Western Australian Current Acts Western Australian Current Acts[s. 2]
[Heading amended: No. 19 of 2010 s. 4.]
THIS AGREEMENT made the 16th day of November, 1983, BETWEEN THE HONOURABLE
BRIAN THOMAS BURKE, 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 AGNEW
CLOUGH LIMITED a company incorporated in Western Australia and having its
registered office in the said State at 22 Mount Street, Perth, MITSUI SALT
PTY. LTD. a company incorporated in Western Australia and having its
registered office in the said State at 44 Saint George’s Terrace, Perth
and AUSTRALIAN MUTUAL PROVIDENT SOCIETY a body corporate duly incorporated by
Act of Parliament of New South Wales and having its principal place of
business in Western Australia at 140 Saint George’s Terrace, Perth
(hereinafter collectively called “the Joint Venturers” in which
term shall be included their respective successors and permitted assigns and
appointees) of the other part.
WHEREAS:
(a) the
Joint Venturers maintain and carry on a solar salt industry on certain land in
and around Useless Loop and Useless Inlet in the Shark Bay area of the said
State being Edel Locations 19, 35, 44, 47 and 48 (hereinafter in these
recitals referred to as “the Shark Bay land”) pursuant to the
terms of an Agreement under Seal dated 26th June, 1963 made between the State
and Shark Bay Salt Pty. Ltd. as amended by a Supplemental Agreement dated 10th
August, 1965 (such Agreement as amended being hereinafter referred to as
“the Original State Agreement”) the benefit whereof was assigned
(with the consent of the State) first to J. O. Clough & Son Pty. Ltd. by
Deed of Assignment dated 1st September, 1972 and secondly to J. O. Clough
& Son Pty. Ltd. and Mitsui Salt Pty. Ltd. as tenants in common in
undivided shares that is to say;
to J. O. Clough &
Son Pty. Ltd. as to 51/100 undivided shares; and
to Mitsui Salt Pty.
Ltd. as to 49/100 undivided shares,
by deed dated 15th
December, 1972;
(b) J.
O. Clough & Son Pty. Ltd. (with the consent of the State) assigned its
interest in and to the Original State Agreement to Agnew Clough Limited with
effect from 30th June, 1975 by Deed dated 23rd March, 1976;
(c) by a
Deed dated 30th June, 1983 Agnew Clough Limited and Mitsui Salt Pty. Ltd.
(with the consent of the State) assigned their joint interest in the Original
State Agreement to the Joint Venturers with effect from close of business on
1st April, 1983;
(d) the
Joint Venturers or their predecessors in title in terms of the Original State
Agreement have, in the course of establishing such solar salt industry,
effected inter alia the following improvements to the Shark Bay land —
(i)
sea walls enclosing Useless Loop and portions of Useless
Inlet;
(ii)
a brine channel or flume from Useless Inlet to Useless
Loop;
(iii)
primary and secondary concentration ponds and
crystallising ponds;
(iv)
a causeway connecting Slope Island with the mainland and
an extension of Slope Island as a stockpile area;
(v)
ship loading facilities at Slope Island;
(vi)
salt washery;
(vii)
service facilities including a power house workshop and
store;
(viii)
water supply;
(ix)
workforce housing services and general facilities;
(x)
haulroads and other roads;
(xi)
an air strip;
(e)
pursuant to the Original State Agreement the State has —
(i)
established and maintained navigational aids;
(ii)
constructed a trafficable access road from the road
leading from North West Coastal Highway to Denham to the Shark Bay land;
(iii)
granted a licence to construct and maintain and use a
jetty in and over the waters of the Indian Ocean at Slope Island pursuant to
the provisions of the Jetties Act 1926 ;
(iv)
granted to the Joint Venturers a Special Lease No.
3116/4539 of the Shark Bay land pursuant to section 116 of the Land Act; and
(v)
(at the cost of the Joint Venturers) dredged Denham
channel and a berth and swinging basin adjacent to the ship loading
facilities;
(f) the
term of the Original State Agreement expires on 30th June, 1984; and
(g) the
parties hereto desire to enter into this Agreement in substitution for the
terms of the Original State Agreement and with the object of enabling the
Joint Venturers to maintain and carry on a solar salt industry on the Shark
Bay land for an extended period as hereinafter provided and such other allied
and ancillary industries as may with the approval of the State from time to
time be conveniently carried on in conjunction therewith upon and subject to
the following terms and conditions.
