Western Australian Current Acts Western Australian Current Acts[s. 2]
[Heading inserted: No. 98 of 1964 s. 5; amended:
No. 19 of 2010 s. 4.]
THIS AGREEMENT under seal made the thirtieth day of July One thousand nine
hundred and sixty-three BETWEEN THE HONOURABLE CRAWFORD DAVID NALDER M.L.A.
Acting Premier and Acting Treasurer of the State of Western Australia acting
for and on behalf of the said State and instrumentalities thereof from time to
time (hereinafter called “the State”) of the one part AND
HAMERSLEY IRON PTY. LIMITED a company incorporated under the
Companies Act 1961 of the State of Victoria and having its registered office
and principal place of business in that State at 95 Collins Street Melbourne
and its registered office in the State of Western Australia at 37 Saint
George’s Terrace Perth (hereinafter called “the Company”
which expression will include the successors and assigns of the Company
including where the context so admits the assignees and appointees of the
company under clause 20 hereof) of the other part.
WHEREAS:
(a) The Company (being satisfied from
investigations which prior to the year 1963 cost over three hundred thousand
pounds (£300,000) that the mining areas defined in clause 1 hereof
contain iron ore of tonnages and grades sufficient to warrant economic
recovery and marketing) desires to carry out certain investigations relating
to the mining transport by rail and shipment of iron ore from the mining areas
and also to the entering into a contract or contracts for the export sale of
that ore
(b) The Company having commenced already to
investigate the feasibility of establishing within the State of Western
Australia a plant for secondary processing agrees to review this matter from
time to time with a view to its being in a position to submit to the State
proposals for such establishment as hereinafter provided
(c) The Company agrees to investigate in due
course the feasibility of establishing within the State of Western Australia
an integrated iron and steel industry and to review this matter from time to
time with a view to its being in a position to submit to the State proposals
for such establishment as hereinafter provided
(d) Conzinc Riotinto of Australia Limited a
company incorporated under the Companies Act 1958 of the State of Victoria and
having its registered office and principal place of business in that State at
95 Collins Street Melbourne (hereinafter called “the Guarantor
Company”) has agreed to guarantee that the Company (which is a
subsidiary of the Guarantor Company) will complete the expenditure of the sum
of five hundred thousand pounds (£500,000) as provided in clause 4(1)
hereof.
NOW THIS AGREEMENT WITNESSETH: —
Interpretation 4 .
1. In this Agreement subject to the context
—
“associated company” means —
(a) any
company notified in writing by the Company to the Minister which is
incorporated in the United Kingdom the United States of America or the
Commonwealth of Australia and which is —
(i)
a subsidiary of the Company within the meaning of the
term “subsidiary” in section 6 of the Companies Act 1961 ;
(ii)
promoted by the Company for all or any of the purposes of
this Agreement and in which the Company holds not less than one million pounds
(£1,000,000) of the issued ordinary share capital;
(iii)
a company in which the Company holds not less than twenty
per cent (20%) of the issued ordinary share capital; or
(iv)
a company which is related within the meaning of that
term in the aforesaid section to the Company or to any company in which the
Company holds not less than twenty per cent (20%) of the issued ordinary share
capital, and
(b) any
company approved in writing by the Minister for the purposes of this Agreement
which is associated directly or indirectly with the Company in its business or
operations hereunder;
“commencement date” means the date
referred to as the commencement date in clause 8(3) hereof;
“Commonwealth” means the Commonwealth
of Australia and includes the Government for the time being thereof;
“Company’s wharf” means the
wharf to be constructed by the Company pursuant to this Agreement for the
shipment of iron ore from the mineral lease or (except for the purposes of the
definition of “harbour”) other the temporary wharf for the time
being approved by the Minister as the Company’s wharf for the purposes
hereof during the period to which such approval relates;
“deposits townsite” means the townsite
to be established on or near the mining areas pursuant to this Agreement;
“direct shipping ore” means iron ore
which has an average pure iron content of not less than sixty per cent (60%)
which will not pass through a one half (½) inch mesh screen and which is
sold without concentration or other beneficiation other than crushing and
screening;
“export date” means the earlier of the
following dates namely —
(a) the
date three (3) years after the commencement date;
(b) the
date when the Company first exports iron ore hereunder (other than iron ore
shipped solely for testing purposes);
“financial year” means a year
commencing on and including the 1st day of July;
“fine ore” means iron ore which has an
average pure iron content of not less than sixty per cent. (60%) which will
pass through a one half (½) inch mesh screen and which is sold without
concentration or other beneficiation other than crushing and screening;
“fines” means iron ore (not being
direct shipping ore or fine ore) which will pass through a one half (½)
inch mesh screen;
“f.o.b. revenue” means the price for
iron ore from the mineral lease the subject of any shipment or sale and
payable by the purchaser thereof to the Company or an associated company less
all export duties and export taxes payable to the Commonwealth on the export
of the iron ore and all costs and charges properly incurred and payable by the
Company from the time the ore shall be placed on ship at the Company’s
wharf to the time the same is delivered and accepted by the purchaser
including —
(1) ocean freight;
(2) marine insurance;
(3) port and handling
charges at the port of discharge;
(4) all costs properly
incurred in delivering the ore from port of discharge to the smelter and
evidenced by relevant invoices;
(5) all weighing
sampling assaying inspection and representation costs;
(6) all shipping
agency charges after loading on and departure of ship from the Company’s
wharf; and
(7) all import taxes
by the country of the port of discharge;
“harbour” means the port or harbour
serving the Company’s wharf;
“integrated iron and steel Industry”
means an industry for the manufacture of iron and steel or for the manufacture
of steel from iron ore by a process which does not necessarily involve the
production of pig iron or basic iron in the production of steel;
“iron ore contracts” means the
contract or contracts referred to in clause 5(1) hereof;
“Land Act” means the Land Act 1933 ;
“mineral lease” means the mineral
lease referred to in clause 9(1) hereof and includes any renewal thereof;
“Mining Act” means the Mining Act 1904
;
“mining areas” means the areas
delineated and coloured red on the Plan marked “A” initialled by
or on behalf of the parties hereto for the purposes of identification;
“Minister” means the Minister in the
Government of the said State for the time being responsible (under whatsoever
title) for the administration of the Ratifying Act and pending the passing of
that Act means the Minister for the time being designated in a notice from the
State to the Company and includes the successors in office of the Minister;
“month” means calendar month;
“notice” means notice in writing;
“person” or “persons”
includes bodies corporate;
“port townsite” means the townsite to
be established pursuant to this Agreement near the harbour;
“Ratifying Act” means the Act to
ratify this Agreement and referred to in clause 3 hereof;
“said State” means the State of
Western Australia;
“secondary processing” means
concentration or other beneficiation of iron ore other than by crushing or
screening and includes thermal electrostatic magnetic and gravity processing;
“special lease” means a special lease
or license to be granted in terms of this Agreement under the Ratifying Act
the Land Act or the Jetties Act 1926 and includes any renewal thereof;
“this Agreement” “hereof”
and “hereunder” include this Agreement as from time to time added
to varied or amended;
“ton” means a ton of two thousand two
hundred and forty (2,240) lbs. net dry weight;
“townsite” in relation to the townsite
to be established near the harbour means a townsite (whether or not
constituted and defined under section 10 of the Land Act) primarily to
facilitate the Company’s operations in and near the harbour and for
employees of the Company and in relation to the mining areas means such a
townsite or townsites or any other townsite or townsites which is or are
established by the Company for the purposes of its operations and employees on
or near the mining areas in lieu of a townsite constituted and defined under
section 10 of the Land Act ;
“wharf” includes any jetty structure;
“year 1” means the year next following
the export date and “year” followed immediately by any other
numeral has a corresponding meaning;
reference in this Agreement to an Act shall
include the amendments to such Act for the time being in force and also any
Act passed in substitution therefor or in lieu thereof and the regulations for
the time being in force thereunder;
power given under any clause of this Agreement
other than clause 24 hereof to extend any period or date shall be without
prejudice to the power of the Minister under the said clause 24;
marginal notes shall not affect the interpretation
or construction hereof 4 ;
the phases in which it is contemplated that this
Agreement will operate are as follows —
(a)
Phase 1 — the period from the execution hereof by the parties hereto
until the commencement date;
(b)
Phase 2 — the period from the commencement date until a plant for
secondary processing or an integrated iron and steel industry is established
by the Company hereunder or by another company or party as referred to in
clause 12 or clause 13 hereof whichever first occurs;
(c)
Phase 3 — (operative if the Company commences secondary processing
before establishing an integrated iron and steel industry hereunder) —
the period from the commencement of secondary processing by the Company
hereunder until the Company has established an integrated iron and steel
industry hereunder which period shall include a continuation of Phase 2
operations; and
(d)
Phase 4 — the period after the Company has established an integrated
iron and steel industry hereunder which period shall include a continuation of
Phase 2 operations.
Obligations of the State during Phase 1 4 .
2. The State shall —
(a) upon
application by the Company within one (1) month after the execution hereof by
the parties hereto (and surrender of the then existing rights of occupancy
already granted in respect of any portions of the mining areas) cause to be
granted to the Company and to the Company alone rights of occupancy for the
purposes of this Agreement (including the sole right to search and prospect
for iron ore) over the whole of the mining areas under section 276 of the
Mining Act at a rental at the rate of four pounds (£4) per square mile
per annum payable quarterly in advance for the period expiring on the 31st
December, 1963 and shall then and thereafter subject to the continuance of
this Agreement cause to be granted to the Company as may be necessary
successive renewals of such last-mentioned rights of occupancy (each renewal
for a period of twelve (12) months at the same rental and on the same terms)
the last of which renewals notwithstanding its currency shall expire —
(i)
on the date of application for a mineral lease by the
Company under clause 9(1) hereof;
(ii)
at the expiration of one month from the commencement
date;
(iii)
on the determination of this Agreement; or
(iv)
on the day of the receipt by the State of a notice from
the Company to the effect that the Company abandons and cancels this
Agreement,
whichever shall first
happen;
(b)
introduce and sponsor a Bill in the Parliament of Western Australia to ratify
this Agreement;
(c) to
the extent reasonably necessary for the purposes of clauses 4 and 5 hereof
allow the Company to enter upon Crown lands (including land the subject of a
pastoral lease and survey possible sites for a harbour wharf railway townsite
(both in or near the harbour and on or near the mining areas) stockpiling
processing and other areas required for the purposes of this Agreement; and
(d) at
the request and cost of the Company co-operate with the Company in the
discharge of its obligations under clause 4(1)(a) hereof.
Ratification and operation 4 .
