
shillings (3s.) per acre;
Other rentals 4
(m) pay
to the State the rental referred to in the proviso to clause 8(2)(b) hereof if
and when such rental shall become payable;
Inspection 4
(n)
permit the Minister or his nominee to inspect at all reasonable times the
books of account and records of the Joint Venturers relative to any shipment
or sale of iron ore hereunder and to take copies or extracts therefrom and for
the purpose of determining the f.o.b. revenue payable in respect of any
shipment of iron ore hereunder the Joint Venturers 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 as iron ore which may affect the amount of
royalty payable hereunder; and
Export to places outside the Commonwealth 4
(o)
ensure that without the prior written approval of the Minister all iron ore
shipped pursuant to this Agreement will be off-loaded at a place outside the
Commonwealth and if they fail so to ensure the Joint Venturers will subject to
the provisions of this paragraph be in default hereunder. Where any such
shipment is off-loaded within the Commonwealth without such prior written
approval the Joint Venturers shall forthwith on becoming aware thereof give to
the State notice of the fact and pay to the State in respect of the iron ore
the subject of the shipment such further and additional rental calculated at a
rate not exceeding ten shillings (10s.) per ton of the iron 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 Joint Venturers
of the provisions hereof. If ore is shipped in a vessel not owned by the Joint
Venturers or an associated company or any other company in which the Joint
Venturers have a controlling interest and such ore is off-loaded in the
Commonwealth the Joint Venturers will not be or be deemed to be in default
hereunder if they take 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 Joint Venturers 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 the subject of secondary processing or of an
industry for the additional upgrading of beneficiated ore by the Joint
Venturers or an associated company within the said State
(ii)
to ore processed by the Joint Venturers or an associated
company within the Commonwealth but outside the said State to the extent that
the tonnage of ore so processed does not in any year exceed fifty per centum
(50%) of the total quantity of iron ore the subject of secondary processing
and/or of an industry for the additional upgrading of beneficiated ore by the
Joint Venturers or an associated Company; or
(iii)
to ore processed by the Joint Venturers 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 the subject of secondary
processing and/or of an industry for the additional upgrading of beneficiated
ore by the Joint Venturers or an associated company within the said State with
the prior approval of the Minister as aforesaid.
By-laws 4
(3) The Governor in
Executive Council may upon recommendation by the Joint Venturers make alter
and repeal by-laws for the purpose of enabling the Joint Venturers to fulfil
their obligations under paragraphs (a) (b) and (f) of subclause (2) of this
clause and (unless and until the port townsite is declared a townsite pursuant
to section 10 of the Land Act) under paragraph (h) of subclause (2) of this
clause and under clause 10(a) hereof upon terms and subject to conditions
(including terms and conditions as to user charging and limitation of the
liability of the Joint Venturers) 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 Joint Venturers 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.
Harbour channel approach provisions 4
(4) (a)
The parties hereto acknowledge that some party
other than the Joint Venturers (which party is hereinafter in this subclause
referred to as “the other party”) may have already agreed or will
agree with the State for the mining transport and export of iron ore from
within an area or areas of the said State other than Mining Area
“A”, Mining Area “B”, or Mining Area “C”
and that it may be further agreed or determined that such export will be from
the harbour. In this event and notwithstanding the approval or determination
of all or any of the detailed proposals hereunder the parties hereto
acknowledge that the State may require that only one channel approach to the
harbour shall be dredged to serve the interests of the Joint Venturers and of
the other party as well as of other users of the harbour but that it will
depend upon circumstances (including the depth and width of the channel
approach and the respective time programmes for the dredging as desired by the
Joint Venturers and the other party under and for the purposes of their
respective agreements with the State) whether that channel approach shall be
dredged by the Joint Venturers or by the other party or partly by each or
under some other arrangements with a view to the joint user of the whole or
part of the channel approach.
(b) The
parties hereto acknowledge the principle that whichever of the Joint Venturers
and the other party should incur the whole or the greater capital outlay (as
the case may be) for the dredging or should be responsible for the operation
and maintenance of the channel approach (insofar as it is or is intended to be
used by the other of them) should be reimbursed by the other of them such a
fair and reasonable proportion of the capital outlay and operation and
maintenance costs respectively for the use of the channel approach or
otherwise a fair and reasonable charge for such use as may be determined by
mutual agreement between the parties concerned or failing agreement by
arbitration under the provisions of the Arbitration Act 1895 if those parties
agree within a time to be fixed by the Minister to submit to arbitration and
failing such agreement then as determined by the Minister.
(c) If
in the circumstances referred to in the last preceding paragraph the other
party is the party to be reimbursed then the Joint Venturers hereby agree on
demand made by the State to pay the amount of such reimbursement (determined
as aforesaid) to the State for and on behalf of the other party.
(d) If
in the circumstances referred to in paragraph (b) of this subclause the Joint
Ventures are the party to be reimbursed then the State agrees not to permit
vessels of the other party of which notice is given to the State by the Joint
Venturers to enter the harbour through the channel approach and then to load
iron ore in bulk unless and until the other party has made arrangements
reasonably satisfactory to the Joint Venturers (to be determined by agreement
arbitration or the Minister as aforesaid) for a fair and reasonable
contribution to capital outlay and operation and maintenance costs incurred
and/or to be incurred by the Joint Venturers as aforesaid or for the payment
of a fair and reasonable charge.
(e) The
State acknowledges and agrees with the Joint Venturers that in the event of
the Joint Venturers incurring the whole or the greater capital outlay or
operation and maintenance costs as aforesaid then vessels (other than vessels
employed for the Joint Venturers’ or other party’s purposes) using
the channel approach for the export from the harbour of more than half a
million tons a year of bulk commodities should be required to pay to the Joint
Venturers (or the State should be required to pay to the Joint Venturers from
the moneys received from such vessels) fair and reasonable charges to be
agreed by the parties hereto having regard to the circumstances including the
aggregate tonnage of the commodities exported or to be exported from the
harbour the rate of export and the capital outlay and operation and
maintenance costs incurred and/or to be incurred by the Joint Venturers.