NOW THIS AGREEMENT WITNESSETH:
Definitions 3
1. In this Agreement subject to the context
—
“advise” “apply” “approve”
“approval” “consent” “certify”
“direct” “notice” “notify”
“request” or “require” means advise apply approve
approval consent certify direct notice notify request or require in writing as
the case may be and any inflection or derivation of any of those words has a
corresponding meaning;
“associated company” means —
(a) any company or corporation having a paid-up
capital of not less than $2 000 000 or the equivalent thereof which is
incorporated or formed within the United Kingdom the United States of America
Japan or Australia or such other country as the Minister may approve and which
—
(i) is promoted by the Joint Venturers or any of
them for all or any of the purposes of this Agreement and in which the Joint
Venturers or any of them or some other company or corporation acceptable to
the Minister hold not less than a 25% interest or some lesser interest
acceptable to the Minister; or
(ii) is related within the meaning of that term as
used in section 7 of the Companies (Western Australia) Code, to one or more of
the Joint Venturers or to any company in which the Joint Venturers or any of
them or some other company or corporation acceptable to the Minister hold not
less than 25% of the issued ordinary share capital; and
(iii) is notified to the Minister by the Joint
Venturers or either of them as being such a company;
(b) any company or corporation approved in writing
by the Minister;
“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 public road” means a company road which is open to or
used by the public;
“company road” means a road (other than a public road) which
either is or has been constructed by the Joint Venturers for the purposes of
this Agreement or the Original State Agreement or is agreed by the parties to
be a company road for the purposes of this Agreement;
“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 and 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 lease” means the mining lease referred to in paragraph (a)
of subclause (1) of Clause 5 and includes any renewal thereof;
“Minister” means the Minister of the Government of the State for
the time being responsible (under whatsoever title) 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 Joint
Venturers and includes the successors in office of the Minister;
“Minister for Lands” means the Minister in the Government of the
State for the time being responsible for the administration of the Land Act ;
“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;
“person” or “persons” includes bodies corporate;
“project site” means any land leased to and held by the Joint
Venturers pursuant to the provisions of this Agreement;
“public road” means Road No. 16167 and any other road for the time
being under the control of the Commissioner of Main Roads or a local authority
and used by the Joint Venturers for the purpose of this Agreement;
“said State” means the State of Western Australia;
“shipped” includes removal from the project site by ship or other
means;
“State Energy Commission” means The State Energy Commission of
Western Australia as described in section 7 of the State Energy Commission Act
1979 ;
“this Agreement” “hereof” “herein” and
“hereunder” refers to this Agreement whether in its original form
or as from time to time added to varied or amended;
“tonne” means a tonne of 1000 kilogrammes net dry weight;
“town” means a town developed by the Joint Venturers pursuant to
proposals made under Clause 8 as finally approved or determined;
“townsite” means the site on which the town is situated.
Interpretation 3
2. In this Agreement —
(a) monetary references are references to
Australian currency unless otherwise specifically expressed;
(b) power given under any clause other than Clause
41 to extend any period or date shall be without prejudice to the power of the
Minister under Clause 41;
(c) marginal notes shall not affect the
interpretation or construction 3 ;
(d) reference to an Act shall include 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.
Initial obligation of the State 3
3. The State shall 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 31st December, 1983.
Ratification and operation 3
4. (1) The provisions
of this Agreement other than this Clause and Clauses 1, 2 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 31st
December, 1983 the said Bill has not commenced to operate as an Act this
Agreement will, unless the parties hereto otherwise agree, then cease and
determine and neither of the parties hereto shall 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 but without
prejudice to the rights and obligations of the parties hereto under the
Original State Agreement and the subsequent assignments in respect thereof
which shall continue to have full force and effect.
(3) On the said Bill
commencing to operate as an Act —
(a) all the provisions of this Agreement shall
operate and take effect notwithstanding the provisions of any Act or law; and
(b) the rights and obligations of the parties
hereto arising out of the Original State Agreement and the subsequent
assignments in respect thereof shall thereupon cease, and have no further
effect.
Leases for mining purposes 3
5. (1) Notwithstanding
the provisions of the Mining Act the State shall on application made by the
Joint Venturers not later than 3 months after the commencement date but
subject to the surrender by the Joint Venturers of the special lease referred
to in paragraph (iv) of recital (e) hereof and subject to the surrender to the
State by the holder of Pastoral Lease No. 3114/590 of so much of the land
within that lease as is within the lands applied for cause to be granted to
the Joint Venturers —
(a) a mining lease of the land coloured red on the
plan marked “A” (initialled by or on behalf of the parties hereto
for the purpose of identification) for evaporites;
(b) a general purpose lease of the land coloured
yellow on the said plan marked “A” for loading and stockpile
purposes;
(c) a general purpose lease of the land coloured
brown on the said plan marked “A” for the purpose of a flume;
(d) a miscellaneous licence or licences of the
lands coloured purple on the said plan marked “A” for road
purposes;
(e) a miscellaneous licence of the land hatched
purple on the said plan marked “A” for the purpose of a road and
pipeline.