3. (1) Clauses 9 10 11
(other than paragraphs (d) and (l) thereof) 12-22 both inclusive and 24 of
this Agreement shall not operate unless and until the Bill to ratify this
Agreement as referred to in clause 2(b) hereof is passed as an Act before the
fifteenth day of November, 1963 or such later date if any as the parties
hereto may mutually agree upon. If the Bill is not so passed before that date
or later date (as the case may be) this Agreement will then cease and
determine and neither of the parties hereto will have any claim against the
other of them with respect to any matter or thing arising out of done
performed or omitted to be done or performed under this agreement except as
hereinafter provided in clause 11(d) hereof.
(2) If the Bill to
ratify this Agreement is passed as an Act before the date or later date if any
referred to in subclause (1) of this clause the following provisions of this
clause shall notwithstanding the provisions of any Act or law thereupon
operate and take effect namely —
(a) the
provisions of subclauses (1) (2) (3) and (4) of clause 9 the proviso to
paragraph (a) of subclause (2) of clause 10 subclause (3) of clause 10
paragraphs (a) (f) (g) (h) (i) (k) and (m) of clause 11 and clauses 21 23 24
and 27 shall take effect as though the same had been brought into force and
had been enacted by the Ratifying Act;
(b)
subject to paragraph (a) of this subclause the State and the Minister
respectively shall have all the powers discretions and authorities necessary
or requisite to enable them to carry out and perform the powers discretions
authorities and obligations conferred or imposed upon them respectively
hereunder;
(c) no
future Act of the said State will operate to increase the Company’s
liabilities or obligations hereunder with respect to rents or royalties; and
(d) the
State may as for a public work under the Public Works Act 1902 resume any
land or any estate or interest in land required for the purposes of this
Agreement and may lease or otherwise dispose of the same to the Company.
Obligations of Company during Phase 1 4 .
4. (1) The Company at
an estimated total cost as from the 1st January, 1963 of not less than five
hundred thousand pounds (£500,000) shall with all reasonable diligence
continue to do or shall carry out and by the 31st December, 1964 (or such
extended date if any as the Minister may approve) shall complete the matters
hereinafter in this subclause mentioned and everything necessary to enable it
to finalise and to submit to the Minister the detailed proposals and other
matters referred to in clause 5(1)(a) hereof. The matters first referred to in
this subclause are —
(a) a
thorough geological and (as necessary) geophysical investigation and proving
of the iron ore deposits in the mining areas and the testing and sampling of
such deposits;
(b) a
general reconnaissance of the various sites of proposed operations pursuant to
the Agreement;
(c) a
selection of the most suitable route for a railway from the mining areas to a
suitable harbour and wharf installation for the export of the iron ore;
(d) an
engineering investigation of a suitable harbour site (from possible sites at
Cape Lambert Dampier Archipelago and Maud Landing) and wharf site therein for
the purposes of the Company but having regard to the proper development use
and capacity of the harbour as a whole by persons and corporations other than
the Company;
(e) an
investigation of suitable water supplies for the townsites and harbour or port
services;
(f) the
planning of suitable townsite in consultation with the State but having due
regard to the general development of the port townsite and (if and to the
extent applicable) the deposits townsite for use by others as well as the
Company; and
(g)
metallurgical and market research.
(2) The Company shall
keep the State fully informed at least quarterly commencing within one (1)
quarter after the execution hereof as to the progress and results of the
Company’s operations under subclause (1) of this clause.
(3) If the State
concurrently carries out its own investigations and reconnaissances in regard
to all or any of the matters mentioned in subclause (1) of this clause or any
alternative harbour site the Company shall co-operate with the State therein
and so far as reasonably practicable will consult with the representatives or
officers of the State and make full disclosures and expressions of opinion
regarding matters referred to in this subclause.
(4) The Company will
employ and retain expert consultant engineers to investigate report upon and
make recommendations in regard to the sites for and design of the
Company’s wharf (including areas for installations stockpiling and other
purposes in the harbour area) reasonably required by the Company under this
Agreement but in such regard the Company will require the consultant engineers
to have full regard for the general development of the harbour area and the
dredging thereof and of approaches thereto with a view to the reasonable use
by others of the harbour area and approaches and the Company will furnish to
the State copies of such report and recommendations. When submitting to the
Minister detailed proposals as referred to in clause 5(1)(a) hereof in regard
to the matters mentioned in this subclause the Company will so far as
reasonably practicable ensure that the detailed proposals —
(a) do
not materially depart from the report and recommendations of the consultant
engineers;
(b)
provide for the best overall development of the harbour area; and
(c)
disclose any conditions of user and where alternative proposals are submitted
the Company’s preferences in regard thereto.
Company to submit proposals 4 .
5. (1) By the 31st day
of December, 1964 (or such extended date if any as the Minister may approve)
the Company will submit to the Minister —
(a) to
the fullest extent reasonably practicable its detailed proposals (including
plans where practicable and specifications where reasonably required by the
Minister) with respect so far as relevant —
(A) to the mining from the mining areas (or
so much thereof as shall be comprised within the mineral lease) by the Company
during the three (3) years next following the commencement of such mining with
a view to the transport and shipment of the iron ore mined and its outline
proposals with respect to such mining during the next following seven (7)
years; and
(B) to the transport and shipment of iron
ore to be mined by the Company hereunder during the operation of Phase 2 of
this Agreement —
and including the
location area lay-out design number materials and time programme for the
commencement and completion of construction or the provision (as the case may
be) of each of the following matters namely —
(i)
the harbour and harbour development including dredging
the depositing of spoil the provision of navigational aids the Company’s
wharf (the plans and specifications for which wharf shall be submitted to and
be subject to the approval of the State) the berth and swinging basin for the
Company’s use and harbour installations facilities and services all of
which shall permit of adaptation so as to enable the use of the harbour and
wharf by vessels having an ore-carrying capacity of not less than one hundred
thousand (100,000) tons;
(ii)
the railway between the mining areas and the
Company’s wharf and works ancillary to or connected with the railway and
its proposed operation including fencing (if any) and crossing places;
(iii)
townsites on the mining areas and near the harbour and
development services and facilities in relation thereto
(iv)
housing;
(v)
water supply;
(vi)
roads (including details of roads in respect of which it
is not intended that the provisions of clause 10(2)(b) shall operate); and
(vii)
any other works services or facilities proposed or
desired by the Company;
and
(b)
(subject to the provisions of subclause (3) of this clause) satisfactory
evidence firstly of the making or likelihood of making suitable iron ore
contracts for the sale by the Company hereunder and shipment from the
Company’s wharf of not less than fifteen million (15,000,000) tons of
iron ore from the mineral lease at not less than two million (2,000,000) tons
in the first two (2) years next following the export date and in each
succeeding year after the expiration of the said two (2) years at not less
than one million (1,000,000) tons secondly of the availability of finance
necessary for the fulfilment of the Company’s proposals hereunder
relating to the iron ore export project the subject of Phase 2 of this
Agreement and thirdly of any necessary license to the Company from the
Commonwealth to export hereunder iron ore the subject of the iron ore
contracts in the quantities at the rate or rates and in the years stated in
the contracts.
(2) The Company shall
have the right to submit to the Minister its detailed proposals aforesaid in
regard to a matter or matters the subject of any of the subparagraphs numbered
(i) to (vii) inclusive of paragraph (a) of subclause (1) of this clause as and
when the detailed proposals become finalised by the Company PROVIDED THAT
where any such matter is the subject of a subparagraph which refers to more
than one subject matter the detailed proposals will relate to and cover each
of the matters mentioned in the subparagraph PROVIDED FURTHER that the first
detailed proposals submitted to the Minister relate to and cover the matters
mentioned in subparagraph (i) of the said paragraph (a) of the said subclause
(1) and that the last two detailed proposals submitted to the Minister relate
to and cover the iron ore contracts and the finance necessary for the iron ore
export project.
(3) If the Company
should desire an extension for a period not exceeding six (6) months of the
date namely the 31st day of December, 1964 (or such later date if any
previously approved by the Minister) within which to negotiate satisfactory
iron ore contracts or to arrange the necessary finance aforesaid and if the
Company demonstrates to the Minister that the Company has substantially
complied with its obligations under clause 4 hereof and its other obligations
under clause 5(1) hereof and reasonably requires an additional period for the
purposes of such contracts or finance the Minister will grant such extension
for such additional period not exceeding six (6) months as is warranted in the
circumstances.
Consideration of Company’s proposals under clause 5(1)(a)(i) 4 .
6. (1) Within two (2)
months after receipt of the detailed proposals of the Company in regard to the
matters mentioned in clause 5(1)(a)(i) hereof pursuant to the provisions of
the said clause 5 the Minister will give notice to the Company either —
(a) that
he approves the proposals in which event the parties hereto shall be bound
thereby subject however to the provisions of clause 8(2) hereof; or
(b) that
he does not approve the proposals in which event he will in the notice state
his reasons for not approving the same; and also either —
(i)
that he will invoke the provisions of subclause (4) of
this clause; or
(ii)
that he desires such alterations to the Company’s
proposals as shall be set out in the notice —
but subject to the site for the harbour as set out in the proposals being one
of the sites mentioned in clause 4(1)(d) hereof such site shall not be altered
except under subclause (4) of this clause or by mutual agreement.
(2) If the Minister
states in his notice that he will invoke the provisions of subclause (4) of
this clause the Minister will within three (3) months next following the
giving of that notice give to the Company the notice referred to in the said
subclause (4) (which latter notice is hereinafter in this clause called
“the Demonstration Notice”).
(3) If the Minister
states in his notice under subsection (1) of this clause that he desires
alterations as referred to in subclause (1)(b)(ii) of this clause the parties
will consult with a view to reaching agreement in regard to the alterations
desired and if agreement is so reached the Company’s proposals as
altered by such mutual agreement will be deemed approved and will be binding
on the parties hereto subject to the provisions of clause 8 hereof. If however
agreement is not so reached within two (2) months from the giving of the
notice referred to in subclause (1) of this clause the State will within one
(1) month thereafter employ and retain other expert consultant engineers to
make recommendations in regard to the Company’s detailed proposals as
mentioned in the said clause 5(1)(a)(i) except the site for the harbour. Such
latter consultants shall be appointed from a panel of consulting engineers
already agreed upon by the parties and listed in a writing initialled by or on
behalf of the parties hereto for the purposes of identification. On receipt of
the report and recommendations of the consultants so employed by the State the
Minister will furnish to the Company copies thereof and in the event of the
recommendations providing for alternative sites for the Company’s wharf
and related purposes the Minister shall give to the Company the option to
select whichever of the alternative sites should be so recommended subject to
any conditions recommended by the consultants and approved by the Minister.
