Western Australian Current Acts Western Australian Current Acts [Heading inserted: No. 13 of 2017 s. 6.]
THIS AGREEMENT made this 27th day of October 1987 BETWEEN THE HONOURABLE BRIAN
THOMAS BURKE, Premier of the State of Western Australia, acting for and on
behalf of the said State and its instrumentalities from time to time
(hereinafter called “the State”) of the first part CMIEC (CHANNAR)
PTY. LTD. a company incorporated in Western Australia and having its
registered office at 140 St. George’s Terrace, Perth and CHANNAR MINING
PTY. LIMITED a company incorporated in Western Australia and having its
registered office at 191 St. George’s Terrace, Perth (hereinafter
together called the “Joint Venturers” in which term shall be
included their respective successors and permitted assigns) of the second part
and HAMERSLEY IRON PTY. LIMITED a company incorporated in Victoria and having
its registered office in the State of Western Australia at 191 St
George’s Terrace, Perth (hereinafter called “Hamersley”) of
the third part.
WHEREAS:
(a) the Joint Venturers, having established the
economic viability thereof, desire to recover and market to the People’s
Republic of China iron ore from the land shown bordered green on the plan
marked “A” (which has been initialled by or on behalf of the
parties hereto for the purpose of identification) through a joint venture in
which CMIEC (Channar) Pty. Ltd. will hold an undivided 40% Participating
Interest and Channar Mining Pty. Limited will hold an undivided 60%
Participating Interest; and
(b) the Joint Venturers intend to provide such
facilities and services as may be necessary for their operations under this
Agreement and for the accommodation and welfare of their workforce at or in
the vicinity of the land referred to in recital (a) hereof or elsewhere within
the Pilbara region.
NOW THIS AGREEMENT WITNESSETH:
Definitions 2
1. In this Agreement subject to the context
—
“advise”, “apply”,
“approve”, “approval”, “consent”,
“certify”, “direct”, “notify”,
“request”, or “require”, means advise, apply, approve,
approval, consent, certify, direct, notify, request, or require in writing as
the case may be and any inflexion or derivation of any of those words has a
corresponding meaning; “approved proposal” means any proposal
approved under this Agreement;
“associated company” means CMIEC and
Hamersley;
“Clause” means a clause of this
Agreement;
“CMIEC” means China Metallurgical
Import and Export Corporation a corporation existing under the laws of the
People’s Republic of China;
“commencement date” means the date the
Bill referred to in Clause 3 comes into operation as an Act;
“Commonwealth” means the Commonwealth
of Australia and includes the Government for the time being thereof;
“Dampier” includes East Intercourse
Island and Parker Point;
“direct shipping ore” means iron ore
which has an average pure iron content of not less than 60% which will not
pass through a 6 millimetre mesh screen and which is sold without
concentration or other beneficiation other than crushing and screening;
“fine ore” means iron ore which has an
average pure iron content of not less than 60% which will pass through a six
millimetre mesh screen and which is sold without concentration or other
beneficiation other than crushing and screening;
“fines” means iron ore (not being
direct shipping ore or fine ore) which will pass through a six millimetre mesh
screen;
“f.o.b. revenue” means the price for
iron ore the subject of any shipment or sale which is payable by the purchaser
thereof to the Joint Venturers or either of them as the case may be or, where
there is no price paid for iron ore the subject of any shipment or where the
Minister is not satisfied that a price paid for iron ore the subject of a
shipment or sale represents a fair and reasonable price therefor, such amount
as is agreed between the Joint Venturers or the relevant Joint Venturer and
the State or, failing agreement, as determined by the Minister, after
deducting all export duties and export taxes payable to the Commonwealth on
the export of the iron ore and all costs and charges reasonably and properly
incurred and payable by the Joint Venturers or the relevant Joint Venturer to
the State or a third party from the time the iron ore shall be placed on ship
at the point of loading to the time the same is delivered to the port of
discharge, including:
(1) ocean freight;
(2) marine insurance;
(3) weighing,
sampling, assaying, inspection and representation costs incurred on discharge
or delivery;
(4) shipping agency
charges; and
(5) such other costs
and charges as the Minister may in his discretion consider reasonable in
respect of any shipment or sale.
For the purposes of this definition —
(a) the
Minister may (in respect of costs or charges as set out in items (1) to (4)
inclusive of this definition) notify the Joint Venturers or either of them as
the case may require in writing that in respect of any shipment or sale he
does not regard a cost or charge as having being reasonably and properly
incurred and in such case the Joint Venturers or the relevant Joint Venturer
may refer the matter to arbitration hereunder and unless and until such matter
is resolved in favour of the Joint Venturers or the relevant Joint Venturer,
such cost or charge shall not be deemed to have been reasonably and properly
incurred;
(b)
notwithstanding anything contained in this definition to the contrary, a cost
or charge as set out in items (1) to (4) inclusive of this definition shall
not (unless the Minister so determines in accordance with the provisions of
paragraph (c) of this definition) be deemed to be reasonably and properly
incurred if such charge is directly or indirectly imposed upon or incurred by
the Joint Venturers or either of them pursuant to an arrangement entered into
between the Joint Venturers or either of them and the State:
(c)
costs or charges other than those set out in Items (1) to (4) inclusive of
this definition and costs and charges to which paragraph (b) of this
definition applies shall be deemed to be reasonably and properly incurred if
the Minister in his discretion so determines and in making his determination
the Minister shall have regard to such matters as the parties to and the bona
fide nature of the transaction resulting in the cost or charge.
“Joint Venturers’ workforce”
means the persons (and dependants of those persons) connected directly with
the Joint Venturers’ activities under this Agreement, whether or not
such persons are employed by the Joint Venturers;
“Land Act” means the Land Act 1933 ;
“local authority” means the council of
a municipality that is a city, town or shire constituted under the Local
Government Act 1960 ;
“Mining Act” means the Mining Act 1978
;
“mining lease” means the mining lease
granted pursuant to Clause 15 and according to the requirements of the context
shall describe the area of land demised as well as the instrument by which it
is demised;
“Minister” means the Minister in the
Government of the State for the time being responsible (under whatsoever
title) for the administration of the Act to ratify this Agreement and pending
the passing of that Act means the Minister for the time being designated in a
notice from the State to the Joint Venturers and includes the successors in
office of the Minister;
“Minister for Minerals and Energy”
means the Minister in the Government of the State for the time being
responsible for the administration of the Mining Act;
“month” means calendar month;
“notice” means notice in writing;
“person” or “persons”
includes bodies corporate;
“private road” means a road which is
either constructed by the Joint Venturers in accordance with approved
proposals or agreed by the State and the Joint Venturers to be a private road
for the purposes of this Agreement;
“said State” means the State of
Western Australia;
“State Energy Commission” means The
State Energy Commission of Western Australia as described in section 7 of the
State Energy Commission Act 1979;
“subclause” means subclause of the
Clause in which the term is used;
“this Agreement” “hereof”
and “hereunder” refer to this Agreement whether in its original
form or as from time to time added to varied or amended;
“tonne” means a tonne of one thousand
kilograms net dry weight;
“wharf” includes any jetty structure.
Interpretation 2
2. In this Agreement —
(a)
monetary references are references to Australian currency unless otherwise
specifically expressed;
(b)
power given under any clause other than Clause 38 to extend any period or date
shall be without prejudice to the power of the Minister under Clause 38;
(c)
marginal notes do not affect the interpretation or construction 2 ;
(d)
words in the singular shall include the plural and words in the plural shall
include the singular according to the requirements of the context;
(e)
reference to an Act includes the amendments to that Act for the time being in
force and also any Act passed in substitution therefor or in lieu thereof and
the regulations for the time being in force thereunder; and
(f) any
covenant or agreement on the part of the Joint Venturers hereunder shall be
deemed to be a joint and several covenant or agreement as the case may be.
Initial obligations of the State 2
3. The State shall —
(a)
introduce and sponsor a Bill in the Parliament of Western Australia to ratify
this Agreement and endeavour to secure its passage as an Act prior to 31
December 1987; and
(b) to
the extent reasonably necessary for the purposes of this Agreement allow the
Joint Venturers to enter upon Crown Lands (including, if applicable, land the
subject of a pastoral lease).
Ratification and operation 2
4. (1) The provisions
of this Agreement other than this Clause and Clauses 1, 2 and 3 shall not come
into operation until the Bill referred to in Clause 3 has been passed by the
Parliament of Western Australia and comes into operation as an Act.
(2) If before 31st
December 1987 the said Bill has not commenced to operate as an Act this
Agreement will, unless the parties hereto otherwise agree, then cease and
determine.
(3) On the said Bill
commencing to operate as an Act all the provisions of this Agreement shall
operate and take effect notwithstanding the provisions of any Act or law.
Initial obligations of the Joint Venturers 2
5. (1) The Joint
Venturers shall continue their field and office engineering, environmental,
market and finance studies and other matters necessary to enable them to
finalise and to submit to the Minister the detailed proposals referred to in
Clause 7 and their proposed marketing arrangements pursuant to Clause 6.
(2) The Joint
Venturers shall keep the State fully informed in writing quarterly as to the
progress and results of their operations under subclause (1). The first
quarterly report shall be lodged during the month of April 1988 and shall be
in respect of the quarter ending on the last day of March 1988 and thereafter
the quarterly reports shall be in respect of the quarter ending on the last
day of the month preceding the month in which they are lodged.
