[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 1968
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 parties to the
agreement dated 8 October 1968, approved by and scheduled to the
Iron Ore (Hamersley Range) Agreement Act Amendment Act 1968 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 in to operation then
unless the parties otherwise agree this Agreement shall cease and determine
and neither party shall have any claim against the other 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 varied:
(1) in clause 1:
(a) by inserting in the appropriate alphabetical
positions the following new definitions:
“approved proposal” means a proposal approved or determined under
this Agreement;
“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;
“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;
(b) in the definition of “mineral
lease” by inserting “and any areas added to it pursuant to clause
7B” before the semi colon;
(c) in the sentence beginning “References to
this Agreement” by deleting “amended” and inserting
“added to, varied or amended” after “from time to time;
(d) in the sentence beginning “Words and
phrases” by inserting “from time to time” after
“meanings are”;
(e) in the sentence beginning “Marginal
notes” by inserting “and clause headings” after notes; and
(f) by inserting after the sentence referred to in
clause 4(1)(e) 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 5 the following new
clauses:
“ Additional proposals
5A. (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 clause 7E)
beyond those activities specified in any proposals approved pursuant to clause
5 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 4(1) 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 5B, 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 5A
5B. (1) In respect of
each proposal pursuant to subclause (1) of clause 5A 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 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 5A(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 7C
for the purpose of that clause) as contemplated by clause 7C. It may not be so
exercised in respect of a proposal if pursuant to clause 5C(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 5C(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 5C(5) in respect of that single preferred
development.
(2) The Minister shall within 2 months after
receipt of proposals pursuant to clause 5A(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 the 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 of the Principal
Agreement (as applying to this Agreement pursuant to clause 11(11)), the
Minister may during the implementation of approved proposals approve
variations to those proposals.
Notification of possible proposals
5C. (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 7C) 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 7C for the purpose of
that clause) as contemplated by clause 7C.
(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:
(i) that the Minister has no public interest
concerns with the single preferred development; or
(ii) 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 clause 6(2)(b):
(a) by deleting in line 1 “the said
proposals” and substituting “approved proposals”;
(b) in subparagraph (i) by:
(A) inserting “or cause to be granted”
after “grant”;
(B) inserting after the paragraph beginning
“at peppercorn rental” the following new paragraph:
“at commercial rentals, licence or easement fees as applicable –
leases, licences or easements within the Port of Dampier; and”;
(C) inserting “or under the
Port Authorities Act 1999 (WA)” after “(3) of this clause
provided”; and
(D) inserting “installations or
facilities” after “as the Company reasonably requires for its
works”; and
(c) in the proviso by deleting “or (as the
case may be) all iron ore concentration products” and “or iron ore
concentration products”;
(4) by inserting after subclause (4) of clause 6
the following new subclause:
“(4a) The provisions of subclause (2) 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) in clause 7(4):
(a) by inserting “(ea),” after
“(e),”;
(b) after “(k)” by inserting a comma
and deleting “and”; and
(c) after “(n)” by inserting
“and (o)”;
(6) in clause 7(7) by:
(a) deleting paragraph (a) and substituting the
following new paragraph (a):
“(a) The Company may blend iron ore mined
from the mineral lease 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.”; and
(b) in paragraph (b):
(i) deleting “there is” and
substituting “there are”;
(ii) deleting “between the relevant
Government agreements”; and
(iii) deleting “blended and” and
substituting “blended as between each of the sources referred to in
paragraph (a),”;
(7) by inserting in clause 7A “and in clause
10A(3a) the references to “clauses 8A(2) to (5) and of 8B” were to
“clauses 5A(2) to (5) and of 5B” before the full stop at the end
of that clause;
(8) by inserting after clause 7A the following new
clauses:
“ Additional areas
7B. (1)
Notwithstanding the provisions of the Mining Act 1904 or the Mining Act 1978
the Company may from time to time during the currency of this Agreement apply
to the Minister for areas held by the Company or an associated company under a
mining tenement granted under the Mining Act 1978 to be included in the
mineral lease but so that the total area of the mineral lease, any land that
may be included in the mineral lease pursuant to this Agreement and of any
other mineral lease or mining lease granted under or pursuant to this
Agreement (as aggregated) shall not at any time exceed 777 square kilometres.