(f) The
Joint Venturers acknowledge and hereby agree with the State that the Joint
Venturers will not be entitled to the payment of any moneys in respect of the
use of the channel approach by vessels other than those referred to in the
foregoing provisions of this subclause but that in respect of such other
vessels the State shall be entitled to retain all charges and other revenue
received in respect of such use.
(g) The
Joint Venturers also agree with the State that notwithstanding any lease
granted to them by the State of the whole or part of the channel approach the
State or the other party may at any time after notice to the Joint Venturers
deepen or widen the channel approach for which purpose the Joint Venturers
will on request by the State surrender without compensation so much of the
lease of the channel approach as may be required for the purpose PROVIDED
HOWEVER that the Joint Venturers will be entitled to reasonable time within
which to complete any firm contract for the dredging of the channel approach
actually made by them (pursuant to the consent of the State or the
determination by arbitration) but unfulfilled at the time of the giving of
such notice in respect of the widening or deepening of the dredging of the
channel approach.
(h) A
lease of the channel approach by the State to the Joint Venturers will be
substantially (unless otherwise mutually agreed) in accordance with the form
marked “B” and initialled by or on behalf of the parties hereto
for the purposes of identification.
Mutual covenants 4
10. The parties hereto covenant and agree with
each other as follows —
Water and power supplies 4
(a) that
subject to and in accordance with proposals approved or determined under
clause 6 hereof the Joint Venturers for their purposes hereunder and for
domestic and other purposes in relation to a townsite may to the extent
determined by the Minister but notwithstanding any Act bore for water
construct catchment areas store (by dams or otherwise) take and charge for
water from any Crown lands available for the purpose and generate transmit
supply and charge for electrical energy and the Joint Venturers shall have all
such powers and authorities with respect to water and electrical energy as are
determined by the Minister for the purposes hereof which may include the
powers of a water board under the Water Boards Act 1904 and of a supply
authority under the Electricity Act 1945 ;
Use of public roads 4
(b) that
the Joint Venturers may use any public roads which may from time to time exist
in the area of their operations hereunder for the purpose of transportation of
goods and materials in connection with such operations PROVIDED NEVERTHELESS
that the Joint Venturers shall on demand pay to the State or the Shire council
concerned the cost of making good any damage to such roads occasioned by
—
(i)
such user by the Joint Venturers prior to the export
date; and
(ii)
user by the Joint Venturers far the transportation of
iron ore won from the mineral lease;
Upgrading of existing roads 4
(c) that
the State will at the request and cost of the Joint Venturers (except where
and to the extent that the Commissioner of Main Roads agrees to bear the whole
or part of the cost involved) widen upgrade or realign any public road over
which the State has control subject to the prior approval of the said
Commissioner to the proposed work;
Effect of determination of agreement 4
(d) that
on the cessation or determination of this Agreement —
(i)
except as otherwise agreed by the Minister the rights of
the Joint Venturers to in or under this Agreement and the rights of the Joint
Venturers or of any assignee of the Joint Venturers or any mortgagee to in or
under the mineral lease and any other lease license 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 AND the Joint Venturers will without further
consideration but otherwise at the request and cost of the State transfer or
surrender to the State or the Crown all land the subject of any Crown Grant
issued under the Land Act pursuant to this Agreement;
(ii)
the Joint Venturers shall forthwith pay to the State all
moneys which may then have become payable or accrued due;
(iii)
the Joint Venturers shall forthwith furnish to the State
complete factual statements of the work research surveys and reconnaissances
carried out pursuant to clause 4(1) hereof if and insofar as the statements
may not have been so furnished; and
(iv)
save as aforesaid and as provided in clause 7(4) hereof
and in the next following paragraph neither of the parties hereto shall have
any claim against another of them with respect to any matter or thing in or
arising out of this Agreement;
Effect of determination of lease 4
(e) that
on the cessation or determination of any lease license or easement granted
hereunder by the State to the Joint Venturers or (except as otherwise agreed
by the Minister) to an associated company or other assignee of the Joint
Venturers under clause 20 hereof of land for the Joint Venturers’ wharf
for any installation within the harbour for the Joint Venturers’ railway
or for housing at the port or port townsite 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 Joint Ventures 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 Joint Venturers
immediately prior to such expiration or determination or subsequent thereto
deciding to remove their locomotives rolling stock plant equipment and
removable buildings or any of them from any land they shall not do so without
first notifying the State in writing of their decision and thereby granting to
the State the right or option exercisable within three 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 4
(f) that
subject to the Joint Venturers at their own expense providing all works
buildings dredging and things of a capital nature reasonably required for
their operations hereunder at or in the vicinity of the harbour 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 Joint
Venturers’ wharf whether such cargoes shall be the property of the Joint
Venturers or of any other person or corporation but the State accepts no
obligation 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 Joint Venturers’
wharf ordinary light conservancy and tonnage dues;
Zoning 4
(g) that
the mineral lease and the lands the subject of any Crown Grant lease license
or easement granted to the Joint Venturers 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 Joint Venturers 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 or regulation;
Rentals and evictions 4
(h) 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
Joint Venturers in any townsite and that in relation to each such house the
Joint Venturers shall have the right to include as a condition of their
letting thereof that the Joint Venturers 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
Joint Venturers;
Labour conditions 4
(i)
that during the currency of this Agreement and subject to
compliance with their obligations hereunder the Joint Venturers shall not be
required to comply with the labour conditions imposed by or under the Mining
Act in regard to the mineral lease.
