[s. 3 and 7]
[Heading amended: No. 32 of 2020 s. 8.]
THIS AGREEMENT is made the fifth day of December 2001
B E T W E E N:
THE HONOURABLE GEOFFREY IAN GALLOP , BEc, MA, MPhil, DPhil, MLA, Premier of
the State of Western Australia, acting for and on behalf of the said State and
its instrumentalities from time to time (hereinafter called “the
State”) of the first part, MINERALOGY PTY. LTD. ACN 010 582 680 a
company incorporated in the State of Queensland and having its registered
office there at ‘Mineralogy House’, Level 8, 135 Wickham Terrace,
Spring Hill (hereinafter called “the Company” in which term shall
be included its successors and permitted assigns) of the second part, AUSTEEL
PTY. LTD. ACN 058 430 032 a company incorporated in the State of Queensland
and having its registered office in Western Australia at Level 4 ‘St
Georges Square’, 225 St Georges Terrace, Perth of the third part,
BALMORAL IRON PTY. LTD. ACN 058 429 931 a company incorporated in the State of
Queensland and having its registered office there at ‘Mineralogy
House’ Level 8, 135 Wickham Terrace, Spring Hill of the fourth part,
BELLSWATER PTY. LTD. ACN 058 429 708 a company incorporated in the State of
Queensland and having its registered office there at ‘Mineralogy
House’ Level 8, 135 Wickham Terrace, Spring Hill of
the fifth part, BRUNEI STEEL PTY. LTD. ACN 058 429 977 a company
incorporated in the State of Queensland and having its registered office there
at ‘Mineralogy House’ Level 8, 135 Wickham Terrace, Spring Hill of
the sixth part, INTERNATIONAL MINERALS PTY. LTD. ACN 058 341 638 a company
incorporated in the State of Queensland and having its registered office there
at ‘Mineralogy House’ Level 8, 135 Wickham Terrace, Spring Hill of
the seventh part and KOREAN STEEL PTY. LTD. ACN 058 429 600 a company
incorporated in the State of Queensland and having its registered office there
at ‘Mineralogy House’ Level 8, 135 Wickham Terrace, Spring Hill of
the eighth part (the parties of the third to eighth parts being hereinafter
called “the Co-Proponents” in which term shall be included their
respective successors and permitted assigns).
W H E R E A S:
(a) The
Company is the holder of mining tenements in the Pilbara region;
(b) The
Company has granted various rights in relation to certain of the said mining
tenements to the Co-Proponents as set out in the Subsidiary agreements (as
hereinafter defined);
(c) The
Company by itself or in conjunction with one or more of the Co-Proponents
wishes to develop projects incorporating -
(i)
the mining and concentration of iron ore in Area A (as
hereinafter defined);
(ii)
the processing of that iron ore predominantly as
magnetite in Area A or elsewhere in the Pilbara region principally for the
production and sale of high grade pellets, direct reduced iron and/or hot
briquetted iron or steel;
(iii)
the transport of magnetite concentrates and processed
iron ore within the Pilbara region;
(iv)
the establishment of new port facilities in the Pilbara
region; and
(v)
the shipping of processed iron ore through such port
facilities;
(d) The
State, for the purpose of promoting employment opportunity and industrial
development in Western Australia, has agreed to assist the establishment of
the proposed projects upon and subject to the terms of this Agreement.
NOW THIS AGREEMENT WITNESSES:
Definitions
1. In this Agreement
subject to the context -
“advise”, “apply”,
“approve”, “approval”, “consent”,
“certify”, “direct”, “disclose”,
“notify”, “request”, or “require”, means
advise, apply, approve, approval, consent, certify, direct, disclose, notify,
request, or require in writing as the case may be and any inflexion or
derivation of any of those words has a corresponding meaning;
“Ancillary Tenement” means any mining
tenement that may be granted under the Mining Act to the Company pursuant to
its applications for general purpose leases 08/51 to 08/55 and its application
for miscellaneous licence 08/20 and according to the requirements of the
context shall describe the area of land demised as well as the instrument by
which it is demised;
“approved proposal” means a proposal
approved or deemed to be approved under this Agreement;
“Area A” means -
(a) such
portions of the areas near Cape Preston shown coloured red on Sheet 1 of Plan
1 as are from time to time held by the Company under -
(i)
mining leases 08/118 - 08/130 and 08/264 - 08/266;
(ii)
exploration licences 08/117, 08/118, 08/636 and 08/660;
(iii)
the exploration licence granted under subclause (1) of
Clause 9 in respect of the land previously the subject of exploration licence
08/643;
(iv)
the Ancillary Tenements;
(v)
any mining tenements issued to the Company in
substitution for the mining tenements set forth in paragraphs (i) to (iv) of
this definition; or
(vi)
any other titles to areas within the land coloured red on
Sheet 1 of Plan 1 granted to the Company in accordance with the approved
proposals; and
(b) any
mining lease included in Area A pursuant to subclause (7) of Clause 9;
“Area B1” means the areas near Robe
River coloured light green and marked “Area B1” on Plan 1
comprising the exploration licences granted under subclause (4) of Clause 9 in
respect of the land previously the subject of exploration licences 47/636,
47/637 and 47/638;
“Area B2” means the areas coloured
light blue and marked “Area B2” on Sheet 1 of Plan 1 and
comprising exploration licences 08/691 and 08/698;
“Area C” means the area coloured blue
and marked “Area C” on Plan 2;
“Area D” means the area coloured light
blue and marked “Area D” on Plan 2;
“Clause” means a clause of this
Agreement;
“commencement date” means the date the
Bill referred to in Clause 3 comes into operation as an Act;
“Common Use Land” means land the
subject of or proposed to be the subject of any lease, licence, easement or
other title granted under this Agreement the use of which is shared by
Projects or is proposed to be so shared in accordance with approved proposals;
“Commonwealth” means the Commonwealth
of Australia and includes the Government for the time being thereof;
“Company’s workforce” means the
persons (and the dependants of those persons) engaged whether as employees,
agents or contractors in the Project Proponents’ activities under this
Agreement in respect of Projects hereunder or any of them and includes the
persons (and the dependants of those persons) involved in the construction
phases of the Projects;
“Department” means the instrumentality
of the State from time to time assisting the Minister of the State responsible
for the administration of the Mining Act;
“DRI” means direct reduced iron and
includes HBI;
“EP Act” means the
Environmental Protection Act 1986 ;
“existing mining leases” means mining
leases 08/118 to 08/130;
“Export Credit Agency” means any
government agency or government owned entity, statutory body or government
controlled body to which the Company or any of the Co-Proponents intend to
apply for financial support, financial guarantees or finance to support the
construction or development of any project proposal submitted for approval
under this Agreement;
“further mining leases” means any
mining leases included in Area A pursuant to subclause (7) of Clause 9;
“Government Agreement” means a
Government agreement as defined in section 2 of the
Government Agreements Act 1979;
“HBI” means DRI in the form of hot
briquetted iron;
“high grade fine ore” means iron ore
of a nominal size of less than 6 millimetres with an iron content of greater
than 60% in its natural state;
“Indicated Mineral Resource” has the
meaning given to it in the Reporting Code;
“iron ore concentrates” mean iron ore
mined by Project Proponents pursuant to this Agreement and concentrated by
them to at least 65% Fe;
“LA Act” means the
Land Administration Act 1997 ;
“local government” means a local
government established under the Local Government Act 1995 ;
“magnetite” means iron ore
concentrates in the form of magnetite;
“Mining Act” means the Mining Act
1978 ;
“Mining Leases” means existing mining
leases and further mining leases that have been dedicated to a Project and any
mining leases granted pursuant to Clause 10 and according to the requirements
of the context shall describe the area of land demised as well as the
instrument by which it is demised;
“Minister” means the Minister in the
Government of the State for the time being responsible for the administration
of the Act to ratify this Agreement and pending the passing of that Act means
the Minister for the time being designated in a notice from the State to the
Company and includes the successors in office of the Minister;
“Minister for Mines” means the
Minister in the Government of the State for the time being responsible for the
administration of the Mining Act;
“month” means calendar month;
“native title rights and interests”
has the meaning given to it in the Native Title Act 1993 of the Commonwealth;
“notice” means notice in writing;
“person” or “persons”
includes bodies corporate;
“Plan 1” and “Plan 2” mean
respectively the plans marked “1” and “2” initialled
by or on behalf of the parties hereto for the purpose of identification;
“Plant areas” means areas on which
Project Proponents may establish processing, port and associated facilities
for production and/or shipping in accordance with approved proposals in Area A
or other area in the Pilbara agreed to between the Minister and the Company;
“private roads” means the roads
referred to in subclause (1) of Clause 13 and any other roads (whether within
or outside any areas held by the Company pursuant to this Agreement)
constructed by Project Proponents in accordance with an approved proposal or
agreed by the State and the Project Proponents to be a private road for the
purposes of this Agreement;
“Project 1” means a project or
projects for the production of high grade iron ore pellets within Western
Australia with subject to Clause 2(h) an initial minimum production capacity
of six million tonnes per annum (or lesser amount approved by the Minister)
from a mine or mines within Area A and a pellet production facility located
within Area A (or other area in the Pilbara region agreed to between the
Minister and the Project Proponents) including expansions of projects the
subject of approved proposals from time to time and may include inter alia a
mine, concentrator, port, desalination plant, pellet plant, power station,
pipelines and any other necessary facilities to enable pellets to be produced
transported and shipped and provision for the supply of a minor tonnage of
iron ore concentrates for use as heavy media in the coal washing industry;
“Project 2” means a project or
projects for the production of DRI within Western Australia with subject to
Clause 2(h) an initial minimum production capacity of two million tonnes per
annum (or lesser amount approved by the Minister) from a mine or mines within
Area A and a DRI production facility located within Area A (or other area in
the Pilbara region agreed to between the Minister and the Project Proponents)
including expansions of projects the subject of approved proposals from time
to time and may include inter alia a mine, concentrator, power station,
desalination plant, pellet plant, DRI plant, port, pipelines and any other
necessary facilities to enable DRI to be produced transported and shipped and
provision for the supply of a minor tonnage of iron ore concentrates for use
as heavy media in the coal washing industry;
“Project 3” means a project or
projects for the production of steel within Western Australia with subject to
Clause 2(h) an initial minimum production capacity of two million tonnes per
annum (or lesser amount approved by the Minister) from a mine or mines within
Area A and a DRI production facility located within Area A (or other area in
the Pilbara region agreed to between the Minister and the Project Proponents)
including expansions of projects the subject of approved proposals from time
to time and may include inter alia a mine, concentrator, power station,
desalination plant, pellet plant, DRI plant, steel making and rolling plant,
port, pipelines and any other necessary facilities to enable steel to be
produced transported and shipped and provision for the supply of a minor
tonnage of iron ore concentrates for use as heavy media in the coal washing
industry;
“Project” means a project of the type
of Project 1, Project 2 or Project 3 the subject of approved proposals or a
project made up of a combination of projects of the type of Project 1, Project
2 and/or Project 3 which subject to Clause 2(h) includes an aggregate
production capacity of a minimum of six million tonnes per annum (or lesser
amount approved by the Minister) of iron ore concentrates for input into a
plant or plants the subject of Project 1, Project 2 or Project 3;
“Project Proponents” means in relation
to each Project hereunder the Company or, where the proposals for a Project
are submitted by the Company and a Co-Proponent or Co-Proponents, the Company
and that Co-Proponent or those Co-Proponents;
“public road” means a road as defined
by the Road Traffic Act 1974 ;
“Reporting Code” means the
Australasian Code for Reporting of Identified Mineral Resources and Ore
Reserves, published by the Australasian Institute of Mining and Metallurgy,
the Australian Institute of Geoscientists and the Minerals Council of
Australia in July 1996 or any future superseding code issued by the same or
any future equivalent organisation or organisations;
“subclause” means subclause of the
Clause in which the term is used;
“Subsidiary agreements” means the
deeds and agreements set out in the First Schedule to this Agreement;
“this Agreement” “hereof”
and “hereunder” refer to this Agreement whether in its original
form or as from time to time added to varied or amended;
“wharf” includes any jetty structure.
