[s. 2]
[Heading amended: No. 17 of 1985 s. 5; No. 19 of
2010 s. 4.]
THIS AGREEMENT made this 27th day of July One thousand nine hundred and
seventy-one BETWEEN THE HONOURABLE JOHN TREZISE TONKIN, M.L.A., 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 one part and POSEIDON LIMITED a company incorporated
under the Companies Act of the State of South Australia and registered in the
State of Western Australia as a foreign company (hereinafter called “the
Company” in which term shall be included the Company and its successors
and assigns) of the other part.
WHEREAS
(a) the
Company has established the existence of nickel ore within the mining areas
defined in Clause 1 and has carried out certain investigations relating inter
alia to the mining and treatment of that ore and the sale of nickel containing
products;
(b) the
Company now intends to commence mining ore at Mount Windarra and transporting
that ore by road and rail to Fimiston for concentration and sale and where
appropriate for subsequent transport to Esperance for shipment;
(c) the
Company intends to provide facilities and services necessary for its
operations hereunder and for the accommodation, health, education and welfare
of its employees;
(d) the
Company intends to further develop its nickel deposits with a view to
concentrating ore at or near Mount Windarra and if practicable to increase
progressively the scale and scope of its operations; and
(e) the
State requires the Company, subject to economic feasibility, to pursue
actively and progressively a policy of increasing the upgrading of ore leading
ultimately to the production in Western Australia of nickel metal from that
ore.
NOW THIS AGREEMENT WITNESSETH —
1. In this Agreement subject to the context
—
“apply”, “approve”, “approval”,
“consent”, “certify”, “direct”,
“notify”, “request” or “require” means
apply approve approval consent certify direct notify request or require in
writing as the case may be;
“associated company” means —
(a) any
company providing for the purposes of this Agreement capital of not less than
two million dollars ($2,000,000) which is incorporated or formed within the
United Kingdom the United States of America or Australia or such other country
as the Minister may approve and which —
(i)
is promoted by the Company for all or any of the purposes
of this Agreement and in which the Company or some other company acceptable to
the Minister has not less than a twenty-five per cent (25%) interest or some
lesser interest acceptable to the Minister; or
(ii)
being a corporation is related within the meaning of that
term as used in section 6 of the Companies Act 1961 , to any company in which
the Company or some other company acceptable to the Minister holds not less
than twenty-five per cent (25%) of the issued ordinary share capital; and
(iii)
is notified to the Minister by the Company as being such
a company;
(b) any
company approved in writing by the Minister;
“associated works” means and includes mine development the
installation of mining plant mining equipment and plant for the treatment of
nickel ore or any derivative of nickel ore, works for the provision of
electricity, and the construction of housing and communal facilities for the
proper and reasonable accommodation health and recreation of workers employed
by the Company and of contractors engaged in carrying out the Company’s
operations under this Agreement;
“Clause” means a clause of this Agreement;
“commencement date” means the date the Bill referred to in
subclause (1) of Clause 2 comes into operation as an Act;
“Commonwealth” means the Commonwealth of Australia and includes
the Government for the time being thereof;
“Land Act” means the Land Act 1933 ;
“matte” means a smelter product containing principally nickel with
other elements in varying proportions;
“mineral leases” means the mineral lease or mineral leases
referred to in Clause 12 and any renewals thereof;
“Mining Act” means the Mining Act 1904 ;
“mining areas” means the areas delineated and coloured red on the
plan marked “A” initialled by or on behalf of the parties hereto
for the purposes of identification together with such of the areas delineated
and coloured yellow on the said plan over which mineral claims may at any
future time be granted to the Company by the Minister for Mines or transferred
to the Company with the approval of that Minister;
“Minister” means the Minister in the Government of the State for
the time being responsible (under whatsoever title) for the administration of
the Ratifying Act and pending the passing of the 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 in the Government of the
State for the time being responsible for the administration of the Mining Act;
“month” means calendar month;
“nickel concentrates” means concentrates obtained by treating
nickel ore;
“nickel-containing products” means nickel concentrates matte
nickel metal and any other nickel-containing product;
“nickel metal” means the metallic product obtained by refining
nickel concentrates or matte;
“notice” means notice in writing;
“ore” means nickel ore;
“person” or “persons” includes bodies corporate;
“private road” means a road (not being a public road) which is
either constructed by the Company in accordance with its proposals as approved
by the Minister pursuant to Clause 5 or agreed by the parties to be a private
road for the purposes of this Agreement;
“public road” means a road as defined by the Traffic Act 1919 ;
“Public Works Act” means the Public Works Act 1902 ;
“Railways Commission” means the Western Australian Government
Railways Commission established pursuant to the Government Railways Act 1904
;
“Ratifying Act” means the Act to ratify this Agreement and
referred to in Clause 2;
“smelter” means a smelter plant or any other plant in which matte
or nickel-containing products (other than nickel concentrates) are produced
from ore or nickel concentrates;
“State Electricity Commission” means the State Electricity
Commission of Western Australia established pursuant to the State Electricity
Commission Act 1945 ;
“this Agreement” “hereof” and “hereunder”
refers to this Agreement whether in its original form or as from time to time
added to varied or amended;
“town” means the town to be developed by the Company with the
approval of the State;
“townsite” means the site on which the town is to be situated
delineated and coloured green on the plan marked “A” referred to
in the definition of “mining areas” in this clause subject to such
alterations of the area or boundaries thereof as may be contained in the
Company’s proposals as approved by the Minister under Clause 5.
Marginal notes shall not affect the interpretation or construction hereof 1 .
Monetary references in this Agreement are to Australian currency.
Power given under any clause of this Agreement other than Clause 39 to extend
any period or date shall be without prejudice to the power of the Minister
under the said Clause 39.
Reference in this Agreement to an Act shall include the amendments to such 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 1
2. (1) The provisions
of this Agreement other than this Clause and Clauses 1 and 3 shall not come
into operation until the Bill referred to in Clause 3 has been passed by the
Parliament of Western Australia and comes into operation as an Act.
(2) If before the 31st
day of December, 1971 the said Bill is not passed this Agreement will then
cease and determine and neither of the parties hereto will have any claim
against the other of them with respect to any matter or thing arising out of,
done, performed or omitted to be done or performed under this Agreement.
(3) On the said Bill
commencing to operate as an Act all provisions of this Agreement shall operate
and take effect notwithstanding the provisions of any Act or law.
Initial obligations of the State 1
3. The State shall —
(a)
introduce and sponsor a Bill in the Parliament of Western Australia to ratify
this Agreement and endeavour to secure its passage as an Act prior to the 31st
day of December, 1971; and
(b) to
the extent reasonably necessary for the purposes of this Agreement allow the
Company to enter upon Crown lands (including, if applicable, land the subject
of a pastoral lease).