Subcontracting 4
(j) that
without affecting the liabilities of the parties under this Agreement either
party shall have the right from time to time to entrust to third parties the
carrying out of any portions of the operations which it is authorised or
obliged to carry out hereunder;
Rating 4
(k) 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 therewith) shall for rating purposes be deemed to be on the
unimproved value thereof and no such lands shall be subject to any
discriminatory rate;
Determination of Agreement 4
(l) that
in any of the following events namely if the Joint Venturers shall make
default in the due performance or observance of any of the covenants or
obligations to the State herein or in any lease sublease license or other
title or document granted or assigned under this Agreement on their part to be
performed or observed and shall fail to remedy that default within reasonable
time after notice specifying the default is given to them by the State (or if
the alleged default is contested by the Joint Venturers and promptly submitted
to arbitration within a reasonable time fixed by the arbitration award where
the question is decided against the Joint Venturers the arbitrator finding
that there was a bona fide dispute and that the Joint Venturers had not been
dilatory in pursuing the arbitration) or if the Joint Venturers shall abandon
or repudiate their operations under this Agreement or if any of the Joint
Venturers shall go into liquidation (other than a voluntary liquidation for
the purpose of reconstruction) and unless within three months from the date of
such liquidation the others of the Joint Venturers acquire absolutely the
share estate and interest of the Joint Venturer (in liquidation) in or under
this agreement and in or under the mineral lease and any other lease license
easement or right granted hereunder or pursuant hereto then and in any of such
events the State may by notice to the Joint Venturers determine this Agreement
and the rights of the Joint Venturers hereunder and under any lease license
easement or right granted hereunder or pursuance hereto or if the Joint
Venturers shall surrender the entire mineral lease as permitted under clause
8(2)(a) this Agreement and the rights of the Joint Venturers hereunder and
under any lease license easement or right granted hereunder or pursuant hereto
shall thereupon determine; PROVIDED HOWEVER that if the Joint Venturers shall
fail to remedy any default 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 Joint
Venturers 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 Joint
Venturers to the State on demand; and
(m) that
—
(i)
for the purposes of determining whether and the extent to
which —
(A) the Joint Venturers are liable to any
person or body corporate (other than the State); or
(B) 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 Joint Venturers are
responsible hereunder and for no other purpose the Joint Venturers 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 Joint Venturers;
(ii)
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 .
Company may submit proposals in respect of Mining Area “B” and
Mining Area “C” 4
11. (1) From the
commencement date the Joint Venturers shall with all reasonable diligence
continue their preliminary exploration and investigation preparatory to making
a complete and thorough geological and (as necessary) geophysical
investigation of firstly mining area “B” and secondly of mining
area “C” and within two years next following the commencement date
shall intensify their exploration and investigation and within four years next
following the commencement date the Joint Venturers shall complete their
geological and (as necessary) geophysical exploration and investigation with a
view to proving iron ore deposits in those mining areas and testing and
sampling such deposits. Such investigations shall include a general
reconnaissance of those mining areas with a view to the establishment of
various sites for the operations pursuant to this Agreement. The Joint
Venturers shall keep the State fully informed at least quarterly commencing
within one quarter after the commencement date as to the progress and results
of the Joint Venturers’ operations under this subclause.
(2) If within six (6)
years from the commencement date the Joint Venturers having complied with all
their obligations pursuant to subclause (1) hereof shall apply for a mineral
lease in respect of mining area “B” or any part or parts thereof
and of mining area “C” or any part or parts thereof the Joint
Venturers shall within six months of any such application submit to the
Minister —
(a) to
the fullest extent reasonably practicable their detailed proposals (including
plans where practicable and specifications where reasonably required by the
Minister) and including the location area layout design number materials and
time programme for the commencement and completion of construction or
provision as the case may be of each of the following matters namely —
(i)
such additional harbour development including dredging
depositing of spoil the provision of navigational aids additions to the Joint
Venturers’ wharf (any plans and specifications for additions to the
Joint Venturers’ wharf shall be submitted to and be subject to the
approval of the State) the berth and swinging basin for the Joint
Venturers’ use and harbour installations facilities and services to
enable the use of the harbour and wharf by vessels having an ore carrying
capacity of not less than 60,000 tons;
(ii)
the railway or railways between those mining areas and
the Joint Venturers’ then existing railway from mineral lease granted
under clause 8(2)(a) hereof to the Joint Venturers’ wharf and all works
ancillary to or connected with the railway or railways and its or their
proposed operation including fencing (if any) and crossing places;
(iii)
the town site on mining area “C” and
development services and facilities in relation thereto;
(iv)
the townsite on mining area “B” and
development services and facilities in relation thereto or provision for the
extension of the existing townsite established on mine area “A”;
(v)
housing on mining area “C”;
(vi)
housing on mining area “B” or provision for
the extension of existing housing accommodation established on mining area
“A”;
(vii)
roads from those mining areas to the then existing road
developed by the Joint Venturers from mining area “A” to the Joint
Venturers’ wharf (including details of roads in respect of which it is
not intended that the provisions of clause (9)(2)(b) shall operate) and;
(viii)
any other works services or facilities proposed or
desired by the Joint Venturers; and
(b)
satisfactory evidence of firstly availability of finance necessary for the
fulfilment of the Joint Venturers’ obligations if they undertake
secondary processing under the provisions in that behalf contained in clause
12 hereof and secondly if the Minister so requires production of any necessary
license to the Joint Venturers from the Commonwealth to export iron ore from
mining area “B” and or mining area “C”
(3) The estimated cost
of the works to be proposed under subclause 2 of this clause shall be not less
than ten million pounds (£10,000,000) and the works shall be of such
design and capacity as shall enable the Joint Venturers to mine and handle
load and deal with six thousand (6,000) tons of iron ore per diem in addition
to the requirements of clause 9(1)(a) hereof.
