Western Australian Current Acts Western Australian Current Acts[s. 2]
[Heading inserted: No. 45 of 1986 s. 7; amended:
No. 19 of 2010 s. 4.]
THIS AGREEMENT made the day of
One thousand
nine hundred and seventy-two BETWEEN THE HONOURABLE JOHN TREZISE TONKIN,
M.L.A., THE 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 one part and CONSOLIDATED GOLD FIELDS
AUSTRALIA LIMITED a company incorporated under the Companies Ordinances of the
Australian Capital Territory and having its executive office at Gold Fields
House Sydney Cove in the State of New South Wales and its registered office in
the State of Western Australia (hereinafter referred to as “the said
State”) at 156 Saint George’s Terrace Perth CYPRUS MINES
CORPORATION a corporation incorporated in the State of New York in the United
States of America and having its executive offices situate at 1234 Pacific
Mutual Building 523 West Sixth Street Los Angeles California in the United
States of America UTAH DEVELOPMENT COMPANY a corporation incorporated under
the laws of the State of Nevada in the United States of America with its
executive offices situate at 550 California Street San Francisco in the said
United States of America and having its registered office in the State of
Queensland at Pearl Assurance House at the corner of Queen and Eagle Streets
Brisbane HANCOCK PROSPECTING PTY LTD a company incorporated in the said State
and having its registered office situate at the 14 th floor Lombard House 251
Adelaide Terrace Perth WRIGHT PROSPECTING PTY LTD a company incorporated in
the said State and having its registered office situate at the 14th floor
Lombard House 251 Adelaide Terrace Perth and M.I.M. HOLDINGS LIMITED a company
incorporated in the State of Queensland and having its registered office
situate at 363 Adelaide Street, Brisbane (hereinafter called “the Joint
Venturers” which expression shall where the context so admits or
requires extend to include the Joint Venturers jointly and each of them
severally their and each of their successors and permitted assigns and
appointees) of the other part.
WHEREAS:
(a) The
Joint Venturers are exploring and investigating the possibility of the mining
areas hereinafter defined containing large deposits of iron ore and as a
result of such exploration and investigation the parties believe that in the
mining areas there are substantial deposits of iron ore having an average
grade of 60% Fe or better.
(b)
Research is being conducted by the Joint Venturers with the object of
establishing satisfactory ore crushing, screening, and upgrading procedures in
the treatment of iron ore.
(c) The
Joint Venturers are conducting engineering studies as to the technical
feasibility of the construction of a railway between the mining areas and
possible port sites.
NOW THIS AGREEMENT WITNESSETH as follows —
Definitions 2
1. In this Agreement subject to the context
—
“apply”, “appoint”,
“approve”, “approval”, “consent”,
“certify”, “direct”, “notify”,
“require”, or “request” means apply, appoint, approve,
approval, consent, certify, direct, notify, require, or request in writing as
the case may be;
“approved proposals” means proposals
which are approved by the Minister as provided in paragraph (a) of subclause
(1) of Clause 8 and proposals which are deemed to have been approved as
provided in paragraph (b) of subclause (6) of Clause 8;
“associated company” means —
(a) any
company notified by the Joint Venturers or any of them to the Minister which
has a paid-up capital of not less than two million dollars and is incorporated
in the United Kingdom, the United States of America, or the Commonwealth of
Australia and which —
(i)
is promoted by the Joint Venturers or any of them for all
or any of the purposes of this Agreement and in which the Joint Venturers or
any of them hold not less than twenty per centum of the issued ordinary share
capital or —
(ii)
is related within the meaning of the term
“subsidiary” in section 6 of the Companies Act 1961 to any company
in which the Joint Venturers or any of them hold not less than twenty per
centum of the issued ordinary share capital and —
(b) any
other company which the Minister approves as an associated company for the
purposes of this Agreement.
“Clause” means a clause of this
Agreement.
“commencement date” means the date on
which this Agreement is executed by all the parties hereto;
“Commission” means the State
Electricity Commission of Western Australia;
“Commonwealth” means the Commonwealth
of Australia and includes the Government thereof for the time being;
“direct shipping ore” means iron ore
which has an average pure iron content of not less than sixty per centum which
will not pass through a 6 millimetre mesh screen and which is sold without
concentration or other beneficiation other than crushing and screening;
“export date” means the date on which
the ship carrying the first shipment of iron ore products shipped by the Joint
Venturers under this Agreement (other than iron ore shipped solely for testing
purposes) sails from the port at which it has been loaded;
“financial year” means a year
commencing on and including the 1st day of July;
“fine ore” means iron ore which has an
average pure iron content of not less than sixty per centum which will pass
through a 6 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 6 millimetre mesh
screen;
“f.o.b. revenue” means the price for
iron ore products the subject of any shipment or sale which is payable by the
purchaser thereof to the Joint Venturers or an associated company, less all
export duties and export taxes payable on such iron ore products and less all
costs and charges properly incurred and payable on such iron ore products by
the Joint Venturers or an associated company to the State or a third party
from the time when the iron ore products are placed on ship at the Joint
Venturers’ wharf to the time when the iron ore products are delivered
and accepted by the purchaser, there being included in such costs and charges
—
(1) ocean freight;
(2) marine insurance;
(3) port and handling
charges at port of discharge;
(4) costs of delivery
from port of discharge to a smelter nominated by the purchaser;
(5) weighing,
sampling, assaying, inspection and representation costs incurred on discharge
or delivery;
(6) shipping agency
charges;
(7) import taxes
payable to the country of the port of discharge;
(8) demurrage incurred
after loading and at port of discharge; and
(9) such other costs
and charges as the parties (having regard inter alia to such matters as the
parties to and the bona fide nature of the transaction as the result of which
the cost or charge was incurred) shall agree to include or failing agreement
as fixed by arbitration as hereinafter provided.
For the purpose of
this definition —
(a) the
Minister may from time to time in respect of any of the costs or charges
mentioned in items (1) to (9) (inclusive) above incurred in relation to any
particular shipment or sale notify the Joint Venturers that he does not regard
the cost or charge as being properly incurred and in that event should the
Joint Venturers disagree with the Minister’s decision they may refer the
matter in question to arbitration as hereinafter provided but unless and until
it is otherwise determined such cost or charge shall be treated as being not
properly incurred and if otherwise determined the State will refund to the
Joint Venturers any royalty paid by the Joint Venturers on the basis that the
charge was not properly incurred;
(b)
notwithstanding anything contained in this definition to the contrary, a cost
or charge as set out in items (1) to (8) inclusive or this definition shall
not (unless and until the Minister so determines) be deemed to be properly
incurred if such charge is directly or indirectly imposed upon or incurred by
the Joint Venturers or an associated company pursuant to an arrangement
entered into between the Joint Venturers and the State;
(c) in
the event of the parties failing to agree to the inclusion of a cost or charge
which might be included pursuant to item (9) and referring the matter to
arbitration then unless and until it is otherwise determined such cost or
charge shall be excluded but if it is determined that the same should be
included the State shall refund to the Joint Venturers any royalty paid by
reason of the same having been excluded;
“integrated iron and steel industry”
means an industry for the manufacture of iron and steel or for the manufacture
of steel from iron ore by a process which does not necessarily involve the
production of pig iron or basic iron in the production of steel;
“iron ore” means iron ore from the
mining areas;
“iron ore concentrates” means products
(whether in pellet or other form) resulting from secondary processing but does
not include metallised agglomerates;
“iron ore pellets” means iron ore in
pellet or other form produced by pelletisation or a more advanced reduction or
other treatment or process from iron ore mined on the mineral lease;
“iron ore products” is an inclusive
term covering iron ore of all grades obtained from the mineral lease and also
all products produced by secondary and tertiary processing any part of such
iron ore;
“Joint Venturers’ wharf” means
any wharf utilised by the Joint Venturers for the purpose of shipping iron ore
products produced as the result of the operation of this Agreement and whether
the same be a wharf constructed by or on behalf of the Joint Venturers a wharf
used by the Joint Venturers in conjunction with another or others (including
the State) or any temporary structure approved by the Minister as the Joint
Venturers’ wharf for the time being for the purposes of this Agreement;
“Land Act” means the Land Act 1933 ;
“locally used ore” means iron ore used
by the Joint Venturers or an associated company within the Commonwealth for
secondary processing or in an integrated iron and steel industry or any plant
for the production of steel;
“metallised agglomerates” means
products resulting from the reduction of iron ore or iron ore concentrates by
any method whatsoever and having an iron content of not less than eighty-five
percentum;
“mineral lease” means the mineral
lease or mineral leases referred to in Clause 11(1) and includes any renewal
thereof and where the context so permits shall describe the area of land
demised as well as the instrument by which it is demised;
“mine townsite” means a townsite or
townsites established by the Joint Venturers on or near the mining areas
pursuant to this Agreement and may include any existing townsite approved by
the Minister;
“Mining Act” means the Mining Act 1904
;
“mining areas” means the area
delineated and coloured blue on the plan marked “A” initialled by
or on behalf of the parties for the purpose of identification and comprising
Temporary Reserves Nos. 4194H, 4326H, 5004H and 5006H;
“Minister” means the Minister of the
Government of the said State for the time being responsible for the
administration of this Agreement;
“Minister for Mines” means the
Minister in the Government of the said State for the time being responsible
for the administration of the Mining Act;
“month” means calendar month;
“notice” means notice in writing;
“ore” means iron ore;
“parties” means the parties to this
Agreement;
“person” or “persons”
includes bodies corporate;
“the port” means a new port to be
established in implementation of proposals made by the Joint Venturers
pursuant to Clause 7 whether the same be established by the Joint Venturers
exclusively or by them in conjunction with another or others (including the
State) and should no such new port be established the term means any existing
port developed or used by the Joint Venturers for the purposes of this
Agreement by arrangement with another or others (including the State) and in
either case the term extends to and includes as well as the land upon which
the Joint Venturers’ wharf is erected also the adjacent land serving the
Joint Venturers’ wharf and the adjacent land on which it is proposed to
locate or on which could be located or in fact is located secondary and
tertiary processing plants crushing grinding and screening facilities
stockpiling yards electric power generating plant petroleum storage and other
ancillary facilities;
“port townsite” means the townsite to
be expanded or developed near the port;
“said State” means the State of
Western Australia;
“secondary processing” means the
concentration or other beneficiation of iron ore otherwise than by crushing or
screening and includes thermal electrostatic magnetic and gravity processing
and the production of pellets iron ore concentrates metallised agglomerates
and sponge iron;
“steel” means steel in the form of
steel billets or manufactured steel products;
“tertiary processing” means the
production of pig iron by blast furnace smelting the production of steel by
any means whatsoever and the further processing of steel into special shapes
and alloys;
“this Agreement” “hereof”
and “hereunder” includes this Agreement as from time to time added
to varied or amended;
“tonne” means a tonne of one thousand
kilograms net dry weight;
“Transfer of Land Act” means
Transfer of Land Act 1893 ;
“wharf” includes any jetty structure;
“Year 1” means the year next following
the export date and “year” followed immediately by any other
numeral has a corresponding meaning.
Interpretation 2
2. (1) In this
Agreement —
(a)
monetary references are references to Australian currency unless otherwise
specifically expressed;
(b)
power given under any clause other than Clause 46 to extend any period or date
shall be without prejudice to the power of the Minister under Clause 46;
(c)
marginal notes do not affect the interpretation or construction 2 ; and
(d)
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.
(2) Where any
provision of this Agreement constitutes an Agreement or undertaking by one of
the parties to make a payment or to perform some act or to carry out some
obligation or to assume some responsibility or liability or to grant some
right concession or advantage that party shall by its execution hereof be
deemed to have covenanted and agreed with the other party accordingly.
(3) The State and the
Minister shall be deemed to have power and authority to exercise all such
powers and discretions and to do all such other acts matters and things as may
be required or be necessary to be exercised or done in order to carry out and
give effect to the provisions of this Agreement and in particular the State
and the Minister shall be deemed to have power —
(i)
to close or vary the alignments or boundaries of any
public road and —
(ii)
to resume as and for a public work any land or other
estate right or interest in land.
Effect on existing Acts 2
3. (1) As from the
date hereof all the provisions of this Agreement shall operate and take effect
notwithstanding the provisions of any other Act or any law to the contrary and
for the purposes of this Agreement and without limiting the generality of the
foregoing the undermentioned Acts shall be deemed modified and amended to the
extent indicated namely —
(a) the
Mining Act — by deleting Sections 277 and 282 thereof;
(b) the
Land Act —
(i)
by deleting subsections (1) and (2) of Section 45A
thereof and by substituting the following —
“45A.
