Western Australian Current Acts Western Australian Current Acts[s. 3]
[Heading inserted: No. 61 of 2010 s. 33.]
2010
THE HONOURABLE COLIN JAMES BARNETT
PREMIER OF THE STATE OF WESTERN AUSTRALIA
AND
BHP BILLITON MINERALS PTY. LTD.
ACN 008 694 782
MITSUI IRON ORE CORPORATION PTY. LTD.
ACN 050 157 456
ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY. LTD.
ACN 009 256 259
___________________________________________________________
IRON ORE (MOUNT GOLDSWORTHY) AGREEMENT 1964
RATIFIED VARIATION AGREEMENT
___________________________________________________________
[Solicitor’s details]
THIS AGREEMENT is made this 17th day of November 2010
BETWEEN
THE HONOURABLE COLIN JAMES BARNETT MLA., Premier of the State of Western
Australia, acting for and on behalf of the said State and instrumentalities
thereof from time to time ( State )
AND
BHP BILLITON MINERALS PTY. LTD. ACN 008 694 782 of Level 17, St Georges
Square, 225 St Georges Terrace, Perth, Western Australia, MITSUI IRON ORE
CORPORATION PTY. LTD. ACN 050 157 456 of Level 16, Exchange Plaza, 2 The
Esplanade, Perth, Western Australia and ITOCHU MINERALS & ENERGY OF
AUSTRALIA PTY. LTD. ACN 009 256 259 of Level 22, Forrest Centre, 221 St
Georges Terrace, Perth, Western Australia ( Joint Venturers ).
RECITALS
A. The State and the Joint Venturers are now the
parties to the agreement dated 15 October 1964 approved by and scheduled to
the Iron Ore (Mount Goldsworthy) Agreement Act 1964 and which as subsequently
added to, varied or amended is referred to in this Agreement as the “
Principal Agreement ”.
B. The State and the Joint Venturers wish to vary
the Principal Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. Subject to the context, the words and
expressions used in this Agreement have the same meanings respectively as they
have in and for the purpose of the Principal Agreement.
2. The State shall sponsor a Bill in the
Parliament of Western Australia to ratify this Agreement and shall endeavour
to secure its passage as an Act prior to 31 December 2010 or such later date
as the parties may agree.
3. (a) Clause 4 does
not come into operation unless or until an Act passed in accordance with
clause 2 ratifies this Agreement.
(b) If by 30 June 2011, or such later date as may
be agreed pursuant to clause 2, clause 4 has not come into operation then
unless the parties otherwise agree this Agreement shall cease and determine
and neither party shall have any claim against the other party with respect to
any matter or thing arising out of or done or performed or omitted to be done
or performed under this Agreement.
4. The Principal Agreement is varied as follows:
(1) in clause 1:
(a) by deleting the existing definitions of
“beneficiated ore”, “deemed f.o.b. value”, “fine
ore”, “low grade run of mine iron ore” and “lump
ore”;
(b) by inserting in the appropriate alphabetical
positions the following new definitions:
“approved proposal” means a proposal approved or determined under
this Agreement;
“beneficiated ore” means iron ore that has been concentrated or
upgraded (otherwise than solely by crushing, screening, separating by
hydrocycloning or a similar technology which uses primarily size as a
criterion, washing, scrubbing, trommelling or drying or by a combination of 2
or more of those processes) by the Joint Venturers in a plant constructed
pursuant to a proposal approved pursuant to an Integration Agreement or in
such other plant as is approved by the Minister after consultation with the
Minister for Mines and “beneficiation” and
“beneficiate” have corresponding meanings;
“deemed f.o.b. value” means an agreed or determined value of the
iron ore as if the iron ore was sold f.o.b. at the deemed f.o.b. point as at:
(a) in the case of iron ore the property of the
Joint Venturers which is shipped out of the said State, the date of shipment;
and
(b) in any other case, the date of sale, transfer
of ownership, disposal or use as the case may be;
“EP Act” means the Environmental Protection Act 1986 (WA);
“fine ore” means iron ore (not being beneficiated ore) which is
screened and will pass through a 6.3 millimetre mesh screen;
“Government agreement” has the meaning given in the
Government Agreements Act 1979 (WA);
“Integration Agreement” means:
(a) the agreement approved by and scheduled to the
Iron Ore (Hamersley Range) Agreement Act 1963 , as from time to time added
to, varied or amended; or
(b) the agreement approved by and scheduled to the
Iron Ore (Robe River) Agreement Act 1964 , as from time to time added to,
varied or amended; or
(c) the agreement approved by and scheduled to the
Iron Ore (Hamersley Range) Agreement Act Amendment Act 1968 , as from time to
time added to, varied or amended; or
(d) the agreement ratified by and scheduled to the
Iron Ore (Mount Bruce) Agreement Act 1972 , as from time to time added to,
varied or amended; or
(e) the agreement ratified by and scheduled to the
Iron Ore (Hope Downs) Agreement Act 1992 , as from time to time added to,
varied or amended; or
(f) the agreement ratified by and scheduled to the
Iron Ore (Yandicoogina) Agreement Act 1996 , as from time to time added to,
varied or amended; or
(g) the agreement approved by and scheduled to the
Iron Ore (Mount Newman) Agreement Act 1964 , as from time to time added to,
varied or amended; or
(h) the agreement approved by and scheduled to the
Iron Ore (Mount Goldsworthy) Agreement Act 1964 , as from time to time added
to, varied or amended; or
(i) the agreement ratified by and scheduled to the
Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 , as from time to time
added to, varied or amended; or
(j) the agreement authorised by and as scheduled
to the Iron Ore (McCamey’s Monster) Agreement Authorisation Act 1972 ,
as from time to time added to, varied or amended; or
(k) the agreement ratified by and scheduled to the
Iron Ore (Marillana Creek) Agreement Act 1991 , as from time to time added
to, varied or amended;
“Integration Proponent” means in relation to an Integration
Agreement, “the Company” or “the Joint Venturers” as
the case may be as defined in, and for the purpose of, that Integration
Agreement;
“iron ore” includes, without limitation, beneficiated ore;
“laws relating to native title” means laws applicable from time to
time in the said State in respect of native title and includes the Native
Title Act 1993 (Commonwealth);
“loading port” means:
(a) the Port of Dampier; or
(b) Port Walcott; or
(c) the Port of Port Hedland; or
(d) any other port constructed after the variation
date under an Integration Agreement; or
(e) such other port approved by the Minister at
the request of the Joint Venturers from time to time for the shipment of iron
ore from the mineral lease;
“lump ore” means iron ore (not being beneficiated ore) which is
screened and will not pass through a 6.3 millimetre mesh screen;
“ Mining Act 1978 ” means the Mining Act 1978 (WA);
“Minister for Mines” means the Minister in the Government of the
said State for the time being responsible (under whatsoever title) for the
administration of the Mining Act and the Mining Act 1978 ;
“Related Entity” means a company in which:
(a) as at 21 June 2010; and
(b) after 21 June 2010, with the approval of the
Minister,
a direct or (through a subsidiary or subsidiaries within the meaning of the
Corporations Act 2001 (Commonwealth)) indirect shareholding of 20% or more is
held by:
(c) Rio Tinto Limited ABN 96 004 458 404; or
(d) BHP Billiton Limited ABN 49 004 028 077; or
(e) those companies referred to in paragraphs (c)
and (d) in aggregate;
“variation date” means the date on which clause 4 of the variation
agreement made on or about 17 November 2010 between the State and the Joint
Venturers comes into operation;
(c) in the definition of “agreed or
determined” by:
(i) inserting “(following if requested by
the Joint Venturers, consultation with the Joint Venturers and their
consultants in regard thereto)” after “determined by the
Minister”;
(ii) deleting “assessed at” and
substituting “assessed on”; and
(iii) deleting all the words after “shall
have regard to” and substituting a colon followed by:
“(i) in the case of iron ore initially sold
at cost pursuant to paragraph (B) of the proviso to clause 9(2)(e), the prices
for that type of iron ore prevailing at the time the price for such iron ore
was agreed between the arm’s length purchaser referred to in paragraph
(B)(iii) of that proviso and the seller in relation to the type of sale and
the relevant international seaborne iron ore market into which such iron ore
was sold and where prices beyond the deemed f.o.b. point are being considered
the deductions mentioned in the definition of f.o.b. value; and
(ii) in any other case, the prices for that type
of iron ore prevailing at the time the price for such iron ore was agreed
between the Joint Venturers and the purchaser in relation to the type of sale
and the market into which such iron ore was sold and where prices beyond the
deemed f.o.b. point are being considered the deductions mentioned in the
definition of f.o.b. value”;
(d) in the definition of “deemed f.o.b.
point” by deleting “Joint Venturers’ wharf” and
substituting “relevant loading port”;
(e) in the definition of “f.o.b.
value”:
(i) in paragraph (i) by:
(A) inserting “subject to paragraph
(ii),” before “in the case”;
(B) deleting “(including from any wharf
approved by the Minister under Clause 9(2)(e))”;
(C) deleting “assessed at” and
substituting “assessed on”;
(D) deleting “Joint Venturers’ wharf
or other wharf approved from time to time by the Minister for the purpose or
other wharf approved by the Minister under clause 9(2)(e) as the case may
be” and substituting “relevant loading port”; and
(E) in paragraph (6), inserting “after
loading on and departure of ship from the relevant loading port” after
“agency charges”;
(ii) renumbering paragraph (ii) as paragraph
(iii); and
(iii) inserting after paragraph (i) the following
new paragraph:
“in the case of iron ore initially sold at
cost pursuant to paragraph (B) of the proviso to clause 9(2)(e), the price
which is payable for the iron ore by the arm’s length purchaser as
referred to in paragraph (B)(iii) of that proviso or, where the Minister
considers, following advice from the appropriate Government department, that
the price payable in respect of the iron ore does not represent a fair and
reasonable market value for that type of iron ore assessed on an arm’s
length basis in the relevant international seaborne iron ore market, such
amount as is agreed or determined as representing such a fair and reasonable
market value, less all duties, taxes, costs and charges referred to in
paragraph (i) above”;
(f) in the definition of “Joint
Venturers’ wharf” by inserting “and in clauses 9(2)(e) and
(f) also any additional wharf constructed by the Joint Venturers pursuant to
this Agreement” before the semi colon;
(g) in the definition of “mineral
lease” by inserting “and includes any areas added to any such
mineral lease pursuant to clause 9A” before the semi colon;
(h) in the definition of “secondary
processing” by deleting “concentration or other beneficiation of
iron ore other than by crushing or screening” and substituting
“beneficiation of iron ore”;
(i) in the sentence commencing “marginal
notes” by inserting “and clause headings” after
“marginal notes”; and
(j) by inserting at the end of clause 1 the
following new sentences:
“Words in the singular shall include the plural and words in the plural
shall include the singular according to the requirements of the context.