Interpretation
2. In this Agreement -
(a)
monetary references are references to Australian currency unless otherwise
specifically expressed;
(b)
power given under any clause other than Clause 34 to extend any period or date
shall be without prejudice to the power of the Minister under Clause 34;
(c)
Clause headings do not affect the interpretation or construction;
(d)
words in the singular shall include the plural and words in the plural shall
include the singular according to the requirements of the context;
(e) one
gender includes the other genders;
(f)
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;
(g)
every covenant or agreement expressed or implied in this Agreement in which
more persons that one covenant and agree shall bind such persons and every two
or more of them jointly and each of them severally; and
(h) the
provisions for minimum production capacities contained in the definitions of
Project 1, Project 2, Project 3 and Project (in relation to a combination of
projects) in Clause 1 shall only apply to the first project of the type of
Project 1, Project 2 or Project 3 or a combination thereof which is approved
under Clause 7.
Initial obligations of the State
3. The State shall -
(a)
introduce by 31 December 2001 and sponsor a Bill in the Parliament of Western
Australia to ratify this Agreement and endeavour to secure its passage as an
Act prior to 30 June 2002 or such later dates as may be agreed between the
parties hereto; and
(b)
subject to the adequate protection of the environment (including flora and
fauna), the land affected (including improvements thereon) and sites of
aboriginal significance allow the Company and any Co-Proponent to enter upon
Crown Lands (including, if applicable, land the subject of a pastoral lease)
to the extent reasonably necessary for the purposes of undertaking their
obligations under subclause (1) of Clause 5.
Ratification and operation
4. (1) The provisions
of this Agreement other than this Clause and Clauses 1, 2 and 3 shall not come
into operation until the Bill referred to in Clause 3 has been passed by the
Parliament of Western Australia and comes into operation as an Act.
(2) If before 30 June
2002 or such later agreed date the said Bill has not commenced to operate as
an Act then, unless the parties hereto otherwise agree, this Agreement shall
then cease and determine and no party hereto shall have any claim against any
other party hereto with respect to any matter or thing arising out of, done,
performed, or omitted to be done or performed under this Agreement.
(3) On the said Bill
commencing to operate as an Act, this Agreement shall operate and take effect
according to its terms notwithstanding the provisions of any Act or law of
Western Australia.
Initial obligations of the Company
5. (1) The Company
shall keep the State fully informed as to the progress and results of its
field and office geological, geotechnical, engineering, environmental,
heritage, marketing and finance studies and other matters necessary to enable
it and any Co-Proponent to finalise and to submit the proposals referred to in
Clause 6 in respect of the first project of the type of Project 1, the first
project of the type of Project 2 and the first project of the type of Project
3 and shall report in writing thereon to the State at quarterly intervals or
such longer periods as may be approved by the Minister.
(2) With each report
pursuant to subclause (1) the Company shall also advise the State of the then
expected Western Australian and other Australian content of each Project and,
in relation to each Project, the matters the subject of subclause (4) of
Clause 12.
(3) The Company shall
co-operate with the State and consult with the representatives or officers of
the State regarding matters referred to in subclause (1) and any other
relevant studies in relation thereto that the Minister may wish to undertake
and shall join with the State in any studies into infrastructure that the
Minister and the Company agree should be undertaken.
Project proposals
6. (1) The Company
either alone or with a Co-Proponent shall subject to the EP Act and the
provisions of this Agreement submit to the Minister on or before 30 June 2003
to the fullest extent reasonably practicable its detailed proposals (including
plans where practicable and specifications where reasonably required by the
Minister and any other details normally required by the local government in
which area any of the works are to be situated) for a project or projects of
the type of Project 1, Project 2 or Project 3 or a combination thereof as
described in the definition of Project in Clause 1. Thereafter during the
currency of this Agreement the Company either alone or with a Co-Proponent may
subject as aforesaid make further such detailed proposals for new projects of
the type of Project 1, Project 2 or Project 3 or a combination thereof as
aforesaid. The detailed proposals made pursuant to this Clause in respect of a
project are in this Agreement called a “Project proposal”.
(2) Each Project
proposal shall address the establishment and operation of the project
concerned and make provision where appropriate for the Company’s
workforce required to enable the Project Proponents to mine, recover and
process iron ore and shall include the location, area, lay-out, design,
quantities, materials and time programme for the commencement and completion
of construction or the provision (as the case may be) of each of the following
matters, if and as they are applicable to the project namely -
(a)
(i) the mining and recovery
of iron ore and any other minerals necessary for use in the project, including
mining crushing screening concentration handling transport and storage of iron
ore and plant facilities; and
(ii)
any portion of Area A that the Project Proponents wish to
be included in a mining lease to be issued to the Company pursuant to Clause
10 in respect of the project and any existing mining lease or leases or
further mining lease or leases or Ancillary Tenement, or part thereof, the
subject of a sublease approved by the Minister under Clause 31 or a sublease
or a right to mine under the Subsidiary agreements, which the Project
Proponents propose to be dedicated to the project;
(b) the
plant or plants comprising the project the subject of the Project proposal for
processing of iron ore and the estimated capital cost of the project;
(c)
accommodation and ancillary facilities for the Company’s workforce;
(d)
temporary accommodation and ancillary facilities for the construction
workforce for the project;
(e)
water supply for process and other uses including water intake to and
discharge from any desalination plant and process plants;
(f)
electricity and gas supply and transmission;
(g)
transportation of iron ore concentrates and/or products of iron ore
concentrates;
(h)
dewatering of slurry and re-use of water;
(i)
disposal of waste rock and tailings;
(j)
Plant areas and construction lay-down areas;
(k)
Common Use Land;
(l)
production of final products from iron ore concentrates by pelletising and/or
direct reduction and/or steel making and disposal of residues;
(m) port
development works including wharf, jetty and causeway works, dredging and
dredge spoil disposal and storage and ship loading of the final products;
(n)
proposed infrastructure including causeways and corridors for roads, railway
(if applicable), pipelines, transmission lines and conveyors;
(o) any
other works, services or facilities desired by the Project Proponents;
(p) use
of local labour professional services manufacturers suppliers contractors and
materials and measures to be taken with respect to the engagement and training
of employees by the Project Proponents and their agents and contractors; and
(q) any
leases, licences or other tenures of land in favour of the Company required
from the State in respect of the project or for Common Use Land.
Order of proposals
(3) The proposals
constituting a Project proposal may with the approval of the Minister or if so
required by the Minister shall be submitted separately and in any order as to
the matter or matters mentioned in one or more of paragraphs (a) to (q) of
subclause (2).
Use of existing infrastructure
(4) Each Project
proposal may with the consent of the Minister and that of any other parties
concerned instead of providing for the construction of new facilities or
equipment or the provision of new services of the kind therein mentioned
provide for the use by the Project Proponents of any existing facilities
equipment or services of such kind belonging to the Company or the Project
Proponents or, upon terms and conditions agreed between the Company or the
Project Proponents as the case may be and the other parties concerned, of any
other existing facilities equipment or services of such kind.
Development of Cape Preston
(5) (a)
Proposals submitted pursuant to subclause (1) for
Plant areas in respect of any area within Area C and Area D or either of them
shall make reasonable provision for future third party use of port facilities
as provided for in subclause (3) of Clause 21 by providing for the development
of the Plant areas so far as practicable in Area C and providing for access to
Cape Preston.
(b)
Where it is necessary to develop Plant areas in Area D the Company or the
Project Proponents as the case may require shall make allowances for use by
others of areas in Area D for industrial purposes and access therefrom to Cape
Preston.
Additional submissions
(6) At the time when
Project Proponents submit each Project proposal pursuant to this Clause they
shall -
(a)
submit to the Minister details of any services (including any elements of the
project investigations design and management) and any works materials plant
equipment and supplies that they propose to consider obtaining from or having
carried out or permitting to be obtained from or carried out outside Australia
together with their reasons therefor and shall, if required by the Minister,
consult with the Minister with respect thereto; and
(b)
subject to subclause (7), demonstrate to the Minister’s satisfaction -
(i)
the availability of finance necessary to carry out and
complete the project the subject of the Project proposal; and
(ii)
the readiness of the Project Proponents in all other
respects to commence, complete and thereafter operate the project the subject
of the Project proposal.
(7) If the Project
Proponents notify the Minister at the time they submit a Project proposal that
they or one or more of them are applying to an Export Credit Agency for
financial support in connection with the project the subject of the Project
proposal, the Minister shall proceed with consideration of the Project
proposal pursuant to Clause 7 and the time for the Project Proponents’
compliance with subclause (6)(b) shall be extended to a maximum of 18 months
from the date of the notification of the application to the Minister or the
earlier withdrawal of the application and, notwithstanding any provision to
the contrary in this Agreement, until compliance by the Project Proponents
with subclause (6)(b) -
(a) any
approval by the Minister of the Project proposal may be given subject to such
compliance; and
(b) any requirement
upon the State to grant any lease licence or other title in relation to the
project the subject of the Project proposal shall be suspended.
(8) If the Minister is
not satisfied with any details provided pursuant to paragraph (b)(i) or (ii)
of subclause (6) (whether under subclause (6) or (7)) he shall notify the
Project Proponents of this within 30 days of receipt by him of those details
and shall afford the opportunity to the Project Proponents to submit further
or different evidence in relation thereto for his consideration. The Project
Proponents may submit to arbitration under this Agreement the question of the
reasonableness of the Minister’s decision on any evidence submitted
pursuant to paragraph (b)(i) or (ii) of subclause (6) or this subclause.
Consideration of proposals
7. (1) Subject to the
EP Act in respect of each proposal submitted pursuant to Clause 6 the Minister
shall -
(a)
approve of the proposal without qualification or reservation; or
(b)
defer consideration of or decision upon the same until such time as the
Project Proponents submit a further proposal or proposals in respect of some
other of the matters mentioned in subclause (2) of Clause 6 not covered by the
said proposal; or
(c)
require as a condition precedent to the giving of his approval to the said
proposal that the Project Proponents make such alteration thereto or comply
with such conditions in respect thereto as he thinks reasonable PROVIDED THAT
-
(i)
no such alteration or conditions shall require the
Project Proponents to grant access to their mineral resources to any third
party; and
(ii)
the Minister shall disclose his reasons for such
alteration or conditions,
PROVIDED ALWAYS that
where implementation of any proposals hereunder have been approved pursuant to
the EP Act subject to conditions or procedures, any approval or decision of
the Minister under this Clause shall, if the case so requires, incorporate a
requirement that the Project Proponents make such alterations to the proposals
as may be necessary to make them accord with those conditions or procedures.
Advice of Minister’s decision
(2) The Minister shall
within two months after receipt of proposals pursuant to Clause 6 give notice
to the Project Proponents of his decision in respect to the proposals PROVIDED
THAT -
(a)
where a proposal is to be assessed under section 40(1)(b) of the EP Act the
Minister shall be required to give notice to the Project Proponents of his
decision in respect to the proposal within 2 months after the later happening
of the receipt of the proposal and the service on him of an authority under
section 45(7) of the EP Act; and
(b)
where implementation of a proposal by the State will or may require the State
to do any act which affects any native title rights and interests the Minister
shall be required to give notice to the Project Proponents of his decision in
respect to the proposal not later than 2 months after the later happening of
the receipt of the proposal and the completion of all processes required by
laws relating to native title to be undertaken by the State before that act
may be done by the State.
Consultation with Minister
(3) If the decision of
the Minister is as mentioned in either of paragraphs (b) or (c) of subclause
(1) the Minister shall afford the Project Proponents full opportunity to
consult with him and should they so desire to submit new or revised proposals
either generally or in respect to some particular matter.
