Western Australian Current Acts Western Australian Current Acts[s. 3]
[Heading amended: No. 19 of 2010 s. 4.]
THIS AGREEMENT is made this 2nd day of November 1992
BETWEEN
THE HONOURABLE CARMEN MARY LAWRENCE , B.Psych., Ph.D., M.L.A., Premier of the
State of Western Australia, acting for and on behalf of the State and its
instrumentalities from time to time (hereinafter called “the
State”) of the one part and
ONSLOW SALT PTY LTD A.C.N. 050 159 558 a company incorporated in the State of
Western Australia and having its registered office at Suite 6, 18 Harvest
Terrace, West Perth (hereinafter called “the Company” which term
shall include its successors and permitted assigns) of the other part
WHEREAS
(a) the
Company is the holder of exploration licences Nos. 08/372 and 08/335 and
desires to establish and operate a salt project at Onslow;
(b) the
Company is the holder of exploration licence No. 08/373 which it desires to
use for the future expansion of the salt project at Onslow;
(c) the
Company intends to provide such facilities and services as may be necessary
for its activities under this Agreement;
(d) the
Company has put forward a project outline for a salt operation which will
initially produce approximately 1,000,000 tonnes of salt per annum and have
the capacity to produce up to 2,500,000 tonnes of salt per annum for
transportation from the mining leases as markets develop; and
(e) the
State for the purpose of promoting resource development within Western
Australia has agreed to assist the Company upon and subject to the terms of
this Agreement.
NOW THIS AGREEMENT WITNESSES:
Definitions
1. In this Agreement subject to the context
—
“advise”, “apply”,
“approve”, “approval”, “consent”,
“certify”, “direct”, “notify”,
“request”, or “require”, means advise, apply, approve,
approval, consent, certify, direct, notify, request, or require in writing as
the case may be and any inflexion or derivation of any of those words has a
corresponding meaning;
“approved proposal” means a proposal
approved or determined under this Agreement;
“base rate” means with respect to
rental the rates specified in subclause (3) of Clause 10 and subclause (2) of
Clause 13, and with respect to royalty the rate specified in subclause (1) of
Clause 11;
“Clause” means a clause of this
Agreement;
“commencement date” means the date the
Bill referred to in Clause 3 comes into operation as an Act;
“Commonwealth” means the Commonwealth
of Australia and includes the Government for the time being thereof;
“Company’s workforce” means the
persons connected directly with the Company’s activities under this
Agreement, whether or not such persons are employed by the Company (and the
dependants of those persons);
“EP Act” means the
Environmental Protection Act 1986 ;
“evaporites” means minerals chemicals
elements salts and substances which are or have been deposited from aqueous
solutions as a result of extensive or total evaporation of the solvent or
changes in temperature of the solvent and includes all products derived from
the evaporation of sea water sea water concentrates or brine including but not
limited to the chlorides sulphates carbonates bromides and iodides of any of
sodium potassium magnesium lithium or boron and any double or complex salts
that can be obtained therefrom and any substances that develop through
metamorphism of other evaporites and any elements gases or organic substances
contained in evaporite salts;
“Land Act” means the Land Act 1933 ;
“Mining Act” means the Mining Act 1978
;
“mining leases” means the mining
leases granted pursuant to Clause 10 and includes any renewal thereof and
according to the requirements of the context shall describe the area of land
demised as well as the instrument by which it is demised;
“Minister” means the Minister of the
Government of the State for the time being responsible for the administration
of the Act to ratify this Agreement and pending the passing of that Act means
the Minister for the time being designated in a notice from the State to the
Company and includes the successors in office of the Minister;
“Minister for Mines” means the
Minister of the Government of the State for the time being responsible for the
administration of the Mining Act ;
“month” means calendar month;
“notice” means notice in writing;
“person” or “persons”
includes bodies corporate;
“private road” means a road (not being
a public road) constructed by the Company in accordance with an approved
proposal or agreed by the parties hereto to be a private road for the purposes
of this Agreement;
“project site” means any land leased
or the subject of a licence held by the Company pursuant to this Agreement
including land coloured blue or red on the plan marked “A”
initialled by or on behalf of the parties hereto for the purpose of
identification;
“public road” means a road defined by
the Road Traffic Act 1974 ;
“State” means the State of Western
Australia;
“salt” means the evaporite sodium
chloride;
“State Energy Commission” means The
State Energy Commission of Western Australia as described in section 7 of the
State Energy Commission Act 1979 ;
“subclause” means subclause of the
Clause in which the term is used;
“this Agreement” “herein”
“hereof” and “hereunder” refer to this Agreement
whether in its original form or as from time to time added to varied or
amended;
“transport” means the transport of
salt from the project site;
“wharf” means the private wharf to be
constructed by the Company within the Port of Onslow.
Interpretation
2. (1) In this
Agreement —
(a)
monetary references are references to Australian currency unless otherwise
specifically expressed;
(b)
power given under any clause other than Clause 31 to extend any period or date
shall be without prejudice to the power of the Minister under Clause 31;
(c)
clause headings do not affect the interpretation or construction;
(d)
words in the singular shall include the plural and words in the plural shall
include the singular according to the requirements of the context; and
(e)
reference to an Act includes the amendments to that Act for the time being in
force and also any Act passed in substitution therefor or in lieu thereof and
the regulations for the time being in force thereunder.
Ratification and operation
3. (1) 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 1992.
(2) The provisions of
this Agreement other than this Clause and Clauses 1 and 2 shall not come into
operation until the Bill referred to in subclause (1) has been passed by the
Parliament of Western Australia and comes into operation as an Act.
(3) If before 31
December 1992 the said Bill has not commenced to operate as an Act then unless
the parties hereto otherwise agree this Agreement shall then cease and
determine and no party hereto shall 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.
(4) On the said Bill
commencing to operate as an Act all the provisions of this Agreement shall
operate and take effect notwithstanding the provisions of any Act or law.
Initial obligations of the Company
4. (1) The Company
shall continue its field and office engineering, environmental, market and
finance studies and other matters necessary to enable it to finalise and to
submit to the Minister the detailed proposals referred to in Clause 5.
(2) The Company shall
keep the State fully informed in writing quarterly as to the progress and
results of its operations under subclause (1).
(3) The Company shall
co-operate with the State and consult with the representatives or officers of
the State regarding matters referred to in subclause (1) and any other
relevant studies in relation to that subclause that the Minister may wish to
undertake.
Company to submit proposals
5. (1) Subject to and
in accordance with the EP Act and any approvals and licences required under
that Act the Company shall on or before 31 December 1993 (or by such extended
date 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 (including plans and
specifications where reasonably required by the Minister) with respect to the
establishment and operation of a salt field having a nominal capacity of
1,500,000 tonnes of salt per annum for transportation from the land the
subject of the mining lease within the area coloured blue on the said plan
marked “A”, and transportation and shipment of salt produced
therefrom, 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, namely —
(a) the
extraction and production of salt from within the project site;
(b)
roads;
(c)
workforce accommodation;
(d)
township requirements including provision of utilities and services and social
infrastructure;
(e)
water supply;
(f)
electricity supply;
(g)
sewerage and drainage;
(h)
transport storage and ship loading of salt;
(i)
air services and facilities;
(j) any
other works, services or facilities desired by the Company;
(k) use
of local labour professional services manufacturers suppliers contractors and
materials and measures to be taken with respect to the recruitment and
training by the Company, its agents and contractors;
(l) port
facilities (including dredging and third party use);
(m) any
leases, licences or other tenures of land required from the State; and
(n) an
environmental management programme as to measures to be taken, in respect of
the Company’s activities under this Agreement, for the rehabilitation,
protection and management of the environment.