Nothing in this Agreement shall be construed:
(a) to exempt the Joint Venturers from compliance
with any requirement in connection with the protection of the environment
arising out of or incidental to their activities under this Agreement that may
be made by or under the EP Act; or
(b) to exempt the State or the Joint Venturers
from compliance with or to require the State or the Joint Venturers to do
anything contrary to any laws relating to native title or any lawful
obligation or requirement imposed on the State or the Joint Venturers as the
case may be pursuant to any laws relating to native title; or
(c) to exempt the Joint Venturers from compliance
with the provisions of the Aboriginal Heritage Act 1972 (WA).”;
(2) by inserting after clause 7 the following new
clauses:
“ Additional Proposals
7A. (1) If the Joint
Venturers, at any time during the continuance of this Agreement after the
variation date, desire to significantly modify, expand or otherwise vary their
activities carried on pursuant to this Agreement (other than under clauses
11, 12 or 9E) beyond those activities specified in any proposals approved
pursuant to clause 6 they shall give notice of such desire to the Minister and
within 2 months thereafter shall submit to the Minister detailed proposals in
respect of all matters covered by such notice and such of the other matters
mentioned in clause 5(2)(a) as the Minister may require.
(2) A proposal may with the consent of the
Minister (except in relation to an Integration Agreement) and that of any
parties concerned (being in respect of an Integration Agreement the
Integration Proponent for that agreement) provide for the use by the Joint
Venturers of any works installations or facilities constructed or established
under a Government agreement.
(3) Each of the proposals pursuant to subclause
(1) may with the approval of the Minister, or shall if so required by the
Minister, be submitted separately and in any order as to any matter or matters
in respect of which such proposals are required to be submitted.
(4) At the time when the Joint Venturers submit
the said proposals they shall submit to the Minister details of any services
(including any elements of the project investigations, design and management)
and any works materials, plant, equipment and supplies that they propose to
consider obtaining from or having carried out or permitting to be obtained
from or carried out outside Australia together with their reasons therefor and
shall, if required by the Minister, consult with the Minister with respect
thereto.
(5) The Joint Venturers may withdraw their
proposals pursuant to subclause (1) at any time before approval thereof, or
where any decision in respect thereof is referred to arbitration as referred
to in clause 7B, within 3 months after the award by notice to the Minister
that they shall not be proceeding with the same.
Consideration of Joint Venturers’ proposals under clause 7A
7B. (1) In respect of
each proposal pursuant to subclause (1) of clause 7A the Minister shall:
(a) subject to the limitations set out below,
refuse to approve the proposal (whether it requests the grant of new tenure or
not) if the Minister is satisfied on reasonable grounds that it is not in the
public interest for the proposal to be approved; or
(b) approve of the proposal without qualification
or reservation; or
(c) defer consideration of or decision upon the
same until such time as the Joint Venturers submit a further proposal or
proposals in respect of some other of the matters mentioned in clause 7A(1)
not covered by the said proposal; or
(d) require as a condition precedent to the giving
of his approval to the said proposal that the Joint Venturers make such
alteration thereto or comply with such conditions in respect thereto as he
thinks reasonable, and in such a case the Minister shall disclose his reasons
for such conditions,
PROVIDED ALWAYS that where implementation of any proposals hereunder has been
approved pursuant to the EP Act subject to conditions or procedures, any
approval or decision of the Minister under this clause shall if the case so
requires incorporate a requirement that the Joint Venturers make such
alterations to the proposals as may be necessary to make them accord with
those conditions or procedures.
In considering whether to refuse to approve a proposal the Minister is to
assess whether or not the implementation of the proposal by itself, or
together with any one or more of the other submitted proposals, will:
(i) detrimentally affect economic and orderly
development in the said State, including without limitation, infrastructure
development in the said State; or
(ii) be contrary to or inconsistent with the
planning and development policies and objectives of the State; or
(iii) detrimentally affect the rights and
interests of third parties; or
(iv) detrimentally affect access to and use by
others of the lands the subject of any grant or proposed grant to the Joint
Venturers.
The right to refuse to approve a proposal
conferred by paragraph (a) may only be exercised in respect of a proposal
where the Minister is satisfied on reasonable grounds that a purpose of the
proposal is the integrated use of works installations or facilities (as
defined in subclause (7) of clause 9C for the purpose of that clause) as
contemplated by clause 9C. It may not be so exercised in respect of a proposal
if pursuant to clause 7C(5) the Minister, prior to the submission of the
proposal, advised the Joint Venturers in writing that the Minister has no
public interest concerns (as defined in that clause) with the single preferred
development (as referred to in clause 7C(5)(a)) the subject of the submitted
proposals and those proposals are consistent (as to their substantive scope
and content) with the information provided to the Minister pursuant to clause
7C(5) in respect of that single preferred development.
(2) The Minister shall within 2 months after
receipt of proposals pursuant to clause 7A(1) give notice to the Joint
Venturers of his decision in respect to the proposals, PROVIDED THAT where a
proposal is to be assessed under Part IV of the EP Act the Minister shall only
give notice to the Joint Venturers of his decision in respect to the proposal
within 2 months after service on him of an authority under section 45(7) of
the EP Act.
(3) If the decision of the Minister is as
mentioned in either of paragraphs (a), (c) or (d) of subclause (1) the
Minister shall afford the Joint Venturers full opportunity to consult with him
and should they so desire to submit new or revised proposals either generally
or in respect to some particular matter.
(4) If the decision of the Minister is as
mentioned in either of paragraphs (c) or (d) of subclause (1) and the Joint
Venturers consider that the decision is unreasonable the Joint Venturers
within 2 months after receipt of the notice mentioned in subclause (2) may
elect to refer to arbitration in the manner hereinafter provided the question
of the reasonableness of the decision PROVIDED THAT any requirement of the
Minister pursuant to the proviso to subclause (1) shall not be referable to
arbitration hereunder. A decision of the Minister under paragraph (a) of
subclause (1) shall not be referable to arbitration under this Agreement.
(5) If by the award made on the arbitration
pursuant to subclause (4) the dispute is decided in favour of the Joint
Venturers the decision shall take effect as a notice by the Minister that he
is so satisfied with and approves the matter or matters the subject of the
arbitration.
(6) The Joint Venturers shall implement the
approved proposals in accordance with the terms thereof.
(7) Notwithstanding clause 21, the Minister may
during the implementation of approved proposals approve variations to those
proposals.
Notification of possible proposals
7C. (1) If the Joint
Venturers, upon completion of a pre-feasibility study in respect of any matter
that would require the submission and approval of proposals pursuant to this
Agreement (being proposals which will have as their purpose, or one of their
purposes, the integrated use of works installations or facilities as
contemplated by clause 9C) for the matter to be undertaken, intend to further
consider the matter with a view to possibly submitting such proposals they
shall promptly notify the Minister in writing giving reasonable particulars of
the relevant matter.
(2) Within one (1) month after receiving the
notification the Minister may, if the Minister so wishes, inform the Joint
Venturers of the Minister’s views of the matter at that stage.
(3) If the Joint Venturers are informed of the
Minister’s views, they shall take them into account in deciding whether
or not to proceed with their consideration of the matter and the submission of
proposals.
(4) Neither the Minister’s response nor the
Minister choosing not to respond shall in any way limit, prejudice or
otherwise affect the exercise by the Minister of the Minister’s powers,
or the performance of the Minister’s obligations, under this Agreement
or otherwise under the laws from time to time of the said State.
(5) (a)
This subclause applies where the Joint Venturers have settled upon a single
preferred development a purpose of which is the integrated use of works
installations or facilities (as defined in subclause (7) of clause 9C for the
purpose of that clause) as contemplated by clause 9C.
(b) For the purpose of this subclause
“public interest concerns” means any concern that implementation
of the single preferred development or any part of it will:
(i) detrimentally affect economic and orderly
development in the said State, including without limitation, infrastructure
development in the said State; or
(ii) be contrary to or inconsistent with the
planning and development policies and objectives of the State; or
(iii) detrimentally affect the rights and
interests of third parties; or
(iv) detrimentally affect access to and use by
others of lands the subject of any grant or proposed grant to the Joint
Venturers.
(c) At any time prior to submission of proposals
the Joint Venturers may give to the Minister notice of their single preferred
development and request the Minister to confirm that the Minister has no
public interest concerns with that single preferred development.
(d) The Joint Venturers shall furnish to the
Minister with their notice reasonable particulars of the single preferred
development including, without limitation:
(i) as to the matters that would be required to be
addressed in submitted proposals; and
(ii) their progress in undertaking any feasibility
or other studies or matters to be completed before submission of proposals;
and
(iii) their timetable for obtaining required
statutory and other approvals in relation to the submission and approval of
proposals; and
(iv) their tenure requirements.
(e) If so required by the Minister, the Joint
Venturers will provide to the Minister such further information regarding the
single preferred development as the Minister may require from time to time for
the purpose of considering the Joint Venturers’ request and also consult
with the Minister or representatives or officers of the State in regard to the
single preferred development.
(f) Within 2 months after receiving the notice (or
if the Minister requests further information, within 2 months after the
provision of that information) the Minister must advise the Joint Venturers:
(i) that the Minister has no public interest
concerns with the single preferred development; or
(ii) that he is not then in a position to advise
that he has no public interest concerns with the single preferred development
and the Minister’s reasons in that regard.
(g) If the Minister gives the advice mentioned in
paragraph (f)(ii) the Joint Venturers may, should they so desire, give a
further request to the Minister in respect of a revised or alternate single
preferred development and the provisions of this subclause shall apply mutatis
mutandis thereto.”;
(3) in clause 8(2)(b) by:
(a) deleting “clause 6” and
substituting “clauses 6, 7B, 11 or 12”;
(b) in sub-paragraph (i):
(A) inserting “or cause to be granted”
after “grant”;
(B) in the paragraph beginning “at
peppercorn rental”, deleting “the harbour area”;
(C) inserting after that paragraph the following
new paragraph:
“at commercial rentals, licence or easement
fees as applicable – leases, licences or easements within the Port of
Port Hedland; and”;
(D) inserting “the Port Authorities Act 1999
(WA)” after “1926”; and
(E) inserting “installations or
facilities” after “for their works”; and
(c) in subparagraph (ii), deleting “and iron
ore concentrates”;
(4) by inserting after subclause (4) of clause 8
the following new subclause:
“(4a) The provisions of subclause (2) of
this clause shall not operate so as to require the said State to grant or
vary, or cause to be granted or varied, any lease licence or other right or
title until all processes necessary under any laws relating to native title to
enable that grant or variation to proceed, have been completed;”
(5) in clause 9(2) by deleting paragraph (e) and
substituting the following new paragraphs:
“(e) ship, or procure the shipment of, all
iron ore mined from the mineral lease and sold:
(i) from the Joint Venturers’ wharf; or
(ii) from any other wharf in a loading port which
wharf has been constructed under an Integration Agreement; or
(iii) with the Minister’s approval given
before submission of proposals in that regard, from any other wharf in a
loading port which wharf has been constructed under another Government
agreement (excluding the Integration Agreements),
and use their best endeavours to obtain therefor the best price possible
having regard to market conditions from time to time prevailing PROVIDED THAT:
(A) 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; and
(B) iron ore from the mineral lease may be sold by
the Joint Venturers prior to or at the time of the shipment under this
Agreement at a price equal to the production costs in respect of that iron ore
up to the point of sale, if:
(i) the Minister is notified before the time of
shipment that the sale is to be made at cost, providing details of the
proposed sale; and
(ii) the Minister is notified of the proposed
arm’s length purchaser in the relevant international seaborne iron ore
market of the iron ore the subject of the proposed sale at cost; and
(iii) there is included in the return lodged
pursuant to subclause (2)(k) particulars of the transaction in which the ore
sold at cost was subsequently purchased in the relevant international seaborne
iron ore market by an arm’s length purchaser specifying the purchaser,
the seller, the price and the date when the sale was agreed between the
arm’s length purchaser and the seller; and
(iv) the arm’s length purchaser referred to
in (iii) above is not then a designated purchaser as referred to in subclause
(2)(ea);
Designated purchaser
(ea) if required by notice in writing from the
Minister, provide the Minister within 30 days after receiving the notice with
evidence that the transaction as included in the return pursuant to paragraph
(B)(iii) of subclause (2)(e) was a sale in the relevant international seaborne
iron ore market to an independent participant in that market. If no evidence
is provided or the Minister is not so satisfied on the evidence provided or
other information obtained, the Minister may by notice to the Joint Venturers
designate the purchaser to be a designated purchaser and that designation will
remain in force unless and until lifted by further notice from the Minister to
the Joint Venturers. For the avoidance of doubt and without limiting the
Minister’s discretion above, the parties acknowledge that marketing
entities forming part of a corporate group that includes the majority Joint
Venturer (or part of a parallel corporate group if that Joint Venturer is part
of a dual-listed corporate structure) are not independent participants for the
purposes of this subclause;”;
(6) in clause 9(2)(j) by deleting subparagraph
(iv) and inserting at the end of the clause after subparagraph (v) the
following new paragraphs:
“Where beneficiated ore is produced from an admixture of iron ore from
the mineral lease and iron ore from elsewhere, a portion (and a portion only)
of the beneficiated ore so produced being equal to the proportion that the
amount of the iron in the iron ore from the mineral lease used in the
production of that beneficiated ore bears to the total amount of iron in the
iron ore so used shall be deemed to be produced from iron ore from the mineral
lease.