The Company shall as soon as reasonably practicable (and in any event within a
period of two (2) months) make such election and advise the State in writing
accordingly whereupon the site so selected subject to such conditions (if any)
shall be deemed approved and the parties hereto shall be bound thereby for the
purposes of this Agreement subject however to the provisions of clause 8
hereof. In the event of no alternative sites being so recommended the
Company’s original detailed proposals in regard to the matters mentioned
in clause 5(1)(a)(i) hereof with any alterations thereto which may have been
or be mutually agreed shall be deemed approved by the Minister and (subject to
clause 8 hereof) the parties hereto shall be bound thereby for the purposes
hereof.
(4) Notwithstanding
that under earlier provisions of this Agreement the Company’s proposals
for a site for a harbour for the Company’s wharf are restricted to a
site at Cape Lambert Dampier Archipelago or Maud Landing and provided that the
Company shall have submitted to the Minister its detailed proposals in regard
to the matters mentioned in clause 5(1)(a)(i) hereof and that the Minister
shall not have approved of those proposals and has given notice under clause
6(1)(b)(i) hereof then if at any time within three (3) months after receipt of
that notice the Minister in the Demonstration Notice demonstrates that —
(a) a
harbour at another site;
(b)
sites therein for the Company’s wharf and for harbour installations and
facilities; and
(c) a
railway thereto from the mining areas along a route indicated in the notice
—
would be both suitable for the Company’s purposes under this Agreement
and more economical to the Company on the whole having regard to both the
Company’s long-term interests hereunder and the relative costs both of
construction and of subsequent operation over a period of twenty-one (21)
years next following the export date then (unless a dispute under this
subclause is referred to arbitration and determined in favour of the Company)
the sites and railway route the subject of the Minister’s notice will be
deemed substituted for the relevant sites and railway route which otherwise
may be or have been the subject of the Company’s proposals hereunder and
shall subject to such alterations thereto as may have been mutually agreed be
deemed to have been approved by the State. Within two (2) months after receipt
of the Demonstration Notice the Company may elect by notice to the State to
refer to arbitration and will then within two (2) months thereafter refer to
arbitration any dispute concerning matters the subject of the notice. If by
the award on arbitration the dispute is decided in favour of the State then
the State’s detailed proposals as set out in the Demonstration Notice
with regard to the matters mentioned in clause 5(1)(a)(i) hereof shall be
substituted for the Company’s proposals in relation thereto and shall
subject to such alterations thereto as may be mutually agreed be deemed to
have been approved by the State. If by the award on arbitration the dispute is
decided in favour of the Company then the Minister will be deemed to have
approved the Company’s proposed site for a harbour but the State will
(unless it meanwhile approves all the matters mentioned in clause 5(1)(a)(i)
hereof which have not previously been approved) within one (1) month after the
delivery of the award on arbitration employ and retain other expert
consultants (appointed from a panel as mentioned in subclause (3) hereof) to
make recommendations in regard to the Company’s detailed proposals as
mentioned in the said clause 5(1)(a)(i) except for the site for a harbour and
the same procedure shall be followed with regard to such consultants and their
report and recommendations as is set out in subclause (3) hereof.
(5) (a)
In the event of the Minister retaining consultants
under subclause (3) or subclause (4) of this clause a period equal to the
period from the date of such retention until the day on which the Minister
furnishes to the Company copies of the report and recommendation of the said
consultants (plus in the case of the Minister retaining consultants under
subclause (4) of this clause one month) shall be added to the period within
which the Company would otherwise be required to submit evidence under clause
5(1)(b) hereof.
(b) In
the event of the Minister invoking the provisions of subclause (4) of this
clause and the Company referring a dispute thereunder to arbitration then the
period from the day of the receipt by the Company of the Demonstration Notice
until the day of the delivery of the award under the arbitration with respect
thereto shall be added to the period within which the Company would otherwise
be required to submit evidence under clause 5(1)(b) hereof.
Consideration of other proposals under Clause 5(1) 4 .
7. (1) Within two (2)
months after receipt of the detailed proposals of the Company in regard to any
of the matters mentioned in clause 5(1)(a) hereof other than those mentioned
in clause 5(1)(a)(i) hereof the Minister shall give to the Company notice
either of his approval of the proposals or of alterations desired thereto and
in the latter case shall afford to the Company opportunity to consult with and
to submit new proposals to the Minister. The Minister may make such reasonable
alterations to or impose such reasonable conditions on the proposals or new
proposals (as the case may be) as he shall think fit having regard to the
circumstances including the overall development and use by others as well as
the Company but the Minister shall in any notice to the Company disclose his
reasons for any such alteration or condition. Within two (2) months of the
receipt of the notice the Company may elect by notice to the State to refer to
arbitration and within two (2) months thereafter shall refer to arbitration as
hereinafter provided any dispute as to the reasonableness of any such
alteration or condition. If by the award on arbitration the dispute is decided
against the Company then unless the Company within three (3) months after
delivery of the award satisfies and obtains the approval of the Minister as to
the matter or matters the subject of the arbitration this Agreement shall on
the expiration of that period of three (3) months cease and determine (save as
provided in clause 11(d) hereof) but if the question is decided in favour of
the Company the decision will take effect as a notice by the Minister that he
is so satisfied with and approves the matter or matters the subject of the
arbitration.
(2) Within two (2)
months after receipt of evidence from the Company with regard to the matters
mentioned in clause 5(1)(b) hereof to the reasonable satisfaction of the
Minister the State will give to the Company notice either that it is satisfied
with such evidence (in which case the proposals in relation to those matters
will be deemed approved) or not in which case the State shall afford the
Company an opportunity to consult with and to submit further evidence to the
Minister. If within thirty (30) days of receipt of such notice further
evidence has not been submitted to the Minister’s reasonable
satisfaction and his approval obtained thereto the Company may within a
further period of thirty (30) days elect by notice to the State to refer to
arbitration as hereinafter provided and will within two (2) months thereafter
refer to arbitration any dispute as to the reasonableness of the
Minister’s decision. If by the award on arbitration the dispute is
decided against the Company then unless the Company within three (3) months
after delivery of the award satisfies and obtains the approval of the Minister
as to the matter or matters the subject of the arbitration this Agreement
shall on the expiration of that period cease and determine (save as provided
in clause 11(d) hereof) but if the question is decided in favour of the
Company the decision will take effect as a notice by the Minister that he is
so satisfied with and has approved the matter or matters the subject of the
arbitration.
Extension of time 4 .
8. (1) The arbitrator
arbitrators or umpire (as the case may be) of any submission to arbitration
hereunder is hereby empowered upon application by either party hereto to grant
any interim extension of time or date referred to herein which having regard
to the circumstances may reasonably be required in order to preserve the
rights of either or both the parties hereunder and an award in favour of the
Company may in the name of the Minister grant any further extension of time
for that purpose.
(2) Notwithstanding
that under clause 6 or clause 7 hereof any detailed proposals of the Company
are approved by the State or the Minister or determined by consultant
engineers or by arbitration award unless each and every such proposal and
matter is so approved or determined by the 28th day of February, 1965 or by
such extended date if any as the Company shall be entitled to or shall be
granted pursuant to the provisions hereof then on the latest of the dates
aforesaid this Agreement shall cease and determine subject however to the
provisions of clause 11(d) hereof.
Commencement date 4 .
(3) Subject to the
approval by the Minister or determination by arbitration or by consulting
engineers as herein provided of each and every of the detailed proposals and
matters referred to in clause 5(1) hereof (except if and as modified by the
application of clause 6(4) hereof) the date upon which the last of those
proposals of the Company shall have been so approved or determined shall be
the commencement date for the purposes of this Agreement.
(4) If under any
arbitration under clause 7 hereof the dispute is decided against Company and
subsequently but before the commencement date this Agreement ceases and
determines the State will not for a period of three (3) years after such
determination enter into a contract with any other party for the mining
transport and shipment of iron ore from the mining areas on terms more
favourable on the whole to the other party than those which would have applied
to the Company hereunder if the question had been determined in favour of the
Company.
Phase 2 Obligations of State 4 .
9. (1) As soon as
conveniently may be after the commencement date the State shall —
Mineral Lease 4 .
(a)
after application is made by the Company for a mineral lease of any part or
parts (not exceeding in total area three hundred (300) square miles and in the
shape of a parallelogram or parallelograms) of the mining areas in conformity
with the Company’s detailed proposals under clause 5(1)(a)(A) hereof as
finally approved or determined cause any necessary survey to be made of the
land so applied for (the cost of which survey to the State will be recouped or
repaid to the State by the Company on demand after completion of the survey)
and shall cause to be granted to the Company a mineral lease thereof for iron
ore in the form of the Schedule hereto for a term which subject to the payment
of rents and royalties hereinafter mentioned and to the performance and
observance by the Company of its obligations under the mineral lease and
otherwise under this Agreement shall be for a period of twenty-one (21) years
commencing from the commencement date with rights to successive renewals of
twenty-one (21) years upon the same terms and conditions but subject to
earlier determination upon the cessation or determination of this Agreement
PROVIDED HOWEVER that the Company may from time to time (without abatement of
any rent then paid or payable in advance) surrender to the State any portion
or portions (of reasonable size and shape) of the mineral lease;
Under Company’s proposals 4 .
(b) in
accordance with the Company’s proposals as finally approved or
determined under clause 6 or clause 7 hereof and as require the State to
accept obligations —
Lands 4 .
(i)
grant to the Company in fee simple or for such terms or
periods and on such terms and conditions (including renewal rights) as subject
to the proposals (as finally approved or determined as aforesaid) shall be
reasonable having regard to the requirements of the Company hereunder and to
the overall development of the harbour and access to and use by others of
lands the subject of any grant to the Company and of services and facilities
provided by the Company —
for nominal consideration — townsite lots;
at peppercorn rental — special leases of
Crown lands within the harbour area the townsites and the railway; and
at rentals as prescribed by law or are otherwise
reasonable — leases rights mining tenements easements reserves and
licenses in on or under Crown lands
under the Mining Act
the Jetties Act 1926 or under the provisions of the Land Act modified as in
subclause (2) of this clause provided (as the case may require) as the Company
reasonably requires for its works and operations hereunder including the
construction or provision of the railway wharf roads airstrip water supplies
and stone and soil for construction purposes; and
Services and Facilities 4 .
(ii)
provide any services or facilities subject to the
Company’s bearing and paying the capital cost involved and reasonable
charges for operation and maintenance except where and to the extent that the
State otherwise agrees —
subject to such terms
and conditions as may be finally approved or determined as aforesaid PROVIDED
THAT from and after the fifteenth anniversary of the export date or the
twentieth anniversary of the date hereof whichever shall first occur the
Company will in addition to the rentals already referred to in this paragraph
pay to the State during the currency of this Agreement after such anniversary
as aforesaid a rental (which subject to its being payable by the Company to
the State may from time to time at the option of the Company be payable in
respect of such one or more of the special leases or leases granted to the
Company under this paragraph and remaining current) equal to two shillings and
sixpence (2s. 6d.) per ton on all iron ore or (as the case may be) all iron
ore concentrates in respect of which royalty is payable under clause 10(2)(j)
hereof in any financial year such additional rental to be paid within three
(3) months after shipment sale use or production as the case may be of the
iron ore or iron ore concentrates SO NEVERTHELESS that where in respect of any
such year the additional rental so payable is less than a minimum sum of one
hundred and fifty thousand pounds (£150,000) the Company will within
three (3) months after expiration of that year pay to the State as further
rental the difference between one hundred and fifty thousand pounds
(£150,000) and the additional rental actually paid in respect of that
year but any amount so paid in respect of any financial year in excess of the
rental payable for that year at the rate of two shillings and sixpence (2s.