Minister’s decision subject to arbitration
(4) If the decision of
the Minister is as mentioned in either of paragraphs (b) or (c) of subclause
(1) and the Project Proponents consider that the decision is unreasonable the
Project Proponents within two months after receipt of the notice mentioned in
subclause (2) may elect to refer to arbitration in the manner hereinafter
provided the question of the reasonableness of the decision PROVIDED THAT any
requirement of the Minister pursuant to subclause (1) that the Project
Proponents shall alter their proposals to accord with conditions or procedures
the subject of an approval pursuant to the EP Act shall not be referable to
arbitration hereunder.
Arbitration award
(5) An award made on
an arbitration pursuant to subclause (4) shall have force and effect as
follows -
(a) if
by the award the dispute is decided against the Project Proponents then the
Project Proponents shall be deemed to have accepted such award unless within 3
months after delivery of the award the Project Proponents give notice to the
Minister that they do not accept the award. If the Project Proponents give
such notice this Agreement shall on the expiration of that period of 3 months
cease and determine as regards the project the subject of the Project proposal
and, in relation to the Project proposal, the person or persons who submitted
the Project proposal and neither the State nor that person or those persons
shall have any claim against the other of them with respect to the Project
proposal or the project the subject thereof or any matter or thing arising out
of done performed or omitted to be done or performed under this Agreement in
relation thereto; or
(b) if
by the award the dispute is decided in favour of the Project Proponents the
decision shall take effect as (and be deemed to be) a notice by the Minister
that he is so satisfied with and approves the matter or matters the subject of
the arbitration.
Implementation of proposals
(6) In respect of each
proposal hereunder the Project Proponents in relation thereto shall subject to
and in accordance with the EP Act and any approvals and licences required
under that Act implement the approved proposals in respect of the Project in
accordance with the terms thereof and subject to marketing arrangements and
reasonable maintenance and operational shut down requirements the Project
Proponents shall ensure continuous operation of the Project.
Effect of non-approval of proposals
(7) Notwithstanding
any provision of this Agreement or that under this Clause any proposals of
Project Proponents are approved by the Minister or deemed to be approved as a
consequence of an arbitration award, unless each and every proposal and matter
required pursuant to Clause 6 in respect of a project proposal for one project
(being a project of the type of Project 1, Project 2 or Project 3 or a
combination thereof as described in the definition of Project in Clause 1) is
so approved or deemed to be approved by 30 June 2004 then the Minister may
give to the Company and the Co-Proponents 12 months notice of intention to
determine this Agreement and unless before the expiration of the said 12
months period detailed proposals in respect of one such project are so
approved or deemed to be approved this Agreement shall on the expiration of
that period cease and determine subject however to the provisions of Clause
36.
Additional proposals
8. (1) If Project
Proponents at any time during the continuance of this Agreement desire to
significantly modify expand or otherwise vary their activities carried on
pursuant to this Agreement in relation to a Project beyond those activities
specified in the approved proposals relating to that Project they shall give
notice of such desire to the Minister and within 2 months thereafter shall
submit to the Minister detailed proposals in respect of all matters covered by
such notice and such of the other matters mentioned in paragraphs (a) to (q)
of subclause (2) of Clause 6 as are applicable to the Project and as the
Minister may require.
(2) The provisions of
Clause 6 and Clause 7 (other than subclauses (5)(a), (6) and (7)) shall
mutatis mutandis apply to detailed proposals submitted pursuant to this Clause
with the proviso that the Project Proponents may withdraw such proposals at
any time before approval thereof or, where any decision of the Minister in
respect thereof is referred to arbitration, within 3 months after the award by
notice to the Minister that they shall not be proceeding with the same. The
Project Proponents shall subject to and in accordance with the EP Act and any
approvals and licences required under that Act implement approved proposals
pursuant to this Clause in accordance with the terms thereof.
Mining tenements - Area A
9. (1) As soon as
reasonably possible after the commencement date the State shall cause to be
granted to the Company an exploration licence in respect of all the land
previously the subject of exploration licence 08/643 on the terms and
conditions that applied to that licence (including endorsement of authority to
explore for iron) as modified in subclause (2).
(2) During the
currency of this Agreement until, in the case of an existing mining lease or
further mining lease, dedication thereof to one of the Projects and, in any
other case, surrender of the tenement by the Company each of the mining
tenements comprising Area A shall, subject to compliance by the Company with
the terms and conditions applicable thereto (as modified by this Clause), be
held under and subject to the Mining Act modified as follows -
(a) as
regards existing mining leases 08/118 to 08/130, the rents payable in respect
thereof during the period from the grant thereof to the date of this Agreement
shall be at the rate applicable to retention licences and during the period
from the date of this Agreement to 31 December 2001 shall be at the rate
applicable to exploration licences;
(b) as
regards all the mining tenements -
(i)
the Company shall not be required to comply with any
expenditure conditions imposed by or under the Mining Act in regard thereto;
(ii)
any assignment, underletting or parting with possession
of the mining tenement shall be subject to Clause 31; and
(c)
(i) in respect of mining
leases and any Ancillary Tenements, the Company shall be entitled to a second
renewal of the terms thereof for a further period of 21 years;
(ii)
in respect of exploration licences, the Company shall be
entitled to annual extensions during the term of this Agreement and the
provisions of section 65 of the Mining Act shall not apply thereto; and
(iii)
on the cessation or determination of this Agreement any
existing mining lease and further mining lease (not being a mining lease which
has been dedicated to a Project) then within Area A and any Ancillary Tenement
shall continue in force under and subject to the Mining Act for the balance of
its unexpired term and any exploration licence then within Area A shall
thereupon be deemed to be an exploration licence granted under the Mining Act
on the date of cessation or determination of this Agreement and the Mining Act
shall apply thereto accordingly.
(3) Any rent paid by
the Company in respect of the mining leases referred to in paragraph (a) of
subclause (2) in excess of the rent required pursuant to that paragraph shall
be refunded to the Company as soon as possible following the commencement
date.
Area B1
(4) As soon as
reasonably possible after the commencement date the State shall cause to be
granted to the Company exploration licences in respect of all the land
previously the subject of exploration licences 47/636, 47/637 and 47/638.
(5) The exploration
licences granted under subclause (4) shall, subject to compliance by the
Company with the terms and conditions applicable thereto (as modified by this
Clause), be held under and subject to the Mining Act (with endorsement of
authority to explore for iron) modified as follows -
(a) the
deletion of section 65;
(b) the
term of each exploration licence shall be five years from the date of grant;
(c) the
Company shall not be required to comply with any expenditure condition imposed
by or under the Mining Act in regard thereto;
(d) any
assignment, underletting or parting with possession thereof shall be subject
to Clause 31;
(e) if
this Agreement ceases or determines during the term of an exploration licence
to which this Clause applies, the exploration licence shall continue in force
under and subject to the Mining Act for the balance of the term then current.
Area B2
(6) The provisions of
subclause (5) shall apply to each of the exploration licences comprising Area
B2 mutatis mutandis and as if the word “five” in paragraph (b) of
subclause (5) were deleted and substituted by the word “ten”.
Inclusion in Area A
(7) If from time to
time iron ore in an area within Area B1 or B2 is proved up to at least
Indicated Mineral Resource status or an area within Area B1 or B2 has been
otherwise explored for iron ore to the satisfaction of the Minister and the
Company holds a mining lease in respect of the area, the Company may apply to
the Minister for such a mining lease to be included in Area A and provided the
aggregate area of Area A, any Mining Leases granted pursuant to Clause 10 and
the area of the mining lease sought to be included in Area A shall not exceed
777 square kilometres the Minister will include the portion or portions
applied for in Area A. The Company may surrender land within Area A to reduce
the area thereof for the purpose of this subclause and the provisions of
paragraph (c)(ii) of subclause (8) shall apply mutatis mutandis to any such
surrender.
Withdrawal of tenements
(8) (a)
Subject to paragraph (c) of this subclause the
Company with the consent of the Minister may from time to time withdraw from
Area A any mining tenement held by the Company or part thereof within Area A
other than a mining lease dedicated to a Project or a mining lease granted
pursuant to Clause 10 or surrender such a tenement or part thereof to the
State Provided That the Minister will consent thereto if -
(i)
the tenement is not the whole or part of mining leases
08/123 to 08/125; and
(ii)
the Company has provided to the Minister a Mineral
Resources report signed by a Competent Person as defined in the Reporting Code
which confirms that there will be sufficient Indicated Mineral Resource of
magnetite of appropriate quality and grade remaining in Area A following the
proposed withdrawal of a tenement or part thereof to provide for the
establishment and operation for a minimum of 20 years of a project of the type
of Project 1 and a project of the type of Project 2 as contemplated by this
Agreement.
(b)
Subject to paragraph (c) of this subclause the Company may at any time by
notice to the Minister elect to withdraw any exploration licence within Area
B1 or Area B2 from the Area or may at any time surrender any such exploration
licence or part thereof.
(c)
(i) Any withdrawal of a
tenement or part thereof pursuant to paragraph (a) or (b) of this subclause is
subject to the Company warranting to the State that it has the consent of all
Co-Proponents who have any interest in the tenement to the withdrawal.
(ii)
Any surrender pursuant to paragraph (a) or (b) of this
subclause is subject to the prior surrender by all Co-Proponents who have any
interest or interests in the land to be surrendered of those interests.
(d) Any
mining tenement withdrawn from an Area pursuant to paragraph (a) or (b) of
this subclause shall cease upon such withdrawal to have the benefit of the
rights and privileges conferred by this Agreement, and any modification by
this Agreement of any Act or law in relation thereto shall cease to apply, but
otherwise -
(i)
any exploration licence within Area A shall thereupon be
deemed to be an exploration licence granted under the Mining Act on the day of
withdrawal from this Agreement and the Mining Act shall apply thereto
accordingly; and
(ii)
all other mining tenements shall continue in force under
and subject to the Mining Act for the balance of their then current terms.
Mining leases
10. (1) Where approved
proposals in respect of a Project provide for the issue of a mining lease of a
portion of Area A the State, on application by the Company not later than 3
months after the proposals have been approved and the Project Proponents have
complied with the provisions of subclause (6) of Clause 6 shall, on the
surrender of the land applied for out of the relevant mining tenement then
held by the Company, cause to be granted to the Company at the rents specified
from time to time in the Mining Act (subject to subclause (8)) a mining lease
for all minerals including iron of the land so applied for (notwithstanding
that the survey in respect thereof has not been completed but subject to such
corrections to accord with the survey when completed at the Company’s
expense) each such mining lease to be granted under and, except as otherwise
provided in this Agreement, subject to the Mining Act but in the form of the
Second Schedule to this Agreement and subject to such conditions or
stipulations consistent with the provisions of this Agreement and approved
proposals as the Minister for Mines with the concurrence of the Minister may
determine and to be for a period of 21 years commencing from the date of grant
thereof with the right during the currency of this Agreement to take an
automatic extension of the said term for two further periods each of 21 years
upon the same terms and conditions such extensions to apply upon the Company
making written application for the extension not later than one month before
the expiration of the then current term of the mining lease.
Existing and further mining leases
(2) (a)
Upon approval of proposals under which an existing mining lease or further
mining lease becomes dedicated to a Project the term of that mining lease
shall thereupon become for a term of 21 years commencing from the date of the
approval of those proposals with the right during the currency of this
Agreement to take an automatic extension of the said term for two further
periods each of 21 years upon the same terms and conditions such extensions to
apply upon the Company making written application for the extension not later
than one month before the expiration of the then current term of the mining
lease.
(b) An
existing mining lease or further mining lease or part thereof dedicated to a
Project in accordance with approved proposals shall subject to subclause (6)
remain dedicated during the term hereof to the Project to which it was
dedicated.
Exemption from expenditure conditions
(3) The State shall
ensure that during the currency of this Agreement and subject to compliance
with its obligations hereunder the Company shall not be required to comply
with the expenditure conditions imposed by or under the Mining Act in regard
to the Mining Leases.