(2) The leases and
licences referred to in subclause (1) of this Clause shall be granted under
and, except as otherwise provided in this Agreement, subject to the Mining Act
(but, with respect to the mining lease, in the form of the Schedule to this
Agreement and with such conditions or stipulations as may be inserted in the
Sixth Schedule thereto by the Minister for Mines provided that any such
conditions or stipulations are not inconsistent with this Agreement) and at
the rentals hereinafter specified and may be granted 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 Joint
Venturers’ expense).
(3) (a)
Subject to the performance by the Joint Venturers
of their obligations under this Agreement and the Mining Act and
notwithstanding any provisions of the Mining Act to the contrary and subject
to the sooner determination of the mining lease upon the cessation or
determination of this Agreement, the term of the mining lease shall be for a
period of 21 years commencing from the commencement date and the Joint
Venturers shall have the right during the currency of this Agreement to two
successive renewals of the said term each for a period of 21 years upon the
same terms and conditions (provided that the aggregate number of years
comprised in the original term and all renewal terms shall not exceed 63
years), such right to renew to be exercisable by the Joint Venturers making
written application in respect of renewal for the second term not later than 1
month before the expiration of the current term of the mining lease, and in
respect of renewal for the third term, not later than 1 month before the
expiration of the second term of the mining lease.
(b) Each
of the general purpose leases and miscellaneous licences referred to in
subclause (1) of this Clause shall be for a term co-terminous with the term of
the mining lease (including any renewals thereof).
Rental 3
(4) (a)
Rental in respect of the mining lease and general
purpose leases granted pursuant to this Clause shall be computed at the rate
of $9.84 per 100 hectares.
(b)
Rental in respect of miscellaneous licences granted pursuant to this Clause
shall be the rental specified from time to time in the Mining Act .
Expenditure conditions 3
(5) Subject to
compliance with their obligations hereunder the Joint Venturers shall not be
required to comply with the expenditure conditions imposed by or under the
Mining Act in regard to the mining lease.
Incorporation of additional areas in the mining lease 3
(6) Notwithstanding the provisions of the
Mining Act the Joint Venturers may, within 1 year from the commencement date,
apply to the Minister for Mines for inclusion in the mining lease of the land
hatched red on the said plan marked “A”. The Minister for Mines
may at his election include the whole or any part of the land applied for in
the mining lease subject to the same terms covenants and conditions as apply
to the mining lease (with such apportionment of rents as is necessary),
notwithstanding that the survey of such additional land has not been completed
(but subject to correction to accord with the survey when completed at the
Joint Venturers’ expense).
Lands 3
6. (1) Upon the
surrender by the Joint Venturers of the special lease referred to in paragraph
(iv) of recital (e) hereof the State shall grant to the Joint Venturers
—
(a) a special lease of the land coloured green on
the said plan marked “A” for the purposes of housing for the
workforce of the Joint Venturers and associated population and welfare and
amenity purposes; and
(b) a special lease of the land coloured blue on
the said plan marked “A” for the purpose of an aerial landing
ground.
(2) Each of the leases
referred to in subclause (1) of this Clause may be granted 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 Joint
Venturers’ expense) and shall be for a term co-terminous with the term
of the mining lease and contain provisions for renewals of the term similar to
the provisions for renewal in the mining lease and shall be on such terms and
conditions (including with respect to the lease referred to in paragraph (a)
of subclause (1) of this Clause provisions that the Joint Venturers shall from
time to time as required by the Minister make available within the land the
subject thereof land and accommodation required by the State or any
instrumentality of the State in connection with the provision of communal or
welfare services and facilities) as the Minister for Lands may determine and
at such reasonable rental (subject to periodic review) as the Minister for
Lands may determine.
Proposals — Environment 3
7. On or before the expiration of six months from
the commencement date (or thereafter within such extended time as the Minister
may allow as hereinafter provided) the Joint Venturers shall submit to the
Minister to the fullest extent reasonably practicable their detailed proposals
(which proposals shall include plans where practicable and specifications
where reasonably required by the Minister), for measures to be taken, in
respect of the Joint Venturers operations under this Agreement, for the
protection and management of the environment.
Proposals — Town 3
8. (1) If the Joint
Venturers desire to establish a town within the land coloured green on the
said plan marked “A” or any part thereof they shall give notice
thereof to the Minister and furnish to the Minister with such notice an
outline of their proposals in respect thereof (including the matters mentioned
in paragraphs (a) to (i) of this subclause) and if the Minister approves the
submission of detailed proposals with respect thereto the Joint Venturers
shall, within 6 months of such approval and subject to the provisions of this
Agreement, submit to the Minister to the fullest extent reasonably practicable
their detailed proposals with respect to the establishment of a town which
proposals shall include plans where practicable and specifications where
reasonably required by the Minister and shall make provision for the necessary
workforce and associated population required in connection with the Joint
Venturers’ operations under this Agreement and shall include the
location, area, layout, 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) housing and township requirements including
provision of utilities and services;
(b) roads;
(c) water supply;
(d) power supply;
(e) sewerage and drainage;
(f) education police and medical facilities
including staff accommodation;
(g) recreational and civic facilities;
(h) air services and facilities;
(i) any leases licences easements or other tenures
of land required from the State.
