Western Australian Current Acts Western Australian Current Acts[s. 2]
[Heading inserted: No. 61 of 2010 s. 10.]
2010
THE HONOURABLE COLIN JAMES BARNETT
PREMIER OF THE STATE OF WESTERN AUSTRALIA
AND
ROBE RIVER LIMITED
ACN 008 478 493
ROBE RIVER MINING CO PTY. LIMITED
ACN 008 694 246
MITSUI IRON ORE DEVELOPMENT PTY. LTD.
ACN 008 734 361
NORTH MINING LIMITED
ACN 000 081 434
NIPPON STEEL AUSTRALIA PTY. LTD.
ACN 001 445 049
SUMITOMO METAL AUSTRALIA PTY. LTD.
ACN 001 444 604
IRON ORE (ROBE RIVER) AGREEMENT 1964
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
ROBE RIVER LIMITED ACN 008 478 493 of Level 33, 120 Collins Street, Melbourne,
Victoria ( RRL )
AND
ROBE RIVER MINING CO PTY. LIMITED ACN 008 694 246 of Level 27, Central Park,
152 - 158 St George’s Terrace, Perth, Western Australia (RRMC) ,
MITSUI IRON ORE DEVELOPMENT PTY. LTD. ACN 008 734 361 of Level 26, Exchange
Plaza, 2 The Esplanade, Perth, Western Australia ( Mitsui ),
NORTH MINING LIMITED ACN 000 081 434 of Level 33, 120 Collins Street,
Melbourne, Victoria ( NML ),
NIPPON STEEL AUSTRALIA PTY. LTD. ACN 001 445 049 of Level 24, 1 York Street,
Sydney, New South Wales, SUMITOMO METAL AUSTRALIA PTY. LTD. ACN 001 444 604 of
Level 39, Australia Square, 264 George Street, Sydney, New South Wales, and
the said MITSUI IRON ORE DEVELOPMENT PTY. LTD. which 3 companies carry on
business under the name of Cape Lambert Iron Associates ( CLIA ), and
the said NIPPON STEEL AUSTRALIA PTY LTD and SUMITOMO METAL AUSTRALIA PTY LTD
which 2 companies carry on business together under the name Pannawonica Iron
Associates ( PIA ).
(RRMC, Mitsui, NML, CLIA and PIA are collectively referred to in this
Agreement as the Robe Participants .)
RECITALS
A. The State, RRL and the Robe Participants are
now the parties to the agreement dated 18 November 1964, approved by and
scheduled to the Iron Ore (Robe River) Agreement Act 1964 and which as
subsequently added to, varied or amended is referred to in this Agreement as
the “ Principal Agreement ”.
B . The parties wish to vary the Principal
Agreement.
Operative provisions
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 introduce and 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 none of the parties shall have any claim against the other
parties 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 as follows:
(1) in clause 1:
(a) by deleting the current definition of
“direct shipping ore”, “fine ore” and
“fines”;
(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 ” 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;
“ EP Act ” means the Environmental Protection Act 1986 (WA);
“ fine ore ” means iron ore (not being beneficiated ore or
pisolite fine 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;
“ iron ore ” includes, without limitation, beneficiated ore;
“ 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 or
pisolite fine ore) which is screened and will not pass through a 6.3
millimetre mesh screen;
“ metallised agglomerates ” means products resulting from the
reduction of iron ore by any method whatsoever and having an iron content of
not less than 85%;
“ Minister for Mines” means the Minister in the Government of the
said State for the time being responsible (under whatsoever title) for the
administration of the Mining Act 1978 (WA);
“ pisolite fine ore ” means iron ore (not being beneficiated ore)
derived from channel iron deposits that appear to be chemically precipitated
sedimentary deposits comprised of a pisolitic texture of hematite grains
rimmed with geothite in a geothitic matrix and:
(a) having a product grade loss on ignition of
8.5% or greater; and
(b) which will pass through an 9.5 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; and
“ 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 “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 9(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 9(2)(e) and (f) also any
additional wharf constructed by the Company pursuant to this Agreement”
before the semi colon;
(e) in the definition of “f.o.b.