Reports
(4) The Company shall
lodge with the Department in respect of all mining tenements within Area A,
Area B1 and Area B2 -
(a) such
periodical reports (except reports in the form of Form 5 of the
Mining Regulations 1981 or other reports relating to expenditure) and returns
as may be prescribed in respect of mining leases or exploration licences as
the case may be pursuant to the Mining Act;
(b) if
requested by the Department but not more frequently than annually, a report on
identified mineral resources and/or ore reserves within the said Areas (using
the Reporting Code) together with a list of any geological, geochemical,
geophysical, geotechnical and metallurgical activities carried out during the
year and, if requested by the Department, will provide details and results of
any of those activities in a mineral exploration report, or other technical
report, in accordance with the statutory guidelines on reporting as specified
in the Mining Act;
(c)
reports on drilling operations and drill holes where the main purpose of the
drilling was to discover or define future mineral resources and/or ore
resources within the said Areas and, if requested by the Department, reports
on drilling done within blocks of proven ore for the purpose of mine planning.
Access over Areas A, B1 and B2
(5) The Company the
Co-Proponents and the Project Proponents shall at all times permit the State
and third parties with the consent of the State (with or without stock,
vehicles and rolling stock) to have access to and to pass over Area A, Area B1
and Area B2 (by separate route, road or railway) so long as that access and
passage does not unduly prejudice or interfere with the activities of the
Company and Project Proponents under this Agreement.
Surrender of part of Mining Leases
(6) Subject to and in
accordance with section 95 of the Mining Act and subject to the prior
surrender by all Co-Proponents who have any interest or interests in the land
to be surrendered of those interests the Company may in relation to any
Project 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 the Mining Leases.
Stone sand clay and gravel
(7) The Project
Proponents in accordance with approved proposals may for the construction of
works (and the maintenance thereof) within the Mining Leases for the purposes
of this Agreement and without payment of royalty, obtain stone sand clay and
gravel from the Mining Leases.
Regulation 28A
(8) For the purpose of
this Agreement in respect of any Mining Lease regulation 28A of the
Mining Regulations 1981 shall be deemed modified -
(a) by
deleting “obtained” wherever it occurs and substituting in each
place the following -
“removed”;
(b) by
inserting the following subregulation -
“(4)
Where iron ore from a Mining Lease as defined in the
agreement
ratified by the Iron Ore Processing (Mineralogy Pty. Ltd.) Agreement Act [ ]
is concentrated into iron ore concentrates the rate per tonne under this
regulation shall apply to those iron ore concentrates in lieu of the iron ore
from which they were concentrated.”.
Royalties
11. (1) The Company
shall during the continuance of this Agreement pay to the State royalty on all
minerals (other than iron ore, iron ore concentrates, pellets or DRI shipped
solely for testing purposes and in respect of which no purchase price or other
consideration is payable or due) obtained from the Mining Leases as follows -
(a) on
iron ore concentrates processed under this Agreement (hereinafter referred to
in this Clause as “the input”) - royalty assessed on the imputed
value of the input calculated in accordance with subclause (2) at the relevant
royalty rate minus:
(i)
2% - where the input is processed into steel in Western
Australia;
(ii)
1% - where the input is processed into DRI but is not
further processed into steel in Western Australia; or
(iii)
0.5% - where the input is processed into pellets but is
not further processed under this Agreement into DRI;
(b) on
other iron ore concentrates and on all other iron ore - royalty as from time
to time prescribed under the Mining Act; and
(c) on
all other minerals - royalty as from time to time prescribed under the
Mining Act.
(2) (a)
Unless previously agreed by the Minister and the
Company, the imputed value of the input for each financial year commencing on
1 July, will be the average of the free on board sale prices, converted to
Australian currency terms at the exchange rate (as defined in paragraph (d) of
this subclause) prevailing on 1 July, of Goldsworthy, Hamersley and Mt Newman
high grade fine ore adjusted for Fe content sold to Japanese steel mills, as
agreed by the relevant producers and consumers for the Japanese financial year
which commenced on the immediately preceding 1 April and as quoted in the TEX
report or a similar trade journal accepted by the Minister and the Company in
place thereof.
(b) The
imputed value of the input shall be calculated in respect of each financial
year by an officer of the Department of the Public Service of the State
principally assisting the Minister for Mines in the administration of the
Mining Act appointed by the Minister for Mines for the purpose of this
subclause and the Department shall advise the Company of the imputed value as
soon as reasonably possible after 1 July.
(c)
Where for any reason the imputed value cannot be calculated in accordance with
this subclause it will be agreed or determined.
(d) The
exchange rate referred to in paragraph (a) of this subclause means the
relevant mid-rate published by the Reserve Bank of Australia for the relevant
1 July. If the Reserve Bank of Australia ceases to publish the required
information an alternative method to calculate conversions to Australian
dollars shall be agreed between the State and the Company.
(3) The Company shall
within twenty eight days after the quarter days the last days of March June
September and December in each year commencing with the quarter day next
following the first date on which minerals the subject of royalty under
subclause (1) are disposed of furnish to the Minister for Mines a return
showing separately the quantities of input, other iron ore and other minerals
the subject of royalty under subclause (1) and disposed of during the quarter
immediately preceding the due date of the return and shall not later than one
month after such due date pay to the Minister for Mines the royalty payable in
accordance with that return in respect of the minerals disposed of in that
quarter or if the imputed value has not then been calculated, agreed or
determined pay to the Minister for Mines on account of the royalty payable in
respect of the input a sum calculated on the basis of the imputed value last
calculated, agreed or determined and shall from time to time in the next
following appropriate return and payment make (by return and by cash) all such
necessary adjustments (and give to the Minister for Mines full details
thereof) when the imputed value has been calculated or agreed or determined.
(4) The Company and
the Project Proponents shall -
(a)
permit the Minister for Mines or his nominee to inspect at all reasonable
times the books of account and records of the Company and the Project
Proponents including contracts relative to any shipment or sale of minerals
and records of minerals in stockpile or transit and to take copies of extracts
therefrom and for the purpose of determining the royalty payable in respect of
any shipment sale transfer or other disposal or processing of minerals
hereunder by the Company and the Project Proponents shall take reasonable
steps (i) to provide the Minister for Mines with details and information that
may be required by the Minister for Mines for the purpose of calculating,
agreeing or determining the imputed value and (ii) to satisfy the State either
by certificate of a competent independent party acceptable to the State or
otherwise to the reasonable satisfaction of the Minister for Mines as to all
relevant weights and analyses and will give due regard to any objection or
representation made by the Minister for Mines or his nominee as to any
particular weight or assay of minerals which may affect the amount of royalty
payable hereunder; and
(b) as
and when required by the Minister for Mines from time to time install and
thereafter maintain in good working order and condition meters for measuring
quantities of minerals of such design or designs and at such places as the
Minister for Mines may reasonably require.
(5) (a)
If any time not less than 5 years after the first
royalty return is submitted under subclause (3), it appears to the Company or
the State that the method set out in subclause (2) by which the imputed value
is calculated (the “method”) does not produce the true and fair
market value of the input either of those parties may give notice to the other
party to that effect, setting out the reasons for its belief. After such
notice has been given, the Minister and the Company shall consult and
endeavour to agree to an alternative method of calculating the imputed value
which better represents the true and fair market value of the input (the
“alternative method”). If the Minister and the Company are unable
to agree an alternative method within 12 months from the date of the notice,
either party may then refer to arbitration under this Agreement the
determination of the alternative method and the date from which any
alternative method shall apply.
(b)
Notwithstanding that a notice may have been given under paragraph (a) the
calculation of the imputed value shall continue to be made as provided for in
the method until an alternative method is agreed or determined by arbitration.
Any alternative method may, under an agreement or determination by
arbitration, apply from the date on which the notice under paragraph (a) was
given or from a later date.
(c)
Where an alternative method is agreed or determined by arbitration, the
Company shall in the next return and payment of royalty under subclause (3)
make (by return and, if the case requires, by cash) all necessary adjustments
(and give to the Minister for Mines full details thereof). If any refund of
royalty remains due from the State to the Company after such adjustments have
been made, the State shall refund such royalty to the Company within one month
of receipt by the Minister for Mines of the royalty return setting out the
adjustments.
(6) Where used in this
Clause -
(a)
“ agreed or determined” means agreed between the Company and the
Minister or, failing agreement within three months of the Minister giving
notice to the Company that he requires the value of a quantity of input to be
agreed or determined, as determined by the Minister and in agreeing or
determining a fair and reasonable market value of such input assessed at an
arm’s length basis the Company and/or the Minister as the case may be
shall have regard to prevailing markets and prices for high grade fine ore
adjusted for Fe content both outside and within the Commonwealth;
(b)
“disposed of” means -
(i)
for iron ore concentrates processed under this Agreement
- input into the pellet plant in the case of a project of the type of Project
1 or input into the DRI plant in the case of a project of the type of Project
2 or Project 3;
(ii)
for all other iron ore and all other minerals - obtained
from a Mining Lease and shipped, sold, transferred or otherwise disposed of;
(c)
“minerals” includes minerals processed or partly processed under
this Agreement; and
(d)
“relevant royalty rate” means:
(i)
for the period ending on the quarter date next following
the date 14 years after the commencement date, 5%; and
(ii)
for the period after the quarter date next following the
date 14 years after the commencement date, the royalty rate from time to time
prescribed under the Mining Act for magnetite as if the imputed value of the
input was its realized value.
Use of local labour professional services and materials
12. (1) Except as
otherwise agreed by the Minister Project Proponents shall, for the purposes of
this Agreement -
(a)
except in those cases where the Project Proponents can demonstrate it is
impracticable so to do, use labour available within Western Australia or if
such labour is not available then, except as aforesaid, use labour otherwise
available within Australia;
(b) as
far as it is reasonable and economically practicable so to do, use the
services of engineers surveyors architects and other professional consultants
experts and specialists, project managers, manufacturers, suppliers and
contractors resident and available within Western Australia or if such
services are not available within Western Australia then, as far as
practicable as aforesaid, use the services of such persons otherwise available
within Australia;
(c)
during design and when preparing specifications, calling for tenders and
letting contracts for works materials plant equipment and supplies (which
shall at all times, except where it is impracticable so to do, use or be based
upon Australian Standards and Codes) ensure that suitably qualified Western
Australian and Australian suppliers manufacturers and contractors are given
fair and reasonable opportunity to tender or quote;
(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 or,
subject to the foregoing, give that consideration and where possible
preference to other Australian suppliers manufacturers and contractors; and
(e) if
notwithstanding the foregoing provisions of this subclause a contract is to be
let or an order is to be placed with other than a Western Australian or
Australian supplier, manufacturer or contractor, give proper consideration and
where possible preference to tenders arrangements or proposals that include
Australian participation.
(2) Except as
otherwise agreed by the Minister Project Proponents shall in every contract
entered into with a third party for the supply of services labour works
materials plant equipment or supplies for the purposes of this Agreement
require as a condition thereof that such third party shall undertake the same
obligations as are referred to in subclause (1) and shall report to the
Project Proponents concerning such third party’s implementation of that
condition.
(3) Project Proponents
shall submit a report to the Minister at quarterly intervals from the
commencement date to the date of the first submission of proposals under
Clause 6 and thereafter at monthly intervals or such longer period as the
Minister determines concerning its implementation of the provisions of this
Clause together with a copy of any report received by the Project Proponents
pursuant to subclause (2) during that month or longer period as the case may
be PROVIDED THAT the Minister may agree that any such reports need not be
provided in respect of contracts of such kind or value as the Minister may
from time to time determine.
(4) Project Proponents
shall keep the Minister informed on a regular basis as determined by the
Minister from time to time or otherwise as required by the Minister during the
currency of this Agreement of any services (including any elements of the
project investigations design and management) and any works materials plant
equipment and supplies that they may be proposing to obtain from or have
carried out or permit to be obtained from or carried out outside Australia
together with their reasons therefor and shall as and when required by the
Minister consult with the Minister with respect thereto.
Roads
13. (1) Project
Proponents shall -
(a) be
responsible for the cost of the construction and maintenance of all private
roads which shall be used in their activities hereunder;
(b) at
their own cost erect signposts and take other steps that may be reasonable in
the circumstances to prevent any persons and vehicles other than those engaged
upon the Project Proponents’ activities and their invitees and licensees
from using the private roads; and
(c) at
any place where any private roads are constructed by the Project Proponents so
as to cross any railways or public roads provide at their cost such reasonable
protection and signposting as may be required by the Commissioner of Main
Roads or the Railways Commission as the case may be.