(3) The Joint
Venturers shall cooperate with the State and consult with the representatives
or officers of the State regarding matters referred to in subclause (1) and
any other relevant studies in relation to that subclause that the Minister may
wish to undertake.
Marketing arrangements 2
6. Prior to or at the time of the submission of
the proposals required pursuant to subclause (1) of Clause 7 the Joint
Venturers shall furnish to the State’s satisfaction evidence that
contracts are in place for the sale or supply by the Joint Venturers severally
of iron ore from the land referred to in recital (a) hereof to the
People’s Republic of China together with details of the tonneages
involved and the duration of the respective contracts and of the proposed
marketing arrangements (including the provision of marketing services)
relative thereto and such other details as the Minister may require.
Joint Venturers to submit proposals 2
7. (1) The Joint
Venturers shall on or before 30th June 1988 (or by such extended date 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 (including plans where practicable and
specifications where reasonably required by the Minister) with respect to the
mining of iron ore from the land referred to in recital (a) hereof and the
transport and shipment of iron ore mined which proposals shall make provision
for the necessary workforce and associated population required to enable the
Joint Venturers to mine and recover iron ore from the land referred to in
recital (a) hereof.
Use of existing infrastructure 2
(2) The said proposals
may, with the approval of the Minister and Hamersley, or any third parties
concerned, as the case may be, provide for the use by the Joint Venturers upon
reasonable terms and conditions of any existing works installations facilities
equipment and services belonging to Hamersley, wherever possible, or to any
third party instead of providing for the construction of new facilities.
(3) The said proposals
shall include the location, area, layout, design, quantities, materials and
time programme for the commencement and completion of construction or the
provision (as the case may be) of each of the following matters, namely
—
(a) the
mining and recovery of iron ore including mining crushing screening handling
transport and storage of iron ore and plant facilities;
(b)
roads;
(c)
housing and accommodation for the Joint Venturers’ workforce including
the provision of utilities, services and associated facilities;
(d)
water supply;
(e)
power supply;
(f) any
other works, services or facilities desired by the Joint Venturers;
(g) 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;
(h) any
leases licences or other tenures of land required from the State; and
(i)
an environmental management programme as to measures to
be taken, in respect of the Joint Venturers’ activities under this
Agreement, for the protection and management of the environment.
Order of proposals 2
(4) The proposals
pursuant to subclause (3) may with the approval of the Minister or if so
required by him be submitted separately and in any order as to the matter or
matters mentioned in one or more of paragraphs (a) to (i) of subclause (3).
(5) At the time when
the Joint Venturers submit the said proposals they shall —
(a)
submit to the Minister —
Work outside Australia 2
(i)
details of those elements of the project engineering
design and management, equipment procurement and installation, materials,
fabrication, services and construction that they propose to consider obtaining
from or having carried out or permitting to be obtained from or carried out
outside Australia other than work concerning internal organisational
activities and services to be commissioned by CMIEC in the People’s
Republic of China together with their reasons therefor and shall, if required
by the Minister, consult with the Minister with respect thereto;
Iron ore reserves 2
(ii)
a summary of measured, indicated and inferred reserves of
iron ore within the land referred to in recital (a) hereof; and
(b)
furnish to the State’s satisfaction evidence of —
Financial arrangements 2
(i)
the availability of finance necessary for the fulfilment
of the operations to which the said proposals refer;
Readiness to proceed 2
(ii)
the readiness of the Joint Venturers to embark upon and
proceed to carry out the operations referred to in the said proposals.
(6) If the Joint
Venturers do not submit the said proposals by 30th June 1988 or such extended
date as aforesaid this Agreement shall on such date or such extended date as
the case may be cease and determine.
Effect of early determination 2
8. If this Agreement shall cease and determine by
virtue of the provisions of Clause 4 or subclause (6) of Clause 7 none of the
parties hereto will have any claim against the other of them with respect to
any matter or thing arising out of, done, performed or omitted to be done or
performed under this Agreement.
Consideration of proposals 2
9. (1) On receipt of
the said proposals pursuant to subclause (1) of Clause 7 the Minister shall
—
(a)
approve of the said proposals either wholly or in part without qualification
or reservation; or
(b)
defer consideration of or decision upon the same until such time as the Joint
Venturers submit a further proposal or proposals in respect of some other of
the matters mentioned in subclause (3) of Clause 7 not covered by the said
proposals; or
(c)
require as a condition precedent to the giving of his approval to the said
proposals that the Joint Venturers make such alteration thereto or comply with
such conditions in respect thereto as he (having regard to the circumstances
including the overall development of and the use by others as well as the
Joint Venturers of all or any of the facilities proposed to be provided)
thinks reasonable and in such a case the Minister shall disclose his reasons
for such conditions.
Advice of Minister’s decision 2
(2) The Minister shall
within two months after receipt of the said proposals pursuant to subclause
(1) give notice to the Joint Venturers of his decision in respect to the same.
Consultation with Minister 2
(3) If the decision of
the Minister is as mentioned in either of paragraphs (b) or (c) 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.
Minister’s decision subject to arbitration 2
(4) If the decision of
the Minister is as mentioned in either of paragraphs (b) or (c) of subclause
(1) and the Joint Venturers consider that the decision is unreasonable the
Joint Venturers within two 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.
Arbitration award 2
(5) An award made on
an arbitration pursuant to subclause (4) shall have force and effect as
follows —
(a) if
by the award the dispute is decided against the Joint Venturers then unless
the Joint Venturers within 3 months after delivery of the award give notice to
the Minister of their acceptance of the award this Agreement shall on the
expiration of that period of 3 months cease and determine; or
(b) if
by the award the dispute is decided in favour of the 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.
Effect of non-approval of proposals 2
(6) Notwithstanding
that under subclause (1) any detailed proposals of the Joint Venturers are
approved by the Minister or determined by arbitration award, unless each and
every such proposal and matter is so approved or determined by 30th June 1989
or by such extended date if any as the Joint Venturers shall be granted
pursuant to the provision of this Agreement then the Minister may give to the
Joint Venturers 12 months notice of intention to determine this Agreement and
unless before the expiration of the said 12 months period all the detailed
proposals and matters are so approved or determined this Agreement shall cease
and determine subject however to the provisions of Clause 40.
Implementation of proposals 2
(7) The Joint
Venturers shall implement the approved proposals in accordance with the terms
thereof.
Additional proposals 2
10. If the Joint Venturers at any time during the
continuance of this agreement desire to significantly modify expand or
otherwise vary their activities carried on pursuant to this Agreement beyond
those specified in any approved proposals 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 paragraphs (a) to (i) of subclause
(3) of Clause 7 as the Minister may require. The provisions of Clause 7 (other
than subclause (6)) and Clause 9 (other than subclauses (5) and (6)) shall
mutatis mutandis apply to detailed proposals submitted pursuant to this
subclause with the proviso that the Joint Venturers may withdraw such
proposals at any time before approval thereof or, where any decision of the
Minister in respect thereof is referred to arbitration, within 3 months after
the award by notice to the Minister that they shall not be proceeding with the
same. The Joint Venturers shall implement the approved proposals in accordance
with the terms thereof.
Protection and management of the environment 2
11. (1) The Joint
Venturers shall in respect of the matters referred to in paragraph (i) of
subclause (3) of Clause 7 and which are the subject of approved proposals
under this Agreement, carry out a continuous programme including monitoring
and the study of sample areas to ascertain the effectiveness of the measures
they are taking pursuant to such approved proposals for rehabilitation and the
protection and management of the environment and shall as and when reasonably
required by the Minister from time to time submit to the Minister a detailed
report thereon.
(2) Whenever as a
result of their monitoring under subclause (1) or otherwise information
becomes available to the Joint Venturers which in order to more effectively
rehabilitate, protect or manage the environment may necessitate or could
require any changes or additions to any approved proposals or require matters
not addressed in approved proposals to be addressed the Joint Venturers shall
forthwith notify the Minister thereof and with such notification shall submit
a detailed report thereon.
(3) The Minister may
within 2 months of the receipt of a detailed report pursuant to subclauses (1)
or (2) notify the Joint Venturers that he requires additional detailed
proposals to be submitted in respect of all or any of the matters the subject
of the report and such other matters as the Minister may require.
(4) The Joint
Venturers shall within 2 months of the receipt of a notice given pursuant to
subclause (3) submit to the Minister additional detailed proposals as required
and the provisions of Clause 7 (other than subclause (6)) and Clause 9 (other
than subclauses (5) and (6)) where applicable shall mutatis mutandis apply in
respect of such proposals.
(5) The Joint
Venturers shall implement the decision of the Minister or an award made on
arbitration as the case may be in accordance with the terms thereof.
Use of local labour services and materials 2
12. (1) The Joint
Venturers shall, for the purposes of this Agreement —
(a)
except in those cases where the Joint Venturers can demonstrate it is
impracticable so to do, use labour available within the said State:
(b) as
far as it is reasonable and economically practicable so to do use the services
of engineers surveyors architects and other professional consultants, project
managers manufacturers suppliers and contractors resident and available within
the said State;
(c) when
preparing specifications calling for tenders and letting contracts for works
materials plant equipment and supplies ensure that suitably qualified Western
Australian suppliers manufacturers and contractors are given fair and
reasonable opportunity to tender or quote; and
(d) give
proper consideration and where possible preference to Western Australian
manufacturers suppliers and contractors when letting contracts or placing
orders for works materials plant equipment and supplies where performance
price quality delivery and service are equal to or better than that obtainable
elsewhere.