(1) Notwithstanding anything
contained in the last preceding Sections of this Part (Part IV) of this Act
the Governor may dispense with the requirements thereof as to the sale of town
or country lands and may approve of any lot being offered for sale or for
leasing in the manner prescribed in subsection (2) of this Section;
(2)
Upon the Governor signifying approval pursuant to subsection (1)
of this Section in respect of any such lands the Minister may offer the said
lands or any part thereof for sale or may grant leases or licences thereof for
such price or prices and for such period or periods (including rights of
renewal) and upon and subject to such other terms and conditions and in such
form as the Minister may think fit provided that the price period or other
terms and conditions shall not be inconsistent with the provisions of any
agreement executed by the Premier of the State of Western Australia acting for
and on behalf of the said State pursuant to the authority in that behalf given
by an Act of the Parliament of the said State.”
(ii)
by deleting the proviso to Section 116 thereof;
(iii)
by deleting Sections 135 and 143 thereof;
(c) the
Public Works Act — by deleting subsections (2) to (7) inclusive of
Section 17 thereof and also the whole of Section 17A thereof;
(d)
Section 82 of the Mining Act and Section 81D of the Transfer of Land Act
shall not apply to a mortgage or charge in the form commonly known as a
floating charge given by the Joint Venturers or an associated company pursuant
to Clause 40 or to a transfer or assignment in exercise of a power of sale
contained in any such mortgage or charge;
(e) no
lease sublease licence or other title or right granted or assigned under or
pursuant to this Agreement shall be subject to or capable of partition and the
provisions of Part XIV of the Property Law Act 1969 shall not apply thereto.
Right to enter Crown land 2
4. To the extent reasonably necessary for the
purpose of the investigations and studies and subject to the adequate
protection of the environment (including flora and fauna) and the affected
land and improvements thereon the State shall permit the Joint Venturers to
enter into and upon Crown land other than the mining areas (including the
lands the subject of a pastoral lease) and to survey possible sites for their
proposed operations under this Agreement.
Rights of occupancy of mining areas 2
5. As soon as practicable after the commencement
date the State shall upon application by the Joint Venturers cause to be
granted to the Joint Venturers the sole and exclusive right to search and
prospect for iron ore in the mining areas (but excluding therefrom any
existing prospecting areas, claims, leases, or authorised holdings under the
Mining Act and any land alienated or in the course of alienation and any land
reserved (not being Crown land within the meaning of the Mining Act)) by
granting to the Joint Venturers rights of occupancy pursuant to section 276 of
the Mining Act over the Temporary Reserves contained in the mining areas for
the period and upon and subject to the following terms and conditions —
Existing rights to be surrendered 2
(a) the
rights of occupancy shall be granted subject to the condition precedent that
the Joint Venturers acquire by transfer all existing rights of occupancy in
respect of the mining areas and surrender them to the Minister for Mines;
Period of rights of occupancy 2
(b) the
rights of occupancy shall be for a period expiring five years after the
commencement date;
Consideration for rights of occupancy 2
(c) the
Joint Venturers shall within one month after the commencement date and
thereafter on the first and every subsequent anniversary of the commencement
date during the continuance of the period of the rights of occupancy pay to
the State as consideration for the rights of occupancy in advance an annual
fee of one thousand dollars for each Temporary Reserve comprised in the mining
areas and in addition ten dollars and four cents for each square kilometre or
part of a square kilometre of the mining areas for the time being subject to
the rights of occupancy;
Obligation to prospect 2
(d) the
Joint Venturers shall (in so far as they have not already done so) at their
expense and in accordance with a programme first approved by the Minister for
Mines prospect the mining areas to the satisfaction of the Minister for Mines
during the term of such rights;
Reports 2
(e) the
Joint Venturers shall during the term of the rights of occupancy furnish to
both the Minister and the Minister for Mines an annual report on all
operations carried out in the mining areas by or on behalf of the Joint
Venturers;
Other mining tenements 2
(f) the
Minister for Mines may grant to any person (including the Joint Venturers)
mining tenements pursuant to the Mining Act for any mineral other than iron
ore within the mining areas if the Minister is satisfied that such grant would
be unlikely to materially prejudice or interfere with the Joint
Venturers’ operations under this Agreement;
Determination of occupancy 2
(g) the
rights of occupancy shall forthwith cease and determine on the happening of
any of the following events namely —
(i)
upon the Joint Venturers by notice to the Minister
relinquishing the same; or
(ii)
upon the period of the rights of occupancy expiring by
effluxion of time; or
(iii)
upon the State granting to the Joint Venturers a mineral
lease pursuant to Clause 11 (notwithstanding that the instrument of such lease
may not be issued); or
(iv)
upon the Joint Venturers making default in the due and
punctual payment of any annual fee payable pursuant to paragraph (c) of this
Clause and failing to comply with a notice from the State specifying such
default and calling upon the Joint Venturers to remedy the same within a
period of fourteen days of the service of such notice; or
(v)
upon the Joint Venturers making default in the due
performance or observance of any of the other of the terms and conditions upon
and subject to which the rights of occupancy were granted and failing to
comply with a notice from the State specifying such default and calling upon
the Joint Venturers to remedy the same within a period of fourteen days of the
service of such notice; and
Surrender of areas 2
(h)
notwithstanding the provisions of paragraph (b) of this Clause the Joint
Venturers may from time to time (with abatement of future annual fees in
respect of the area surrendered but without abatement of annual fees already
paid or annual fees which have become due and have been paid in advance)
surrender to the State all or any portion or portions (of reasonable size and
shape) of the mining areas.
Investigations and studies 2
6. (1) The Joint
Venturers shall insofar as they have not already done so to the satisfaction
of the Minister, commence forthwith and carry out at their expense (with the
assistance of experienced consultants where appropriate) —
(a) a
thorough geological and (as necessary) geophysical investigation and proving
of the iron ore deposits in the mining areas and the testing and sampling of
such deposits;
(b) a
reconnaissance of sites of the operations proposed pursuant to this Agreement
together with the preparation of suitable maps and drawings;
(c) an
engineering investigation of the route for a railway from the mining areas to
the port or (in consultation with the owner) to connect with any existing or
proposed railway operated or to be operated by any other party under an
agreement with the State;
(d) a
general survey and preliminary engineering investigation of possible port
sites in the vicinity of Port Hedland, Cape Lambert and the Dampier
Archipelago including Legendre Island;
(e) a
study of the technical and economic feasibility of the mining transporting
handling and shipping of iron ore from the mining areas;
(f) the
planning for the development of a suitable mine townsite and a suitable port
townsite (including design of housing utilities and associated facilities and
social cultural and civic facilities) in consultation with the State having
due regard to the possible or probable use of the same by others as well as
the Joint Venturers;
(g) the
investigation, in areas approved by the Minister (which approval shall not be
unreasonably withheld) of suitable water supplies for mining industrial and
mine townsite purposes;
(h)
metallurgical and market research; and
(i)
an assessment of the environmental effects likely to
result from operations pursuant to this Agreement together with outlines of
proposals to minimise any deleterious effects on the environment;
Port investigations 2
(2) After consultation
with the Minister concerning the result of the investigations and surveys
mentioned in paragraph (d) of subclause (1) of this Clause the Joint Venturers
shall employ or retain experienced consultant engineers to investigate report
upon and make recommendations as to the best overall development of a port at
such location as appears to be most suitable. The Joint Venturers shall
require such engineers when making such report and recommendations to have
full regard for the general development of the port with a view to its
reasonable use by others and the Joint Venturers shall furnish to the State
copies of such reports and recommendations. When submitting to the Minister
pursuant to Clause 7 detailed proposals in regard to the matters mentioned in
this subclause the Joint Venturers shall so far as reasonably practicable
ensure that the detailed proposals —
(a) do
not materially depart from the reports and recommendations of such engineers;
(b)
provide for the best overall development of the port so far as the same
relates to the Joint Venturers’ activities;
(c)
disclose any conditions of user; and
(d)
where alternative proposals are submitted the Joint Venturers’
preferences in regard thereto;
(3) The Joint
Venturers shall collaborate with and keep the State fully informed by
quarterly reports as to the progress and results of the Joint Venturers’
operations under subclauses (1) and (2) of this Clause. The Joint Venturers
shall as and when the Minister may reasonably require furnish the Minister
with copies of all appropriate reports received by them from consultants in
connection with the matters referred to in this Clause and with copies of all
relevant findings made and reports prepared by them.
State investigations 2
(4) If the State
concurrently carries out its own investigations and reconnaissances in regard
to all or any of the matters mentioned in subclauses (1) and (2) of this
Clause the Joint Venturers shall co-operate with the State therein and so far
as it is reasonably practicable so to do shall consult with the
representatives or officers of the State and make full disclosures and give
expressions of opinion regarding the matters referred to in those subclauses.
State assistance 2
(5) The State shall if
required assist the Joint Venturers in completing their investigations and
studies pursuant to this Clause and shall furnish such advice and commentaries
as the Joint Venturers may require and as may be practicable for the State so
to do.
Joint Venturers’ proposals 2
7. (1) As soon as
practicable after the completion of the investigations mentioned in Clause 6
the Joint Venturers shall submit to the Minister proposals as to the location
of the port and an outline in sufficient detail to enable the Minister to
satisfy himself as to the suitability, technical feasibility and
practicability, of the proposed development of the port (having regard to the
matters mentioned in paragraph (a) of subclause (2) of this Clause). The
Minister shall within two months after such submission notify the Joint
Venturers whether he approves or otherwise of such proposals or the Minister
may within that time himself suggest an alternative proposal. If the Minister
does not approve of the Joint Venturers’ proposals or if he himself
submits an alternative proposal the Minister shall disclose his reasons for so
doing in the said notice and afford the Joint Venturers ample opportunity to
consult with him and themselves to submit further or alternative proposals and
to consider any alternative proposal suggested by the Minister. When
considering any of the Joint Venturers’ proposals and in making his own
proposal the Minister shall have regard to the possible future requirements of
others (including the State) and no preference or other priority shall be
given to the Joint Venturers or their proposals by reason only that the
proposals were submitted for consideration before proposals from any other
party.
Detailed proposals 2
(2) Subject to the
proposals or any alternative proposals as to the location and development of
the port being approved the Joint Venturers shall on or before the fifth
anniversary of the commencement date or on or before such later date as the
Minister may approve or as may be determined by arbitration as hereinafter
provided submit to the Minister detailed proposals which shall include (where
practicable) appropriate plans and (where reasonably required by the Minister)
appropriate specifications in respect of the mining of iron ore on and the
future development of the mining areas (or so much thereof as is likely to be
comprised in the mineral lease mentioned in Clause 11) and detailed
particulars as to the measures proposed to be taken for the protection of the
environment should the said proposal be approved or deemed to be approved and
also (to the fullest extent reasonably practicable) detailed particulars as to
the location area layout design number materials to be used in and time
programme for the commencement and completion of the construction or the
provision (as the case may be) of each of the following matters —
(a) (to
the extent not already covered by the proposals mentioned in subclause (1) of
this Clause) the port and port development including the dredging thereof and
the disposal and depositing of the spoil the provision of navigational aids
and a fair contribution to their maintenance, the Joint Venturers’
wharf, the berth and swinging basin proposed in connection with the Joint
Venturers’ use thereof and the port installations facilities and
services to be available all of which are to be of such nature and extent as
to be capable of and suitable for adaptation to permit use of the Joint
Venturers’ wharf by ships having a capacity to carry 60,000 tonnes of
iron ore;
(b) the
railway from the mining areas to the port or to connect with an existing
railway and its proposed operation including joint user conditions (if any)
fencing (if any) crossing places and grade separation or other forms of
acceptable protection at intersections with public roads;
(c) the
development of the mine townsite and the port townsite including services and
facilities in relation thereto;
(d)
housing;
(e)
water supply;
(f)
roads;
(g)
generation transmission and distribution of electricity;
(h)
airfields;
(i)
the leases licences or other tenures of land jetty
structures and mooring areas (if any) required from the State;
(j)
disposal of waste materials;
(k)
drainage;
(l) dust
control measures; and
(m) any
other works, services or facilities proposed or required by the Joint
Venturers.
Order of proposals 2
(3) The proposals may
and shall if so required by the State be submitted separately and in any order
as to the matter or matters mentioned in one or more of paragraphs (a) to (m)
of subclause (2) of this Clause.
Use of existing infrastructure 2
(4) The proposals
relating to any of the matters mentioned in subclause (2) of this Clause may
with the agreement of the Minister and that of any third parties concerned
instead of providing for the construction of new facilities of the kind
therein mentioned provide for the use by the Joint Venturers upon reasonable
terms and conditions of any existing facilities of such kind.