Where for the purpose of determining f.o.b. value
it is necessary to convert an amount or price to Australian currency, the
conversion is to be calculated using a rate (excluding forward hedge or
similar contract rates) that has been approved by the Minister at the request
of the Joint Venturers and in the absence of such request as determined by the
Minister to be a reasonable rate for the purpose.
The provisions of regulation 85AA (Effect of GST
etc. on royalties) of the Mining Regulations 1981 (WA) shall apply mutatis
mutandis to the calculation of royalties under this subclause.”;
(7) in clause 9(2)(k) by:
(a) inserting “and also showing such other
information in relation to the abovementioned iron ore as the Minister may
from time to time reasonably require in regard to, and to assist in verifying,
the calculation of royalties in accordance with paragraph (j)” after
“the due date of the return”; and
(b) deleting all the words after “calculated
on the basis of” and substituting a colon followed by:
“(i) in the case of iron ore initially sold
at cost pursuant to paragraph (B) of the proviso to subclause (2)(e), at the
price notified pursuant to paragraph (B)(iii) of that proviso;
(ii) in any other case, 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 or on the basis of
estimates as agreed or determined,
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. value shall have been finally calculated,
agreed or determined;”;
(8) in clause 9(2)(n):
(a) by deleting “books of account and
records of the Joint Venturers relative to the Joint Venturers’
operation under this Agreement including contracts relative” and
substituting “books, records, accounts, documents (including contracts),
data and information of the Joint Venturers stored by any means
relating”;
(b) by inserting “(in whatever form)”
after “copies or extracts”; and
(c) by inserting “the subject of
royalty” before the first two references to “hereunder”;
(9) by deleting the fullstop at the end of
paragraph (n) of clause 9(2) and substituting “; and” followed by:
“(o) cause to be produced in Perth in the
said State all books, records, accounts, documents (including contracts), data
and information of the kind referred to in paragraph (n) to enable the
exercise of rights by the Minister or the Minister’s nominee under
paragraph (n), regardless of the location in which or by whom those books,
records, accounts, documents (including contracts), data and information are
stored from time to time.”;
(10) by inserting after clause 9 the following new
clauses:
“ Additional areas
9A. (1)
Notwithstanding the provisions of the Mining Act or the Mining Act 1978 the
Joint Venturers may from time to time during the currency of this
Agreement apply to the Minister for areas held by the
Joint Venturers or an associated company under a mining tenement granted under
the Mining Act 1978 to be included in any of the mineral leases but so that
the total area of the mineral leases, any land that may be included in any of
the mineral leases pursuant to this Agreement and of any other mineral lease
or mining lease granted under or pursuant to this Agreement (as aggregated)
shall not at any time exceed 777 square kilometres. The Minister shall confer
with the Minister for Mines in regard to any such application and if they
approve the application the Minister for Mines shall upon the surrender of the
relevant mining tenement include the area the subject thereof in the relevant
mineral lease by endorsement subject to such of the conditions of the
surrendered mining tenement as the Minister for Mines determines but otherwise
subject to the same terms covenants and conditions as apply to the relevant
mineral lease (with such apportionment of rents as is necessary) and
notwithstanding that the survey of such additional land has not been completed
but subject to correction to accord with the survey when completed at the
Joint Venturers’ expense.
(2) The Minister may approve, upon application by
the Joint Venturers from time to time, for the total area referred to in
subclause (1) to be increased up to a limit not exceeding 1,000 square
kilometres.
(3) The Joint Venturers shall not mine or carry
out other activities (other than exploration, bulk sampling and testing) on
any area or areas added to a mineral lease pursuant to subclause (1) of this
clause unless and until proposals with respect thereto are approved or
determined pursuant to the subsequent provisions of this clause.
(4) If the Joint Venturers desire to commence
mining of iron ore or to carry out any other activities (other than as
aforesaid) on the said areas they shall give notice of such desire to the
Minister and shall within 2 months of the date of such notice (or thereafter
within such extended time as the Minister may allow as hereinafter provided)
and subject to the provisions of this Agreement submit to the Minister to the
fullest extent reasonably practicable their detailed proposals (which
proposals shall include plans where practicable and specifications where
reasonably required by the Minister) with respect to such mining or other
activities as additional proposals pursuant to clause 7A in respect of mineral
lease 235SA, pursuant to clause 11(8) in respect of mineral lease 249SA and
pursuant to clause 12(5) in respect of mineral lease 281SA.”;
Blending of iron ore
9B. (1) The Joint
Venturers may blend iron ore mined from the
mineral lease with any:
(a) iron ore mined from a mining tenement or other
mining title granted under, or pursuant to, an Integration Agreement; or
(b) iron ore mined from a Mining Act 1978 mining
lease: located in, or proximate to, the Pilbara region of the said State which
is held by a Related Entity alone or with a third party or parties (excluding
any mining lease granted pursuant to, or held under, a Government agreement);
or
(c) with the prior approval of the Minister, iron
ore mined in, or proximate to, the Pilbara region of the said State under a
Government agreement (excluding an Integration Agreement); or
(d) with the prior approval of the Minister, iron
ore mined by a third party from a Mining Act 1978 mining lease located in, or
proximate to, the Pilbara region of the said State (excluding under a
Government agreement) which has been purchased by an Integration Proponent
from the third party.
(2) The authority given under subclause (1) is
subject to the Minister being reasonably satisfied that there are in place
adequate systems and controls for the correct apportionment of the quantities
of iron ore being blended as between each of the sources referred to in
subclause (1), which systems and controls monitor production, processing,
transportation, stockpiling and shipping of all such iron ore. If at any time
the Minister ceases to be so satisfied he may, after consulting the Joint
Venturers and provided the Joint Venturers have not within three (3) months
after the commencement of such consultation addressed the matters of concern
to the Minister to his satisfaction, by notice in writing to the Joint
Venturers suspend the above authority in respect of the relevant blending
arrangements until he is again satisfied in terms of this subclause (2).
(3) If any blending of iron ore occurs as
contemplated by this clause, then for the purposes of paragraphs (j) and (k)
of subclause (2) of this clause, a portion of the iron ore so blended being
equal to the proportion that the amount of iron ore from the mineral lease
used in the admixture of iron ore bears to the total amount of iron ore so
blended, shall be deemed to be produced from the mineral lease.
Integrated use of works installations or facilities under the Integration
Agreements
9C. (1) Subject to
subclauses (2) to (7) of this clause and to the
other provisions of this Agreement, the Joint
Venturers may during the continuance of this
Agreement:
(a) use any existing or new works installations or
facilities constructed or held:
(i) under this Agreement; or
(ii) under any other Integration Agreement which
are made available for such use and during the continuance of such Integration
Agreement; or
(iii) with the approval of the Minister, under a
Government agreement (excluding an Integration Agreement) which are made
available for such use and during the continuance of that agreement,
(wholly or in part) in the activities of the Joint Venturers carried on by
them pursuant to this Agreement including, without limitation, as part of
those activities, transporting by railway and shipping from a loading port and
undertaking any ancillary and incidental activities in doing so (including,
without limitation, blending permitted by clause 9B) of:
(A) iron ore mined from a Mining Act 1978 mining
lease located in, or proximate to, the Pilbara region of the said State which
is held by a Related Entity alone or with a third party or parties (excluding
any mining lease granted pursuant to, or held under, a Government agreement);
(B) with the Minister’s prior approval, iron
ore mined in, or proximate to, the Pilbara region of the said State under a
Government agreement (excluding an Integration Agreement);
(C) with the prior approval of the Minister, iron
ore mined by a third party from a Mining Act 1978 mining lease located in, or
proximate to, the Pilbara region of the said State (excluding under a
Government agreement) which has been purchased by the Joint Venturers from the
third party;
(D) iron ore mined under an Integration Agreement;
(b) make any existing or new works installations
or facilities constructed or held under this Agreement available for use
(wholly or partly) by another Integration Proponent during the continuance of
its Integration Agreement in the activities of that Integration Proponent
carried on by it pursuant to its Integration Agreement including, without
limitation, as part of those activities, transporting by railway and shipping
from a loading port and undertaking any ancillary and incidental activities in
doing so (including, without limitation, blending permitted by that
Integration Agreement) of:
(i) iron ore mined from a Mining Act 1978 mining
lease located in, or proximate to, the Pilbara region of the said State which
is held by a Related Entity alone or with a third party or parties (excluding
any mining lease granted pursuant to, or held under, a Government agreement);
(ii) with the prior approval of the Minister (as
defined in that Integration Agreement), iron ore mined in, or proximate to,
the Pilbara region of the said State under a Government agreement (excluding
an Integration Agreement);
(iii) with the prior approval of the Minister (as
defined in that Integration Agreement), iron ore mined by a third party from a
Mining Act 1978 mining lease located in, or proximate to, the Pilbara region
of the said State (excluding under a Government agreement) which has been
purchased by that Integration Proponent from the third party;
(iv) iron ore mined under an Integration
Agreement;
(c) make any existing or new works installations
or facilities constructed or held under this Agreement available for use
(wholly or partly) in connection with operations under:
(i) a Mining Act 1978 mining lease located in, or
proximate to, the Pilbara region of the said State, for iron ore, which is
held by a Related Entity alone or with a third party or parties (excluding any
mining lease granted pursuant to, or held under a Government agreement); or
(ii) with the approval of the Minister, a
Government agreement (other than an Integration Agreement) for the mining of
iron ore in, or proximate to, the Pilbara region of the said State;
(d) subject to subclause (2), under this Agreement
and for the purpose of any use or making available for use referred to in
paragraph (a), (b) or (c) connect any existing or new works installations or
facilities constructed or held under this Agreement to any existing or new
works installations or facilities constructed or held under another
Integration Agreement;
(e) subject to subclause (2), under this Agreement
and for the purpose of any use or making available for use referred to in
paragraph (a), (b) or (c) or making of any connection referred to in paragraph
(d) construct new works installations or facilities and expand modify or
otherwise vary any existing and new works installations or facilities
constructed or held under this Agreement;
(f) allow a railway or rail spur line (not being a
railway or rail spur line constructed or held under an Integration Agreement)
to be connected to a railway or rail spur line or other works installations or
facilities constructed or held under this Agreement for the delivery of iron
ore to an Integration Proponent for transport by railway and shipping from a
loading port (together with any ancillary and incidental activities in doing
so) as part of its activities under its Integration Agreement; and
(g) allow an electricity transmission line (not
being an electricity transmission line constructed or held under an
Integration Agreement) to be connected to an electricity transmission line
constructed or held under this Agreement for the supply of electricity
permitted to be made under an Integration Agreement.
