[s. 2]
[Heading inserted: No. 61 of 2010 s. 6.]
2010
THE HONOURABLE COLIN JAMES BARNETT
PREMIER OF THE STATE OF WESTERN AUSTRALIA
AND
HAMERSLEY IRON PTY. LIMITED
ACN 004 558 276
IRON ORE (HAMERSLEY RANGE) AGREEMENT 1963
RATIFIED VARIATION AGREEMENT
[Solicitor’s details]
THIS AGREEMENT is made this 17th day of November 2010
BETWEEN
THE HONOURABLE COLIN JAMES BARNETT MLA., Premier of the State of Western
Australia acting for and on behalf of the said State and instrumentalities
thereof from time to time ( State )
AND
HAMERSLEY IRON PTY. LIMITED ACN 004 558 276 of Level 22, Central Park, 152 -
158 St Georges Terrace, Perth, Western Australia ( Company ).
RECITALS
A. The State and the Company are the parties to
the agreement dated 30 July 1963 approved by and scheduled to the
Iron Ore (Hamersley Range) Agreement Act 1963 and which as subsequently added
to, varied or amended is referred to in this Agreement as the “
Principal Agreement ”.
B . The State and the Company wish to vary the
Principal Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. Subject to the context, the words and
expressions used in this Agreement have the same meanings respectively as they
have in and for the purpose of the Principal Agreement.
2 . The State shall sponsor a Bill in the
Parliament of Western Australia to ratify this Agreement and shall endeavour
to secure its passage as an Act prior to 31 December 2010 or such later date
as the parties may agree.
3. (a) Clause 4 does
not come into operation unless or until an Act
passed in accordance with clause 2 ratifies this
Agreement.
(b) If
by 30 June 2011, or such later date as may be agreed
pursuant to clause 2, clause 4 has not come into operation then
unless the parties hereto otherwise agree this Agreement
shall cease and determine and neither party shall
have any claim against the other party with
respect to any matter or thing arising out of or
done or performed or omitted to be done or
performed under this Agreement.
4. The Principal Agreement is hereby varied as
follows:
(1) in clause 1:
(a) by deleting the existing definitions of
“fine ore” and “lump ore”;
(b) by inserting in the appropriate alphabetical
positions the following new definitions:
“approved proposal” means a proposal
approved or determined under this Agreement;
“beneficiated ore”:
(a) means iron ore that has been concentrated or
upgraded (otherwise than solely by crushing, screening, separating by
hydrocycloning or a similar technology which uses primarily size as a
criterion, washing, scrubbing, trommelling or drying or by a combination of 2
or more of those processes) by the Company in a plant constructed pursuant to
a proposal approved pursuant to an Integration Agreement or in such other
plant as is approved by the Minister after consultation with the Minister for
Mines and “beneficiation” and “beneficiate” have
corresponding meanings; and
(b) for the avoidance of doubt, includes iron ore
concentration products from the Mount Tom Price concentration plant;
“fine ore” means iron ore (not being
beneficiated ore) which is screened and will pass through a 6.3 millimetre
mesh screen;
“Integration Agreement” means:
(a) the agreement approved by and scheduled to the
Iron Ore (Hamersley Range) Agreement Act 1963 , as from time to time added
to, varied or amended; or
(b) the agreement approved by and scheduled to the
Iron Ore (Robe River) Agreement Act 1964 , as from time to time added, to
varied or amended; or
(c) the agreement approved by and scheduled to the
Iron Ore (Hamersley Range) Agreement Act Amendment Act 1968 , as from time to
time added to, varied or amended; or
(d) the agreement ratified by and scheduled to the
Iron Ore (Mount Bruce) Agreement Act 1972 , as from time to time added to,
varied or amended; or
(e) the agreement ratified by and scheduled to the
Iron Ore (Hope Downs) Agreement Act 1992 , as from time to time added to,
varied or amended; or
(f) the agreement ratified by and scheduled to the
Iron Ore (Yandicoogina) Agreement Act 1996 , as from time to time added to,
varied or amended; or
(g) the agreement approved by and scheduled to the
Iron Ore (Mount Newman) Agreement Act 1964 , as from time to time added to,
varied or amended; or
(h) the agreement approved by and scheduled to the
Iron Ore (Mount Goldsworthy) Agreement Act 1964 , as from time to time added
to, varied or amended; or
(i) the agreement ratified by and scheduled to the
Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 , as from time to time
added to, varied or amended; or
(j) the agreement authorised by and as scheduled
to the Iron Ore (McCamey’s Monster) Agreement Authorisation Act 1972 ,
as from time to time added to, varied or amended; or
(k) the agreement ratified by and scheduled to the
Iron Ore (Marillana Creek) Agreement Act 1991 , as from time to time added
to, varied or amended;
“Integration Proponent” means in
relation to an Integration Agreement, “the Company” or “the
Joint Venturers” as the case may be as defined in, and for the purpose
of, that Integration Agreement;
“laws relating to native title” means
laws applicable from time to time in the said State in respect of native title
and includes the Native Title Act 1993 (Commonwealth);
“lump ore” means iron ore (not being
beneficiated ore) which is screened and will not pass through a 6.3 millimetre
mesh screen;
“Related Entity” means a company in
which:
(a) as at 21 June 2010; and
(b) after 21 June 2010, with the approval of the
Minister,
a direct or (through a subsidiary or subsidiaries
within the meaning of the Corporations Act 2001 (Commonwealth)) indirect
shareholding of 20% or more is held by:
(c) Rio Tinto Limited ABN 96 004 458 404; or
(d) BHP Billiton Limited ABN 49 004 028 077; or
(e) those companies referred to in paragraphs (c)
and (d) in aggregate;
“variation date” means the date on
which clause 4 of the variation agreement made on or about 17 November 2010
between the State and the Company comes into operation;
“washing” means a process of
separation by water using only size as a criterion;
(c) in the definition of “agreed or
determined” by:
(I) deleting “assessed at” and
substituting “assessed on”; and
(II) deleting all the words after “shall
have regard to” and substituting a colon followed by:
“(i) in the case of iron ore initially sold
at cost pursuant to paragraph (B) of the proviso to clause 10(2)(e), the
prices for that type of iron ore prevailing at the time the price for such
iron ore was agreed between the arm’s length purchaser referred to in
paragraph (B)(iii) of that proviso and the seller in relation to the type of
sale and the relevant international seaborne iron ore market into which such
iron ore was sold and where prices beyond the deemed f.o.b. point are being
considered the deductions mentioned in the definition of f.o.b. value; and
(ii) in any other case, the prices for that type
of iron ore prevailing at the time the price for such iron ore was agreed
between the Company and the purchaser in relation to the type of sale and the
market into which such iron ore was sold and where prices beyond the deemed
f.o.b. point are being considered the deductions mentioned in the definition
of f.o.b. value;”;
(d) in the definition of “Company’s
wharf” by inserting “and in clauses 10(2)(e) and (f) also any
additional wharf constructed by the Company pursuant to this Agreement”
before the semi colon;
(e) in the definition “f.o.b. value”
by:
(i) in paragraph (i):
(A) inserting “subject to paragraph
(ii),” before “in the case”; and
(B) deleting “assessed at” and
substituting “assessed on”;
(ii) renumbering the existing paragraph (ii) as
paragraph (iii); and
(iii) inserting after paragraph (i) the following
new paragraph:
“(ii) in the case of iron ore initially sold
at cost pursuant to paragraph (B) of the proviso to clause 10(2)(e), the price
which is payable for the iron ore by the arm’s length purchaser as
referred to in paragraph (B)(iii) of that proviso or, where the Minister
considers, following advice from the appropriate Government department, that
the price payable in respect of the iron ore does not represent a fair and
reasonable market value for that type of iron ore assessed on an arm’s
length basis in the relevant international seaborne iron ore market, such
amount as is agreed or determined as representing such a fair and reasonable
market value, less all duties, taxes, costs and charges referred to in
paragraph (i) above;”;
(f) in the definition of “iron ore” by
deleting “iron ore concentration products” and substituting
“, without limitation, beneficiated ore”;
(g) in the definition of “loading
port” by:
(i) renumbering the existing paragraph (c) as
paragraph (e); and
(ii) inserting after paragraph (b) the following
new paragraphs:
“(c) the Port of Port Hedland; or
(d) any other port constructed after the variation
date under an Integration Agreement; or”;
(h) in the definition of “metallised
agglomerates” by deleting “or iron ore concentration
products”;
(i) in the definition of “mineral
lease” by inserting “10H,” after “10F”;
(j) in the definition of “secondary
processing” by deleting “concentration or other benefaction of
iron ore other than by crushing or screening” and substituting
“beneficiation of iron ore”;
(k) in the sentence regarding marginal notes by
inserting “and clause headings” after “marginal
notes”; and
(l) by inserting after that sentence the following
new sentences:
“Words in the singular shall include the
plural and words in the plural shall include the singular according to the
requirements of the context.
Nothing in this Agreement shall be construed:
(a) to exempt the Company from compliance with any
requirement in connection with the protection of the environment arising out
of or incidental to its activities under this Agreement that may be made by or
under the EP Act; or
(b) to exempt the State or the Company from
compliance with or to require the State or the Company to do anything contrary
to any laws relating to native title or any lawful obligation or requirement
imposed on the State or the Company as the case may be pursuant to any laws
relating to native title; or
(c) to exempt the Company from compliance with the
provisions of the Aboriginal Heritage Act 1972 (WA).”;
(2) by inserting after
clause 8 the following new clauses:
“Additional
Proposals
8A. (1) If the Company, at any time during the
continuance of this Agreement after the variation date, desires to
significantly modify, expand or otherwise vary its activities carried on
pursuant to this Agreement (other than under clauses 10A, 10G, 10I, 10K or
10N) beyond those activities specified in any proposals approved pursuant to
clauses 6 and 7 it shall give notice of such desire to the Minister and within
2 months thereafter shall submit to the Minister detailed proposals in respect
of all matters covered by such notice and such of the other matters mentioned
in clause 5(1)(a) as the Minister may require.
(2) A proposal may with the consent of the
Minister (except in relation to an Integration Agreement) and that of any
parties concerned (being in respect of an Integration Agreement the
Integration Proponent for that agreement) provide for the use by the Company
of any works installations or facilities constructed or established under a
Government agreement.
(3) Each of the proposals pursuant to subclause
(1) may with the approval of the Minister, or shall if so required by the
Minister, be submitted separately and in any order as to any matter or matters
in respect of which such proposals are required to be submitted.