(4) Within two months
after receipt of the detailed proposals of the Joint Venturers in regard to
any of the matters mentioned in subclause 2(a) of this clause the Minister
shall give to the Joint Venturers notice either of his approval of the
proposals or of alterations desired thereto and in the latter case shall
afford to the Joint Venturers opportunity to consult with and to submit new
proposals to the Minister. The Minister may make such reasonable alterations
to or impose such reasonable conditions on the proposals or new proposals (as
the case may be) as he shall think fit having regard to the circumstances
including the overall development and use by others as well as the Joint
Venturers of the Joint Venturers’ wharf facilities and services but the
Minister shall in any notice to the Joint Venturers disclose his reasons for
any such alteration or condition. Within two (2) months of the receipt of the
notice the Joint Venturers may elect by notice to the State to refer to
arbitration and within two (2) months thereafter shall refer to arbitration as
hereinafter provided any dispute as to the reasonableness of any such
alteration or condition. If by the award on arbitration the dispute is decided
against the Joint Venturers then unless the Joint Venturers within three (3)
months after delivery of the award satisfy and obtain the approval of the
Minister as to the matter or matters the subject of the arbitration the
application for a lease of those mining areas or any part or parts thereof
respectively shall on the expiration of that period of three (3) months cease
and determine (save as provided in clause 10(d) hereof) but if the question is
decided in favour of the Joint Venturers 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.
(5) Within two (2)
months after receipt of evidence from the Joint Venturers with regard to the
matters mentioned in subclause (2)(b) of this clause to the reasonable
satisfaction of the Minister the State will give to the Joint Venturers notice
either that it is satisfied with such evidence (in which case the proposals in
relation to those matters will be deemed approved) or not in which case the
State shall afford the Joint Venturers an opportunity to consult with and to
submit further evidence to the Minister. If within thirty (30) days of receipt
of such notice further evidence has not been submitted to the Minister’s
reasonable satisfaction and his approval obtained thereto the Joint Venturers
may within a further period of thirty (30) days elect by notice to the State
to refer to arbitration as hereinafter provided and will within two (2) months
thereafter refer to arbitration any dispute as to the reasonableness of the
Minister’s decision. If by the award on arbitration the dispute is
decided against the Joint Venturers then unless the Joint Venturers within
three (3) months after delivery of the award satisfy and obtain the approval
of the Minister as to the matter or matters the subject of the arbitration the
application for a lease of those mining areas or any part or parts thereof
respectively shall on the expiration of that period cease and determine (save
as provided in clause 10(d) hereof) but if the question is decided in favour
of the Joint Venturers the decision will take effect as a notice by the
Minister that he is so satisfied with and has approved the matter or matters
the subject of the arbitration.
Effect of Joint Venturers applying for mineral lease in respect of Mining Area
B and Mining Area C 4
(6) If the Joint
Venturers shall have applied for a mineral lease of mining area
“B” and mining area “C” or any part or parts thereof
respectively within six (6) years of the commencement date and shall have
complied with their in obligations in respect of such application and if the
Minister shall have approved the Joint Venturers’ proposals or be deemed
to have approved the Joint Venturer’s proposals by decision of
arbitration then the Minister shall cause any necessary survey to be made of
the land so applied for (the cost of the survey to the State will be recouped
or repaid to the State by the Joint Venturers on demand after completion of
the survey) and shall cause to be granted to the Joint Venturers as tenants in
common in equal shares a mineral lease thereof (hereinafter referred to as
“the second mineral lease”) for iron ore in the form of the lease
in the Schedule hereto for a term which subject to the payments of rental and
royalties hereinbefore mentioned and to the performance and observance by the
Joint Venturers of their obligations under the mineral lease shall be for a
period commencing from the date of issue of the second mineral lease for a
period co-extensive with the residue of the term then unexpired of the
original mineral lease granted under clause 8(2)(a) hereof with rights to
successive renewal for 21 years upon the same terms and subject to earlier
determination upon the cessation or determination of this agreement.
Effect of Joint Venturers not applying for mineral lease in respect of Mining
Area B and Mining Area C 4
(7) If the Joint
Venturers do not apply within six (6) years from the commencement date or
cease to be entitled to apply for a mineral lease in respect of those mining
areas being mining area “B” or mining area “C” or any
part or parts thereof respectively the Joint Venturers will cease to have any
rights or interests to or in respect of those mining areas or any of them or
any part or parts thereof respectively and this agreement with the exception
of Clauses 12-17 (inclusive) will continue in force for 21 years from the
export date or until the Joint Venturers have mined all the available iron ore
on mining area “A” (whichever later happens) or until this
agreement is determined provided that if in any financial year after six years
from the commencement date the tonnage of iron ore mined from the mineral
lease and shipped for export is less than one million (1,000,000) tons then
the State may within the period of six months next following the expiration of
that financial year give to the Joint Venturers notice that it intends to
invoke this clause and thereupon if in that financial year and the next two
succeeding financial years the tonnage of iron ore so shipped is less than
three million (3,000,000) tons then subject to Clause 23 hereof the State may
by notice to the Joint Venturers given at any time during the period of twelve
(12) months next following the expiration of the third of the three financial
years above referred to in this proviso determine this agreement whereupon the
rights of the Joint Venturers in this agreement and under any lease license or
mining tenement granted hereunder or pursuant hereto shall cease and determine
subject however to the provisions of Clause 10(d) hereof but without prejudice
to any liability on the part of the Joint Venturers for any antecedent breach
of or liability under any of the provisions in this agreement PROVIDED FURTHER
the Minister upon the application of the Joint Venturers may include in the
existing mineral lease granted under clause 8(2)(a) hereof the whole or any
part or parts of mining area “B” after survey by the State (the
cost of which survey to the State will be recouped or repaid to the State by
the Joint Venturers upon demand after completion of the survey). Where the
whole of mining area “B” or any part or parts thereof is included
in the existing mineral lease the area or areas shall be deemed to be included
in the definition of mineral lease given in clause 1 hereof (so far as the
same relates to Mining Area “A”) and for all purposes of this
agreement with the exception of clauses 12 to 17 (inclusive) where the context
so permits.