Maintenance of public roads
(2) The State shall
maintain or cause to be maintained those public roads under the control of the
Commissioner of Main Roads or a local government which may be used by Project
Proponents for the purposes of this Agreement to a standard similar to
comparable public roads maintained by the Commissioner of Main Roads or a
local government as the case may be.
Upgrading of public roads
(3) In the event that
for or in connection with Project Proponents’ activities hereunder the
Project Proponents or any person engaged by the Project Proponents uses or
wishes to use a public road (whether referred to in subclause (2) or
otherwise) which is inadequate for the purpose, or any use by Project
Proponents or any person engaged by Project Proponents of any public road
results in excessive damage to or deterioration thereof (other than fair wear
and tear) the Project Proponents shall pay to the State or the local
government as the case may require the whole or an equitable part of the total
cost of any upgrading required or of making good the damage or deterioration
as may be reasonably required by the Commissioner of Main Roads having regard
to the use of such public road by others.
Acquisition of private roads
(4) Where a road
constructed by the Project Proponents for their own use is subsequently
required for public use, the State may, after consultation with the Project
Proponents and so long as resumption thereof shall not unduly prejudice or
interfere with the activities of the Project Proponents under this Agreement,
resume and dedicate such road as a public road. Upon any such resumption the
State shall pay to the Project Proponents such amount as is reasonable.
Electricity
14. Project Proponents
may in accordance with their approved proposals hereunder and subject to the
provisions of the Electricity Act 1945 and any other relevant Act -
(a)
install and operate without cost to the State, at an appropriate location or
locations equipment of sufficient capacity to generate electricity for their
activities on the Mining Leases and at the Plant areas; and
(b)
transmit power within and between the Mining Leases and the Plant areas and
for the operations of the Project Proponents’ slurry pipeline and for
other elements of the Project Proponents’ operations as the Minister may
approve for the purpose of this Clause subject to the provisions of the
Electricity Act 1945 and any other relevant Act.
Water - desalination
15. (1) The Company
and the Co-Proponents propose to provide for their water requirements by
desalination of sea water and the State shall not be obliged to provide water
or allow access to water from underground or surface water supplies for use in
the Projects Provided that this subclause shall not prevent the Water
Corporation of Western Australia or any other party where permitted by law
from entering into arrangements with Project Proponents for the supply of
water.
(2) Project Proponents
shall provide at their cost or with finance arranged by them and construct to
standards and in accordance with designs approved by the State and operate and
maintain in accordance with the relevant approved proposals all necessary
valves, distribution pipelines, reticulation, meters, tanks, equipment and
appurtenances necessary to draw transport use reticulate and dispose of water
used by them in their operations.
Water - potable supplies
16. (1) Project
Proponents shall keep the Minister advised of the volumes of water which they
are likely to require from time to time for purposes other than for mining
purposes or process-related uses within their Projects and which cannot be
obtained by desalination.
(2) Subject to
availability of water (taking into account inter alia, the need for the State
to provide for the long term development of the Pilbara region) and relevant
Acts the Water Corporation of Western Australia may enter into arrangements
with Project Proponents for the supply of or access to potable water for the
purposes mentioned in subclause (1).
Planning of accommodation
17. Prior to
submitting proposals under paragraphs (c) or (d) of subclause (2) of Clause 6
relating to accommodation for the Company’s workforce the Project
Proponents shall confer with the Minister and the relevant local authorities
with a view to ensuring that appropriate planning is being made for housing
and accommodation to service the Project having regard to -
(a) the
efficient provision of services (including educational, medical and police
services) and amenities and facilities by the State and local authorities to
communities in the Pilbara;
(b) the
welfare and amenity of existing townships; and
(c) the
provision of adequate serviced land for housing the Company’s workforce
where accommodation is required outside the Mining Leases.
Provision of Mining Lease Accommodation
18. (1) Accommodation
for the Company’s workforce (excluding dependants) may be by way of
accommodation facilities (but not caravans) of a standard not less than that
generally used in the mining industry located in defined accommodation areas
on the Mining Leases. In this Clause and in Clause 19 such accommodation is
referred to as “Mining Lease Accommodation”.
(2) Mining Lease
Accommodation may include a mess/wet mess, amenities blocks and offices for
Project Proponents’ management personnel.
(3) Mining Lease
Accommodation shall be provided at the Project Proponents’ cost by the
Project Proponents or a contractor to the Project Proponents.
(4) Unless otherwise
agreed by the Minister all Mining Lease Accommodation shall be removed from
the Mining Lease upon the Company’s workforce ceasing to be accommodated
there.
(5) Project Proponents
may permit only the Company’s workforce (excluding dependants) and
persons visiting the Mining Lease in connection with the Project
Proponents’ mining activities on a short term basis or employed for a
specific task of limited duration to stay on the Mining Lease.
(6) Except where the
Minister otherwise agrees in a particular case, no dependants shall reside and
no pets shall be allowed on a Mining Lease.
(7) If and whenever
Project Proponents propose -
(a) to
substantially add to upgrade replace or relocate Mining Lease Accommodation;
or
(b) to
construct additional Mining Lease Accommodation in an accommodation area
separate from that already established
they shall submit to
the Minister additional proposals in that regard in accordance with Clause 8.
Provision of accommodation outside Mining Leases
19. (1) Project
Proponents may provide at no cost to the State suitable accommodation in
addition to the Mining Lease Accommodation for the Company’s workforce
(including dependants of the Company’s workforce housed in Mining Lease
Accommodation) in Karratha and/or any other locality not on a Mining Lease as
is specified in approved proposals.
(2) If the Company and
the Project Proponents so agree, a Project proposal may propose the
establishment of a new town outside existing townsites for accommodation of
the Company’s workforce referred to in subclause (1) subject to the
following -
(a) only
one new town shall be established under this Agreement;
(b) such
town shall be designed to cater if so required for all Projects under this
Agreement; and
(c) the
Company shall be responsible for the provision of the new town and subclauses
(3) to (7) shall apply thereto.
(3) The proposed new
town shall be in the Pilbara region and, if the Minister and the Company are
able to agree to a location outside Area A, may be at that location or, if the
Minister and the Company are not able to agree to a location outside Area A,
the proposed new town shall be at a location within Area A agreed to by the
Minister and the Company.
(4) The Company shall
give the Minister notice of its proposal to establish a new town and shall
furnish to the Minister with such notice its proposals as to the location of
the new town and an outline of its other proposals in respect of the
establishment of the new town (including the matters mentioned in subclause
(5)).
(5) If the Minister
approves the submission of detailed proposals and after the Minister and the
Company have agreed the location of the new town the Company shall, within 6
months of such approval and agreement subject to the provisions of this
Agreement, submit to the Minister to the fullest extent reasonably practicable
its detailed proposals with respect to the establishment of the new town which
proposals shall include plans where practicable and specifications where
reasonably required by the Minister and shall include the location, area,
layout, design, quantities, materials and time programme for the commencement
and completion of construction or the provision (as the case may be) of each
of the following matters, namely -
(a)
housing and township requirements including provision of services;
(b)
roads;
(c)
water supply;
(d)
power supply;
(e)
sewerage and drainage;
(f)
education police and medical facilities including staff accommodation;
(g)
recreational and civic facilities;
(h) air
services and facilities;
(i)
any leases licences easements or other tenures of land in
favour of the Company required from the State.
(6) In accordance with
proposals made by the Company pursuant to subclause (5) as finally approved or
determined the State shall grant to the Company for residential professional
business commercial and industrial purposes and the provision of communal or
other facilities at the townsite a lease or leases under the provisions of the
LA Act on terms and conditions to be determined by the Minister for Lands for
an area or areas of land in the townsite in accordance with the
Company’s proposals as finally approved. Such lease or leases shall be
for terms and on other terms and conditions consistent with subclause (1) of
Clause 20 and shall be at reasonable rentals subject to periodic review and
shall include a right for the State notwithstanding the provisions of Clause
30 at any time and from time to time to exclude from such lease or leases or
to resume without compensation any part or parts of such land on which no
building or structure or any substantial improvements have been erected as the
State may require for public purposes.
(7) If approved
proposals relating to a new town require the State to provide any services or
facilities (including any expanded services or facilities the Minister
considers are necessary) the State shall provide the services or facilities
subject to the Company paying the capital cost involved and reasonable charges
for maintenance and operation (except for operation of educational, medical or
police services and except where and to the extent that the State otherwise
agrees).
Lands
20. (1) On application
made by the Project Proponents not later than 3 months after all the proposals
in respect of a Project have been approved or deemed approved, the State shall
grant or arrange to have the appropriate authority or other interested
instrumentality of the State grant to the Company in accordance with the
approved proposals, in respect of Plant areas for a period or periods not
exceeding 60 years and in respect of other areas for such periods (but so that
the longest term that may be granted shall be a term co-terminous with the
Mining Lease or Mining Leases (including any period of extension thereof)
granted in respect of or dedicated to the Project) as shall be reasonable and
otherwise in respect of all grants on such terms and conditions including
rentals or other consideration and renewal rights as shall be reasonable
having regard to the requirements of the Company and as are consistent with
the terms of this Agreement and approved proposals, leases and where
applicable licences easements and rights of way for all or any of the purposes
of the Project including any of the following namely - accommodation area,
private roads, tailing areas, pipelines, pumping installations and reservoirs,
power transmission lines, railway, radio and communication sites, Plant areas,
jetty and borrow pits for stone sand clay and gravel PROVIDED HOWEVER THAT
each such lease licence easement or right of way shall also be granted subject
to conditions -
(a) that
the lease licence easement or right of way as the case may be shall cease and
determine upon the expiration of six month’s notice from the grantor
thereof to the Company if -
(i)
in relation to any such title issued in respect of a
Project, construction of the facilities proposed under the approved proposals
which required the grant of the title is not completed in accordance with
those approved proposals; or
(ii)
in relation to any such title issued in respect of Common
Use Land, construction of the facilities proposed under approved proposals for
at least one of the Projects to which the Common Use Land relates is not
completed in accordance with those proposals; and
(b) that
any such lease licence easement or other title granted pursuant to this
Agreement that continues in force in accordance with this Agreement after the
expiration or determination of this Agreement shall cease and determine upon
the expiration of six months’ notice from the grantor thereof to the
Company if the Company or the Project Proponents as the case may be ceases
(otherwise than for reasons of force majeure) -
(i)
in relation to any such title issued in respect of a
Project, to operate the Project in respect of which the land the subject of
such title was granted; or
(ii)
in relation to any such title issued in respect of Common
Use Land, to use the land the subject of such title for at least one of the
Projects to which the Common Use Land relates.
(2) Notwithstanding
the provisions of subclause (1) leases licences easements or other titles
which are the subject of approved proposals may be granted in accordance with
this Clause before all the proposals submitted pursuant to subclause (2) of
Clause 6 have been approved or determined but each such lease licence easement
or other title shall be issued subject to an additional condition that the
lease licence easement or other title as the case may be shall automatically
cease and determine (subject to clause 36) -
(a) if
this Agreement ceases and determines in respect of the Project to which the
lease licence easement or other title relates before all the said proposals
for the Project submitted pursuant to subclause (2) of Clause 6 have been
approved or deemed to be approved; or
(b) if
all the proposals required under this Agreement for that Project are not
approved or deemed to be approved within 12 months after the grant of the
first of such titles granted in respect of the Project.
(3) (a)
Subject to subclause (5), if a title which ceases and determines pursuant to
subclause (1)(a) or (2) was issued in respect of land which at the time of
issue of the title was within exploration licence 08/636 then the Company,
within a period of 30 days from the date of cessation and determination of the
title, may apply for the land the subject of the title to be granted to it as
an exploration licence under the Mining Act but for a period of one year only
and the State upon such application shall grant the Company an exploration
licence for a term of one year from the date on which it is granted but
otherwise under and subject to the Mining Act.