(4) At the time when the Company submits the said
proposals it shall submit to the Minister details of any services (including
any elements of the project investigations, design and management) and any
works materials, plant, equipment and supplies that it proposes to consider
obtaining from or having carried out or permitting to be obtained from or
carried out outside Australia together with its reasons therefor and shall, if
required by the Minister, consult with the Minister with respect thereto.
(5) The Company may withdraw its proposals
pursuant to subclause (1) at any time before approval thereof, or where any
decision in respect thereof is referred to arbitration as referred to in
clause 8B, within 3 months after the award by notice to the Minister that it
shall not be proceeding with the same.
Consideration of
Company’s proposals under clause 8A
8B. (1) In respect of each proposal pursuant to
subclause (1) of clause 8A the Minister shall:
(a) subject to the limitations set out below,
refuse to approve the proposal (whether it requests the grant of new tenure or
not) if the Minister is satisfied on reasonable grounds that it is not in the
public interest for the proposal to be approved; or
(b) approve of the proposal without qualification
or reservation; or
(c) defer consideration of or decision upon the
same until such time as the Company submits a further proposal or proposals in
respect of some other of the matters mentioned in clause 8A(1) not covered by
the said proposal; or
(d) require as a condition precedent to the giving
of his approval to the said proposal that the Company make such alteration
thereto or comply with such conditions in respect thereto as he thinks
reasonable, and in such a case the Minister shall disclose his reasons for
such conditions,
PROVIDED ALWAYS that where implementation of any
proposals hereunder has been approved pursuant to the EP Act subject to
conditions or procedures, any approval or decision of the Minister under this
clause shall if the case so requires incorporate a requirement that the
Company make such alterations to the proposals as may be necessary to make
them accord with those conditions or procedures.
In considering whether to refuse to approve a
proposal the Minister is to assess whether or not the implementation of the
proposal by itself, or together with any one or more of the other submitted
proposals, will:
(i) detrimentally affect economic and orderly
development in the said State, including without limitation, infrastructure
development in the said State; or
(ii) be contrary to or inconsistent with the
planning and development policies and objectives of the State; or
(iii) detrimentally affect the rights and
interests of third parties; or
(iv) detrimentally affect access to and use by
others of the lands the subject of any grant or proposed grant to the Company.
The right to refuse to approve a proposal
conferred by paragraph (a) may only be exercised in respect of a proposal
where the Minister is satisfied on reasonable grounds that a purpose of the
proposal is the integrated use of works installations or facilities (as
defined in subclause (7) of clause 10L for the purpose of that clause) as
contemplated by clause 10L. It may not be so exercised in respect of a
proposal if pursuant to clause 8C(5) the Minister, prior to the submission of
the proposal, advised the Company in writing that the Minister has no public
interest concerns (as defined in that clause) with the single preferred
development (as referred to in clause 8C(5)(a)) the subject of the submitted
proposals and those proposals are consistent (as to their substantive scope
and content) with the information provided to the Minister pursuant to clause
8C(5) in respect of that single preferred development.
(2) The Minister shall within 2 months after
receipt of proposals pursuant to clause 8A(1) give notice to the Company of
his decision in respect to the proposals, PROVIDED THAT where a proposal is to
be assessed under Part IV of the EP Act the Minister shall only give notice to
the Company of his decision in respect to the proposal within 2 months after
service on him of an authority under section 45(7) of the EP Act.
(3) If the decision of the Minister is as
mentioned in either of paragraphs (a), (c) or (d) of subclause (1) the
Minister shall afford the Company full opportunity to consult with him and
should it so desire to submit new or revised proposals either generally or in
respect to some particular matter.
(4) If the decision of the Minister is as
mentioned in either of paragraphs (c) or (d) of subclause (1) and the Company
considers that the decision is unreasonable the Company within 2 months after
receipt of the notice mentioned in subclause (2) may elect to refer to
arbitration in the manner hereinafter provided the question of the
reasonableness of the decision PROVIDED THAT any requirement of the Minister
pursuant to the proviso to subclause (1) shall not be referable to arbitration
hereunder. A decision of the Minister under paragraph (a) of subclause (1)
shall not be referable to arbitration under this Agreement.
(5) If by the award made on the arbitration
pursuant to subclause (4) the dispute is decided in favour of the Company the
decision shall take effect as a notice by the Minister that he is so satisfied
with and approves the matter or matters the subject of the arbitration.
(6) The Company shall implement the approved
proposals in accordance with the terms thereof.
(7) Notwithstanding clause 21, the Minister may
during the implementation of approved proposals approve variations to those
proposals.
Notification of possible proposals
8C. (1) If the Company, upon completion of a
pre-feasibility study in respect of any matter that would require the
submission and approval of proposals pursuant to this Agreement (being
proposals which will have as their purpose, or one of their purposes, the
integrated use of works installations or facilities as contemplated by clause
10L) for the matter to be undertaken, intends to further consider the matter
with a view to possibly submitting such proposals it shall promptly notify the
Minister in writing giving reasonable particulars of the relevant matter.
(2) Within one (1) month after receiving the
notification the Minister may, if the Minister so wishes, inform the Company
of the Minister’s views of the matter at that stage.
(3) If the Company is informed of the
Minister’s views, it shall take them into account in deciding whether or
not to proceed with its consideration of the matter and the submission of
proposals.
(4) Neither the Minister’s response nor the
Minister choosing not to respond shall in any way limit, prejudice or
otherwise affect the exercise by the Minister of the Minister’s powers,
or the performance of the Minister’s obligations, under this Agreement
or otherwise under the laws from time to time of the said State.
(5) (a) This subclause applies where the Company has settled upon a
single preferred development a purpose of which is the integrated use of works
installations or facilities (as defined in subclause (7) of clause 10L for the
purpose of that clause) as contemplated by clause 10L.
(b) For the purpose of this subclause
“public interest concerns” means any concern that implementation
of the single preferred development or any part of it will:
(i) detrimentally affect economic and orderly
development in the said State, including without limitation, infrastructure
development in the said State; or
(ii) be contrary to or inconsistent with the
planning and development policies and objectives of the State; or
(iii) detrimentally affect the rights and
interests of third parties; or
(iv) detrimentally affect access to and use by
others of lands the subject of any grant or proposed grant to the Company.
(c) At any time prior to submission of proposals
the Company may give to the Minister notice of its single preferred
development and request the Minister to confirm that the Minister has no
public interest concerns with that single preferred development.
(d) The Company shall furnish to the Minister with
its notice reasonable particulars of the single preferred development
including, without limitation:
(i) as to the matters that would be required to be
addressed in submitted proposals; and
(ii) its progress in undertaking any feasibility
or other studies or matters to be completed before submission of proposals;
and
(iii) its timetable for obtaining required
statutory and other approvals in relation to the submission and approval of
proposals; and
(iv) its tenure requirements.
(e) If so required by the Minister, the Company
will provide to the Minister such further information regarding the single
preferred development as the Minister may require from time to time for the
purpose of considering the Company’s request and also consult with the
Minister or representatives or officers of the State in regard to the single
preferred development.
(f) Within 2 months after receiving the notice (or
if the Minister requests further information, within 2 months after the
provision of that information) the Minister must advise the Company:
(iv) that the Minister has no public interest
concerns with the single preferred development; or
(v) that he is not then in a position to advise
that he has no public interest concerns with the single preferred development
and the Minister’s reasons in that regard.
(g) If the Minister gives the advice mentioned in
paragraph (f)(ii) the Company may, should it so desire, give a further request
to the Minister in respect of a revised or alternate single preferred
development and the provisions of this subclause shall apply mutatis mutandis
thereto.”;
(3) in paragraph (b) of clause 9(1):
(i) by deleting “Clause 6 or
Clause 7” and substituting
“clauses, 6, 7, 8B, 10I or 10K”;
(ii) in subparagraph (i) by:
(A) inserting “cause to be granted”
after “grant”;
(B) in the paragraph beginning “for nominal
consideration”, deleting “the harbour area”;
(C) inserting after that paragraph the following
new paragraph:
“at commercial rentals, licence or easement
fees as applicable - leases, licences or easements within the Port of Dampier;
and”;
(D) deleting “and” before “the
Jetties Act” and substituting a comma;
(E) inserting “, the Port Authorities Act
1999 (WA)” after “ 1926 ”; and
(F) inserting “installations or
facilities” after “as the Company reasonably requires for its
works”; and
(iii) in the proviso by deleting “or (as the
case may be) all iron
ore concentration products”;
(4) by inserting after subclause (3) of clause 9
the following new subclause:
“(3a) The provisions of subclause (1) of
this clause shall not operate so as to require the State to grant or vary, or
cause to be granted or varied, any lease licence or other right or title until
all processes necessary under any laws relating to native title to enable that
grant or variation to proceed, have been completed.”;
(5) by deleting paragraph (e) of clause 10(2) and
substituting the following new paragraphs:
“(e) ship, or procure the shipment of, all
iron ore mined from the mineral lease, all iron ore mined from the mining
lease and all iron ore referred to in clause 10(2)(ja) and (in each case)
sold:
(i) from the Company’s wharf; or
(ii) from any other wharf in a loading port which
wharf has been constructed under an Integration Agreement; or
(iii) with the Minister’s approval given
before submission of proposals in that regard, from any other wharf in a
loading port which wharf has been constructed under another Government
agreement (excluding the Integration Agreements),
and use its best endeavours to obtain therefor the
best price possible having regard to market conditions from time to time
prevailing PROVIDED THAT:
(A) this paragraph shall not apply to iron ore
used for secondary processing or for the manufacture of iron or steel in any
part of the said State lying north of the twenty sixth parallel of latitude;
and
(B) iron ore from the mineral lease or the mining
lease may be sold by the Company prior to or at the time of the shipment under
this Agreement at a price equal to the production costs in respect of that
iron ore up to the point of sale, if:
(i) the Minister is notified before the time of
shipment that the sale is to be made at cost, providing details of the
proposed sale; and
(ii) the Minister is notified of the proposed
arm’s length purchaser in the relevant international seaborne iron ore
market of the iron ore the subject of the proposed sale at cost; and
(iii) there is included in the return lodged
pursuant to subclause (2)(k) particulars of the transaction in which the ore
sold at cost was subsequently purchased in the relevant international seaborne
iron ore market by an arm’s length purchaser specifying the purchaser,
the seller, the price and the date when the sale was agreed between the
arm’s length purchaser and the seller; and
(iv) the arm’s length purchaser referred to
in (iii) above is not then a designated purchaser as referred to in subclause
(2)(ea);
Designated purchaser
(ea) if required by notice in writing from the
Minister, provide the Minister within 30 days after receiving the notice with
evidence that the transaction as included in the return pursuant to paragraph
(B)(iii) of subclause (2)(e) was a sale in the relevant international seaborne
iron ore market to an independent participant in that market. If no evidence
is provided or the Minister is not so satisfied on the evidence provided or
other information obtained, the Minister may by notice to the Company
designate the purchaser to be a designated purchaser and that designation will
remain in force unless and until lifted by further notice from the Minister to
the Company. For the avoidance of doubt, the parties acknowledge that
marketing entities forming part of the corporate group including the Company
(or part of the parallel corporate group if the Company is part of a
dual-listed corporate structure) are not independent participants for the
purposes of this subclause;”;
(6) in paragraph (j) of clause 10(2) by:
(i) in subparagraph (iii) deleting “iron ore
concentration products” and substituting “beneficiated ore”;
(ii) in the paragraph after subparagraph (iv):
“(A) deleting “iron ore concentration
products are” and substituting “beneficiated ore is”;
(B) deleting the second reference to “iron
ore concentration products” and substituting “beneficiated
ore”; and
(C) deleting “those iron ore concentration
products” and substituting “that beneficiated ore”; and
(iii) inserting at the end of the paragraph:
“Where for the purpose of determining f.o.b.