Marketing and financial arrangements 2
(5) At the time when
the Joint Venturers submit the said proposals they shall furnish to the
Minister’s reasonable satisfaction evidence of —
(a)
marketing arrangements demonstrating the Joint Venturers’ ability to
sell iron ore and iron ore products in accordance with the said proposals;
(b) the
availability of finance necessary for the fulfilment of the operations to
which the said proposals refer; and
(c) the
readiness of the Joint Venturers to embark upon and proceed to carry out the
operations referred to in the said proposals.
Port Location 2
(6) Notwithstanding
anything contained in this Agreement the State’s determination in
respect of the Joint Venturers’ proposals relating to the location of
the port and in respect of proposals relating to the development of the port
(in so far as such proposals concern the development of the port for use by or
in conjunction with others) and the location of the port townsite shall be
final and no such determination may be referred to arbitration by the Joint
Venturers.
Consideration of proposals 2
8. (1) On receipt of
the said proposals the Minister may —
(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 (2) 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 give notice to the Joint
Venturers of his decision in respect to the same, and shall disclose to the
Joint Venturers by such notice the reasons for such decision.
Consultation with Minister 2
(3) If the decision of
the Minister is as mentioned in either of paragraphs (b) or (c) of subclause
(1) of this Clause the Minister shall afford the Joint Venturers full
opportunity to consult with him and should they so desire to submit new
proposals either generally or in respect to some particular matter.
Ministers’ decision subject to arbitration 2
(4) If the decision of
the Minister is as mentioned in the said paragraph (c) and the Joint Venturers
consider that the condition precedent is unreasonable the Joint Venturers may
within two months after receipt of the notice mentioned in subclause (2) of
this Clause elect to refer to arbitration in the manner hereinafter provided
the question of the reasonableness of the condition precedent.
Reasonableness of Minister’s decision 2
(5) In addition to any
other matter to which the arbitrator is required (whether pursuant to the
provisions of Clause 49 or otherwise) to have regard in considering the
reasonableness of any decision of the Minister made pursuant to subclause (1)
of this Clause the Minister shall not be regarded to have acted unreasonably
if he shall defer his decision on a proposal made in relation to the matters
mentioned in paragraph (i) of subclause (2) of Clause 7 until the said
proposals in relation to the matters mentioned in the other paragraphs of
subclause (2) of Clause 7 have become or are deemed to have become approved
proposals and the Joint Venturers have complied with the provisions of
subclause (5) of Clause 7.
Arbitration Award 2
(6) An award made on
an arbitration pursuant to subclause (4) of this Clause shall have force and
effect as follows —
(a) if
by the award it is adjudged that the condition precedent is reasonable then
the decision of the Minister in respect to the said proposals shall stand; or
(b) if
by the award it is adjudged that the condition precedent is unreasonable then
the said proposals shall be deemed to have been approved by the Minister in
the form in which the same were submitted.
Additional proposals 2
9. (1) If the Joint
Venturers at any time during the continuance of this Agreement desire to
modify expand or otherwise vary their activities beyond those specified in any
approved proposals they shall give notice of such desire to the Minister and
within two 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 (m) of subclause (2) of Clause 7 as the
Minister may require. The provisions of Clauses 7 and 8 shall mutatis mutandis
apply to detailed proposals submitted pursuant to this subclause.
Basis of submission 2
(2) In the event of
the Joint Venturers submitting detailed proposals pursuant to subclause (1) of
this Clause or if as a consequence of their submitting detailed proposals
pursuant to Clause 33 the Minister requires further detailed proposals to be
submitted on any of the said matters mentioned in paragraphs (a) to (m) of
subclause (2) of Clause 7 then subject as provided in subclause (3) of this
Clause the additional proposals shall be submitted on the basis that should
the same become approved proposals the provisions of Clause 25 shall apply
mutatis mutandis in respect of any increase in the extent of the services and
facilities mentioned in subclause (1) of Clause 25 and also in respect of the
provision of the additional services or facilities (whether of the kind
mentioned in subclause (1) of Clause 25 or not) occasioned in either case by
the additional proposals becoming approved proposals.
Determination of extent of Joint Venturers’
obligations 2
(3) The extent of the
Joint Venturers responsibilities under Clause 25 to provide the capital cost
of and to maintain any increased or additional services and facilities of the
kind mentioned in subclause (1) of that Clause occasioned by the additional
proposals or any of them becoming approved proposals shall be determined by
the Minister after discussion and negotiation on such matters with the Joint
Venturers and in making such determination the Minister shall have regard
inter alia to the current and anticipated composition of any mining or other
town affected and the extent to which the ordinary responsibilities of the
State with respect to the provision of the capital cost of such services and
facilities are to be assumed by the State in the light of the State’s
current capital resources at that time.
Determination before implementation of proposals 2
10. In any of the following events namely —
(a) if
all of the rights of occupancy cease and determine pursuant to the provisions
of paragraph (g) of Clause 5 (other than subparagraph (iii)); or
(b) if
the Joint Venturers give to the State notice of their intention to abandon or
discontinue the investigations and the studies; or
(c) if
the Joint Venturers fail within the time (or any extension thereof) limited by
subclause (2) of Clause 7 to submit any proposals and fail to satisfy the
Minister that they are then diligently and actively conducting the necessary
investigations and studies incidental to the preparation of the proposals; or
(d) if
the effect of an award made upon an arbitration under subclause (4) of Clause
8 is that the decision of the Minister is to stand and the Joint Venturers
fail within three months after the making of the award to give notice that
they accept the same and propose forthwith to implement the proposals in
respect of which the award was made —
the State may give to the Joint Venturers one month’s notice determining
this Agreement and on the expiration of such notice this Agreement shall cease
and determine and neither party shall have any claim against the other in
respect of any matter or thing arising out of or done or performed or omitted
to be done or performed under this Agreement except as provided under Clause
43.
Mineral Lease 2
11. (1) As soon as
practicable after the said proposals become approved proposals and the Joint
Venturers have complied with the provisions of subclause (5) of Clause 7 the
State shall in accordance with the relevant approved proposal on the
application of the Joint Venturers cause to be granted to them a mineral lease
in the form set out in the Schedule to this Agreement for the mining of iron
ore from such part or parts of the land comprised in the mining areas as is or
are then subject to the rights of occupancy and referred to in the said
proposals. The following provisions shall apply to the mineral lease —
Provisions 2
(a) the
total area of the land the subject thereof shall not exceed seven hundred and
seventy seven square kilometres;
(b) the
boundaries of the land comprising such area shall be so located as to form
either a single parallelogram or a number of parallelograms;
(c) the
rent reserved thereby shall be that fixed in subclause (4) of this Clause;
(d) the
Joint Venturers shall therein covenant to pay to the State in addition to the
said rent the royalties fixed in Clause 31;
(e)
subject to the due payment by the Joint Venturers of the said rent and
royalties and to the due performance and observance by them of their other
obligations thereunder and of their obligations under this Agreement the term
thereof will be twenty one years as from the date of the granting thereof but
the Joint Venturers shall during the continuance of this Agreement have the
right to take successive renewals of the said term each for a period of twenty
one years upon the same terms and conditions subject to the sooner
determination of the said term upon the cessation or determination of this
Agreement. The said right shall be exercisable by the Joint Venturers making
written application for any such renewal not later than one month before the
expiration of the current term of the mineral lease;
(f)
subject to paragraphs (a) to (e) inclusive of this subclause and as in this
Agreement otherwise provided all relevant provisions of the Mining Act and the
Regulations thereunder will apply but subject to their discharging and
carrying out their obligations under this Agreement the Joint Venturers shall
not be required to comply with the labour conditions imposed by the said Act
in respect of mineral leases.
Survey 2
(2) The State shall
cause to be made any survey necessary to define the area and boundaries of the
land to be comprised in the mineral lease and the Joint Venturers shall upon
demand made on or after the completion of such survey pay to the State the
cost thereof. The Minister for Mines may decline to issue the instrument for
the mineral lease until such survey is completed.
Surrender of part of mineral lease 2
(3) Notwithstanding
the provisions of paragraph (e) of subclause (1) of this Clause 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) surrender to the State
all or any portion or portions (of reasonable size and shape) of the mineral
lease.
Rent 2
(4) The rent payable
by the Joint Venturers under the mineral lease shall be an annual rent
(payable annually in advance) of a sum equal to 1.7297 dollars per hectare per
annum calculated on the total area of land for the time being the subject of
the mineral lease. The said rent shall run as from the date of the granting of
the mineral lease and the first payment of rent shall become due and payable
within one month of the grant of the mineral lease notwithstanding that the
survey mentioned in subclause (2) of this Clause may not have been commenced
or completed or the instrument for the mineral lease may not have been issued.
Rights to other minerals 2
(5) The State shall to
such extent as may be reasonably practicable on the application of the Joint
Venturers from time to time grant to the Joint Venturers or assist them in
obtaining the grant of leases and other rights for limestone, dolomite,
granite, diorite, silica sand and other minerals and substances reasonably
required by the Joint Venturers for the purposes of this Agreement.
Other mining tenements 2
(6) The State shall
not during the continuance of this Agreement register any claim or grant any
lease or other mining tenement under the Mining Act or otherwise whereby any
person other than the Joint Venturers might under the laws relating to mining
or otherwise obtain any rights to mine or take natural substances (other than
petroleum as defined by the Petroleum Act 1967 ) from within the mineral lease
unless the Minister reasonably determines that the registration or grant is
not likely materially to prejudice or interfere with the Joint
Venturers’ operations hereunder.
Access over mineral lease 2
(7) The Joint
Venturers shall at all times permit the State and third parties (with or
without stock vehicles and rolling stock) to have access to and to pass over
the mineral lease (by separate route, road or railway) so long as that access
and passage does not materially prejudice or interfere with the operations of
the Joint Venturers under this Agreement.
State may resume land 2
12. 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 the land to the Joint Venturers. 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 pursuant to
this Clause.
Other Leases 2
13. (1) The State
shall in accordance with the approved proposals as and when required by the
Joint Venturers so to do cause to be granted to the Joint Venturers such other
leases of Crown lands as the parties may consider reasonable and necessary for
all or any of the following purposes namely town sites, private roads, railway
lines and sidings, tailing areas, over-burden areas, water pipelines, pumping
installations and reservoirs, airport, power transmission lines and stockpile
areas and for any other of the purposes of this Agreement. Such leases shall
be granted for such periods at such rentals and upon and subject to such other
terms and conditions as shall be reasonable having regard to the obligations
of the Joint Venturers under this Agreement.
Special Leases 2
(2) Pursuant to
subclause (1) of this Clause the State shall when required by the Joint
Venturers so to do cause to be granted to them —
(a) a
special lease (or special leases) of Crown land at the mine townsite for
residential, professional, business, commercial and industrial purposes and
for the purpose of providing communal facilities. Such special lease shall be
granted upon all usual terms and conditions and in particular shall contain
the following provisions —
(i)
the term thereof (unless sooner determined) shall expire
on the same date as that on which the term of the mineral lease or any renewal
thereof terminates or is determined;
(ii)
the rental payable thereunder shall be one peppercorn per
annum payable if and when demanded;
(iii)
the Joint Venturers shall have the right during the
continuance thereof to purchase (for a price comparable with that charged by
the State for other Crown land released for freehold sale in similar towns in
the general region of the Joint Venturers’ operations) the fee simple of
any parcel or lot being part of the land thereby demised on which the Joint
Venturers have erected buildings or structures (net being dwellings) costing
at least ten thousand dollars or dwellings costing at least seven thousand
dollars.
(b) a
special lease (or special leases) of Crown land at or near the port for
industrial stockpiling, ship loading, power generation and other similar
purposes. Such special lease shall be granted upon all usual terms and
conditions and in particular shall contain the following provisions —
(i)
the term thereof shall (unless sooner determined) expire
on the same date as that on which the term of the mineral lease or any renewal
thereof terminates or is determined;
(ii)
the rental payable thereunder shall be an annual rental
payable in advance of 4.9421 dollars per hectare during the first twenty one
years and thereafter shall be reviewed and fixed by agreement between the
parties or failing agreement referred to arbitration hereunder at seven year
intervals.
Additional rent 2
(c)
notwithstanding the provisions contained in the mineral lease or any other
lease granted pursuant to either of paragraphs (a) or (b) of this subclause
whereby the rent payable thereunder and the times at which such rent is so
payable are fixed the Joint Venturers shall during the continuance of this
Agreement from and after the commencement of Year 16 pay to the State as and
by way of an additional annual rent to that payable under such one or more of
such leases as the Joint Venturers may from time to time at their option in a
notice to the State designate a sum equal to 24.6052 cents per tonne on all
iron ore products sold and shipped after the commencement of Year 16 in
respect of which a royalty is payable under this Agreement such additional
rent to be paid at the same times and in the same manner as the said royalty.