(b) For
the period of 30 days referred to in paragraph (a) of this subclause the land
the subject of the relevant title shall not be disposed by the State to any
person other than the Company nor shall such land be available during that
period for application as a mining tenement except by the Company pursuant to
that paragraph.
(4) (a)
Subject to paragraph (b) of this subclause, for a period of 12 months after a
termination of a title pursuant to paragraph (a) of subclause (1) the land the
subject of such title shall not be disposed of to any party by the State
except in accordance with a proposal approved or deemed to be approved under
this Agreement nor shall such land be available for application as a mining
tenement during that period by any person other than the Company.
(b) The
provisions of paragraph (a) of this subclause shall not apply to any land
granted as an exploration licence pursuant to subclause (3).
(5) Unless otherwise
approved by the Minister, the provisions of subclause (3) shall only apply to
one Project and the titles issued in respect of that one Project.
Modification of LA Act
(6) For the purpose of
this Agreement in respect of any land leased to the Company by the State -
(a) an
application for land made by the Company under subclause (1) shall take
priority over any other application made for that land under the LA Act;
(b) it
shall not be a prerequisite to the validity of any transfer, mortgage or
sublease permitted under this Agreement of any lease or licence that the
approval to the transfer, mortgage or sublease of the Minister for Lands or of
an officer of the department of the State government assisting him in the
administration of the LA Act be obtained.
The provisions of this
subclause shall prevail over the provisions of the LA Act.
The provisions of this
subclause shall not operate so as to prejudice the rights of the State to
determine any lease licence or other right or title in accordance with the
other provisions of this Agreement.
Modification of AH Act
(7) For the purpose of
this Agreement, the Company in relation to any land the subject of approved
proposals or proposed as land to be granted in accordance with proposals under
this Agreement shall be deemed to be within the expression “the owner of
any land” for the purposes of section 18 of the
Aboriginal Heritage Act 1972.
Port facilities
21. (1) The Company
shall develop port facilities for the Projects in accordance with approved
proposals and shall construct a wharf and carry out all necessary dredging of
approach channels, swinging basins and berth at the wharf and provide all
necessary buoys, beacons, markers, navigational aids, lighting equipment and
services and facilities required in connection therewith.
(2) All shiploading
and shipping facilities shall be subject to and shall be constructed, operated
and maintained in accordance with relevant legislation.
Use of shipping facilities
(3) The Company and
the Project Proponents shall subject to and in accordance with by-laws (which
shall include provision for reasonable charges) from time to time to be made
and altered as provided in subclause (4) and subject thereto, or if no such
by-laws are made or in force then upon reasonable terms and at reasonable
charges (having regard to the cost thereof to the Company or the Project
Proponents as the case may be) allow the State and third parties to use any
wharf and port installations wharf machinery and equipment and wharf and port
services and facilities constructed or provided by the Company and the Project
Proponents or either of them PROVIDED THAT such use shall not unduly prejudice
or interfere with the Company’s or the Project Proponents’
operations hereunder and that the mechanics of such use shall be subject to
the prior approval of the Company or the Project Proponents as the case may
require.
By-laws
(4) The Minister may
upon recommendation by the Company or Project Proponents make alter and repeal
by-laws for the purpose of enabling the Company and the Project Proponents to
fulfil their obligations under subclause (3) upon terms and subject to
conditions (including terms and conditions as to user charging and limitation
of the liability of the Company or the Project Proponents) as set out in such
by-laws consistent with the provisions hereof. Should the Minister at any time
consider that any by-law made hereunder has as a result of altered
circumstances become unreasonable or inapplicable then the Company or Project
Proponents as the case may require shall recommend such alteration or repeal
thereof as the Minister 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 hereunder.
Railway
22. (1) If an approved
proposal provides for a railway, the railway shall be constructed and operated
by the Company and subclauses (2) to (4) shall apply thereto.
Construction of Railway
(2) Subject to the
State having assured to the Company all necessary rights in or over Crown
lands available for the purpose the Company 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 and any
conditions applicable from time to time under any other Acts) the railway line
(of standard gauge, 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 line 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 for the purposes of Project Proponents’ activities under this
Agreement.
Operation of railway
(3) The Company shall
during the continuance of this Agreement operate and maintain the said railway
in a safe and proper manner and subject to and in accordance with the
Rail Safety Act 1998 and other relevant statutory provisions and shall provide
crossings for livestock and also for any roads and other railways which now
exist and where it can do so without unduly prejudicing or interfering with
Project Proponents’ activities hereunder the Company shall allow such
crossings for roads and railways which may be constructed for future needs and
which may be required to cross the said railway.
Third parties iron ore
(4) The Company shall
if and when required carry iron ore and iron ore products of third parties
(being iron ore or iron ore products obtained from outside the Mining Leases)
over the said railway in accordance with arrangements (including provision for
payment of charges by such third parties) to be entered into for the purpose
of this subclause between the Company and the State such arrangements unless
the parties hereto otherwise agree to be similar in all material respects with
any other arrangements for the carriage of iron ore products of third parties
made pursuant to any other agreement with the State relating to the mining of
iron ore PROVIDED THAT the carriage of third party’s iron ore or iron
ore products shall not unduly prejudice or interfere with Project
Proponents’ activities hereunder and shall be subject to the prior
approval of the Company.
Passengers and freight
(5) Where the Company
can do so without materially prejudicing or interfering with its operations
hereunder and subject to the payment to it of the charges prescribed by and
for the time being payable under any by-laws made by the Company 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 Company of the construction and
operation of the said railway) the Company shall if and when reasonably
required so to do transport passengers and carry the freight of the State and
third parties (other than iron ore or iron ore products of third parties) over
the said railway but in relation to its use of the said railway the Company
shall not be deemed to be a common carrier at law or otherwise.
Training levy exemption
23. The provisions of
the Building and Construction Industry Training Levy Act 1990 and the
Building and Construction Industry Training Fund and Levy Collection Act 1990
shall have no application to Project Proponents when acting pursuant to and in
accordance with the provisions of this Agreement.
Zoning
24. The State shall
ensure after consultation with the relevant local government that the Mining
Leases, any Ancillary Tenements and any lands the subject of any lease licence
or easement granted to the Company under this Agreement shall be and remain
zoned for use or otherwise protected during the currency of this Agreement so
that the activities of the Project Proponents hereunder may be undertaken and
carried out thereon without any interference or interruption by the State or
by any State agency or instrumentality or by any local government on the
ground that such activities are contrary to any zoning by-law regulation or
order.
Rating
25. (1) 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 within Area
A, Area B1 and Area B2 from time to time the subject of this Agreement (except
any accommodation area and any other parts of the lands the subject of this
Agreement on which accommodation units or housing for the Company’s
workforce is erected or which is occupied in connection with such
accommodation units or housing 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 a Project carried out by Project
Proponents pursuant to approved proposals) shall for rating purposes under the
Local Government Act 1995 , be deemed to be on the unimproved value thereof
and no such lands shall be subject to any discriminatory rate and further as
regards the Mining Leases hereunder that the unimproved value thereof shall
subject to subclause (2) be calculated on the basis that they are mining
leases under the Mining Act.
(2) Where more than
one Mining Lease is dedicated to or granted in respect of a Project, those
Mining Leases shall be treated for the purpose of calculation of the
unimproved value thereof for rating purposes as if they constituted one mining
tenement held pursuant to an agreement made with the Crown in right of the
State and scheduled to an Act approving the agreement.
No discriminatory rates
26. Except as provided
in this Agreement the State shall not impose, nor shall it permit or authorise
any of its agencies or instrumentalities or any local or other authority of
the State to impose discriminatory taxes rates or charges of any nature
whatsoever on or in respect of the titles property or other assets products
materials or services used or produced by or through the activities of Project
Proponents in the conduct of their business hereunder nor will the State take
or permit to be taken by any such State authority any other discriminatory
action which would deprive Project Proponents of full enjoyment of the rights
granted and intended to be granted under this Agreement.
Resumption for the purposes of this Agreement
27. (1) The State is
hereby empowered, as and for a public work under Parts 9 and 10 of the LA Act
and the Public Works Act 1902, to take for the purposes of this Agreement any
land which in the opinion of the Project Proponents is necessary for a Project
and which the Minister determines is appropriate to be taken for the Project
(except any land the taking of which would be contrary to the provisions of a
Government Agreement entered into before the submission of the proposals
relating to the proposed taking) and notwithstanding any other provisions of
those Acts may lease or otherwise dispose of that land to the Company.
(2) In applying Parts
9 and 10 of the LA Act and the Public Works Act 1902 for the purposes of this
Clause -
(a)
“land” in those Acts includes a legal or equitable estate or
interest in land;
(b) sections 170, 171,
172, 173, 174, 175 and 184 of the LA Act do not apply; and
(c) the
LA Act shall be deemed modified in section 177(2) by inserting -
(i)
after “railway” the following -
“or land is
being taken pursuant to a Government agreement as defined in section 2 of the
Government Agreements Act 1979”; and
(ii)
after “that Act” the following -
“or that
Agreement as the case may be”.
(3) The Company shall
pay to the State on demand the costs of or incidental to any land resumed at
the request of and on behalf of the Company or Project Proponents including
but not limited to any compensation payable to any holder of native title or
of native title rights and interests in the land.
Co-Proponents’ interests
28. (1) The provisions
of this Agreement shall take effect notwithstanding the provisions of the
Subsidiary agreements.
(2) The Company and
the Co-Proponents hereby agree with the State that the Subsidiary agreements
and any tenures licences titles authorities and other permissions now or
hereafter granted to them or any of them under those agreements or any of them
shall be subject to the provisions of this Agreement except that, without
affecting the provisions of subclause (2) of Clause 31, the consent of the
Minister under subclause (1) of Clause 31 shall not be required in respect of
the matters effected by the Subsidiary agreements as advised to the State
before the date hereof that would otherwise have required that consent and the
Company and the Co-Proponents further agree with the State that the State may
deal with the Company pursuant to this Agreement without regard to the
provisions of the Subsidiary agreements.
Infrastructure and lands
29. Where any
proposals submitted under this Agreement provide for the provision by the
Company to Project Proponents of any works plant or facilities or the use
thereof or access to or use of any lands granted to the Company hereunder or
existing mining leases or further mining leases, the Company shall warrant to
the State at the time of submission of those proposals that agreement has been
reached between the Company and the Project Proponents in relation thereto for
the purpose of the implementation of those proposals by the Project
Proponents.
No resumption
30. (1) The State
shall not during the currency of this Agreement without the consent of the
Company resume nor suffer nor permit to be resumed by any State
instrumentality or by any local or other authority of the State any of the
works installations plant equipment or other property for the time being
belonging to the Company and the subject of or used for the purpose of this
Agreement or any of the works on the lands which are the subject of any lease
or licence granted to the Company in terms of this Agreement or which are
otherwise the subject of this Agreement and which in either case retain the
benefit of the rights and privileges conferred by this Agreement or any works
installations plant equipment or other property on such lands and belonging to
a contractor to the Company and being used in Project Proponents’
activities under this Agreement.
(2) (a)
Except as regards the land referred to in paragraph (b) of this subclause, the
State shall not without the consent of the Company (which consent shall not be
unreasonably withheld) create or grant or permit or suffer to be created or
granted by any instrumentality or authority of the State referred to in
subclause (1) any road right-of-way or easement of any nature or kind
whatsoever over or in respect of any lands referred to in subclause (1) which
may unduly prejudice or interfere with Project Proponents’ activities
under this Agreement.
(b) The
State may create or grant or permit or suffer to be created or granted any
road right of way or easement referred to in paragraph (a) of this subclause
within Area D provided the same does not directly affect any of the works
installations plant equipment or other property of Project Proponents or a
contractor to Project Proponents referred to in subclause (1).