value it is necessary to convert an amount or price to Australian currency,
the conversion is to be calculated using a rate (excluding forward hedge or
similar contract rates) that has been approved by the Minister at the request
of the Company and in the absence of such request as determined by the
Minister to be a reasonable rate for the purpose.
The provisions of regulation 85AA (Effect of GST
etc on royalties) of the Mining Regulations 1981 (WA) shall apply mutatis
mutandis to the calculation of royalties under this clause.”;
(7) in paragraph (k) of clause 10(2) by:
(a) inserting “, and also showing such other
information in relation to the abovementioned iron ore as the Minister may
from time to time reasonably require in regard to, and to assist in verifying,
the calculation of royalties in accordance with paragraphs (j) and (ja)”
after “the due date of the return”; and
(b) deleting all the words after “calculated
on the basis of” and substituting a colon followed by:
“(i) in the case of iron ore initially sold
at cost pursuant to paragraph (B) of the proviso to subclause (2)(e), at the
price notified pursuant to paragraph (B)(iii) of that proviso;
(ii) in any other case, invoices or provisional
invoices (as the case may be) rendered by Company to the purchaser (which
invoices the Company shall render without delay simultaneously furnishing
copies thereof to the Minister) of such iron ore or on the basis of estimates
as agreed or determined,
and shall from time to time in the next following
appropriate return and payment make (by the return and by cash) all such
necessary adjustments (and give to the Minister full details thereof) when the
f.o.b. value shall have been finally calculated, agreed or determined;”;
(8) in paragraph (n) of clause 10(2) by:
(a) deleting “books of account and records
of the Company including contracts relative” and substituting
“books, records, accounts, documents (including contracts), data and
information of the Company stored by any means relating”;
(b) inserting “(in whatever form)”
after “copies or extracts”; and
(c) inserting “the subject of royalty”
before the first two references to “hereunder”;
(9) by inserting after paragraph (n) of clause
10(2) the following new paragraph:
“(o) The Company shall cause to be produced
in Perth in the said State all books, records, accounts, documents (including
contracts), data and information of the kind referred to in paragraph (n) to
enable the exercise of rights by the Minister or the Minister’s nominee
under paragraph (n), regardless of the location in which or by whom those
books, records, accounts, documents (including contracts), data and
information are stored from time to time.”;
(10) in clause 10(4):
(a) by deleting paragraph (a) and substituting the
following new paragraph (a):
“(a) The Company may blend iron ore mined
from the mineral lease and the mining lease or either of them with any:
(i) iron ore mined from a mining tenement or other
mining title granted under, or pursuant to, an Integration Agreement; or
(ii) iron ore mined from a Mining Act 1978 mining
lease located in, or proximate to, the Pilbara region of the said State which
is held by a Related Entity alone or with a third party or parties (excluding
any mining lease granted pursuant to, or held under, a Government agreement);
or
(iii) with the prior approval of the Minister,
iron ore mined in, or proximate to the Pilbara region of the said State under
a Government agreement (excluding an Integration Agreement); or
(iv) with the prior approval of the Minister, iron
ore mined by a third party from a Mining Act 1978 mining lease located in, or
proximate to, the Pilbara region of the said State (excluding under a
Government agreement) which has been purchased by an Integration Proponent
from the third party.”;
(b) in paragraph (b) by:
(i) deleting “there is” and
substituting “there are”;
(ii) deleting “between the relevant
Government agreements”;
(iii) deleting “blended and” and
substituting “blended as between each of the sources referred to in
paragraph (a),”; and
(iv) inserting a comma after
“processing”;
(11) in clause 10A by:
(a) inserting in its heading “for
townsites” after “Additional Proposals”;
(b) deleting “The” at the beginning of
subclause (2) and “If” at the beginning of subclause (3) and in
each case substituting:
“Subject to subclause (3a),”;
(c) inserting after subclause (3) the following
new subclause:
“(3a) After the variation date, the
provisions of clauses 8A(2) to (5) and of 8B shall mutatis mutandis apply to
proposals submitted pursuant to this clause.”; and
(d) deleting subclause (4);
(12) in clause 10I(10) by deleting
“subclauses (3) to (8) of this clause” and substituting
“clauses 8A(2) to (5) and of 8B”;
(13) in clause 10I(11) by:
(a) inserting “environmental” before
each reference to “approved proposals”; and
(b) deleting “subclauses (4), (5), (6), (7),
(9) and” in paragraph (f) and substituting “clause 8B and
subclause”;
(14) in clause 10J(1) by:
(a) inserting “, the mining lease, any land
that may be included in the mineral lease or the mining lease pursuant to
clauses 10F, 10H, 10I or 10K and of any other mineral lease or mining lease
granted under or pursuant to this Agreement (as aggregated)” after
“total area of the mineral lease”;
(b) deleting “300 square miles” and
substituting “777 square kilometres”; and
(c) inserting “by endorsement” after
“the subject thereof in the mineral lease”;
(15) by inserting after subclause (1) of clause
10J the following new subclause:
“(1a) The Minister may approve, upon
application by the Company from time to time, for the total area referred to
in subclause (1) to be increased up to a limit not exceeding 1,000 square
kilometres.”;
(16) in clause 10J(3) by inserting “as
additional proposals pursuant to clause 8A” before the full stop;
(17) by deleting clause 10J(4);
(18) in clause 10K(4) by deleting the full stop at
the end of paragraph (c), substituting a semi colon followed by the following
new paragraphs:
“(d) under subclause (4) thereof the
Minister could refuse to approve a submitted proposal as provided in clause
8B(1);
(e) subclause (6) thereof also applied to a
decision of the Minister to refuse to approve a proposal; and
(f) the following sentence was inserted at the end
of subclause (7) thereof:
“A decision of the Minister to refuse to
approve a submitted proposal shall not be referable to arbitration under this
Agreement.”;
(19) in paragraph (c) of clause 10K(8) by deleting
the full stop at the end of subparagraph (b), substituting a semi colon
followed by the following new paragraphs:
“(c) under subclause (4) thereof the
Minister could refuse to approve a submitted proposal as provided in clause
8B(1);
(d) subclause (6) thereof also applied to a
decision of the Minister to refuse to approve a proposal; and
(e) the following sentence was inserted at the end
of subclause (7) thereof:
“A decision of the Minister to refuse to
approve a submitted proposal shall not be referable to arbitration under this
Agreement.”;
(20) by inserting after clause 10K the following
new clauses:
“Integrated use of works installations or facilities under the
Integration Agreements
10L. (1) Subject to subclauses (2) to (7) of this
clause and to the other provisions of this Agreement, the Company may during
the continuance of this Agreement:
(a) use any existing or new works installations or
facilities constructed or held:
(i) under this Agreement; or
(ii) under any other Integration Agreement which
are made available for such use and during the continuance of such Integration
Agreement; or
(iii) with the approval of the Minister, under a
Government agreement (excluding an Integration Agreement) which are made
available for such use and during the continuance of that agreement,
(wholly or in part) in the activities of the
Company carried on by it pursuant to this Agreement including, without
limitation, as part of those activities, transporting by railway and shipping
from a loading port and undertaking any ancillary and incidental activities in
doing so (including, without limitation, blending permitted by clause 10(4))
of:
(A) iron ore mined from a Mining Act 1978 mining
lease located in, or proximate to, the Pilbara region of the said State which
is held by a Related Entity alone or with a third party or parties (excluding
any mining lease granted pursuant to, or held under, a Government agreement);
(B) with the prior approval of the Minister, iron
ore mined in, or proximate to, the Pilbara region of the said State under a
Government agreement (excluding an Integration Agreement);
(C) with the prior approval of the Minister, iron
ore mined by a third party from a Mining Act 1978 mining lease located in, or
proximate to, the Pilbara region of the said State (excluding under a
Government agreement) which has been purchased by the Company from the third
party;
(D) iron ore mined under an Integration Agreement;
(b) make any existing or new works installations
or facilities constructed or held under this Agreement available for use
(wholly or partly) by another Integration Proponent during the continuance of
its Integration Agreement in the activities of that Integration Proponent
carried on by it pursuant to its Integration Agreement including, without
limitation, as part of those activities, transporting by railway and shipping
from a loading port and undertaking any ancillary and incidental activities in
doing so (including, without limitation, blending permitted by that
Integration Agreement) of:
(i) iron ore mined from a Mining Act 1978 mining
lease located in, or proximate to, the Pilbara region of the said State which
is held by a Related Entity alone or with a third party or parties (excluding
any mining lease granted pursuant to, or held under, a Government agreement);
(ii) with the prior approval of the Minister (as
defined in that Integration Agreement), iron ore mined in, or proximate to,
the Pilbara region of the said State under a Government agreement (excluding
an Integration Agreement);
(iii) with the prior approval of the Minister (as
defined in that Integration Agreement), iron ore mined by a third party from a
Mining Act 1978 mining lease located in, or proximate to, the Pilbara region
of the said State (excluding under a Government agreement) which has been
purchased by that Integration Proponent from the third party;
(iv) iron ore mined under an Integration
Agreement;
(c) make any existing or new works installations
or facilities constructed or held under this Agreement available for use
(wholly or partly) in connection with operations under:
(i) a Mining Act 1978 mining lease located in, or
proximate to, the Pilbara region of the said State, for iron ore, which is
held by a Related Entity alone or with a third party or parties (excluding any
mining lease granted pursuant to, or held under a Government agreement); or
(ii) with the approval of the Minister, a
Government agreement (other than an Integration Agreement) for the mining of
iron ore in, or proximate to, the Pilbara region of the said State;
(d) subject to subclause (2), under this Agreement
and for the purpose of any use or making available for use referred to in
paragraph (a), (b) or (c) connect any existing or new works installations or
facilities constructed or held under this Agreement to any existing or new
works installations or facilities constructed or held under another
Integration Agreement;
(e) subject to subclause (2), under this Agreement
and for the purpose of any use or making available for use referred to in
paragraph (a), (b) or (c) or making of any connection referred to in paragraph
(d) construct new works installations or facilities and expand modify or
otherwise vary any existing and new works installations or facilities
constructed or held under this Agreement;
(f) allow a railway or rail spur line (not being a
railway or rail spur line constructed or held under an Integration Agreement)
to be connected to a railway or rail spur line or other works installations or
facilities constructed or held under this Agreement for the delivery of iron
ore to an Integration Proponent for transport by railway and shipping from a
loading port (together with any ancillary and incidental activities in doing
so) as part of its activities under its Integration Agreement; and
(g) allow an electricity transmission line (not
being an electricity transmission line constructed or held under an
Integration Agreement) to be connected to an electricity transmission line
constructed or held under this Agreement for the supply of electricity
permitted to be made under an Integration Agreement.