value” by:
(i) in paragraph (i):
(A) inserting “subject to paragraph
(ii)”, before “in the case of”; and
(B) deleting “assessed as” and
substituting “assessed on”;
(ii) renumbering 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 9(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; and”;
(f) 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;”;
(g) in the definition of “mineral
lease” by deleting “clause 10A” and substituting
“clauses 9A or 10A”;
(h) in the definition of “secondary
processing” by deleting “concentration or other beneficiation of
iron ore other than by crushing or screening” and substituting
“beneficiation of iron ore”;
(i) in the sentence beginning “marginal
notes”, by inserting “and clause notes” after
“marginal notes”; and
(j) by inserting at the end of clause 1 the
following new paragraphs:
“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 deleting clauses 7A and 7AB and
substituting the following new clauses:
“7A. (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
7AC, 7C or 9D) beyond those activities specified in any proposals approved
pursuant to clause 6 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(2)(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 7AB, 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 7A
7AB.(1) In respect of each proposal pursuant to
subclause (1) of clause 7A 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 7A(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 9B for the purpose of that clause) as
contemplated by clause 9B. It may not be so exercised in respect of a proposal
if pursuant to clause 7AD(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 7AD(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
7AD(5) in respect of that single preferred development.
(2) The Minister shall within 2 months after
receipt of proposals pursuant to clause 7A(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 referrable 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 14, the Minister may
during the implementation of approved proposals approve variations to those
proposals.”;
(3) by inserting after clause 7AC the following
new clause:
“ Notification of possible proposals
7AD. (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 9B) 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 9B for the
purpose of that clause) as contemplated by clause 9B.
(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.”;
(4) in clause 8(1)(b) by:
(a) in the second line deleting “clause
6” and substituting “clauses 6 or 7AB”;
(b) in subparagraph (i):
(i)
inserting “or cause to be granted” after
“granted”;
(ii)
in the paragraph beginning “at peppercorn
rental”, deleting “the harbour area”;
(iii)
inserting after that paragraph the following new
paragraph:
“at commercial rentals, licence or easement fees as applicable –
leases, licences or easements within Port Walcott; and”,
(iv)
inserting “, the Marine and Harbours Act 1981 (WA
) ” after “ Jetties Act 1926 ”; and
(v) inserting “installations or
facilities” before “and operations hereunder”; and
(c) in the proviso following subparagraph (iii):
(A) deleting “and iron ore concentrates and
iron ore pellets” after “all iron ore”; and
(B) deleting “or in the case of iron ore or
concentrates production as the case may be of the iron or iron ore
concentrates or iron ore pellets” and substituting “of the iron
ore”;
(5) by inserting after subclause (3) of clause 8
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.”;
(6) by deleting paragraph (e) of clause 9(2) and
substituting the following new paragraphs:
“(e) ship, or procure the shipment of, all
iron ore mined from the mineral lease and 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 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;”;
(7) by deleting paragraph (j) of clause 9(2) and
substituting the following new paragraph:
“(j) pay to the State royalty on all iron
ore from the mineral lease (other than iron ore shipped solely for testing
purposes) as follows:
(i) on lump ore and on fine ore and pisolite fine
ore not sold or shipped separately as such at the rate of 7.5% of the f.o.b.
value;
(ii) on fine ore and pisolite fine ore sold or
shipped separately as such at the rate of 5.625% of the f.o.b. value;
(iii) on beneficiated ore at the rate of 5% of the
f.o.b. value; and
(iv) on all other iron ore at the rate of 7.5% of
the f.o.b. value.
Where beneficiated ore is produced from an admixture of iron ore from the
mineral lease and iron ore from elsewhere, a portion (and a portion only) of
the beneficiated ore so produced being equal to the proportion that the amount
of the iron in the iron ore from the mineral lease used in the production of
that beneficiated ore bears to the total amount of iron in the iron ore so
used shall be deemed to be produced from iron ore from the mineral lease.