6d.) per ton as aforesaid shall be offset by the Company against any amount
payable by it to the State above the minimum amounts payable to the State
under this paragraph in respect of the two (2) financial years immediately
following the financial year in respect of which the said minimum sum was
paid; and
Other rights 4 .
(c) on
application by the Company cause to be granted to it such machinery and
tailings leases (including leases for the dumping of overburden) and such
other leases licenses reserves and tenements under the Mining Act or under the
provisions of the Land Act modified as in subclause (2) of this clause
provided as the Company may reasonably require and request for its purposes
under this Agreement on or near the mineral lease;
(2) For the purposes
of subparagraph (i) of paragraph (b) and paragraph (c) of subclause (1) of
this clause the Land Act shall be deemed to be modified by —
(a) the
substitution for subsection (2) of section 45A of the following subsection:
(2)
Upon the Governor signifying approval pursuant to subsection (1)
of this section in respect of any such land the same may subject to this
section be sold or leased;
(b) the
deletion of the proviso to section 116;
(c) the
deletion of section 135;
(d) the
deletion of section 143;
(e) the
inclusion of a power to offer for sale or leasing land within or in the
vicinity of any townsite notwithstanding that the townsite has not been
constituted a townsite under section 10; and
(f) the
inclusion of a power to offer for sale or grant leases or licenses for terms
or periods and on such terms and conditions (including renewal rights) and in
forms consistent with the provisions of this Agreement in lieu of for the
terms or periods and upon the terms and conditions and in the forms referred
to in the Act and upon application by the Company in forms consistent as
aforesaid in lieu of in the forms referred to in the Act.
(3) The provisions of
subclause (2) of this clause shall not operate so as to prejudice the rights
of the State to determine any lease license or other right or title in
accordance with the other provisions of this Agreement.
(4) The State further
covenants with the Company that the State —
Non-interference with Company’s rights 4 .
(a)
shall not during the currency of this Agreement register any claim or grant
any lease or other mining tenement under the Mining Act or otherwise by which
any person other than the Company will obtain under the laws relating to
mining or otherwise any rights to mine or take the natural substances (other
than petroleum as defined in the Petroleum Act 1936 ) within the mineral lease
unless the Minister reasonably determines that it is not likely to unduly
prejudice or to interfere with the operations of the Company hereunder
assuming the taking by the Company of all reasonable steps to avoid the
interference;
No resumption 4 .
(b)
subject to the performance by the Company of its obligations under this
Agreement shall not during the currency hereof 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 said 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 purposes of this
Agreement nor any of the lands the subject of any lease or license granted to
the Company in terms of this Agreement AND without such consent (which shall
not be unreasonably withheld) the State will not create or grant or permit or
suffer to be created or granted by any instrumentality or authority of the
State as aforesaid any road right-of-way or easement of any nature or kind
whatsoever over or in respect of any such lands which may unduly prejudice or
interfere with the Company’s operations hereunder;
Labour requirements 4 .
(c)
shall if so requested by the Company and so far as its powers and
administrative arrangements permit use reasonable endeavours to assist the
Company to obtain adequate and suitable labour for the construction and the
carrying out of the works and operations referred to in this Agreement
including suitable immigrants for that purpose;
No discriminatory rates 4 .
(d)
except as provided in this Agreement shall not impose nor permit nor authorize
any of its agencies or instrumentalities or any local or other authority of
the State to impose discriminatory taxes rates or charges of any nature
whatsoever on or in respect of the titles property or other assets products
materials or services used or produced by or through the operations of the
Company in the conduct of the Company’s business hereunder nor will the
State take or permit to be taken by any such State authority any other
discriminatory action which would deprive the Company of full enjoyment of the
rights granted and intended to be granted under this Agreement;
Rights to other minerals 4 .
(e)
shall where and to the extent reasonably practicable on application by the
Company from time to time grant or assist in obtaining the grant to the
Company of prospecting rights and mining leases with respect to limestone
dolomite and other minerals reasonably required by the Company for its
purposes under this Agreement; and
Consents to improvements on leases 4 .
(f)
shall as and when required by the Company (but without prejudice to the
foregoing provisions of this Agreement relating to the detailed proposals and
matters referred to in clause 5(1) hereof) consent in writing where and to the
extent that the Minister considers to be reasonably justified to the
Company’s making improvements for the purposes of this Agreement on the
land comprised in any lease granted by the State to the Company pursuant to
this Agreement PROVIDED THAT the Company shall also obtain any other consents
legally required in relation to such improvements.
(5) The Company shall
not have any tenant rights in improvements made by the Company on the land
comprised in any lease granted by the State to the Company pursuant to this
Agreement in any case where pursuant to clause 11(e) hereof such improvements
will remain or become the absolute property of the State.
Phase 2 Obligations of the Company 4 .
To construct 4 .
10. (1) The Company
shall within three (3) years next following the commencement date and at a
cost of not less than thirty million pounds (£30,000,000) construct
install provide and do all things necessary to enable it to mine from the
mineral lease to transport by rail to the Company’s wharf and to
commence shipment therefrom in commercial quantities at an annual rate of not
less than one million (1,000,000) tons of iron ore and without lessening the
generality of this provision the Company shall within the aforesaid period of
three years —
On mining areas 4 .
(a)
construct install and provide upon the mineral lease or in the vicinity
thereof mining plant and equipment crushing screening stockpiling and car
loading plant and facilities power house workshop and other things of a design
and capacity adequate to enable the Company to meet and discharge its
obligations hereunder and under the iron ore contracts and to mine handle load
and deal with not less than three thousand (3,000) tons of iron ore per item
such capacity to be built up progressively to not less than ten thousand
(10,000) tons of iron ore per diem within three (3) years next following the
export date;
To commence exports 4 .
(b)
actually commence to mine transport by rail and ship from the Company’s
wharf iron ore from the mineral lease so that the average annual rate during
the first two years shall not be less than one million (1,000,000) tons;
To construct railway 4 .
(c)
subject to the State having assured to the Company all necessary rights in or
over Crown lands available for the purpose construct in a proper and
workmanlike manner and in accordance with recognised standards of railways of
a similar nature operating under similar conditions and along a route approved
or determined under clause 6 or clause 7 hereof (but subject to the provisions
of the Public Works Act 1902 to the extent that they are applicable) a four
feet eight and one-half inches (4′ 8½″) gauge railway (with
all necessary signalling switch and other gear and all proper or usual works)
from the mining areas to the Company’s wharf and will provide for
crossing places and the running of such railway with sufficient and adequate
locomotives freight cars and other railway stock and equipment to haul at
least one million (1,000,000) tons of iron ore per annum to the
Company’s wharf or as required for the purposes of this Agreement;
To make roads 4 .
(d)
subject to the State having assured to the Company all necessary rights in or
over Crown lands or reserves available for the purpose construct by the said
date such new roads as the Company reasonably requires for its purposes
hereunder of such widths with such materials gates crossings and passovers for
cattle and for sheep and along such routes as the parties hereto shall
mutually agree after discussion with the respective shire councils through
whose districts any such roads may pass and subject to prior agreement with
the appropriate controlling authority (being a shire council or the
Commissioner of Main Roads) as to terms and conditions the Company may at its
own expense and risk except as otherwise so agreed upgrade or realign any
existing road;
To construct wharf 4 .
(e)
construct the Company’s wharf in accordance with plans and
specifications for the construction thereof previously approved or determined
under clause 6 hereof on the site previously approved or determined for the
purpose; and
To carry out proposals 4 .
(f) in
accordance with the Company’s proposals as finally approved or
determined under clause 6 or clause 7 hereof and as require the Company to
accept obligations —
(i)
dredge the berth at the Company’s wharf and the
channel and approaches thereto and any necessary swinging basin;
(ii)
lay out and develop the townsites and provide adequate
and suitable housing recreational and other facilities and services;
(iii)
construct and provide roads housing school water and
power supplies and other amenities and services; and
(iv)
construct and provide other works (if any) including an
airstrip.
(2) Throughout the
continuance of this Agreement the Company shall —
Operation of railway 4 .
(a)
operate its railway in a safe and proper manner and where and to the extent
that it can do so without unduly prejudicing or interfering with its
operations hereunder allow crossing places for roads stock and other railways
and transport the passengers and carry the freight of the State and of third
parties on the railway subject to and in accordance with by-laws (which shall
include provision for reasonable charges) from time to time to be made altered
and repealed as provided in subclause (3) of this clause and subject thereto
or if no such by-laws are made or in force then upon reasonable terms and at
reasonable charges (having regard to the cost of the railway to the Company)
PROVIDED THAT in relation to its use of the said railway the Company shall not
be deemed to be a common carrier at common law or otherwise;
Use of roads by others 4 .
(b)
except to the extent that the Company’s proposals as finally approved or
determined under clause 6 or clause 7 hereof otherwise provide allow the
public to use free of charge any roads constructed or upgraded under this
clause PROVIDED THAT such use shall not unduly prejudice or interfere with the
Company’s operations hereunder;
Compliance with laws 4 .
(c) in
the construction operation maintenance and use of any work installation plant
machinery equipment service or facility provided or controlled by the Company
comply with and observe the provisions hereof and subject thereto the laws for
the time being in force in the said State;
Maintenance 4 .
(d) at
all times keep and maintain in good repair and working order and condition and
where necessary replace all such works installations plant machinery and
equipment and the railway wharf roads (other than the public roads referred to
in clause 11(b) hereof) dredging and water and power supplies for the time
being the subject of this Agreement;
Shipment of and price for ore 4 .
(e) ship
from the Company’s wharf all iron ore mined from the mineral lease and
sold and use its best endeavours to obtain therefor the best price possible
having regard to market conditions from time to time prevailing PROVIDED THAT
this paragraph shall not apply to iron ore used for secondary processing or
for the manufacture of iron or steel in any part of the said State lying north
of the twenty-sixth parallel of latitude;
Use of wharf and facilities 4 .