Order of proposals
(2) 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 the matter or matters mentioned in one or more of paragraphs (a) to (n)
of subclause (1).
Additional submissions
(3) At the time when
the Company submits the said proposals it shall —
(a)
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;
(b)
furnish to the Minister’s satisfaction evidence of —
(i)
marketing arrangements demonstrating the Company’s
ability to profitably sell or use salt in accordance with the said proposals;
(ii)
the availability of finance necessary for the fulfilment
of the operations to which the said proposals refer; and
(iii)
the readiness of the Company to embark upon and proceed
to carry out operations referred to in the said proposals.
Consideration of proposals
6. (1) Subject to the
EP Act, in respect of proposals pursuant to subclause (1) of Clause 5 the
Minister shall —
(a)
approve the said proposals either wholly or in part without qualification or
reservation; or
(b)
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 subclause (1) of Clause 5 not covered by the said
proposals; or
(c)
require as a condition precedent to the giving of the Minister’s
approval to the said proposals that the Company make such alteration thereto
or comply with such conditions in respect thereof as the Minister (having
regard to the circumstances including the overall development of and the use
by others as well as the Company of all or any of the facilities proposed to
be provided) thinks reasonable and in such a case the Minister shall disclose
the Minister’s reasons for such conditions,
PROVIDED ALWAYS that where implementation of any proposals hereunder have 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.
Advice of Minister’s decision
(2) The Minister shall
within two months after receipt of the said proposals pursuant to subclause
(1) of Clause 5 or where the said proposals are to be assessed under section
40(1)(b) of the EP Act then within two months after service on the Minister of
an authority under section 45(7) of the EP Act give notice to the Company of
the Minister’s decision in respect of the said proposals.
Consultation with Minister
(3) If the decision of
the Minister is as mentioned in either of paragraphs (b) or (c) of subclause
(1) the Minister shall afford the Company full opportunity to consult with the
Minister and should it so desire to submit new or revised proposals either
generally or in respect of some particular matter.
Minister’s decision subject to arbitration
(4) If the decision of
the Minister is as mentioned in either of paragraphs (b) or (c) of subclause
(1) and the Company considers that the decision is unreasonable the Company
within two 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.
Arbitration award
(5) An award made on
an arbitration pursuant to subclause (4) shall have force and effect as
follows —
(a) if
by the award the dispute is decided against the Company then unless the
Company within 3 months after delivery of the award give notice to the
Minister of its acceptance of the award this Agreement shall on the expiration
of that period of 3 months cease and determine; or
(b) if
by the award the dispute is decided in favour of the Company the decision
shall take effect as a notice by the Minister that the Minister is so
satisfied with and approves the matter or matters the subject of the
arbitration.
Effect of non-approval of proposals
(6) Notwithstanding
that under subclause (1) any proposals of the Company are approved by the
Minister or determined by arbitration award, unless each and every such
proposal and matter is so approved or determined by 31 December 1993 or by
such extended date or period if any as the Company shall be granted pursuant
to the provisions of this Agreement then the Minister may give to the Company
12 months notice of intention to determine this Agreement and unless before
the expiration of the said 12 month period all the detailed proposals and
matters are so approved or determined this Agreement shall cease and determine
subject however to the provisions of Clause 33.
Implementation of proposals
(7) Subject to and in
accordance with the EP Act and any approvals and licences required under that
Act the Company shall implement the approved proposals in accordance with the
terms thereof.
Additional proposals
7. (1) If the Company
at any time during the continuance of this Agreement desires to significantly
expand or modify the Company’s operations beyond those specified by the
approved proposals or otherwise vary its activities carried on pursuant to
this Agreement beyond those activities specified in any approved proposals
including development of the area coloured red on the said plan marked
“A” referred to in subclause (2)(a) of Clause 10, then 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 paragraphs
(a) to (n) of subclause (1) of Clause 5 as the Minister may require.
(2) The provisions of
Clause 5 and Clause 6 (other than subclauses (5)(a) and (6) of Clause 6) shall
mutatis mutandis apply to detailed proposals submitted pursuant to this
subclause with the proviso that the Company may withdraw such proposals at any
time before approval thereof or, where any decision of the Minister in respect
thereof is referred to arbitration, within 3 months after the award by notice
to the Minister that it shall not be proceeding with the same. Subject to and
in accordance with the EP Act and any approvals and licences required under
that Act the Company shall implement approved proposals pursuant to this
Clause in accordance with the terms thereof.
Protection and Management of the Environment
8. (1) The Company
shall, in respect of the matters referred to in paragraph (n) of subclause (1)
of Clause 5 and which are the subject of proposals approved or determined
under this Clause (hereinafter called “the approved proposals”),
carry out a continuous programme of investigation, research and monitoring to
ascertain the effectiveness of the measures it is taking both generally and
pursuant to such approved proposals for the rehabilitation, protection and
management of the environment.
(2) The Company shall
during the currency of this Agreement submit to the Minister at yearly
intervals commencing from the date when the Company’s proposals are
approved or determined (except those years in which a comprehensive report is
required to be submitted) a brief report concerning investigations research
and monitoring carried out pursuant to subclause (1) and the implementation by
the Company of the elements of the approved proposals relating to the
rehabilitation, protection and management of the environment in the year
ending two calendar months before the due date for the brief report, and, at
three yearly intervals commencing from such date, a comprehensive report on
the result of such investigations research and monitoring and the
implementation by the Company of the elements of the approved proposals
relating to the rehabilitation, protection and management of the environment
during the three year period ending two calendar months the due date for the
comprehensive report and the programme proposed to be undertaken by the
Company during the following three year period in regard to investigations
research and monitoring pursuant to subclause (1) and the implementation by
the Company of the elements of the approved proposals relating to the
rehabilitation, protection and management of the environment.
(3) The Minister may
within two (2) months of receipt of a report pursuant to subclause (2) notify
the Company that the Minister —
(a)
requires amendment of the report and/or programme; or
(b)
requires additional detailed proposals to be submitted for the protection and
management of the environment.
(4) The Company shall
within two (2) months of receipt of a notice pursuant to paragraph (a) of
subclause (3) submit to the Minister an amended report and/or programme as
required. The Minister shall afford the Company full opportunity to consult
with the Minister on the Minister’s requirements during the preparation
of any amended report or programme.
(5) The Minister may
within one month of receipt of an amended report or programme pursuant to
subclause (4) notify the Company that the Minister requires additional
detailed proposals to be submitted for the protection and management of the
environment.
(6) The Company shall
within two months of the receipt of a notice given pursuant to paragraph (b)
of subclause (3) or subclause (5) submit to the Minister additional detailed
proposals as required and the provisions of subclauses (1), (2), (3) and (4)
of Clause 6 shall mutatis mutandis apply in respect of such proposals.
(7) Subject to and in
accordance with the EP Act and any approvals and licences required under that
Act the Company shall implement the decision of the Minister or any award on
arbitration as the case may be in accordance with the terms thereof.