(2) Except as
otherwise agreed by the Minister the Joint Venturers shall in every contract
entered into with a third party for the supply of services labour works
materials plant equipment and supplies for the purposes of this Agreement
require as a condition thereof that such third party shall undertake the same
obligations as are referred to in subclause (1) and shall report to the Joint
Venturers concerning such third party’s implementation of that
condition.
(3) The Joint
Venturers shall submit a report to the Minister at quarterly intervals
commencing from the date of this Agreement or such longer periods as the
Minister may from time to time determine concerning their implementation of
the provisions of this Clause and the performance of third parties in relation
thereto pursuant to subclause (2) together with a copy of any report received
by the Joint Venturers pursuant to that subclause during that quarter.
Roads — Private roads 2
13. (1) The Joint
Venturers shall —
(a) be
responsible for the cost of the construction and maintenance of all private
roads which shall be used in their operations hereunder;
(b)
ensure that all private roads (other than any such roads specified in approved
proposals as not for use by the public) are constructed and maintained in
accordance with the requirements from time to time of the Commissioner of Main
Roads; and
(c) at
any place where such private roads cross any roads or railways used by the
public provide at their cost such reasonable protection as may be required by
the Railways Commission or the Commissioner of Main Roads as the case may be.
Maintenance of public roads 2
(2) The State shall
maintain or cause to be maintained those public roads under the control of the
Commissioner of Main Roads or a local authority which may be used by the Joint
Venturers to a standard similar to comparable public roads maintained by the
Commissioner of Main Roads or a local authority as the case may be.
Upgrading of public roads 2
(3) In the event that
for or in connection with the Joint Venturers’ operations hereunder the
Joint Venturers or any person engaged by the Joint Venturers uses or wishes to
use a public road referred to in subclause (2) which is inadequate for the
purpose, or any use by the Joint Venturers or any person engaged by the Joint
Venturers of any such public road results in excessive damage thereto or
deterioration thereof (other than fair wear and tear) the Joint Venturers
shall pay to the State the whole or an equitable part of the total cost of any
upgrading required or of making good the damage or deterioration as may be
reasonably required by the Commissioner of Main Roads having regard to the use
of such public road by others.
Liability 2
(4) The State and the
Joint Venturers further covenant and agree with each other that —
(a)
for the purposes of determining whether and if so
the extent to which —
(i)
the Joint Venturers are liable to any person or body
corporate (other than the State); or
(ii)
an action is maintainable by any such person or body
corporate
in respect of the death or injury of any person or damage to any
property arising out of the use of any of the such roads for the maintenance
of which the Joint Venturers are responsible hereunder and for no other
purpose the Joint Venturers shall be deemed to be a municipality and the said
roads shall be deemed to be streets under the care control and management of
the Joint Ventures; and
(b)
for the purposes of this Clause the terms
“municipality” “street” and “care control and
management” shall have the meaning which they respectively have in the
Local Government Act 1960 .
Airport 2
14. In the event that any upgrading of the
existing airport facilities and services at Paraburdoo are necessary for the
Joint Venturers’ operations hereunder, the Joint Venturers shall confer
with Hamersley and/or the Shire of West Pilbara as the case may require with a
view to reaching agreement on that upgrading.
Mining lease 2
15. (1)
Notwithstanding the provisions of the Mining Act the State shall, on
application made by the Joint Venturers not later than 3 months after all
their proposals submitted pursuant to subclause (1) of Clause 7 have been
approved or determined and the Joint Venturers have complied with the
provisions of Clause 6 and subclause (5) of Clause 7 for a mining lease of the
land referred to in recital (a) hereof for the mining of iron ore but subject
to the surrender to the State by the holder of Mineral Lease 252SA of so much
of the land within that Mineral Lease as is within the land referred to in
recital (a) hereof and subject also to the surrender to the State by Hamersley
of so much of the land within Mineral Lease 4SA as is within the land referred
to in recital (a) hereof, cause to be granted to the Joint Venturers at a
rental of 86.5 cents per hectare per annum (payable in advance) a mining lease
of such land (notwithstanding that the survey in respect thereof has not been
completed but subject to such corrections to accord with the survey when
completed at the Joint Venturers’ expense) for the mining of iron ore
only such mining lease to be granted under and, except as otherwise provided
in this Agreement, subject to the Mining Act but in the form of the Schedule
hereto.
Term 2
(2) Subject to the
performance by the Joint Venturers of their obligations under this Agreement
and the Mining Act and notwithstanding any provisions of the Mining Act to the
contrary the term of the mining lease shall be for a period of 30 years
commencing from the date of approval of the proposals made pursuant to Clause
7. The provisions of section 78 of the Mining Act shall not apply to the
mining lease.
Exemption from expenditure conditions 2
(3) The State shall
ensure that during the currency of this Agreement and subject to compliance
with their obligations hereunder the Joint Venturers shall not be required to
comply with the expenditure conditions imposed by or under the Mining Act in
regard to the mining lease.
Access over mining lease 2
(4) The Joint
Venturers shall at all times permit the State and third parties with the
consent of the State (with or without stock vehicles and rolling stock) to
have access to and to pass over the mining lease (by separate route, road or
railway) so long as that access and passage does not unduly prejudice or
interfere with the operations of the Joint Venturers under this Agreement.
Surrender of part of mining lease 2
(5) Notwithstanding
the provisions of this Clause and the Mining Act the Joint Venturers may from
time to time (with abatement of future rent in respect to the area surrendered
but without any abatement of rent already paid or any rent which has become
due and has been paid in advance) subject to them first obtaining the consent
of Hamersley thereto surrender to the State all or any portion or portions of
the mining lease.
Other mining tenements 2
(6) Notwithstanding
anything contained or implied in the Mining Act, this Agreement, the mining
lease or any agreement entered into pursuant to subclause (7) the State may
grant to or register in favour of persons other than the Joint Venturers
leases and other mining tenements in respect of the area (or any part or parts
thereof) subject to the mining lease for minerals other than iron ore unless
the Minister for Minerals and Energy reasonably determines that such grant or
registration is likely unduly to prejudice or interfere with the operations of
the Joint Venturers hereunder or, having regard to any relevant provisions of
the agreement referred to in paragraph (b) subclause (3) of Clause 40, any
likely future mining by Hamersley assuming the taking by the Joint Venturers
or Hamersley as the case may be of reasonable steps to avoid the prejudice or
interference. The Minister before making any determination under this
subclause shall consult with the Joint Venturers and Hamersley as the case may
require in respect thereto. Upon the grant of any such lease or other mining
tenement the land contained therein shall be deemed to be automatically
excised from the mining lease (with abatement of future rent in respect to the
area excised but without any abatement of rent already paid or any rent which
has become due and has been paid in advance).
Mining by Hamersley 2
(7) (a)
During the term of the mining lease the Joint
Venturers may enter into agreements with Hamersley for the mining by Hamersley
or the supply to Hamersley by the Joint Venturers of iron ore from the mining
lease PROVIDED THAT royalty on any iron ore produced by such mining or so
supplied shall be computed and payable as if such iron ore were produced under
a mineral lease granted pursuant to the agreement (as amended from time to
time) ratified by the Iron Ore (Hamersley Range) Agreement Act 1963 .
(b)
The Joint Venturers shall forthwith after entering
into any agreement of the kind referred to in paragraph (a) of this subclause
notify the Minister thereof and provide to the Minister full details of such
agreement and, if required by the Minister, a copy thereof.
Stone, sand, clay and gravel 2
(8) The Joint
Venturers in accordance with approved proposals may for the construction of
works (and the maintenance thereof) for the purposes of this Agreement and
without payment of royalty, obtain stone sand clay or gravel from the mining
lease.
Power 2
16. (1) Subject to
subclause (2), the Joint Venturers shall obtain their power requirements for
their operations on the mining lease (other than operations connected with the
constructional phase of the mine), the housing of the Joint Venturers’
workforce and the Joint Venturers’ other activities in Paraburdoo,
Dampier or elsewhere in the Pilbara region from Hamersley on conditions to be
agreed between the Joint Venturers and Hamersley.
(2) Where or to the
extent to which from time to time power for any of the purposes referred to in
subclause (1) is or becomes available from the State Energy Commission the
Joint Venturers shall enter into negotiations with the State Energy Commission
with a view to obtaining their power requirements for such purpose or purposes
from the State Energy Commission on terms and conditions to be agreed.
Water-mining lease 2
17. (1) The State and
the Joint Venturers shall agree upon the amounts (and qualities thereof) of
the Joint Venturers’ annual and maximum daily water requirements for
their purposes hereunder at the mining lease (which amounts or such other
amounts as shall from time to time be agreed between the parties to be
reasonable are hereinafter called “the mining water
requirements”).
(2) The Joint
Venturers shall confer with Hamersley with a view to entering into an
agreement (in a form acceptable to the Minister) for the supply by Hamersley
to the Joint Venturers of the mining water requirements. If the Joint
Venturers do not enter into an agreement with Hamersley pursuant to this
subclause the provisions of subclauses (3) to (16) shall apply to the supply
of the mining water requirements.