(f)
subject to and in accordance with by-laws (which shall include provision for
reasonable charges) from time to time to be made and altered as provided in
subclause (3) of this clause and subject thereto or if no such by-laws are
made or in force then upon reasonable terms and at reasonable charges (having
regard to the cost thereof to the Company) allow the State and third parties
to use the Company’s wharf and harbour installations wharf machinery and
equipment and wharf and harbour services and facilities PROVIDED THAT such use
shall not unduly prejudice or interfere with the Company’s operations
hereunder;
Access through mining areas 4 .
(g)
allow the State and third parties to have access (with or without stock
vehicles and rolling stock) over the mineral lease (by separate route road or
railway) PROVIDED THAT such access over shall not unduly prejudice or
interfere with the Company’s operations hereunder:
Protection for inhabitants 4 .
(h)
subject to and in accordance with by-laws (which shall include provision for
reasonable charges) from time to time to be made and altered as provided in
subclause (3) of this clause and subject thereto or if no such by-laws are
made or in force then upon reasonable terms and at reasonable charges (having
regard to the cost thereof to the Company) allow the inhabitants for the time
being of the port townsite being employees licensees or agents of the Company
or persons engaged in providing a legitimate and normal service to or for the
Company or those employee licensees or agents to make use of the water power
recreational health and other services or facilities provided or controlled by
the Company;
Use of local labour and materials 4 .
(i)
so far as reasonably and economically practicable use
labour materials plant equipment and supplies available within the said state
where it is not prejudicial to the interests of the Company so to do;
Royalties 4 .
(j) pay
to the State royalty on all iron ore from the mineral lease shipped or sold
(other than ore shipped solely for testing purposes) or (in the circumstances
mentioned in subparagraph (iv) of this paragraph) on iron ore concentrates
produced from iron ore from the mineral lease or on other iron ore from the
mineral lease used as mentioned in subparagraph (iv) of this paragraph as
follows —
(i)
on direct shipping ore (not being locally used ore) at
the rate of seven and one half per centum (7½%) of the f.o.b. revenue
(computed at the rate of exchange prevailing on date of receipt by the Company
of the purchase price in respect of ore shipped or sold hereunder) PROVIDED
NEVERTHELESS that such royalty shall not be less than six shillings (6/-d) per
ton (subject to subparagraph (vi) of this paragraph) in respect of ore the
subject of any shipment or sale;
(ii)
on fine ore (not being locally used ore) at the rate of
three and three quarter per centum (3¾%) of the f.o.b. revenue (computed
as aforesaid) PROVIDED NEVERTHELESS that such royalty shall not be less than
three shillings (3/-d) per ton (subject to subparagraph (vii) of this
paragraph) in respect of ore the subject of any shipment or sale;
(iii)
on fines (not being locally used ore) at the rate of one
shilling and sixpence (1s. 6d.) per ton;
(iv)
on iron ore concentrates produced from locally used ore
by secondary processing and on locally used ore (not being iron ore used for
producing iron ore concentrates subject to royalty hereunder) at the rate of
one shilling and sixpence (1s. 6d.) per ton;
(v)
on all other iron ore (not being locally used ore) at the
rate of seven and one half per centum (7½%) of the f.o.b. revenue
(computed as aforesaid) without any minimum royalty;
(vi)
if the amount ascertained by multiplying the total
tonnage of direct shipping ore shipped or sold (and liable to royalty under
subparagraph (i) of this paragraph) in any financial year by six shillings
(6/-d) is less than the total royalty which would be payable in respect of
that ore but for the operation of the proviso to that subparagraph then that
proviso shall not apply in respect of direct shipping ore shipped or sold in
that year and at the expiration of that year any necessary adjustments shall
be made accordingly;
(vii)
if the amount ascertained by multiplying the total
tonnage of fine ore shipped or sold (and liable to royalty under subparagraph
(ii) of this paragraph) in any financial year by three shillings (3/-d) is
less than the total royalty which would be payable in respect of that ore but
for the operation of the proviso to that subparagraph then that proviso shall
not apply in respect of fine ore shipped or sold in that year and at the
expiration of that year any necessary adjustments shall be made accordingly;
and
(viii)
the royalty at the rate of one shilling and sixpence
(1/6d) per ton referred to in subparagraphs (iii) and (iv) of this paragraph
shall be adjusted up or down (as the case may be) as at the first day of
January, 1969 and as at the beginning of every fifth year thereafter
proportionately to the variation of the average of the prices payable for
foundry pig iron f.o.b. Adelaide during the last full calendar year preceding
the date at which the adjustment is to be made as compared with the average of
those prices during the calendar year 1963.
For the purposes of
this paragraph “locally used ore” means iron ore used by the
Company or an associated company both within the Commonwealth and within the
limits referred to in paragraph (o) of this clause for secondary processing or
in an integrated iron and steel industry and includes iron ore used by any
other person or company north of the twenty-sixth parallel of latitude in the
said State for secondary processing or in an integrated iron and steel
industry;
Payments of royalties 4 .
(k)
within fourteen days after the quarter days the last days of March June
September and December in each year commencing with the quarter day next
following the first commercial shipment of iron ore from the Company’s
wharf furnish to the Minister a return showing the quantity of all iron ore or
iron ore concentrates the subject of royalty hereunder and shipped sold used
or produced (as the case may be) during the quarter immediately preceding the
due date of the return and shall not later than two (2) months after such due
date pay to the Minister the royalty payable in respect of iron ore
concentrates produced or iron ore used and in respect of all iron ore shipped
or sold pay to the Minister on account of the royalty payable hereunder a sum
calculated on the basis of invoices or provisional invoices (as the case may
be) rendered by the Company to the purchaser (which invoices the Company shall
render without delay simultaneously furnishing copies thereof to the Minister)
of such iron ore and shall from time to time in the next following appropriate
return and payment make (by the return and by cash) all such necessary
adjustments (and give to the Minister full details thereof) when the f.o.b.
revenue realised in respect of the shipments shall have been ascertained;
Rent for mineral lease 4 .
(l) by
way of rent for the mineral lease pay to the State annually in advance a sum
equal to three shillings and sixpence (3/6d) per acre of the area for the time
being the subject of the mineral lease commencing on and accruing from the
commencement date PROVIDED THAT after the Company commences production in
commercial quantities within the said State from a plant for secondary
processing or for iron and steel manufacture or steel manufacture (whichever
is first constructed) if and during the period that the total area for the
time being comprised within the mineral lease —
(i)
is not more than one hundred (100) square miles the
annual rent shall be two shillings (2/-d) per acre;
(ii)
is over one hundred (100) square miles but not more than
one hundred and fifty (150) square miles the annual rent shall be two
shillings and sixpence (2/6d) per acre; and
(iii)
is over one hundred and fifty (150) square miles but not
more than two hundred (200) square miles the annual rent shall be three
shillings (3/-d) per acre;
Other rentals 4 .
(m) pay
to the State the rental referred to in the proviso to clause 9(1)(b) hereof if
and when such rental shall become payable;
Inspection 4 .
(n)
permit the Minister or his nominee to inspect at all reasonable times the
books of account and records of the Company relative to any shipment or sale
of iron ore hereunder and to take copies or extracts therefrom and for the
purpose of determining the f.o.b. revenue payable in respect of any shipment
of iron ore hereunder the Company will take reasonable steps to satisfy the
State either by certificate of a competent independent party acceptable to the
State or otherwise to the Minister’s reasonable satisfaction as to all
relevant weights and analyses and will give due regard to any objection or
representation made by the Minister or his nominee as to any particular weight
or assay of iron ore which may affect the amount of royalty payable hereunder;
and
Export to places outside the Commonwealth 4 .
(o)
ensure that without the prior written approval of the Minister all iron ore
shipped pursuant to this Agreement will be off-loaded at a place outside the
Commonwealth and if it fails so to ensure the Company will subject to the
provisions of this paragraph be in default hereunder. Where any such shipment
is off-loaded within the Commonwealth without such prior written approval the
Company shall forthwith on becoming aware thereof give to the State notice of
the fact and pay to the State in respect of the iron ore the subject of the
shipment such further and additional rental calculated at a rate not exceeding
ten shillings (10/-d) per ton of the iron ore as the Minister shall demand
without prejudice however to any other rights and remedies of the State
hereunder arising from the breach by the Company of the provisions hereof. If
ore is shipped in a vessel not owned by the Company or an associated company
or any other company in which the Company has a controlling interest and such
ore is off-loaded in the Commonwealth the Company will not be or be deemed to
be in default hereunder if it takes appropriate action to prevent a recurrence
of such an off-loading PROVIDED FURTHER that the foregoing provisions of this
paragraph shall not apply in any case (including any unforeseeable diversion
of the vessel for necessary repairs or arising from force majeure or
otherwise) where the Company could not reasonably have been expected to take
steps to prevent that particular off-loading PROVIDED ALSO that the provisions
of this paragraph shall not apply —
(i)
to ore the subject of secondary processing or iron and
steel or steel manufacture by the Company or an associated company within the
said State;
(ii)
to ore processed by the Company or an associated company
within the Commonwealth but outside the said State to the extent that the
tonnage of ore so processed does not in any year exceed fifty per centum (50%)
of the total quantity of iron ore the subject of secondary processing and/or
iron and steel manufacture or steel manufacture by the Company or an
associated company within the said State; or
(iii)
to ore processed by the Company or an associated company
within the Commonwealth but outside the said State in excess of fifty per
centum (50%) of the total quantity of ore the subject of secondary processing
and/or iron and steel manufacture or steel manufacture by the Company or an
associated company within the said State with the prior written approval of
the Minister as aforesaid.
By-laws 4 .
(3) The Governor in
Executive Council may upon recommendation by the Company make alter and repeal
by-laws for the purpose of enabling the Company to fulfil its obligations
under paragraphs (a) and (f) of subclause (2) of this clause and (unless and
until the port townsite is declared a townsite pursuant to section 10 of the
Land Act) under paragraph (h) of subclause (2) of this clause and under clause
11(a) hereof upon terms and subject to conditions (including terms and
conditions as to user charging and limitation of the liability of the Company)
as set out in such by-laws consistent with the provisions hereof. Should the
State at any time consider that any by-law made hereunder has as a result of
altered circumstances become unreasonable or inapplicable then the Company
shall recommend such alteration or repeal thereof as the State may reasonably
require or (in the event of there being any dispute as to the reasonableness
of such requirement) then as may be decided by arbitration hereunder.
Mutual covenants 4 .
11. The parties hereto covenant and agree with
each other as follows: —
Water and power supplies 4 .
(a) that
subject to and in accordance with proposals approved or determined under
clause 7 hereof the Company for its purposes hereunder and for domestic and
other purposes in relation to a townsite may to the extent determined by the
Minister but notwithstanding any Act bore for water construct catchment areas
store (by dams or otherwise) take and charge for water from any Crown lands
available for the purpose and generate transmit supply and charge for
electrical energy and the Company shall have all such powers and authorities
with respect to water and electrical energy as are determined by the Minister
for the purposes hereof which may include the powers of a water board under
the Water Boards Act 1904 and of a supply authority under the
Electricity Act 1945 ;
Use of public roads 4 .