(2) In accordance with
proposals made by the Joint Venturers pursuant to subclause (1) of this Clause
as finally approved or determined the State shall subject to the surrender by
the Joint Venturers of the lease referred to in paragraph (a) of subclause (1)
of Clause 6 grant to the Joint Venturers for residential professional business
commercial and industrial purposes and the provision of communal or other
facilities at the townsite a special lease or special leases under the
provisions of the Land Act or occupancy rights on terms and conditions to be
determined by the Minister for Lands for an area or areas of land in the
townsite in accordance with the Joint Venturers’ proposals as finally
approved. Such lease or leases or occupancy rights as the case may be shall be
for a term expiring on the expiration of the mining lease and contain
provisions for renewals of the term similar to the provisions for renewal in
the mining lease and shall be at reasonable rentals subject to periodic review
and shall include a right for the State notwithstanding the provisions of
Clause 29 at any time and from time to time to exclude from such lease or
leases or occupancy rights or to resume without compensation any part or parts
of such land on which no building or structure or any substantial improvements
have been erected as the State may require for public purposes.
Consideration of proposals 3
9. (1) On receipt of
proposals pursuant to Clauses 7 or 8 the Minister shall —
(a) approve of the said proposals either wholly or
in part without qualification or reservation; or
(b) require as a condition precedent to the giving
of his approval to the said proposals that the Joint Venturers make such
alteration thereto or comply with such conditions in respect thereto as he
thinks reasonable and in such a case the Minister shall disclose his reasons
for such conditions.
Advice of Minister’s decision 3
(2) The Minister shall
within 2 months after receipt of the said proposals give notice to the Joint
Venturers of his decision in respect to the same.
Consultation with Minister 3
(3) If the decision of
the Minister is as mentioned in paragraph (b) of subclause (1) of this Clause
the Minister shall afford the Joint Venturers full opportunity to consult with
him and should they so desire to submit new proposals either generally or in
respect to some particular matter.
Minister’s decision subject to arbitration 3
(4) If the decision of
the Minister is as mentioned in the paragraph (b) of subclause (1) of this
Clause and the Joint Venturers consider that the condition precedent is
unreasonable the Joint Venturers within 2 months after receipt of the notice
mentioned in subclause (2) of this Clause may elect to refer to arbitration in
the manner hereinafter provided the question of the reasonableness of the
condition precedent.
Arbitration award 3
(5) An award made on
an arbitration pursuant to subclause (4) of this Clause shall have force and
effect as follows —
(a) if by the award the dispute is decided against
the Joint Venturers then the decision of the Minister with respect to the said
proposals shall stand; or
(b) if by the award the dispute is decided in
favour of the Joint Venturers 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.
Implementation of proposals 3
(6) The Joint
Venturers shall implement the approved proposals in accordance with the terms
thereof.
Modification of Land Act 3
10. For the purposes of this Agreement in respect
of any land leased to the Joint Venturers 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 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 grant occupancy
rights over land on such terms and conditions as the Minister for Lands may
determine;
(f) the inclusion of a power to offer for leasing
land within or in the vicinity of the townsite notwithstanding that the
townsite has not been constituted a townsite under section 10; and
(g) the inclusion of a power to 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 Clause shall not operate so
as to prejudice the rights of the State to determine any lease, occupancy
right, licence or other right or title in accordance with the other provisions
of this Agreement.
Protection and management of the environment 3
11. (1) The Joint
Venturers shall in respect of the matters referred to in Clause 7 which are
the subject of approved proposals under this Agreement, carry out a continuous
programme of investigation and research including monitoring and the study of
sample areas to ascertain the effectiveness of the measures they are taking
pursuant to their approved proposals for the protection and management of the
environment.
(2) The Joint
Venturers shall during the currency of this Agreement at yearly intervals
commencing from the date when the Joint Venturers’ proposals are
approved, submit an interim report to the Minister concerning investigations
and research carried out pursuant to subclause (1) of this Clause and at 3
yearly intervals commencing from such date submit a detailed report to the
Minister on the result of the investigations and research during the previous
3 years.
(3) The Minister may
within 2 months of the receipt of the detailed report pursuant to subclause
(2) of this Clause notify the Joint Venturers that he requires additional
detailed proposals to be submitted for the protection and management of the
environment.