Use of local labour professional services and materials
9. (1) The Company
shall, for the purposes of this Agreement —
(a)
except in those cases where the Company can demonstrate it is impracticable so
to do, use labour available within Western Australia (using all reasonable
endeavours to ensure that as many as possible of the Company’s workforce
be locally recruited) or if such labour is not available then, except as
aforesaid, use labour otherwise available within Australia;
(b) as
far as it is reasonable and economically practicable so to do, use the
services of engineers surveyors architects and other professional consultants
experts and specialists, project managers, manufacturers, suppliers and
contractors resident and available within Western Australia or if such
services are not available within Western Australia then, as far as
practicable as aforesaid, use the services of such persons otherwise available
within Australia;
(c)
during design and when preparing specifications, calling for tenders and
letting contracts for works materials plant equipment and supplies (which
shall at all times, except where it is impracticable so to do, use or be based
upon Australian Standards and Codes) ensure that suitably qualified Western
Australian and Australian suppliers manufacturers and contractors are given
fair and reasonable opportunity to tender or quote;
(d) give
proper consideration and where possible preference to suppliers manufacturers
and contractors located in Western Australia when contracts or placing orders
for works, materials, plant, equipment and supplies where price quality
delivery and service are equal to or better than that obtainable elsewhere or,
subject to the foregoing, give that consideration and where possible
preference to other suppliers manufacturers and contractors located in
Australia; and
(e) if
notwithstanding the foregoing provisions of this subclause a contract is to be
let or an order is to be placed with other than a Western Australian or
Australian supplier, manufacturer or contractor, give proper consideration and
where possible preference to tenders arrangements or proposals that include
Australian participation.
(2) Except as
otherwise agreed by the Minister the Company shall in every contract entered
into with a third party for the supply of services labour works materials
plant equipment or supplies for the purposes of this Agreement require as a
condition thereof that such third party shall undertake the same obligations
as are referred to in subclause (1) and shall report to the Company concerning
such third party’s implementation of that condition.
(3) The Company shall
submit a report to the Minister at monthly intervals or such longer period as
the Minister determines commencing from the date of this Agreement concerning
its implementation of the provisions of this Clause together with a copy of
any report received by the Company pursuant to subclause (2) during that month
or longer period as the case may be PROVIDED THAT the Minister may agree that
any such report need not be provided in respect of contracts of such kind or
value as the Minister may from time to time determine.
(4) The Company shall
keep the Minister informed on a regular basis as determined by the Minister
from time to time or otherwise as required by the Minister during the currency
of this Agreement of any services (including any elements of the project
investigations design and management) and any works materials plant equipment
and supplies that it may be proposing to obtain from or has carried out or
permit to be obtained from or carried out outside Australia together with its
reasons therefor and shall as and when required by the Minister consult with
the Minister with respect thereto.
Mining Lease
10. (1)
(a) On application made by the Company, not later
than 3 months after all proposals submitted pursuant to subclause (1) of
Clause 5 have been approved or determined, for a mining lease over so much of
the land coloured blue on the said plan marked “A” as is then held
by the Company under the exploration licences referred to in recital (a) and
over any other areas coloured blue on the said plan marked “A”
which are held under an exploration licence or exploration licences at that
time by the Company the State shall upon and subject to the surrender by the
Company of the exploration licences cause to be granted to the Company a
mining lease of such land (notwithstanding that the survey in respect thereof
has not been completed but subject to such corrections to accord with the
survey when completed at the Company’s expense) for evaporites, such
mining lease to be granted under and, except as otherwise provided in this
Agreement, subject to the Mining Act but substantially in the form of the
Schedule hereto and subject to such conditions and stipulations consistent
with the provisions of the Agreement and approved proposals as the Minister
for Mines may determine.
(b) Upon
grant of a mining lease pursuant to paragraph (a) of this subclause, the
Company shall provide to the satisfaction of the Minister an unconditional
performance bond, guaranteed by a Bank or other financial institution
acceptable to the Minister, in favour of the Minister for Mines for the sum of
$170 000. Moneys under the bond may be used by the State should the Company
fail to perform its rehabilitation obligations under this Agreement and
approved proposals. The amount of the bond may be varied from time to time by
the Minister in consultation with the Minister for Mines and the Company to
reflect the performance of the Company in meeting its rehabilitation
obligations under this Agreement and approved proposals.
Mining Lease for future expansion
(2) (a)
On application made by the Company, not later than
12 months after all proposals submitted pursuant to subclause (1) of Clause 5
have been approved or determined, for a mining lease over so much of the land
coloured red on the said plan marked “A” (hereinafter referred to
as the “red area”), the State shall upon and subject to the
surrender by the Company of the exploration licence referred to in recital (b)
of this Agreement cause to be granted to the Company a mining lease of such
land (notwithstanding that the survey in respect thereof has not been
completed but subject to such corrections to accord with the survey when
completed at the Company’s expense) for evaporites, such mining lease to
be granted under and, except as otherwise provided in this Agreement, subject
to the Mining Act but substantially in the form of the Schedule hereto and
subject to such conditions and stipulations consistent with the provisions of
the Agreement and approved proposals as the Minister for Mines may determine.
(b)
(i) The Company shall not
carry out any activities (other than activities for the planning for future
development of the red area) on any part of the red area pursuant to paragraph
(a) of this subclause until proposals submitted pursuant to subclause (1) of
Clause 7 have been approved or determined.
(ii)
If the Company’s proposals with respect to the red
area referred to in subclause (1) of Clause 7 have not been approved or
determined by 31 December 2002, then the mining lease and all rights
thereunder referred to in paragraph (a) of this subclause shall be surrendered
and forfeited to the State.
(c) Upon
approval or determination of proposals submitted pursuant to subclause (1) of
Clause 7 in relation to the mining lease granted pursuant to paragraph (a) of
this subclause for the development of the red area, the Company shall provide
to the satisfaction of the Minister an unconditional performance bond,
guaranteed by a Bank or other financial institution acceptable to the
Minister, in favour of the Minister for Mines for a sum to be determined by
the Minister in consultation with the Minister for Mines. Moneys under the
bond may be used by the State should the Company fail to perform its
rehabilitation obligations under this Agreement and approved proposals. The
amount of the bond may be varied from time to time by the Minister in
consultation with the Minister for Mines and the Company to reflect the
performance of the Company in meeting its rehabilitation obligations under
this Agreement and approved proposals.
Rental
(3) Rental in respect
of the mining leases granted pursuant to this Clause shall be computed at a
base rate of $9.84 per 100 hectares per annum and the base rate shall be
escalated in the manner prescribed by Clause 12.
Term
(4) Subject to the
performance by the Company of its obligations under this Agreement and the
Mining Act and notwithstanding any provisions of the Mining Act to the
contrary the term of the mining leases shall be for a period of 21 years
commencing from the respective dates of receipt of the applications therefor
under subclauses (1) or (2) as the case may be with the right during the
currency of this Agreement to take two successive renewals of the said term
each for a further period of 21 years upon the same terms and conditions,
subject to the sooner determination of the said term upon cessation or
determination of this Agreement, such right to be exercisable by the Company
making written application for any such renewal not later than one month
before the expiration of the then current term of the respective mining
leases.
Exemption from expenditure conditions
(5) The State shall
ensure that during the currency of this Agreement and subject to compliance
with its obligations hereunder the Company shall not be required to comply
with the expenditure conditions imposed by or under the Mining Act in regard
to mining leases or exploration licences held pursuant to this Agreement.
Exemption from surrender
(6) The State shall
ensure that during the currency of this Agreement and subject to compliance
with its obligations hereunder the Company shall not be required to comply
with the provisions of Section 65 of the Mining Act in relation to exploration
licences held pursuant to this Agreement.
Additional areas
(7) Notwithstanding
the provisions of the Mining Act the Company may from time to time during the
currency of this Agreement apply to the Minister for areas held by the Company
under a mining tenement granted under the Mining Act to be included in one of
the mining leases. The Minister shall confer with the Minister for Mines in
regard to any such application and if they approve the application the
Minister for Mines shall upon the surrender of the relevant mining tenement
include the area the subject thereof in such one of the mining leases and
subject to such conditions and stipulations consistent with the provisions of
the Agreement and approved proposals as the Minister for Mines in each case
may determine, which may include conditions of the surrendered mining
tenement. In respect of any such land —
(a) the
land shall in addition to any conditions so determined by the Minister for
Mines be subject to the same terms covenants and conditions as apply to the
mining leases;
(b) the
Minister for Mines may make such apportionment of rents as may be necessary in
connection therewith; and
(c) the
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.