(b) that
the Company may use any public roads which may from time to time exist in the
area of its operations hereunder for the purpose of transportation of goods
and materials in connection with such operations PROVIDED NEVERTHELESS that
the Company shall on demand pay to the State or the shire council concerned
the cost of making good any damage to such roads occasioned by —
(i)
such user by the Company prior to the export date; and
(ii)
user by the Company for the transportation of iron ore
won from the mineral lease;
Upgrading of existing roads 4 .
(c) that
the State will at the request and cost of the Company (except where and to the
extent that the Commissioner of Main Roads agrees to bear the whole or part of
the cost involved) widen upgrade or realign any public road over which the
State has control subject to the prior approval of the said Commissioner to
the proposed work;
Effect of determination of Agreement 4 .
(d) that
on the cessation or determination of this Agreement —
(i)
except as otherwise agreed by the Minister the rights of
the Company to in or under this Agreement and the rights of the Company or of
any assignee of the Company or any mortgagee to in or under the mineral lease
and any other lease license easement or right granted hereunder or pursuant
hereto shall thereupon cease and determine but without prejudice to the
liability of either of the parties hereto in respect of any antecedent breach
or default under this Agreement or in respect of any indemnity given hereunder
AND the Company will without further consideration but otherwise at the
request and cost of the State transfer or surrender to the State or the Crown
all land the subject of any Crown Grant issued under the Land Act pursuant to
this Agreement;
(ii)
the Company shall forthwith pay to the State all moneys
which may then have become payable or accrued due;
(iii)
the Company shall forthwith furnish to the State complete
factual statements of the work research surveys and reconnaissances carried
out pursuant to clause 4(1) hereof if and insofar as the statements may not
have been so furnished; and
(iv)
save as aforesaid and as provided in clause 8(4) hereof
and in the next following paragraph neither of the parties hereto shall have
any claim against another of them with respect to any matter or thing in or
arising out of this Agreement;
Effect of determination of lease 4 .
(e) that
on the cessation or determination of any lease license or easement granted
hereunder by the State to the Company or (except as otherwise agreed by the
Minister) to an associated company or other assignee of the Company under
clause 20 hereof of land for the Company’s wharf for any installation
within the harbour for the Company’s railway or for housing at the port
or port townsite the improvements and things erected on the relevant land and
provided for in connection therewith shall remain or become the absolute
property of the State without compensation and freed and discharged from all
mortgages and encumbrances and the Company will do and execute such documents
and things (including surrenders) as the State may reasonably require to give
effect to this provision. In the event of the Company immediately prior to
such expiration or determination or subsequent thereto deciding to remove its
locomotives rolling stock plant equipment and removable buildings or any of
them from any land it shall not do so without first notifying the State in
writing of its decision and thereby granting to the State the right or option
exercisable within three months thereafter to purchase at valuation in situ
the said plant equipment and removable buildings or any of them. Such
valuation shall be mutually agreed or in default of agreement shall be made by
such competent valuer as the parties may appoint or falling agreement as to
such appointment then by two competent valuers one to be appointed by each
party or by an umpire appointed by such valuers should they fail to agree;
No charge for the handling of cargoes 4 .
(f) that
subject to the Company at its own expense providing all works buildings
dredging and things of a capital nature reasonably required for its operations
hereunder at or in the vicinity of the harbour no charge or levy shall be made
by the State or by any State authority in relation to the loading of outward
or the unloading of inward cargoes from the Company’s wharf whether such
cargoes shall be the property of the Company or of any other person or
corporation but the State accepts no obligation to undertake such loading or
unloading and may make the usual charges from time to time prevailing in
respect of services rendered by the State or by any State agency or
instrumentality or other local or other authority of the State and may charge
vessels using the Company’s wharf ordinary light conservancy and tonnage
dues;
Zoning 4 .
(g) that
the mineral lease and the lands the subject of any Crown Grant lease license
or easement granted to the Company under this Agreement shall be and remain
zoned for use or otherwise protected during the currency of this Agreement so
that the operations of the Company hereunder may be undertaken and carried out
thereon without any interference or interruption by the State by any State
agency or instrumentality or by any local or other authority of the State on
the ground that such operations are contrary to any zoning by-law or
regulation;
Rentals and evictions 4 .
(h) that
any State legislation for the time being in force in the said State relating
to the fixation of rentals shall not apply to any houses belonging to the
Company in any townsite and that in relation to each such house the Company
shall have the right to include as a condition of its letting thereof that the
Company may take proceedings for eviction of the occupant if the latter shall
fall to abide by and observe the terms and conditions of occupancy or if the
occupant shall cease to be employed by the Company;
Labour conditions 4 .
(i)
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 labour conditions imposed by or under the Mining Act in regard
to the mineral lease;
Subcontracting 4 .
(j) that
without affecting the liability of the parties under this Agreement either
party shall have the right from time to time to entrust to third parties the
carrying out of any portions of the operations which it is authorized or
obliged to carry out hereunder;
Rating 4 .
(k) that
notwithstanding the provisions of any Act or anything done or purported to be
done under any Act the valuation of all lands (whether of a freehold or
leasehold nature) the subject of this Agreement (except as to any part upon
which a permanent residence shall be erected or which is occupied in
connection therewith) shall for rating purposes be deemed to be on the
unimproved value thereof and no such lands shall be subject to any
discriminatory rate;
Default 4 .
(l) that
in any of the following events namely if the Company shall make default in the
due performance or observance of any of the covenants or obligations to the
State herein or in any lease sublease license or other title or document
granted or assigned under this Agreement on its part to be performed or
observed and shall fail to remedy that default within reasonable time after
notice specifying the default is given to it by the State or if the Company
shall abandon or repudiate its operations under this Agreement or shall go
into liquidation (other than a voluntary liquidation for the purposes of
reconstruction) then and in any of such events the State may by notice to the
Company determine this Agreement and the rights of the Company hereunder or
under any lease license easement or right granted hereunder or pursuant
hereto: PROVIDED HOWEVER that if the Company shall fail to remedy any default
after such notice 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
and to make use of all plant machinery equipment and installations thereon)
and the costs and expenses incurred by the State in remedying or causing to be
remedied such default shall be a debt payable by the Company to the State on
demand; and
(m) that
—
(i)
for the purposes of determining whether and the extent to
which —
(A) the Company is liable to any person or
body corporate (other than the State); or
(B) an action is maintainable by any such
person or body corporate
in respect of the
death or injury of any person or damage to any property arising out of the use
of any of the roads for the maintenance of which the Company is responsible
hereunder and for no other purpose the Company shall be deemed to be a
municipality and the said roads shall be deemed to be streets under the care
control and management of the Company; and
(ii)
for the purposes of this paragraph the terms
“municipality” “street” and “care control and
management” shall have the meanings which they respectively have in the
Local Government Act 1960 .
Secondary processing 4 .
12. (1) The Company
having commenced already to investigate the feasibility of establishing a
plant for the secondary processing by the Company within the said State of
iron ore from the mineral lease will from time to time review this matter with
a view to its being in a position before the end of year 10 to submit to the
Minister detailed proposals for such plant (capable ultimately of treating not
less than Two million (2,000,000) tons of iron ore per annum) containing
provision that —
(a) the
plant will by the end of year 12 have the capacity to process at an annual
rate of and will during year 13 process not less than Five hundred thousand
(500,000) tons of iron ore;
(b)
production will progressively increase so that the plant will by the end of
year 16 have the capacity to process at an annual rate of and will during year
17 process not less than Two million (2,000,000) tons of iron ore; and
(c) the
capital cost involved will be not less than Eight million pounds
(£8,000,000) unless the Company utilises a less expensive but at least
equally satisfactory method of secondary processing than any at present known
to either party.
(2) If before the end
of year 10 such proposals are submitted by the Company to the Minister the
State shall within two months of the receipt thereof give to the Company
notice either of its approval of the proposals (which approval shall not be
unreasonably withheld) or of any objections raised or alterations desired
thereto and in the latter case shall afford the Company an opportunity to
consult with and to submit new proposals to the Minister. If within thirty
days of receipt of such notice agreement is not reached as to the proposals
the Company may within a further period of thirty days elect by notice to the
State to refer to arbitration as hereinafter provided any dispute as to the
reasonableness of the Minister’s decision. If by the award on
arbitration the question is decided in favour of the Company the Minister
shall be deemed to have then approved the proposals of the Company.
(3) If such proposals
are not submitted by the Company to the Minister before the end of year 10 or
if such proposals are so submitted but are not approved by the Minister within
two months of receipt thereof then (subject to any extension of time granted
under subclause (1) of clause 8 hereof)
(a) the
Company shall not after the end of year 12 export iron ore hereunder at an
annual rate in excess of Five million (5,000,000) tons; and
(b) if
by the end of year 13 (or extended date if any) the State gives to the Company
notice that some other company or party (hereinafter referred to as “the
Third Party”) has agreed to establish a plant for secondary processing
within the said State of iron ore from the mineral lease on terms not more
favourable on the whole to the Third Party than those proposed by or available
to the Company hereunder this Agreement will (subject to the provisions of
subclauses (d) and (e) of clause 11 and of clause 16 hereof) cease and
determine at the end of year 21 or at the date by which the Third Party has
substantially established the plant referred to in this subclause in
accordance with the terms agreed upon by the State and the Third Party
whichever is the later
PROVIDED THAT if by the end of year 13 (or extended date if any) the State has
not given to the Company the notice referred to in this subclause paragraph
(a) of this subclause shall thereupon cease to have effect AND PROVIDED
FURTHER that the Company may at any time after the end of year 10 submit
proposals as aforesaid if at that time it has not received the notice
aforesaid and the provisions of subclause (2) of this clause shall apply to
such proposals but (subject to any extension of time as aforesaid) the Company
may not submit proposals as aforesaid after the end of year 10 and before the
end of year 13 if it has received a notice from the Minister that he is
negotiating with a Third Party and such notice has not been withdrawn.
(4) Subject to the
provisions of clause 13 hereof and except as provided in paragraph (b) of
subclause (3) of this clause this Agreement will continue in operation subject
to compliance by the Company with its obligations hereunder and with such
proposals by the Company as are approved by the Minister.
(5) Notwithstanding
anything contained herein no failure by the Company to submit to the Minister
proposals as aforesaid nor any non-approval by the Minister of such proposals
shall constitute a breach of this Agreement by the Company and subject to the
provisions of clause 13 hereof the only consequence arising from such failure
or non-approval (as the case may be) will be those set out in subclause (3) of
this clause.
Iron and steel industry 4 .