(4) The Joint
Venturers shall within 2 months of the receipt of a notice given pursuant to
subclause (3) of this Clause submit to the Minister additional detailed
proposals as required and the provisions of Clauses 7 and 9 where applicable
shall mutatis mutandis apply in respect of such proposals.
(5) The Joint
Venturers shall implement the approved proposals in accordance with the terms
thereof.
Townsite and town development 3
12. (1)
(a) Should proposals made pursuant to Clause 8 as
finally approved or determined provide for the establishment of a town the
Joint Venturers shall at their cost or with finance arranged by them and in
accordance with the approved proposals —
(i) provide at the townsite such housing
accommodation services and works (including water supply, sewerage and
drainage works and also social cultural and civic facilities) as may be
necessary in order to provide for the needs of persons (and the dependants of
those persons) connected directly with the Joint Venturers’ operations
under this Agreement, whether or not such persons are employed by the Joint
Venturers;
(ii) provide at the townsite all necessary public
roads and buildings required for educational, hospital, medical, police,
recreation, fire and other services;
(iii) provide all equipment required for the
operation and proper functioning of the services and works referred to in
subparagraphs (i) and (ii) of this paragraph;
(iv) service maintain and where necessary repair
and renovate the housing accommodation services and works mentioned in
subparagraphs (i) and (ii) of this paragraph;
(v) (subject to and in accordance with by-laws
from time to time to be made and altered by the Joint Venturers which include
provisions for fair and reasonable prices rentals or charges or if no such
by-laws are made or in force then at such prices rentals or charges and upon
and subject to such terms and conditions as are fair and reasonable) ensure
that the said housing accommodation services and works are at all times
readily available to persons requiring the same being employees licencees or
agents of the Joint Venturers or persons engaged in providing a legitimate and
normal service to or for the Joint Venturers or their employees licencees or
agents including the dependants of such persons; and
(vi) ensure that the roads buildings and other
works mentioned in subparagraph (ii) of this paragraph and the equipment
mentioned in subparagraph (iii) of this paragraph are readily available free
of charge to the State.
Limitation on Joint Venturers’ obligations 3
(b)
Nothing contained in paragraph (a) of this subclause shall be construed as
placing on the Joint Venturers an obligation to provide and pay for personnel
required to operate the educational hospital medical or police services
mentioned in that paragraph.
Equipment 3
(2) The Joint
Venturers shall at their cost or with finance arranged by them equip all the
buildings mentioned in paragraph (a) of subclause (1) of this Clause to the
extent and of a standard at least equal to that normally adopted by the State
in similar types of buildings used for similar purposes in comparable
townsites.
Staff housing 3
(3) The Joint
Venturers shall at their cost or with finance arranged by them provide
adequate housing accommodation for married and single staff directly connected
with the educational hospital medical and police services mentioned in
subparagraphs (i) and (ii) of paragraph (a) of subclause (1) of this Clause.
State services 3
(4) Should the
approved proposals place an obligation on the State to provide for any of the
matters mentioned in subparagraphs (i) (ii) and (iii) of paragraph (a) of
subclause (1) of this Clause or require the State to procure and accept the
responsibility of the provision of any services and facilities the State shall
provide or procure the provision of the same but (unless the approved
proposals otherwise provide) subject to the following conditions namely
—
(a) that the State is satisfied that the need to
provide such services and facilities results from or is reasonably attributed
to the Joint Venturers’ operations under this Agreement; and
(b) the Joint Venturers agree to bear the capital
cost involved and thereafter to pay reasonable charges for the maintenance and
operation of the said services or facilities other than the operation charges
in respect of education hospital medical and police services.
By-laws 3
(5) Unless and until
the townsite is declared a townsite pursuant to section 10 of the Land Act or
otherwise with the consent of the Minister, the Governor in Executive Council
may upon the recommendation of the Joint Venturers make alter and repeal
by-laws for the purpose of enabling the Joint Venturers to fulfil their
obligations under this Clause upon terms and subject to conditions (including
terms and conditions as to user charging and limitation of the liability of
the Joint Venturers) consistent with the provisions hereof. If at any time it
appears that any by-law made hereunder has as a result of altered
circumstances become unreasonable or inapplicable then the Joint Venturers
shall recommend to the Governor that he makes such alteration or repeal
thereof as the State may reasonably require or (in the event of there being
any dispute as to the reasonableness of such requirement) as may be decided by
arbitration as herein provided.
Roads — Company roads 3
13. (1) The Joint
Venturers shall —
(a) be responsible for the cost of the
construction and maintenance of all company roads which shall be used in their
operations hereunder; and
(b) at any place where a company road crosses any
company public road or any public road provide adequate grade separation or
such other reasonable protection as may be required by the Commissioner of
Main Roads.