Secondary processing 4
12. (1) The Joint
Venturers having commenced already to investigate the feasibility of
establishing a plant for the secondary processing by the Joint Venturers
within the said State of iron ore from the mineral lease will from time to
time review this matter with a view to their being in a position before the
end of year eight to submit to the Minister detailed proposals for such plant
(capable utimately of treating not less than two million (2,000,000) tons of
iron ore per annum) containing provision that —
(a) the
plant will by the end of year 10 have the capacity to process at an annual
rate of and will during the year 11 process not less than five hundred
thousand (500,000) tons of iron ore;
(b)
production will progressively increase so that the plant will by the end of
year 12 have the capacity to process at an annual rate of and will during the
year 13 process not less than one million (1,000,000) tons of iron ore and by
the end of year 16 will have the capacity to process at an annual rate of not
less than and will during the year 17 process not less than two million
(2,000,000) tons of iron ore;
(c) the
capital cost involved (exclusive of the cost referred to in clause 9(1)
hereof) will be not less than eight million pounds (£8,000,000) unless
the Joint Venturers utilise a less expensive but at least equally satisfactory
method of secondary processing than any at present known to either party.
PROVIDED THAT if the Joint Venturers satisfy the Minister that the Joint
Venturers’ mining operations are not producing quantities of iron ore
suitable for treatment at a rate of two million (2,000,000) tons of iron ore
per annum on an economic basis then the Minister may approve modified or
altered proposals and reduce the figure of two million (2,000,000) tons to a
figure the Minister considers appropriate having regard to the prevailing
circumstances but to not less than one million (1,000,000) tons per annum with
provision for progressive increase to two million (2,000,000) tons per annum
of a revised programme and on approving such modified or altered proposals the
Minister may approve corresponding variations of the provisions of paragraphs
(a) (b) and/or (c) of this subclause.
(2) If before the end
of the year eight such proposals are submitted by the Joint Venturers to the
Minister the State shall within two months of the receipt thereof give to the
Joint Venturers notice either of its approval of the proposals (which approval
shall not be unreasonably withheld) or of any objections raised or alterations
desired thereto and in either of the latter cases shall afford the Joint
Venturers an opportunity to consult with and to submit new propsals to the
Minister. If within thirty days of receipt of such notice agreement is not
reached as to the proposals the Joint Venturers may within a further period of
thirty 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 Joint Venturers the Minister shall be deemed to have
then approved the proposals of the Joint Venturers.
(3) If such proposals
are not submitted by the Joint Venturers to the Minister before the end of
year 8 or if the proposals are so submitted but are not approved by the
Minister within two months of receipt thereof or if the Joint Venturers shall
have had such proposals approved and shall not have complied with their
obligations thereunder then (subject to any extension of time granted
hereunder).
(a) the
Joint Venturers shall not after the end of the year 10 export iron ore
hereunder at an annual rate in excess of three million (3,000,000) tons of
direct shipping ore per annum unless prior to year 8 the Minister shall have
approved the Joint Venturers entering into a contract or contracts for export
of ore after year 10 at an annual rate in excess of three million (3,000,000)
tons of direct shipping ore; and
(b) if
by the end of the year 11 (or extended date if any) the State gives to the
Joint Venturers notice that some other Company or party (hereinafter referred
to as “the third party”) has agreed to establish a plant for
secondary processing within the said State of 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 Joint Venturers hereunder this agreement will
(subject to the provisions of subclauses (d) and (e) of clause 10 and of
clause 15 hereof) cease and determine at the end of year 21 or at the date by
which the third party has substantially established the plant referred to in
this subclause in accordance with the terms agreed upon by the State and the
third party whichever is the later
PROVIDED THAT if by the end of the year 11 (or extended date if any) the State
has not given to the Joint Venturers the notice referred to in this subclause
paragraph (a) of this subclause shall cease to have any effect and PROVIDED
FURTHER that the Joint Venturers may at any time after the end of year 8
submit proposals as aforesaid if at that time they had not received the notice
aforesaid and the provisions of subclause (2) of this clause shall apply to
such proposals but (subject to any extension of time as aforesaid) the Joint
Venturers may not submit proposals as aforesaid after the end of year 8 and
before the end of year 11 if the Joint Venturers have received a notice from
the Minister that he is negotiating with the third party and such notice has
not been withdrawn.
(4) Subject to the
provisions of clause 13 hereof and except as provided in paragraph (b) of
subclause (3) of this clause this Agreement will continue in operation subject
to compliance by the Joint Venturers with their obligations hereunder and with
such proposals by the Joint Venturers as are approved by the Minister.
(5) Notwithstanding
anything contained herein no failure by the Joint Venturers 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 Joint Venturers
and subject to the provisions of clause 13 hereof the only consequence arising
from such failure or non-approval (as the case may be) will be those set out
in subclause (3) of this clause.
Industry for additional upgrading of beneficiated ore 4
13. (1) The Joint
Venturers will in due course investigate the feasibility of establishing
within the said State an industry for additional upgrading of beneficiated ore
from the mineral lease by some form of semi-reduction direct reduction or
other mutually agreed process (the product of such industry being hereinafter
referred to as “upgraded ore”) and will from time to time review
this matter with a view to their 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 upgraded ore per
annum) containing provision that —
(a) by
the end of the year 18 productive capacity of the industry will be at an
annual rate of not less than and during the year 19 will be not less than two
hundred and fifty thousand (250,000) tons of upgraded ore;
(b)
production will progressively increase so that by the end of year 21
productive capacity will be at an annual rate of not less than and during the
year 22 production will be not less than five hundred thousand (500,000) tons
of upgraded ore and by the end of year 25 productive capacity will be at an
annual rate of not less than and during year 26 production will be not less
than one million (1,000,000) tons of upgraded ore; and
(c) the
capital cost involved (exclusive of the cost referred to in Clause 9(1)
hereof) will not be less than twenty million pounds (£20,000,000) if the
Company has previously proceeded with the establishment of a plant for
secondary processing within the terms of Clause 12 hereof or if the Company
has not previously proceeded with the establishment of a plant for secondary
processing within the terms of Clause 12 hereof the capital cost involved will
not be less than thirty million pounds (£30,000,000) unless the Company
utilizes a less expensive but at least equally satisfactory method of
manufacture than any at present known to either party
PROVIDED however that if and whenever the Joint Venturers satisfy the Minister
that the Joint Venturers’ mining operations are not producing quantities
of iron ore suitable for treatment in the industry at a rate of not less than
one million (1,000,000) tons of iron ore per annum on an economic basis or
that annual production of upgraded ore at the rate of one million (1,000,000)
tons per annum cannot be sold in the available markets at that time or that an
alternative processing of iron ore is proposed by the Joint Venturers and is
practicable then and in any such case the Minister may approve modified or
altered proposals and reduce the figure of one million (1,000,000) tons to a
figure the Minister considers appropriate having regard to prevailing
circumstances but to not less than five hundred thousand (500,000) tons per
annum with provision for progressive increase to one million (1,000,000) tons
per annum on a revised programme and in approving such modified proposals the
Minister may approve corresponding variations of the provisions of paragraphs
(a) (b) and/or (c) of this subclause.