Search in mining lease 2
(3) The Joint
Venturers shall at their cost and in collaboration with the State search for
underground water within the mining lease. Where appropriate the Joint
Venturers shall employ and retain experienced groundwater consultants. The
Joint Venturers shall furnish to the Minister details of the results of their
investigations and copies of the reports of such consultants as they become
available.
Search outside mining lease 2
(4) If in the opinion
of the Minister, the details and reports of the consultants pursuant to
subclause (3) indicate that any source of underground water in the mining
lease is likely to be inadequate or unsuitable to supply the mining water
requirements the State and the Joint Venturers shall (having due regard to the
then present or likely future requirements of third parties for water)
collaborate and agree on a programme which shall be carried out by the State
at the cost of the Joint Venturers to search for water inside and outside the
mining lease.
Grant of licence 2
(5) If the
investigations referred to in subclauses (3) and (4) prove to the satisfaction
of the Minister the availability of any suitable underground water source in
or near the mining lease which can continue to be drawn on by the Joint
Venturers without seriously affecting the water level in that water source
beneath the mining lease or adjacent areas or the availability of water in the
adjacent areas the State shall grant to the Joint Venturers a licence to
develop and draw from that source at the Joint Venturers’ cost but
without fee, the mining water requirements on such terms and conditions as are
necessary to ensure good water resource management as the Minister may from
time to time require and during the continuance of this Agreement grant
renewals of any such licence PROVIDED HOWEVER that should that source in the
opinion of the Minister prove hydrologically inadequate to meet the mining
water requirements, the State may on at least 6 months prior notice to the
Joint Venturers (or on at least 48 hours prior notice if in the opinion of the
Minister an emergency situation exists) limit the amount of water which may be
taken from that source at any one time or from time to time to the maximum
which that source is hydrologically capable of meeting as aforesaid.
Investigation of surface water 2
(6) In the event of
water supplies from available underground sources proving insufficient to meet
the mining water requirements the Joint Venturers shall notwithstanding the
provisions of subclause (5) collaborate with the State in an investigation of
surface water, water catchments and storage dams. The Joint Venturers shall if
they propose to utilise such surface water, water catchments and storage dams
pay to the State a sum or sums to be agreed towards the cost of such
investigation.
Alternative water source 2
(7) Should the State
at any time pursuant to the proviso to subclause (5) limit the amount of water
to be taken from any underground water source or if otherwise the mining water
requirements cannot be met from any water source on a continuous basis the
State shall with all reasonable expedition and in conjunction with and upon
the request of the Joint Venturers search for new or additional water sources
with a view to restoring or ensuring the full quantity of the mining water
requirements. The Joint Venturers shall pay to the State a fair and reasonable
proportion of the cost of investigating and developing such new and additional
water sources as agreed between the Joint Venturers and the State.
Development of water sources 2
(8) The Joint
Venturers shall provide at their cost or with finance arranged by them and
construct to standards and in accordance with designs approved by the State
and operate and maintain in accordance with the relevant approved proposals
all necessary dams, bores, valves, pipelines, meters, tanks, equipment and
appurtenances necessary to draw transport use and dispose of water obtained by
the Joint Venturers pursuant to this Clause.
State’s acquisition of water facilities 2
(9) If during the
currency of this Agreement the Minister is of the opinion that it would be
desirable for water conservation purposes or water management purposes that
sources of water utilised by the Joint Venturers be controlled and operated by
the State as part of a regional water supply scheme, the Minister may, on
giving 6 months prior notice to the Joint Venturers of his intention to do so,
acquire the Joint Venturers’ water supply facilities for a monetary
consideration to be determined by the Minister. Immediately thereafter the
State shall, subject only to the continued hydrological availability of water
from such sources (as determined by the Minister) commence and thereafter
continue to supply water of the relevant qualities up to the amount and at the
rates required by the Joint Venturers being the amounts and rates to which the
Joint Venturers were previously entitled and the proviso to subclause (5) and
the provisions of subclause (6) shall in like manner apply to this subclause.
Enlarged water capacity 2
(10) The State, after
first having due regard to the mining water requirements and to the
hydrological adequacy of existing water sources, may in its discretion develop
all or any of the surface and/or the underground water resources referred to
in this Clause or construct any works in connection therewith to a greater
capacity than that required to supply the mining water requirements but in
that event the Joint Venturers shall pay to the State a share of the cost of
the system as so enlarged as may be agreed between the State and the Join
Venturers to be fair in all the circumstances.
Third party use 2
(11) The State may
after first having due regard to the mining water requirements and to the
hydrological adequacy of the applicable water source, upon not less than 3
months prior notice to the Joint Venturers specifying the identity of the
third party including where applicable the State and the estimated maximum
daily and total quantity of water to be drawn by that third party and the
period over which such drawing is to occur, grant to a third party rights to
draw water or itself draw water from that source PROVIDED HOWEVER that —
(a)
where the Joint Venturers have paid (in whole or in part) any moneys in
respect of the investigation development and utilization of that water source
the State shall require as a condition of the grant that where the third party
is or will be a substantial drawer of water from that water source within 5
years of the commencement date the third party (but not the State) shall
reimburse to the Joint Venturers prior to the third party exercising its
rights to draw water, such proportion of those moneys as the Minister
determines is fair and reasonable; and
(b)
where the Joint Venturers draw water from that water source the State shall
ensure that it is a condition of the grant to third parties that in the event
that the capacity of that water source is reduced, such reduction shall be
first applied to the third parties and thereafter if further reduction is
necessary the State’s and the Joint Venturers’ requirements shall
be reduced in such proportion as may be agreed.
Payment for water 2
(12) The Joint
Venturers shall pay to the State for water supplied by the State pursuant to
subclauses (6) and (9) a fair price to be agreed between the parties hereto
having regard to the actual cost to the State of establishing operating and
maintaining the supply and provision for replacement of the water supply
facilities.
Design of plant 2
(13) The Joint
Venturers shall to the extent that it is practical and economical design
construct and operate all plant required under this Clause so as to ensure the
most efficient use of the available water resources including if required by
the Minister the use of brackish or saline water.
State to restrict adverse grants 2
(14) The State shall
ensure that no rights to mine minerals petroleum or other substances are
granted over the area of any water source from which the Joint Venturers are
drawing water or from time to time have the right to draw water hereunder
unless the Minister reasonably determines that such grant is not likely to
unduly prejudice or to interfere with the operations of the Joint Venturers
hereunder and is not likely to render the water source incapable of supplying
the mining water requirements on a continuous basis.
Charges for supply of water to third parties 2
(15) The Joint
Venturers may supply water to third parties including the State at a charge to
be approved by the Minister after consultation with the Joint Venturers. The
Joint Venturers shall have all the powers and authorities with respect to such
water as are determined by the Minister which may include all or any of the
powers of a water board under the Water Boards Act 1904 and, with the consent
of the Minister for Local Government, a local authority.
Rights in Water and Irrigation Act 2
(16) Any reference in
the foregoing provisions of this Clause to a licence is a reference to a
licence under the Rights in Water and Irrigation Act 1914 and the provisions
of that Act relating to water rights and licences shall except where
inconsistent with the provisions of this Agreement apply to any water source
developed for the Joint Venturers’ purposes under this Agreement.
Water — Housing and other purposes 2
18. (1) The supply of
water for the Joint Venturers’ operations hereunder (other than at the
mining lease) and for the Joint Venturers’ workforce shall where the
same is available from the State or a State instrumentality be subject to the
provisions of the Country Areas Water Supply Act 1947 or other relevant Act.
(2) Where or to the
extent to which water for any of the purposes referred to in subclause (1) is
not available from the State or a State instrumentality the Joint Venturers
shall obtain their water requirements for such purposes from Hamersley on
conditions to be agreed between the Joint Venturers and Hamersley.
Township and housing 2
19. (1) The Joint
Venturers shall be responsible for the provision at no cost to the State in
Paraburdoo of suitable accommodation for their employees and the dependants of
their employees and, as necessary, for other persons (and dependants of those
persons) connected directly with the Joint Venturers’ activities under
this Agreement.
(2) The Joint
Venturers shall except as otherwise agreed by the Minister pay to the State or
the appropriate authority (including Hamersley where it is acting as a supply
authority) the capital cost of establishing and providing additional services
and facilities and associated equipment including sewerage and water supply
schemes, main drains, education, police and hospital services in Paraburdoo to
the extent to which those additional works and services are made necessary by
reason of the Joint Venturers’ workforce residing therein or by reason
of the Joint Venturers’ activities under this Agreement or such
proportion of any such cost as may be agreed by the Minister taking into
account the permanent or temporary nature of the services or facilities. The
additional services, works and associated equipment referred to in this
subclause shall be provided by the State (or the State shall cause the same to
be provided) to a standard normally adopted by the State in providing new
services works and associated equipment in similar cases in comparable towns.
(3) The Joint
Venturers shall confer with the Minister and the relevant local authority with
a view to assisting in the cost of providing appropriate community recreation,
civic, social and commercial amenities required for the Joint Venturers’
workforce hereunder.
(4) The State shall,
in accordance with the Joint Venturers’ approved proposals cause to be
made available lots of land in Paraburdoo for purchase by the Joint Venturers
at prices to be fixed by the State (having regard to the price of similar lots
then being made available by the State to others) which will include the cost
to the State of developing and servicing such land including the provision of
roads and adjacent local headworks in respect of water and sewerage.
