Western Australian Current Acts Western Australian Current Acts[s. 3]
[Heading inserted: No. 14 of 2017 s. 7.]
2017
THE HONOURABLE MARK McGOWAN
THE STATE OF WESTERN AUSTRALIA
and
TRONOX MANAGEMENT PTY LTD
ABN 59 009 343 364
MINERAL SANDS (COOLJARLOO) MINING AND PROCESSING AGREEMENT 1988
RATIFIED VARIATION AGREEMENT
[Solicitor’s details]
THIS AGREEMENT is made this 26 th day of September 2017
BETWEEN
THE HONOURABLE MARK McGOWAN , BA LLB MLA, Premier of the State of Western
Australia, acting for and on behalf of the said State and its
instrumentalities from time to time (hereinafter called the " State ") of the
first part,
AND
TRONOX MANAGEMENT PTY LTD ABN 59 009 343 364 of Lot 22, Mason Road, Kwinana
Beach, Western Australia, (hereinafter called the " Joint Venturers " in which
term shall be included its successors and permitted assigns) of the second
part.
RECITALS:
A. The parties to this Agreement are now the
parties to the agreement dated 8 November 1988 (the " Principal Agreement "),
the execution of which by the State was ratified by the
Mineral Sands (Cooljarloo) Mining and Processing Agreement Act 1988 .
B. The parties wish to vary the provisions of the
Principal Agreement on the terms and conditions set out in this Agreement.
THE PARTIES AGREE AS FOLLOWS:
1. Ratification and operation
(1) This Agreement,
other than this clause, does not come into operation except in accordance with
subclause (2).
(2) This Agreement,
other than this clause, comes into operation on the day on which it is
ratified by an Act of the Parliament of Western Australia (" Operative Date ")
unless, before that day, it terminates under subclauses (4) or (5).
(3) The State must
introduce in the Parliament of Western Australia before 31 December 2017 or a
later date agreed by the parties to this Agreement a Bill to ratify this
Agreement and must endeavour to secure its passage as an Act.
(4) If by 30 June 2018
this Agreement has not been ratified by an Act of the Parliament of Western
Australia then, unless the parties to this Agreement otherwise agree, this
Agreement terminates on that day and no party hereto will have any claim
against any other party hereto with respect to any matter or thing arising out
of, done, performed, or omitted to be done or performed under this Agreement.
(5) The parties agree
that if the Principal Agreement is otherwise determined in accordance with its
provisions on a day prior to the Operative Date, then this Agreement shall
also terminate on and from that day and no party hereto will have any claim
against any other party hereto with respect to any matter or thing arising out
of, done, performed, or omitted to be done or performed under this Agreement.
2. Variations of the Principal Agreement
The Principal Agreement is hereby varied as
follows:
(1) in clause 1 by:
(a)
inserting in the appropriate alphabetical positions the following new
definitions:
" including " means "including, but not limited
to";
" Kwinana pigment plant " means the plant and associated facilities
established and operated under this Agreement at Kwinana for the production of
titanium dioxide pigment;
" Muchea dry processing plant " means the plant and associated facilities
established and operated under this Agreement at Muchea for the separation
into component heavy minerals of rock soil or sand bearing heavy minerals
which have been concentrated prior to such separation;
" Muchea synthetic rutile plant " means the plant and associated facilities
established and operated under this Agreement at Muchea for the production of
synthetic rutile;
" Non-Mining Lease heavy mineral concentrates " means Non-Mining Lease ore
concentrated prior to separation into component heavy minerals;
" Non-Mining Lease ore " means any rock, soil or sand bearing heavy minerals
mined from areas other than areas within the Mining Lease and whether within
or outside Australia;
" titanium slag " means any upgraded titaniferous mineral other than synthetic
rutile; and
(b) in
the definition of "heavy minerals" by deleting "heavy mineral concentrates"
and substituting "rock, soil or sand bearing heavy minerals which have been
concentrated prior to such separation";
(2) in clause 7 by
inserting after subclause (2) the following new subclause:
"(3) (a)
The Joint Venturers may with the approval of the Minister and for the
principal purpose of providing feedstock to any one or more of the Muchea dry
processing plant, the Muchea synthetic rutile plant and the Kwinana pigment
plant blend:
(i) heavy mineral concentrates with Non-Mining
Lease heavy mineral concentrates;
(ii) a heavy mineral resulting from the separation
of heavy mineral concentrates, or blended concentrates as referred to in
subparagraph (i) above, with the same type of heavy mineral resulting from the
separation of Non-Mining Lease heavy mineral concentrates.
The Minister shall within 2 months after receipt
of a request from the Joint Venturers for the Minister's approval to undertake
any such blending in accordance with this subclause (3), give notice to the
Joint Venturers of his decision in respect of that request.