No resumption 2
14. The State agrees that subject to the
performance by the Joint Venturers of their obligations hereunder the State
shall not resume or suffer or permit to be resumed by any instrumentality or
by any local or other authority of the said State any portion of the land the
subject of any special lease mentioned in subclause (2) of Clause 13 the
resumption of which would materially impede the Joint Venturers’ works
and activities thereon or any portion of the land the subject of the mineral
lease whereon any of the Joint Venturers’ works are situate the
resumption of which would materially impede the Joint Venturers’ mining
or other activities thereon nor shall the State create or grant or permit or
suffer to be created or granted by an instrumentality or authority of the said
State any road right of way or easement of any nature or kind whatsoever over
or in respect of the land comprised in the said leases whereon any of the
Joint Venturers’ works are situate without the consent in writing of the
Joint Venturers’ first had and obtained which consent the Joint
Venturers agree they shall not arbitrarily or unreasonably withhold.
No discriminatory rates 2
15. Except as provided by this Agreement the State
shall not impose or permit or suffer any instrumentality of the said State or
any local or other authority to impose discriminatory taxes, rates or charges
of any nature whatever 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 hereunder and the State shall not take or
permit any such instrumentality or any local or other authority to take any
other discriminatory action that would deprive the Joint Venturers of any
rights granted or intended to be granted to them under this Agreement.
Zoning 2
16. The State shall ensure that the mineral 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 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
17. 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 transportation processing and shipment of iron ore or iron ore
products) 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 .
Construction of plant 2
18. The Joint Venturers shall within four years
next following the date on which all the said proposals required to be
submitted hereunder have become approved proposals or at such later date as
the Minister may approve at a cost of not less than sixty million dollars
construct install provide and do all things necessary to enable them to mine
from the mineral lease to transport by rail to the Joint Venturers’
wharf and to commence shipment therefrom in commercial quantities at an annual
rate of not less than one million tonnes of iron ore and without lessening the
generality of this provision the Joint Venturers shall within the aforesaid
period or extended period as the case may be —
(a)
construct install and provide upon the mineral lease or in the vicinity
thereof or at the port (as the case may be) mining plant and equipment
crushing screening stock-piling and car loading plant and facilities power
house workshop and other things of a design and capacity adequate to enable
the Joint Venturers to meet and discharge their obligations hereunder and to
mine handle load and deal with not less than three thousand tonnes of iron ore
per day such capacity to be built up progressively to not less than ten
thousand tonnes of iron ore per day within three years next following the
export date;
Commencement of operations 2
(b)
actually commence to mine transport by rail and ship from the Joint
Venturers’ wharf iron ore from the mineral lease so that the average
annual rate during the first two years after export date shall not be less
than one million tonnes.
Construction of Railway 2
19. (1) Subject to the
State having assured to the Joint Venturers all necessary rights in or over
Crown Lands available for the purpose the Joint Venturers shall in a proper
and workmanlike manner and in accordance with recognised standards for
railways of a similar nature operating under similar conditions construct
along the route specified in the approved proposals (but subject to the
provisions of the Public Works Act 1902 , to the extent that they are
applicable) the standard gauge railway (1.4351 metres) specified in the
approved proposals and shall also construct inter alia any necessary
deviations, loops, spurs, sidings, crossings, points, bridges signalling
switches and other works and appurtenances and provide for crossing places and
(where appropriate and required by the Minister) grade separation or other
protective devices including flashing lights and boom gates at places where
the specified railway crosses or intersects with major roads or existing
railways (all of which together with the specified railway being hereinafter
referred to as “the said railway”) and shall operate the said
railway with sufficient and adequate locomotives freight cars and other
railway stock and equipment to haul at least one million tonnes of iron ore
per annum.
Operation of Railway 2
(2) The Joint
Venturers shall during the continuance of this Agreement operate the said
railway in a safe and proper manner and where they can do so without
materially prejudicing or interfering with their operations hereunder they
shall provide crossing places for livestock and also for any roads and other
railways which now exist or in the future may be constructed and which cross
or may be required to cross the said railway.
Passengers and freight 2
(3) Where they can do
so without materially prejudicing or interfering with their operations
hereunder and subject to the payment to them of the charges prescribed by and
for the time being payable under any by-laws made by the Joint Venturers in
respect of the transporting of passengers and the carriage of freight over the
said railway and subject to the due compliance with the other requirements and
conditions prescribed by such by-laws (or should there be no such by-laws for
the time being in force then subject to the payment of such charges and the
due compliance with such requirements and conditions as in either case shall
be reasonable having regard to the cost to the Joint Venturers of the
construction and operation of the said railway) the Joint Venturers shall if
and when reasonably required so to do transport passengers and carry the
freight of the State and third parties over the said railway but in relation
to their use of the said railway the Joint Venturers shall not be deemed to be
a common carrier at law or otherwise.
Roads Construction 2
20. (1) Subject to the
State having assured to the Joint Venturers all necessary rights in or over
Crown Lands available for the purpose the Joint Venturers shall at their own
cost and expense construct such new roads as they may reasonably require for
the purposes of this Agreement, such roads to be of such widths, of such
materials, with such gates and warning devices, crossings (level or grade
separated where required) and pass-overs for cattle sheep and other livestock
and along such routes as the parties shall agree after consideration of the
requirements of the Commissioner of Main Roads. Except to the extent that the
Joint Venturers’ relevant approved proposal otherwise provides, the
Joint Venturers shall allow the public to use free of charge any roads
constructed or upgraded pursuant to or for the purposes of this Agreement so
long as such use shall not materially prejudice or interfere with the Joint
Venturers’ operations hereunder.
Use of public roads 2
(2) The Joint
Venturers shall have the right to use any public roads that may from time to
time exist in the area of their operations under this Agreement both prior to
the commencement date and also in the course of their operations hereunder. If
the exercise by the Joint Venturers of such right results in or is likely to
result in intensive use of any public road whereby excessive damage or
deterioration is caused thereto or whereby the road becomes inadequate for use
by the Joint Venturers and the public the Joint Venturers shall upon demand
(except where and to the extent that the Commissioner of Main Roads agrees to
bear the whole or part of such cost) pay to the State or the local authority
concerned or other authority having control of such road the cost (or an
equitable proportion thereof having regard to the use of such road by others)
of preventing or making good such damage or deterioration or of upgrading the
road to a standard commensurate with the increased traffic.
Upgrading of roads 2
(3) If required by the
Joint Venturers the State shall at the Joint Venturers’ cost and expense
(except where and to the extent that the Commissioner of Main Roads agrees to
bear the whole or any part of the cost) widen upgrade or realign any public
road existing from time to time which the Joint Venturers desire to use for
their operations hereunder over which the State has control subject to the
prior approval of the Commissioner of Main Roads to the proposed work.
Liability for use of roads 2
(4) (a)
For the purpose of determining whether and 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 roads for the construction or
maintenance of which the Joint Venturers are responsible hereunder and for no
other purpose the Joint Venturers shall be deemed to be a municipality and the
said roads shall be deemed to be streets under the care control and management
of the Joint Venturers.
(b)
For the purposes of this subclause the terms
“municipality” “street” and “care control and
management” shall have the meanings which they respectively have in the
Local Government Act 1960 .
Water Coastal water requirements 2
21. (1) The Joint
Venturers shall from time to time give to the State not less than two
years’ notice in the form required by the Minister of their estimated
water consumption at the port and port townsite other than for construction
purposes (which amounts or such other amounts as shall be agreed between the
parties are hereinafter called “the Joint Venturers’ coastal water
requirements”).
Coastal water search 2
(2) Upon receipt of
any such notice the State shall in collaboration with the Joint Venturers and
in accordance with an agreed programme and budget at the expense of the Joint
Venturers search for suitable subterranean water sources in areas agreed to by
the parties.
Development of water sources 2
(3) In the event that
the search referred to in subclause (2) of this Clause identifies and proves
subterranean water sources which the parties agree are adequate to supply the
Joint Venturers’ coastal water requirements the State shall, in
accordance with an agreed programme and budget, construct or arrange to have
constructed at the Joint Venturers’ expense all bores, valves,
pipelines, meters, tanks, equipment and appurtenances (in this Clause called
“the water works”) necessary to supply the Joint Venturers’
coastal water requirements.
Additional capacity 2
(4) The State may in
its discretion construct the water works to achieve a capacity greater than
that needed to meet the Joint Venturers’ coastal water requirements and
in that event the Joint Venturers shall pay to the State a sum or sums to be
agreed between the parties as being the Joint Venturers’ fair share of
the cost of providing the said facilities works or appurtenances.
State to supply water 2
(5) The State shall
supply the Joint Venturers with water from sources developed by the State
pursuant to subclauses (3) and (4) of this Clause up to the amount and rate
set forth in the last notice given pursuant to subclause (1) of this Clause
PROVIDED HOWEVER that should such sources prove hydrologically inadequate to
meet the Joint Venturers’ coastal water requirements the State may limit
the amount of water which may be taken from such sources at any one time or
from time to time to the maximum which such sources are hydrologically capable
of meeting.
Inland water requirements 2
(6) The Joint
Venturers shall from time to time give to the State not less than six months
notice in the form required by the Minister in respect of their requirements
of water other than for construction purposes both at the mine townsite and
elsewhere associated with the mine development (but excluding the Joint
Venturers’ coastal water requirements) and within the mineral lease to
implement their obligations hereunder (which amounts or such other amounts as
shall be agreed between the parties are hereinafter called “the Joint
Venturers’ inland water requirements”).
Inland water search 2
(7) The Joint
Venturers shall in collaboration with the State search for and make
investigations to establish the availability of suitable subterranean water
sources within the mineral lease or at other locations approved by the
Minister (which approval shall not be unreasonably withheld) and shall employ
and retain experienced ground water consultants where appropriate and shall
furnish the Minister with copies of the consultants reports or alternatively
if so requested by the Joint Venturers the State shall carry out the said
search and investigations at the Joint Venturers’ expense.
Construction of water works 2
(8) In the event that
the search referred to in subclause (7) of this Clause identifies and proves
subterranean water sources which the parties agree are adequate to supply the
Joint Venturers’ inland water requirements, the Joint Venturers shall
provide and construct at their own expense to standards and in accordance with
designs approved by the Minister and in accordance with their relevant
proposals the water works necessary to draw transport use and dispose of water
drawn from sources licensed to the Joint Venturers pursuant to subclause (9)
of this Clause.
Licence 2
(9) The Joint
Venturers shall make application to the State for a licence to draw water up
to the amount and at a rate not greater than that set forth in the last notice
given pursuant to subclause (6) of this Clause from suitable subterranean
water sources identified pursuant to the search and investigation mentioned in
subclause (7) of this Clause and as are agreed to be adequate and the State
shall grant to the Joint Venturers such licence PROVIDED HOWEVER that should
such sources should prove hydrologically inadequate to meet the Joint
Venturers’ inland water requirements, the State may limit the amount of
water which may be taken from such sources at any one time or from time to
time to the maximum which such sources are hydrologically capable of meeting.
Revocation of licence 2
(10) If during the
currency of a licence granted under the provisions of this Clause the Minister
is of the opinion that it is desirable that the sources of water licensed to
the Joint Venturers and the water works established by the Joint Venturers
pursuant to subclause (8) of this Clause be made available to the State for
such purposes, inter alia as water conservation, water management, utilisation
of unused hydrological capacity, supply of water to third parties (where such
supply will not materially prejudice the Joint Venturers’ operations
hereunder) and establishment of a regional water supply system incorporating
the area of operations of the Joint Venturers, the Minister shall, (after
first affording the Joint Venturers an opportunity to consult with him), so
notify the Joint Venturers and the Joint Venturers shall after the expiration
of six months from the date of such notice relinquish to the State the
ownership control and operation of the water works. The State shall thereupon
assume the ownership control and operation of the water works and shall revoke
all relevant licenses previously issued to the Joint Venturers for the purpose
of enabling them to draw subterranean water. The State shall not be liable to
pay the Joint Venturers compensation in respect of the water works
relinquished or the licenses so revoked. immediately after the revocation of
such licenses the State shall (subject only to the continued hydrological
availability of water from such sources previously licensed to the Joint
Venturers), commence and thereafter continue to supply water to the Joint
Venturers up to the same amount and at the same rate as that which the Joint
Venturers would have been entitled to draw under such revoked licenses and the
proviso to subclause (9) of this Clause shall in like manner apply to this
subclause.