Company to submit Proposals 1
4. (1) On or before
the 31st day of December, 1971 (or thereafter within such extended time as the
Minister may allow as hereinafter provided) the Company shall submit to the
Minister —
(a) to
the fullest extent reasonably practicable its detailed proposals (which
proposals shall include plans where practicable and specifications where
reasonably required by the Minister and measures to be taken for the
protection of the environment) for stage one comprising a mining and treatment
project with a capacity to produce not less than seven hundred thousand
(700,000) tons per year of ore from so much of the mining areas as shall be
comprised in the mineral leases and the transport and shipment through a port
within the State of Western Australia of nickel-containing products and for
making provision for the necessary work force and associated population
required to enable the Company to mine ore in the mining areas and to process
it at the ore treatment plant of Lake View and Star Ltd. at Fimiston or the
Company’s plant at Mount Windarra or at such other site or sites as the
parties hereto may agree, and including 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 —
(i)
the mining, crushing, milling and concentrating of ore
from the mining areas;
(ii)
roads;
(iii)
railways including the upgrading of existing railways and
the provision of rolling stock;
(iv)
facilities for the export of nickel-containing products
through a port in the State of Western Australia;
(v)
water supply;
(vi)
town, including housing, provision of utilities and
services and associated facilities;
(vii)
power generation and distribution;
(viii)
any other works, services or facilities desired by the
Company;
(ix)
any leases, licences or other tenures of land required
from the State;
Marketing and finance 1
(b)
subject to the provisions of subclause (3) of this Clause reasonable evidence
of marketing arrangements demonstrating the Company’s ability to sell or
use ore or nickel-containing products or a substantial proportion thereof and
reasonable evidence of the availability of finance necessary for the
fulfilment of the Company’s proposals under this Clause.
Order of submission of Proposals 1
(2) The Company shall
have the right to submit to the Minister its detailed proposals aforesaid in
regard to the matter or matters the subject of any of the subparagraphs
numbered (i) to (ix) inclusive of paragraph (a) of subclause (1) of this
Clause as and when the detailed proposals become finalised by the Company
PROVIDED THAT where any such matter is the subject of a subparagraph which
refers to more than one subject matter the detailed proposals shall relate to
and cover each of the matters mentioned in the subparagraph.
Extension of time for financing and marketing 1
(3) (a)
If the Company for any reason desires an extension
of time beyond the said 31st day of December, 1971 within which to comply with
the requirements of paragraph (b) of subclause (1) of this Clause it may make
a written request therefor to the Minister not earlier than the 1st day of
October, 1971 or later than the 30th day of November, 1971 and with such
request shall supply the Minister with details of its endeavours to comply
with those requirements then if the Minister is satisfied that such endeavours
are reasonable in the circumstances and that the Company has otherwise duly
complied with its obligations hereunder the Minister shall grant an extension
of such time for a period of six (6) months.
(b) If
after having been granted an extension of time pursuant to a request made
under the last preceding paragraph the Company desires any further extensions
of time it shall in each case make a written request therefor to the Minister
and with such request supply the Minister with details of its further
endeavours to comply with the requirements of paragraph (b) of subclause (1)
of this Clause then if the Minister is satisfied that such further endeavours
are reasonable in the circumstances and that the Company has otherwise duly
complied with its obligations hereunder the Minister shall grant the Company
one or more further extensions of time for such period or periods as he may
consider the circumstances warrant but such extension shall not be to a date
later than the 31st day of December, 1973.
Consideration of proposals under Clause 4(1) 1
5. (1) Within two (2)
months after receipt of the detailed proposals of the Company in regard to any
of the matters mentioned in paragraph (a) of subclause (1) of Clause 4 the
Minister shall give to the Company notice either of his approval of the
proposals or of alterations desired thereto and in the latter case shall
afford to the Company opportunity to consult with and to submit new proposals
to the Minister. The Minister may make such reasonable alterations to or
impose such reasonable conditions on the proposals or new proposals (as the
case may be) as he shall think fit having regard to the circumstances
including the overall development and use by others as well as the Company of
any natural resource or public utility but the Minister shall in any notice to
the Company disclose his reasons for any such alterations or conditions
PROVIDED THAT the Minister shall not (except on the grounds of conflict with
the Mines Regulation Act 1946 ) make any alterations to or impose conditions
upon the proposals or new proposals insofar as they relate to the site of the
mining operations or the mining methods selected by the Company or to those
aspects of the Company’s plant for the treatment of ore which do not in
the Minister’s opinion adversely affect the environment or public safety
or the economic use of water resources.
Arbitration as to Proposals 1
(2) Within two (2)
months of the receipt of any notice under subclause (1) of Clause 5 the
Company may elect by notice to the State to refer to arbitration and within
two (2) months thereafter shall refer to arbitration as hereinafter provided
any dispute as to the reasonableness of any such alteration or condition. If
by the award on arbitration the dispute is decided against the Company then
unless the Company within three (3) months after delivery of the award gives
notice to the Minister of its acceptance of the award this Agreement shall on
the expiration of that period of three (3) months cease and determine (save as
provided in Clause 32) but if the question is decided in favour of the Company
the decision shall take effect as a notice by the Minister that he is so
satisfied with and approves the matter or matters the subject of the
arbitration.
Effect of non-approval of Proposals 1
(3) Notwithstanding
that under subclause (1) of this Clause any detailed 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 the 29th
day of February, 1972 or by such extended date if any as the Company shall be
entitled to or shall be granted pursuant to the provisions hereof then at any
time after the said 29th day of February, 1972, or if any extension or
extensions should be granted under subclause (3) of Clause 4 or any other
provision of this Agreement then on or after the expiration of the last of
such extensions the Minister may give to the Company twelve (12) months notice
of intention to determine this Agreement and unless before the expiration of
the said twelve (12) months 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 32.
Further Proposals 1
6. Notwithstanding the final approval pursuant to
Clause 5 of the Company’s stage one proposals (referred to in paragraph
(a) of subclause (1) of Clause 4) the Company may from time to time thereafter
submit further or additional proposals for the purposes of this Agreement in
which case the provisions of Clauses 4 and 5 so far as applicable shall apply
thereto mutatis mutandis .
Construction of works 1
7. The Company shall in accordance with its
proposals as finally approved under Clause 5 within six (6) months next
following the date of such approval commence the construction of the works
referred to in such proposals and will complete all such works by the 31st day
of December, 1972 except as otherwise specified in such proposals.
Roads 1
8. (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;
(b) at
its own cost make such provision as shall ensure that all persons and vehicles
(other than those engaged upon the Company’s operations and its invitees
and licensees) are excluded from use of any such private roads; and
(c) at
any place where such private roads are constructed by the Company so as to
cross any public roads provide grade separation or such other protection as
may be required by the Commissioner of Main Roads or Railways Commission as
the case may be.
(2) The State shall
construct or cause to be constructed a public road suitable for the
Company’s operations hereunder in accordance with the requirements of
the Commissioner of Main Roads connecting by the shortest practicable route
the Kalgoorlie-Wiluna Road to Malcolm and thence to the townsite and extending
to a point within the mining areas to be agreed between the parties. Such road
shall be sealed to a width of not less than twenty (20) feet or such greater
width as may be agreed. The State shall use its best endeavours to complete
the section of the road between Malcolm and the agreed point within the mining
areas within twelve (12) months of the approval under Clause 5 of the
Company’s proposals relevant to the said road and the remaining section
within the next succeeding twelve (12) months.
(3) The Company shall
pay to the State at the times and in the manner required by the State one half
of the cost of the construction and sealing of the public road referred to
under subclause (2) of this Clause.
(4) The State shall at
its own expense construct such further public roads as shall be necessary to
connect the townsite with Laverton.
(5) Subject to the
provisions of paragraph (c) of Clause 14 the State shall maintain public roads
over which it has control (and which may be used by the Company) to a standard
similar to comparable public roads maintained by the State.
(6) 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 or Local Authority concerned (except where and to the extent that the
Commissioner of Main Roads or Local Authority agrees to bear the whole or part
of the cost involved) the total cost of any upgrading required or of making
good the damage or deterioration.