(b) The authority given under paragraph (a) is
subject to the Minister being reasonably satisfied that there is in place
adequate systems and controls for the correct apportionment between the Mining
Lease and the areas from which Non-Mining Lease ore is being mined of the
quantities of the heavy minerals resulting from the separation of the blended
concentrates and/or heavy mineral being blended as the case may be and which
systems and controls monitor production, concentration, processing,
transportation, stockpiling and shipping activities in respect of all such
blended heavy minerals. If at any time the Minister ceases to be so satisfied
the Minister may, after consulting the Joint Venturers and provided that the
Joint Venturers have not within 3 months after the commencement of such
consultation addressed the matters of concern to the Minister's satisfaction,
by notice in writing to the Joint Venturers suspend the above authority in
respect of the relevant blending arrangements until the Minister is again
satisfied in terms of this paragraph (b).
(c) During the currency of an authority given
under paragraph (a) the Joint Venturers must, for the purposes of the correct
apportionment referred to in paragraph (b) between the Mining Lease and the
areas from which Non-Mining Lease ore is being mined, keep the Minister fully
informed of the area or areas from which Non-Mining Lease ore is being mined.
(d) The provisions of the Mining Act shall apply
with respect to the calculation and payment of royalties in regard to such
blended mineral products and the submission and auditing of royalty returns.";
(3) in clause 11 by:
(a)
deleting in the first line "If" and substituting "Subject to Clause 11A, if";
and
(b)
inserting after "Clause 9":
"(but with the reference in subclause (2) to "section 40(1)(b) of the EP Act"
being read as a reference to "Part IV of the EP Act")";
(4) by inserting after
clause 11 the following new clauses:
" Non-Mining Lease heavy mineral concentrates and other Non-Mining Lease
derived feedstocks
11A.(1) During the continuance of this Agreement
the Joint Venturers may, subject to the EP Act and the other provisions of
this Agreement, submit to the Minister detailed proposals (including, in
connection with any proposed new works, 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 such new or modified
works are to be situated) with respect to:
(a) the separation into heavy minerals at the
Muchea dry processing plant of Non-Mining Lease heavy mineral concentrates
(including as part of blended concentrates as referred to in Clause
7(3)(a)(i));
(b) the use in the production of synthetic rutile
at the Muchea synthetic rutile plant of:
(i) blended heavy minerals as referred to in
Clause 7(3)(a)(ii);
(ii) heavy minerals resulting from the separation
of Non-Mining Lease heavy mineral concentrates (including as part of blended
concentrates as referred to in Clause 7(3)(a)(i)), whether such separation
occurs at the Muchea dry processing plant as referred to in paragraph (a)
above or, if the Joint Venturers so wish, elsewhere;
(c) the
use in the production of titanium dioxide pigment at the Kwinana pigment plant
of:
(i) synthetic rutile, whether produced at the
Muchea synthetic rutile plant as referred to in paragraph (b) above or, if the
Joint Venturers so wish, elsewhere;
(ii) blended heavy minerals as referred to in
Clause 7(3)(a)(ii);
(iii) heavy minerals resulting from the separation
of Non-Mining Lease heavy mineral concentrates (including as part of blended
concentrates as referred to in Clause 7(3)(a)(i)), whether such separation
occurs at the Muchea dry processing plant as referred to in paragraph (a)
above or, if the Joint Venturers so wish, elsewhere;
(iv) if the Joint Venturers so wish, titanium
slag,
which proposals shall include the location, area, lay-out, design, quantities,
materials and time programme for the commencement and completion of
construction or the provision (as the case may be) of each of the following
matters:
(d) the modification or expansion of any one or
more of the Muchea dry processing plant, the Muchea synthetic rutile plant and
the Kwinana pigment plant including the establishment and operation of new
works as part of those facilities;
(e) water supplies;
(f) energy supplies;
(g) if applicable, the transport by road:
(i) from the Mining Lease to the Muchea dry
processing plant (for processing in that plant) of blended concentrates as
referred to in Clause 7(3)(a)(i);
(ii) from the Muchea dry processing plant or the
Muchea synthetic rutile plant as the case may be to the Kwinana pigment plant
(for processing in that plant) of resulting heavy minerals referred to in
paragraph (a) above or synthetic rutile produced as referred to in paragraph
(b) above;
(iii) of waste as referred to in paragraph (l) of
this subclause (1);
(h) during the continuance of this Agreement, the
temporary storage upon the Mining Lease of Non-Mining Lease heavy mineral
concentrates for the purpose of blending with heavy mineral concentrates;
(i) any other works, services or facilities
desired by the Joint Venturers in connection with the proposed operations;
(j) use of local professional services labour and
materials and measures to be taken with respect to the engagement and training
of employees by the Joint Venturers, their agents and contractors;
(k) measures to be taken for the protection and
management of the environment including rehabilitation and/or restoration of
storage areas upon the Mining Lease; and
(l) the disposal or storage of waste resulting
from proposed operations at the Muchea dry processing plant, the Muchea
synthetic rutile plant and the Kwinana pigment plant as referred to in
paragraphs (a), (b) and (c) above.