The Minister shall confer with the Minister for Mines in regard to any such
application and if they approve the application the Minister for Mines shall
upon the surrender of the relevant mining tenement include the area the
subject thereof in the mineral lease by endorsement subject to such of the
conditions of the surrendered mining tenement as the Minister for Mines
determines but otherwise subject to the same terms covenants and conditions as
apply to the mineral lease (with such apportionment of rents as is necessary)
and notwithstanding that the survey of such additional land has not been
completed but subject to correction to accord with the survey when completed
at the Company’s expense.
(2) 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.
(3) The Company shall not mine or carry out other
activities (other than exploration, bulk sampling and testing) on any area or
areas added to the mineral lease pursuant to subclause (1) of this clause
unless and until proposals with respect thereto are approved or determined
pursuant to the subsequent provisions of this clause.
(4) If the Company desires to commence mining of
iron ore or to carry out any other activities (other than as aforesaid) on the
said areas it shall give notice of such desire to the Minister and shall
within 2 months of the date of such notice (or thereafter within such extended
time as the Minister may allow as hereinafter provided) and subject to the
provisions of this Agreement submit to the Minister to the fullest extent
reasonably practicable its detailed proposals (which proposals shall include
plans where practicable and specifications where reasonably required by the
Minister) with respect to such mining or other activities as additional
proposals pursuant to clause 5A.
Integrated use of works installations or facilities under the Integration
Agreements
7C. (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 7(7)) of:
(A) iron ore mined from a Mining Act 1978 mining
lease located in 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
for 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 5A and
5B or clause 7E 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 7E; 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 5B
and 7E, 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 of the Principal Agreement (as applying pursuant to clause 11(1)).
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, clause 20 of the
Principal Agreement (as applying pursuant to clause 11(1)) 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
7D. (1) For the
purposes of this clause “Relevant Infrastructure” means any works
installations or facilities (as defined in clause 7C(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 5A 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 5B 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 12 and
while such notice remains unsatisfied.
Miscellaneous Licences for Railways
7E. (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 of the
Principal Agreement (as applying pursuant to clause 11(2c)) 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, of the Principal
Agreement (as applying pursuant to clause 11(1)), 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 5B 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 5B 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 Amendment Act 1968
, 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 7E(6)(a)(i), clause 7E(6)(a)(ii) or clause 7E(6)(b), of 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”;
(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 Amendment Act 1968 , 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 Amendment Act 1968 , 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 Amendment Act 1968
, 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 Amendment
Act 1968 , 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 7D, 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) of
the Principal Agreement (as applying pursuant to clause 8) but subject to
clause 7D) 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 7D, 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(2a) and (3) of
the Principal Agreement (as applying pursuant to clause 7(4) 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 Amendment Act 1968 , as from time to time added to,
varied or amended in relation to the use or proposed use of land pursuant to
clause 7E of that agreement after and in accordance with approved proposals
under clause 7E 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 7E(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.”;
(9) by inserting at the end of clause 11(1) the
following new
sentence:
“In addition clause 19 of the Principal Agreement shall apply to and be
deemed incorporated in this Agreement as if the reference in the last sentence
of that clause to “10L” was to “7C”;
(10) In clause 12:
(a) by inserting “granted under or pursuant
to this Agreement or held pursuant to this Agreement” after “any
lease sublease licence or other title”;
(b) by inserting “or held pursuant
hereto” before “shall thereupon determine”;
(c) in paragraph (a) by 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;
(d) in paragraph (c) by:
(i) inserting “granted under or pursuant to
this Agreement or held pursuant to this Agreement” after “any
lease sublease licence or other title”; and
(ii) inserting “or held pursuant
thereto” after “granted thereunder or pursuant thereto”;
(11) by deleting clause 16; and
(12) by inserting after the Second Schedule the
following schedules:
“ THIRD SCHEDULE
WESTERN AUSTRALIA
IRON ORE (HAMERSLEY RANGE) AGREEMENT
ACT AMENDMENT ACT 1968
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
Amendment Act 1968 , 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 7E(1) of the Agreement and otherwise as provided
in the Agreement) and, if applicable, other purposes AND WHEREAS the Company
pursuant to clause 7E(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
Amendment Act 1968 , 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 7E(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
7E(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
7E(6)(h) or clause 7E(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
7E(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
AMENDMENT ACT 1968
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
Amendment Act 1968 , 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 7E(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
Amendment Act 1968 , 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 7E(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 AMENDMENT ACT 1968
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
Amendment Act 1968 , 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 7E(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
Amendment Act 1968 , 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 7E(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 | | |
[Thirteenth Schedule inserted: No. 61 of 2010 s.
6.]