(2) (a) A connection referred to in clause (1)(d) or construction,
expansion, modification or other variation referred to in subclause (1)(e) by
the Company shall, to the extent not already authorised under this Agreement
as at the variation date, be regarded as a significant modification expansion
or other variation of the Company’s activities carried on by it pursuant
to this Agreement and may only be made in accordance with proposals submitted
and approved or determined under this Agreement in accordance with clauses 8A
and 8B or clauses 10A, 10I, 10K or 10N as the case may require and otherwise
in compliance with the provisions of this Agreement and the laws from time to
time of the said State. For the avoidance of doubt, the parties acknowledge
that any use or making available for use contemplated by subclause (1)(a),
(1)(b) or (1)(c) shall not otherwise than as required by this paragraph (a)
require the submission and approval of further proposals under this Agreement.
(b) The Company shall not be entitled to:
(i) submit proposals to construct any new port or
to establish harbour or port works installations or facilities, or to expand
modify or otherwise vary harbour or works installations or facilities
otherwise than at or near the town of Dampier within the boundaries of the
Port of Dampier; or
(ii) generate and supply power, take and supply
water or dispose of water otherwise than in accordance with the other clauses
of this Agreement and subject to any restrictions contained in those clauses;
or
(iii) without limiting subparagraphs (i) and (ii)
submit proposals to construct or establish works installations or facilities
of a type, or to make expansions, modifications or other variations of works
installations or facilities of a type, which in the Minister’s
reasonable opinion this Agreement, immediately before the variation date, did
not permit or contemplate the Company constructing, establishing or making as
the case may be otherwise than for integration use as contemplated by
subclauses (1)(a), (1)(b) or (1)(c) or as permitted by clause 10N; or
(iv) submit proposals to make a connection as
referred to in subclause (1)(d) or a construction, expansion, modification or
other variation as referred to in subclause (1)(e) otherwise than on tenure
granted under or pursuant to this Agreement from time to time or held pursuant
to this Agreement from time to time; or
(v) submit proposals to make a connection referred
to in subclause (1)(d) or a construction, expansion, modification or other
variation as referred to in subclause (1)(e) for the purpose of use as
contemplated by subclause (1)(c)(i), if in the reasonable opinion of the
Minister the activity which is the subject of the proposals would give to the
holder or holders of the relevant Mining Act 1978 mining lease the benefit of
rights or powers granted to the Company under this Agreement, over and above
the right of access to and use of the relevant works, installations or
facilities; or
(vi) submit proposals to make a connection as
referred to in subclause (1)(d) or a construction, expansion, modification or
other variation as referred to in subclause (1)(e) for the purpose of use as
contemplated by subclause (1)(c) and involving the grant of tenure without the
prior approval of the Minister; or
(vii) submit proposals to assign, sublet, transfer
or dispose of any works installations or facilities constructed or held under
this Agreement or any leases, licences, easements or other titles under or
pursuant to this Agreement for any purpose referred to in this clause.
(c) Notwithstanding the provisions of clauses 8B,
10I, 10K and 10N, the Minister may defer consideration of, or a decision upon,
a proposal submitted by the Company for a connection as referred to in
subclause (1)(d) or a construction, expansion, modification or other variation
as referred to in subclause (1)(e), for the purpose of use or making available
for use as referred to in subclauses (1)(a) or (1)(b), until relevant
corresponding proposals under the relevant Integration Agreement have been
submitted and those proposals can be approved under that Integration Agreement
concurrently with the Minister’s approval under this Agreement of the
Company’s proposal.
(3) Any use or making available for use as
referred to in subclause (1), or submission of proposals as referred to in
subclause (2), in respect of a Related Entity shall be subject to the Company
first confirming with the Minister that the Minister is satisfied that the
relevant company is a Related Entity.
(4) The Company shall give the Minister prior
written notice of any significant change (other than a temporary one for
maintenance or to respond to an emergency) proposed in its use, or in it
making available for use, works installations or facilities as referred to in
this clause:
(a) from that authorised under this Agreement
immediately before the variation date; and
(b) subsequently from that previously notified to
the Minister under this subclause,
as soon as practicable before such change occurs.
The Company shall also keep the Minister fully
informed with respect to any proposed connection as referred to in subclause
(1)(f) or (1)(g) or request of the Company for such connection to be allowed.
(5) Nothing in this Agreement shall be construed
to:
(a) exempt another Integration Proponent from
complying with, or the application of, the provisions of its Integration
Agreement; or
(b) restrict the Company’s rights under
clause 20.
For the avoidance of doubt the approval of
proposals under this Agreement shall not be construed as authorising another
Integration Proponent to undertake any activities under this Agreement or
under another Integration Agreement.
(6) Nothing in this clause shall be construed to
exempt the Company from complying with, or the application of, the other
provisions of this Agreement including, without limitation, clauses 11 and 20
and of relevant laws from time to time of the said State.
(7) For the purpose of this clause “works
installations or facilities” means any:
(a) harbour or port works installations or
facilities including, without limitation, stockpiles, reclaimers, conveyors
and wharves;
(b) railway or rail spur lines;
(c) track structures and systems associated with
the operation and maintenance of a railway including, without limitation,
sidings, train control and signalling systems, maintenance workshops and
terminal yards;
(d) train loading and unloading works
installations or facilities;
(e) conveyors;
(f) private roads;
(g) mine aerodrome and associated aerodrome works
installations and facilities;
(h) iron ore mining, crushing, screening,
beneficiation or other processing works installations or facilities;
(i) mine administration buildings including,
without limitation, offices, workshops and medical facilities;
(j) borrow pits;
(k) accommodation and ancillary facilities
including, without limitation, construction camps and in townsites constructed
pursuant to and held under any Integration Agreement;
(l) water, sewerage, electricity, gas and
telecommunications works installations and facilities including, without
limitation, pipelines, transmission lines and cables; and
(m) any other works installations or facilities
approved of by the Minister for the purpose of this clause.
Transfer of rights to shared works installations or facilities
10M (1) For the purposes of this clause
“Relevant Infrastructure” means any works installations or
facilities (as defined in clause 10L(7)):
(a) constructed or held under another Integration
Agreement;
(b) which the Company is using in its activities
pursuant to this Agreement;
(c) which the Minister is satisfied (after
consulting with the Company and the Integration Proponent for that other
Integration Agreement):
(i) are no longer required by that other
Integration Proponent to carry on its activities pursuant to its Integration
Agreement because of the cessation of the Integration Proponent’s mining
operations in respect of which such Relevant Infrastructure was constructed or
held or because of any other reason acceptable to the Minister; and
(ii) are required by the Company to continue to
carry on its activities pursuant to this Agreement; and
(d) in respect of which that other Integration
Proponent has notified the Minister it consents to the Company submitting
proposals as referred to in subclause (2).
(2) The Company may as an additional proposal
pursuant to clause 8A propose:
(a) that it be granted a lease licence or other
title over the Relevant Infrastructure pursuant to this Agreement subject to
and conditional upon the other Integration Proponent surrendering wholly or in
part (and upon such terms as the Minister considers reasonable including any
variation of terms to address environmental issues) its lease licence or other
title over the Relevant Infrastructure; or
(b) that the other Integration Proponent’s
lease licence or other title (not being a mineral lease, mining lease or other
right to mine title granted under a Government agreement, the Mining Act 1904
or the Mining Act 1978 ) to the Relevant Infrastructure be transferred to this
Agreement (to be held by the Company pursuant to this Agreement) with such
surrender of land from it and variations of its terms as the Minister
considers reasonable for that title to be held under this Agreement including,
without limitation, to address environmental issues and outstanding
obligations of that other Integration Proponent under its Integration
Agreement in respect of that Relevant Infrastructure.
The provisions of clause 8B shall mutatis mutandis
apply to any such additional proposal. In addition the Company acknowledges
that the Minister may require variations of the other Integration Agreement
and/or proposals under it or of this Agreement in order to give effect to the
matters contemplated by this clause.
(3) This clause shall cease to apply in the event
the State gives any notice of default to the Company pursuant to clause 11(l)
and while such notice remains unsatisfied.