Lands 2
20. The State shall in accordance with the Joint
Venturers’ approved proposals grant to the Joint Venturers, or arrange
to have the appropriate authority or other interested instrumentality of the
State grant, for such periods (not exceeding the term of the mining lease) and
on such terms and conditions (including rental and renewal rights) as shall be
reasonable having regard to the requirements of the Joint Venturers, leases
and where applicable licences easements and rights of way for all or any of
the purposes of the Joint Venturers’ operations hereunder including any
of the following namely —
private roads, water pipelines, pumping
installations and reservoirs, airstrip, railways, conveyors, power
transmission lines, plant site areas and industrial areas and borrow pits for
stone sand clay and gravel.
Modification of Land Act 2
21. For the purpose of this Agreement in respect
of any land sold or leased to the Joint Venturers by the State the Land Act
shall be deemed to be modified by —
(a) the
substitution for subsection (2) of section 45A of the following subsection
—
“(2) Upon the
Governor signifying approval pursuant to subsection (1) of this section in
respect of any such land the same may subject to this section be sold or
leased.”;
(b) the
deletion of the provisio to section 116;
(c) the
deletion of section 135;
(d) the
deletion of section 143;
(e) the
inclusion of a power to grant occupancy rights over land on such terms and
conditions as the Minister responsible for the administration of the Land Act
may determine; and
(f) the
inclusion of a power to offer for sale or grant leases or licences for terms
or periods and on such terms and conditions (including renewal rights) and in
forms consistent with the provisions of this Agreement in lieu of the terms or
periods, the terms and conditions and the forms referred to in the Land Act .
The provisions of this Clause shall not operate so
as to prejudice the rights of the State to determine any lease licence or
other right or title in accordance with the other provisions of this
Agreement.
Additional rental 2
22. Commencing on and from 10 March 1992 the Joint
Venturers shall pay to the State during the currency of this Agreement in
addition to the rentals payable in respect of leases granted under or pursuant
to this Agreement a rental (which if the Joint Venturers so request shall be
allocated in respect of such one or more of the leases granted to the Joint
Venturers hereunder and remaining current) equal to 24.605 2 cents per tonne
on all iron ore in respect of which royalty is payable under Clause 23 such
additional rental to be paid —
(a) in
respect of the period from and including 10 March 1992 to 31 March 1992, not
later than 14 May 1992; and
(b) in
respect of each successive period of three months after 31 March 1992, not
later than one month and fourteen days after the expiration of each such
period.
SO NEVERTHELESS that the additional rental to be
paid under this Clause shall be not less than $300 000 in respect of the year
commencing 1 April 1992 and each year commencing 1 April thereafter and the
Joint Venturers will within three (3) months after expiration of each such
year pay to the State as further rental the difference between $300 000 and
the additional rental actually paid in respect of that year but any amount so
paid in respect of any such year in excess of the rental payable for that year
at the rate of 24.605 2 cents per tonne as aforesaid shall be offset by the
Joint Venturers against any amount payable by them to the State above the
minimum amounts payable to the State under this paragraph in respect of the
two (2) years immediately following the year in respect of which the said
minimum sum was paid.
Royalties 2
23. (1) The Joint
Venturers shall during the continuance of this Agreement pay to the State
royalty on all iron ore from the mining lease (other than iron ore shipped
solely for testing purposes and iron ore on which royalty is paid by Hamersley
pursuant to the proviso to paragraph (a) of subclause (7) of Clause 15) and on
all other iron ore supplied to or sold or shipped by the Joint Venturers
during the continuance of this Agreement as follows —
(a) on
direct shipping ore and on fine ore and fines where such fine ore or fines are
not sold or shipped separately as such at the rate of 7.5% of the f.o.b.
revenue (computed at the rate of exchange prevailing on date of receipt by the
Joint Venturers of the purchase price in respect of ore shipped or sold
hereunder) PROVIDED NEVERTHELESS that such royalty shall not be less than
59.052 4 cents per tonne (subject to paragraph (f) of this subclause) in
respect of ore the subject of any shipment or sale;
(b) on
fine ore sold or shipped separately as such at the rate of 3.75% of the f.o.b.
revenue (computed as aforesaid) PROVIDED NEVERTHELESS that such royalty shall
not be less than 29.526 2 cents per tonne (subject to paragraph (g) of this
subclause) in respect of ore the subject of any shipment or sale;
(c) on
fines sold or shipped separately as such at the rate of 14.763 1 cents per
tonne (subject to the provisions of paragraph (h) of this subclause);
(d) on
all other iron ore shipped at the rate of 7.5% of the f.o.b. revenue (computed
as aforesaid) without any minimum royalty;
(e) on
all other iron ore at a rate per tonne equal to 7.5% of the average f.o.b.
revenue per tonne in respect of ore to which paragraph (a) of this subclause
relates for the immediately preceding quarter or, if no such average f.o.b.
revenue can be ascertained, 7.5% of such amount as the Joint Venturers and the
State agree or, failing agreement, as is determined by the Minister;
(f) if
the amount ascertained by multiplying the total tonneage of direct shipping
ore shipped or sold (and liable to royalty under paragraph (a) of this
subclause) in any financial year by 59.052 4 cents is less than the total
royalty which would be payable in respect of that ore but for the operation of
the proviso to that paragraph then that proviso shall not apply in respect of
direct shipping ore shipped or sold in that year and at the expiration of that
year any necessary adjustments shall be made accordingly;
(g) if
the amount ascertained by multiplying the total tonneage of fine ore shipped
or sold separately as such (and liable to royalty under paragraph (b) of this
subclause) in any financial year by 29.526 2 cents is less than the total
royalty which would be payable in respect of that ore but for the operation of
the proviso to that paragraph then that proviso shall not apply in respect of
fine ore shipped or sold separately as such in that year and at the expiration
of that year any necessary adjustments shall be made accordingly;
(h) the
royalty at the rate of 14.763 1 cents per tonne referred to in paragraph (c)
of this subclause shall be adjusted up or down (as the case may be) as at the
first day of January 1969 and as at the beginning of every fifth year
thereafter proportionately to the weighted average of sales (invoice prices)
of foundry pig iron sold in Adelaide by The Broken Hill Proprietary Company
Limited or any subsidiary thereof from time to time during the calendar year
immediately preceding the date at which the adjustment is required to be made
as compared with $44.33 PROVIDED THAT where information required to determine
any price or other amount for the purposes of this paragraph is not available
such price or other amount shall be agreed between the Joint Venturers and the
State or, failing agreement, determined by the Minister.
Payment of royalties 2
(2) The Joint
Venturers shall within 14 days after the quarter days the last days of March
June September and December in each year furnish to the Minister for Minerals
and Energy a return showing the quantity of all iron ore mined from the mining
lease (whether mined by the Joint Venturers or by any other party) together
with details of the iron content thereof and the anticipated or actual use of
the ore (and the user or users thereof) and the anticipated or actual
categorisation thereof for royalty purposes and the specific tonnages involved
and details (including quantity category and grade) of all iron ore the
subject of royalty hereunder during the quarter immediately preceding the due
date of the return and shall not later than two months after such due date pay
to the Minister for Minerals and Energy the royalty payable in respect of all
iron ore the subject of royalty hereunder PROVIDED THAT in respect of iron ore
shipped or sold the Joint Venturers all pay to the Minister for Minerals and
Energy on account of the royalty payable hereunder a sum calculated on the
basis of invoices or provisional invoices (as the case may be) rendered by the
Joint Venturers to the purchaser or consignee (which invoices the Joint
Venturers shall render without delay simultaneously furnishing copies thereof
to the Minister for Minerals and Energy) of such iron ore and shall from time
to time in the next following appropriate return and payment make (by the
return and by cash) all such necessary adjustments (and give to the Minister
for Minerals and Energy full details thereof) when the f.o.b. revenue realised
in respect of the shipments shall have been ascertained.
Inspection 2
(3) The Joint
Venturers shall permit the Minister for Minerals and Energy or his nominee to
inspect at all reasonable times the books of account and records of the Joint
Venturers relative to any supply shipment or sale of iron ore hereunder
(including iron ore mined by or supplied to Hamersley) and including sale
contracts and to take copies or extracts therefrom and for the purposes of
determining the f.o.b. revenue payable in respect of any shipment of ore
hereunder the Joint Venturers will take reasonable steps to satisfy the State
either by certificate of a competent independent party acceptable to the State
or otherwise to the reasonable satisfaction of the Minister for Minerals and
Energy as to all relevant matters including weights and analyses and will give
due regard to any objection or representation made by the Minister for
Minerals and Energy or his nominee as to any matter and/or any particular
weight or assay of ore which may affect the amount of royalty payable
hereunder.
Lodgement of returns 2
(4) Returns pursuant
to this Clause may, with the prior consent of the Minister, be lodged by the
Joint Venturers individually.