Assignment
31. (1) Subject to the
provisions of this Clause the Company or a Co-Proponent (whether in that
capacity or as a Project Proponent) may at any time assign mortgage charge
sublet or dispose of to any person with the consent of the Minister, which
consent may be conditioned on the provision of a guarantee satisfactory to the
Minister, the whole or any part of its rights hereunder or under a Subsidiary
agreement (including its rights to or as the holder of a Mining Lease or any
other lease licence easement or other title) and the mining tenements within
Area A, Area B1 and Area B2 not the subject of a Mining Lease and of its
obligations hereunder subject however in the case of an assignment subletting
or disposition to the assignee sublessee or disponee (as the case may be)
executing in favour of the State (unless the Minister otherwise determines) a
deed of covenant in a form to be approved by the Minister to comply with
observe and perform the provisions hereof on the part of the Company or the
Co-Proponent as the case may be to be complied with observed or performed in
regard to the matter or matters the subject of such assignment subletting or
disposition.
(2) Notwithstanding
anything contained in or anything done under or pursuant to subclause (1) the
Company and the Co-Proponents 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 parts contained in
this Agreement and in any lease licence easement grant or other title the
subject of an assignment mortgage subletting or disposition under subclause
(1) PROVIDED THAT the Minister may agree to release the Company or a
Co-Proponent as the case may be from such liability where the Minister
considers such release will not be contrary to the interests of the State.
(3) Notwithstanding
the provisions of the Mining Act, the Transfer of Land Act 1893 and the LA
Act, insofar as the same or any of them may apply -
(a) no
assignment mortgage charge sublease or disposition made or given pursuant to
this Clause of or over any lease licence easement or other title granted under
or pursuant to this Agreement by the Company or any assignee sublessee or
disponee who has executed and is for the time being bound by deed of covenant
made pursuant to this Clause; and
(b) no
transfer assignment mortgage or sublease made or given in exercise of any
power contained in any such mortgage or charge
shall require any
approval or consent other than such consent as may be necessary under this
Clause and no equitable mortgage or charge shall be rendered ineffectual by
the absence of any approval or consent (otherwise than as required by this
Clause) or because the same is not registered under the provisions of the
Mining Act.
Variation
32. (1) The parties to
this Agreement 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 other title granted under or pursuant to this
Agreement for the purpose of more efficiently or satisfactorily implementing
or facilitating any of the objects of this Agreement.
(2) The Minister shall
cause any agreement made pursuant to subclause (1) in respect of any addition
substitution cancellation or variation of the provisions of this Agreement to
be laid on the Table of each House of Parliament within 12 sitting days next
following its execution.
(3) Either House may,
within 12 sitting days of that House after the agreement has been laid before
it pass a resolution disallowing the agreement, but if after the last day on
which the agreement might have been disallowed neither House has passed such a
resolution the agreement shall have effect from and after that last day.
Force majeure
33. (1) The
obligations of a party under this Agreement shall be suspended while that
party is prevented or delayed from complying with those obligations by an
event or circumstance of the kind described below.
(2) The events and
circumstances referred to in subclause (1) are those beyond the power and
control of the party responsible for the performance of those obligations
including without limiting the generality of the foregoing delays or any such
temporary suspension as aforesaid caused by or arising from act of God force
majeure earthquakes floods storms tempest washaways fire (unless caused by the
actual fault or privity of the party responsible for such performance) act of
war act of public enemies riots civil commotions strikes lockouts stoppages
restraint of labour or other similar acts (whether partial or general) acts or
omissions of the Commonwealth shortages of labour or essential materials
reasonable failure to secure contractors delays of contractors and inability
to sell processing plant product profitably or factors due to overall world
economic conditions or factors due to action taken by or on behalf of any
government or governmental authority (other than the State or any authority of
the State) or factors that could not reasonably have been foreseen.
(3) The party whose
performance of obligations is affected by any of the said events or
circumstances shall promptly give notice to the other party of the event or
events and shall use its best endeavours to minimise the effects of such
causes as soon as possible after the occurrence.
Power to extend periods
34. Notwithstanding
any provision of this Agreement the Minister may at the request of the Company
or in respect of matters relating to approved proposals at the request of the
relevant Project Proponents from time to time extend or further extend any
period or vary or further vary any date referred to in this Agreement or in
any approved proposal for such period or to such later date as the Minister
thinks fit whether or not the period to be extended has expired or the date to
be varied has passed.
Determination of Agreement
35. (1) In any of the
following events namely if -
(a)
(i) the Company makes or any
Project Proponents make default which the State considers material in the due
performance or observance of any of its or their covenants or obligations in
this Agreement or in a Mining Lease an existing or further mining lease an
Ancillary Tenement or any of the exploration licences or any other lease
licence easement or other title or document granted or assigned under this
Agreement on its or their part to be performed or observed; or
(ii)
the Company abandons or repudiates or any Project
Proponents abandon or repudiate this Agreement or its or their activities
under this Agreement
and such default is
not remedied or such activities resumed within a period of 6 months after
notice is given by the State as provided in subclause (2) or, if the default
or abandonment is referred to arbitration, then within the period mentioned in
subclause (3); or
(b) the
Company goes or any Project Proponents go into liquidation (other than a
voluntary liquidation for the purpose of reconstruction) and unless within 6
months from the date of such liquidation the interest of the Company or the
Project Proponents is assigned to an assignee approved by the Minister under
Clause 31 or to a mortgagee or chargee in possession pursuant to a mortgage or
charge approved by the Minister under Clause 31
the State may by
notice to the Company the Co-Proponents and the Project Proponents determine
this Agreement or if more than one Project is the subject of this Agreement
and the default is in respect of one Project only or the liquidation affects
only one Project determine this Agreement to the extent that it relates to
that Project.
(2) The notice to be
given by the State in terms of paragraph (a) of subclause (1) shall specify
the nature of the default or other ground so entitling the State to exercise
such right of determination and where appropriate and known to the State the
party or parties responsible therefor and shall be given to the Company the
Co-Proponents and the Project Proponents and all such assignees mortgagees
chargees and disponees for the time being of the Company’s the
Co-Proponents’ and the Project Proponents’ rights under this
Agreement to or in favour of whom or by whom an assignment mortgage charge or
disposition has been effected in terms of Clause 31 whose name and address for
service of notice has previously been notified to the State by the Company a
Co-Proponent any Project Proponents or any such assignee mortgagee chargee or
disponee.
(3) (a)
If the Company contests or any Project Proponents contest the alleged default
abandonment or repudiation referred to in paragraph (a) of subclause (1) it
shall within 60 days after notice given by the State as provided in subclause
(2) refer the matter in dispute to arbitration.
(b) If
the question is decided against the Company or the Project Proponent, the
Company or the Project Proponent as the case may be shall comply with the
arbitration award within a reasonable time to be fixed by that award PROVIDED
THAT if the arbitrator finds that there was a bona fide dispute and that it
was not dilatory in pursuing the arbitration, the time for compliance with the
arbitration award shall not be less than 90 days from the date of such award.
(4) If the default
referred to in paragraph (a) of subclause (1) shall not have been remedied
after receipt of the notice referred to in that subclause or within the time
fixed by the arbitration award as aforesaid the State instead of determining
this Agreement as aforesaid because of such default may itself remedy such
default or cause the same to be remedied (for which purpose the State by
agents workmen or otherwise shall have full power to enter upon lands occupied
by the Company or Project Proponents and to make use of all plant machinery
equipment and installations thereon) and the actual costs and expenses
incurred by the State in remedying or causing to be remedied such default
shall be a debt payable by the Company or Project Proponents as the case may
be to the State on demand.
Effect of determination or cessation of Agreement
36. (1) On the
determination or cessation of this Agreement at a time when there is no
project which is the subject of approved proposals or when there is only one
Project or, if there is then more than one Project, if this Agreement
determines or ceases in respect of all the Projects -
(a)
(i) except as otherwise
agreed by the Minister the rights of the Company the Co-Proponents and the
Project Proponents to in or under this Agreement shall thereupon cease and
determine but without prejudice to the liability of any of the parties hereto
in respect of any antecedent breach or default under this Agreement or in
respect of any indemnity given under this Agreement;
(ii) each of the Company the
Co-Proponents and the Project Proponents shall forthwith pay to the State all
moneys which may then have become payable or accrued due;
(iii) save as aforesaid and as
otherwise provided in this Agreement none of the parties shall have any claim
against the others of them with respect to any matter or thing in or arising
out of this Agreement; and
(b) the
benefit of the rights and privileges conferred by this Agreement, and any
modification by this Agreement of any Act or law shall cease to apply, but
otherwise any leases licences easements or other titles benefiting therefrom
and then in force shall continue in force under and subject to the Act or Acts
pursuant to which they were granted (other than the Act that ratifies this
Agreement) and subject to any conditions included therein in accordance with
subclause (1) of Clause 20 for the balance of their respective unexpired terms
and any extensions thereto that may be granted pursuant to any relevant Act.
(2) On the
determination or cessation of this Agreement in relation to a Project when
there is more than one Project then the subject of this Agreement -
(a)
(i) except as otherwise
agreed by the Minister the rights of Project Proponents in relation to the
Project and their assigns to in or under this Agreement relating to the
Project shall thereupon cease and determine but without prejudice to the
liability of those parties in respect of any antecedent breach or default
under this Agreement relating to the Project or in respect of any indemnity
given under this Agreement relating to the Project;
(ii)
Project Proponents or their
assigns shall forthwith pay to the State all moneys which may then have become
payable or accrued due and which relate to the Project;
(iii)
save as aforesaid and as
otherwise provided in this Agreement neither of the State and the Project
Proponents and their assigns shall have any claim against the other of them
with respect to any matter or thing in or arising out of the Agreement
relating to the Project; and
(b) the
benefit of the rights and privileges conferred by this Agreement, and any
modification by this Agreement of any Act or law in relation to the Project
shall cease to apply, in respect of the Project (other than to leases licences
easements or other titles in respect of Common Use Land if that Common Use
Land is then being used by another Project) but otherwise any leases licences
easements or other titles in respect of the Project shall continue in force
under and subject to the Act or Acts pursuant to which they were granted
(other than the Act that ratifies this Agreement) and subject to any
conditions included therein in accordance with subclause (1) of Clause 20 for
the balance of their respective unexpired terms and any extensions thereto
that may be granted pursuant to any relevant Act.
Commonwealth law and EP Act
37. (1) Nothing in
this Agreement shall exempt or shall be construed to exempt the State or any
other party from compliance with, or empower or oblige the State or any other
party to do anything (whether in accordance with this Agreement or otherwise
including, in the case of the State, the grant of any mining tenements leases
licences or other titles or any extensions of the terms thereof under this
Agreement or any deeming provisions of this Agreement relating to mining
tenements), contrary to or in breach of any law of the Commonwealth binding on
the State or any other party as the case may be or any obligation or
requirement imposed on the State or any other party as the case may be
pursuant to any law of the Commonwealth nor shall any purported modification
of any Act or law of the State pursuant to this Agreement contrary to any law
of the Commonwealth have effect.
(2) Nothing in this
Agreement shall be construed to exempt the Company the Co-Proponents or
Project Proponents from compliance with any requirement in connection with the
protection of the environment arising out of or incidental to their activities
under this Agreement that may be made pursuant to the EP Act.
Indemnity
38. The Company the
Co-Proponents and Project Proponents 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 them respectively pursuant to this
Agreement or relating to their activities hereunder or arising out of or in
connection with the construction maintenance or use by the Company the
Co-Proponents and the Project Proponents or their servants agents contractors
or assignees of works or services the subject of this Agreement or the plant
apparatus or equipment installed in connection therewith PROVIDED THAT subject
to the provisions of any other relevant Act such indemnity shall not apply in
circumstances where the State, its servants, agents, or contractors are
negligent in carrying out work for Project Proponents pursuant to this
Agreement.
Commonwealth licences and consents
39. (1) The Company
the Co-Proponents and Project Proponents shall from time to time make
application to the Commonwealth or to the Commonwealth constituted agency,
authority or instrumentality concerned for the grant to it of any licence or
consent under the laws of the Commonwealth necessary to enable or permit any
of them to enter into this Agreement and to perform any of their obligations
hereunder.