Miscellaneous Licences for Railways
10N. (1) In this clause subject to the context:
“Additional Infrastructure” means:
(a) Train Loading Infrastructure;
(b) Train Unloading Infrastructure;
(c) a conveyor, train unloading and other
infrastructure necessary for the transport of iron ore, freight goods or other
products from the Railway (directly or indirectly) to port facilities within a
loading port,
in each case located outside a Port;
“LAA” means the
Land Administration Act 1997 (WA);
“Lateral Access Roads” has the meaning
given in subclause (3)(a)(iv));
“Lateral Access Road Licence” means a
miscellaneous licence granted pursuant to subclause (6)(a)(ii) or subclause
(6)(b) as the case may be and according to the requirements of the context
describes the area of land from time to time the subject of that licence;
“Port” means any port the subject of
the Port Authorities Act 1999 (WA) or the Shipping and Pilotage Act 1967
(WA);
“Private Roads” means Lateral Access
Roads and the Company’s access roads within a Railway Corridor;
“Rail Safety Act” means the
Rail Safety Act 1998 (WA);
“Railway” means a standard gauge heavy
haul railway or railway spur line, located or to be located as the case may be
in, or proximate to, the Pilbara region of the said State (but outside the
boundaries of a Port) for the transport of iron ore, freight goods and other
products together with all railway track, associated track structures
including sidings, turning loops, over or under track structures, supports
(including supports for equipment or items associated with the use of a
railway) tunnels, bridges, train control systems, signalling systems, switch
and other gear, communication systems, electric traction infrastructure,
buildings (excluding office buildings, housing and freight centres), workshops
and associated plant, machinery and equipment and including rolling stock
maintenance facilities, terminal yards, depots, culverts and weigh bridges
which railway is or is to be (as the case may be) the subject of approved
proposals under subclause (4) and includes any expansion or extension thereof
outside a Port which is the subject of additional proposals approved in
accordance with subclause (5);
“Railway Corridor” means, prior to the
grant of a Special Railway Licence, the land for the route of the Railway the
subject of that licence, access roads (other than Lateral Access Roads), areas
from which stone, sand, clay and gravel may be taken, temporary accommodation
facilities for the railway workforce, water bores and Additional
Infrastructure (if any) which is the subject of a subsisting agreement
pursuant to subclause (3)(a) and after the grant of the Special Railway
Licence the land from time to time the subject of that Special Railway
Licence;
“Railway Operation” means the
construction and operation under this Agreement of the relevant Railway and
associated access roads and Additional Infrastructure (if any) within the
relevant Railway Corridor and of the associated Lateral Access Roads, in
accordance with approved proposals;
“Railway spur line” means a standard
gauge heavy haul railway spur line located or to be located in, or proximate
to, the Pilbara region of the said State (but outside a Port) connecting to a
Railway for the transport of iron ore, freight goods and other products upon
the Railway to (directly or indirectly) a loading port;
“Railway Operation Date” means the
date of the first carriage of iron ore, freight goods or other products over
the relevant Railway (other than for construction or commissioning purposes);
“Railway spur line Operation Date”
means the date of the first carriage of iron ore, freight goods or other
products over the relevant Railway spur line (other than for construction or
commissioning purposes);
“Special Railway Licence” means the
relevant miscellaneous licence for railway and, if applicable, other purposes,
granted to the Company pursuant to subclause (6)(a)(i) as varied in accordance
with subclause (6)(h) or subclause (6)(i) and according to the requirements of
the context describes the area of land from time to time the subject of that
licence;
“Train Loading Infrastructure” means
conveyors, stockpile areas, blending and screening facilities, stackers,
re-claimers and other infrastructure reasonably required for the loading of
iron ore, freight goods or other products onto the relevant Railway for
transport (directly or indirectly) to a loading port; and
“Train Unloading Infrastructure” means
train unloading infrastructure reasonably required for the unloading of iron
ore from the Railway to be processed, or blended with other iron ore, at
processing or blending facilities in the vicinity of that train unloading
infrastructure and with the resulting iron ore products then loaded on to the
Railway for transport (directly or indirectly) to a loading port.
Company to obtain prior Ministerial in-principle approval
(2) (a) If the Company wishes, from time to time during the continuance
of this Agreement, to proceed under this clause with a plan to develop a
Railway it shall give notice thereof to the Minister and furnish to the
Minister with that notice an outline of its plan.
(b) The Minister shall within one month of a
notice under paragraph (a) advise the Company whether or not he approves
in-principle the proposed plan. The Minister shall afford the Company full
opportunity to consult with him in respect of any decision of the Minister
under this paragraph.
(c) The Minister’s in-principle approval in
respect of a proposed plan shall lapse if the Company has not submitted
detailed proposals to the Minister in respect of that plan in accordance with
this clause within 18 months of the Minister’s in-principle approval.
Railway Corridor
(3) (a) If the Minister gives in-principle approval to a plan of the
Company to develop a Railway it shall consult with the Minister to seek the
agreement of the Minister as to:
(i) where the Railway will begin and end; and
(ii) a route for the Railway, access roads to be
within the Railway Corridor and the land required for that route as well as
Additional Infrastructure (if any) including, without limitation, areas from
which stone, sand, clay and gravel may be taken, temporary accommodation
facilities for the railway workforce and water bores; and
(iii) in respect of Additional Infrastructure (if
any) the nature and capacity of such Additional Infrastructure; and
(iv) the routes of, and the land required for,
roads outside the Railway Corridor (and also outside a Port) for access to it
to construct the Railway (such roads as agreed being “Lateral Access
Roads”).
In seeking such agreement, regard shall be had to
achieving a balance between engineering matters including costs, the nature
and use of any lands concerned and interests therein and the costs of
acquiring the land (all of which shall be borne by the Company). The parties
acknowledge the intention is for the Company to construct the Railway, the
access roads for the construction and maintenance of the Railway which are to
be within the Railway Corridor and the relevant Additional Infrastructure (if
any) along the centreline of the Railway Corridor subject to changes in that
alignment to the extent necessary to avoid heritage, environmental or poor
ground conditions that are not identified during preliminary investigation
work, and recognise the width of the Railway Corridor may need to vary along
its route to accommodate Additional Infrastructure (if any), access roads,
areas from which stone, sand, clay and gravel may be taken, temporary
accommodation facilities for the railway workforce and water bores. The
provisions of clause 25 shall not apply to this subclause.
(b) If the date by which the Company must submit
detailed proposals under subclause (4)(a) (as referred to in subclause (2)(c))
is extended or varied by the Minister pursuant to clause 24, any agreement
made pursuant to paragraph (a) before such date is extended or varied shall
unless the Minister notifies the Company otherwise be deemed to be at an end
and neither party shall have any claim against the other in respect of it.
(c) The Company acknowledges that it shall be
responsible for liaising with every title holder in respect of the land
affected and for obtaining in a form and substance acceptable to the Minister
all unconditional and irrevocable consents of each such title holder to, and
all statutory consents required in respect of the land affected for:
(i) the grant of the Special Railway Licence for
the construction, operation and maintenance within the Railway Corridor of the
Railway, access roads and Additional Infrastructure (if any) to be within the
Railway Corridor; and
(ii) the grant of Lateral Access Road Licences for
the construction, use and maintenance of Lateral Access Roads over the routes
for the Lateral Access Roads agreed pursuant to paragraph (a); and
(iii) the inclusion of additional land in the
Special Railway Licence as referred to in subclause (6)(h) or subclause
(6)(i),
in accordance with this clause. For the purposes
of this subclause (3)(c), “title holder” means a management body
(as defined in the LAA) in respect of any part of the affected land, a person
who holds a mining, petroleum or geothermal energy right (as defined in the
LAA) in respect of any part of the affected land, a person who holds a lease
or licence under the LAA in respect of any part of the affected land, a person
who holds any other title granted under or pursuant to a Government agreement
in respect of any part of the affected land, a person who holds a lease or
licence in respect of any part of the affected land under any other Act
applying in the said State and a person in whom any part of the affected land
is vested, immediately before the provision of such consents to the Minister
as referred to in subclause (4)(e)(ii) (including as applying pursuant to
subclause 5(d)).
Company to submit proposals for Railway
(4) (a) The Company shall, subject to the EP Act, the provisions of this
Agreement, agreement at that time subsisting in respect of the matters
required to be agreed pursuant to subclause 3(a), submit to the Minister by
the latest date applying under subclause (2)(c) to the fullest extent
reasonably practicable its detailed proposals (including plans where
practicable and specifications where reasonably required by the Minister and
any other details normally required by a local government in whose area any
works are to be situated) with respect to the undertaking of the relevant
Railway Operation, which proposals shall include the location, area, layout,
design, materials and time program for the commencement and completion of
construction or the provision (as the case may be) of each of the following
matters namely:
(i) the Railway including fencing (if any) and
crossing places within the Railway Corridor;
(ii) Additional Infrastructure (if any) within the
Railway Corridor;
(iii) temporary accommodation and ancillary
temporary facilities for the railway workforce on, or in the vicinity of, the
Railway Corridor and housing and other appropriate facilities elsewhere for
the Company’s workforce;
(iv) water supply;
(v) energy supplies;
(vi) access roads within the Railway Corridor and
Lateral Access Roads both along the routes for those roads agreed between the
Minister and the Company pursuant to subclause 3(a);
(vii) any other works, services or facilities
desired by the Company; and
(viii) use of local labour, professional services,
manufacturers, suppliers contractors and materials and measures to be taken
with respect to the engagement and training of employees by the Company, its
agents and contractors.
(b) Proposals pursuant to paragraph (a) must
specify the matters agreed for the purpose pursuant to subclause (3)(a) and
must not be contrary to or inconsistent with such agreed matters.
(c) Each of the proposals pursuant to paragraph
(a) may with the approval of the Minister, or must if so required by the
Minister, be submitted separately and in any order as to the matter or matters
mentioned in one or more of subparagraphs (i) to (viii) of paragraph (a) and
until all of its proposals under this subclause have been approved the Company
may withdraw and may resubmit any proposal but the withdrawal of any proposal
shall not affect the obligations of the Company to submit a proposal under
this subclause in respect of the subject matter of the withdrawn proposal.
(d) The Company shall, whenever any of the
following matters referred to in this subclause are proposed by the Company
(whether before or during the submission of proposals under this subclause),
submit to the Minister details of any services (including any elements of the
project investigations, design and management) and any works, materials,
plant, equipment and supplies that it proposes to consider obtaining from or
having carried out or permitting to be obtained from or carried out outside
Australia, together with its reasons therefor and shall, if required by the
Minister consult with the Minister with respect thereto.
(e) At the time when the Company submits the last
of the said proposals pursuant to this subclause, it shall:
(i) furnish to the Minister’s reasonable
satisfaction evidence of all accreditations under the Rail Safety Act which
are required to be held by the Company or any other person for the
construction of the Railway; and
(ii) furnish to the Minister the written consents
referred to in subclause (3)(c)(i) and (3)(c)(ii).
(f) The provisions of clause 8B shall apply
mutatis mutandis to detailed proposals submitted under this subclause.