Maintenance of public roads 3
(2) The State shall
maintain or cause to be maintained public roads to a standard similar to
comparable roads maintained by the Commissioner of Main Roads or a local
authority as the case may be.
(3) In the event that
the Joint Venturers for the purposes of their operations under this Agreement
desire to exclude the public use of any company road they shall be responsible
at their own cost to make such provisions as effectively ensure that all
persons and vehicles (other than those engaged upon the Joint Venturers’
operations and their invitees and licencees) are excluded from use of that
road.
Upgrading of public roads 3
(4) In the event that
the Joint Venturers’ 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 Joint Venturers shall
pay to the State the whole or an equitable part 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 having regard to the use
of such road by others.
Acquisition of company roads 3
(5) Where a company
road is subsequently required for public use, the State may, after
consultation with the Joint Venturers and so long as resumption thereof shall
not unduly prejudice or interfere with the operations of the Joint Venturers
under this Agreement, resume and dedicate such road as a public road. Upon any
such resumption the State shall pay to the Joint Venturers such amount as the
State considers to be reasonable.
Liability 3
(6) 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 Joint Venturers are 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 Joint Venturers are responsible hereunder and for no other purpose
the Joint’ Venturers 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 Joint Venturers; and
(b) for the purpose 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.
Water 3
14. (1) The State
will, in addition to licences already granted to the Joint Venturers in
respect of underground water sources, grant to the Joint Venturers a licence
or licences to draw water for the domestic purposes of the Joint
Venturers’ employees and their dependants and the associated population
from such source or sources and on such terms and conditions as the Minister
may approve and during the continuance of this Agreement grant renewals of
such licences or any of them on such terms and conditions as the Minister may
approve PROVIDED HOWEVER that if at any time the Minister considers that any
such source or sources are hydrologically inadequate to meet the Joint
Venturers’ water requirements, the State may after consultation with the
Joint Venturers limit the amount of water which may be taken from such sources
or any of them at any one time or from time to time to the maximum which such
sources or any of them are hydrologically capable of meeting.
Construction of water works 3
(2) The Joint
Venturers shall at their own expense continue to provide and construct to
standards approved by the State all necessary bores valves pipelines meters
tanks pumps equipment and appurtenances necessary to draw transport use and
dispose of water drawn from any source licensed to the Joint Venturers.
Design of works 3
(3) The Joint
Venturers shall to the extent that it is practical and economical, design,
construct and operate its works under this Clause so as to —
(a) make use of brackish or saline water;
(b) recycle all water; and
(c) prevent loss of water by leakage, spillage or
evaporation.
Rights in Water and Irrigation Act 3
(4) Any reference in
the foregoing provisions of 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 except where
inconsistent with the provisions of this Agreement apply to any water source
developed for the Joint Venturers’ purposes under this Agreement.
Jetties 3
15. The State shall, on application by the Joint
Venturers and subject to the surrender by them of their rights in respect of
the existing jetty licence relating to the jetty at Slope Island, cause to be
granted to the Joint Venturers on reasonable terms and conditions a licence
under the Jetties Act 1926 for the maintenance and use of —
(a) the said jetty at Slope Island; and
(b) the existing jetty adjoining the land coloured
green on the said Plan marked “A”
and shall cause that licence to be renewed from time to time during the
continuance of this Agreement.
Sea water licence 3
16. The Joint Venturers may without charge draw
take and use sea water for all or any one or more of their operations in
respect of the mining extraction and production of salt on the project site
and the Joint Venturers may store at such place within the mining lease as may
be convenient or discharge at or below high water mark at such points near to
the mining lease as are approved by the State residual brines resulting from
those operations. If requested by the Joint Venturers the State shall grant to
the Joint Venturers any necessary 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 Joint Venturers under this Clause and the
overall development and use by others of those Crown lands. Subject to the
Joint Venturers’ compliance with the Mining Act and all other relevant
statutes and regulations for the time being in force the Joint Venturers 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.
Navigation aids and services 3
17. (1) Subject to the
performance by the Joint Venturers of their obligations under this Agreement
the State shall provide and maintain such navigation aids and provide such
navigation services as may be reasonably agreed between the parties hereto.
Payment of conservancy dues to the State 3
(2) It is acknowledged
by the parties hereto that vessels using the Joint Venturers’ ship
loading facilities and jetty will be required to pay conservancy dues
prescribed by law and the Joint Venturers’ covenant with the State that
they 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.