(2) On request by the
Company or the Co-Proponents the State shall make representations to the
Commonwealth or to the Commonwealth constituted agency authority or
instrumentality concerned for the grant to the Company or the Co-Proponents of
any licence or consent mentioned in subclause (1).
Subcontracting
40. The State shall
ensure that without affecting the liabilities of the parties under this
Agreement any of the parties shall have the right from time to time to entrust
to third parties the carrying out of any portions of the activities which it
is authorised or obliged to carry out hereunder.
Stamp duty exemption
41. (1) The State
shall exempt the following instruments from any stamp duty which but for the
operation of this Clause would or might be assessed and chargeable on them-
(a) this
Agreement;
(b) a
transfer dated the date hereof from Bexfan Pty. Ltd. ACN 058 226 234 to the
Company of exploration licence 08/691;
(c) any
instrument executed by the State pursuant to this Agreement granting to or in
favour of the Company or any permitted assignee any tenement lease licence
easement or other right or rights; and
(d) any
assignment sublease or disposition (other than by way of mortgage or charge)
by Mineralogy Pty Ltd or a wholly-owned subsidiary of Mineralogy Pty Ltd made
in conformity with the provisions of subclause (1) of Clause 31
PROVIDED THAT this
subclause shall not apply to any instrument or other document executed or made
after the expiration of three years after the commencement date.
(2) If prior to the
commencement date stamp duty has been assessed and paid on any instrument or
other document or transaction referred to in subclause (1) the State shall on
demand after the commencement date refund any stamp duty paid on any such
instrument or other document or transaction to the person who paid the same.
Arbitration
42. (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 the parties or any of them under this Agreement or as to any
matter to be agreed upon between the parties under this Agreement shall in
default of agreement between the parties and in the absence of any provision
in this Agreement to the contrary be referred to and settled by arbitration
under the provisions of the Commercial Arbitration Act 1985 and
notwithstanding section 20(1) of that Act each party may be represented before
the arbitrator by a duly qualified legal practitioner or other representative.
(2) Except where
otherwise provided in this Agreement, the provisions of this Clause shall not
apply to any case where the State the Minister or any other Minister in the
Government of the State is by this Agreement given either expressly or
impliedly a discretionary power.
(3) The arbitrator of
any submission to arbitration under this Agreement is hereby empowered upon
the application of any 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 under this Agreement
and an award may in the name of the Minister grant any further extension or
variation for that purpose.
Consultation
43. The Company, the
Co-Proponents and Project Proponents shall during the currency of this
Agreement consult with and keep the State fully informed on a confidential
basis concerning any action that the Company, any Co-Proponents and Project
Proponents propose to take with any third party (including the Commonwealth or
any Commonwealth constituted agency authority instrumentality or other body)
which might significantly affect the overall interest of the State under this
Agreement.
Notices
44. Any notice consent
or other writing authorised or required by this Agreement to be given or sent
shall be deemed to have been duly given or sent by the State if signed by the
Minister or by any senior officer of the Public Service of Western Australia
acting by the direction of the Minister and forwarded by prepaid post or
handed to the Company the Co-Proponents and any Project Proponents at their
respective address hereinbefore set forth or other address in Western
Australia nominated by any of those parties to the Minister and by the Company
a Co-Proponent or Project Proponents if signed on its behalf by any person or
persons authorised by the Company the Co-Proponents or the Project Proponents
as the case may be or by their respective solicitors as notified to the State
from time to time and forwarded by prepaid post or handed to the Minister and
except in the case of personal service any such notice consent or writing
shall be deemed to have been duly given or sent on the day on which it would
be delivered in the ordinary course of post.
Term of Agreement
45. (1) Subject to the
provisions of this Agreement relating to sooner determination this Agreement
shall expire 60 years after the commencement date.
(2) In the fiftieth
year after the commencement date the parties to this Agreement shall meet and
consider an extension to the term of this Agreement.
(3) The parties shall
record any agreement reached by them pursuant to subclause (2) to extend the
term of this Agreement and any such agreement shall be dealt with in
accordance with subclauses (2) and (3) of Clause 32 as if it were an agreement
made pursuant to subclause (1) of that Clause.
Applicable law
46. This Agreement
shall be interpreted according to the law for the time being in force in the
State of Western Australia.
THE FIRST SCHEDULE
1. Sublease Agreement between Mineralogy Pty. Ltd.
and Austeel Pty. Ltd. dated 26 October 2001.
2. Facilities Deed between Mineralogy Pty. Ltd.
and Austeel Pty. Ltd. dated 26 October 2001.
3. Sublease Agreement between Mineralogy Pty. Ltd.
and Korean Steel Pty. Ltd. dated 25 October 2001.
4. Facilities Deed between Mineralogy Pty. Ltd.
and Korean Steel Pty. Ltd. dated 26 October 2001.
5. Sublease Agreement between Mineralogy Pty. Ltd.
and Bellswater Pty. Ltd. dated 25 October 2001.
6. Facilities Deed between Mineralogy Pty. Ltd.
and Bellswater Pty. Ltd. dated 26 October 2001.
7. Sublease Agreement between Mineralogy Pty. Ltd.
and Balmoral Iron Pty. Ltd. dated 25 October 2001.
8. Facilities Deed between Mineralogy Pty. Ltd.
and Balmoral Iron Pty. Ltd. dated 26 October 2001.
9. Sublease Agreement between Mineralogy Pty. Ltd.
and Brunei Steel Pty. Ltd. dated 25 October 2001.
10. Facilities Deed between Mineralogy Pty. Ltd.
and Brunei Steel Pty. Ltd. dated 26 October 2001.
11. Sublease Agreement between Mineralogy Pty.
Ltd. and International Minerals Pty. Ltd. dated 21 November 2001.
12. Facilities Deed between Mineralogy Pty. Ltd.
and International Minerals Pty. Ltd. dated 28 November 2001.
13. Fortescue Projects Consolidation Agreement
dated 26 October 2001.
THE SECOND SCHEDULE
WESTERN AUSTRALIA
IRON ORE PROCESSING (MINERALOGY PTY. LTD.)
AGREEMENT ACT [ ]
MINING LEASE
MINING LEASE NO.
The Minister for Mines a corporation sole established by the Mining Act 1978
(hereinafter called “the Mining Act”) with power to grant leases
of land for the purposes of mining in consideration of the rents hereinafter
reserved and of the covenants on the part of the Lessee described in Schedule
1 to this lease and of the conditions hereinafter contained and pursuant to
the Mining Act (except, during such period as the Agreement (hereinafter
called “the Agreement”) described in Schedule 2 to this lease
applies to this lease (hereinafter called “the Agreement period”),
as otherwise provided by the Agreement) hereby leases to the Lessee the land
more particularly delineated and described in Schedule 3 to this lease for all
minerals including iron subject however to the exceptions and reservations set
out in Schedule 4 to this lease and to any other exceptions and reservations
which are by the Mining Act and by any Act for the time being in force deemed
to be contained herein (subject, during the Agreement period, to the
Agreement) to hold to the Lessee this lease for a term of twenty one years
commencing on the date set out in Schedule 5 to this lease upon and subject to
such of the provisions of the Mining Act, (except, during the Agreement
period, as otherwise provided by the Agreement) as are applicable to mining
leases granted thereunder and to the covenants and conditions herein contained
or implied and any further conditions or stipulations set out in Schedule 6 to
this lease and, during the Agreement period, to the terms covenants and
conditions set out in the Agreement the Lessee paying therefor the rents for
the time being and from time to time prescribed pursuant to the provisions of
the Mining Act at the times and in the manner so prescribed and royalties
during the Agreement period as provided in the Agreement and thereafter in
accordance with the Mining Act with the right during the Agreement period and
in accordance with the provisions of the Agreement to automatic extensions at
the option of the Lessee for two further periods of 21 years each upon the
same terms and conditions and thereafter subject to such provisions as to
renewal of the term of this lease as may be applicable pursuant to the
Mining Act.
In this lease -
- “Lessee” includes the successors and
permitted assigns of the Lessee.
- If the Lessee be more than one the liability of
the Lessee hereunder shall be joint and several.
- Reference to an Act includes all amendments to
that Act for the time being in force and also any Act passed in substitution
therefor or in lieu thereof and to the regulations and by-laws for the time
being in force thereunder.
SCHEDULE 1
(Name and address of “the Company”)
SCHEDULE 2
The Agreement made between the State of Western Australia, Mineralogy Pty.
Ltd. ACN 010 582 680, Austeel Pty. Ltd. ACN 058 430 032, Balmoral Iron Pty
Ltd. ACN 058 429 931, Bellswater Pty. Ltd. 058 429 708, Brunei Steel Pty. Ltd.
ACN 058 429 977, International Minerals Pty. Ltd. ACN 058 341 638 and Korean
Steel Pty. Ltd. ACN 058 429 600 and ratified by
the Iron Ore Processing (Mineralogy Pty. Ltd.) Agreement Act [
].
SCHEDULE 3
(Description of land:)
Locality:
Mineral Field: Area,
etc.:
Being the land delineated on Survey Diagram No. and
recorded in the Department of Mines, Perth.
SCHEDULE 4
All petroleum as defined in the Petroleum Act 1967 on or below the surface of
the land the subject of this lease is reserved to the Crown in right of the
State of Western Australia with the right of the Crown in right of the State
of Western Australia and any person lawfully claiming thereunder or otherwise
authorised to do so to have access to the land the subject of this lease for
the purpose of searching for and for the operations of obtaining petroleum (as
so defined) in any part of the land.
SCHEDULE 5
(Date of commencement of the lease).
SCHEDULE 6
(Any further conditions or stipulations as during the term of the Agreement
the Minister for Mines may, consistent with the provisions of the Agreement,
determine and thereafter as may be imposed pursuant to the Mining Act ).
IN witness whereof the Minister for Mines has affixed his seal and set his
hand hereto this day of
IN WITNESS WHEREOF this Agreement has been executed by or on behalf of the
parties hereto the day and year first hereinbefore mentioned.
SIGNED by the said )
THE HONOURABLE GEOFFREY )
IAN GALLOP in the
)
presence of:
)
Clive Morris Brown
MINISTER FOR STATE DEVELOPMENT
THE COMMON SEAL of )
MINERALOGY PTY. LTD. was
)
hereunto affixed by
)
authority of the Directors
)
in the presence of:
)
______________________________
Director — Clive Frederick Palmer
______________________________
Director — Susan Maree Palmer
THE COMMON SEAL of )
AUSTEEL PTY. LTD. was
)
hereunto affixed by
)
authority of the Directors
)
in the presence of:
)
______________________________
Director — Clive Frederick Palmer
______________________________
Director — Susan Maree Palmer
THE COMMON SEAL of )
BALMORAL IRON PTY. LTD.
)
was hereunto affixed by
)
authority of the Directors
)
in the presence of:
)
______________________________
Director — Clive Frederick Palmer
______________________________
Director — Bronwyn Jane Hall
THE COMMON SEAL of )
BELLSWATER PTY. LTD. was
)
hereunto affixed by
)
authority of the Directors
)
in the presence of:
)
______________________________
Director — Clive Theodore Mensink
______________________________
Secretary — Alison Page Jack
THE COMMON SEAL of )
BRUNEI STEEL PTY. LTD. was
)
hereunto affixed by authority of
)
the Directors in the presence of:
)
______________________________
Director — Clive Frederick Palmer
______________________________
Director — Harold Charles Fong
THE COMMON SEAL of )
INTERNATIONAL MINERALS
)
PTY. LTD. was hereunto affixed
)
by authority of the Directors )
in the
presence of: )
_____________________________
Director — Clive Frederick Palmer
______________________________
Director — Clive Theodore Mensink
THE COMMON SEAL of )
KOREAN STEEL PTY. LTD.
)
was hereunto affixed by
)
authority of the Directors
)
in the presence of:
)
______________________________
Director — Clive Frederick Palmer
______________________________
Director — Clive Theodore Mensink