Additional Railway Proposals
(5) (a) If the Company at any time during the currency of a Special
Railway Licence desires to construct a Railway spur line (connecting to the
Railway the subject of that Special Railway Licence) or desires to
significantly modify, expand or otherwise vary its activities within the land
the subject of the Special Railway Licence that are the subject of this
Agreement and that may be carried on by it pursuant to this Agreement (other
than by the construction of a Railway spur line) beyond those activities
specified in any approved proposals for that Railway, it shall give notice of
such desire to the Minister and furnish to the Minister with that notice an
outline of its proposals in respect thereto (including, without limitation,
such matters mentioned in subclause (4)(a) as are relevant or as the Minister
otherwise requires).
(b) If the notice relates to a Railway spur line,
or to the construction of Train Loading Infrastructure or Train Unloading
Infrastructure on land outside the then Railway Corridor, the Minister shall
within one month of receipt of such notice advise the Company whether or not
he approves in-principle the proposed construction of such spur line, Train
Loading Infrastructure or Train Unloading Infrastructure. If the Minister
gives in-principle approval the Company may (but not otherwise) submit
detailed proposals in respect thereof provided that the provisions of
subclause (3) shall mutatis mutandis apply prior to submission of detailed
proposals in respect thereof.
(c) Subject to the EP Act, the provisions of this
Agreement and agreement at that time subsisting in respect of any matters
required to be agreed pursuant to subclause (3)(a) (as referred to in
paragraph (b)), the Company shall submit to the Minister within a reasonable
timeframe, as determined by the Minister after receipt of the notice referred
to in paragraph (a) (or in the case of a notice referred to in paragraph (b)
the giving of the Minister’s in-principle consent as referred to in that
paragraph), detailed proposals in respect of the proposed construction of such
Railway spur line, Train Loading Infrastructure, Train Unloading
Infrastructure or other proposed modification, expansion or variation of its
activities including such of the matters mentioned in subclause (4)(a) as the
Minister may require.
(d) The provisions of subclause (4) (with the date
for submission of proposals being read as the date or time determined by the
Minister under paragraph (c) and the reference in subclause (4)(e)(ii) to
subclause (3)(c)(i) being read as a reference to subclause (3)(c)(iii)) and of
clause 8B shall mutatis mutandis apply to detailed proposals submitted
pursuant to this subclause.
Grant of Tenure
(6) (a) On application made by the Company to the Minister in such
manner as the Minister may determine, not later than 3 months after all its
proposals submitted pursuant to subclause (4)(a) have been approved or deemed
to be approved and the Company has complied with the provisions of subclause
(4)(e), the State notwithstanding the Mining Act 1978 shall cause to be
granted to the
Company:
(i) a miscellaneous licence to conduct within the
Railway Corridor and in accordance with its approved proposals all activities
(including the taking of stone, sand, clay and gravel, the provision of
temporary accommodation facilities for the railway workforce and, subject to
the Rights in Water and Irrigation Act 1914 (WA), the operation of water
bores) necessary for the planning, design, construction, commissioning,
operation and maintenance within the Railway Corridor of the Railway, access
roads and Additional Infrastructure (if any) (“the Special Railway
Licence”) such licence to be granted under and subject to, except as
otherwise provided in this Agreement, the Mining Act 1978 in the form of the
Third Schedule hereto and subject to such terms and conditions as the Minister
for Mines may from time to time consider reasonable and at a rental calculated
in accordance with the Mining Act 1978 :
(A) prior to the Railway Operation Date, as if the
width of the Railway Corridor were 100 metres; and
(B) on and from the Railway Operation Date, at the
rentals from time to time prescribed under the Mining Act 1978 ; and
(ii) a miscellaneous licence or licences to allow
the construction, use and maintenance of Lateral Access Roads within the
routes agreed for those Lateral Access Roads under subclause (3)(a) (each a
“Lateral Access Road Licence”), each such licence to be granted
under and subject to, except as otherwise provided in this Agreement, the
Mining Act 1978 in the form of the Fourth Schedule hereto and subject to such
terms and conditions as the Minister for Mines may from time to time consider
reasonable and at the rentals from time to time prescribed under the Mining
Act 1978 .
(b) On application made by the Company to the
Minister in such manner as the Minister may determine, not later than 3 months
after its proposals submitted pursuant to subclause (5)(a) for the
construction of Lateral Access Roads for access to the Railway Corridor to
construct a Railway spur line have been approved or deemed to be approved and
the Company has complied with the provisions of subclause (4)(e) (as applying
pursuant to subclause (5)(d)), the State notwithstanding the Mining Act 1978
shall cause to be granted to the Company a miscellaneous licence or licences
to allow the construction, use and maintenance of Lateral Access Roads within
the routes agreed for those Lateral Access Roads under subclause (3)(a)) (as
applying pursuant to subclause (5)(b)) (each a “Lateral Access Road
Licence”), each such licence to be granted under and subject to, except
as otherwise provided in this Agreement, the Mining Act 1978 in the form of
the Fifth Schedule hereto and subject to such terms and conditions as the
Minister for Mines may from time to time consider reasonable and at the
rentals from time to time prescribed under the Mining Act 1978 .
(c) Notwithstanding the Mining Act 1978 , the term
of the Special Railway Licence shall, subject to the sooner determination
thereof on the cessation or sooner determination of this Agreement, be for a
period of 50 years commencing on the date of grant thereof.
(d) Notwithstanding the Mining Act 1978 , the term
of any Lateral Access Road Licence shall, subject to the sooner determination
thereof on the cessation or sooner determination of this Agreement, be for a
period of 4 years commencing on the date of grant thereof.
(e) Notwithstanding the Mining Act 1978 , and
except as required to do so by the terms of the Special Railway Licence, the
Company shall not be entitled to surrender the Special Railway Licence or any
Lateral Access Road Licence or any part or parts of them without the prior
consent of the Minister.
(f) (i) The Company may in accordance with approved proposals take
stone, sand, clay and gravel from the Railway Corridor for the construction,
operation and maintenance of the Railway constructed within or approved for
construction within the Railway Corridor.
(ii) Notwithstanding the Mining Act 1978 no
royalty shall be payable under the Mining Act in respect of stone, sand, clay
and gravel which the Company is permitted by subparagraph (i) to obtain from
the land the subject of the Special Railway Licence.
(g) For the purposes of this Agreement and without
limiting the operation of paragraphs (a) to (f) inclusive above, the
application of the Mining Act 1978 and the regulations made thereunder are
specifically modified;
(i) in section 91(1) by:
(A) deleting “the mining registrar or the
warden, in accordance with section 42 (as read with section 92)” and
substituting “the Minister”;
(B) deleting “any person” and
substituting “the Company (as defined in the agreement approved by and
scheduled to the Iron Ore (Hamersley Range) Agreement Act 1963 , as from time
to time added to, varied or amended)”;
(C) deleting “for any one or more of the
purposes prescribed” and substituting “for the purpose specified
in clause 10N(6)(a)(i), clause 10N(6)(a)(ii) or clause 10N(6)(b), of the
agreement approved by and scheduled to the
Iron Ore (Hamersley Range) Agreement Act 1963 , as from time to time added
to, varied or amended”;
(ii) in section 91(3)(a), by deleting
“prescribed form” and substituting “form required by the
agreement approved by and scheduled to the
Iron Ore (Hamersley Range) Agreement Act 1963 , as from time to time added to,
varied or amended”;
(iii) by deleting sections 91(6), 91(9), 91(10)
and 91B;
(iv) in section 92, by deleting “Sections
41, 42, 44, 46, 46A, 47 and 52 apply,” and inserting “Section 46A
(excluding in subsection (2)(a) “the mining registrar, the warden
or”) applies,” and by deleting “in those provisions”
and inserting “in that provision”;
(v) by deleting the full stop at the end of the
section 94(1) and inserting, “except to the extent otherwise provided
in, or to the extent that such terms and conditions are inconsistent with, the
agreement approved by and scheduled to the
Iron Ore (Hamersley Range) Agreement Act 1963 , as from time to time added to,
varied or amended”;
(vi) by deleting sections 94(2), (3) and (4);
(vii) in section 96(1), by inserting after
“miscellaneous licence” the words “(not being a
miscellaneous licence granted pursuant to the agreement approved by and
scheduled to the Iron Ore (Hamersley Range) Agreement Act 1963 , as from time
to time added to, varied or amended”;
(viii) by deleting mining regulations 37(2),
37(3), 42 and 42A; and
(ix) by inserting at the beginning of mining
regulations 41(c) and (f) the words “subject to the agreement approved
by and scheduled to the Iron Ore (Hamersley Range) Agreement Act 1963 , as
from time to time added to, varied or amended”.
(h) If additional proposals are approved in
accordance with subclause (5) for the construction of a Railway spur line
outside the then Railway Corridor, the Minister for Mines shall include the
area of land within which such construction is to occur in the Special Railway
Licence by endorsement. The area of such land may be included notwithstanding
that the survey of the land has not been completed but subject to correction
to accord with the survey when completed at the Company’s expense.
(i) If additional proposals are approved in
accordance with subclause (5) for the construction of Train Loading
Infrastructure or Train Unloading Infrastructure outside the then Railway
Corridor, the Minister for Mines shall include the area of such land within
which such infrastructure is approved for construction in the Special Railway
Licence by endorsement. The area of such land may be included notwithstanding
that the survey of the land has not been completed but subject to correction
to accord with the survey when completed at the Company’s expense.
(j) The provisions of this subclause shall not
operate so as to require the State to cause a Special Railway Licence or a
Lateral Access Road Licence to be granted or any land included in the Special
Railway Licence as mentioned above until all processes necessary under any
laws relating to native title to enable that grant or inclusion of land to
proceed, have been completed.
Construction and operation of Railway
(7) (a) Subject to and in accordance with approved proposals, the Rail
Safety Act and the grant of the relevant Special Railway Licence and any
associated Lateral Access Road Licences the Company shall in a proper and
workmanlike manner and in accordance with recognised standards for railways of
a similar nature operating under similar conditions construct the Railway and
associated Additional Infrastructure and access roads within the Railway
Corridor and shall also construct inter alia any necessary sidings, crossing
points, bridges, signalling switches and other works and appurtenances and
provide for crossings and (where appropriate and required by the Minister)
grade separation or other protective devices including flashing lights and
boom gates at places where the Railway crosses or intersects with major roads
or existing railways.
(b) The Company shall while the holder of a
Special Railway Licence:
(i) keep the Railway the subject of that licence
in an operable state; and
(ii) ensure that the Railway the subject of that
licence is operated in a safe and proper manner in compliance with all
applicable laws from time to time; and
(iii) without limiting subparagraph (ii) ensure
that the obligations imposed under the Rail Safety Act on an owner and an
operator (as those terms are therein defined) are complied with in connection
with the Railway the subject of that licence.