Railways 1
9. (1) Subject to the
by-laws made under the Government Railways Act 1904 , (insofar as those
by-laws are not inconsistent with this Agreement) and subject to the
provisions of this Clause the Company shall consign at its own risk, and the
State shall cause the Railways Commission to transport, by rail, all the
Company’s requirements of —
Products to be transported by rail 1
(a) ore
and nickel-containing products from the railhead at Malcolm to the plant site
of Lake View and Star Limited at Fimiston or to any other processing plant in
the vicinity of Kalgoorlie approved by the Minister; and
(b)
nickel-containing products from Fimiston or Malcolm to Esperance or such other
port as may be approved hereunder.
Reconstruction 1
(2) The Company shall
from time to time as required by the Railways Commission pay to the State a
sum or sums to be agreed between the parties towards the cost of upgrading or
reconstructing the existing railway line between Malcolm and Kalgoorlie in
narrow gauge (3 feet 6 inches) in accordance with proposals from time to time
approved under Clause 5 (including the cost of providing inter alia any
deviations, loops, spurs, sidings, crossings, points, bridges, and other works
and appurtenances) to achieve a capacity to enable the Railways Commission to
transport ore or nickel concentrates at a rate not exceeding seven hundred
thousand (700,000) tons per annum and all other rail freight required by the
Company for its operations hereunder for a period of five (5) years from the
date on which rail haulage of the Company’s ore or nickel concentrates
commences.
Notice of further requirements 1
(3) Not later than
eighteen (18) months after the date of commencement of haulage of ore referred
to in subclause (2) of this Clause the Company shall give notice to the State
of its estimated future rail transport requirements hereunder (including
provisional annual tonnages) of ore and nickel-containing products.
Preparation of specifications 1
(4) On receipt of the
notice referred to in subclause (3) of this Clause the State shall cause the
Railways Commission in consultation with the Company to prepare a
specification (including all necessary plans and bills of quantities) of the
works required to further upgrade or reconstruct the existing Malcolm to
Kalgoorlie railway line in narrow gauge (3 feet 6 inches) to enable the
Railways Commission to transport the Company’s rail freight to the
extent specified and in accordance with the said notice.
Calling of tenders 1
(5) As soon as
practicable after completion of the specification mentioned in subclause (4)
of this Clause the State shall cause the Railways Commission to call tenders
in accordance with the said specifications. The amount of each tender received
by the Railways Commission pursuant to this subclause shall be notified to the
Company.
Company’s Contribution 1
(6) The Company shall
pay to the State a sum or sums to be agreed between the parties as being the
Company’s fair share of the cost of the works referred to in subclause
(4) of this Clause having regard to the proposed use of the works by the
Company.
(7) In the event that
the State requires all or any part of the works referred to in either or both
of subclauses (2) and (4) of this Clause to be completed in standard gauge (4
feet 8½ inches) the State may in its discretion so proceed in which case
the Company’s contribution will be a sum to be determined by the
Railways Commission not exceeding the amount which would have been payable by
the Company if the works had been completed in narrow gauge (3 feet 6 inches).
New Railway 1
(8) The Company shall
—
(a) pay
to the State a sum or sums to be agreed between the parties towards the cost
of providing any new railway required for the purpose of the operations of the
Company hereunder (including all necessary land acquisitions, loops, spurs,
sidings, crossings, points, bridges and other works and appurtenances) to
enable the Railways Commission to transport the Company’s rail freight
in the course of its operations hereunder;
Other facilities 1
(b) at
its own cost provide and maintain such sidings, shunting loops, spurs and
other connections as are required solely for its operations hereunder and
provide and maintain loading and unloading facilities sufficient to meet train
operating requirements and terminal equipment (including weighing device),
together with a staff adequate to ensure the proper operation of all such
loading and unloading facilities and terminal equipment;
Kalgoorlie-Fimiston Railway 1
(c) if
required by the State contribute to the cost of reconstructing the railway
between Kalgoorlie and an agreed terminal point on the plant site of Lake View
and Star Limited at Fimiston or at any other processing plant in the vicinity
of Kalgoorlie approved by the Minister.
Rolling Stock 1
(9) The Company shall
—
Wagons 1
(a) If
required by the Railways Commission provide sufficient wagons (including spare
wagons) and necessary replacements except replacements made necessary by the
wilful misconduct of the Railways Commission (to a design and specification
approved by the Railways Commission) to carry all the Company’s
requirements of ore and nickel concentrates in the course of its operations
hereunder; and
Locomotives and brakevans 1
(b) if
required by the Railways Commission provide sufficient locomotives and
brakevans (to a design and specification approved by the Railways Commission)
for the transport of all rail freight offering in the course of its operations
hereunder and lease such locomotives and brakevans to the Railways Commission
on such terms and conditions as may be agreed by the parties.
Maintenance 1
(10) Subject to the
provisions of paragraph (b) of subclause (8) of this Clause the State shall at
its own expense maintain and service all railways, locomotives, brakevans and
wagons necessary for the purposes of this Agreement.
Notice of requirements 1
(11) In addition to
the provisions of subclause (3) of this Clause the Company shall provide to
the satisfaction of the Railways Commission adequate notice in advance of its
requirements (including anticipated tonnages in each year) as to the use of
the railway to enable the Railways Commission to make arrangements to meet
those requirements and shall thereafter give adequate notice of any change in
those requirements. In particular the Company shall agree with the Railways
Commission the pattern of working including weekly and monthly despatches and
the hours of working.
Trimming 1
(12) The Company shall
ensure that all wagons are properly trimmed and loaded to the tonnages
prescribed in the First Schedule hereto.
Freight 1
(13) The Company shall
pay to the State freight in respect of all commodities specified in the First
Schedule hereto carried by the Railways Commission pursuant to this Agreement
at the appropriate freight rates and in the manner set out in that schedule.
Electricity 1
10. (1) The Company
shall in accordance with its proposals as finally approved and subject to the
provisions of the Electricity Act and the approval and requirements of the
State Electricity Commission, install and operate without cost to the State,
at a convenient location within the mining areas, equipment to generate
electricity of sufficient capacity for its operations hereunder.
(2) The Company may
transmit power from the mining areas to the townsite or elsewhere subject to
the provisions of the Electricity Act and the approval and requirements of the
State Electricity Commission.
(3) The Company may
subject to the provisions of the Electricity Act and the requirements of the
State Electricity Commission sell power transmitted pursuant to subclause (2)
of this Clause to third parties within the townsite or elsewhere.
(4) In the event that
the Company is unable to procure easements or other rights over land required
for the purposes 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.
(5) In the event that
the State Electricity Commission desires to assume responsibility for the
distribution of power within the townsite, the Company shall sell all of its
electrical distribution plant and distribution facilities to the State
Electricity Commission at a price to be agreed and shall make available to the
State Electricity Commission a continuous supply of electricity in bulk at a
tariff and for a term to be agreed. If the Company and the State Electricity
Commission fail to reach agreement under this subclause the matter in dispute
shall be referred to arbitration in accordance with the provisions of Clause
40.
(6) In the event that
a local authority with the approval of the State Electricity Commission
desires to assume responsibility for the distribution of power within the
townsite, the Company may sell all of its electrical distribution plant and
distribution facilities to that local authority and make available to it a
continuous supply of electricity in bulk on terms to be agreed between the
Company and that local authority.
Water Supply 1
11. (1) The Company
estimates (on the basis that its ore is to be concentrated at the treatment
plant of Lake View and Star Limited at Fimiston) that its daily requirements
of water at the townsite and at Mount Windarra to implement its stage one
proposals (referred to in paragraph (a) of subclause (1) of Clause 4 as
finally approved under Clause 5 will be as follows —
Potable water — not less than seven hundred and forty thousand (740,000)
gallons;
Non-potable water — nil.
The above amount or such other amounts as shall from time to time be agreed
between the parties hereto to be reasonable shall hereinafter be called
“the Company’s daily water requirements”.