Joint Venturers’ obligations 3
18. The Joint Venturers shall —
(1) pay to the State for the term of any lease or
leases to be issued in respect of the project site and any renewal or renewals
thereof the rental in respect thereof or part thereof per annum;
(2) maintain and carry on upon the project site a
solar salt industry;
(3) maintain the dredging of Denham Channel and
the ship berth and swinging basin;
(4) produce on and ship from the project site not
less than 200 000 tonnes of salt per annum;
(5) construct and provide within 18 months of the
commencement date (notwithstanding the provisions of Clause 34) in accordance
with plans and specifications previously approved by the Minister and to the
satisfaction of the Minister school facilities of a permanent nature within
the land coloured green on the said plan marked “A” and thereafter
maintain such facilities to such standards as the Minister may reasonably
require from time to time and provide suitable accommodation for teachers
employed at the school;
(6) provide and maintain (subject to the
provisions of this Agreement) to such standards as the Minister may reasonably
require from time to time all roads within the project site and water,
electricity, power and other services as may be required for the purposes of
this Agreement;
(7) maintain to such standards as the Minister may
reasonably require from time to time wharf facilities and service craft
required for the purposes of this Agreement;
(8) from time to time upon reasonable notice in
that behalf from the State make available to any person or persons designated
by the State the use on such terms and conditions as shall be reasonable in
the circumstances from time to time existing of the facilities and
installations belonging to or used by the Joint Venturers pursuant to this
Agreement provided the use first mentioned shall not unduly interfere with the
operations of the Joint Venturers under this Agreement;
(9) at all time grant reasonable access to the
State pastoral lessees and others in and over the lands the subject of any
lease or licence granted hereunder.
Airport 3
19. The Joint Venturers shall during the currency
of this Agreement maintain their existing airport facilities to a reasonable
standard to be approved by the Minister.
Use of local professional services labour and materials 3
20. (1) The Joint
Venturers shall, for the purposes of this Agreement, as far it is reasonable
and economically practicable so to do —
(a) use the services of engineers, surveyors,
architects and other professional consultants resident and available within
the said State;
(b) use labour available within the said State;
(c) when preparing specifications calling for
tenders and letting contracts for works materials plant equipment and supplies
ensure that Western Australian suppliers manufacturers and contractors are
given fair and reasonable opportunity to tender or quote; and
(d) give proper consideration and where possible
preference to Western Australian suppliers manufacturers and contractors when
letting 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.
(2) The Joint
Venturers shall in every contract entered into with a third party for the
supply of services labour works materials plant equipment and 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)
of this Clause and shall report to the Joint Venturers concerning such third
party’s implementation of that condition.
(3) The Joint
Venturers shall submit a report to the Minister within six months of the
commencement date and thereafter when requested by the Minister from time to
time concerning their implementation of the provisions of this Clause together
with a copy of any report received by the Joint Venturers pursuant to
subclause (2) of this Clause during the period to which the report relates.
Electricity generation 3
21. (1) The Joint
Venturers may —
(a) subject to the provisions of the
Electricity Act 1945 and the approval and requirements of the State Energy
Commission, install and operate without cost to the State, at an appropriate
location equipment to generate electricity of sufficient capacity for their
operations hereunder;
(b) transmit power within the project site and to
the town or elsewhere subject to the provisions of the Electricity Act 1945
and the approval and requirements of the State Energy Commission; and
(c) subject to the provisions of the
Electricity Act 1945 and the requirements of the State Energy Commission sell
power transmitted pursuant to paragraph (b) of this subclause to third parties
within the project site and to third parties elsewhere.
(2) In the event that
the Joint Venturers are unable to procure easements or other rights over land
required for the purposes of subclause (1) of this Clause on reasonable terms
the State shall assist the Joint Venturers to such extent as may be reasonably
necessary to enable them to procure the said easements or other rights over
land.
Royalties — salt 3
22. (1) Throughout the
continuance of this Agreement the Joint Venturers shall pay to the State a
royalty on all salt produced pursuant to this Agreement and shipped computed
as set out hereunder:
|
Rate per Tonne | |
|
On the first 500,000 tonnes in any year |
5 cents |
|
On the second 500,000 tonnes in any year |
6.25 cents |
|
On all tonneages in excess of 1,000,000 |
7.5 cents |
Tonneages shall be ascertained at Shark Bay in such manner as the parties
hereto may from time to time agree upon.
Returns — salt 3
(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 Joint Venturers shall furnish to the Minister for Mines
a return showing the quantity of all salt the subject of royalty hereunder
shipped 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
shipped during that quarter.
Other minerals 3
(3) The Joint
Venturers shall in respect of all evaporites other than salt produced or
obtained from the area the subject of the mining lease 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 3
(4) The Joint
Venturers 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 accounts
and records of the Joint Venturers 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 his nominee as to any particular weight or assay
of minerals mined or produced by the Joint Venturers from the mining lease and
sold by it which may affect the amount of royalty payable hereunder.