(2) If before the end
of year 17 such proposals are submitted by the Joint Venturers to the Minister
the State shall within two months of the receipt thereof give to the Joint
Venturers notice either of its 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 the Joint Venturers an
opportunity to consult with and to submit new proposals to the Minister. If
within thirty days of receipt of such notice agreement is not reached as to
the proposals the Joint Venturers may within a further period of thirty 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 Joint
Venturers the Minister shall be deemed to have then approved the proposals of
the Joint Venturers.
(3) If such proposals
are not submitted by the Joint Venturers 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 months after receipt thereof or if the Joint Venturers
shall have had such proposals approved and shall not have complied with their
obligations thereunder then (subject to any extension of time granted
hereunder) and subject to the next following subclause —
(a) the
Joint Venturers shall not after the end of the year 18 export iron ore
hereunder at an annual rate in excess or five million (5,000,000) tons of
direct shipping ore per annum unless prior to year 17 the Minister shall have
approved the Joint Venturers entering into a contract or contracts for export
of iron ore after year 18 at an annual rate in excess of five million
(5,000,000) tons of direct shipping ore; and
(b) the
Joint Venturers shall not after the end of the year 21 export iron ore
hereunder at an annual rate in excess of three million (3,000,000) tons of
direct shipping ore per annum unless prior to year 18 the Minister shall have
approved the Joint Venturers entering into a contract or contracts for export
of direct shipping ore after year 21 at an annual rate in excess of three
million (3,000,000) tons.
(4) If such proposals
are not submitted by the Joint Venturers 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 months after receipt thereof then (subject to any
extension of time granted hereunder) if by the end of year 20 (or extended
date if any) the State gives to the Joint Venturers notice that some other
Company or party (hereinafter referred to as “the Fourth Party”)
has agreed to establish either —
(a) a
plant for secondary processing within the said State of iron ore from the
mineral lease (if proposals by the Joint Venturers for the establishment of
such a plant have not previously been submitted to and approved by the
Minister) on terms not more favourable on the whole to the Fourth Party than
those proposed by or available to the Joint Venturers hereunder; or
(b) an
industry for additional upgrading of beneficiated ore aforesaid within the
said State (using iron ore from the mineral lease) on terms not more
favourable on the whole to the Fourth Party than those proposed by or
available to the Joint Venturers hereunder —
then and in either case this Agreement will (subject to the provisions of
subclauses (d) and (e) of clause 10 hereof and clause 16 hereof) cease and
determine —
(i)
in the case of the Fourth Party proceeding with secondary
processing then when the Fourth Party has substantially established the plant
referred to in paragraph (a) of this subclause;
(ii)
in the case of the Fourth Party proceeding with an
industry for additional upgrading of beneficiated iron ore aforesaid then (if
proposals by the Joint Venturers for a plant for secondary processing have
previously been submitted to and approved by the Minister) at the end of year
24 or at the date by which the Fourth Party has substantially established that
industry whichever is the later; and
(iii)
in the case of the Fourth Party proceeding with an
industry for additional upgrading of beneficiated iron ore aforesaid (if
proposals by the Joint Venturers for a plant for secondary processing have not
previously been submitted to and approved by the Minister) at the date by
which the Fourth Party has substantially established that industry.
(5) If by the end of
year 20 (or extended date if any) the State has not given to the Joint
Venturers 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
they can from time to time operate) the provisions of subclause (4) of this
clause shall revive (for period of three years) at the end of year 24 and at
the end of each successive period of thirteen years thereafter in such a way
that each year referred to in that subclause shall be read as the year
thirteen years or (as the case may require) a multiple of thirteen years
thereafter (subject to extensions of dates if any as aforesaid).
(6) The Joint
Venturers may at any time after the end of year 17 submit proposals for an
industry for additional upgrading of beneficiated iron ore aforesaid if at
that time they have not received any notice under subclause (4) of this clause
and the provisions of subclauses (1) and (2) 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 Joint Venturers with their obligations hereunder
and with such proposals by the Joint Venturers as are approved by the
Minister.
(8) Notwithstanding
anything contained herein no failure by the Joint Venturers 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 Joint Venturers
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 4
14. The Third Party or the Fourth Party shall have
substantially established a plant for secondary processing or an industry for
additional upgrading of beneficiated ore when and not before the party’s
secondary processing plant has a capacity to treat not less than two million
(2,000,000) tons of iron ore per annum or (as the case may be) that
party’s industry for upgrading of beneficiated ore has the capacity to
produce one million (1,000,000) tons of upgraded ore per annum and in either
case the Minister has notified the Joint Venturers that he is satisfied that
that party will proceed bona fide to operate its plant or industry.