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;”;
(8) in clause 9(2)(k):
(a) by deleting “or iron ore pellets or iron
ore concentrates”;
(b) by 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 paragraph
(j)” after “the due date of return”; and
(c) by deleting all the words after “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; and
(ii) in any other case, invoices or provisional
invoices (as the case may be) rendered by the Company to the purchaser (which
invoices the Company shall render without delay simultaneously furnishing
copies thereof to the Minister) of such iron ore 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. values shall have
been finally calculated, agreed or determined;”;
(9) in clause 9(2)(n):
(a) in subparagraph (i):
(i) by deleting “books of account and
records (including but not limited to contracts) of the Company” and
substituting “books, records, accounts, documents (including contracts),
data and information of the Company stored by any means”;
(ii) by deleting “or iron ore pellets or
iron ore concentrates”; and
(iii) by inserting “(in whatever
form)” after “copies or extracts”; and
(b) by deleting the full stop at the end of
subparagraph (ii) and substituting “; and” and the following new
subparagraph:
“(iii) 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 subparagraph (i) to enable the
exercise of rights by the Minister or the Minister’s nominee under
subparagraph (i), 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 9(4):
(a) by deleting paragraph (a) and substituting the
following new paragraph:
“(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) by deleting “there is” and
substituting “there are”;
(ii) by deleting “between the relevant
Government agreements”; and
(iii) by 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) by inserting after clause 9 the following new
clauses:
“ Additional areas
9A. (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:
(a) areas held by the Company or an associated
company under a mining tenement granted under the Mining Act 1978 ;
(b) the area shaded in red on Plan “A”
initialled by or on behalf of the parties for the purpose of identification
(and being at the variation date the subject of Mineral Lease 4SA),
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, or in respect of the area
referred to in paragraph (b) above the surrender of that area from Mineral
Lease 4SA, 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 7A.
Integrated use of works installations or facilities under the
Integration Agreements
9B. (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 9(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); or
(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 7A and
7AB or clause 9D 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 within the boundaries of Port Walcott; 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 9D; 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 7AB and 9D, 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 13.
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 13 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
9C. (1) For the
purposes of this clause “Relevant Infrastructure” means any works
installations or facilities (as defined in clause 9B(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 7A 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 7AB 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.
Miscellaneous Licences for Railways
9D. (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 Land Administration Act 1977 (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 18 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 17, 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 7AB 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 7AB 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
Second 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 Third 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 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 .
(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 (Robe River) Agreement Act 1964 , 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 9D(6)(a)(i), clause 9D(6)(a)(ii) or clause 9D(6)(b), of 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”;
(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 (Robe River) Agreement Act 1964 , 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 (Robe River) Agreement Act 1964 , 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 (Robe River) Agreement Act 1964 , 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 (Robe River) Agreement Act 1964 , 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 9C, 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 10(j)
but subject to clause 9C) 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 9C, 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 9(2)(a) and (3)
regarding third party access as well as the proviso to clause 9(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 (Robe River) Agreement Act 1964 , as from time to
time added to, varied or amended in relation to the use or proposed use of
land pursuant to clause 9D of that agreement after and in accordance with
approved proposals under clause 9D 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
9D(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”;
(12) in clause 10(a)(i) by deleting the comma at
the end of subparagraph (c) and substituting a semi colon followed by:
“(D) in relation
to electrical energy but not water,
the Company for the purpose of supply to:
(i)
“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;
(ii)
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
(iii)
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,”;
(13) in clause 10(d) by inserting “or held
pursuant hereto” after “hereunder or pursuant hereto”;
(14) in clause 10(e) by:
(a)
inserting “or pursuant hereto” after “granted
hereunder”; and
(b)
inserting “ or held pursuant hereto” after “clause 13
hereof”;
(15) in clause 10(l) by:
(a) inserting “granted under or pursuant to
this Agreement, or held pursuant to this Agreement” after “licence
or other title”;
(b) inserting “or held pursuant
hereto” after each of the two 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”;
(16) by deleting clause 11A;
(17) by inserting the following sentence at the
end of clause 12:
“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 9B.”;
(18) in clause 14(1) by inserting “or held
pursuant hereto” after “granted hereunder or pursuant
hereto”; and
(19) by inserting after the Schedule the following
new schedules:
“ SECOND SCHEDULE
WESTERN AUSTRALIA
IRON ORE (ROBE RIVER) AGREEMENT ACT 1964
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 (Robe River) Agreement Act 1964 ,
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 9D(1) of the Agreement and otherwise as provided
in the Agreement) and, if applicable, other purposes AND WHEREAS the Company
pursuant to clause 9D(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 (Robe River) Agreement Act 1964 ,
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 9D(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 9D(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 9D(6)(h) or clause 9D(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
9D(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
THIRD SCHEDULE
WESTERN AUSTRALIA
IRON ORE (ROBE RIVER) AGREEMENT ACT 1964
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 (Robe River) Agreement Act 1964 ,
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 9D(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 (Robe River) Agreement Act 1964 ,
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 9D(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
FOURTH SCHEDULE
WESTERN AUSTRALIA
IRON ORE (ROBE RIVER) AGREEMENT ACT 1964
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 (Robe River) Agreement Act 1964 ,
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 9D(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 (Robe River) Agreement Act 1964 ,
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 9D(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 |
Signed for ROBE RIVER LIMITED )
ACN 008 478 493 by
its attorney in the )
presence of: )
|
[Signature] | |
[Signature] |
|
Witness Signature | |
Attorney Signature |
|
HELEN FERNIHOUGH | |
ALAN DAVIES |
|
Print Name | |
Print Name |
THE COMMON SEAL of ROBE )
RIVER MINING CO PTY.