Export to places outside the Commonwealth 2
24. The Joint Venturers shall ensure that unless
with the prior written approval of the Minister to do otherwise all iron ore
from the mining lease shipped by the Joint Venturers pursuant to this
Agreement will be off-loaded at a place outside the Commonwealth and if they
fail so to ensure the Joint Venturers will subject to the provisions of this
Clause be in default hereunder. Where any such shipment is off-loaded within
the Commonwealth without such prior written approval the Joint Venturers shall
forthwith on becoming aware thereof give to the State notice of the fact and
pay to the State in respect of the iron ore the subject of the shipment such
further and additional rental calculated at a rate not exceeding 98.420 7
cents per tonne of the iron ore as the Minister shall demand without prejudice
however to any other rights and remedies of the State hereunder arising from
the breach by the Joint Venturers of the provisions hereof. If iron ore is
shipped in a vessel not owned by the Joint Venturers or an associated company
or any other company in which the Joint Venturers have a controlling interest
and such ore is off-loaded in the Commonwealth the Joint Venturers will not be
or be deemed to be in default hereunder if they take appropriate action to
prevent a recurrence of such an off-loading PROVIDED FURTHER that the
foregoing provisions of this paragraph shall not apply in any case (including
any unforeseeable diversion of the vessel for necessary repairs or arising
from force majeure or otherwise) where the Joint Venturers could not
reasonably have been expected to take steps to prevent that particular
off-loading.
25. Throughout the continuance of this Agreement
the Joint Venturers shall —
Operation of conveyors 2
(a)
operate any conveyor constructed by them in a safe and proper manner;
Operation of any railway 2
(b) in
the event that the Joint Venturers construct any railway, operate that railway
in a safe and proper manner and where and to the extent that they can do so
without unduly prejudicing or interfering with their operations hereunder
allow crossing places for roads stock and other railways and also transport
the passengers and carry the freight of the State and of third parties on the
railway subject to and in accordance with by-laws (which shall include
provision for reasonable charges) from time to time to be made altered and
repealed as provided in Clause 28 and subject thereto or if no such by-laws
are made or in force then upon reasonable terms and at reasonable charges
(having regard to the cost of the railway to the Joint Venturers) PROVIDED
THAT in relation to their use of the railway the Joint Venturers shall not be
deemed to be a common carrier at common law or otherwise;
Maintenance 2
(c) at
all times keep and maintain in good repair and working order and condition and
where necessary replace all such works installations plant machinery and
equipment and any railway, roads (other than the public roads referred to in
subclause (2) of Clause 13) and water and power supplies for the time being
the subject of this Agreement;
Price for ore 2
(d) use
their best endeavours to obtain for all iron ore mined from the mining lease
the best price possible having regard to the specific market and the market
conditions from time to time prevailing and will not sell any direct shipping
ore as fine ore or fines.
Joint Venturers’ wharf and facilities 2
26. The Joint Venturers and the State recognise
with respect to any wharf, port facilities and services proposed to be
established for the purposes of this Agreement that it may be advantageous for
the State to provide all or any of such works or services and in such case the
Joint Venturers and the State shall together with other users and potential
users of that wharf and/or those facilities or services confer as to the
manner in and the conditions upon which the State should provide such works
facilities or services to the mutual advantage of all. The Joint Venturers
shall pay to the State a sum or sums to be agreed (not exceeding the amount
that would have been payable had the Joint Venturers carried out the said
works) towards the cost of the said works facilities or services provided by
the State.
Use of wharf and facilities 2
27. The Joint Venturers shall subject to and in
accordance with by-laws (which shall include provision for reasonable charges)
from time to time to be made and altered as provided in Clause 28 and subject
thereto, or if no such by-laws are made or in force then upon reasonable terms
and at reasonable charges (having regard to the cost thereof to the Joint
Venturers) allow the State and third parties to use any wharf and port
installations wharf machinery and equipment and wharf and port services and
port facilities constructed or provided by them PROVIDED THAT such use shall
not unduly prejudice or interfere with the Joint Venturers’ operations
hereunder and that such use shall be subject to the prior approval of the
Joint Venturers.
By-laws 2
28. The Governor in Executive Council may upon
recommendation by the Joint Venturers make alter and repeal by-laws for the
purpose of enabling the Joint Venturers to fulfil the obligations under
paragraph (b) of Clause 25 and under Clause 27 upon terms and subject to
conditions (including terms and conditions as to user charging and limitation
of the liability of the Joint Venturers) as set out in such by-laws consistent
with the provisions hereof. Should the State at any time consider that any
by-law made hereunder has as a result of altered circumstances become
unreasonable or inapplicable then the Joint Venturers shall recommend such
alteration or repeal thereof as the State may reasonably require or (in the
event of there being any dispute as to the reasonableness of such requirement)
then as may be decided by arbitration hereunder.
Alteration of works 2
29. If at any time the State finds it necessary to
request the Joint Venturers to alter the situation of any of the installations
or other works erected constructed or provided hereunder and gives to the
Joint Venturers notice of the request the Joint Venturers shall within a
reasonable time after receipt of the notice but at the expense in all things
(including increased running costs) of the State (unless the alteration is
rendered necessary by reason of a breach by the Joint Venturers of any of
their obligations hereunder) alter the situation thereof accordingly.
Zoning 2
30. The State shall ensure after consultation with
the relevant local authority that the mining lease and any lands the subject
of any Crown Grant lease licence or easement granted to the Joint Venturers
under this Agreement shall be and remain zoned for use or otherwise protected
during the currency of this Agreement so that the operations of the Joint
Venturers hereunder may be undertaken and carried out thereon without any
interference or interruption by the State or by any State agency or
instrumentality or by any local or other authority of the State on the ground
that such operations are contrary to any zoning by-law regulation or order.
Rating 2
31. The State shall ensure that notwithstanding
the provisions of any Act or anything done or purported to be done under any
Act the valuation of all lands (whether of a freehold or leasehold nature) the
subject of this Agreement (except as to any part upon which a permanent
residence shall be erected or which is occupied in connection with that
residence and except as to any part upon which there stands any improvements
that are used in connection with a commercial undertaking not directly related
to the mining of iron ore) shall for rating purposes under the Local
Government Act 1960 , be deemed to be on the unimproved value thereof and no
such lands shall be subject to any discriminatory rate PROVIDED THAT nothing
in this clause shall prevent the Joint Venturers making the election provided
for by section 533B of the Local Government Act 1960 .
No discriminatory rates 2
32. Except as provided in this Agreement the State
shall not impose, nor shall it permit or authorise any of its agencies or
instrumentalities or any local or other authority of the State to impose
discriminatory taxes rates or charges of any nature whatsoever on or in
respect of the titles property or other assets products materials or services
used or produced by or through the operations of the Joint Venturers in the
conduct of their business hereunder nor will the State take or permit to be
taken by any such State authority any other discriminatory action which would
deprive the Joint Venturers of full enjoyment of the rights granted and
intended to be granted under this Agreement.
Resumption for the purposes of this Agreement 2
33. The State may as and for a public work under
the Public Works Act 1902 , resume any land required for the purposes of this
Agreement and notwithstanding any other provisions of that Act may sell lease
or otherwise dispose of that land to the Joint Venturers and the provisions of
subsections (2) to (7) inclusive of section 17 and 17A of that Act shall not
apply to or in respect of that land or the resumption thereof. The Joint
Venturers shall pay to the State on demand the costs of and incidental to any
land resumed at the request of and on behalf of the Joint Venturers.
No resumption 2
34. Subject to the performance by the Joint
Venturers of their obligations under this Agreement the State shall not during
the currency hereof without the consent of the Joint Venturers resume nor
suffer nor permit to be resumed by any State instrumentality or by any local
or other authority of the State any of the works installations plant equipment
or other property for the time being belonging to the Joint Venturers and the
subject of or used for the purpose of this Agreement or any of the works on
the lands the subject of any lease or licence granted to the Joint Venturers
in terms of this Agreement AND without such consent (which shall not be
unreasonably withheld) the State shall not create or grant or permit or suffer
to be created or granted by any instrumentality or authority of the State as
aforesaid any road right-of-way water right or easement of any nature or kind
whatsoever over or in respect of any such lands which may unduly prejudice or
interfere with the Joint Venturers’ operations hereunder.
Assignment 2
35. (1) Subject to the
provisions of this Clause the Joint Venturers may at any time assign mortgage
charge sublet or dispose of to an associated company as of right, or to any
other company or persons with the consent of the Minister the whole or any
part of the rights of the Joint Venturers hereunder (including their rights to
or as the holder of the mining lease or any other lease licence easement grant
or other title) and of the obligations of the Joint Venturers hereunder
subject however in the case of an assignment subletting or disposition to the
assignee sublessee or disponee (as the case may be) executing in favour of the
State (unless the Minister otherwise determines) a deed of covenant in a form
to be approved by the Minister to comply with observe and perform the
provisions hereof on the part of the Joint Venturers to be complied with
observed or performed in regard to the matter or matters the subject of such
assignment subletting or disposition.
(2) Notwithstanding
anything contained in or anything done under or pursuant to subclause (1) the
Joint Venturers shall at all times during the currency of this Agreement be
and remain liable for the due and punctual performance and observance of all
the covenants and agreements on their part contained herein and in the mining
lease or any other lease licence easement grant or other title the subject of
an assignment mortgage subletting or disposition under subclause (1) PROVIDED
THAT the Minister may agree to release the Joint Venturers from such liability
where he considers such release will not be contrary to the interests of the
State.
(3) Notwithstanding
the provisions of the Mining Act, the Transfer of Land Act 1893 and the land
Act, insofar as the same or any of them may apply —
(a) no
assignment mortgage charge sublease or disposition made or given pursuant to
this Clause of or over the mining lease or any other lease licence easement
grant or other title granted hereunder or pursuant hereto by the Joint
Venturers or any assignee sublessee or disponee who has executed and is for
the time being bound by deed of covenant made pursuant to this Clause; and
(b) no
transfer assignment mortgage or sublease made or given in exercise of any
power contained in any such mortgage or charge
shall require any
approval or consent other than such consent as may be necessary under this
Clause and no equitable mortgage or charge shall be rendered ineffectual by
the absence of any approval or consent (otherwise than as required by this
Clause) or because the same is not registered under the provisions of the
Mining Act.