(2) (a)
A connection referred to in clause (1)(d) or construction, expansion,
modification or other variation referred to in subclause (1)(e) by the Joint
Venturers shall, to the extent not already authorised under this Agreement as
at the variation date, be regarded as a significant modification expansion or
other variation of the Joint Venturers’ activities carried on by them
pursuant to this Agreement and may only be made in accordance with proposals
submitted and approved or determined under this Agreement in accordance with
clauses 7A and 7B or clauses 11, 12 or 9E as the case may require and
otherwise in compliance with the provisions of this Agreement and the laws
from time to time of the said State. For the avoidance of doubt, the parties
acknowledge that any use or making available for use contemplated by subclause
(1)(a), (1)(b) or (1)(c) shall not otherwise than as required by this
paragraph (a) require the submission and approval of further proposals under
this Agreement.
(b) The Joint Venturers shall not be entitled to:
(i) submit proposals to construct any new port or
to establish harbour or port works installations or facilities, or to expand
modify or otherwise vary harbour or works installations or facilities
otherwise than at or near the town of Port Hedland within the boundaries of
the Port of Port Hedland; or
(ii) generate and supply power, take and supply
water or dispose of water otherwise than in accordance with the other clauses
of this Agreement and subject to any restrictions contained in those clauses;
or
(iii) without limiting subparagraphs (i) and (ii)
submit proposals to construct or establish works installations or facilities
of a type, or to make expansions, modifications or other variations of works
installations or facilities of a type, which in the Minister’s
reasonable opinion this Agreement, immediately before the variation date, did
not permit or contemplate the Joint Venturers constructing, establishing or
making as the case may be otherwise than for integration use as contemplated
by subclauses (1)(a), (1)(b) or (1)(c) or as permitted by clause 9E; or
(iv) submit proposals to make a connection as
referred to in subclause (1)(d) or a construction, expansion, modification or
other variation as referred to in subclause (1)(e) otherwise than on tenure
granted under or pursuant to this Agreement from time to time or held pursuant
to this Agreement from time to time; or
(v) submit proposals to make a connection referred
to in subclause (1)(d) or a construction, expansion, modification or other
variation as referred to in subclause (1)(e) for the purpose of use as
contemplated by subclause (1)(c)(i), if in the reasonable opinion of the
Minister the activity which is the subject of the proposals would give to the
holder or holders of the relevant Mining Act 1978 mining lease the benefit of
rights or powers granted to the Joint Venturers under this Agreement, over and
above the right of access to and use of the relevant works, installations or
facilities; or
(vi) submit proposals to make a connection as
referred to in subclause (1)(d) or a construction, expansion, modification or
other variation as referred to in subclause (1)(e) for the purpose of use as
contemplated by subclause (1)(c) and involving the grant of tenure without the
prior approval of the Minister; or
(vii) submit proposals to assign, sublet, transfer
or dispose of any works installations or facilities constructed or held under
this Agreement or any leases, licences, easements or other titles under or
pursuant to this Agreement for any purpose referred to in this clause.
(c) Notwithstanding the provisions of clauses 7B,
11, 12 and 9E, the Minister may defer consideration of, or a decision upon, a
proposal submitted by the Joint Venturers for a connection as referred to in
subclause (1)(d) or a construction, expansion, modification or other variation
as referred to in subclause (1)(e), for the purpose of use or making available
for use as referred to in subclauses (1)(a) or (1)(b), until relevant
corresponding proposals under the relevant Integration Agreement have been
submitted and those proposals can be approved under that Integration Agreement
concurrently with the Minister’s approval under this Agreement of the
Joint Venturers’ proposal.
(3) Any use or making available for use as
referred to in subclause (1), or submission of proposals as referred to in
subclause (2), in respect of a Related Entity shall be subject to the Joint
Venturers first confirming with the Minister that the Minister is satisfied
that the relevant company is a Related Entity.
(4) The Joint Venturers shall give the Minister
prior written notice of any significant change (other than a temporary one for
maintenance or to respond to an emergency) proposed in their use, or in their
making available for use, works, installations or facilities as referred to in
this clause:
(a) from that authorised under this Agreement
immediately before the variation date; and
(b) subsequently from that previously notified to
the Minister under this subclause,
as soon as practicable before such change occurs.
The Joint Venturers shall also keep the Minister fully informed with respect
to any proposed connection as referred to in subclause (1)(f) or (1)(g) or
request of them for such connection to be allowed.
(5) Nothing in this Agreement shall be construed
to:
(a) exempt another Integration Proponent from
complying with, or the application of, the provisions of its Integration
Agreement; or
(b) restrict the Joint Venturers’ rights
under clause 20.
For the avoidance of doubt the approval of proposals under this Agreement
shall not be construed as authorising another Integration Proponent to
undertake any activities under this Agreement or under another Integration
Agreement.
(6) Nothing in this clause shall be construed to
exempt the Joint Venturers from complying with, or the application of, the
other provisions of this Agreement including, without limitation, clause 20
and of relevant laws from time to time of the said State.
(7) For the purpose of this clause “works
installations or facilities” means any:
(a) harbour or port works installations or
facilities including, without limitation, stockpiles, reclaimers, conveyors
and wharves;
(b) railway or rail spur lines;
(c) track structures and systems associated with
the operation and maintenance of a railway including, without limitation,
sidings, train control and signalling systems, maintenance workshops and
terminal yards;
(d) train loading and unloading works
installations or facilities;
(e) conveyors;
(f) private roads;
(g) mine aerodrome and associated aerodrome works
installations and facilities;
(h) iron ore mining, crushing, screening,
beneficiation or other processing works installations or facilities;
(i) mine administration buildings including,
without limitation, offices, workshops and medical facilities;
(j) borrow pits;
(k) accommodation and ancillary facilities
including, without limitation, construction camps and in townsites constructed
pursuant to and held under any Integration Agreement;
(l) water, sewerage, electricity, gas and
telecommunications works installations and facilities including, without
limitation, pipelines, transmission lines and cables; and
(m) any other works installations or facilities
approved of by the Minister for the purpose of this clause.
Transfer of rights to shared works installations or facilities
9D. (1) For the
purposes of this clause “Relevant Infrastructure” means any works
installations or facilities (as defined in clause 9C(7)):
(a) constructed or held under another Integration
Agreement;
(b) which the Joint Venturers are using in their
activities pursuant to this Agreement;
(c) which the Minister is satisfied (after
consulting with the Joint Venturers and the Integration Proponent for that
other Integration Agreement):
(i) are no longer required by that other
Integration Proponent to carry on its activities pursuant to its Integration
Agreement because of the cessation of the Integration Proponent’s mining
operations in respect of which such Relevant Infrastructure was constructed or
held or because of any other reason acceptable to the Minister; and
(ii) are required by the Joint Venturers to
continue to carry on their activities pursuant to this Agreement; and
(d) in respect of which that other Integration
Proponent has notified the Minister it consents to the Joint Venturers
submitting proposals as referred to in subclause (2).
(2) The Joint Venturers may as an additional
proposal pursuant to clause 7A propose:
(a) that they be granted a lease licence or other
title over the Relevant Infrastructure pursuant to this Agreement subject to
and conditional upon the other Integration Proponent surrendering wholly or in
part (and upon such terms as the Minister considers reasonable including any
variation of terms to address environmental issues) its lease licence or other
title over the Relevant Infrastructure; or
(b) that the other Integration Proponent’s
lease licence or other title (not being a mineral lease, mining lease or other
right to mine title granted under a Government agreement, the Mining Act 1904
or the Mining Act 1978 ) to the Relevant Infrastructure be transferred to this
Agreement (to be held by the Joint Venturers pursuant to this Agreement) with
such surrender of land from it and variations of its terms as the Minister
considers reasonable for that title to be held under this Agreement including,
without limitation, to address environmental issues and outstanding
obligations of that other Integration Proponent under its Integration
Agreement in respect of that Relevant Infrastructure.
The provisions of clause 7B shall mutatis mutandis apply to any such
additional proposal. In addition the Joint Venturers acknowledge that the
Minister may require variations of the other Integration Agreement and/or
proposals under it or of this Agreement in order to give effect to the matters
contemplated by this clause.
(3) This clause shall cease to apply in the event
the State gives any notice of default to the Joint Venturers pursuant to
clause 10(l) and while such notice remains unsatisfied .