Regional water supply 2
(11) The State may in
its discretion develop any district or regional water supply and for the
purposes thereof construct water works to a greater capacity than that
required to supply the Joint Venturers’ inland water requirements but in
that event the cost of the water works so constructed shall be shared by the
parties in such manner as may be agreed to be fair in all the circumstances.
Non-potable water 2
(12) The Joint
Venturers shall so design and construct their plant and facilities for the
mining handling processing and transportation of iron ore that as far as
practicable non-potable water may be used therein.
Charges for water 2
(13) The Joint
Venturers shall pay to the State for all water supplied by it for the purposes
of this Agreement a fair price to be negotiated between the parties which
shall be equal to the actual cost incurred by the State in supplying water to
the Joint Venturers including operating maintenance and overhead costs and a
provision for replacement of the necessary water works. Notwithstanding the
foregoing the Joint Venturers shall pay to the State in respect of water
supplied by the State to the Joint Venturers for townsite purposes such
charges and rates as are levied from time to time pursuant to the provisions
of the Country Areas Water Supply Act 1947 .
Additional water search 2
(14) Should the State
at any time pursuant to the provisos to subclauses (5) and (9) of this Clause
limit the amount of water to be taken from the water sources therein
mentioned, the Joint Venturers shall collaborate with the State in a search at
the Joint Venturers’ expense for new or additional subterranean water
sources with a view to restoring the full quantity or quantities of water
required by the Joint Venturers and such search shall (if necessary and agreed
between the parties) extend to and include investigations into surface water
resources pursuant to subclause (15) of this Clause.
Surface water 2
(15) Without prejudice
to the provisions of subclause (9) of this Clause the Joint Venturers shall
collaborate with the State in an investigation of surface water catchments
storage dams and reticulation facilities should water supplies from available
underground sources prove insufficient to meet the Joint Venturers’
coastal water requirements and the Joint Venturers’ inland water
requirements and the Joint Venturers shall if they propose to utilise such
water catchments and/or storage dams pay to the State a sum or sums to be
agreed towards the cost of such investigation and towards the cost of
constructing any water storage dam or dams and reticulation facilities
required PROVIDED THAT the State may in its sole discretion elect to construct
a water storage dam or dams and reticulation facilities having a capacity in
excess of that required to supply the Joint Venturers’ needs and in that
event the Joint Venturers’ contribution shall be limited to a fair and
reasonable proportion of the total cost of constructing such water storage dam
or dams and reticulation facilities.
Rights in Water and Irrigation Act 2
(16) Any reference in
this Clause to a licence is a reference to a licence under the
Rights in Water and Irrigation Act 1914 and the provisions of that Act
relating to water rights and licences shall except where inconsistent with the
provisions of this Agreement apply to any water sources developed for the
Joint Venturers’ purposes under this Agreement.
Electricity 2
Electrical facilities 2
22. (1) The Joint
Venturers shall in accordance with the approved proposals construct without
cost or expense to the State the necessary plant equipment and systems (in
this Clause called “electricity facilities”) for the generation
and transmission of electricity needed to enable the Joint Venturers to carry
out their obligations hereunder. The Joint Venturers shall so design and
construct the electricity facilities as to facilitate their ultimate
connection with similar facilities owned by the Commission or other third
parties.
Purchase of electricity 2
(2) Notwithstanding
the provisions of subclause (1) of this Clause (and for the purpose of
facilitating integration of electricity generation and transmission facilities
in areas where the Joint Venturers operate) the Joint Venturers shall be at
liberty to purchase electricity from the Commission and third parties or to
negotiate with the Commission or third parties for the augmentation of the
facilities of the Commission and such third parties to enable them to supply
the Joint Venturers in lieu of the Joint Venturers providing electricity
facilities pursuant to subclause (1) of this Clause.
Acquisition of facilities 2
(3) The State may at
any time give to the Joint Venturers twelve months’ notice of its
intention to acquire and may thereafter acquire the Joint Venturers’
electricity facilities or any part thereof up to the first point of voltage
breakdown or such other appropriate point as may be agreed, at a price to be
agreed between the parties and the Joint Venturers shall take all such steps
as may be necessary to effect the acquisitions. The State undertakes that in
such event the Joint Venturers shall for their purposes hereunder have first
call on the power generated and transmitted by such electricity facilities so
acquired and the State undertakes subject only to its inability to supply
power for any of the reasons set forth in Clause 39 to supply the Joint
Venturers with power for their purposes hereunder up to the normal continuous
full load capacity of the electricity facilities so acquired and that in the
event of such inability to supply power occurring the State shall take all
possible steps to restore such supply regardless of the time or day when such
inability arises and may call upon the Joint Venturers to provide employees
for that purpose at the State’s expense.
Charges for electricity 2
(4) In the event of
the State acquiring the Joint Venturers’ electricity facilities the
Joint Venturers shall pay to the Commission the cost of all electricity
supplied to the Joint Venturers by the Commission at a rate equal to the
standard tariff from time to time applying to the Commission’s system
less the difference (if any) between the Commission’s standard tariff in
force at the time of the State’s acquisition of the electricity
facilities and the Joint Venturers’ costs of operating the electricity
facilities (including inter alia appropriate capital charges) at the time of
the said acquisition. The Commission’s rate for electricity supplied
calculated as aforesaid shall apply only in respect of an amount of
electricity equal to the continuous full load capacity of the electricity
facilities so acquired and the Joint Venturers shall pay for all electricity
supplied to them by the Commission in excess of such amount at the
Commission’s standard tariff applicable from time to time.
Bulk supply to State 2
(5) Should the Joint
Venturers’ relevant approved proposal provide for the Commission to
reticulate electricity to houses occupied by the Joint Venturers’
work-force and by any other persons connected directly with the Joint
Venturers’ operations whether employees or not and to commercial
establishments directly connected with such operations, the Joint Venturers
shall sell to the Commission in bulk electricity in sufficient quantities to
meet the needs of such workforce persons and establishments at a price equal
to the Joint Venturers’ actual cost of generating and transmitting such
electricity including, inter alia , appropriate capital charges.
Port and Joint Venturers’ wharf 2
23. (1)
(a) The Joint Venturers shall develop the port,
construct the Joint Venturers’ wharf and carry out all necessary
dredging of approach channels, swinging basin and berth at the Joint Venturers
wharf and provide all necessary buoys, beacons, markers, navigational aids,
lighting equipment and services and facilities (including where necessary tugs
pilot boats and accommodation for the crews involved) in accordance with the
Joint Venturers’ relevant approved proposal.
(b)
Notwithstanding the provisions of paragraph (a) of
this subclause, the parties recognise that it may be to their advantage for
the State to provide all or some of the said works mentioned in the said
paragraph and in such case the State shall confer with the Joint Venturers and
the other users and potential users of the port as to the manner in which and
the terms and conditions upon which the State should provide such works. The
Joint Venturers shall pay to the State such sum or sums as the parties agree
(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 provided by the
State.
Use of wharf and facilities 2
(2) (a)
Subject to the payment to them of the charges
prescribed by and for the time being payable under any by-laws made by the
Joint Venturers in respect of the use by others of the Joint Venturers’
wharf and subject to the due compliance with the other requirements and
conditions prescribed by such by-laws or should there be no such by-laws for
the time being in force then subject to the payment of such charges and the
due compliance with such requirements and conditions as in either case shall
be reasonable having regard to the cost to the Joint Venturers of the
construction and operation of the Joint Venturers’ wharf the Joint
Venturers shall permit the State and third parties to use the Joint
Venturers’ wharf and the port installations, wharf machinery equipment
and wharf and port services and port facilities constructed or provided and
maintained by the Joint Venturers in connection therewith if and for so long
as such user shall not materially prejudice or interfere with the operations
of the Joint Venturers under this Agreement.
(b)
Subject to the provisions of Clause 24 nothing in
this Agreement shall be construed to limit the application of the
Shipping and Pilotage Act 1967 .
No charge for the handling of cargoes 2
24. The State undertakes that subject to the Joint
Venturers at their expense providing all works buildings dredging and things
of a capital nature reasonably required for their operations hereunder at or
in the vicinity of the port no charge or levy shall be made by the State or by
any State agency authority or instrumentality in relation to the loading of
outward or the unloading of inward cargoes from the Joint Venturers’
wharf whether such cargoes shall be the property of the Joint Venturers or of
any other person or corporation but the State accepts no obligations to
undertake such loading or unloading and may make the usual charges from time
to time prevailing in respect of services rendered by the State or by any
State agency authority or instrumentality or by any local or other authority
on behalf of the State and may charge vessels using the Joint Venturers’
wharf ordinary light conservancy and tonneage dues.
Townsites Establishment 2
25. (1)
(a) Should the approved proposals provide for the
establishment of a new town at the port townsite or at the mine townsite or of
new towns at both places, the Joint Venturers shall at their own cost and in
accordance with the approved proposals —
(i)
provide at the townsite or at each townsite (as the case
may be) such housing accommodation services and works (including sewerage
reticulation and treatment works water supply works and main drainage works
and also social cultural and civil facilities) as may be necessary in order to
provide for the needs of persons (and the dependants of those persons)
connected directly with the Joint Venturers’ operations under this
Agreement, whether or not such persons are employed by the Joint Venturers;
(ii)
provide at the townsite or at each townsite (as the case
may be) all necessary public roads and buildings required for educational,
hospital, medical, police, recreation, fire and other services;
(iii)
provide all equipment required for the operation and
proper functioning of the services and works referred to in subparagraphs (i)
and (ii) of this paragraph; and
(iv)
service maintain and where necessary repair and renovate
the housing accommodation services and works mentioned in subparagraphs (i)
and (ii) of this paragraph.
(v)
(subject to and in accordance with by-laws from time to
time to be made and altered by the Joint Venturers which include provisions
for fair and reasonable prices rentals or charges or if no such by-laws are
made or in force then at such prices rentals or charges and upon and subject
to such terms and conditions as are fair and reasonable) ensure that the said
housing accommodation services and works are at all times readily available to
persons requiring the same being employees licensees or agents of the Joint
Venturers or persons engaged in providing a legitimate and normal service to
or for the Joint Venturers or their employees licensees or agents including
the dependants of such persons; and
(vi)
ensure that the roads buildings and other works mentioned
in subparagraph (ii) of this paragraph and the equipment mentioned in
subparagraph (iii) of this paragraph are readily available free of charge to
those desiring to use the same.
Limitation on Joint Venturers’ obligations 2
(b)
Nothing contained in paragraph (a) of this
subclause shall be construed as placing on the Joint Venturers an obligation
to provide and pay for personnel required to operate the educational hospital
medical or police services mentioned in that paragraph.
Equipment 2
(2) The Joint
Venturers shall at their own cost equip all the buildings mentioned in
paragraph (a) of subclause (1) of this Clause to the extent and of a standard
at least equal to that normally adopted by the State in similar types of
buildings used for similar purposes in comparable townsites.
Staff Housing 2
(3) The Joint
Venturers shall at their own cost provide adequate housing accommodation for
married and single staff directly connected with the educational hospital
medical and police services mentioned in subparagraphs (i) and (ii) of
paragraph (a) of subclause (1) of this Clause.
Existing Towns 2
(4) If the approved
proposals provide for the assimilation into any existing town of the whole or
part of the Joint Venturers’ workforce (including their dependants) and
any other persons (including their dependants) connected directly with the
Joint Venturers’ operations (whether employees of the Joint Venturers or
not) whereby the normal population of such existing town is increased then the
Joint Venturers shall subject to the provisions of subclause (3) of Clause (9)
bear the cost of the provision and maintenance at that existing town of the
matters mentioned in subparagraphs (i) (ii) and (iii) of paragraph (a) of
subclause (1) of this Clause to the extent as shall be necessary in order to
provide for the needs of the said increase in population of such existing
town. The said additional housing services works and equipment may be provided
by the State or by another party under an agreement with the State and in
either case shall be to the extent and of a standard at least equal to that
normally adopted by the State in similar types of buildings used for similar
purposes in comparable towns. The Joint Venturers shall pay to the State or
such other party such proportion of the cost of such additional housing
services works and equipment as is fair and reasonable having regard to the
extent of the said increase in the population of such existing town.
State services 2
(5) Should the
approved proposals place an obligation on the State to provide for any of the
matters mentioned in subparagraphs (i) (ii) and (iii) of paragraph (a) of
subclause (1) of this Clause or require the State to procure and accept the
responsibility of the provision of any services and facilities the State shall
provide or procure the provision of the same but (unless the approved
proposals otherwise provide) subject to the following conditions namely
—
(a) that
the State is satisfied that the need to provide such services and facilities
results from or is reasonably attributable to the Joint Venturers’
operations under this Agreement; and
(b) the
Joint Venturers agree to bear the capital cost involved and thereafter to pay
reasonable charges for the maintenance and operation of the said services or
facilities other than the operation charges in respect of education hospital
medical and police services.