Nothing in this Agreement shall be construed to
exempt the Company or any other person from compliance with the
Rail Safety Act or limit its application to the Company’s operations
generally (except as otherwise may be provided in that Act or regulations made
under it).
(c) The Company shall provide crossings for
livestock and also for any roads, other railways, conveyors, pipelines and
other utilities which exist at the date of grant of the relevant Special
Railway Licence or in respect of land subsequently included in it at the date
of such inclusion and the Company shall on reasonable terms and conditions
allow such crossings for roads, railways, conveyors, pipelines and other
utilities which may be constructed for future needs and which may be required
to cross a Railway constructed pursuant to this clause.
(d) Subject to clause 10M, the Company shall at
all times be the holder of Special Railway Licences and Lateral Access Road
Licences granted pursuant to this clause and (without limiting clause 11(j)
but subject to clause 10M) shall at all times own manage and control the use
of each Railway the subject of a Special Railway Licence held by the Company.
(e) The Company shall not be entitled to exclusive
possession of the land the subject of a Special Railway Licence or Lateral
Access Road Licence granted pursuant to this clause to the intent that the
State, the Minister, the Minister for Mines and any persons authorised by any
of them from time to time shall be entitled to enter upon the land or any part
of it at all reasonable times and on reasonable notice with all necessary
vehicles, plant and equipment and for purposes related to this Agreement or
such other purposes as they think fit but in doing so shall be subject to the
reasonable directions of the Company so as not to unreasonably interfere with
the Company’s operations.
(f) The Company’s ownership of a Railway
constructed pursuant to this clause shall not give it an interest in the land
underlying it.
(g) The Company shall not at any time without the
prior consent of the Minister dismantle, sell or otherwise dispose of any part
or parts of any Railway constructed pursuant to this clause, or permit this to
occur, other than for the purpose of maintenance, repair, upgrade or renewal.
(h) The Company shall, subject to and in
accordance with approved proposals, in a proper and workmanlike manner,
construct any Additional Infrastructure, access roads, Lateral Access Roads
and other works approved for construction under this clause.
(i) The Company shall while the holder of a
Special Railway Licence at all times keep and maintain in good repair and
working order and condition (which obligation includes, where necessary,
replacing or renewing all parts which are worn out or in need of replacement
or renewal due to their age or condition) the Railway, access roads and
Additional Infrastructure (if any) the subject of that licence and all such
other works installations plant machinery and equipment for the time being the
subject of this Agreement and used in connection with the operation use and
maintenance of that Railway, access roads and Additional Infrastructure (if
any).
(j) Subject to clause 10M, the Company shall:
(i) be responsible for the cost of construction
and maintenance of all Private Roads constructed pursuant to this clause; and
(ii) at its own cost erect signposts and take
other steps that may be reasonable in the circumstances to prevent any persons
and vehicles (other than those engaged upon the Company’s activities and
its invitees and licensees) from using the Private Roads; and
(iii) at any place where any Private Roads are
constructed by the Company so as to cross any railways or public roads provide
at its cost such reasonable protection and signposting as may be required by
the Commissioner of Main Roads or the Public Transport Authority as the case
may be.
(k) The provisions of clauses 10(2)(a) and (3)
regarding third party access as well as the proviso to clause 10(2)(a) shall
apply mutatis mutandis to any Railway or Railway spur line constructed
pursuant to this clause except that the Company shall not be obliged to
transport passengers upon any such Railway or Railway spur line.
Aboriginal Heritage Act 1972 (WA)
(8) For the purposes of this clause the
Aboriginal Heritage Act 1972 (WA) applies as if it were modified by:
(a) the insertion before the full stop at the end
of section 18(1) of the words:
“and the expression “the Company” means the persons from
time to time comprising “the Company” in their capacity as such
under the agreement approved by and scheduled to the Iron Ore (Hamersley
Range) Agreement Act 1963 , as from time to time added to, varied or amended
in relation to the use or proposed use of land pursuant to clause 10N of that
agreement after and in accordance with approved proposals under clause 10N of
that agreement and in relation to the use of that land before any such
approval of proposals where the Company has the requisite authority to enter
upon and so use the land”;
(b) the insertion in sections 18(2), 18(4), 18(5)
and 18(7) of the words “or the Company as the case may be” after
the words “owner of any land”;
(c) the insertion in section 18(3) of the words
“or the Company as the case may be” after the words “the
owner”;
(d) the insertion of the following sentences at
the end of section 18(3):
“In relation to a notice from the Company
the conditions that the Minister may specify can as appropriate include, among
other conditions, a condition restricting the Company’s use of the
relevant land to after the approval or deemed approval as the case may be
under the abovementioned agreement of all of the Company’s submitted
initial proposals thereunder for the Railway Operation (as defined in clause
10N(1) of the abovementioned agreement), or in the case of additional
proposals submitted or to be submitted by the Company to after the approval or
deemed approval under that agreement of such additional proposals, and to the
extent so approved.”; and
(e) the insertion in sections 18(2) and 18(5) of
the words “or it as the case may be” after the word
“he”.
The Company acknowledges that nothing in this subclause (8) nor the granting
of any consents under section 18 of the Aboriginal Heritage Act 1972 (WA)
will constitute or is to be construed as constituting the approval of any
proposals submitted or to be submitted by the Company under this Agreement or
as the grant or promise of land tenure for the purposes of this Agreement.
Taking of land for the purposes of this clause
(9) (a) The State is hereby empowered, as and for a public work under
Parts 9 and 10 of the LAA, to take for the purposes of this clause any land
(other than any part of a Port) which in the opinion of the Company is
necessary for the relevant Railway Operation and which the Minister determines
is appropriate to be taken for the relevant Railway Operation (except any land
the taking of which would be contrary to the provisions of a Government
agreement entered into before the submission of the proposals relating to the
proposed taking) and notwithstanding any other provisions of that Act may
license that land to the Company.
(b) In applying Parts 9 and 10 of the LAA for the
purposes of this clause:
(i) “land” in that Act includes a
legal or equitable estate or interest in land;
(ii) sections 170, 171, 172, 173, 174, 175 and 184
of that Act do not apply; and
(iii) that Act applies as if it were modified in
section 177(2) by inserting -
(A) after “railway” the following -
“or land is being taken pursuant to a
Government agreement as defined in section 2 of the
Government Agreements Act 1979 (WA)”; and
(B) after “that Act” the following -
“or that Agreement as the case may
be”.
(c) The Company shall pay to the State on demand
the costs of or incidental to any land taken at the request of and on behalf
of the Company including but not limited to any compensation payable to any
holder of native title or of native title rights and interests in the land.
Notification of Railway Operation Date
(10) (a) The Company shall from the date occurring 6 months before the
date for completion of construction of a Railway specified in its time program
for the commencement and completion of construction of that Railway submitted
under subclause (4)(a), keep the Minister fully informed as to:
(i) the progress of that construction and its
likely completion and commissioning; and
(ii) the likely Railway Operation Date.
(b) The Company shall on the Railway Operation
Date notify the Minister that the first carriage of iron ore, freight goods or
other products as the case may be over the Railway (other than for
construction or commissioning purposes) has occurred.
(c) The Company shall from the date occurring 6
months before the date for completion of construction of a Railway spur line
specified in its time program for the commencement and completion of
construction of that spur line submitted under subclause (5)(c) keep the
Minister fully informed as to:
(i) the progress of that construction and its
likely completion and commissioning; and
(ii) in respect of it, the likely Railway spur
line Operation Date.
(d) The Company shall on the Railway spur line
Operation Date in respect of any Railway spur line notify the Minister that
the first carriage of iron ore, freight goods or other products as the case
may be over such spur line (other than for construction or commissioning
purposes) has occurred.”;
(21) In clause 11(a) by deleting the comma at the
end of subparagraph (iv) and substituting a semi colon followed by:
“(v) in relation to electrical energy but
not water, the Company for the purpose of supply to:
(A) “the Company” or “Joint
Venturers” as the case may be as defined in, and for the purpose of an
Integration Agreement, for its or their purposes thereunder;
(B) the holders from time to time of a
Mining Act 1978 mining lease located in, or proximate to, the Pilbara region
of the said State which is held by a Related Entity alone or with a third
party or parties (excluding any mining lease granted pursuant to, or held
under, a Government agreement) for the purpose of their iron ore mining
operations on that mining lease; and
(C) with the prior approval of the Minister,
“the Company” or “the Joint Venturers” as the case may
be as defined in, and for the purpose of a Government agreement (excluding an
Integration Agreement) for the mining of iron ore in, or proximate to, the
Pilbara region of the said State for the purpose of its or their operations
under that agreement,”;
(22) in clause 11(d)(1) by inserting “or
held pursuant hereto after “granted hereunder or pursuant hereto”;
(23) in clause 11(1)(e) by:
(a) inserting “or pursuant hereto”
after “granted hereunder”; and
(b) inserting “or held pursuant
hereto” after “clause 20 hereof of land”;
(24) in clause 11(1) by:
(a) inserting “granted under or pursuant to
this Agreement, or held pursuant to this Agreement” after the first
reference to “licence or other title”;
(b) inserting “or held pursuant
hereto” after the subsequent 2 references to “granted hereunder or
pursuant hereto”; and
(c) deleting “occupied by the Company”
and substituting “the subject of any lease, licence, easement or other
title granted under or pursuant to this Agreement, or held pursuant to this
Agreement”;
(25) by inserting the following sentence at the
end of clause 19:
“As a separate independent indemnity 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 of third parties arising out of or
in connection with any use, making available for use or other activities of
the Company as referred to in clause 10L.”;
(26) in clause 20A(a) by inserting “or held
pursuant hereto” after “granted hereunder or pursuant
hereto”;
(27) in clause 21 inserting “or held
pursuant hereto” after “granted hereunder or pursuant
hereto”;
(28) by deleting clause 30; and
(29) by inserting after the Second Schedule the
following new schedules:
“ THIRD SCHEDULE
WESTERN AUSTRALIA
IRON ORE (HAMERSLEY RANGE) AGREEMENT ACT 1963
MISCELLANEOUS LICENCE FOR A RAILWAY AND OTHER PURPOSES
No. MISCELLANEOUS LICENCE [ ]
WHEREAS by the Agreement (hereinafter called “the Agreement”)
approved by and scheduled to the Iron Ore (Hamersley Range) Agreement Act
1963 , as from time to time added to, varied or amended,
the State agreed to grant to [ ]
(hereinafter with its successors and permitted assigns called “the
Company”) a miscellaneous licence for the construction operation and
maintenance of a Railway (as defined in clause 10N(1) of the Agreement and
otherwise as provided in the Agreement) and, if applicable, other purposes AND
WHEREAS the Company pursuant to clause 10N(6)(a) of the Agreement has made
application for the said licence;
NOW in consideration of the rents reserved by and the provisions of the
Agreement and in pursuance of the Iron Ore (Hamersley Range) Agreement Act
1963 , as from time to time added to, varied or amended, the Company is hereby
granted by this licence authority to conduct on the land the subject of this
licence as more particularly delineated and described from time to time in the
Schedule hereto all activities (including the taking of stone, sand, clay and
gravel, the provision of temporary accommodation facilities for the railway
workforce in accordance with the Agreement and, subject to the Rights in Water
and Irrigation Act 1914 (WA), the operation of water bores) necessary for the
planning, design, construction, commissioning, operation and maintenance on
the land the subject of this licence of the Railway and Additional
Infrastructure (as defined in clause 10N(1) of the Agreement) and access roads
to be located on the land the subject of this licence in accordance with the
provisions of the Agreement and proposals approved under the Agreement, for
the term of 50 years from the date hereof (subject to the sooner determination
of the term upon the determination of the Agreement) and upon and subject to
the terms covenants and conditions set out in the Agreement and the
Mining Act 1978 as it applies to this licence, and any amendments to the
Agreement and the Mining Act 1978 from time to time and to the terms and
conditions (if any) now or hereafter endorsed hereon and the payment of
rentals in respect of this licence in accordance with clause 10N(6)(a)(i) of
the Agreement PROVIDED ALWAYS that this licence shall not be determined or
forfeited otherwise than in accordance with the Agreement.