(2) The Company shall
at its cost and in collaboration with the State search for underground water
within the mining areas. Where appropriate the Company shall employ and retain
experienced groundwater consultants and shall furnish copies of the reports of
such consultants to the Minister as they become available.
(3) If the water
sources within the mining areas prove inadequate to supply the Company’s
daily water requirements the parties hereto shall agree on a programme which
shall be carried out by the State at the cost of the Company to search for
water outside the mining areas.
(4) If the
investigations referred to in subclause (2) of this Clause establish the
availability of suitable subterranean sources, the State shall grant to the
Company a licence to develop and draw from such sources the Company’s
daily water requirements on such terms and conditions as the Minister may
approve.
(5) If during the
currency of a licence granted under the provisions of subclause (4) of this
Clause the Minister is of the opinion that it would be desirable for water
conservation purposes or water management purposes that sources of water
licensed to the Company be controlled and operated by the State as part of a
district water supply scheme, the Minister may on giving six (6) months prior
notice to the Company of his intention, revoke the licence and take over the
Company’s water supply facilities in each case without payment of
compensation.
(6) In the event of
the revocation of the licence pursuant the provisions of subclause (5) of this
Clause the State shall subject to the continued availability of water from
such source supply sufficient water to meet the Company’s daily water
requirements.
(7) If water sources
within the mining areas prove inadequate to supply the Company’s daily
water requirements, other water sources (which are identified by the
State’s investigations conducted pursuant to subclause (3) of this
Clause and from which the State agrees adequate supplies are available to
supply the Company’s water requirements) shall be developed by the State
at the Company’s expense including the provision of all necessary bores
pipeline fittings equipment and facilities. The State shall supply the Company
with sufficient water (subject to continued availability) to meet that portion
of the Company’s daily water requirements not obtainable from sources
developed pursuant to subclause (4) of this Clause.
(8) The State shall
with all reasonable expedition construct the works required for the purposes
of subclause (7) of this Clause. The State may in its discretion develop any
district or regional water supply or construct any works to a greater capacity
than that required to supply the Company’s water requirements but in
that event the cost of the system as so enlarged shall be shared by the
parties hereto in such manner as may be agreed to be fair in all the
circumstances.
(9) The Company shall
pay the State for water supplied by the State and consumed on the mining areas
and at the townsite (until the townsite is constituted pursuant to section 10
of the Land Act) a fair price to be negotiated between the parties having
regard to the actual cost of operating and maintaining the supply and
provision for replacement of the water supply facility. Water supplied by the
State to all consumers within the townsite after the townsite is constituted
pursuant to section 10 of the Land Act shall be subject to the provisions of
the Country Areas Water Supply Act 1947 .
(10) The Company shall
to the extent that it is practical and economical, design, construct and
operate its ore treatment plant so as —
(a) to
make use of saline water; and
(b) to
recycle all water.
(11) Any reference in
this Clause to a licence is a reference to a licence under the
Rights in Water and Irrigation Act 1914 and the provisions of that Act
relating to water rights and licences shall apply to any water source
developed for the Company’s purpose under this Agreement as though the
water sources were in a proclaimed area north of the twenty-sixth parallel of
south latitude.
(12) The Company
estimates that in the event of it expanding its operations beyond those
referred to in subclause (1) of this Clause additional quantities of water
will be required at the townsite and at Mount Windarra as follows: —
(a) For
the concentration of ore: —
Potable water for industrial and domestic purposes — five hundred and
thirty thousand (530,000) gallons per day;
Non-potable water — seven hundred thousand (700,000) gallons per day.
(b) for
the smelting of ore and nickel concentrates into matte or nickel metal:
—
Potable water for industrial and domestic purposes — fifty thousand
(50,000) gallons per day;
Non-potable water — fifty thousand (50,000) gallons per day.
In the event of such development occurring the Minister shall determine the
amount of water that shall be made available to the Company and the conditions
of supply. In making such determination the Minister may have regard to work
done and expenditure under the provisions of this Clause.
Mineral Leases 1
12. (1) The State
shall as soon as conveniently may be after the commencement date, on
application made by the Company which application shall be made at any time or
from time to time before the expiration of two (2) years from the commencement
date cause to be granted to the Company at rentals specified from time to time
in the Mining Act mineral leases of such land within the mining areas so
applied for (notwithstanding the survey in respect thereof has not been
completed but subject to such corrections to accord with the survey when
completed) such mineral leases to be granted under and, except as otherwise
provided in this Agreement, subject to the Mining Act but in the form of the
Second Schedule hereto and in respect of the minerals set out therein or in
such other form and in respect of such other minerals as the Minister for
Mines may from time to time approve.
(2) 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 mineral leases shall be for a period of twenty-one
(21) years commencing from the date of receipt of application with one option
of renewal for a further period of twenty-one (21) years under the same terms
and conditions (except as to this option of renewal). The Minister for Mines
may in his discretion not more than twelve (12) months nor less than six (6)
months before the date of expiry of such renewed term at the request of the
Company subject to this Agreement continuing in force up to the date when such
renewed term is due to expire, grant a second renewal of any mineral leases
for a further term of twenty-one (21) years on and subject to such terms and
conditions as the Minister may determine.
Lands 1
13. (1) For the
purposes of the Company’s operations and associated works at the
townsite the State shall grant to the Company for residential professional
business commercial and industrial purposes and the provision of communal
facilities at the townsite a special lease or special leases under the
provisions of the Land Act for an area or areas of land contained in the
townsite in accordance with the Company’s proposals as finally approved
such lease or each lease as the case may be being for a term expiring
twenty-one (21) years from the date hereof at rental of one (1) peppercorn per
annum with the right for the Company at any time during the currency of the
lease to purchase for a nominal price to be agreed by the parties the fee
simple of any townsite lot on which buildings or structures have been erected
at a cost (averaged over the lot concerned) in the case of dwelling houses of
not less than seven thousand dollars ($7,000) or in the case of other
buildings or structures of not less than ten thousand dollars ($10,000) for
such lot. Such lease or leases may be granted on and subject to such terms and
conditions not inconsistent with this Agreement as the Minister considers
applicable in the circumstances and including a right for the State at any
time and from time to time to exclude from the lease or resume without
compensation any part or parts of such land on which no building or structure
has been erected as the State may require for public purposes.
(2) The State shall in
accordance with the Company’s proposals as finally approved grant to the
Company or arrange to have the appropriate authority or other interested
instrumentality of the State grant for such terms or periods and on such terms
and conditions (including renewal rights) as shall be reasonable having regard
to the requirements of the Company leases for all or any of the purposes of
the Company’s operations hereunder including any of the following namely
— townsites, private roads, railway sidings and spur lines, tailing
areas, water pipelines, pumping installations and reservoirs, airport, power
transmission lines and stockpile areas.
Modification of Land Act 1
(3) For the purposes
of this Agreement in respect of any land sold or leased to the Company by the
State the Land Act shall be deemed to be modified by: —
(a) the
substitution for subsection (2) of section 45A of the following subsection:
—
“(2) Upon the
Governor signifying approval pursuant to subsection (1) of this section in
respect of any such land the same may subject to this section be sold or
leased;”
(b) the
deletion of the proviso to section 116;
(c) the
deletion of section 135;
(d) the
deletion of section 143;
(e) the
inclusion of a power to offer for sale or leasing land within or in the
vicinity of the townsite notwithstanding that the townsite has not been
constituted a townsite under section 10; and
(f) the
inclusion of a power to offer for sale or grant leases or licences for terms
or periods and on such terms and conditions (including renewal rights) and in
forms consistent with the provisions of this Agreement in lieu of the terms or
periods, the terms and conditions and the forms referred to in the Land Act ;
The provisions of this subclause shall not operate so as to prejudice the
rights of the State to determine any lease licence or other right or title in
accordance with the other provisions of this Agreement.