Variation 2
36. (1) The parties
hereto may from time to time by agreement in writing add to substitute for
cancel or vary all or any of the provisions of this Agreement or of any lease
licence easement grant or other title granted hereunder or pursuant hereto for
the purpose of more efficiently or satisfactorily implementing or facilitating
any of the objects of this Agreement.
(2) The Minister shall
cause any agreement made pursuant to subclause (1) in respect of any addition
substitution cancellation or variation of the provisions of this Agreement to
be laid on the Table of each House of Parliament within 12 sitting days next
following its execution.
(3) Either House may,
within 12 sitting days of that House after the agreement has been laid before
it pass a resolution disallowing the agreement, but if after the last day on
which the agreement might have been disallowed neither House has passed such a
resolution the agreement shall have effect from and after that last day.
Force majeure 2
37. This Agreement shall be deemed to be made
subject to any delays in the performance of the obligations hereunder and to
the temporary suspension of continuing obligations hereunder that may be
caused by or arise from circumstances beyond the power and control of the
party responsible for the performance of those obligations including without
limiting the generality of the foregoing delays or any such temporary
suspension as aforesaid caused by or arising from act of God force majeure
earthquakes floods storms tempest washaways fire (unless caused by the actual
fault or privity of the party responsible for such performance) act of war act
of public enemies riots civil commotions strikes lockouts stoppages restraint
of labour or other similar acts (whether partial or general) acts or omissions
of the Commonwealth shortages of labour or essential materials reasonable
failure to secure contractors delays of contractors or factors due to overall
world economic conditions or factors that could not reasonably have been
foreseen PROVIDED ALWAYS that the party whose performance of obligations is
affected by any of the said causes shall promptly give notice to the other
party of the event or events and shall use its best endeavours to minimise the
effects of such causes as soon as possible after the occurrence.
Power to extend periods 2
38. Notwithstanding any provision of this
Agreement the Minister may at the request of the Joint Venturers from time to
time extend or further extend any period or vary or further vary any date
referred to in this Agreement or in any approved proposal hereunder for such
period or to such later date as the Minister thinks fit whether or not the
period to be extended has expired or the date to be varied has passed.
Determination of Agreement 2
39. (1) In any of the
following events namely if —
(a)
(i) the Joint Venturers make
default which the State considers material in the due performance or
observance of any of the covenants or obligations to the State herein or in
the mining lease or any other lease licence easement grant or other title or
document granted or assigned under this Agreement on their part to be
performed or observed; or
(ii) the Joint Venturers abandon or
repudiate this Agreement or their operations under this Agreement
and such default is
not remedied or such operations resumed within a period of 180 days after
notice is given by the State as provided in subclause (2) or, if the default
or abandonment is referred to arbitration, then within the period mentioned in
subclause (3); or
(b) the
Joint Venturers or either of them go into liquidation (other than a voluntary
liquidation for the purpose of reconstruction) and unless within 3 months from
the date of such liquidation the interest of that Joint Venturer is assigned
to the other Joint Venturer or to an assignee approved by the Minister under
Clause 35
this Agreement shall
cease and determine —
(I) where paragraph (a) of this subclause
is applicable, on the expiration of 180 days after the notice therein referred
to or the expiration of the period referred to in subclause (3) as the case
may be;
(II) where paragraph
(b) of this subclause is applicable, on the expiration of 3 months from the
date of the liquidation
without further notice
or action by the State.
(2) The notice to be
given by the State in terms of paragraph (a) of subclause (1) shall specify
the nature of the default or other ground so entitling the State to exercise
such right of determination and shall be given to the Joint Venturers and all
such assignees mortgagees chargees and disponees for the time being of the
Joint Venturers’ said rights to or in favour of whom or by whom an
assignment mortgage charge or disposition has been effected in terms of Clause
35 whose name and address for service of notice has previously been notified
to the State by the Joint Venturers or any such assignee mortgagee chargee or
disponee.
(3) (a)
If the Joint Venturers contest the alleged default
abandonment or repudiation referred to in paragraphs (a) and (b) of subclause
(1) the Joint Venturers shall within 60 days after notice given by the State
as provided in subclause (2) refer the matter in dispute to arbitration.
(b)
If the question is decided against the Joint
Venturers, the Joint Venturers shall comply with the arbitration award within
a reasonable time to be fixed by that award PROVIDED THAT if the arbitrator
finds that there was a bona fide dispute and that the Joint Venturers were not
dilatory in pursuing the arbitration, the time for compliance with the
arbitration award shall not be less than 90 days from the date of such award.
Effect of cessation or determination of Agreement 2
40. (1) On the
cessation or determination of this Agreement —
(a)
except as otherwise agreed by the Minister the rights of the Joint Venturers
to in or under this Agreement and the rights of the Joint Venturers or of any
assignee of the Joint Venturers or any mortgagee to in or under the mining
lease and any other lease licence easement grant or other title or right
granted hereunder or pursuant hereto (but excluding townsite lots which have
been granted to or acquired by the Joint Venturers and which are no longer
owned by them) shall thereupon cease and determine but without prejudice to
the liability of either of the parties hereto in respect of any antecedent
breach of default under this Agreement or in respect of any indemnity given
hereunder;
(b) the
Joint Venturers shall forthwith pay to the State all moneys which may then
have become payable or accrued due;
(c) save
as aforesaid and as otherwise provided in this Agreement neither of them the
State and the Joint Venturers shall have any claim against the other of them
with respect to any matter or thing in or arising out of this Agreement.
(2) Upon the cessation
or determination of this Agreement except as otherwise determined by the
Minister all buildings erections and other improvements erected on any land
then occupied by the Joint Venturers under the mining lease or any other
lease, licence, easement, grant or other title made hereunder for the purpose
hereof shall become and remain the absolute property of the State without the
payment of any compensation or consideration to the Joint Venturers or any
other party and freed and discharged from all mortgages and other encumbrances
and the Joint Venturers shall do and execute all such deeds documents and
other acts matters and things (including surrenders) as the State may
reasonably require to give effect to the provisions of this subclause.
(3) (a)
In the event of the Joint Venturers immediately
prior to the cessation or determination of this Agreement or subsequently
thereto desiring to remove any of their fixed or moveable plant and equipment
or any part thereof from any part of the land occupied by them at the date of
such cessation or determination, but without limiting the rights of the Joint
Venturers to remove any such plant or equipment before the cessation or
determination of this Agreement, they shall give to the State notice of such
desire and thereby grant to the State the right or option exercisable within 3
months thereafter to purchase in situ such fixed or movable plant and
equipment at a fair valuation to be agreed between the State and the Joint
Venturers or failing agreement determined by arbitration hereunder.
(b)
The provisions of this subclause shall not apply
to plant and equipment which at the date of cessation or determination of this
Agreement are on any lands (within the mining lease or any other lease,
licence, easement, grant or other title made hereunder) which following the
cessation or determination of this Agreement are to be included by the State
in Mineral Lease 4SA or otherwise leased or granted by the State to Hamersley
pursuant to the provisions of the Agreement dated 30 July 1963 approved by the
Iron Ore (Hamersley Range) Agreement Act 1963 and any amendments thereto from
time to time.
Environmental protection 2
41. Nothing in this Agreement shall be construed
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 hereunder that may be made by the State or by any State
agency or instrumentality or any local or other authority or statutory body of
the State pursuant to any Act from time to time in force.
Indemnity 2
42. The Joint Venturers shall indemnify and keep
indemnified the State and its servants agents and contractors in respect of
all actions suits claims demands or costs of third parties arising out of or
in connection with any work carried out by or on behalf of the Joint Venturers
pursuant to this Agreement or relating to their operations hereunder or
arising out of or in connection with the construction maintenance or use by
the Joint Venturers or their servants agents contractors or assignees of the
Joint Venturers’ works or services the subject of this Agreement or the
plant apparatus or equipment installed in connection therewith PROVIDED THAT
subject to the provisions of any other relevant Act such indemnity shall not
apply in circumstances where the State, its servants, agents, or contractors
are negligent in carrying out work for the Joint Venturers pursuant to this
Agreement.
Commonwealth licences and consents 2
43. (1) The Joint
Venturers shall from time to time make application to the Commonwealth or to
the Commonwealth constituted agency, authority or instrumentality concerned
for the grant to them of any licence or consent under the laws of the
Commonwealth necessary to enable or permit the Joint Venturers to enter into
this Agreement and to perform any of their obligations hereunder.
(2) On request by the
Joint Venturers the State shall make representations to the Commonwealth or to
the Commonwealth constituted agency authority or instrumentality concerned for
the grant to the Joint Venturers of any licence or consent mentioned in
subclause (1) or for the grant to the Joint Venturers of a licence or licences
under Commonwealth law for the export of iron ore in such quantities and at
such rate or rates as shall be reasonable having regard to the terms of this
Agreement and the capabilities of the Joint Venturers and in a manner or terms
not less favourable to the Joint Venturers (except as to rate or quantity)
than the State has given or intends to give in relation to such licence or
licences to any other exporter of iron ore from the said State.