(2) The provisions of subclauses (2) to (4) of
Clause 8 and the provisions of Clause 9 (but with the reference in subclause
(2) to "section 40(1)(b) of the EP Act" being read as a reference to "Part IV
of the EP Act") shall mutatis mutandis apply to proposals submitted pursuant
to subclause (1).
(3) If the Joint Venturers at any time during the
continuance of this Agreement desire to significantly modify, expand or
otherwise vary their activities referred to in subclause (1)(a), (b) or (c)
beyond those activities specified in any proposals submitted and approved
pursuant to this Clause they shall give notice of such desire to the Minister
and if required by the Minister within 2 months thereafter shall submit to the
Minister (within such period as the Minister may reasonably require) detailed
proposals in respect of all matters covered by such notice and such of the
other matters mentioned in subclause (1) as the Minister may require. For the
avoidance of doubt, this subclause shall also apply where the Joint Venturers
propose to commence undertaking an activity referred to in subclause (1)(a),
(b) or (c) which is not already specified in any proposals submitted and
approved pursuant to this Clause.
(4) To avoid doubt the parties acknowledge that
that the provisions of this Agreement do not apply to:
(a) the mining or concentration of Non-Mining
Lease ore; or
(b) the transport of Non-Mining Lease heavy
mineral concentrates (other than as referred to in subclause (1)(g)(i)); or
(c) the transport of heavy minerals resulting from
the separation of Non-Mining Lease heavy mineral concentrates (other than as
referred to in subclause (1)(g)(ii)); or
(d) the transport of synthetic rutile produced
using heavy minerals resulting from the separation of Non-Mining Lease heavy
mineral concentrates (other than as referred to in subclause (1)(g)(ii)); or
(e) the transport of titanium slag.
(5) The Joint Venturers acknowledge that the
provisions both of Clause 7(3) and of this Clause 11A are intended to enable
them to continue their processing operations under this Agreement by expanding
the sources of feedstock for any one or more of the Muchea dry processing
plant, the Muchea synthetic rutile plant and the Kwinana pigment plant. For
the avoidance of doubt the Joint Venturers acknowledge that, subject to Clause
23 of this Agreement, they must in accordance with this Agreement and approved
proposals continue to operate the Muchea dry processing plant, the Muchea
synthetic rutile plant and the Kwinana pigment plant during the continuance of
this Agreement.
Provision of services and sharing of Agreement mine infrastructure with
proposed Cooljarloo West and Jurien mining projects
11B. The Joint Venturers may during the
continuance of this Agreement and with the Minister's prior consent use any
existing or new works installations or facilities forming part of their mining
operations upon the Mining Lease and constructed, held under or used for the
purposes of this Agreement for the purposes of developing and operating under
and in accordance with the Mining Act their proposed mining projects at:
(a) Cooljarloo West (upon land the subject of
mining leases 70/1314 and 70/1333, any mining lease or leases granted upon the
conversion of exploration licences 70/4129 and 70/4130 and such other mining
lease or mining leases granted to or acquired by the Joint Venturers for the
purposes of their heavy mineral project or projects at Cooljarloo West as the
Minister may approve); and
(b) Jurien (upon land the subject of mining leases
70/434, 70/435 and 70/436 and such other mining lease or mining leases granted
to or acquired by the Joint Venturers for the purposes of their heavy mineral
project or projects at Jurien as the Minister may approve).";
(5) by deleting clause
17;
(6) in clause 33 by:
(a) in
subclause (1) deleting "1985" and substituting "2012"; and
(b) in
subclause (1) deleting "notwithstanding section 20(1) of that Act"; and
(7) in clause 35 by:
(a) in
subclause (3) inserting after the words "Mining Lease as they":
", subject to subclause (4),"; and
(b)
inserting after subclause (3) the following new subclause:
"(4) The Joint Venturers must include in their
nomination under subclause (3) all of the area at the time the subject of the
Mining Lease apart from any area or areas of the Mining Lease which, to the
satisfaction of the Minister for Mines as confirmed in writing to the Joint
Venturers before their nomination is made, has or have, as the case may be,
been rehabilitated and/or restored in accordance with the approved project or
approved proposals, as the case may be, and any conditions applying thereto
under or pursuant to the Mining Lease, this Agreement or the EP Act."
EXECUTED AS A DEED .
|
SIGNED by the HONOURABLE MARK McGOWAN , in the presence of: |
) |
|
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EXECUTED by TRONOX MANAGEMENT PTY LTD ABN 59 009 343 364 in accordance with
section 127(1) of the Corporations Act 2001 (Cth) by authority of its
directors:
STEVEN KAYE |
) |
[Signature] *delete whichever is not applicable
*delete whichever is not applicable |
[Schedule 2 inserted: No. 14 of 2017 s. 7.]