Miscellaneous Licences for Railways
9E. (1) In this clause
subject to the context:
“Additional Infrastructure” means:
(a) Train Loading Infrastructure;
(b) Train Unloading Infrastructure;
(c) a conveyor, train unloading and other
infrastructure necessary for the transport of iron ore, freight goods or other
products from the Railway (directly or indirectly) to port facilities within a
loading port,
in each case located outside a Port;
“LAA” means the Land Administration Act 1997 (WA);
“Lateral Access Roads” has the meaning given in subclause
(3)(a)(iv);
“Lateral Access Road Licence” means a miscellaneous licence
granted pursuant to subclause (6)(a)(ii) or subclause (6)(b) as the case may
be and according to the requirements of the context describes the area of land
from time to time the subject of that licence;
“Port” means any port the subject of the Port Authorities Act
1999 (WA) or the Shipping and Pilotage Act 1967 (WA);
“Private Roads” means Lateral Access Roads and the Joint
Venturers’ access roads within a Railway Corridor;
“Rail Safety Act” means the Rail Safety Act 1998 (WA);
“Railway” means a standard gauge heavy haul railway or railway
spur line, located or to be located as the case may be in, or proximate to,
the Pilbara region of the said State (but outside the boundaries of a Port)
for the transport of iron ore, freight goods and other products together with
all railway track, associated track structures including sidings, turning
loops, over or under track structures, supports (including supports for
equipment or items associated with the use of a railway) tunnels, bridges,
train control systems, signalling systems, switch and other gear,
communication systems, electric traction infrastructure, buildings (excluding
office buildings, housing and freight centres), workshops and associated
plant, machinery and equipment and including rolling stock maintenance
facilities, terminal yards, depots, culverts and weigh bridges which railway
is or is to be (as the case may be) the subject of approved proposals under
subclause (4) and includes any expansion or extension thereof outside a Port
which is the subject of additional proposals approved in accordance with
subclause (5);
“Railway Corridor” means, prior to the grant of a Special Railway
Licence, the land for the route of the Railway the subject of that licence,
access roads (other than Lateral Access Roads), areas from which stone, sand,
clay and gravel may be taken, temporary accommodation facilities for the
railway workforce, water bores and Additional Infrastructure (if any) which is
the subject of a subsisting agreement pursuant to subclause (3)(a) and after
the grant of the Special Railway Licence the land from time to time the
subject of that Special Railway Licence;
“Railway Operation” means the construction and operation under
this Agreement of the relevant Railway and associated access roads and
Additional Infrastructure (if any) within the relevant Railway Corridor and of
the associated Lateral Access Roads, in accordance with approved proposals;
“Railway spur line” means a standard gauge heavy haul railway spur
line located or to be located in, or proximate to, the Pilbara region of the
said State (but outside a Port) connecting to a Railway for the transport of
iron ore, freight goods and other products upon the Railway to (directly or
indirectly) a loading port;
“Railway Operation Date” means the date of the first carriage of
iron ore, freight goods or other products over the relevant Railway (other
than for construction or commissioning purposes);
“Railway spur line Operation Date” means the date of the first
carriage of iron ore, freight goods or other products over the relevant
Railway spur line (other than for construction or commissioning purposes);
“Special Railway Licence” means the relevant miscellaneous licence
for railway and, if applicable, other purposes, granted to the Joint Venturers
pursuant to subclause (6)(a)(i) as varied in accordance with subclause (6)(h)
or subclause (6)(i) and according to the requirements of the context describes
the area of land from time to time the subject of that licence;
“Train Loading Infrastructure” means conveyors, stockpile areas,
blending and screening facilities, stackers, re-claimers and other
infrastructure reasonably required for the loading of iron ore, freight goods
or other products onto the relevant Railway for transport (directly or
indirectly) to a loading port; and
“Train Unloading Infrastructure” means train unloading
infrastructure reasonably required for the unloading of iron ore from the
Railway to be processed, or blended with other iron ore, at processing or
blending facilities in the vicinity of that train unloading infrastructure and
with the resulting iron ore products then loaded on to the Railway for
transport (directly or indirectly) to a loading port.
Joint Venturers to obtain prior Ministerial in-principle approval
(2) (a)
If the Joint Venturers wish, from time to time during the continuance of this
Agreement, to proceed under this clause with a plan to develop a Railway they
shall give notice thereof to the Minister and furnish to the Minister with
that notice an outline of their plan.
(b) The Minister shall within one month of a
notice under paragraph (a) advise the Joint Venturers whether or not he
approves in-principle the proposed plan. The Minister shall afford the Joint
Venturers full opportunity to consult with him in respect of any decision of
the Minister under this paragraph.
(c) The Minister’s in-principle approval in
respect of a proposed plan shall lapse if the Joint Venturers have not
submitted detailed proposals to the Minister in respect of that plan in
accordance with this clause within 18 months of the Minister’s
in-principle approval.
Railway Corridor
(3) (a)
If the Minister gives in-principle approval to a plan of the Joint Venturers
to develop a Railway they shall consult with the Minister to seek the
agreement of the Minister as to:
(i) where the Railway will begin and end; and
(ii) a route for the Railway, access roads to be
within the Railway Corridor and the land required for that route as well as
Additional Infrastructure (if any) including, without limitation, areas from
which stone, sand, clay and gravel may be taken, temporary accommodation
facilities for the railway workforce and water bores; and
(iii) in respect of Additional Infrastructure (if
any) the nature and capacity of such Additional Infrastructure; and
(iv) the routes of, and the land required for,
roads outside the Railway Corridor (and also outside a Port) for access to it
to construct the Railway (such roads as agreed being “Lateral Access
Roads”).
In seeking such agreement, regard shall be had to achieving a balance between
engineering matters including costs, the nature and use of any lands concerned
and interests therein and the costs of acquiring the land (all of which shall
be borne by the Joint Venturers) . The parties acknowledge the intention is
for the Joint Venturers to construct the Railway, the access roads for the
construction and maintenance of the Railway which are to be within the Railway
Corridor and the relevant Additional Infrastructure (if any) along the
centreline of the Railway Corridor subject to changes in that alignment to the
extent necessary to avoid heritage, environmental or poor ground conditions
that are not identified during preliminary investigation work, and recognise
the width of the Railway Corridor may need to vary along its route to
accommodate Additional Infrastructure (if any), access roads, areas from which
stone, sand, clay and gravel may be taken, temporary accommodation facilities
for the railway workforce and water bores. The provisions of clause 25 shall
not apply to this subclause.
(b) If the date by which the Joint Venturers must
submit detailed proposals under subclause (4)(a) (as referred to in subclause
(2)(c)) is extended or varied by the Minister pursuant to clause 24, any
agreement made pursuant to paragraph (a) before such date is extended or
varied shall unless the Minister notifies the Joint Venturers otherwise be
deemed to be at an end and neither party shall have any claim against the
other in respect of it.
(c) The Joint Venturers acknowledge that they
shall be responsible for liaising with every title holder in respect of the
land affected and for obtaining in a form and substance acceptable to the
Minister all unconditional and irrevocable consents of each such title holder
to, and all statutory consents required in respect of the land affected for:
(i) the grant of the Special Railway Licence for
the construction, operation and maintenance within the Railway Corridor of the
Railway, access roads and Additional Infrastructure (if any) to be within the
Railway Corridor; and
(ii) the grant of Lateral Access Road Licences for
the construction, use and maintenance of Lateral Access Roads over the routes
for the Lateral Access Roads agreed pursuant to paragraph (a); and
(iii) the inclusion of additional land in the
Special Railway Licence as referred to in subclause (6)(h) or subclause
(6)(i),
in accordance with this clause. For the purposes of this subclause (3)(c),
“title holder” means a management body (as defined in the LAA) in
respect of any part of the affected land, a person who holds a mining,
petroleum or geothermal energy right (as defined in the LAA) in respect of any
part of the affected land, a person who holds a lease or licence under the LAA
in respect of any part of the affected land, a person who holds any other
title granted under or pursuant to a Government agreement in respect of any
part of the affected land, a person who holds a lease or licence in respect of
any part of the affected land under any other Act applying in the said State
and a person in whom any part of the affected land is vested, immediately
before the provision of such consents to the Minister as referred to in
subclause (4)(e)(ii) (including as applying pursuant to subclause 5(d)).
Joint Venturers to submit proposals for Railway
(4) (a)
The Joint Venturers shall, subject to the EP Act, the provisions of this
Agreement, agreement at that time subsisting in respect of the matters
required to be agreed pursuant to subclause 3(a), submit to the Minister by
the latest date applying under subclause (2)(c) to the fullest extent
reasonably practicable their detailed proposals (including plans where
practicable and specifications where reasonably required by the Minister and
any other details normally required by a local government in whose area any
works are to be situated) with respect to the undertaking of the relevant
Railway Operation, which proposals shall include the location, area, layout,
design, materials and time program for the commencement and completion of
construction or the provision (as the case may be) of each of the following
matters namely:
(i) the Railway including fencing (if any) and
crossing places within the Railway Corridor;
(ii) Additional Infrastructure (if any) within the
Railway Corridor;
(iii) temporary accommodation and ancillary
temporary facilities for the railway workforce on, or in the vicinity of, the
Railway Corridor and housing and other appropriate facilities elsewhere for
the Joint Venturers’ workforce;
(iv) water supply;
(v) energy supplies;
(vi) access roads within the Railway Corridor and
Lateral Access Roads both along the routes for those roads agreed between the
Minister and the Joint Venturers pursuant to subclause 3(a);
(vii) any other works, services or facilities
desired by the Joint Venturers; and
(viii) use of local labour, professional services,
manufacturers, suppliers, contractors and materials and measures to be taken
with respect to the engagement and training of employees by the Joint
Venturers, their agents and contractors.
(b) Proposals pursuant to paragraph (a) must
specify the matters agreed for the purpose pursuant to subclause (3)(a) and
must not be contrary to or inconsistent with such agreed matters.
(c) Each of the proposals pursuant to paragraph
(a) may with the approval of the Minister, or must if so required by the
Minister, be submitted separately and in any order as to the matter or matters
mentioned in one or more of subparagraphs (i) to (viii) of paragraph (a) and
until all of their proposals under this subclause have been approved the Joint
Venturers may withdraw and may resubmit any proposal but the withdrawal of any
proposal shall not affect the obligations of the Joint Venturers to submit a
proposal under this subclause in respect of the subject matter of the
withdrawn proposal.
(d) The Joint Venturers shall, whenever any of the
following matters referred to in this subclause are proposed by the Joint
Venturers (whether before or during the submission of proposals under this
subclause), submit to the Minister details of any services (including any
elements of the project investigations, design and management) and any works,
materials, plant, equipment and supplies that they propose to consider
obtaining from or having carried out or permitting to be obtained from or
carried out outside Australia, together with their reasons therefor and shall,
if required by the Minister consult with the Minister with respect thereto.
(e) At the time when the Joint Venturers submit
the last of the said proposals pursuant to this subclause, they shall:
(i) furnish to the Minister’s reasonable
satisfaction evidence of all accreditations under the Rail Safety Act which
are required to be held by the Joint Venturers or any other person for the
construction of the Railway; and
(ii) furnish to the Minister the written consents
referred to in subclause (3)(c)(i) and (3)(c)(ii).
(f) The provisions of clause 7B shall apply
mutatis mutandis to detailed proposals submitted under this subclause.
Additional Railway Proposals
(5) (a)
If the Joint Venturers at any time during the currency of a Special Railway
Licence desire to construct a Railway spur line (connecting to the Railway the
subject of that Special Railway Licence) or desires to significantly modify,
expand or otherwise vary their activities within the land the subject of the
Special Railway Licence that are the subject of this Agreement and that may be
carried on by them pursuant to this Agreement (other than by the construction
of a Railway spur line) beyond those activities specified in any approved
proposals for that Railway, they shall give notice of such desire to the
Minister and furnish to the Minister with that notice an outline of their
proposals in respect thereto (including, without limitation, such matters
mentioned in subclause (4)(a) as are relevant or as the Minister otherwise
requires).
(b) If the notice relates to a Railway spur line,
or to the construction of Train Loading Infrastructure or Train Unloading
Infrastructure on land outside the then Railway Corridor, the Minister shall
within one month of receipt of such notice advise the Joint Venturers whether
or not he approves in-principle the proposed construction of such spur line,
Train Loading Infrastructure or Train Unloading Infrastructure. If the
Minister gives in-principle approval the Joint Venturers may (but not
otherwise) submit detailed proposals in respect thereof provided that the
provisions of subclause (3) shall mutatis mutandis apply prior to submission
of detailed proposals in respect thereof.
(c) Subject to the EP Act, the provisions of this
Agreement and agreement at that time subsisting in respect of any matters
required to be agreed pursuant to subclause (3)(a) (as referred to in
paragraph (b)), the Joint Venturers shall submit to the Minister within a
reasonable timeframe, as determined by the Minister after receipt of the
notice referred to in paragraph (a) (or in the case of a notice referred to in
paragraph (b) the giving of the Minister’s in-principle consent as
referred to in that paragraph), detailed proposals in respect of the proposed
construction of such Railway spur line, Train Loading Infrastructure, Train
Unloading Infrastructure or other proposed modification, expansion or
variation of their activities including such of the matters mentioned in
subclause (4)(a) as the Minister may require.