Townsite Development 1
14. (a)
To enable the Company to do those things necessary to attract and sustain a
stable and content workforce and population in the town (including the
development and maintenance of an attractive physical environment together
with appropriate community, recreation, civic, social and commercial
amenities) the Company shall collaborate with the State in the planning,
location and development of the town and shall employ a skilled and
experienced town planner to prepare a town plan for initial and long term town
development which town plan shall be submitted by the Company as a proposal
pursuant to subparagraph (vi) of paragraph (a) of subclause (1) of Clause 4.
The parties to this Agreement recognise that the future development of the
town shall where practicable be based on the principles of the town plan
hereinbefore referred to as approved pursuant to Clause 5.
(b) The
State shall within three (3) years after the commencement date constitute the
townsite pursuant to section 10 of the Land Act provided that in so doing the
State shall have regard to the Company’s requirements and shall give to
the Company not less than six (6) months prior notice of its intention.
(c)
Until such time as the townsite is constituted in accordance with paragraph
(b) of this Clause the Company shall at its cost provide and maintain at the
townsite and make available —
(i)
at such prices, rentals or charges and upon such terms
and conditions as are fair and reasonable under the circumstances, housing
accommodation, services and works including sewerage treatment works, water
supply works, main drainage works and social and cultural facilities; and
(ii)
without charge, public roads and buildings and other
works and equipment required for educational, hospital, medical, police or
other services
to the extent to which
any of the foregoing are necessary to provide for the needs of persons and the
dependents of such persons engaged in connection with the Company’s
operations hereunder whether or not employed by the Company.
(d) If
during the period referred to in paragraph (c) of this Clause the State
requires the Company to provide additional services, works equipment and
facilities to a greater extent than specified in paragraph (c) of this Clause,
the Company shall so provide and the State shall contribute to the cost of the
provision and maintenance of all such additional services, works equipment and
facilities as shall be fair and reasonable under the circumstances.
(e) If
at any time after the townsite is constituted pursuant to section 10 of the
Land Act the Company desires to expand operations hereunder and a substantial
consequential increase in the population of the town is likely to result
therefrom the Company shall provide at its own expense such additional housing
accommodation as may be necessary and shall contribute to the provision and
maintenance of all additional services works equipment and facilities of the
kind mentioned in paragraph (c) of this subclause as shall be reasonable
having regard to the requirements of such additional population.
(f) The
Company shall contribute to the provision and maintenance at any location
other than the townsite of such housing accommodation, services, works
equipment and facilities mentioned in paragraph (c) of this subclause to the
extent necessary to provide for the needs of persons and the dependants of
such persons engaged in connection with the Company’s operations
hereunder whether or not employed by the Company.
Port 1
15. (1) The Company
shall ship such portion of its nickel-containing products as are destined for
overseas users through the port of Esperance or such other port in the State
of Western Australia as the State may approve and shall provide at no cost to
the State all necessary unloading, storage, reclaiming, and ship loading
equipment and all other facilities required at the port of Esperance to carry
out its obligations hereunder. The Company shall provide facilities as
necessary and carry out its operations at the port in accordance with its
proposals as submitted to and approved by the Minister hereunder.
(2) The Company may as
an alternative to subclause (1) of this Clause negotiate with third parties
already operating at the port of Esperance with a view to sharing at no cost
to the State port facilities already provided by others.
(3) The Company shall
pay to the Esperance Port Authority created pursuant to the
Esperance Port Authority Act 1968 all charges properly and lawfully levied by
that Authority from time to time.
(4) The Company shall
design and operate its train unloading, stockpiling, reclaiming and ship
loading facilities at the port of Esperance so as to avoid dust nuisance and
loss of nickel concentrates during handling and storage operations.
(5) Subject to the
provisions of this Clause, the State shall permit the Company to load into
ships over the Esperance wharf, nickel-containing products and shall cause the
usual services to be provided to such ships at the charges provided under the
relevant regulations and by-laws.
Royalties 1
16. (1) The Company
shall pay to the State in respect of all minerals mined or produced by it from
the mineral leases and sold by it royalties at the rates from time to time
prescribed under or pursuant to the provisions of the Mining Act.
(2) Notwithstanding
the provisions of subclause (1) of this Clause the royalties payable by the
Company in respect of nickel-containing products during a period of three (3)
years from the date hereof shall be at rates not exceeding those prescribed
pursuant to the provisions of the Mining Act as at the date of execution
hereof.
Return and payment of royalties 1
(3) The Company shall
within fifteen (15) days of the expiration of each month during which it
receives payment for any product or mineral in respect of which royalty is
payable under this Clause give to the Minister for Mines a return showing the
number of tons of product and mineral payment for which is received during the
month and all other particulars necessary to enable the calculation of the
royalty payable thereon and shall pay to the Minister for Mines the royalty
payable on such product and mineral.
Inspection 1
(4) The Company shall
permit the Minister for Mines or his nominee to inspect at all reasonable
times and to take copies of or extracts from all books of account 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 will 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 will give due regard to any objection or representation made by the
Minister for Mines or his nominee as to any particular weight or assay of ore
or nickel-containing products which may affect the amount of royalty payable
hereunder.
Smelter 1
17. (1) At a time
convenient to the Company but in any event not later than ten (10) years after
the commencement date the Company shall investigate the technical and economic
feasibility of establishing a smelter within Western Australia. Such studies
may be on the basis of the establishment of a smelter by the Company alone or
jointly with any other company or companies. The Company shall fully report
the progress and results of such investigations to the Minister not later than
ninety (90) days after the expiry of the period referred to in this subclause.
(2) The State may also
undertake the studies mentioned in subclause (1) of this Clause and for that
purpose the Company shall provide the State with such information as it may
reasonably require but the Company shall not be obliged to supply technical
information of a confidential nature with respect to processes that have been
developed by the Company alone or with others or acquired from other sources
and that is not generally available to the nickel industry, or financial and
economic information of a confidential nature that, if disclosed, could unduly
prejudice the contractual or commercial arrangements between the Company and
third parties.
(3) The Minister may
consider the studies undertaken under subclauses (1) and (2) of this Clause
and if the Minister is of the opinion that in all the circumstances then
applying to the Company a smelter is technically and economically viable and
competitive on world markets then the Minister may notify the Company of such
decision. If so requested by the Company the Minister shall give to the
Company all information obtained during such studies (other than information
confidential to third parties).
(4) If the Company
disagrees with the result of such studies the Company shall have the right at
any time within six (6) months after the receipt of such notice to refer the
matter to arbitration hereunder. If the Company shall agree that a smelter is
technically and economically viable and competitive on world markets or if it
shall be so determined by arbitration as aforesaid then the Company shall
submit a proposal with respect to a smelter in accordance with the provisions
of Clause 6. Such proposal may be to construct a smelter either alone or
jointly with another company or other companies. Any such smelter shall be
established and commence to operate not later than fifteen (15) years after
the commencement date.