(3) The Joint
Venturers shall be in default hereunder if at any time they fail to obtain any
licence or licences under Commonwealth law for the export of iron ore as may
be necessary for the purpose of enabling the Joint Venturers to fulfil their
obligations hereunder or if any such licence is withdrawn or suspended by the
Commonwealth and such failure to obtain or such withdrawal or suspension (as
the case may be) is due to some act or default by the Joint Venturers or to
the Joint Venturers not being bona fide in their application to the
Commonwealth or otherwise having failed to use their best endeavours to have
the licence granted or restored (as the case may be) but save as aforesaid if
at any time any necessary licence is not granted or any licence granted to the
Joint Venturers shall he withdrawn or suspended by the Commonwealth and so
that as a result thereof the Joint Venturers are not for the time being
permitted to export at least the tonneage they have undertaken with the State
they will export then the Joint Venturers shall not be obliged to export that
tonneage during the period such licence is not granted or is withdrawn or
suspended. The State shall at all times be entitled to apply on behalf of the
Joint Venturers (and is hereby authorised by the Joint Venturers so to do) for
any licence or licences under Commonwealth law for the export or iron ore as
may from time to time be necessary for the purposes of this Agreement.
Subcontracting 2
44. The State shall ensure that without affecting
the liabilities of the parties under this Agreement the Joint Venturers and
the State shall have the right from time to time to entrust to third parties
the carrying out of any portions of the operations which it is authorised or
obliged to carry out hereunder.
Stamp duty exemption 2
45. (1) The State
shall exempt from any stamp duty which but for the operation of this Clause
would or might be assessed and chargeable on —
(a) this
Agreement;
(b) any
instrument executed by the State pursuant to this Agreement granting to or in
favour of the Joint Venturers or any of them or any permitted assignee any
tenement lease licence easement or other right or rights; and
(c) any
assignment sublease or disposition (other than by way of mortgage or charge)
made in conformity with the provisions of subclause (1) of Clause 35
PROVIDED THAT this
subclause shall not apply to any instrument or other document executed or made
more than 7 years from the date hereof.
(2) If prior to the
date on which the Bill referred to in Clause 3 to ratify this Agreement is
passed as an Act stamp duty has been assessed and paid on any instrument or
other document referred to in subclause (1) the State when such Bill is passed
as an Act shall on demand refund any stamp duty paid on any such instrument or
other document to the person who paid the same.
Arbitration 2
46. (1) Any dispute or
difference between the parties arising out of or in connection with this
Agreement the construction of this Agreement or as to the rights duties or
liabilities of a party hereunder or as to any matter to be agreed upon between
the Joint Venturers and the State under this Agreement shall in default of
agreement between the parties and in the absence of any provision in this
Agreement to the contrary be referred to the arbitration of two arbitrators
one to be appointed by each party the arbitrators to appoint their umpire
before proceeding in the reference and every such arbitration shall be
conducted in accordance with the provisions of the Commercial Arbitration Act
1985 and notwithstanding section 20(1) of that Act each party may be
represented by a duly qualified legal practitioner or other representative.
(2) Except where
otherwise provided in this Agreement, the provisions of this Clause shall not
apply to any case where the State the Minister or any other Minister in the
Government of the said State is by this Agreement given either expressly or
impliedly a discretionary power.
(3) The arbitrators or
umpire (as the case may be) of any submission to arbitration hereunder are
hereby empowered upon the application of either of the parties to grant in the
name of the Minister any interim extension of any period or variation of any
date referred to herein which having regard to the circumstances may
reasonably be required in order to preserve the rights of that party or of the
parties hereunder and an award may in the name of the Minister grant any
further extension or variation for that purpose.
Consultation 2
47. The Joint Venturers shall during the currency
of this Agreement consult with and keep the State fully informed on a
confidential basis concerning any action that the Joint Venturers propose to
take with any third party (including the Commonwealth or any Commonwealth
constituted agency authority instrumentality or other body) which might
significantly affect the overall interest of the State under this Agreement.
Notices 2
48. Any notice consent or other writing authorised
or required by this Agreement to be given or sent shall be deemed to have been
duly given or sent by the State if signed by the Minister or by any senior
officer of the Civil Service of the said State acting by the direction of the
Minister and forwarded by prepaid post or handed to the Joint Venturers at
their addresses in the said State hereinbefore set forth or other address or
addresses in the said State nominated by the Joint Venturers to the Minister
from time to time for the purpose of this Clause and by the Joint Venturers if
signed on their behalf by any person or persons authorised by the Joint
Venturers or by their solicitors as notified to the State from time to time
and forwarded by prepaid post or handed to the Minister and except in the case
of personal service any such notice consent or writing shall be deemed to have
been duly given or sent on the day on which it would be delivered in the
ordinary course of post.
Expenditure indemnity 2
49. Hamersley hereby agrees to indemnify the State
(which expression shall include the State’s instrumentalities and
authorities) and hold it harmless from and against all losses costs and
expenses incurred or suffered by the State in carrying out its obligations
under this Agreement or any approved proposal where those losses costs and
expenses arise as a direct result of default by the Joint Venturers in the
performance of their obligations under this Agreement (other than the
obligations under Clause 23).
Term 2
50. Subject to the provisions of Clause 39, this
Agreement shall expire on the date that is 30 years from the date of approval
of the proposals made pursuant to Clause 7.
Applicable law 2
51. This Agreement shall be interpreted according
to the law for the time being in force in the State of Western Australia.
THE SCHEDULE
WESTERN AUSTRALIA
IRON ORE (CHANNAR JOINT VENTURE)
AGREEMENT ACT 1987
MINING LEASE
MINING LEASE No.
The Minister for Minerals and Energy a corporation sole established by the
Mining Act 1978 with power to grant leases of land for the purposes of mining
in consideration of the rents hereinafter reserved and of the covenants on the
part of the Lessee described in the First Schedule to this lease and of the
conditions hereinafter contained and pursuant to the Mining Act 1978 (except
as otherwise provided by the Agreement (hereinafter called “the
Agreement”) described in the Second Schedule to this lease) hereby
leases to the Lessee the land more particularly delineated and described in
the Third Schedule to this lease for iron ore subject however to the
exceptions and reservations set out in the Fourth Schedule to this lease and
to any other exceptions and reservations which subject to the Agreement are by
the Mining Act 1978 and by any Act for the time being in force deemed to be
contained herein to hold to the Lessee this lease for a term of thirty years
commencing on the date set out in the Fifth Schedule to this lease (subject to
sooner determination of the said term upon cessation or determination of the
Agreement) upon and subject to such of the provisions of the Mining Act 1978
except as otherwise provided by the Agreement as are applicable to mining
leases granted thereunder and to the terms covenants and conditions set out in
the Agreement and to the covenants and conditions herein contained or implied
and any further conditions or stipulations set out in the Sixth Schedule to
this lease the Lessee paying therefor the rents and royalties as provided in
the Agreement PROVIDED ALWAYS that this lease and any renewal thereof shall
not be determined or forfeited otherwise than in accordance with the
Agreement.
In this Lease —
—
“Lessee” includes the respective successors and permitted assigns
of each Lessee.
— The liability
of the Lessee 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 therefor or in lieu thereof and to the
regulations and by-laws for the time being in force thereunder.
FIRST SCHEDULE
CMIEC (CHANNAR) PTY. LTD. a company incorporated in Western Australia and
having its registered office at 140 St George’s Terrace, Perth as to 40
(40/100ths) shares CHANNAR MINING PTY. LIMITED a company incorporated in
Western Australia and having its registered office at 191 St George’s
Terrace, Perth as to 60 (60/100th) shares.
SECOND SCHEDULE
The Agreement made between the State of Western Australia, CMIEC (Channar)
Pty. Ltd. and Channar Mining Pty. Limited and Hamersley Iron Pty. Limited and
ratified by the Iron Ore (Channar Joint Venture) Agreement Act 1987 and any
amendments to that Agreement.
THIRD SCHEDULE
(Description of land:)
Locality:
Mineral Field: Area, etc.:
Being the land
delineated on Survey Diagram No.
recorded in the Department of Mines, Perth.
FOURTH SCHEDULE
All petroleum as defined in the Petroleum Act 1967 on or below the surface of
the land the subject of this lease is reserved to the Crown in right of the
State of Western Australia with the right of the Crown in right of the State
of Western Australia and any person lawfully claiming thereunder or otherwise
authorised to do so to have access to the land the subject of this lease for
the purpose of searching for and for the operations of obtaining petroleum (as
so defined) in any part of the land.
FIFTH SCHEDULE
(Date of commencement of the lease).
SIXTH SCHEDULE
(Any further conditions or stipulations).
In witness whereof the Minister for Minerals and
Energy has affixed his
seal and set his hand
hereto
this day of 19 .
IN WITNESS
WHEREOF this Agreement has been executed by or on behalf of the parties hereto
the day and year first hereinbefore mentioned.
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SIGNED by the said |
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D. PARKER
MINISTER FOR MINERALS AND ENERGY
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THE COMMON SEAL of |
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Director ZHENG SHIQUAN
Director YAN DESHUN
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THE COMMON SEAL of |
|
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Director M. A. O’LEARY
Director P. KNOWLES
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THE COMMON SEAL of |
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Director M. A. O’LEARY
Director C. J. S. RENWICK