Terms not more favourable 4
15. In deciding whether for the purposes of clause
12 or clause 13 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 Joint Venturers regard shall be had inter alia to all the obligations
which would have continued to devolve on the Joint Venturers had they
proceeded with secondary processing or (as the case may be) an industry for
the additional upgrading of beneficiated ore including their obligations to
mine transport by rail and ship iron ore and restrictions relating thereto to
pay rent additional rental and royalty and (in case of secondary processing by
a third party pursuant to clause 12 hereof) to termination of rights as
provided in clause 13 hereof if proposals for the upgrading of beneficiated
ore are not brought to fruition 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 paragraph (e) of clause 10 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 PROVIDED
HOWEVER that if after the end of year 24 the Minister gives notice to the
Joint Venturers under clause 13 hereof that another company or party has
agreed to establish either secondary processing or an industry for additional
upgrading of beneficiated ore but not both then the latter company or party
need not have any obligation to establish both.
Supply of iron ore by others 4
16. If at the date upon which this Agreement
ceases and determines pursuant to clauses 12 or 13 hereof the Joint Venturers
remain under any obligation for the supply of iron ore arising out of a
contract or contracts entered into by the Joint Venturers with the consent of
the Minister the Joint Venturers may give notice to the Minister that they
desire the State to ensure that the Third Party (or the Fourth Party as the
case may be) is obligated to discharge such remaining obligations to supply
iron ore or to supply iron ore to the Joint Venturers into ships to enable
them to discharge such obligations. Forthwith upon receipt of such notice the
State will ensure that the Third Party (or the Fourth Party as the case may
be) is obligated to discharge such obligations in accordance with such
contract or contracts on a basis which is fair and reasonable as between the
Joint Venturers and the Third Party (or the Fourth Party as the case may be)
or if desired to supply iron ore to the Joint Venturers into ships on such
fair and reasonable basis.
Supply of iron ore to others 4
17. The Joint Venturers covenant and agree with
the State that should the Joint Venturers remain in possession of the mineral
lease for any period during which the Third Party or the Fourth Party is
operating or is ready to operate a plant for secondary processing of iron ore
or an industry for additional upgrading of beneficiated ore then during such
period (whenever commencing) the Joint Venturers will supply the Third Party
or the Fourth Party or both (as the case may be) 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 grades (as may reasonably be available
and be required);
(ii)
at such points on the Joint Venturers’ railway;
(iii)
at such price; and
(iv)
on such other terms and conditions
as may mutually be agreed between the Joint Venturers 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 Joint Venturers (including reasonable
allowance for depreciation and all overhead expenses) plus ten per centum of
such total cost.
Alteration of works 4
18. If at any time the State finds it necessary to
request the Joint Venturers to alter the situation of any of the of
installations or other works (other than the Joint Venturers’ wharf)
erected constructed or provided hereunder and gives to the Joint Venturers
notice of the request the Joint Venturers shall within a reasonable time after
their 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 Joint Venturers of any of their
obligations hereunder) alter the situation thereof accordingly.
Indemnity 4
19. The Joint Venturers 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 the construction maintenance or use by the Joint Venturers
or their servants agents contractors or assignees of the Joint
Venturers’ wharf railway or other works or services the subject of this
Agreement or the plant apparatus or equipment installed in connection
therewith.
Assignment 4
20. (1) Subject to the
provisions of this clause the Joint Venturers or any of them may at any time
—
(a)
assign mortgage charge sublet or dispose of to an associated company as of
right and to any other company or person with the consent in writing of the
Minister the whole or any part of the rights of the Joint Venturers hereunder
(including their rights to or as the holder of any lease license easement
grant or other title) and of the obligations of the Joint Venturers hereunder;
and
(b)
appoint as of right an associated company or with the consent in writing of
the Minister any other company or person to exercise all or any of the powers
functions and authorities which are or may be conferred on the Joint Venturers
hereunder;
subject however to the assignee or (as the case may be) the appointee
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 Joint Venturers 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 subclause (1) of
this clause the Joint Venturers 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 their part contained herein
and in any lease license easement grant or other title the subject of an
assignment under the said subclause (1).
Variation 4
21. (1) The parties
hereto may from time to time by mutual agreement in writing add to cancel or
vary all or any of the provisions of this Agreement or of any lease license
easement or right granted hereunder or pursuant hereto for the purpose of
implementing or facilitating the carrying out of such provisions or for the
purpose of facilitating the carrying out of some separate part or parts of the
Joint Venturers’ operations hereunder by an asociated company as a
separate and distinct operation or for the establishment or development of any
industry making use of the minerals within the mineral lease or such of the
Joint Venturers’ works installations services or facilities the subject
of this Agreement as shall have been provided by the Joint Venturers in the
course of work done hereunder.
(2) Notwithstanding
the provisions of subclause (1) of this clause the Minister may with the
consent of the Joint Venturers from time to time add to cancel or vary any
right or obligation relating to works for the transport and/or export of iron
ore to the extent that the addition cancellation or variation implements or
facilitates the method of achieving any of the purposes of iron ore export
secondary processing or for an industry for additional upgrading of
beneficiated ore based on ore from the mineral lease.
(3) Notwithstanding
the foregoing provisions of this clause the Minister may from time to time
approve variations or require reasonable variations in the detailed proposals
relating to any railway or harbour 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 variations 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.
Export license 4
22. (1) On request by
the Joint Venturers the State shall make representations to the Commonwealth
for the grant to the Joint Venturers of a license or licenses under
Commonwealth law for the export of iron 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 Joint Venturers and to maximum tonnages of
iron 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 Joint Venturers
(except as to rate or quantity) than the State has given or intends to give in
relation to such a license or licenses to any other exporter of iron ore from
the said State.
(2) If at any time the
Commonwealth limits by export license the total permissible tonnage of iron
ore for export from the said State then the Joint Venturers will at the
request of the State and within three (3) months of such request inform the
State whether or not they intend to export to the limit of the tonnage
permitted to them under Commonwealth licenses in respect of the financial year
next following and if they do 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 Joint
Venturers do 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 license the total permissible tonnage of iron
ore for export from the said State.