Environmental protection 2
26. 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 the operations of the Joint Venturers hereunder that may be made by the
State or any State agency or instrumentality or any local or other authority
or statutory body of the State pursuant to any Act for the time being in
force.
Compliance with State laws 2
27. The Joint Venturers shall in the construction
operation maintenance and use of any work installation plant machinery
equipment service or facility provided or controlled by the Joint Venturers
comply with and observe the provisions of this Agreement and subject thereto
the laws for the time being in force in the said State;
Maintenance of Installations 2
28. The Joint Venturers shall at all times keep
and maintain in good repair and working order and where necessary replace all
such works installations plant machinery and equipment railways wharfs roads
(other than public roads unless and to the extent otherwise provided herein)
and water and power supplies for the time being the subject of this Agreement.
Use of local professional services labour and materials 2
29. The Joint Venturers shall for the purposes of
this Agreement as far as it is reasonably and economically practicable —
(a) use
the services of engineers, surveyors, architects and other professional
consultants resident and available within the said State;
(b) use
labour available within the said State;
(c) when
calling for tenders and letting contracts for works materials plant equipment
and supplies ensure that Western Australian suppliers manufacturers and
contractors are given reasonable opportunity to tender or quote; and
(d) give
proper consideration and where possible preference to Western Australian
suppliers manufacturers and contractors when letting contracts or placing
orders for works materials plant equipment and supplies where price quality
delivery and service are equal to or better than that obtainable elsewhere.
Commonwealth licences and consents 2
30. (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 of Australia necessary to enable or permit them 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) of this Clause.
Royalty 2
31. (1) The Joint
Venturers shall during the continuance of this Agreement pay to the State a
royalty on all iron ore products (other than iron ore shipped solely for
testing purposes) at the rates herein specified in respect of each particular
class of iron ore product as follows —
(a) on
iron ore products (being direct shipping ore and fine ore and fines not sold
or shipped separately as such) sold and shipped beyond the Commonwealth
— at the rate of seven and one half percentum 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 of such iron ore products) PROVIDED
NEVERTHELESS that subject as provided in paragraph (e) of this subclause the
total royalty payable under this paragraph shall not be less than the sum
ascertained by multiplying 59.0524 cents by the total weight in tonnes of such
iron ore products the subject of any shipment or sale.
(b) on
iron ore products (being fine ore and fines so sold or shipped separately as
such) sold and shipped beyond the Commonwealth — at the rate of seven
and one half percentum of the f.o.b. revenue (computed as mentioned in
paragraph (a) of this subclause) PROVIDED NEVERTHELESS that subject as
provided in paragraph (f) of this subclause the total royalty payable under
this paragraph shall not be less than the sum ascertained by multiplying
29.5262 cents by the total weight in tonnes of such iron ore products the
subject of any shipment or sale.
(c) on
iron ore products (being such as are produced by secondary processing locally
used ore) sold and shipped beyond the Commonwealth — at the rate of
14.7631 cents per tonne.
(d) on
any other iron ore products —
(i)
where the same are sold and shipped beyond the
Commonwealth — at the rate of seven and one half percentum of the f.o.b.
revenue (computed as aforesaid) without any minimum royalty;
(ii)
where the same are not so sold and shipped — at the
rate of 14.7631 cents per tonne.
(e) if
the amount ascertained by multiplying 59.0524 cents by the total weight in
tonnes of direct shipping ore shipped or sold (and liable to royalty under
paragraph (a) of this subclause) in any financial year 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;
(f) if
the amount ascertained by multiplying 29.5262 cents by the total weight in
tonnes of fine ore and fines shipped or sold separately as such (and liable to
royalty under paragraph (b) of this subclause) in any financial year is less
than the total royalty which would be payable in respect of that ore but for
the operation of that proviso to that paragraph then that proviso shall not
apply in respect of fine ore and fines shipped or sold separately as such in
that year and at the expiration of that year any necessary adjustments shall
be made;
(g) the
rate of royalty of 14.7631 cents per tonne mentioned in paragraph (c) and (d)
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 in accordance with any variation in the average of the basic prices
of foundry pig iron c.i.f. Australian capital city ports as announced by The
Broken Hill Proprietary Company Limited or any subsidiary thereof from time to
time during the calendar year immediately preceding the date at which the
adjustment is required to be made as compared with such average for the
calendar year 1963;
(h)
where iron ore products produced from secondary processing hereunder are so
produced from an admixture of iron ore from the mineral lease and other iron
ore, a portion (and a portion only) of the iron ore products so produced being
equal to the proportion which the amount of iron in the iron ore from the
mineral lease used in the production of those iron ore products bears to the
total amount of iron in the iron ore so used, shall be deemed to be produced
from iron ore from the mineral lease.
Payment of royalties 2
(2) The Joint
Venturers shall during the continuance of this Agreement within fourteen days
after the following quarter days namely the last days of March June September
and December in each year (commencing with the quarter day next following the
export date) furnish to the Minister a return showing the quantity of all iron
ore products on which royalty is payable hereunder and shipped sold or used
(as the case may be) during the quarter immediately preceding the due date of
the return and shall not later than two months after such due date pay to the
Minister the royalty payable in respect of such of the iron ore products
mentioned in subclause (1) of this Clause as are locally used and shall also
pay to the Minister in respect of such of the said iron ore products as are
shipped or sold a sum on account of the royalty payable hereunder calculated
on the basis of the invoices or provisional invoices (as the case may be)
rendered by the Joint Venturers to the purchaser (which invoices the Joint
Venturers shall render without delay and simultaneously shall furnish copies
thereof to the Minister) and shall from time to time when the f.o.b. revenue
realised in respect of the shipments has been ascertained in the next
following appropriate return and payment make (in the return and by cash) all
such necessary adjustments and give to the Minister full details thereof.
Inspection of Records 2
(3) The Joint
Venturers shall permit the Minister or his nominee at all reasonable times to
inspect the books of account and records of the Joint Venturers relative to
the Joint Venturers operations hereunder and to any shipment sale or use of
iron ore products hereunder including sales contracts and to take copies or
extracts therefrom. For the purpose of determining the f.o.b. revenue payable
in respect of any shipment or sale of iron ore products hereunder the Joint
Venturers shall take reasonable steps (either by the certificate of a
competent independent party or otherwise to the Minister’s reasonable
satisfaction) to satisfy the State as to the correctness of all relevant
weights assays and analyses and shall give due regard to any objection or
representation made by the Minister or his nominee as to any particular weight
assay or analysis that may affect the amount of royalty payable hereunder. The
information obtained by the Minister or his nominee as a result of any such
inspection shall be used for the purposes of verifying the amount of royalty
payable by the Joint Venturers and for no other purpose and shall not be
disclosed by the State the Minister or his nominee to any other party for any
other purpose.
Off-loading 2
32. (1) Subject to the
provisions of subclause (3) of this Clause the Joint Venturers shall not at
any time during the continuance of this Agreement, unless the Minister
otherwise permits, off-load or permit to be off-loaded any iron ore products
shipped pursuant to this Agreement at a place within the Commonwealth.
(2) Where iron ore
products are off-loaded in breach of subclause (1) of this Clause the Joint
Venturers shall forthwith after becoming aware of that event notify the
Minister and shall without prejudice to any other rights or remedies of the
State by reason of the breach on demand pay to the State such sum as the
Minister may determine but not more than a sum representing 98.4207 cents per
tonne on the quantity of iron ore products off-loaded.
(3) The Joint
Venturers shall not be deemed to have committed a breach of this Clause if
iron ore products are off-loaded at a place within the Commonwealth in any of
the following circumstances —
(a)
where the iron ore products are shipped in a vessel that is not owned by the
Joint Venturers or an associated company and the Joint Venturers satisfy the
Minister that they have taken appropriate steps to ensure that iron ore
products will not again be off-loaded in breach of this Clause; or
(b)
because the vessel in which the iron ore products are being carried is
unforeseeably diverted for necessary repairs or because of a force majeure or
other unforeseeable cause and the Joint Venturers satisfy the Minister that
because of any such event they could not take or be reasonably expected to
have taken steps to prevent the off-loading; or
(c)
where the weight of iron ore products off-loaded in any part of the
Commonwealth in any year and used by the Joint Venturers or an associated
company within the Commonwealth but outside the said State does not exceed
fifty per centum (or such other percentage as the Minister approves) of the
weight of locally used ore consumed used or otherwise applied in the said
State for that year.
Secondary Processing proposals 2
33. (1) The Joint
Venturers shall from time to time renew the investigations already commenced
by them as to the feasibility of establishing within the said State a plant
for secondary processing of iron ore from the mineral lease and will by the
end of Year 10 (or within such extended time as the Minister may allow) submit
to the Minister detailed proposals for the establishment of such a plant on
the following basis —
(a) the
plant to be of such design and dimensions that it will progressively have the
capacity to process annually —
(i)
by the end of Year 12 — not less than five hundred
thousand tonnes of iron ore;
(ii)
by the end of Year 13 — not less than one million
tonnes of iron ore;
(iii)
by the end of Year 16 — not less than two million
tonnes of iron ore;
(b) the
capital cost involved to be not less than forty million dollars unless the
Joint Venturers utilise a less expensive but at least equally satisfactory
method of secondary processing of iron ore than any at present known to either
party.
Consideration of proposals 2
(2) If such detailed
proposals are submitted by the Joint Venturers to the Minister within the time
mentioned in subclause (1) of this Clause the Minister shall within two months
of the receipt thereof give to the Joint Venturers notice either of his
approval of the said proposals or of any objections he has or alterations he
desires thereto. In the latter case the Minister shall afford the Joint
Venturers an opportunity to consult with and to submit new or further
proposals to him and if within thirty days after receipt of such notice
agreement is not reached as to the said proposals the Joint Venturers may
within a further period of thirty days by notice to the State elect to refer
to arbitration as hereinafter provided any question as to the reasonableness
of the Minister’s decision. If by the award on the arbitration the
question is decided in favour of the Joint Venturers the Minister shall be
deemed to have approved of the said proposals as submitted by the Joint
Venturers.
Failure to submit proposals 2
(3) If such detailed
proposals are not submitted by the Joint Venturers to the Minister within the
time mentioned in subclause (1) of this Clause or if such proposals are so
submitted but are not approved by the Minister within two months of receipt
thereof (or within such further time as the Minister may desire to take before
delivering his decision) then the following provisions shall apply —
(a)
subject as provided in paragraph (c) of this subclause the Joint Venturers
shall not after the end of Year 12 export iron ore hereunder at an annual rate
in excess of five million tonnes unless prior to Year 10 the Minister has
already approved of the Joint Venturers entering into a contract or contracts
for the export of iron ore at an annual rate in excess of five million tonnes
and —
(b) if
by the end of Year 13 the State gives to the Joint Venturers notice that some
other company or party (hereinafter referred to as “the Third
Party”) has agreed to establish within the said State a plant for
secondary processing of iron ore from the mineral lease on terms not more
favourable on the whole to the Third Party than those proposed by or available
to the Joint Venturers hereunder then this Agreement shall (subject as
hereinafter provided) cease and determine at the end of Year 21 or at the date
on which the Third Party shall substantially establish the said plant in
accordance with terms agreed between the State and the Third Party whichever
date is the later;
(c) if
by the end of Year 13 the State has not given to the Joint Venturers a notice
pursuant to the provisions of paragraph (b) of this subclause then the
provisions of paragraph (a) of this subclause shall as from the end of Year 13
cease to operate and have effect;
Submission of proposals after Year 10 2
(4) Notwithstanding
the provisions of subclause (3) of this Clause the Joint Venturers may
nevertheless at any time after the end of Year 10 submit proposals for the
establishment of the said plant if at the time they have not received a notice
pursuant to the provisions of paragraph (b) of the subclause (3) of this
Clause and the provisions of subclause (2) of this Clause shall apply to such
proposals but the Joint Venturers may not submit such proposals between the
end of Year 10 and the end of Year 21 if during that time they receive notice
from the Minister that he is negotiating with the Third Party and such notice
is not subsequently withdrawn. In the event of negotiations between the
Minister and the Third Party being terminated the Minister shall withdraw such
notice.
Failure not a default 2
(5) Notwithstanding
anything contained herein the failure by the Joint Venturers to submit
proposals to the Minister pursuant to subclause (1) of this Clause or the
non-approval by the Minister of any proposals so submitted shall not
constitute a breach of this Agreement by the Joint Venturers but subject as
herein otherwise provided the only consequence arising from such failure or
non-approval will be that set out in subclause (3) of this Clause.