Surrender of part of mining leases
(8) Notwithstanding
the provisions of this Clause and the Mining Act with the approval of the
Minister the Company may from time to time surrender to the State all or any
portion or portions of the mining leases with abatement of future rent in
respect of the area surrendered but without any abatement of rent already paid
or rent which has become due and has been paid in advance.
Stone sand clay and gravel
(9) The Company in
accordance with approved proposals may for the construction of works (and
maintenance thereof) for the purposes of this Agreement and without payment of
royalty, obtain stone sand clay and gravel from the mining leases.
Royalties
11. (1) Throughout the
continuance of this Agreement the Company shall pay to the State a royalty on
all salt produced and transported pursuant to this Agreement. Royalty shall be
computed at a base rate as set out hereunder and the base rate shall be
escalated in the manner prescribed by Clause 12:
|
Rate per tonne | |
|
On the first 500,000 tonnes in any year |
5.00 cents |
|
On the second 500,000 tonnes in any year |
6.25 cents |
|
On all tonnages in excess of 1,000,000 tonnes in any year |
|
Tonnages shall be
ascertained at the project site in such manner as the parties hereto may from
time to time agree.
Returns
(2) Within twenty-one
days after the quarter days being the last days of March, June, September and
December in each year commencing with the quarter day next following the
commencement date the Company shall furnish to the Minister for Mines a return
showing the quantity of all salt the subject of royalty hereunder produced and
transported during the quarter or part thereof (as the case may be) ending on
the respective quarter day and shall not later than one month after the date
on which such return is due pay to the State the royalty in respect of all
salt produced and transported during that quarter.
Other minerals
(3) The Company shall
in respect of all evaporites other than salt produced or obtained from the
area the subject of the mining leases pay to the State royalties at the rates
from time to time prescribed under the Mining Act and comply with the
provisions of the Mining Act and regulations made thereunder with respect to
the filing of production reports and payment of royalties.
Inspection of records
(4) The Company shall
permit the Minister for Mines or the Minister’s nominee to inspect at
all reasonable times and to take copies of or extracts from all books of
accounts and records of the Company as are relevant for the purpose of
determining the amount of royalty payable under this Clause and if required by
the State take reasonable steps to satisfy the State either by certificate of
a competent independent party acceptable to the State or otherwise to the
reasonable satisfaction of the Minister for Mines as to all relevant weights
and analyses and shall give due regard to any objection or representation made
by the Minister for Mines or the Minister’s nominee as to any particular
weight or assay of minerals mined or produced by the Company from the mining
leases and sold by it which may affect the amount of royalty payable
hereunder.
Escalation
12. (1)
Notwithstanding anything herein contained but subject to subclause (4) of this
Clause it is hereby agreed by and between the parties hereto in order to
provide for the equitable performance of this Agreement that —
(a) for
the period from the commencement date to the anniversary of the commencement
date in the year 2003, the several amounts due and payable by the Company to
the State as —
(i)
rentals under subclause (3) of Clause 10 and subclause
(2) of Clause 13; and
(ii)
royalty under subclause (1) of Clause 11
shall be 350% of the
base rate;
(b) in
the event of the price of salt (as hereinafter defined) on the anniversary of
the commencement date in the years 2003, 2010, 2017, 2024, 2031, 2038 or 2045
exceeding $5.16 then the percentage by which the price of salt on the relevant
date exceeds $5.16 shall be calculated and the several amounts due and payable
by the Company to the State as base rate —
(i)
rentals under subclause (3) of Clause 10 and subclause
(2) of Clause 13; and
(ii)
royalty under subclause (1) of Clause 11
shall be increased by
the percentage so calculated and such increased amounts in respect of those
items shall be payable by the Company to the State during the seven (7) years
next following the relevant date.
(2) For the purpose of
this Clause the price of salt on each of the aforesaid dates means the
weighted average price per tonne of salt sold during the previous year
pursuant to this Agreement payable by the purchaser or purchasers thereof to
the Company, or where the Minister is not satisfied that the price payable in
respect of the salt represents a fair and reasonable market value for that
salt assessed at an arm’s length basis, such amount as is agreed or
determined, less all export duties taxes and fees payable to the Commonwealth
on the export of salt and the costs and expenses properly incurred and payable
by the Company in respect of that sale from the time it is transported in the
form in which it is to be sold to the time it is delivered to and accepted by
the purchaser or purchasers including —
(a)
ocean freight;
(b)
marine insurance;
(c) port
and handling charges at the port of discharge;
(d) all
costs properly incurred in delivering the salt from the port of discharge to
the purchaser as evidenced by relevant invoices;
(e) all
weighing, sampling, analysis, inspection and representation costs;
(f) all
shipping agency charges after transport; and
(g) all
import taxes imposed or levied by the country of the port of discharge.
For the purposes of
this subclause “agreed or determined” means agreed between the
Company and the Minister or, failing agreement within three months of the
Minister giving notice to the Company that he requires the value of a quantity
of salt to be agreed or determined, as determined by the Minister. In agreeing
or determining a fair and reasonable market value of such salt assessed at an
arm’s length basis the Minister and the Company, or the Minister, as the
case may be shall have regard to prevailing markets and prices for salt both
outside and within the Commonwealth.
(3) Throughout the
continuance of this Agreement the Company shall use its best endeavours to
obtain for the salt produced hereunder the best price possible having regard
to market conditions from time to time prevailing.
(4) The Minister may
from time to time after consultation with the Company vary the dates specified
in paragraph (b) of subclause (1) of this Clause or any of them to a later
date or dates consistent with the corresponding dates for review of royalty
contained in any other Government agreement (as defined in the
Government Agreements Act 1979 ) relating to the production of salt. In the
event of any variation of a date pursuant to this subclause any increases to
the amounts referred to in subparagraphs (i) and (ii) of paragraphs (a) and
(b) of subclause (1) of this Clause then in effect pursuant to that subclause
shall continue to apply until the varied date.
Leases, licences, permits and easements
13. (1) The State
shall —
(a) in
accordance with the Company’s approved proposals and the Mining Act,
Land Act, Jetties Act 1926 , Marine and Harbours Act 1981 ,
Western Australian Marine Act 1982 and any other relevant statute from time to
time, grant to the Company, or arrange to have the appropriate authority or
other interested instrumentality of the State grant for such periods and on
such terms and conditions (including renewal rights where appropriate) as
shall be reasonable having regard to the requirements of the Company, leases,
licences, permits and easements for any purposes related to the
Company’s operations under this Agreement;
(b) in
accordance with the Company’s approved proposals grant general purpose
leases for the purposes of the transportation of brine and the transportation,
stockpiling and loading of salt for the same term as the mining lease referred
to in subclause (4) of Clause 10 which general purpose leases may with the
prior approval of the Minister for Mines be granted in respect of areas of
land greater than the maximum area provided by the Mining Act .
Rental
(2) Rental in respect
of general purpose leases granted pursuant to paragraph (b) of subclause (1)
of this Clause shall be computed at a base rate of $9.84 per 100 hectares per
annum and the base rate shall be escalated in the manner prescribed by Clause
12.
(3) Rental in respect
of miscellaneous licences and general purpose leases granted pursuant to
paragraph (a) of subclause (1) of this Clause shall be at the rental specified
from time to time in the Mining Act.