(5) If the Company
fails to establish the smelter as provided in subclause (4) of this Clause the
failure shall not give rise to any action for breach of contract nor shall the
provisions of Clause 31 apply but the State may in such event negotiate with a
third party to establish a smelter on terms and conditions not more favourable
on the whole to the third party than any terms available to the Company. In
the event of the establishment by such third party of a smelter in accordance
with the provisions hereof the Company shall (subject to any existing
contractual supply obligations entered into by the Company prior to the
expiration of two (2) years from the commencement date) if required by the
State sell to such third party nickel concentrates of the nature then being
sold by the Company. Such sale shall be for a reasonable period (having regard
to such matters as the Company’s ore reserves and the capital investment
of the third party in the smelter) and at a reasonable price (having regard to
the prevailing prices at which the Company is then selling its nickel
concentrates and any bona fide proposed sale of nickel concentrates between
the Company and an independent company dealing at arms length) and in
sufficient quantities to meet the requirements of the third party from time to
time. The Minister shall not require the Company to supply the third party
with a greater annual quantity of nickel concentrates than three-quarters of
the previous years production by the Company.
(6) The provisions of
subclause (5) of this Clause shall not apply to any ore or nickel concentrates
from time to time being smelted or refined in Western Australia by any other
company or companies.
Other Mining Tenements 1
18. The State —
(a)
shall not during the currency of this Agreement register any claim or grant
any lease or other mining tenement under the Mining Act or otherwise by which
any person other than the Company or an associated company will obtain under
the laws relating to mining or otherwise any rights to mine or take the
natural substances (other than petroleum as defined in the Petroleum Act 1967
) within the mineral leases unless the Minister reasonably determines that it
is not likely to unduly prejudice or to interfere with the operations of the
Company hereunder assuming the taking by the Company of all reasonable steps
to avoid the interference.
(b)
shall if so requested by the Company and so far as its powers and
administrative arrangements permit use reasonable endeavours to assist the
Company to obtain adequate and suitable labour for the construction and the
carrying out of the works and operations referred to in this Agreement.
Liability of Company 1
19. The parties hereto further covenant and agree
with each other that —
(a) for
the purposes of determining whether and the extent to which —
(i)
the Company is liable to any person or body corporate
(other than the State); or
(ii)
an action is maintainable by any such person or body
corporate
in respect of the
death or injury of any person or damage to any property arising out of the use
of any of the roads for the maintenance of which the Company is responsible
hereunder and for no other purpose the Company shall be deemed to be a
municipality and the said roads shall be deemed to be streets under the care
control and management of the Company; and
(b) for
the purposes of this Clause the terms “municipality”
“street” and “care control and management” shall have
the meanings which they respectively have in the Local Government Act 1960 .
Zoning 1
20. The State shall ensure that the mineral 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
operations of the Company hereunder may be undertaken and carried out thereon
without any interference or interruption by the State by any State agency or
instrumentality or by any local or other authority of the State on the ground
that such operations are contrary to any zoning by-law or regulation.
Rentals and evictions 1
21. The State shall ensure that any State
legislation for the time being in force in the State relating to the fixation
of rentals shall not apply to any houses belonging to the Company in the
townsite and that in relation to each such house the Company shall have the
right to include as a condition of its letting thereof that the Company may
take proceedings for eviction of the occupant if the latter shall fail to
abide by and observe the terms and conditions of occupancy or if the occupant
shall cease to be employed by the Company.
Labour conditions 1
22. 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 labour
conditions imposed by or under the Mining Act in regard to the mineral leases.
Subcontracting 1
23. 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 portions of the operations which it is authorised or obliged to carry out
hereunder.
Rating 1
24. 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 (whether of a freehold or leasehold nature) the
subject of this Agreement (except as to any part upon which a permanent
residence shall be erected or which is occupied in connection with that
residence 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 ore or nickel concentrates which excepted parts shall be
subject to the provisions of the Local Government Act) shall for rating
purposes be deemed to be on the unimproved value thereof and no such lands
shall be subject to any discriminatory rate PROVIDED THAT nothing in this
Clause shall prevent the Company making the election provided for by section
533B of the Local Government Act 1960 .
No resumption 1
25. Subject to the performance by the Company of
its obligations under this Agreement the State shall not during the currency
hereof 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
purposes of this Agreement nor any of the works on the lands the subject of
any lease or license 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 operations hereunder.
No discriminatory rates 1
26. Except as provided in this Agreement the State
shall not impose nor permit nor 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 operations of the Company in the conduct of
the Company’s 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.
Environmental protection 1
27. 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 the
Company’s operations hereunder that may be made by the State or by any
State agency or instrumentality or any local or other authority or statutory
body of the State pursuant to any Act from time to time in force.
Use of local labour and materials 1
28. The Company shall for the purposes of this
Agreement so far as reasonably and economically practicable use labour
available within the State and give preference to bona fide Western Australian
contractors and manufacturers in the placement of orders for works materials
plant equipment and supplies where price quality delivery and service are
equal to or better than that obtainable elsewhere and in calling tenders and
letting contracts for works materials plant equipment and supplies required by
it will ensure that bona fide Western Australian contractors and manufacturers
are given reasonable opportunity to tender or quote or otherwise be properly
considered for such works materials plant equipment and supplies.
Right to remove sand etc. 1
29. Subject to compliance with the requirements of
any Act Regulation or By-Law from time to time in force the Company may for
its own purposes remove stone sand clay or gravel from the mineral leases.
Licences and Consents 1
30. The Company shall make all necessary
applications from time to time to the proper authorities and the Commonwealth
and the State for the grant to it of any licences or consents required under
Commonwealth or State law to permit it to enter into this Agreement and
perform its obligations hereunder.
Determination of Agreement 1
31. In any of the following events namely if the
Company shall make default in the due performance or observance of any of the
covenants or obligations to the State herein or in any lease licence or other
title or document granted or assigned under this Agreement on its part to be
performed or observed and shall fail to remedy that default within reasonable
time after notice specifying the default is given to it by the State (or if
the alleged default is contested by the Company and promptly submitted to
arbitration then within a reasonable time fixed by the arbitration award where
the question is decided against the Company the arbitrator finding that there
was a bona fide dispute and that the Company had not been dilatory in pursuing
the arbitration) or if the Company shall abandon or repudiate its operations
under this Agreement or if the Company shall go into liquidation (other than a
voluntary liquidation for the purpose of reconstruction) then and in any of
such events the State may by notice to the Company determine this Agreement
and thereupon the rights of the Company hereunder shall cease and determine;
PROVIDED HOWEVER that if the Company shall fail to remedy any default after
such notice or within the time fixed 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 workmen 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 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 1
32. 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 mineral leases and any other lease
license easement or right granted hereunder or pursuant hereto 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 hereunder;
(b) the
Company shall forthwith pay to the State all moneys which may then have become
payable or accrued due;
(c) save
as aforesaid and as otherwise provided in this Agreement neither of the
parties hereto shall have any claim against another of them with respect to
any matter or thing in or arising out of this Agreement;
(d) all
railway works constructed by the State to meet the requirements of the Company
pursuant to this Agreement shall revert to the State without compensation to
the Company for any contribution by it to the cost of such railway works.
Resumptions 1
33. 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 the same 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
cost of any land resumed on behalf of the Company by the State shall be paid
by the Company.
Stamp duty exemption 1
34. (1) The State
shall exempt from any stamp duty which but for the operation of this Clause
would or might be chargeable on —
(a) this
Agreement;
(b) any
instrument executed by the State pursuant to this Agreement granting to or in
favour of the Company or any permitted assignee of the Company any lease
licence easement or right granted or demised hereunder or pursuant hereto.
PROVIDED THAT this Clause shall not apply to any instrument or other document
executed or made more than seven (7) years from the date hereof.
(2) If prior to the
date on which the Bill referred to in paragraph (a) of Clause 3 to ratify this
Agreement is passed as an Act stamp duty has been assessed and paid on any
instrument or other document referred to in subclause (1) of this Clause 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 to the person who paid the same.