13. (1) The Company
will in due course investigate the feasibility of establishing an integrated
iron and steel industry within the said State and will from time to time
review this matter with a view to its being in a position before the end of
year 20 to submit to the Minister detailed proposals for such industry
(capable ultimately of producing One million (1,000,000) tons of steel per
annum) containing provision that —
(a) by
the end of year 25 productive capacity will be at an annual rate of not less
than and during year 26 production will be not less than Five hundred thousand
(500,000) tons of pig iron foundry iron or steel (hereinafter together
referred to as “product”) of which not less than Two hundred and
fifty thousand (250,000) tons will be steel;
(b)
production will progressively increase so that by the end of year 29
productive capacity will be at an annual rate of not less than and during year
30 production will be not less than One million (1,000,000) tons of product
(of which not less than Five hundred thousand (500,000) tons will be steel)
and by the end of year 31 productive capacity will be at an annual rate of not
less than and during year 32 production will be not less than One million
(1,000,000) tons of steel; and
(c) the
capital cost involved will be not less than Forty million pounds
(£40,000,000) unless the Company utilises a less expensive but at least
equally satisfactory method of manufacture than any at present known to either
party.
(2) If before the end
of year 20 such proposals are submitted by the Company to the Minister the
State shall within two months of the receipt thereof give to the Company
notice either of its approval of the proposals (which approval shall not be
unreasonably withheld) or of any objections raised or alterations desired
thereto and in the latter case shall afford to the Company an opportunity to
consult with and to submit new proposals to the Minister. If within thirty
days of receipt of such notice agreement is not reached as to the proposals
the Company may within a further period of thirty days elect by notice to the
State to refer to arbitration as hereinafter provided any dispute as to the
reasonableness of the Minister’s decision. If by the award on
arbitration the question is decided in favour of the Company the Minister
shall be deemed to have then approved the proposals of the Company.
(3) If such proposals
are not submitted by the Company to the Minister before the end of year 20 or
if such proposals are so submitted but are not approved by the Minister within
two months after receipt thereof then (subject to any extension of time
granted under subclause (1) of Clause 8 hereof) if by the end of year 23 (or
extended date if any) the State gives to the Company notice that some other
company or party (hereinafter referred to as “the Fourth Party”)
has agreed to establish either —
(a) a
plant for secondary processing within the said State of iron ore from the
mineral lease (if proposals by the Company for the establishment of such a
plant have not previously been submitted to and approved by the Minister) on
terms not more favourable on the whole to the Fourth Party than those proposed
by or available to the Company hereunder; or
(b) an
integrated iron and steel industry within the said State (using iron ore from
the mineral lease) on terms not more favourable on the whole to the Fourth
Party than those proposed by or available to the Company hereunder
then and in either case this Agreement will (subject to the provisions of
subclauses (d) and (e) of clause 11 hereof and clause 16 hereof) cease and
determine —
(i)
in the case of the Fourth Party proceeding with secondary
processing then when the Fourth Party has substantially established the plant
referred to in paragraph (a) of this subclause;
(ii)
in the case of the Fourth Party proceeding with an
integrated iron and steel industry then (if proposals by the Company for a
plant for secondary processing have previously been submitted to and approved
by the Minister) at the end of year 30 or at the date by which the Fourth
Party has substantially established that industry whichever is the later; and
(iii)
in the case of the Fourth Party proceeding with an
integrated iron and steel industry then (if proposals by the Company for a
plant for secondary processing have not previously been submitted to and
approved by the Minister) at the date by which the Fourth Party has
substantially established that industry.
(4) If by the end of
year 23 (or extended date if any) the State has not given to the Company any
such notice as is referred to in subclause (3) of this clause that subclause
shall thereupon cease to have effect except that (to the extent they can from
time to time operate) the provisions of subclause (3) of this clause shall
revive (for a period of three years) at the end of year 33 and at the end of
each successive period of 13 years thereafter in such a way that each year
referred to in that subclause shall be read as the year thirteen years or (as
the case may require) a multiple of thirteen years thereafter (subject to
extensions of dates if any as aforesaid).
(5) The Company may at
any time after the end of year 20 submit proposals for an integrated iron and
steel industry if at that time it has not received any notice under subclause
(3) of this clause and the provisions of subclauses (1) and (2) of this clause
shall apply to such proposals.
(6) Except as provided
in subclause (3) of this clause this Agreement will continue in operation
subject to compliance by the Company with its obligations hereunder and with
such proposals by the Company as are approved by the Minister.
(7) Notwithstanding
anything contained herein no failure by the Company to submit to the Minister
proposals as aforesaid nor any non-approval by the Minister of such proposals
shall constitute a breach of this Agreement by the Company and the only
consequences arising from such failure or non-approval (as the case may be)
will be those set out in subclause (3) of this clause.
“Substantial establishment.” 4 .
14. The Third Party or the Fourth Party shall have
substantially established a plant for secondary processing or an integrated
iron and steel industry when and not before that party’s secondary
processing plant has the capacity to treat not less than two million
(2,000,000) tons of iron ore per annum or (as the case may be) that
party’s integrated iron and steel industry has the capacity to produce
one million (1,000,000) tons of steel per annum in either case the Minister
has notified the Company that he is satisfied that that party will proceed
bona fide to operate its plant or industry.
Terms “not more favourable ” 4 .
15. In deciding whether for the purposes of clause
12 or clause 13 hereof the terms granted by the State to some company or party
are not more favourable on the whole than those proposed by or available to
the Company regard shall be had inter alia to all the obligations which would
have continued to devolve on the Company had it proceeded with secondary
processing or (as the case may be) iron and steel manufacture or steel
manufacture including its obligations to mine transport by rail and ship iron
ore and restrictions relating thereto to pay rent additional rental and
royalty and (in the case of secondary processing by a third party pursuant to
clause 12 hereof) to termination of rights as provided in clause 13 hereof if
proposals for iron and steel manufacture or steel manufacture are not brought
to fruition and also to the need for the other company or party to pay on a
fair and reasonable basis for or for the use of property accruing to the State
under paragraph (e) of clause 11 hereof and made available by the State to
that company or party but also to any additional or equivalent obligations to
the State assumed by that company or party. PROVIDED HOWEVER that if after the
end of year 33 the Minister gives notice to the Company under clause 13 hereof
that another company or party has agreed to establish either secondary
processing or an integrated iron and steel industry but not both then the
latter company or party need not have any obligation to establish both.
Supply of iron ore by others 4 .
16. If at the date upon which this Agreement
ceases and determines pursuant to clauses 12 or 13 hereof the Company remains
under any obligation for the supply of iron ore arising out of a contract or
contracts entered into by the Company with the consent of the Minister the
Company may give notice to the Minister that it desires the State to ensure
that the Third Party (or the Fourth Party as the case may be) is obligated to
discharge such remaining obligations to supply iron ore or to supply iron ore
to the Company into ships to enable it to discharge such obligations.
Forthwith upon receipt of such notice the State will ensure that the Third
Party (or the Fourth Party as the case may be) is obligated to discharge such
obligations in accordance with such contract or contracts on a basis which is
fair and reasonable as between the Company and the Third Party (or the Fourth
Party as the case may be) or if desired to supply iron ore to the Company into
ships on such fair reasonable basis.
Supply of iron ore to others 4 .
17. The Company covenants and agrees with the
State that should the Company remain in possession of the mineral lease for
any period during which the Third Party or the Fourth Party is operating or is
ready to operate a plant for secondary processing of iron ore or an integrated
iron and steel industry then during such period (whenever commencing) the
Company will supply the Third Party or the Fourth Party or both (as the case
may be) with iron ore from the mineral lease (not exceeding in all Five
million (5,000,000) tons per annum unless otherwise agreed) —
(i)
at such rates and grades (as may reasonably be available
and be required);
(ii)
at such points on the Company’s railway;
(iii)
at such price; and
(iv)
on such other terms and conditions
as may mutually be agreed between the Company and the State or failing
agreement decided by arbitration between them PROVIDED ALWAYS that the price
shall unless otherwise agreed between them be equivalent to the total cost of
production and transport incurred by the Company (including reasonable
allowance for depreciation and all overhead expenses) plus ten per centum of
such total cost.
Alteration of works 4 .
18. If at any time the State finds it necessary to
request the Company to alter the situation of any of the installations or
other works (other than the Company’s wharf) erected constructed or
provided hereunder and gives to the Company notice of the request the Company
shall within a reasonable time after its receipt of the notice but at the
expense in all things of the state (unless the alteration is rendered
necessary by reason of a breach by the Company of any of its obligations
hereunder) alter the situation thereof accordingly.
Indemnity 4 .
19. The Company will indemnify and keep
indemnified the State and its servants agents and contractors in respect of
all actions suits claims demands or costs arising out of or in connection with
the construction maintenance or use by the Company or its servants agents
contractors or assignees of the Company’s wharf railway or other works
or services the subject of this Agreement or the plant apparatus or equipment
installed in connection therewith.
Assignment 4 .
20. (1) Subject to the
provisions of this clause the Company may at any time —
(a)
assign mortgage charge sublet or dispose of to an associated company as of
right and to any other company or person with the consent in writing of the
Minister the whole or any part of the rights of the Company hereunder
(including its rights to or as the holder of any lease license easement grant
or other title) and of the obligations of the Company hereunder; and
(b)
appoint as of right an associated company or with the consent in writing of
the Minister any other company or person to exercise all or any of the powers
functions and authorities which are or may be conferred on the Company
hereunder
subject however to the assignee or (as the case may be) the appointee
executing in favour of the State a deed of covenant in a form to be approved
by the Minister to comply with observe and perform the provisions hereof on
the part of the Company to be complied with observed or performed in regard to
the matter or matters so assigned or (as the case may be) the subject of the
appointment.
(2) Notwithstanding
anything contained in or anything done under or pursuant to subclause (1) of
this clause the Company 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 its part contained herein
and in any lease license easement grant or other title the subject of an
assignment under the said subclause (1).
Variation 4 .
21. The parties hereto may from time to time by
mutual agreement in writing add to cancel or vary all or any of the provisions
of this Agreement or of any lease license easement or right granted hereunder
or pursuant hereto for the purpose of implementing or facilitating the
carrying out of such provisions or for the purpose of facilitating the
carrying out of some separate part or parts of the Company’s operations
hereunder by an associated company as a separate and distinct operation or for
the establishment or development of any industry making use of the minerals
within the mineral lease or such of the Company’s works installations
services or facilities the subject of this Agreement as shall have been
provided by the Company in the course of work done hereunder.
Export licence 4 .