Existing Towns
14. (a)
(i) The Company shall as the
occasion may require enter into negotiations with the Minister with a view to
achieving assimilation into Onslow of the Company’s work force or any
other workers employed by the Company (including the dependants of such
persons).
(ii)
The Company shall pay to the State or the appropriate
authority designated by the Minister the capital cost of establishing and
providing additional services, works and facilities and associated equipment
including sewerage and water supply schemes, main drains, education, police
and hospital services to the extent to which those additional services, works
and services are made necessary in Onslow or other existing township as a
result of the operations of the Company. The additional services, works and
associated equipment referred to in this clause shall be provided by the State
to a standard normally adopted by the State in providing new services, works
and associated equipment in similar cases in comparable towns.
(b) As
and when required by the Minister after consultation with the relevant local
authority, the Company shall confer with the Minister with a view to assisting
in the cost of providing any appropriate community, recreation, civic or
social amenities at Onslow or other existing township required for the
Company’s workforce and associated population in accordance with its
approved proposals.
Private Roads
15. (1) The Company
shall —
(a) be
responsible for the cost of the construction and maintenance of all private
roads which shall be used in its operations hereunder; and
(b) at
any place where a private road crosses any public road provide adequate grade
separation or such other reasonable protection as may be required by the
Commissioner of Main Roads.
(2) In the event that
the Company for the purposes of its operations under this Agreement desire to
exclude the public use of any private road it shall be responsible at its own
cost to make such provisions as effectively ensure that all persons and
vehicles (other than those engaged upon the Company’s operations and its
invitees and licencees) are excluded from use of that road.
Maintenance of public roads
(3) The State shall
maintain or cause to be maintained those public roads under the control of the
Commissioner of Main Roads or a local authority which may be used by the
Company for the purposes of this Agreement to a standard similar to comparable
public roads maintained by the Commissioner of Main Roads or a local authority
as the case may be.
Upgrading of public roads
(4) In the event that
the Company’s operations require the use of a public road which is
inadequate for the purpose, or result in excessive damage or deterioration of
any public road (other than fair wear and tear) the Company shall pay to the
State the whole or an equitable part as determined by the Minister of the
total cost of any upgrading required or of making good the damage or
deterioration as may be reasonably required by the Commissioner of Main Roads
or local authority having regard to the use of such road by others.
Acquisition of private roads
(5) Where a private
road is subsequently required for public use, the State may, after
consultation with the Company and so long as resumption thereof shall not
unduly prejudice or interfere with the operations of the Company under this
Agreement, resume and dedicate such road as a public road. Upon any such
resumption the State shall pay to the Company such amount as the State
considers to be reasonable.
Water
16. (1) The Company
may enter into negotiations with the State with a view to obtaining its
requirements of water excluding seawater, for its operations under this
Agreement from the State on terms and conditions to be agreed upon.
(2) In the event that
the Company elects to supply all or part of its water requirements excluding
sea water, from a water supply identified by the Company which is acceptable
to the State, the State will enter into negotiations regarding terms and
conditions.
Design of works
(3) The Company shall
to the extent that it is practical and economical, design, construct and
operate its works under this Clause so as to —
(a)
recycle water excluding sea water; and
(b)
prevent loss of water excluding sea water, by leakage, spillage or
evaporation.
Sea Water Licence
17. The Company may without charge draw take and
use sea water for all or any one or more of its operations in respect of the
extraction and production of salt on the project site and the Company may
store at such place within the mining leases as may be convenient or discharge
at or below high water mark at such points near to the mining leases as are
approved by the State residual brines resulting from those operations. If
requested by the Company the State shall grant to the Company any easement or
licence for these purposes over Crown lands upon such terms and conditions as
shall be reasonable having regard to the requirements of the Company and the
overall development and use by others of those Crown lands. Subject to the
Company’s compliance with the Mining Act and all other relevant
statutes and regulations for the time being in force the Company shall have
the right to the exclusion of any other person to mine and recover any other
minerals, substances or chemicals in the said residual brines.
Port facilities
18. (1) The Company
shall at its own expense dredge a channel to its wharf and construct, operate
and maintain the wharf, ship loading and harbour facilities and any other
associated facilities at or in the vicinity of the wharf in accordance with
its approved proposals.
(2) (a)
Subject to the Company constructing, operating and
maintaining the facilities referred to in subclause (1) of this Clause, no
charge or levy shall be made by the State or by any State authority in
relation to the loading of outward or the unloading of inward cargoes for the
purposes of this Agreement at the Company’s wharf whether such cargoes
shall be the property of the Company or of any other persons but the State
accepts no obligation to undertake such loading or unloading and may make the
usual charges including pilotage fees from time to time prevailing in respect
of services rendered by the State or by any State agency or instrumentality or
other local or other authority of the State and may charge conservancy dues
payable under the Shipping and Pilotage Act 1967 in respect of any vessel
entering the Port of Onslow for the purpose of using the Company’s
wharf.
(b) The
Company if and when permitted by the relevant State legislation, may provide
its own pilotage requirements.
Use of Company’s facilities
(3) (a)
Throughout the continuance of this Agreement, the
Company shall allow the State and third parties to use the Company’s
facilities referred to in subclause (1) of this Clause PROVIDED THAT such use
shall not unduly prejudice or interfere with the Company’s operations
and that the entire control of and all personnel for or in respect of such use
shall be provided by or with the approval of the Company.
(b) The
provisions of paragraph (a) of this subclause shall not affect the Harbour
Master or appointed pilot in carrying out any of their respective
responsibilities for maritime safety within the Port of Onslow in accordance
with the provisions of the Shipping and Pilotage Act 1967 .
(4) The State and the
Company acknowledge that the Company should be paid a fair and reasonable
charge as may be set forth from time to time in schedules provided by the
Company and approved by the Minister for the use of the wharf by all vessels
and for the use of the channel approach by any vessel whose draught is of such
magnitude that it requires to use the channel approach in order to utilise the
wharf. In the case of regular use by a shipper of bulk commodities the Company
should be reimbursed by such shipper a fair and reasonable proportion of the
capital outlay and operation and maintenance costs incurred by the Company for
the wharf and channel approach as may be determined by mutual agreement
between the parties concerned or failing agreement then as determined by the
Minister.
By-Laws
(5) At the
recommendation of the Company upon approval or determination of proposals
referred to in subclause (1) of Clause 5, the Minister may make alter and
repeal by-laws for the purpose of levying charges pursuant to subclause (4) of
this Clause, upon terms and subject to conditions (including terms and
conditions as to user charging and limitation of the liability of the Company)
set out in such by-laws consistent with the provisions hereof. Should the
State at any time consider that any by-law made hereunder has as a result of
altered circumstances become unreasonable or inapplicable then the Company
shall recommend such alteration or repeal thereof as the State may reasonably
require.
Navigation aids and services
(6) The Company shall
provide or relocate such navigation aids as are reasonably required by the
State for the operation of the Company’s facilities referred to in
subclause (1) of this Clause. The State will operate and maintain such
navigation aids as are required for the continuing operation of the
Company’s wharf and channel.
Payment of conservancy dues to the State
(7) It is acknowledged
by the parties hereto that any vessel entering the Port of Onslow for the
purpose of using the Company’s wharf will be required to pay conservancy
dues prescribed by law and the Company covenant with the State that it will if
required by the State so to do, act as the agent of the State for the purpose
of collecting from the masters or agents of such vessels and remitting to the
State such conservancy dues as may from time to time be payable.