Provisions applying to proposals 2
(6) Subject as in this
Clause otherwise provided the provisions of Clauses 7, 8 and 9 shall apply
mutatis mutandis to detailed proposals made pursuant to this Clause.
Iron and Steel Industry 2
34. (1) The Joint
Venturers shall in due course during the continuance of this Agreement
investigate the feasibility of establishing an integrated iron and steel
industry within the said State and shall by the end of Year 20 (or within such
extended time as the Minister may allow) submit to the Minister detailed
proposals —
EITHER for the establishment of such an industry,
to be capable ultimately of producing one million tonnes of steel per annum on
the following basis —
(a) the
extent dimension design and construction thereof to be such that will permit
the same having the capacity to produce progressively annually —
(i)
by the end of Year 25 — not less than five hundred
thousand tonnes of processed products consisting of pig iron, foundry iron and
steel of which not less than two hundred and fifty thousand tonnes shall be
steel;
(ii)
by the end of Year 29 — not less than one million
tonnes of processed products of which not less than five hundred thousand
tonnes shall be steel;
(iii)
by the end of Year 31 — not less than one million
tonnes of processed product which shall be comprised entirely of steel;
(b) the
capital cost involved to be not less than one hundred million dollars unless
the Joint Venturers utilise a less expensive but at least equally satisfactory
method of production than any at present known to either of the parties.
OR for joining with an existing or proposed iron
and steel making venture within the said State to produce steel pursuant to an
agreement with the State on a basis that the Joint Venturers’
obligations in that venture are not less than the Joint Venturers’
obligations referred to in the first alternative in this subclause.
(2) If before the end
of Year 20 such proposals are submitted by the Joint Venturers to the Minister
the State shall within two months of the receipt thereof give to the Joint
Venturers notice either of its approval of the proposals (which approval shall
not be unreasonably withheld) or of any objections raised or alterations
desired thereto and in the latter case shall afford to the Joint Venturers an
opportunity to consult with and to submit new proposals to the Minister. If
within thirty days of receipt of such notice agreement is not reached as to
the proposals the Joint Venturers may within a further period of thirty days
elect by notice to the State to refer to arbitration as hereinafter provided
any dispute as to the reasonableness of the Minister’s decision. If by
the award on arbitration the question is decided in favour of the Joint
Venturers the Minister shall be deemed to have then approved the proposals of
the Joint Venturers.
(3) If such proposals
are not submitted by the Joint Venturers to the Minister before the end of
Year 20 or if such proposals are so submitted but are not approved by the
Minister within two months after receipt thereof then if by the end of Year 23
(or extended date if any) the State gives to the Joint Venturers notice that
some other company or party (hereinafter referred to as “the Fourth
Party”) has agreed to establish either —
(a) a
plant for secondary processing within the said State of iron ore from the
mineral lease (if proposals by the Joint Venturers for the establishment of
such a plant have not previously been submitted to and approved by the
Minister) on terms not more favourable on the whole to the Fourth Party than
those proposed by or available to the Joint Venturers hereunder; or
(b) an
integrated iron and steel industry within the said State (using iron ore from
the mineral lease) on terms not more favourable on the whole to the Fourth
Party than those proposed by or available to the Joint Venturers hereunder;
then and in either case this Agreement shall cease and determine —
(i)
in the case of the Fourth Party proceeding with secondary
processing then when the Fourth Party has substantially established the plant
referred to in paragraph (a) of this subclause;
(ii)
in the case of the Fourth Party proceeding with an
integrated iron and steel industry then (if proposals by the Joint Venturers
for a plant for secondary processing have previously been submitted to and
approved by the Minister) at the end of Year 30 or at the date by which the
Fourth Party has substantially established that industry whichever is the
later; and
(iii)
in the case of the Fourth Party proceeding with an
integrated iron and steel industry then (if proposals by the Joint Venturers
for a plant for secondary processing have not previously been submitted to and
approved by the Minister) at the date by which the Fourth Party has
substantially established that industry.
(4) If by the end of
Year 23 (or extended date if any) the State has not given to the Joint
Venturers any such notice as is referred to in subclause (3) of this Clause
that subclause shall thereupon cease to have effect except that (to the extent
they can from time to time operate) the provisions of subclause (3) of this
Clause shall revive (for a period of three years) at the end of Year 33 and at
the end of each successive period of thirteen years thereafter in such a way
that each year referred to in that subclause shall be read as the year
thirteen years or (as the case may require) a multiple of thirteen years
thereafter (subject to extensions of dates if any as aforesaid).
(5) The Joint
Venturers may at any time after the end of Year 20 submit proposals for an
integrated iron and steel industry if at that time it has not received any
notice under subclause (3) of this Clause and the provisions of subclauses (1)
and (2) of this Clause shall apply to such proposals.
(6) Except as provided
in subclause (3) of this Clause this Agreement shall continue in operation
subject to compliance by the Joint Venturers with their obligations hereunder
and with such proposals by the Joint Venturers as are approved by the
Minister.
(7) Notwithstanding
anything contained herein no failure by the Joint Venturers to submit to the
Minister proposals as aforesaid nor any non-approval by the Minister of such
proposals shall constitute a breach of this Agreement by the Joint Venturers
and the only consequences arising from such failure or non-approval (as the
case may be) will be those set out in subclause (3) of this clause.
Substantial establishment 2
35. For the purposes of this Agreement the Third
Party or the Fourth Party shall be deemed to have substantially established a
plant for secondary processing or an integrated iron and steel industry when
and not before that party’s secondary processing plant has the capacity
to treat not less than two million tonnes of iron ore per annum or (as the
case may be) that party’s integrated iron and steel industry has the
capacity to produce one million tonnes of steel per annum and in either case
the Minister has notified the Joint Venturers that he is satisfied that that
party will proceed bona fide to operate its plant or industry.
Terms “not more favourable” 2
36. In deciding whether for the purposes of Clause
33 or Clause 34 the terms granted by the State to some Company or party are
not more favourable on the whole than those proposed by or available to the
Joint Venturers regard shall be had inter alia to all the obligations which
would have continued to devolve on the Joint Venturers had they proceeded with
secondary processing or (as the case may be) iron and steel manufacture or
steel manufacture including their obligations to mine transport by rail and
ship iron ore and restrictions relating thereto to pay rent additional rental
and royalty and (in the case of secondary processing by a third party pursuant
to Clause 33) to termination of rights as provided in Clause 34 if proposals
for iron and steel manufacture or steel manufacture are not brought to
fruition and also to the need for the other company or party to pay on a fair
and reasonable basis for or for the use of property accruing to the State and
made available by the State to that company or party but also to any
additional or equivalent obligations to the State assumed by that company or
party PROVIDED HOWEVER that if after the end of Year 33 the Minister gives
notice to the Joint Venturers under Clause 34 that another company or party
has agreed to establish either secondary processing or an integrated iron and
steel industry but not both then the latter company or party need not have any
obligation to establish both.
Supply of iron ore to others 2
37. The Joint Venturers covenant and agree with
the State that should the Joint Venturers remain in possession of the mineral
lease for any period during which the Third Party or the Fourth Party is
operating or is ready to operate a plant for secondary processing of iron ore
or an integrated iron and steel industry then during such period (whenever
commencing) the Joint Venturers shall supply the Third Party or the Fourth
Party or both (as the case may be) with iron ore (not exceeding in all five
million tonnes per annum unless otherwise agreed) —
(i)
at such rates and grades as may reasonably be available
and be required;
(ii)
at such points on the Joint Venturers’ railway;
(iii)
at such price; and
(iv)
on such other terms and conditions
as may be agreed between the Joint Venturers and the State or failing
agreement determined by arbitration PROVIDED ALWAYS that the price shall
unless otherwise agreed be equivalent to the total cost of production and
transport incurred by the Joint Venturers (including reasonable allowance for
depreciation and all overhead expenses) plus ten per centum of such total
cost.
Protection for current contracts 2
38. If this Agreement should cease and determine
pursuant to the provisions of Clause 33 or Clause 34 and if at the date of
such cessation or determination the Joint Venturers are under an obligation
arising under a current contract or contracts with some other party originally
entered into by them pursuant to proposals approved by the Minister to supply
iron ore to that other party the Joint Venturers may give notice of that fact
to the Minister and request the State to ensure that the Third Party or the
Fourth Party (as the case may be) takes over and assumes liability for the due
and punctual discharge of the Joint Venturers’ said obligations or
alternatively agrees to supply iron ore to enable them to discharge their said
obligations and the State shall forthwith upon receipt of such notice or as
soon as possible or practicable thereafter do or cause to be done all such
acts matters or things as may be fair and reasonable in the circumstances to
comply with the Joint Venturers’ said request.
Delays 2
39. This Agreement is deemed to be made subject to
any delays in the performance of the obligations hereunder and to the
temporary suspension of the 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 delays or
any such temporary suspension as aforesaid caused by or arising from Act of
God force majeure floods storms tempest washaways fire (unless caused by the
actual fault or privity of the Joint Venturers) act of war act of public
enemies riots civil commotions strikes lockouts stoppages restraint of labour
or other similar acts (whether partial or general) shortages of labour or
essential materials reasonable failure to secure contractors delays of
contractors and inability profitably to sell iron ore products 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 minimise the effect of such causes as
soon as possible after their occurrence.
Assignment 2
40. (1) Subject to the
provisions of this Clause the Joint Venturers or any of them may at any time
—
(a)
assign mortgage charge sublet or dispose of to an associated company as of
right or to any other company or person 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 any lease licence easement grant or other
title) and of the obligations of the Joint Venturers hereunder; and
(b)
appoint as of right an associated company or with the consent of the Minister
any other company or person to exercise all or any of the powers functions and
authorities that are or may be conferred on the Joint Venturers hereunder;
subject however to the
assignee or the appointee (as the case may be) executing in favour of the
State a deed of covenant in a form to be approved by the Minister to comply
with observe and perform the provisions hereof on the part of the Joint
Venturers to be complied with observed or performed in regard to the matter or
matters the subject of such assignment mortgage charge subletting disposition
or appointment.
(2) Notwithstanding
anything contained in or anything done under or pursuant to subclause (1) of
this Clause the Joint Venturers shall at all times during the currency of this
Agreement be and remain liable for the due and punctual performance and
observance of all the covenants and agreements on their part contained herein
and in any lease licence easement grant or other title the subject of an
assignment mortgage subletting or disposition or appointment under subclause
(1) of this Clause.
By-laws 2
41. The Governor in executive Council may upon the
recommendation of the Joint Venturers make alter and repeal by-laws for the
purpose of enabling the Joint Venturers to fulfil their obligations under
Clauses 19(2) 19(3) 22(5) and 23(2) and (unless and until the townsite
concerned is declared a townsite pursuant to Section 10 of the Land Act) under
Clause 25(1)(a)(v) upon terms and subject to conditions (including terms and
conditions as to user charging and limitation of the liability of the Joint
Venturers) consistent with the provisions hereof. If at any time it appears
that any by-law made hereunder has as a result of altered circumstances become
unreasonable or inapplicable then the Joint Venturers shall recommend to the
Governor that he makes 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) as may be decided by arbitration as herein
provided.
Determination of Agreement 2
42. (1) In any of the
following events namely —
(a) If
the Joint Venturers make default in the due performance or observance of any
of their obligations hereunder or in any lease sublease licence easement or
other title or document granted or assigned under this Agreement on their part
to be performed or observed and fail to remedy that default within a
reasonable time after notice specifying the default is given to them by the
State (or, if the alleged default is contested by the Joint Venturers and
promptly submitted to arbitration, within a reasonable time fixed by the
arbitration award where the question is decided against the Joint Venturers
and the Arbitrator finds that there was a bona fide dispute and that the Joint
Venturers had not been dilatory in pursuing the arbitration); or
(b) If
the Joint Venturers abandon their operations or repudiate their obligations
under this Agreement; or
(c) if
any of the Joint Venturers go into liquidation (other than voluntary
liquidation for the purpose of reconstruction) unless within three months next
following the date of such liquidation the other or others of the Joint
Venturers enter into an agreement with the Liquidator to acquire absolutely
the share estate and interest of the Joint Venturer in liquidation in or under
this Agreement and in or under the mineral lease and any other lease licence
easement or right granted hereunder or pursuant hereto;
the State may by notice to the Joint Venturers determine this Agreement and
the rights of the Joint Venturers hereunder and under any lease licence
easement or right granted hereunder or pursuant hereto shall thereupon cease
and determine.