(d) The provisions of subclause (4) (with the date
for submission of proposals being read as the date or time determined by the
Minister under paragraph (c) and the reference in subclause (4)(e)(ii) to
subclause (3)(c)(i) being read as a reference to subclause (3)(c)(iii)) and of
clause 7B shall mutatis mutandis apply to detailed proposals submitted
pursuant to this subclause.
Grant of Tenure
(6) (a)
On application made by the Joint Venturers to the Minister in such manner as
the Minister may determine, not later than 3 months after all their proposals
submitted pursuant to subclause (4)(a) have been approved or deemed to be
approved and the Joint Venturers have complied with the provisions of
subclause (4)(e), the State notwithstanding the Mining Act 1978 shall cause
to be granted to the Joint Venturers:
(i) a miscellaneous licence to conduct within the
Railway Corridor and in accordance with their approved proposals all
activities (including the taking of stone, sand, clay and gravel, the
provision of temporary accommodation facilities for the railway workforce and,
subject to the Rights in Water and Irrigation Act 1914 (WA), the operation of
water bores) necessary for the planning, design, construction, commissioning,
operation and maintenance within the Railway Corridor of the Railway, access
roads and Additional Infrastructure (if any) (“the Special Railway
Licence”) such licence to be granted under and subject to, except as
otherwise provided in this Agreement, the Mining Act 1978 in the form of the
Second Schedule hereto and subject to such terms and conditions as the
Minister for Mines may from time to time consider reasonable and at a rental
calculated in accordance with the Mining Act 1978 :
(A) prior to the Railway Operation Date, as if the
width of the Railway Corridor were 100 metres; and
(B) on and from the Railway Operation Date, at the
rentals from time to time prescribed under the Mining Act 1978 ; and
(ii) a miscellaneous licence or licences to allow
the construction, use and maintenance of Lateral Access Roads within the
routes agreed for those Lateral Access Roads under subclause (3)(a) (each a
“Lateral Access Road Licence”), each such licence to be granted
under and subject to, except as otherwise provided in this Agreement, the
Mining Act 1978 in the form of the Third Schedule hereto and subject to such
terms and conditions as the Minister for Mines may from time to time consider
reasonable and at the rentals from time to time prescribed under the
Mining Act 1978 .
(b) On application made by the Joint Venturers to
the Minister in such manner as the Minister may determine, not later than 3
months after their proposals submitted pursuant to subclause (5)(a) for the
construction of Lateral Access Roads for access to the Railway Corridor to
construct a Railway spur line have been approved or deemed to be approved and
the Joint Venturers have complied with the provisions of subclause (4)(e) (as
applying pursuant to subclause (5)(d)), the State notwithstanding the
Mining Act 1978 shall cause to be granted to the Joint Venturers a
miscellaneous licence or licences to allow the construction, use and
maintenance of Lateral Access Roads within the routes agreed for those Lateral
Access Roads under subclause (3)(a)) (as applying pursuant to subclause
(5)(b)) (each a “Lateral Access Road Licence”), each such licence
to be granted under and subject to, except as otherwise provided in this
Agreement, the Mining Act 1978 in the form of the Fourth Schedule hereto and
subject to such terms and conditions as the Minister for Mines may from time
to time consider reasonable and at the rentals from time to time prescribed
under the Mining Act 1978 .
(c) Notwithstanding the Mining Act 1978 , the term
of the Special Railway Licence shall, subject to the sooner determination
thereof on the cessation or sooner determination of this Agreement, be for a
period of 50 years commencing on the date of grant thereof.
(d) Notwithstanding the Mining Act 1978 , the term
of any Lateral Access Road Licence shall, subject to the sooner determination
thereof on the cessation or sooner determination of this Agreement, be for a
period of 4 years commencing on the date of grant thereof.
(e) Notwithstanding the Mining Act 1978 , and
except as required to do so by the terms of the Special Railway Licence, the
Joint Venturers shall not be entitled to surrender the Special Railway Licence
or any Lateral Access Road Licence or any part or parts of them without the
prior consent of the Minister.
(f) (i)
The Joint Venturers may in accordance with approved
proposals take stone, sand, clay and gravel from the Railway Corridor for the
construction, operation and maintenance of the Railway constructed within or
approved for construction within the Railway Corridor.
(ii) Notwithstanding the Mining Act 1978 no
royalty shall be payable under the Mining Act 1978 in respect of stone, sand,
clay and gravel which the Joint Venturers are permitted by subparagraph (i) to
obtain from the land the subject of the Special Railway Licence.
(g) For the purposes of this Agreement and without
limiting the operation of paragraphs (a) to (f) inclusive above, the
application of the Mining Act 1978 and the regulations made thereunder are
specifically modified;
(i) in section 91(1) by:
(A) deleting “the mining registrar or the
warden, in accordance with section 42 (as read with section 92)” and
substituting “the Minister”;
(B) deleting “any person” and
substituting “the Joint Venturers (as defined in the agreement approved
by and scheduled to the Iron Ore (Mount Goldsworthy) Agreement Act 1964 , as
from time to time added to, varied or amended)”;
(C) deleting “for any one or more of the
purposes prescribed” and substituting “for the purpose specified
in clause 9E(6)(a)(i), clause 9E(6)(a)(ii) or clause 9E(6)(b), of the
agreement approved by and scheduled to the
Iron Ore (Mount Goldsworthy) Agreement Act 1964 , as from time to time added
to, varied or amended”;
(ii) in section 91(3)(a), by deleting
“prescribed form” and substituting “form required by the
agreement approved by and scheduled to the
Iron Ore (Mount Goldsworthy) Agreement Act 1964 , as from time to time added
to, varied or amended”;
(iii) by deleting sections 91(6), 91(9), 91(10)
and 91B;
(iv) in section 92, by deleting “Sections
41, 42, 44, 46, 46A, 47 and 52 apply,” and inserting “Section 46A
(excluding in subsection (2)(a) “the mining registrar, the warden
or”) applies,” and by deleting “in those provisions”
and inserting “in that provision”;
(v) by deleting the full stop at the end of the
section 94(1) and inserting, “except to the extent otherwise provided
in, or to the extent that such terms and conditions are inconsistent with, the
agreement approved by and scheduled to the
Iron Ore (Mount Goldsworthy) Agreement Act 1964 , as from time to time added
to, varied or amended”;
(vi) by deleting sections 94(2), (3) and (4);
(vii) in section 96(1), by inserting after
“miscellaneous licence” the words “(not being a
miscellaneous licence granted pursuant to the agreement approved by and
scheduled to the Iron Ore (Mount Goldsworthy) Agreement Act 1964 , as from
time to time added to, varied or amended”;
(viii) by deleting mining regulations 37(2),
37(3), 42 and 42A; and
(ix) by inserting at the beginning of mining
regulations 41(c) and (f) the words “subject to the agreement approved
by and scheduled to the Iron Ore (Mount Goldsworthy) Agreement Act 1964 , as
from time to time added to, varied or amended”.
(h) If additional proposals are approved in
accordance with subclause (5) for the construction of a Railway spur line
outside the then Railway Corridor, the Minister for Mines shall include the
area of land within which such construction is to occur in the Special Railway
Licence by endorsement. The area of such land may be included notwithstanding
that the survey of the land has not been completed but subject to correction
to accord with the survey when completed at the Joint Venturers’
expense.
(i) If additional proposals are approved in
accordance with subclause (5) for the construction of Train Loading
Infrastructure or Train Unloading Infrastructure outside the then Railway
Corridor, the Minister for Mines shall include the area of such land within
which such infrastructure is approved for construction in the Special Railway
Licence by endorsement. The area of such land may be included notwithstanding
that the survey of the land has not been completed but subject to correction
to accord with the survey when completed at the Joint Venturers’
expense.
(j) The provisions of this subclause shall not
operate so as to require the State to cause a Special Railway Licence or a
Lateral Access Road Licence to be granted or any land included in the Special
Railway Licence as mentioned above until all processes necessary under any
laws relating to native title to enable that grant or inclusion of land to
proceed, have been completed.
Construction and operation of Railway
(7) (a)
Subject to and in accordance with approved proposals, the Rail Safety Act and
the grant of the relevant Special Railway Licence and any associated Lateral
Access Road Licences the Joint Venturers shall in a proper and workmanlike
manner and in accordance with recognised standards for railways of a similar
nature operating under similar conditions construct the Railway and associated
Additional Infrastructure and access roads within the Railway Corridor and
shall also construct inter alia any necessary sidings, crossing points,
bridges, signalling switches and other works and appurtenances and provide for
crossings and (where appropriate and required by the Minister) grade
separation or other protective devices including flashing lights and boom
gates at places where the Railway crosses or intersects with major roads or
existing railways.
(b) The Joint Venturers shall while the holder of
a Special Railway Licence:
(i) keep the Railway the subject of that licence
in an operable state; and
(ii) ensure that the Railway the subject of that
licence is operated in a safe and proper manner in compliance with all
applicable laws from time to time; and
(iii) without limiting subparagraph (ii) ensure
that the obligations imposed under the Rail Safety Act on an owner and an
operator (as those terms are therein defined) are complied with in connection
with the Railway the subject of that licence.
Nothing in this Agreement shall be construed to exempt the Joint Venturers or
any other person from compliance with the Rail Safety Act or limit its
application to the Joint Venturers’ operations generally (except as
otherwise may be provided in that Act or regulations made under it).
(c) The Joint Venturers shall provide crossings
for livestock and also for any roads, other railways, conveyors, pipelines and
other utilities which exist at the date of grant of the relevant Special
Railway Licence or in respect of land subsequently included in it at the date
of such inclusion and the Joint Venturers shall on reasonable terms and
conditions allow such crossings for roads, railways, conveyors, pipelines and
other utilities which may be constructed for future needs and which may be
required to cross a Railway constructed pursuant to this clause.
(d) Subject to clause 9D, the Joint Venturers
shall at all times be the holder of Special Railway Licences and Lateral
Access Road Licences granted pursuant to this clause and (without limiting
clause 10(j) but subject to clause 9D) shall at all times own manage and
control the use of each Railway the subject of a Special Railway Licence held
by the Joint Venturers.
(e) The Joint Venturers shall not be entitled to
exclusive possession of the land the subject of a Special Railway Licence or
Lateral Access Road Licence granted pursuant to this clause to the intent that
the State, the Minister, the Minister for Mines and any persons authorised by
any of them from time to time shall be entitled to enter upon the land or any
part of it at all reasonable times and on reasonable notice with all necessary
vehicles, plant and equipment and for purposes related to this Agreement or
such other purposes as they think fit but in doing so shall be subject to the
reasonable directions of the Joint Venturers so as not to unreasonably
interfere with the Joint Venturers’ operations.
(f) The Joint Venturers’ ownership of a
Railway constructed pursuant to this clause shall not give it an interest in
the land underlying it.