Electricity generation
19. (1) The Company
may —
(a)
obtain its requirements of electricity for its operations under this Agreement
from the State Energy Commission if terms and conditions can be agreed with
the State Energy Commission.
(b)
subject to the provisions of the Electricity Act 1945 install and operate
without cost to the State, at an appropriate location equipment to generate
and transmit electricity of sufficient capacity for its operations under this
Agreement.
(c)
subject to the provisions of the Electricity Act 1945 and the approval and
requirements of the State Energy Commission, sell and transmit electricity
generated pursuant to paragraph (b) of this subclause to third parties
including the State Energy Commission.
(2) In the event that
the Company is unable to procure easements or other rights over land required
for the purposes of subclause (1)(b) of this Clause on reasonable terms the
State shall assist the Company to such extent as may be reasonably necessary
to enable it to procure the said easements or other rights over land.
Ingress and egress
20. The State shall from time to time on the
written application of the Company grant to the Company a licence or licences
over Crown lands to permit the Company its servants agents contractors
invitees and customers the right of ingress to and egress from all or any one
or more parts of the project site on such terms and conditions as shall be
reasonable having regard to the requirements of the Company in respect of the
construction maintenance operation and inspection of the improvements from
time to time constructed or installed on the project site and to the overall
development and use by others of those Crown lands.
Zoning
21. The State shall ensure after consultation with
the relevant local authority that the mining leases and any lands the subject
of any Crown Grant lease licence or easement granted to the Company under this
Agreement shall be and remain zoned for use or otherwise protected during the
currency of this Agreement so that the activities of the Company hereunder may
be undertaken and carried out thereon without any interference or interruption
by the State or by any State agency or instrumentality or by any local or
other authority of the State on the ground that such activities are contrary
to any zoning by-law regulation or order.
Rating
22. The State shall ensure that notwithstanding
the provisions of any Act or anything done or purported to be done under any
Act the valuation of all lands the subject of this Agreement (except the
accommodation area and any other parts of the lands the subject of this
Agreement on which accommodation units or housing for the Company’s
workforce is erected or which is occupied in connection with such
accommodation units or housing and except as to any part upon which there
stands any improvements that are used in connection with a commercial
undertaking not directly related to the production of salt carried out by the
Company pursuant to approved proposals) shall for rating purposes under the
Local Government Act 1960 , be deemed to be on the unimproved value thereof
and no such lands shall be subject to any discriminatory rate.
No discriminatory rates
23. Except as provided in this Agreement the State
shall not impose, nor shall it permit or authorise any of its agencies or
instrumentalities or any local or other authority of the State to impose
discriminatory taxes rates or charges of any nature whatsoever on or in
respect of the titles property or other assets products materials or services
used or produced by or through the activities of the Company in the conduct of
its business hereunder nor will the State take or permit to be taken by any
such State authority any other discriminatory action which would deprive the
Company of full enjoyment of the rights granted and intended to be granted
under this Agreement.
Salt for use in Australia
24. The Company acknowledges the desire of the
State to have available a constant and reliable source of and supply of salt
for use in Australia. To attain this object the Company subject to the
fulfilment of its overseas contracts will use its best endeavours to have such
quantities of salt available at all times during the currency of this
Agreement for sale for use in Australia as will meet reasonable demands
therefor made on the Company from time to time at a price which is competitive
in the Australian market provided that such price is not less than that which
the Company is receiving or able to receive for similar quantities of salt
sold on similar terms and conditions for use outside Australia.
Resumption for the purposes of this Agreement
25. The State may as and for a public work under
the Public Works Act 1902 , resume any land required for the purposes of this
Agreement and notwithstanding any other provisions of that Act may sell lease
or otherwise dispose of that land to the Company and the provisions of
subsections (2) to (7) inclusive of section 17 and section 17A of that Act
shall not apply to or in respect of that land or the resumption thereof. The
Company shall pay to the State on demand the costs of and incidental to any
land resumed at the request of and on behalf of the Company.
No resumption
26. Subject to the performance by the Company of
its obligations under this Agreement the State shall not during the currency
of this Agreement without the consent of the Company resume nor suffer nor
permit to be resumed by any State instrumentality or by any local or other
authority of the State any of the works installations plant equipment or other
property for the time being belonging to the Company and the subject of or
used for the purpose of this Agreement or any of the works on the lands the
subject of any lease or licence granted to the Company in terms of this
Agreement AND without such consent (which shall not be unreasonably withheld)
the State shall not create or grant or permit or suffer to be created or
granted by any instrumentality or authority of the State as aforesaid any road
right-of-way water right or easement of any nature or kind whatsoever over or
in respect of any such lands which may unduly prejudice or interfere with the
Company’s activities under this Agreement.
Assignment
27. (1) Subject to the
provisions of this Clause the Company may at any time assign mortgage charge
sublet or dispose of to any company or persons with the consent of the
Minister the whole or any part of the rights of the Company hereunder
(including its right to or as the holder of the mining leases or the
exploration licences or any other lease licence easement grant or other title)
and of the obligations of the Company hereunder subject however in the case of
an assignment subletting or disposition to the assignee sublessee or disponee
(as the case may be) executing in favour of the State (unless the Minister
otherwise determines) a deed of covenant in a form to be approved by the
Minister to comply with observe and perform the provisions hereof on the part
of the Company to be complied with observed or performed in regard to the
matter or matters the subject of such assignment subletting or disposition.
(2) Notwithstanding
anything contained in or anything done under or pursuant to subclause (1) the
Company shall at all times during the currency of this Agreement be and remain
liable for the due and punctual performance and observance of all the
covenants and agreements on its part contained in this Agreement and in the
mining leases or any other lease licence easement grant or other title the
subject of an assignment mortgage subletting or disposition under subclause
(1) PROVIDED THAT the Minister may agree to release the Company from such
liability where the Minister considers such release will not be contrary to
the interests of the State.
(3) Notwithstanding
the provisions of the Mining Act, the Transfer of Land Act 1893 and the
Land Act, insofar as the same or any of them may apply —
(a) no
assignment mortgage charge sublease or disposition made or given pursuant to
this Clause of or over the mining leases or any other lease licence easement
grant or other title granted under or pursuant to this Agreement by the
Company or any assignee sublessee or disponee who has executed and is for the
time being bound by deed of covenant made pursuant to this Clause; and
(b) no
transfer assignment mortgage or sublease made or given in exercise of any
power contained in any such mortgage or charge
shall require any
approval or consent other than such consent as may be necessary under this
Clause and no equitable mortgage or charge shall be rendered ineffectual by
the absence of any approval or consent (otherwise than as required by this
Clause) or because the same is not registered under the provisions of the
Mining Act.
Variation
28. (1) The parties to
this Agreement may from time to time by agreement in writing add to substitute
cancel or vary all or any of the provisions of this Agreement or of any lease
licence easement grant or other title granted under or pursuant to this
Agreement for the purpose of more efficiently or satisfactorily implementing
or facilitating any of the objects of this Agreement.
(2) The Minister shall
cause any agreement made pursuant to subclause (1) in respect of any addition
substitution cancellation or variation of the provisions of this Agreement to
be laid on the Table of each House of Parliament within 12 sitting days next
following its execution.
(3) Either House may,
within 12 sitting days of that House after the agreement has been laid before
it pass a resolution disallowing the agreement, but if after the last day on
which the agreement might have been disallowed neither House has passed such a
resolution the agreement shall have effect from and after that last day.