LIMITED ) [C.S.]
ACN
008 694 246 was hereunto affixed )
by authority of
the Directors in the: )
presence of: )
|
[Signature] | |
ALAN DAVIES |
|
Director | | |
|
[Signature] | |
HELEN FERNIHOUGH |
|
Secretary | | |
THE COMMON SEAL of )
MITSUI IRON ORE
)
DEVELOPMENT PTY. LTD. )
[C.S.]
ACN 008 734 361 was hereunto affixed
)
by authority of the Directors in the
)
presence of: )
|
[Signature] | |
YOICHI HASHIMOTO |
|
Director | | |
|
[Signature] | |
JOHN SMITH |
|
| | |
Signed by NORTH MINING )
LIMITED ACN 000 081 434
by )
its attorney in the presence of: )
|
[Signature] | |
[Signature] |
|
Witness Signature | |
Attorney Signature |
|
HELEN FERNIHOUGH | |
ALAN DAVIES |
|
Print Name | |
Print Name |
CAPE LAMBERT IRON ASSOCIATES
Signed by NIPPON STEEL )
AUSTRALIA PTY. LTD.
)
ACN 001 445 049 by its duly appointed
)
attorney MITSUI IRON ORE )
[C.S.]
DEVELOPMENT PTY. LTD.
)
ACN 008 734 361 hereunto affixing )
its
Seal by authority of the Directors )
in the presence of: )
|
[Signature] | |
YOICHI HASHIMOTO |
|
Director | | |
|
[Signature] | |
JOHN SMITH |
|
| | |
Signed by SUMITOMO METAL )
AUSTRALIA PTY. LTD.
)
ACN 001 444 604 by its duly appointed
)
attorney MITSUI IRON ORE )
[C.S.]
DEVELOPMENT PTY. LTD.
)
ACN 008 734 361 hereunto affixing )
its
Seal by authority of the Directors )
in the presence of: )
|
[Signature] | |
YOICHI HASHIMOTO |
|
Director | | |
|
[Signature] | |
JOHN SMITH |
|
| | |
The COMMON SEAL of MITSUI )
IRON ORE DEVELOPMENT
PTY. )
LTD. ACN 008 734 361 was hereunto
) [C.S.]
affixed by authority
of the Directors in )
the presence of:
)
|
[Signature] | |
YOICHI HASHIMOTO |
|
Director | | |
|
[Signature] | |
JOHN SMITH |
|
| | |
PANNAWONICA IRON ASSOCIATES
Signed by NIPPON STEEL )
AUSTRALIA PTY. LTD.
)
ACN 001 445 049 by its duly appointed
)
attorney MITSUI IRON ORE
) [C.S.]
DEVELOPMENT
PTY. LTD. )
ACN 008 734 361 hereunto affixing
)
its Seal by authority of the Directors
)
in the presence of:
|
[Signature] | |
YOICHI HASHIMOTO |
|
Director | | |
|
[Signature] | |
JOHN SMITH |
|
| | |
Signed by SUMITOMO METAL )
AUSTRALIA PTY. LTD.
)
ACN 001 444 604 by its duly appointed
)
attorney MITSUI IRON ORE
) [C.S.]
DEVELOPMENT
PTY. LTD. )
ACN 008 734 361 hereunto affixing
)
its Seal by authority of the Directors
)
in the presence of: )
|
[Signature] | |
YOICHI HASHIMOTO |
|
Director | | |
|
[Signature] | |
JOHN SMITH |
|
| | |
[Seventh Schedule inserted: No. 61 of 2010 s. 10.]