Indemnity 1
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 the Company pursuant to this
Agreement or relating to its operations 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.
Assignment 1
36. (1) Subject to the
provisions of this Clause the Company may at any time —
(a)
assign mortgage charge sublet or dispose of to an associated company as of
right and any other company or person with the consent of the Minister the
whole or any part of its rights hereunder (including its rights to or as the
holder of any lease licence easement grant or other title) and of the
obligations of the Company hereunder; and
(b)
appoint as of right an associated company or with the consent of the Minister
any other company or person to exercise all or any of the powers functions and
authorities which are or may be conferred on the Company hereunder;
subject however to the assignee or (as the case may be) the appointee
executing in favour of the State 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 so assigned or (as the case may be) the subject of the
appointment.
(2) Notwithstanding
anything contained in or anything done under or pursuant to subclause (1) of
this Clause 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 herein
and in any lease licence easement grant or other title the subject of an
assignment under the said subclause (1).
(3) Notwithstanding
the provisions of section 82 of the Mining Act and of regulations 192 and 193
made thereunder and of section 81D of the Transfer of Land Act 1893 in so far
as the same or any of them may apply —
(a) no
mortgage or charge in a form commonly known as a floating charge made or given
pursuant to this Clause over any lease, licence, reserve or tenement granted
hereunder or pursuant hereto by the Company or any assignee or appointee who
has executed, and is for the time being bound by deed of covenant made
pursuant to this Clause;
(b) no
transfer or assignment made or given at any time in exercise of any power of
sale 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 such mortgage or charge shall be rendered
ineffectual as an equitable charge 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 1
37. (1) The parties
hereto may from time to time by agreement in writing add to substitute for
cancel or vary all or any of the provisions of this Agreement or of any lease
licence easement or right granted hereunder or pursuant hereto for the purpose
of more efficiently or satisfactorily implementing or facilitating any of the
objects of this Agreement.
(2) Where in the
opinion of the Minister an agreement made pursuant to subclause (1) of this
Clause would constitute a material or substantial alteration of the rights or
obligations of either party hereto, the agreement shall contain a provision to
that effect and the Minister shall cause that agreement to be laid on the
table of each House of Parliament within twelve (12) sitting days of the date
of its execution.
(3) If either House
does not pass a resolution disallowing the agreement, within twelve (12)
sitting days of that House after the agreement has been laid before it, the
agreement shall have effect from and after the last day on which the agreement
might have been disallowed.
Delays 1
38. This Agreement shall be deemed to be made
subject to any delays in the performance of obligations under this Agreement
and to the temporary suspension of continuing obligations hereunder which may
be occasioned by or arise from circumstances beyond the power and control of
the party responsible for the performance of such obligations including delays
or any such temporary suspension as aforesaid caused by or arising from act of
God force majeure floods storms tempests washaways fire (unless caused by the
actual fault or privity of the Company) act of war act of public enemies riots
civil commotions strikes lockouts stoppages restraint of labour or other
similar acts (whether partial or general) shortages or insufficient supply of
labour or water or essential materials reasonable failure to secure
contractors delays of contractors and inability (common in the nickel export
industry) to profitably sell nickel-containing products or factors due to
overall world economic conditions or factors which could not reasonably have
been foreseen PROVIDED ALWAYS that the party whose performance of obligations
is affected by any of the said causes shall minimise the effect of the said
causes as soon as possible after their occurrence.
Power to extend periods 1
39. The Minister may whether or not the period to
be extended has expired or the date to be varied has passed 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 for such period or to such
later date as the Minister thinks fit.
Arbitration 1
40. Except where otherwise specifically provided
in this Agreement any dispute or difference between the parties arising out of
or in connection with this Agreement or any agreed amendment or variation
thereof or agreed addition thereto or as to the construction of this Agreement
or any such amendment variation or addition or as to the rights duties or
liabilities of either party thereunder 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 the arbitration of two arbitrators one to be appointed
by each party the arbitrators to appoint their umpire before proceeding in the
reference and every such arbitration shall be conducted in accordance with the
provisions of the Arbitration Act 1895 , but this Clause does not apply to any
case where the State the Minister or any Minister is by this Agreement given
either expressly or impliedly a discretionary power.
Notices 1
41. Any notice consent or other writing authorised
by 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 State acting by the direction of
the Minister and forwarded by prepaid post to the Company at its registered
office for the time being in the State and by the Company if signed on its
behalf by a director manager or secretary of the Company or by any person or
persons authorised by the Company in that behalf or by its solicitors (which
solicitors have been notified to the State from time to time) and forwarded by
prepaid post to the Minister and any such notice consent or writing shall be
deemed to have been duly given or sent (unless the contrary be shown) on the
day on which it would be delivered in the ordinary course of post.
Interpretation 1
42. This Agreement shall be interpreted according
to the law for the time being in force in the State of Western Australia.
THE FIRST SCHEDULE
1. ORE
Rates per ton mile for ore transported between
Malcolm and Fimiston —
Cents per ton mile |
Aluminium Wagons |
Steel Wagons | |
Up to 250,000 net tons per annum .............. |
2.00 |
2.05 |
250,000 to 500,000 net tons per annum ...... |
1.80 |
1.85 |
500,000 to 750,000 net tons per annum ...... |
1.65 |
1.70 |
750,000 to 1,000,000 net tons per annum ... |
1.50 |
1.55 |
In excess of 1,000,000 net tons per annum .. |
1.40 |
1.45 |
2. NICKEL CONCENTRATES
Rates per ton mile —
(a)
between Malcolm and Esperance
(Note:
For the purposes of this subparagraph (a) the rail mileage
between Malcolm and Esperance shall be deemed to be four hundred and eight
(408) miles irrespective of the actual rail distance between those places at
any time); and
(b)
between Malcolm and the proposed Western Mining Corporation smelter at South
Kalgoorlie (based on the actual rail mileage) —
Cents per ton mile |
Aluminium Wagons |
Steel Wagons | |
until the Company shall have consigned not less than 3.5 million tons of ore
by rail from Malcolm to Fimiston
............................................................. |
2.35 |
2.40 |
thereafter
...................................................................... |
2.00 |
2.05 |
3. The rates set out in paragraphs 1 and 2 above
are subject to the following conditions: —
(a)
Trains shall be operated Monday to Saturday inclusive. If the Company requires
the Railways Commission to operate trains on Sunday the Company shall meet the
additional cost involved.
(b) The
rates shall apply only so long as the railway is operated on narrow gauge
tracks.
(c) The
rates shall only apply so long as the Company provides wagons with a load tare
ratio of —
49/15 tons for aluminium wagons or
45/19 tons for steel wagons
of a type and to a
standard approved by the Railways Commission.
(d)
Wagons shall be loaded to capacity and shall be subject to a minimum load per
train of not less than 49 tons for aluminium wagons or 45 tons for steel
wagons.
(e) The
total turn round time at terminals for ore shall not exceed two (2) hours at
the loading point and three (3) hours at the unloading point and for nickel
concentrates two (2) hours at the loading point and two (2) hours at the
unloading point. If such times are not regularly adhered to the Railways
Commission reserves the right to review the rates.
(f) The
movement of wagons for unloading purposes shall be the responsibility of the
Company. The method of movement of wagons shall be to the satisfaction of the
Railways Commission.
(g) The
method of loading and unloading wagons shall be approved by the Railways
Commission.