Protection of flow of sea water
29. (1) During the
term of this Agreement the State shall not authorise the construction of any
works which could reasonably be considered by the Minister in consultation
with any other relevant Minister and the Company as having the effect of
stopping the flow of seawater into Beadon Creek or diminishing such flow or
adversely affecting the suitability of seawater for the production of salt
pursuant to approved proposals so as to result in the drawing of seawater by
the Company from Beadon Creek being either impractical or only practical with
the expenditure by the Company of additional money for capital or operating
costs.
(2) Notwithstanding
the provisions of subclause (1) of this Clause, if the State desires to
construct or to authorise construction of works or undertake or authorise any
activity that has the effect described in subclause (1) of this Clause, the
State shall reach agreement with the Company or make alternative arrangements
for the provision of seawater to the Company.
Force majeure
30. This Agreement shall be deemed to be made
subject to any delays in the performance of the obligations under this
Agreement and to the temporary suspension of continuing obligations under this
Agreement that may be caused by or arise from circumstances beyond the power
and control of the party responsible for the performance of those obligations
including without limiting the generality of the foregoing delays or any such
temporary suspension as aforesaid caused by or arising from act of God force
majeure earthquakes floods storms tempest washaways fire (unless caused by the
actual fault or privity of the party responsible for such performance) act of
war act of public enemies riots civil commotions strikes lockouts stoppages
restraint of labour or other similar acts (whether partial or general) acts or
omissions of the Commonwealth shortages of labour or essential materials
reasonable failure to secure contractors delays of contractors and inability
to sell salt profitably or factors due to overall world economic conditions or
factors due to action taken by or on behalf of any government or governmental
authority (other than the State or any authority of the State) or factors that
could not reasonably have been foreseen PROVIDED ALWAYS that the party whose
performance of obligations is affected by any of the said causes shall
promptly give notice to the other party of the event or events and shall use
its best endeavours to minimise the effects of such causes as soon as possible
after the occurrence.
Power to extend periods
31. Notwithstanding any provision of this
Agreement the Minister may at the request of the Company from time to time
extend or further extend any period or vary or further vary any date referred
to in this Agreement or in any approved proposal for such period or to such
later date as the Minister thinks fit whether or not the period to be extended
has expired or the date to be varied has passed.
Determination of Agreement
32. (1) In any of the
following events namely if —
(a)
(i) the Company makes default
which the State considers material in the due performance or observance of any
of the covenants or obligations of the Company in this Agreement or in the
mining leases or any other lease licence easement grant or other title or
document granted or assigned under this Agreement on its part to be performed
or observed; or
(ii)
the Company abandons or repudiates this Agreement or its
activities under this Agreement,
and such default is
not remedied or such activities resumed within a period of 180 days after
notice is given by the State as provided in subclause (2) or, if the default
or abandonment is referred to arbitration, then within the period mentioned in
subclause (3);
or
(b) the
Company goes into liquidation (other than a voluntary liquidation for the
purpose of reconstruction) and unless within 6 months from the date of such
liquidation the interest of the Company is assigned to an assignee approved by
the Minister under Clause 27,
the State may by
notice to the Company determine this Agreement.
(2) The notice to be
given by the State in terms of paragraph (a) of subclause (1) shall specify
the nature of the default or other ground so entitling the State to exercise
such right of determination and where appropriate and known to the State the
party or parties responsible therefor and shall be given to the Company and
all such assignees mortgagees chargees and disponees for the time being of the
Company’s said rights to or in favour of whom or by whom an assignment
mortgage charge or disposition has been effected in terms of Clause 27 whose
name and address for service of notice has previously been notified to the
State by the Company or any such assignee mortgagee chargee or disponee.
(3) (a)
If the Company contests the alleged default
abandonment or repudiation referred to in paragraph (a) of subclause (1) the
Company shall within 60 days after notice given by the State as provided in
subclause (2) refer the matter in dispute to arbitration.
(b) If
the question is decided against the Company, the Company shall comply with the
arbitration award within a reasonable time to be specified by that award
PROVIDED THAT if the arbitrator finds that there was a bona fide dispute and
that the Company were not dilatory in pursuing the arbitration, the time for
compliance with the arbitration award shall not be less than 90 days from the
date of such award.
(4) If the default
referred to in paragraph (a) of subclause (1) shall not have been remedied
within the time specified in the notice referred to in that subclause or
within the time specified by the arbitration award as aforesaid the State
instead of determining this Agreement as aforesaid because of such default may
itself remedy such default or cause the same to be remedied (for which purpose
the State by agents workers or otherwise shall have full power to enter upon
lands occupied by the Company and to make use of all plant machinery equipment
and installations thereon) and the actual costs and expenses incurred by the
State in remedying or causing to be remedied such default shall be a debt
payable by the Company to the State on demand.
Effect of cessation or determination of Agreement
33. (1) On the
cessation or determination of this Agreement —
(a)
except as otherwise agreed by the Minister the rights of the Company to in or
under this Agreement and the rights of the Company or of any assignee of the
Company or any mortgagee to in or under the mining leases and any other lease
licence easement grant or other title or right granted hereunder or pursuant
hereto (but excluding townsite lots which have been granted to or acquired by
the Company and which are no longer owned by it) shall thereupon cease and
determine but without prejudice to the liability of either of the parties
hereto in respect of any antecedent breach or default under this Agreement or
in respect of any indemnity given under this Agreement;
(b) the
Company shall forthwith pay to the State all moneys which are owed to the
State at the date of cessation or determination of this Agreement
notwithstanding that demand in respect of such moneys has not been made by the
State and without prejudice to the State’s other remedies pursuant to
this Agreement;
(c) save
as aforesaid and as otherwise provided in this Agreement neither of the
parties shall have any claim against the other of them with respect to any
matter or thing in or arising out of this Agreement.
(2) Subject to the
provisions of subclause (3) upon the cessation or determination of this
Agreement except as otherwise determined by the Minister all buildings
erections and other improvements erected on any land then occupied by the
Company under the mining leases or any other lease licence easement grant or
other title made under or pursuant to this Agreement shall become and remain
the absolute property of the State without the payment of any compensation or
consideration to the Company or any other party and freed and discharged from
all mortgages and other encumbrances and the Company shall do and execute all
such deeds documents and other acts matters and things (including surrenders)
as the State may reasonably require to give effect to the provisions of this
subclause.
(3) In the event of
the Company immediately prior to the cessation or determination of this
Agreement or subsequently thereto desiring to remove any of its fixed or
movable plant and equipment or any part thereof from any part of the land
occupied by it at the date of such cessation or determination it shall give to
the State notice of such desire and thereby shall grant to the State the right
or option exercisable within 3 months thereafter to purchase in situ such
fixed or moveable plant and equipment at a fair valuation to be agreed between
the parties or failing agreement determined by arbitration under this
Agreement.
Environmental protection
34. Nothing in this Agreement shall be construed
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 under the EP Act.
Indemnity
35. The Company shall 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 work carried out by or on behalf of the Company
pursuant to this Agreement or relating to its activities hereunder or arising
out of or in connection with the construction maintenance or use by the
Company or its servants agents contractors or assignees of the Company’s
works or services the subject of this Agreement or the plant apparatus or
equipment installed in connection therewith PROVIDED THAT where the State, its
servants, agents, or contractors are negligent in carrying out work for the
Company pursuant to this Agreement, then subject to the provisions of any
other relevant Act, such indemnity shall not apply to the extent of the
negligence.
Commonwealth licences and consents
36. (1) The Company
shall from time to time make application to the Commonwealth or to the
Commonwealth constituted agency authority or instrumentality concerned for the
grant to it of any licence or consent under the laws of the Commonwealth
necessary to enable or permit the Company to enter into this Agreement and to
perform any of its obligations hereunder.