(2) The State may,
instead of determining this Agreement as provided in subclause (1) of this
Clause, remedy or cause to be remedied any default on the part of the Joint
Venturers for which purpose the State shall have full power and authority by
its agents or workmen or otherwise to enter into and upon land occupied by the
Joint Venturers and to use all or any plant, machinery, equipment and
installations thereon and all costs and expenses incurred by the State in
remedying such default or causing the same to be remedied shall be a debt due
by the Joint Venturers to the State and be payable on demand.
Effect of cessation and determination of Agreement 2
43. (1) Upon the
cessation or determination of this Agreement —
(a)
except as otherwise agreed by the Minister the rights of the Joint Venturers
and those of any assignee or mortgagee of the Joint Venturers under this
Agreement or under the mineral lease or any other lease, licence, easement or
right granted hereunder or pursuant hereto and all the right title and
interest of the Joint Venturers and of any such assignee or mortgagee in and
to any land wherever situated granted to the Joint Venturers or to such
assignee for any other of the purposes of this Agreement shall thereupon cease
and determine, but without prejudice to the liability of either of the parties
in respect of any antecedent breach or default under this Agreement or in
respect of any indemnity given hereunder, and
(b) the
Joint Venturers shall forthwith pay to the State all monies that may then have
been payable or accrued due hereunder; and
(c)
except as provided in this Clause or otherwise provided in this Agreement
neither of the parties shall have any claim against the other of them in
respect to any matter or thing contained in or arising out of this Agreement.
(2) Subject to the
provisions of subclause (3) of this Clause upon the cessation or determination
of this Agreement all buildings erections and other improvements erected on
any land then occupied by the Joint Venturers or any associated company or
assignee of the Joint Venturers under the mineral lease or any other lease,
licence, easement right or grant made hereunder for the purpose hereof
(including the said railway and the appurtenances constructed pursuant to
subclause (1) of Clause 19 and including also the Joint Venturers’
wharf) 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) 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
locomotives rolling stock, or their electricity generating plant and
transmission system or any of their other fixed or movable plant and equipment
(excluding the said railway and appurtenances and the Joint Venturers’
wharf) from any part of the land occupied by them at the date of such
cessation or determination they shall give to the State notice of such desire
and thereby shall grant to the State the right or option exercisable within
three months thereafter to purchase in situ the said locomotives rolling stock
electricity generating plant transmission system and other fixed or moveable
plant and equipment or any part thereof at a fair valuation to be agreed
between the parties or failing agreement determined by arbitration hereunder.
Indemnity 2
44. 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 or arising out of
or in connection with the construction maintenance operation or use by them or
their servants agents contractors appointees or assignees of the works or
services constructed maintained operated or used by them under this Agreement
or the plant apparatus or equipment installed in connection therewith.
Variation 2
45. (1) The parties
may from time to time by agreement in writing add to substitute for cancel or
vary all or any of the provisions of this Agreement or of any lease licence
easement or right granted hereunder or pursuant hereto for the purpose of more
efficiently or satisfactorily implementing or facilitating any of the objects
of this Agreement.
(2) Where in the
opinion of the Minister an agreement made pursuant to subclause (1) of this
Clause constitutes a material or substantial alteration of the rights or
obligations of either party, the agreement shall contain a declaration to that
effect and the Minister shall cause that agreement to be laid upon the Table
of each House of Parliament within the twelve sitting days next following its
execution.
(3) If either House
does not pass a resolution disallowing the agreement, within twelve sitting
days of that House after the agreement has been laid before it, the agreement
shall have effect as and from the last day on which the agreement might have
been disallowed.
Power to extend periods 2
46. 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 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.
Notices 2
47. Any notice consent or other writing authorised
by 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 a senior
officer of the Public Service of the said State acting by the direction of the
Minister and forwarded by prepaid post to the Joint Venturers at their
respective registered offices for the time being in the said State or to a
corporation nominated by a Joint Venturer by notice in that behalf pursuant to
this Clause and at its registered office for the time being in the said State
or as otherwise designated in that notice and by the Joint Venturers if
executed by the Joint Venturers or signed on their behalf by any person or
persons authorised by the Joint Venturers in that behalf or by their
solicitors (which solicitors have been notified to the State from time to
time) and forwarded by prepaid post to the Minister at his office in Perth in
the said State and every such notice consent or writing shall be deemed to
have been duly given or sent on the day on which it would be delivered to the
addressee in the ordinary course of post.
Exemption from Stamp Duty 2
48. (1) The State
shall exempt from any stamp duty which but for the operation of this Clause
would or might be chargeable thereon —
(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 associated company or permitted assignee
of the Joint Venturers any tenement lease easement licence or other right or
interest;
(c) any
assignment sublease or disposition (other than by way of mortgage or charge)
and any appointment to or in favour of the Joint Venturers or an associated
company of any interest right obligation power function or authority made
pursuant to the provisions of Clause 40.
(2) This Clause does
not apply to any instrument or other document executed or made more than seven
years after the date of the execution hereof.
(3) If prior to the
date on which this Agreement comes into operation stamp duty has been assessed
and paid on any instrument or other document referred to in subclause (1) of
this Clause the State shall after the passing of the ratifying Act refund the
stamp duty paid on any such instrument or other document to the person by whom
it was paid.
Arbitration 2
49. (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 either party hereunder or as to any matter to be agreed upon
between the parties under this Agreement shall in default of agreement between
the parties and in the absence of any provision in this Agreement to the
contrary be referred to the arbitration of two arbitrators one to be appointed
by each party the arbitrators to appoint their umpire before proceeding in the
reference and every such arbitration shall be conducted in accordance with the
provisions of the Arbitration Act 1895 PROVIDED THAT except where this
Agreement makes express provisions for arbitration hereunder or except whereby
this Agreement the State or the Minister is required to act reasonably or not
to act unreasonably this Clause shall not apply to any case where the State or
the Minister is by this Agreement given either expressly or impliedly a power
or discretion to approve consent direct or otherwise act in any particular
way.
(2) 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.
Applicable Law 2
50. This Agreement shall be interpreted according
to the law for the time being in force in the said State.
THE SCHEDULE
WESTERN AUSTRALIA
Mining Act 1904-1971
MINERAL LEASE
LEASE No. MINERAL FIELD
ELIZABETH THE SECOND, by the Grace of God of the United Kingdom, Australia and
Her other Realms and Territories Queen, Head of the Commonwealth, Defender of
the Faith.
TO ALL TO WHOM THESE PRESENTS shall come, GREETING:
KNOW YE that —
WHEREAS by an Agreement made the day of
1972 BETWEEN
the Honourable JOHN TREZISE TONKIN MLA the Premier of the State of Western
Australia acting for and on behalf of the said State and its instrumentalities
for the time being (hereinafter called “the State”) of the one
part and CONSOLIDATED GOLD FIELDS AUSTRALIA LIMITED a company incorporated
under the Companies Ordinances of the Australian Capital Territory and having
its executive office at Gold Fields House Sydney Cove in the State of New
South Wales and its registered office in the said State at 156 Saint
George’s Terrace Perth CYPRUS MINES CORPORATION a corporation
incorporated in the State of New York in the United States of America and
having its executive offices situate at 1234 Pacific Mutual Building 523 West
Sixth Street Los Angeles California in the United States of America UTAH
DEVELOPMENT COMPANY a corporation incorporated under the laws of the State of
Nevada in the United States of America with its executive offices situate at
55 California Street San Francisco in the said United States of America and
having its registered office in the State of Queensland at Pearl Assurance
House at the corner of Queen and Eagle Streets Brisbane HANCOCK PROSPECTING
PTY LTD a company incorporated in the said State and having its registered
office situate at the 14th Floor Lombard House 251 Adelaide Terrace Perth in
the said State WRIGHT PROSPECTING PTY LTD a company incorporated in the said
State and having its registered office situate at the 14th Floor Lombard House
251 Adelaide Terrace Perth in the said State and M. I. M. HOLDINGS LIMITED a
company incorporated in the State of Queensland and having its registered
office situate at 363 Adelaide Street, Brisbane (in the said Agreement and
herein called “the Joint Venturers” which expression shall where
the context so admits or requires extend to and include the Joint Venturers
jointly and each of them severally their and each of their successors and
permitted assigns and appointees) of the other part (being the agreement
referred to in section 2 of the Iron Ore (McCameys Monster) Agreement
Authorization Act 1972 ) the State agreed to cause to be granted to the Joint
Venturers a mineral lease or leases.
AND WHEREAS the said Agreement was executed by the State pursuant to the
authority granted by the Iron Ore (McCameys Monster) Agreement Authorization
Act 1972 and the same operates and takes effect as provided in the said Act.
NOW WE in consideration of the rents and royalties reserved by and of the
provisions of the said Agreement and in pursuance of the said Act DO BY THESE
PRESENTS GRANT AND DEMISE unto the Joint Venturers as tenants in common in
equal shares subject to the said provisions ALL THOSE pieces and parcels of
land
situated in the Mineral Field containing
approximately hectares (subject to such corrections as may
be necessary to accord with the survey when made) and particularly described
and delineated on the plan in the Schedule hereto and all those mines, veins,
seams, lodes and deposits of iron ore in on or under the said land
(hereinafter called “the said mine”) together with all rights,
liberties easements advantages and appurtenances thereto belonging or
appertaining to a lessee of a mineral lease under the Mining Act 1904 ,
including all amendments thereof for the time being in force and all
regulations made thereunder for the time being in force (which Act and
regulations are hereinafter referred to as “the Mining Act”) or to
which the Joint Venturers are entitled under the said Agreement TO HOLD the
said land and mine and all and singular the premises hereby demised for the
full term of twenty-one years from the
day of
19 with the right to renew the same from time to time for further
periods each of twenty-one years as provided in but subject to the said
Agreement for the purposes of the said Agreement but upon and subject to the
terms covenants and conditions set out in the said Agreement and to the Mining
Act (as modified by the said Agreement) YIELDING and paying therefor the rent
and royalties as set out in the said Agreement. AND WE do hereby declare that
this lease is subject to the observance and performance by the Joint Venturers
of the following covenants and conditions, that is to say —
(1) That the Joint
Venturers shall and will use the land ‘ bona fide ’ exclusively
for the purposes of the said Agreement.
(2) Subject to the
provisions of the said Agreement the Joint Venturers shall and will observe,
perform, and carry out the provisions of the Mines Regulation Act 1946 , and
all amendments thereof for the time being in force and the regulations for the
time being in force made thereunder and (subject to and as modified by the
said Agreement) those of the Mining Act in so far as the same affect or have
reference to this lease.
(3) That the Joint
Venturers shall if required by the Minister for Mines supply information of a
geological nature relating to the Joint Venturers’ operations on the
demised land.
PROVIDED THAT this lease and any renewal thereof shall not be determined or
forfeited otherwise than under and in accordance with the provisions of the
said Agreement.
PROVIDED FURTHER that all petroleum on or below the surface of the demised
land is reserved to Her Majesty with the right to Her Majesty or any person
claiming under her or lawfully authorised in that behalf to have access to the
demised land for the purpose of searching for and for the operations of
obtaining petroleum in any part of the land under the provisions of the
Petroleum Act 1967 .
IN WITNESS whereof we have caused our Minister for Mines to affix his seal and
set his hand hereto at Perth in our said State of Western Australia and the
common seals of the Joint Venturers have been affixed hereto this
day of 19
THE SCHEDULE ABOVE REFERRED TO
IN WITNESS WHEREOF this Agreement has been executed the day and year first
hereinbefore written.
|
SIGNED by the said THE |
|
Minister for Development
and Decentralisation
Minister for Mines
|
SIGNED SEALED AND DELIVERED for and on behalf of CONSOLIDATED GOLD FIELDS
AUSTRALIA LIMITED by its duly authorised agent in the presence of — |
|
|
SIGNED SEALED AND DELIVERED for and on behalf of CYPRUS MINES CORPORATION by
its duly authorised agent in the presence of — |
|
|
SIGNED SEALED AND DELIVERED for and on behalf of UTAH DEVELOPMENT COMPANY by
its duly authorised agent in the presence of — |
|
|
THE COMMON SEAL of M.I.M. HOLDINGS LIMITED was hereunto affixed with the
authority of a resolution of the Board of Directors in the presence of —
|
|
|
THE COMMON SEAL of HANCOCK PROSPECTING PTY. LTD. was hereunto affixed by the
Governing Director LANGLEY GEORGE HANCOCK in accordance with the Articles of
Association |
|
|
THE COMMON SEAL of WRIGHT PROSPECTING PTY. LTD. was hereunto affixed by
authority of the Directors and in the presence of — |
|
Director
Secretary