(g) The Joint Venturers shall not at any time
without the prior consent of the Minister dismantle, sell or otherwise dispose
of any part or parts of any Railway constructed pursuant to this clause, or
permit this to occur, other than for the purpose of maintenance, repair,
upgrade or renewal.
(h) The Joint Venturers shall, subject to and in
accordance with approved proposals, in a proper and workmanlike manner,
construct any Additional Infrastructure, access roads, Lateral Access Roads
and other works approved for construction under this clause.
(i) The Joint Venturers shall while the holder of
a Special Railway Licence at all times keep and maintain in good repair and
working order and condition (which obligation includes, where necessary,
replacing or renewing all parts which are worn out or in need of replacement
or renewal due to their age or condition) the Railway, access roads and
Additional Infrastructure (if any) the subject of that licence and all such
other works installations plant machinery and equipment for the time being the
subject of this Agreement and used in connection with the operation use and
maintenance of that Railway, access roads and Additional Infrastructure (if
any).
(j) Subject to clause 9D, the Joint Venturers
shall:
(i) be responsible for the cost of construction
and maintenance of all Private Roads constructed pursuant to this clause; and
(ii) at their own cost erect signposts and take
other steps that may be reasonable in the circumstances to prevent any persons
and vehicles (other than those engaged upon the Joint Venturers’
activities and their invitees and licensees) from using the Private Roads; and
(iii) at any place where any Private Roads are
constructed by the Joint Venturers so as to cross any railways or public roads
provide at their cost such reasonable protection and signposting as may be
required by the Commissioner of Main Roads or the Public Transport Authority
as the case may be.
(k) The provisions of clauses 9(2)(a) and (3)
regarding third party access as well as the proviso to clause 9(2)(a) shall
apply mutatis mutandis to any Railway or Railway spur line constructed
pursuant to this clause except that the Joint Venturers shall not be obliged
to transport any passengers upon any such Railway or Railway spur line.
Aboriginal Heritage Act 1972 (WA)
(8) For the purposes of this clause the
Aboriginal Heritage Act 1972 (WA) applies as if it were modified by:
(a) the insertion before the full stop at the end
of section 18(1) of the words:
“and the expression “the Joint Venturers” means the persons
from time to time comprising “the Joint Venturers” in their
capacity as such under the agreement approved by and scheduled to the Iron
Ore (Mount Goldsworthy) Agreement Act 1964 , as from time to time added to,
varied or amended in relation to the use or proposed use of land pursuant to
clause 9E of that agreement after and in accordance with approved proposals
under clause 9E of that agreement and in relation to the use of that land
before any such approval of proposals where the Joint Venturers have the
requisite authority to enter upon and so use the land”;
(b) the insertion in sections 18(2), 18(4), 18(5)
and 18(7) of the words “or the Joint Venturers as the case may be”
after the words “owner of any land”;
(c) the insertion in section 18(3) of the words
“or the Joint Venturers as the case may be” after the words
“the owner”;
(d) the insertion of the following sentences at
the end of section 18(3):
“In relation to a notice from the Joint Venturers the conditions that
the Minister may specify can as appropriate include, among other conditions, a
condition restricting the Joint Venturers’ use of the relevant land to
after the approval or deemed approval as the case may be under the
abovementioned agreement of all of the Joint Venturers’ submitted
initial proposals thereunder for the Railway Operation (as defined in clause
9E(1) of the abovementioned agreement), or in the case of additional proposals
submitted or to be submitted by the Joint Venturers to after the approval or
deemed approval under that agreement of such additional proposals, and to the
extent so approved.”; and
(e) the insertion in sections 18(2) and 18(5) of
the words “or it as the case may be” after the word
“he”.
The Joint Venturers acknowledge that nothing in this subclause (8) nor the
granting of any consents under section 18 of the Aboriginal Heritage Act 1972
(WA) will constitute or is to be construed as constituting the approval of any
proposals submitted or to be submitted by the Joint Venturers under this
Agreement or as the grant or promise of land tenure for the purposes of this
Agreement.
Taking of land for the purposes of this clause
(9) (a)
The State is hereby empowered, as and for a public work under Parts 9 and 10
of the LAA, to take for the purposes of this clause any land (other than any
part of a Port) which in the opinion of the Joint Venturers is necessary for
the relevant Railway Operation and which the Minister determines is
appropriate to be taken for the relevant Railway Operation (except any land
the taking of which would be contrary to the provisions of a Government
agreement entered into before the submission of the proposals relating to the
proposed taking) and notwithstanding any other provisions of that Act may
license that land to the Joint Venturers.
(b) In applying Parts 9 and 10 of the LAA for the
purposes of this clause:
(i) “land” in that Act includes a
legal or equitable estate or interest in land;
(ii) sections 170, 171, 172, 173, 174, 175 and 184
of that Act do not apply ; and
(iii) that Act applies as if it were modified in
section 177(2) by inserting -
(A) after “railway” the following -
“or land is being taken pursuant to a Government agreement as defined in
section 2 of the Government Agreements Act 1979 (WA)”; and
(B) after “that Act” the following -
“or that Agreement as the case may be”.
(c) The
Joint Venturers shall pay to the State on demand the costs of or incidental to
any land taken at the request of and on behalf of the Joint Venturers
including but not limited to any compensation payable to any holder of native
title or of native title rights and interests in the land.
Notification of Railway Operation Date
(10) (a)
The Joint Venturers shall from the date occurring 6 months before the date for
completion of construction of a Railway specified in their time program for
the commencement and completion of construction of that Railway submitted
under subclause (4)(a), keep the Minister fully informed as to:
(i) the progress of that construction and its
likely completion and commissioning; and
(ii) the likely Railway Operation Date.
(b) The Joint Venturers shall on the Railway
Operation Date notify the Minister that the first carriage of iron ore,
freight goods or other products as the case may be over the Railway (other
than for construction or commissioning purposes) has occurred.
(c) The Joint Venturers shall from the date
occurring 6 months before the date for completion of construction of a Railway
spur line specified in their time program for the commencement and completion
of construction of that spur line submitted under subclause (5)(c) keep the
Minister fully informed as to:
(i) the progress of that construction and its
likely completion and commissioning; and
(ii) in respect of it, the likely Railway spur
line Operation Date.
(d) The Joint Venturers shall on the Railway spur
line Operation Date in respect of any Railway spur line notify the Minister
that the first carriage of iron ore, freight goods or other products as the
case may be over such spur line (other than for construction or commissioning
purposes) has occurred.”;
(11) by inserting after clause 10(a) the following
new paragraph:
“(aa) the purposes for which the Joint Venturers may in accordance with
paragraph (a) generate transmit and supply electricity shall, without limiting
paragraph (a), include the purpose of supply to:
(i) “the Company” or “Joint
Venturers” as the case may be as defined in, and for the purpose of an
Integration Agreement, for its or their purposes thereunder;
(ii) the holders from time to time of a
Mining Act 1978 mining lease located in, or proximate to, the Pilbara region
of the said State which is held by a Related Entity alone or with a third
party or parties (excluding any mining lease granted pursuant to, or held
under, a Government agreement) for the purpose of their iron ore mining
operations on that mining lease; and
(iii) with the prior approval of the Minister,
“the Company” or “the Joint Venturers” as the case may
be as defined in, and for the purpose of a Government agreement (excluding an
Integration Agreement) for the mining of iron ore in, or proximate to, the
Pilbara region of the said State for the purpose of its or their operations
under that agreement;”;
(12) in clause 10(d)(i) by inserting “or
held pursuant hereto” after “granted hereunder or pursuant
hereto”;
(13) in clause 10(e) by:
(a) inserting “or pursuant hereto”
after “easement granted hereunder”; and
(b) inserting “or held pursuant
hereto” after “clause 20 hereof”;
(14) in clause 10(1) by:
(a) inserting “granted under or pursuant to
this Agreement or held pursuant to this Agreement” after “licence
or other title”;
(b) inserting “or held pursuant
hereto” after the subsequent 3 references to “granted hereunder or
pursuant hereto”; and
(c) deleting “occupied by the Joint
Venturers” and substituting “the subject of any lease licence
easement or other title granted under or pursuant to this Agreement or held
pursuant to this Agreement”;
(15) by inserting after subclause (7) of clause 11
the following new subclause::
“(8) (a)
If the Joint Venturers at any time during the continuance of this
Agreement desire to significantly modify expand or otherwise vary their
activities within the second mineral lease beyond those specified in any
proposals approved or deemed to be approved under this clause they shall give
notice of such desire to the Minister and within two months of the giving of
such notice shall submit to the Minister detailed proposals in respect of all
matters covered by such notice and such of the other matters mentioned in
paragraph (a) of subclause (2) of this clause as the Minister may require.
(b) The provisions of clause 7A(2) to (5) and 7B
shall apply mutatis mutandis to proposals pursuant to this subclause.”;
(16) in clause 12(3e) by:
(a) inserting “(except in relation to an
Integration Agreement)” after “agreement of the Minister”;
and
(b) inserting “(being in respect of an
Integration Agreement the Integration Proponent for that Agreement)”
after “third parties concerned”;
(17) in clause 12(5) by deleting paragraphs (b)
and (c) and substituting the following paragraph:
“(b) The provisions of clauses 7A(2) to (5)
and 7B shall apply mutatis mutandis to proposals submitted pursuant to this
subclause.”;
(18) in the heading to clause 11 by deleting
“Company” and substituting “Joint Venturers”;
(19) by inserting after subclause (1) of clause
12A the following new subclause:
“(1a) The provisions of subclause (1) of
this clause shall not operate so as to require the State to grant or vary, or
cause to be granted or varied, any lease licence or other right or title until
all processes necessary under any laws relating to native title to enable that
grant or variation to proceed, have been completed.”;
(20) in clause 19:
(a) by in the second sentence:
(i) deleting the first reference to
“Company” and substituting “Joint Venturers”; and
(ii) deleting “Company or its” and
substituting “Joint Venturers or their”; and
(b) inserting at its end the following new
sentence:
“As a separate independent indemnity 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 any use, making
available for use or other activities of the Joint Venturers as referred to in
clause 9C.”;
(21) in clause 21(1) by inserting “or held
pursuant hereto” after “granted hereunder or pursuant
hereto”;
(22) by deleting clause 28; and
(23) inserting after the Schedule the following
new schedules:
“ SECOND SCHEDULE
WESTERN AUSTRALIA
IRON ORE (MOUNT GOLDSWORTHY) AGREEMENT ACT 1964
MISCELLANEOUS LICENCE FOR A RAILWAY AND OTHER PURPOSES
No. MISCELLANEOUS LICENCE [ ]
WHEREAS by the Agreement (hereinafter called “the Agreement”)
approved by and scheduled to the Iron Ore (Mount Goldsworthy) Agreement Act
1964 , as from time to time added to, varied
or amended, the State agreed to grant to [ ]
(hereinafter with their successors and permitted assigns called “the
Joint Venturers”) a miscellaneous licence for the construction operation
and maintenance of a Railway (as defined in clause 9E(1) of the Agreement and
otherwise as provided in the Agreement) and, if applicable, other purposes AND
WHEREAS the Joint Venturers pursuant to clause 9E(6)(a) of the Agreement have
made application for the said licence;
NOW in consideration of the rents reserved by and the provisions of the
Agreement and in pursuance of the Iron Ore (Mount Goldsworthy) Agreement Act
1964 , as from time to time added to, varied or amended, the Joint Venturers
are hereby granted by this licence authority to conduct on the land the
subject of this licence as more particularly delineated and described from
time to time in the Schedule hereto all activities (including the taking of
stone, sand, clay and gravel, the provision of temporary accommodation
facilities for the railway workforce in accordance with the Agreement and,
subject to the Rights in Water and Irrigation Act 1914 (WA), the operation of
water bores) necessary for the planning, design, construction, commissioning,
operation and maintenance on the land the subject of this licence of the
Railway and Additional Infrastructure (as defined in clause 9E(1) of the
Agreement) and access roads to be located on the land the subject of this
licence in accordance with the provisions of the Agreement and proposals
approved under the Agreement, for the term of 50 years from the date hereof
(subject to the sooner determination of the term upon the determination of the
Agreement) and upon and subject to the terms covenants and conditions set out
in the Agreement and the Mining Act 1978 as it applies to this licence, and
any amendments to the Agreement and the Mining Act 1978 from time to time and
to the terms and conditions (if any) now or hereafter endorsed hereon and the
payment of rentals in respect of this licence in accordance with clause
9E(6)(a)(i) of the Agreement PROVIDED ALWAYS that this licence shall not be
determined or forfeited otherwise than in accordance with the Agreement.