(2) On request by the
Company the State shall make representations to the Commonwealth or to the
Commonwealth constituted agency authority or instrumentality concerned for the
grant to the Company of any licence or consent mentioned in subclause (1).
Subcontracting
37. The State shall ensure that without affecting
the liabilities of the parties under this Agreement either party shall have
the right from time to time to entrust to third parties the carrying out of
any portion of the activities which it is authorised or obliged to carry out
hereunder.
Stamp duty exemption
38. (1) The State
shall exempt from any stamp duty which but for the operation of this Clause
would or might be assessed and chargeable on —
(a) this
Agreement;
(b)
instruments of transfer dated 9 October 1992 under the Mining Act by Gulf
Holdings Pty Limited to the Company of Exploration Licence Nos. 08/372, 08/335
and 08/373;
(c) any
instrument executed by the State pursuant to this Agreement granting to or in
favour of the Company or any permitted assignee any tenement lease licence
easement or other right or rights; and
(d)
assignments made by the Company in conformity with the provisions of subclause
1 of Clause 27,
PROVIDED THAT this
subclause shall not apply to any instrument or other document executed or made
more than 2 years from 31 December 1992.
(2) If prior to 31
December 1994 stamp duty has been assessed and paid on any instrument or other
document or transaction referred to in subclause (1) the State when such Bill
is passed as an Act shall on demand refund any stamp duty paid on any such
instrument or other document or transaction to the person who paid the same.
Arbitration
39. (1) Any dispute or
difference between the parties arising out of or in connection with this
Agreement the construction of this Agreement or as to the rights duties or
liabilities of either party under this Agreement or as to any matter to be
agreed upon between the parties under this Agreement shall in default of
agreement between the parties and in the absence of any provision in this
Agreement to the contrary be referred to and settled by arbitration under the
provisions of the Commercial Arbitration Act 1985 and notwithstanding section
20(1) of that Act each party may be represented before the arbitrator by a
duly qualified legal practitioner or other representative.
(2) Except where
otherwise provided in this Agreement, the provisions of this Clause shall not
apply to any case where the State the Minister or any other Minister in the
Government of the State is by this Agreement given either expressly or
impliedly a discretionary power.
(3) The arbitrator of
any submission to arbitration under this Agreement is hereby empowered upon
the application of either of the parties to grant in the name of the Minister
any interim extension of any period or variation of any date referred to
herein which having regard to the circumstances may reasonably be required in
order to preserve the rights of that party or of the parties under this
Agreement and an award may in the name of the Minister grant any further
extension or variation for that purpose.
Consultation
40. The Company shall during the currency of this
Agreement consult with and keep the State fully informed on a confidential
basis concerning any action that the Company proposes to take with any third
party (including the Commonwealth or any Commonwealth constituted agency
authority instrumentality or other body) which might significantly affect the
overall interest of the State under this Agreement.
Notices
41. Any notice consent or other writing authorised
or required by this Agreement to be given or sent shall be deemed to have been
duly given or sent by the State if signed by the Minister or by any senior
officer of the Public Service of the said State acting by the direction of the
Minister and forwarded by prepaid post or handed to the Company at its address
hereinbefore set forth or other address in the said State nominated by the
Company to the Minister and by the Company if signed on its behalf by any
person or persons authorised by the Company or by its solicitors as notified
to the State from time to time and forwarded by prepaid post or handed to the
Minister and except in the case of personal service any such notice consent or
writing shall be deemed to have been duly given or sent on the day on which it
would be delivered in the ordinary course of post.
Term of Agreement
42. Subject to the provisions of subclause (6) of
Clause 6 and Clauses 32 and 33, this Agreement shall expire on the expiration
or sooner determination or surrender of the mining leases.
Applicable law
43. This Agreement shall be interpreted according
to the law for the time being in force in the State of Western Australia.
THE SCHEDULE
WESTERN AUSTRALIA
ONSLOW SALT AGREEMENT 1992
MINING LEASE
MINING LEASE NO. S.A.
The Minister for Mines a corporation sole established by the Mining Act 1978
with power to grant leases of land for the purposes of mining in consideration
of the rents and royalties reserved by the Agreement described in the Second
Schedule to this lease (hereinafter called “the Agreement”) and of
the covenants on the part of the Lessee described in the First Schedule to
this lease and of the conditions hereinafter contained and pursuant to the
Mining Act 1978 (except as otherwise provided by the Agreement) hereby leases
to the Lessee the land more particularly delineated and described in the Third
Schedule to this lease for evaporites as defined in the Agreement subject
however to the exceptions and reservations set out in the Fourth Schedule to
this lease and to any other exceptions and reservations which subject to the
Agreement are by the Mining Act 1978 and by any Act for the time being in
force deemed to be contained herein to hold to the Lessee this lease for a
term of twenty-one years commencing on the date set out in the Fifth Schedule
to this lease upon and subject to such of the provisions of the
Mining Act 1978 except as otherwise provided by the Agreement as are
applicable to mining leases granted thereunder and to the covenants and
conditions herein contained or implied and any further conditions or
stipulations set out in the Sixth Schedule to this lease the Lessee paying
therefor the rents and royalties as provided in the Agreement with the right
during the currency of the Agreement and in accordance with the provisions of
the Agreement to take two successive renewals of the term each for a further
period of twenty one years upon the same terms and conditions subject to the
sooner determination of the said term upon cessation or determination of the
Agreement PROVIDED ALWAYS that this lease and any renewal thereof shall not be
determined or forfeited otherwise than in accordance with the Agreement.
In this Lease —
— “Lessee” includes the
respective successors and permitted assigns of each Lessee.
— If the Lessee be more than one the
liability of the Lessee hereunder shall be joint and several.
— Reference to an Act includes all
amendments to that Act and to any Act passed in substitution therefor or in
lieu thereof and to the regulations and by-laws for the time being in force
thereunder.
FIRST SCHEDULE
ONSLOW SALT PTY LTD A.C.N. 050 159 558 a company incorporated in the State of
Western Australia and having its registered office at Suite 6, 18 Harvest
Terrace, West Perth
SECOND SCHEDULE
The Agreement made between the STATE OF WESTERN AUSTRALIA and ONSLOW SALT PTY
LTD and ratified by the Onslow Salt Agreement Act 1992 .
THIRD SCHEDULE
(Description of Land:)
Locality:
Mineral Field: Area, etc:
Being the land delineated on Survey Diagram No.
and recorded in the Department
of Minerals and Energy, Perth.
FOURTH SCHEDULE
All petroleum as defined in the Petroleum Act 1967 on or below the surface of
the land the subject of this lease is reserved to the Crown in right of the
State of Western Australia with the right of the Crown in right of the State
of Western Australia and any person lawfully claiming thereunder or otherwise
authorised to do so to have access to the land the subject of this lease for
the purpose of search for and for the operations of obtaining petroleum (as so
defined) in any part of the land.
FIFTH SCHEDULE
(Date of Commencement of the Mining Lease)
SIXTH SCHEDULE
(Any further conditions or stipulations)
IN witness whereof the Minister for Mines has affixed his seal and set this
hand hereto this 2nd day of November 1992
SIGNED by the said
THE HONOURABLE CARMEN
MARY LAWRENCE in the presence of:
MINISTER FOR STATE DEVELOPMENT Ian TAYLOR
THE COMMON SEAL of ONSLOW SALT PTY LTD
ONSLOW SALT
PTY LTD was
A.C.N. 050 159 558
hereunto affixed by authority
[C.S.]
of the Directors in the
presence of:
____________________
Director (George Neville
Lewis HAMMOND)
____________________
Director/Secretary (Russell
Leon HALPERN)