22. (1) On request by
the Company the State shall make representations to the Commonwealth for the
grant to the Company of a license or licenses under Commonwealth law for the
export of iron ore in such quantities and at such rate or rates as shall be
reasonable having regard to the terms of this Agreement the capabilities of
the Company and to maximum tonnages of iron ore for the time being permitted
by the Commonwealth for export from the said State and in a manner or terms
not less favourable to the Company (except as to rate or quantity) than the
State has given or intends to give in relation to such a license or licenses
to any other exporter of iron ore from the said State.
(2) If at any time the
Commonwealth limits by export license the total permissible tonnage of iron
ore for export from the said State then she Company will at the request of the
State and within three (3) months of such request inform the State whether or
not it intends to export to the limit of the tonnage permitted to it under
Commonwealth licenses in respect of the financial year next following and if
it does not so intend will co-operate with the State in making representation
to the Commonwealth with a view to some other producer in the said State being
licensed by the Commonwealth to export such of the tonnage permitted by the
Commonwealth in respect of that year as the Company does not require and such
other producer may require. Such procedure shall continue to be followed year
by year during such time as the Commonwealth limits by export license the
total permissible tonnage of iron ore for export from the said State.
(3) The Company shall
be in default hereunder if at any time it fails to obtain any license or
licenses under Commonwealth law for the export of iron ore as may be necessary
for the purpose of enabling the Company to fulfil its obligations hereunder or
if any such license is withdrawn or suspended by the Commonwealth and such
failure to obtain or such withdrawal or suspension (as the case may be) is due
to some act or default by the Company or to the Company not being bona fide in
its application to the Commonwealth or otherwise having failed to use its best
endeavours to have the license granted or restored (as the case may be) but
save as aforesaid if at any time any necessary license is not granted or any
license granted to the Company shall be withdrawn or suspended by the
Commonwealth and so that as a result thereof the Company is not for the time
being permitted to export at least the tonnage it has undertaken with the
State it will export then the Company shall not be obliged to export the
tonnage not so permitted until such time as it is so permitted and thereafter
it will export the tonnage it has undertaken with the State it will export.
The State shall at all times be entitled to apply on behalf of the Company
(and is hereby authorized by the Company so to do) for any license or licenses
under Commonwealth law for the export of iron ore as may from time to time be
necessary for the purposes of this Agreement.
Delays 4 .
23. This Agreement shall be deemed to be made
subject to any delays in the performance of obligations under this Agreement
and to the temporary suspension of continuing obligations hereunder which may
be occasioned by or arise from circumstances beyond the power and control of
the party responsible for the performance of such obligations including delays
or any such temporary suspension as aforesaid caused by or arising from Act of
God force majeure floods storms tempests washaways fire (unless caused by the
actual fault or privity of the Company) act of war act of public enemies riots
civil commotions strikes lockouts stoppages restraint of labour or other
similar acts (whether partial or general) shortages of labour or essential
materials reasonable failure to secure contractors delays of contractors and
inability (common in the iron ore export industry) to profitably sell ore or
factors due to overall world economic conditions or factors which could not
reasonably have been foreseen PROVIDED ALWAYS that the party whose performance
of obligations is affected by any of the said causes shall minimise the effect
of the said causes as soon as possible after their occurrence.
Power to extend periods 4 .
24. Notwithstanding any provision hereof the
Minister may at the request of the Company from time to time extend any period
or date referred to in this Agreement for such period or to such later date as
the Minister thinks fit and the extended period or later date when advised to
the Company by notice from the Minister shall be deemed for all purposes
hereof substituted for the period or date so extended.
Arbitration 4 .
25. Any dispute or difference between the parties
arising out of or in connection with this Agreement or any agreed amendment or
variation thereof or agreed addition thereto or as to the construction of this
Agreement or any such amendment variation or addition as to the rights duties
or liabilities of either party thereunder or as to any matter to be agreed
upon between the parties under this Agreement shall in default of agreement
between the parties and in the absence of any provision in this Agreement to
the contrary be referred to and settled by arbitration under the provisions of
the Arbitration Act 1895 .
Notices 4 .
26. Any notice consent or other writing authorized
or required by this Agreement to be given or sent shall be deemed to have been
duly given or sent by the State if signed by the Minister or by any senior
officer of the Civil Service of the said State acting by the direction of the
Minister and forwarded by prepaid post to the Company at its registered office
for the time being in the said State and by the Company if signed on its
behalf by a director manager or secretary of the Company or by any person or
persons authorized by the Company in that behalf or by its solicitors as
notified to the State from time to time and forwarded by prepaid post to the
Minister and any such notice consent or writing shall be deemed to have been
duly given or sent on the day on which it would be delivered in the ordinary
course of post.
Exemption from stamp duty 4 .
27. (1) The State
shall exempt from any stamp duty which but for the operation of this clause
would or might be chargeable on —
(a) this
Agreement;
(b) any
instrument executed by the State pursuant to this Agreement granting to or in
favour of the Company or any permitted assignee of the Company any tenement
lease easement license or other right or interest;
(c) any
assignment sublease or disposition (other than by way of mortgage or charge)
or any appointment made in conformity with the provisions of subclause (1) of
clause 20 hereof;
(d) any
assignment sublease or disposition (other than by way of mortgage or charge)
or any appointment to or in favour of the Company or an associated company of
any interest right obligation power function or authority which has already
been the subject of an assignment sublease disposition or appointment executed
pursuant to subclause (1) of clause 20 hereof; and
(e) a
deed giving effect to the hereinbefore recited guarantee;
PROVIDED THAT this clause shall not apply to any instrument or other document
executed or made more than seven years from the date hereof.
(2) If prior to the
date on which the Bill referred to in clause 2(b) hereof to ratify this
Agreement is passed as an Act stamp duty has been assessed and paid on any
instrument or other document referred to in subclause (1) of this clause the
State when such Bill is passed as an Act shall on demand refund any stamp duty
paid on any such instrument or other document to the person who paid the same.
Interpretation 4 .
28. This Agreement shall be interpreted according
to the law for the time being in force in the said State.
SCHEDULE
WESTERN AUSTRALIA
IRON ORE (HAMERSLEY RANGE) AGREEMENT ACT 1963
MINERAL LEASE
Lease No. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.Goldfield(s)
ELIZABETH THE SECOND by the Grace of God of the United Kingdom, Australia and
Her other Realms and Territories Queen, Head of the Commonwealth, Defender of
the Faith:
TO ALL TO WHOM THESE PRESENTS shall come GREETINGS: KNOW YE that WHEREAS by an
Agreement made
the day
of , 1963 between the
State of Western Australia of the one part and HAMERSLEY IRON PTY. LIMITED
(hereinafter called “the Company” which expression will include
the successors and assigns of the Company including where the context so
admits the assignees of the Company under clause 20 of the said Agreement) of
the other part the said State agreed to grant to the Company a mineral lease
of portion or portions of the lands referred to in the said Agreement as
“the mining areas” AND WHEREAS the said Agreement was ratified by
the Iron Ore (Hamersley Range) Agreement Act 1963 which said Act ( inter alia
) authorized the grant of a mineral lease to the Company NOW WE in
consideration of the rents and royalties reserved by and of the provisions of
the said Agreement and in pursuance of the said Act DO BY THESE PRESENTS GRANT
AND DEMISE unto the Company subject to the said provisions ALL THOSE pieces
and parcels of land situated in
the Goldfield(s)
containing by
admeasurement be the
same more or less and particularly described and delineated on the plan in the
Schedule hereto and all those mines, veins, seams, lodes and deposits of iron
ore in on or under the said land (hereinafter called “the said
mine”) together with all rights, liberties, easements, advantages and
appurtenances thereto belonging or appertaining to a lessee of a mineral lease
under the Mining Act 1904 including all amendments thereof for the time being
in force and all regulations made thereunder for the time being in force
(which Act and regulations are hereinafter referred to as “the Mining
Act”) or to which the Company is entitled under the said Agreement TO
HOLD the said land and mine and all and singular the premises hereby demised
for the full term of twenty-one years from
the day
of ,
19 with the right to renew the same from time to time for
further periods each of twenty-one years as provided in but subject to the
said Agreement for the purposes but upon and subject to the terms covenants
and conditions set out in the said Agreement and to the Mining Act (as
modified by the said Agreement) YIELDING and paying therefor the rent and
royalties as set out in the said Agreement. AND WE do hereby declare that this
lease is subject to the observance and performance by the Company of the
following covenants and conditions, that is to say: —
1. The Company shall and will use the land bona
fide exclusively for the purposes of the said Agreement.
2. Subject to the provisions of the said Agreement
the Company shall and will observe, perform, and carry out the provisions of
the Mines Regulation Act 1946 , and all amendments thereof for the time being
in force and the regulations for the time being in force made thereunder and
subject to and also as modified by the said Agreement the Mining Act so far as
the same affect or have reference to this lease.
PROVIDED THAT this lease and any renewal thereof
shall not be determined or forfeited otherwise than under and in accordance
with the provisions of the said Agreement.
PROVIDED FURTHER that all mineral oil on or below
the surface of the demised land is reserved to Her Majesty with the right to
Her Majesty or any person claiming under her or lawfully authorized in that
behalf to have access to the demised land for the purpose of searching for and
for the operations of obtaining mineral oil in any part of the land under the
provisions of the Petroleum Act 1936 .
IN WITNESS whereof we have caused our Minister for
Mines to affix his seal and set his hand hereto at Perth in our said State of
Western Australia and the common seal of the Company has been affixed hereto
this day
of 19
THE SCHEDULE ABOVE REFERRED TO:
IN WITNESS WHEREOF THE HONOURABLE CRAWFORD DAVID
NALDER M.L.A. has hereunto set his hand and seal and the COMMON SEAL of the
Company has hereunto been affixed the day and year first hereinbefore
mentioned.
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SIGNED SEALED AND |
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C. W. Court
Minister for Industrial Development.
Arthur F. Griffith
Minister for Mines.
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THE COMMON SEAL of |
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F. S. ANDERSON
Director.
JOHN HOHNEN
A person authorized pursuant to Article 111 of the
Company’s Articles of Association to counter-sign the affixing of the
Company’s Common Seal.
GUARANTEE
In order to induce the parties to the foregoing
deed to execute the same and in consideration of the execution thereof the
Guarantor Company referred to in Recital (d) of the deed hereby for itself its
successors and assigns agrees with and guarantees to the State referred to in
the deed that the Company therein referred to will by the 31st day of
December, 1964 (or such extended date if any as the Minister referred to in
the deed may approve) expend as provided in clause 4 of the deed the balance
of the amount of five hundred thousand pounds (£500,000) therein referred
to notwithstanding any time or indulgence granted to the Company or any
addition to cancellation of or variation of the provisions of the deed.
IN WITNESS WHEREOF the Guarantor Company has
executed this Guarantee this twenty-sixth day of July, One thousand nine
hundred and sixty-three.
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THE COMMON SEAL of |
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M. MAWBY
Director.
J.