(h)
Freight charges shall be paid by monthly payments in the month next following
the month of haulage on the basis of the anticipated tonnage in each year
indicated by the Company in accordance with subclause (11) of Clause 9 subject
to annual adjustment after the expiration of each year with regard to tonnages
actually carried at the rate applicable thereto. In ascertaining the number of
tons actually carried railway weighbridge weights or such alternative method
of measuring as is mutually agreed shall be used but in no event shall any
allowance be made for moisture contained in the material transported.
(i)
If in any year the tonnage of ore actually available for
carriage by rail is less than the anticipated tonnage (indicated by the
Company in accordance with subclause (11) of Clause 9 to be available in that
year) by more than ten per cent (10%), the Company shall pay a sum equal to
seventy-five per cent (75%) of the freight charge at the rate applicable to
the actual tonnage carried as escalated from time to time) which would have
been payable on the difference between the anticipated tonnage and the actual
tonnage had the said anticipated tonnage been available and carried.
(j) The
rates are based on costs prevailing at the 30th April 1971 and shall be
adjusted half-yearly on 1st January and 1st July of each year in proportion to
variation in the average hourly wage rate of a first class driver, first class
guard and a track repairer; the price of distillate per gallon as delivered to
the public at North Fremantle and the price of steel rails per ton f.o.w.
Fremantle as ascertained from the price schedule of Australian Iron Steel Pty.
Ltd., in accordance with the following formula: —
WHERE
(i)
F1 =
New freight rate.
(ii)
F =
Agreement freight rate.
(iii)
HR =
Average hourly rate as at 30th April, 1971.
(iv)
HRI =
New average hourly rate.
(v)
D =
Price of distillate per gallon delivered to the public at North
Fremantle as at 30th April, 1971.
(vi)
DI =
New price distillate.
(vii)
SR =
Price of steel rails per ton f.o.w. Fremantle as ascertained from price
schedule of Australian Iron & Steel Pty. Ltd. as at 30th April, 1971.
(viii)
SRI =
New price steel rail.
The rates applicable
at the 30th April, 1971 are: —
per hour | |
|
$ |
1st class driver ...................................................... |
2.0725 |
1st class guard ....................................................... |
1.6963 |
Track repairer ....................................................... |
1.3400 |
|
______ |
|
$5.1088 |
Average hourly rate — $1.7029
Price of distillate per gallon —
21.4 cents.
Price of steel rails per ton f.o.w. Fremantle — $104.50.
(k)
Subject to compliance by the Company with the conditions set out in this part
of this schedule, the rates shall apply either until the expiration of the
period of five (5) years referred to in subclause (2) of Clause 9, or until
the date of completion of the reconstruction or up-grading referred to in
subclause (4) of Clause 9, whichever date is the earlier. Thereafter freight
rates and conditions applicable thereto shall be fixed by the Railways
Commission after consultation with the Company.
4. COMMODITIES OTHER THAN ORE OR NICKEL
CONCENTRATES
All commodities other than ore or nickel
concentrates shall until otherwise determined by the Railways Commission be
carried at gazetted rates.
THE SECOND SCHEDULE
WESTERN AUSTRALIA
MINING ACT 1904
POSEIDON NICKEL AGREEMENT ACT 1971
MINERAL LEASE
Lease No. ...........................
................................... Mineral Fields
ELIZABETH THE SECOND by the Grace of God of the United Kingdom, Australia and
Her other Realms and Territories Queen, Head of the Commonwealth, Defender of
the Faith:
TO ALL TO WHOM THESE PRESENTS shall come GREETINGS:
KNOW YE that WHEREAS by section 48 of the Mining Act 1904 , power is given to
the Governor of our State of Western Australia, in the Commonwealth of
Australia, to grant leases of land for the purposes of mining thereon for any
mineral other than gold upon the terms and conditions set forth in the said
Act AND WHEREAS by an Agreement made between the State of Western Australia
and POSEIDON LIMITED (hereinafter called “the Company” which
expression includes its successors and permitted assigns) which Agreement
(hereinafter referred to as “the Agreement”) was ratified by the
Poseidon Nickel Agreement Act 1971 the State agreed to grant to the Company on
application made by the Company a mineral lease under and, except as otherwise
provided by the Agreement, subject to the Mining Act 1904 AND WHEREAS the
Company has now made application for a lease of the land hereinafter described
for the purpose of mining thereon for nickel, copper, silver, lead, zinc,
cobalt, platinum, palladium and such other minerals as the Minister for Mines
may from time to time approve NOW WE in consideration of the rents and
royalties reserved by the Agreement and in consideration of the other
covenants in this lease and in the Agreement to be observed by the Company DO
BY THESE PRESENTS GRANT AND DEMISE UNTO THE COMPANY but subject to the
provisions of the Agreement all that Crown land situated within the area
delineated in the plan in the schedule hereto and all those mines, veins,
seams, lodes, or deposits of nickel, copper, silver, lead, zinc, cobalt,
platinum, palladium and such other minerals as the Minister for Mines may from
time to time approve in, on, or under the said land (hereinafter called
“the said mine”) together with the rights, liberties, easements,
advantages and appurtenances thereto belonging or appertaining to a lessee of
a mineral lease under the Mining Act 1904 , including all amendments thereof
for the time being in force and all regulations made thereunder for the time
being in force (which Act and regulations are hereinafter referred to as
“the Mining Act”) or to which the Company is entitled under the
Agreement, excepting and reserving out of this demise all such portions of the
said land as are now lawfully occupied (other than for pastoral or timber
purposes) by persons other than the lessee, or any portion thereof which is
now used for any public works or building whatsoever TO HOLD the said land and
the said mine and all and singular the premises hereby demised for the term of
twenty-one (21) years from the day of
19
with a right of renewal for one further period of
twenty-one (21) years but upon and subject to the terms covenants and
conditions set out in the Agreement YIELDING and paying therefor the rents and
royalties as provided for in the Agreement AND WE do hereby declare that this
lease is subject to the condition that the Company shall observe perform and
carry out the provisions of the Mines Regulation Act 1946 , and all amendments
thereof for the time being in force and the regulations for the time being in
force made thereunder and the provisions of the Mining Act (as modified by the
Agreement) in so far as the same affect or have application to this lease or
any renewal thereof.
PROVIDED THAT this lease and any renewal thereof shall not be determined or
forfeited otherwise than under and in accordance with the Agreement.
AND PROVIDED FURTHER that all mineral oil and other minerals (apart from
nickel, copper, silver, lead, zinc, cobalt, platinum, palladium and such other
minerals as the Minister for Mines may from time to time approve) on or below
the surface of the demised land are reserved to Her Majesty or any person
claiming under her and that subject to the terms of the Agreement any person
lawfully authorised in that behalf may have access to the demised land for the
purpose of searching for and obtaining mineral oil or other minerals in any
part of the land under the provisions of the Mining Act or the Petroleum Act
1967 .
IN WITNESS WHEREOF we have caused our Minister for Mines to affix his seal and
set his hand hereto at Perth in our said State of Western Australia and the
common seal of the Company was hereunto affixed by authority of the Board of
Directors this day
of 19
THE SCHEDULE ABOVE REFERRED TO (plan of lease)
IN WITNESS whereof this Agreement has been executed by or on behalf of the
parties hereto the day and year first hereinbefore mentioned.
SIGNED by the said THE HONOURABLE JOHN TREZISE TONKIN, M.L.A. in the presence
of — |
|
JOHN T. TONKIN |
H. E. GRAHAM, D. G. MAY, | | |
THE Common Seal of POSEIDON LIMITED was hereunto affixed by authority of the
Directors and in the presence of — |
|
[C.S.] |
T. A. HUTTON, |
E. O. Myers, |
[Schedule 1 amended: No. 17 of 1985 s. 5.]