(3) The Joint
Venturers shall be in default hereunder if at any time they fail to obtain any
license or licenses under Commonwealth law for the export of iron ore as may
be necessary for the purpose of enabling the Joint Venturers to fulfil their
obligations hereunder or if any such license 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 Joint Venturers or to
the Joint Venturers not being bona fide in application to the Commonwealth or
otherwise having failed to use their best endeavours to have the license
granted or restored (as the case may be) but save as aforesaid if at any time
any necessary license is not granted or any licence granted to the Joint
Venturers shall be withdrawn or suspended by the Commonwealth and so that as a
result thereof the Joint Venturers are not for the time being permitted to
export at least the tonnage they have undertaken with the State they will
export then the Joint Venturers shall not be obliged to export the tonnage not
so permitted until such time as they are so permitted and thereafter they will
export the tonnage they have undertaken with the State they will export. The
State shall at all times be entitled to apply on behalf of the Joint Venturers
(and is hereby authorised by the Joint Venturers so to do) for any license or
licenses under Commonwealth law for the export of iron ore as may from time to
time be necessary for the purposes of this Agreement.
Delays 4
23. 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 Joint Venturers) act of war act of public
enemies riots civil commotions 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 ore 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 miminise the effect of the said causes as soon as possible after their
occurrence.
Power to extend periods 4
24. Notwithstanding any provision hereof the
Minister may at the request of the Joint Venturers 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
when advised to the Joint Venturers by notice from the Minister shall be
deemed for all purposes hereof substituted for the period or date so extended.
Arbitration 4
25. 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 and settled by arbitration under the
provisions of the Arbitration Act 1895 .
Notices 4
26. 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 Civil Service of the said State acting by the direction of the
Minister and forwarded by prepaid post to the Joint Venturers at their
registered office for the time being in the said State and by the Joint
Venturers if signed on their behalf by a director manager or secretary of the
Joint Venturers or by any person or persons authorised by the Joint Venturers
in that behalf or by their solicitors as notified to the State from time to
time and forwarded by prepaid post to the Minister and any such notice consent
or writing shall be deemed to have been duly given or sent on the day on which
it would be delivered in the ordinary course of post.
Exemption from Stamp Duty 4
27. (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 Joint Venturers or any permitted assignee of the Joint Venturers
any tenement lease easement license or other right or interest;
(c) any
assignment sublease or disposition (other than by way of mortgage or charge)
or any appointment made in conformity with the provisions of subclause (1) of
clause 20 hereof; and
(d) any
assignment sublease or disposition (other than by way of mortgage or charge)
or any appointment to or in favour of the Joint Venturers or an associated
company of any interest right obligation power function or authority which has
already been the subject of an assignment sublease disposition or appointment
executed pursuant to subclause (1) or clause 20 hereof;
PROVIDED THAT this clause shall not apply to any instrument or other document
executed or made more than seven years from the date hereof.
(2) If prior to the
date on which the Bill referred to in clause 2(b) 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 subclause (1) of this clause the
State when such Bill is passed as an Act shall on demand refund any stamp duty
paid on any such instrument or other document to the person who paid the same.
Interpretation 4
27. This Agreement shall be interpreted according
to the law for the time being in force in the said State.
SCHEDULE
Western Australia
IRON ORE (MOUNT GOLDSWORTHY) IRON ORE
DEPOSIT AGREEMENT ACT 1964 MINERAL LEASE
Lease No.
........................................................................................
Mineral Field 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 1964 between the State of
Western Australia of the one part and CONSOLIDATED GOLD FIELDS (AUSTRALIA)
PTY. LIMITED CYPRUS MINES CORPORATION and UTAH CONSTRUCTION & MINING CO.
hereinafter called “the Joint Venturers” in which term shall be
included the Joint Venturers and each of them and their and each of their
respective successors and assigns and including where the context so admits
the assignees of the Joint Venturers under clause 20 of the said agreement) of
the other part the said State agreed to grant to the Joint Venturers a mineral
lease of portion or portions of the lands referred to in the said Agreement as
Mining Area “A” Mining Area “B” and Mining Area
“C” AND WHEREAS the said Agreement was ratified by the Iron Ore
(Mount Goldsworthy) Iron Ore Deposit Agreement Act 1964 which said Act (inter
alia) authorised the grant of a mineral lease or leases to the Joint Venturers
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 Joint Venturers as tenants in common in
equal shares subject to the said provisions ALL THOSE pieces and parcels of
land situated in
the
Goldfield(s) containing by admeasurement be the same
more or less and particularly described and delineated 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 Joint Venturers are 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 Joint Venturers
of the following covenants and conditions, that is to say: —
1. The Joint Venturers 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 Joint Venturers shall and will observe, perform, and carry out the
provisions of the Mines Regulation Act 1846 , 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 affect 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 mineral oil 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 mineral oil in any part of the land under the
provisions of the Petroleum Act 1936 .
IN WITNESS whereof we have caused our Minister for
Mines to affix his seal and set his hand hereto at Perth in our 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 this Agreement has been
executed by or on behalf of the parties hereto the day and year first
hereinbefore mentioned.
|
SIGNED SEALED AND DELIVERED by the said The HONOURABLE DAVID BRAND, M.L.A. in
the presence of — |
|
|
C. W. Court
Minister for Industrial Development
Arthur Griffith
Minister for Mines
|
SIGNED SEALED AND DELIVERED for and on behalf of CONSOLIDATED GOLDFIELDS
(AUSTRALIA) PTY. LIMITED by its duly authorised agent Gerald James Mortimer in
the presence of — |
|
G. J. MORTIMER |
Q. R. Stow
Solicitor
Perth
|
SIGNED SEALED AND DELIVERED for and on behalf of CYPRUS MINES CORPORATION by
its duly authorised agent Gerald James Mortimer in the presence of — |
|
G. J. MORTIMER |
Q. R. Stow
|
SIGNED SEALED AND DELIVERED for and on behalf of UTAH CONSTRUCTION &
MINING CO. by its duly authorised agent Gerald James Mortimer in the presence
of — |
|
G. J. MORTIMER |
Q. R. Stow