In this licence:
- If the Joint Venturers be more than one the
liability of the Joint Venturers hereunder shall be joint and several.
- Reference to an Act includes all amendments to
that Act for the time being in force and also any Act passed in substitution
therefore or in lieu thereof and to the regulations and by-laws of the time
being in force thereunder.
- Reference to “the Agreement” means
such agreement as from time to time added to, varied or amended.
- The terms “approved proposals”,
“Railway”, “Railway Operation Date”, and
“Railway spur line” have the meanings given in the Agreement.
(i) ENDORSEMENTS AND CONDITIONS
Endorsements
1. This licence is granted in accordance with
proposals submitted on
[ ], and approved by the Minister (as defined in the
Agreement) on [ ], under the Agreement.
2. The Joint Venturers are permitted to, in
accordance with approved proposals, take stone, sand, clay and gravel from the
land the subject of this licence for the construction, operation and
maintenance of the Railway (including any Railway spur line) constructed
within or approved for construction within the area of land the subject of
this licence.
3. Notwithstanding the Mining Act 1978 , no
royalty shall be payable under the Mining Act 1978 in respect of stone, sand,
clay and gravel which the Joint Venturers are permitted by the Agreement to
obtain from the land the subject of this licence.
4. [Any further endorsement which the Minister for
Mines may, consistent with the provisions of the Agreement, determines and
thereafter impose in respect of this licence including during the term of the
Agreement.]
Conditions
1. (a)
Except as provided in paragraph (b), the Joint Venturers shall within 2 years
after the Railway Operation Date surrender in accordance with the provisions
of the Mining Act 1978 the area of this licence down to a maximum of 100
metres width or as otherwise approved by the Minister (as defined in the
Agreement) for the safe operation of the Railway then constructed or approved
for construction under approved proposals.
(b)
Paragraph (a) shall not apply to land the subject of this licence that was
included in this licence pursuant to clause 9E(6)(h) or clause 9E(6)(i) of the
Agreement.
2. The Joint Venturers shall as soon as possible
after the construction of a Railway spur line or of an expansion or extension
thereof as the case may be surrender in accordance with the Mining Act 1978
the land the subject of this licence that was included in this licence
pursuant to clause 9E(6)(h) of the Agreement for the purpose of such
construction down to a maximum of 100 metres in width or as otherwise approved
by the Minister (as defined in the Agreement) for the safe operation of that
Railway spur line or expansion or extension thereof as the case may be then
constructed or approved for construction under approved proposals.
3. [Any further conditions which the Minister for
Mines may, consistent with the provisions of the Agreement, determines and
thereafter impose in respect of this licence including during the term of the
Agreement.]
SCHEDULE
Land description
Locality:
Mineral Field
Area:
DATED at Perth this day of
.
MINISTER FOR MINES
THIRD SCHEDULE
WESTERN AUSTRALIA
IRON ORE (MOUNT GOLDSWORTHY) AGREEMENT ACT 1964
MISCELLANEOUS LICENCE FOR A LATERAL ACCESS ROAD
No. MISCELLANEOUS LICENCE [ ]
WHEREAS by the Agreement (hereinafter called “the Agreement”)
approved by and scheduled the Iron Ore (Mount Goldsworthy) Agreement Act 1964
, as from time to time added to, varied or amended, the State agreed to grant
to
[ ] (hereinafter with
their successors and permitted assigns called “the Joint
Venturers”) a miscellaneous licence for the construction use and
maintenance of a Lateral Access Road (as defined in the Agreement) AND WHEREAS
the Joint Venturers pursuant to clause 9E(6)(a)(ii) of the Agreement have made
application for the said licence;
NOW in consideration of the rents reserved by and the provisions of the
Agreement and in pursuance of the Iron Ore (Mount Goldsworthy) Agreement Act
1964 , as from time to time added to, varied or amended, the Joint Venturers
are hereby authorised to construct use and maintain a road on the land more
particularly delineated and described from time to time in the Schedule hereto
in accordance with the provisions of the Agreement and proposals approved
under the Agreement for a term of 4 years commencing on the date hereof
(subject to the sooner determination of the term upon the cessation or
determination of the Agreement) and for the purposes and upon and subject to
the terms covenants and conditions set out in the Agreement and the Mining
Act 1978 as it applies to this licence, and any amendments to the Agreement
and the Mining Act 1978 from time to time and to the terms and conditions (if
any) now or hereafter endorsed hereon and the payment of rentals in respect of
this licence in accordance with clause 9E(6)(a)(ii) of the Agreement PROVIDED
ALWAYS that this licence shall not be determined or forfeited otherwise than
in accordance with the Agreement.
In this licence:
- If the Joint Venturers be more than one the
liability of the Joint Venturers hereunder shall be joint and several.
- Reference to an Act includes all amendments to
that Act for the time being in force and also any Act passed in substitution
therefore or in lieu thereof and to the regulations and by-laws of the time
being in force thereunder.
- Reference to “the Agreement” means
such agreement as from time to time added to, varied or amended.
(ii) ENDORSEMENTS AND CONDITIONS
Endorsements
1. This licence is granted in accordance with
proposals submitted on
[ ], and approved by the Minister (as defined in the
Agreement) on [ ], under the Agreement.
2. [Any further endorsement which the Minister for
Mines may, consistent with the provisions of the Agreement, determines and
thereafter impose in respect of this licence including during the term of the
Agreement.]
Conditions
[Such conditions which the Minister for Mines may, consistent with the
provisions of the Agreement, determines and thereafter impose in respect of
the licence, including during the term of the Agreement.]
SCHEDULE
Description of land
Locality:
Mineral Field:
Area:
DATED at Perth this day of
.
MINISTER FOR MINES
FOURTH SCHEDULE
WESTERN AUSTRALIA
IRON ORE (MOUNT GOLDSWORTHY) AGREEMENT ACT 1964
MISCELLANEOUS LICENCE FOR A LATERAL ACCESS ROAD
No. MISCELLANEOUS LICENCE [ ]
WHEREAS by the Agreement (hereinafter called “the Agreement”)
approved by and scheduled the Iron Ore (Mount Goldsworthy) Agreement Act 1964
, as from time to time added to, varied or amended, the State agreed to grant
to
[ ] (hereinafter with
their successors and permitted assigns called “the Joint
Venturers”) a miscellaneous licence for the construction use and
maintenance of a Lateral Access Road (as defined in the Agreement) AND WHEREAS
the Joint Venturers pursuant to clause 9E(6)(b) of the Agreement have made
application for the said licence;
NOW in consideration of the rents reserved by and the provisions of the
Agreement and in pursuance of the Iron Ore (Mount Goldsworthy) Agreement Act
1964 , as from time to time added to, varied or amended, the Joint Venturers
are hereby authorised to construct use and maintain a road on the land more
particularly delineated and described from time to time in the Schedule hereto
in accordance with the provisions of the Agreement and proposals approved
under the Agreement for a term of 4 years commencing on the date hereof
(subject to the sooner determination of the term upon the cessation or
determination of the Agreement) and for the purposes and upon and subject to
the terms covenants and conditions set out in the Agreement and the Mining
Act 1978 as it applies to this licence, and any amendments to the Agreement
and the Mining Act 1978 from time to time and to the terms and conditions (if
any) now or hereafter endorsed hereon and the payment of rentals in respect of
this licence in accordance with clause 9E(6)(b) of the Agreement PROVIDED
ALWAYS that this licence shall not be determined or forfeited otherwise than
in accordance with the Agreement.
In this licence:
- If the Joint Venturers be more than one the
liability of the Joint Venturers hereunder shall be joint and several.
- Reference to an Act includes all amendments to
that Act for the time being in force and also any Act passed in substitution
therefore or in lieu thereof and to the regulations and by-laws of the time
being in force thereunder.
- Reference to “the Agreement” means
such agreement as from time to time added to, varied or amended.
(iii) ENDORSEMENTS AND CONDITIONS
Endorsements
1. This licence is granted in accordance with
proposals submitted on
[ ], and approved by the Minister (as defined in the
Agreement) on [ ], under the Agreement.
2. [Any further endorsement which the Minister for
Mines may, consistent with the provisions of the Agreement, determines and
thereafter impose in respect of this licence including during the term of the
Agreement.]
Conditions
[Such conditions which the Minister for Mines may, consistent with the
provisions of the Agreement, determines and thereafter impose in respect of
the licence, including during the term of the Agreement.]
SCHEDULE
Description of land
Locality:
Mineral Field:
Area:
DATED at Perth this day of
.
MINISTER FOR MINES ”
EXECUTED as a deed.
SIGNED by THE HONOURABLE )
COLIN JAMES BARNETT
) [Signature]
in the presence of: )
|
[Signature] |
|
STEPHEN WOOD |
EXECUTED by BHP BILLITON )
MINERALS PTY. LTD.
)
ACN 008 694 782 in accordance
)
with section 127(1) of the Corporations Act )
|
[Signature] |
[Signature] |
|
Signature of Director |
Signature of |
|
STEWART HART |
ROBIN B LEES |
|
Name of Director |
Name of |
EXECUTED by MITSUI IRON ORE )
CORPORATION PTY.
LTD. )
ACN 050 157 456 in accordance with )
section 127(1) of the Corporations Act )
|
[Signature] |
[Signature] |
|
Signature of Director |
Signature of |
|
RYUZO NAKAMURA |
GAVIN PETER PATTERSON |
|
Name of Director |
Name of |
Signed by Shuzaburo Tsuchihashi as )
attorney for
ITOCHU MINERALS & )
ENERGY OF AUSTRALIA PTY.
)
LTD. ACN 009 256 259 under power
)
of attorney dated 12 November 2010
)
in the presence of: )
|
[Signature] |
[Signature] |
|
Signature of Director |
Signature of |
|
YASUSHI FUKUMURA |
Shuzaburo Tsuchihashi |
|
Name of Director |
Name of |
[Fifth Schedule inserted: No. 61 of 2010 s. 33.]