In this licence:
- If the Company be more than one the liability of
the Company hereunder shall be joint and several.
- Reference to an Act includes all amendments to
that Act for the time being in force and also any Act passed in substitution
therefore or in lieu thereof and to the regulations and by-laws of the time
being in force thereunder.
- Reference to “the Agreement” means
such agreement as from time to time added to, varied or amended.
- The terms “approved proposals”,
“Railway”, “Railway Operation Date”, and
“Railway spur line” have the meanings given in the Agreement.
ENDORSEMENTS AND CONDITIONS
Endorsements
1. This licence is granted in accordance with
proposals submitted on
[ ], and approved by the Minister (as
defined in the Agreement) on [ ], under the
Agreement.
2. The Company is permitted to, in accordance with
approved proposals, take stone, sand, clay and gravel from the land the
subject of this licence for the construction, operation and maintenance of the
Railway (including any Railway spur line) constructed within or approved for
construction within the area of land the subject of this licence.
3. Notwithstanding the Mining Act 1978 , no
royalty shall be payable under the Mining Act 1978 in respect of stone, sand,
clay and gravel which the Company is permitted by the Agreement to obtain from
the land the subject of this licence.
4. [Any further endorsement which the Minister for
Mines may, consistent with the provisions of the Agreement, determines and
thereafter impose in respect of this licence including during the term of the
Agreement.]
Conditions
1. (a)
Except as provided in paragraph (b), the Company shall within 2 years after
the Railway Operation Date surrender in accordance with the provisions of the
Mining Act 1978 the area of this licence down to a maximum of 100 metres width
or as otherwise approved by the Minister (as defined in the Agreement) for the
safe operation of the Railway then constructed or approved for construction
under approved proposals.
(b)
Paragraph (a) shall not apply to land the subject of this licence that was
included in this licence pursuant to clause 10N(6)(h) or clause 10N(6)(i) of
the Agreement.
2. The Company shall as soon as possible after the
construction of a Railway spur line or of an expansion or extension thereof as
the case may be surrender in accordance with the Mining Act 1978 the land the
subject of this licence that was included in this licence pursuant to clause
10N(6)(h) of the Agreement for the purpose of such construction down to a
maximum of 100 metres in width or as otherwise approved by the Minister (as
defined in the Agreement) for the safe operation of that Railway spur line or
expansion or extension thereof as the case may be then constructed or approved
for construction under approved proposals.
3. [Any further conditions which the Minister for
Mines may, consistent with the provisions of the Agreement, determines and
thereafter impose in respect of this licence including during the term of the
Agreement.]
SCHEDULE
Land description
Locality:
Mineral Field
Area:
DATED at Perth this day of
.
MINISTER FOR MINES
FOURTH SCHEDULE
WESTERN AUSTRALIA
IRON ORE (HAMERSLEY RANGE) AGREEMENT ACT 1963
MISCELLANEOUS LICENCE FOR A LATERAL ACCESS ROAD
No. MISCELLANEOUS LICENCE [ ]
WHEREAS by the Agreement (hereinafter called “the Agreement”)
approved by and scheduled to the Iron Ore (Hamersley Range) Agreement Act
1963 , as from time to time added to, varied or amended, the State agreed to
grant to
[ ] (hereinafter with its successors
and permitted assigns called “the Company”) a miscellaneous
licence for the construction use and maintenance of a Lateral Access Road (as
defined in the Agreement) AND WHEREAS the Company pursuant to clause
10N(6)(a)(ii) of the Agreement has made application for the said licence;
NOW in consideration of the rents reserved by and the provisions of the
Agreement and in pursuance of the Iron Ore (Hamersley Range) Agreement Act
1963 , as from time to time added to, varied or amended, the Company is hereby
authorised to construct use and maintain a road on the land more particularly
delineated and described from time to time in the Schedule hereto in
accordance with the provisions of the Agreement and proposals approved under
the Agreement for a term of 4 years commencing on the date hereof (subject to
the sooner determination of the term upon the cessation or determination of
the Agreement) and for the purposes and upon and subject to the terms
covenants and conditions set out in the Agreement and the Mining Act 1978 as
it applies to this licence, and any amendments to the Agreement and the
Mining Act 1978 from time to time and to the terms and conditions (if any) now
or hereafter endorsed hereon and the payment of rentals in respect of this
licence in accordance with clause 10N(6)(a)(ii) of the Agreement PROVIDED
ALWAYS that this licence shall not be determined or forfeited otherwise than
in accordance with the Agreement.
In this licence:
- If the Company be more than one the liability of
the Company hereunder shall be joint and several.
- Reference to an Act includes all amendments to
that Act for the time being in force and also any Act passed in substitution
therefore or in lieu thereof and to the regulations and by-laws of the time
being in force thereunder.
- Reference to “the Agreement” means
such agreement as from time to time added to, varied or amended.
ENDORSEMENTS AND CONDITIONS
Endorsements
1. This licence is granted in accordance with
proposals submitted on
[ ], and approved by the Minister (as defined in the
Agreement) on [ ], under the Agreement.
2. [Any further endorsement which the Minister for
Mines may, consistent with the provisions of the Agreement, determines and
thereafter impose in respect of this licence including during the term of the
Agreement.]
Conditions
[Such conditions which the Minister for Mines may, consistent with the
provisions of the Agreement, determines and thereafter impose in respect of
the licence, including during the term of the Agreement.]
SCHEDULE
Description of land
Locality:
Mineral Field:
Area:
DATED at Perth this day of
.
MINISTER FOR MINES
FIFTH SCHEDULE
WESTERN AUSTRALIA
IRON ORE (HAMERSLEY RANGE) AGREEMENT ACT 1963
MISCELLANEOUS LICENCE FOR A LATERAL ACCESS ROAD
No. MISCELLANEOUS LICENCE [ ]
WHEREAS by the Agreement (hereinafter called “the Agreement”)
approved by and scheduled to the Iron Ore (Hamersley Range) Agreement Act
1963 , as from time to time added to, varied or
amended, the State agreed to grant to [ ]
(hereinafter with its successors and permitted assigns called “the
Company”) a miscellaneous licence for the construction use and
maintenance of a Lateral Access Road (as defined in the Agreement) AND WHEREAS
the Company pursuant to clause 10N(6)(b) of the Agreement has made application
for the said licence;
NOW in consideration of the rents reserved by and the provisions of the
Agreement and in pursuance of the Iron Ore (Hamersley Range) Agreement Act
1963 , as from time to time added to, varied or amended, the Company is hereby
authorised to construct use and maintain a road on the land more particularly
delineated and described from time to time in the Schedule hereto in
accordance with the provisions of the Agreement and proposals approved under
the Agreement for a term of 4 years commencing on the date hereof (subject to
the sooner determination of the term upon the cessation or determination of
the Agreement) and for the purposes and upon and subject to the terms
covenants and conditions set out in the Agreement and the Mining Act 1978 as
it applies to this licence, and any amendments to the Agreement and the
Mining Act 1978 from time to time and to the terms and conditions (if any) now
or hereafter endorsed hereon and the payment of rentals in respect of this
licence in accordance with clause 10N(6)(b) of the Agreement PROVIDED ALWAYS
that this licence shall not be determined or forfeited otherwise than in
accordance with the Agreement.
In this licence:
- If the Company be more than one the liability of
the Company hereunder shall be joint and several.
- Reference to an Act includes all amendments to
that Act for the time being in force and also any Act passed in substitution
therefore or in lieu thereof and to the regulations and by-laws of the time
being in force thereunder.
- Reference to “the Agreement” means
such agreement as from time to time added to, varied or amended.
ENDORSEMENTS AND CONDITIONS
Endorsements
1. This licence is granted in accordance with
proposals submitted on
[ ], and approved by the Minister (as defined in the
Agreement) on [ ], under the Agreement.
2. [Any further endorsement which the Minister for
Mines may, consistent with the provisions of the Agreement, determines and
thereafter impose in respect of this licence including during the term of the
Agreement.]
Conditions
[Such conditions which the Minister for Mines may, consistent with the
provisions of the Agreement, determines and thereafter impose in respect of
the licence, including during the term of the Agreement.]
SCHEDULE
Description of land
Locality:
Mineral Field:
Area:
DATED at Perth this day of
.
MINISTER FOR MINES ”
EXECUTED as a deed.
SIGNED by THE HONOURABLE )
COLIN JAMES BARNETT
) [Signature]
in the presence of: )
[Signature] |
STEPHEN WOOD |
THE COMMON SEAL of )
HAMMERSLEY IRON PTY. LIMITED
) [C.S.]
ACN 004 558
276 was hereunto affixed )
by authority of the
Directors in the )
presence of: )
[Signature] | |
ALAN DAVIES |
Director | | |
[Signature] | |
HELEN FERNIHOUGH |
Secretary | | |
[Twelfth Schedule inserted: No. 61 of 2010 s. 6.]