Escalation 3
23. (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) during the period from the commencement date
to the 18th day of November, 1989 the several amounts due and payable by the
Joint Venturers to the State as —
(i) rentals under paragraph (a) of subclause (4)
of Clause 5; and
(ii) royalty under subclause (1) of Clause 22
shall be increased by 256%; and
(b) in the event of the price of salt (as
hereinafter defined) on the 18th days of November, 1989, 1996, 2003, 2010,
2017, 2024, 2431 or 2038 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 Joint Venturers to the State as —
(i) rentals under paragraph (a) of subclause (4)
of Clause 5; and
(ii) royalty under subclause (1) of Clause 22
shall be increased by the percentage so calculated and such increased amounts
in respect of those items shall be payable by the Joint Venturers 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 shipped during the previous year
pursuant to this Agreement payable by the purchaser or purchasers thereof to
the Joint Venturers 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 Joint Venturers in respect of that sale from the
time it is shipped 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 shipment;
and
(g) all import taxes imposed or levied by the
country of the port of discharge.
(3) Throughout the
continuance of this Agreement the Joint Venturers shall use their 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 Joint Venturers 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.
Ingress and egress 3
24. The State shall from time to time on the
written application of the Joint Venturers grant to the Joint Venturers a
licence or licences over Crown lands to permit the Joint Venturers or their
servants agents contractors invitees and customers the right of ingress to and
egress from all or any one or more part or parts of the project site on such
terms and conditions as shall be reasonable having regard to the requirements
of the Joint Venturers 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.
Export licence 3
25. If at any time or times under Commonwealth law
an export licence is required by the Joint Venturers for the export of salt
then on written request by the Joint Venturers the State shall make
representations to the Government of the Commonwealth of Australia for the
grant to the Joint Venturers of a licence or licences under Commonwealth law
for the export of salt in such quantities and at such rate or rates as shall
be reasonable having regard to the tonneage of salt being produced by the
Joint Venturers at such time or times as a licence is so required and to all
contracts made or likely to be made by the Joint Venturers for the export or
supply of salt from the project site.
Limitation of liability 3
26. Where the Joint Venturers from time to time
construct a levee or other works on the project site for or incidental to the
production of salt and thereafter a third party makes improvements to lands or
becomes the owner of improvements so made on lands adjacent to the project
site and subsequent to those improvements being made the Joint Venturers
remove (either wholly or partly) or fail to maintain or to repair that levee
or other works and in consequence thereof the third party suffers sustains or
incurs damage to those improvements or any part thereof then notwithstanding
any Act or any rule of law or equity to the contrary, the Joint Venturers
shall not be liable for those damages to any person or persons whatsoever.
27. The parties hereto covenant and agree with
each other as follows —
Default 3
(a) that in any of the following events namely if
the Joint Venturers fail in any year after the 30th June, 1985 to ship at
least 200 000 tonnes of salt and furthermore the average of the tonneage
shipped in that year and in the previous three years is less than 200 000
tonnes a year or if the Joint Venturers make default in the due and punctual
performance of any of the covenants agreements or obligations to the State
herein or in any lease easement licence or other right or title granted under
this Agreement on their part to be performed or observed and shall fail to
remedy that default within a period of 180 days after notice specifying the
default is given by the State to the Joint Venturers and also to any Mortgagee
approved pursuant to Clause 30 if it has a registered office in Perth (or if
the alleged default is contested by the Joint Venturers and promptly submitted
to arbitration within a reasonable time fixed by the arbitration award, where
the question is decided against the Joint Venturers the arbitrator finding
that there was a bona fide dispute and that the Joint Venturers had not been
dilatory in pursuing the arbitration) or if the Joint Venturers abandon or
repudiate their operations under this Agreement or if the Joint Venturers or
any of them shall go into liquidation (other than a voluntary liquidation for
the purpose of reconstruction) and unless within 3 months from the date of
such liquidation the share estate and interest of the Joint Venturer in
liquidation in or under this Agreement and in or under any special lease
issued hereunder and any other lease, licence, easement or right granted
hereunder or pursuant hereto is assigned to another Joint Venturer or to an
assignee approved by the Minister under Clause 30 then and in any of such
events the State may by notice given to the Joint Venturers determine this
Agreement, and the rights of the Joint Venturers hereunder and under any lease
licence easement or right granted or demised hereunder or pursuant hereto
PROVIDED HOWEVER that if the Joint Venturers fail to remedy any default (other
than a default under subclause (4) of Clause 18) after notice is given to the
Joint Venturers specifying the default 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 its agents workmen or
otherwise shall have full power to enter upon lands occupied by the Joint
Venturers and to make use of all plant, machinery, equipment and installations
thereon) and the costs and expenses incurred by the State remedying or causing
to be remedied such default shall be a debt payable by the Joint Venturers to
the State on demand made by the State;
Effect of cessation or determination of Agreement 3
(b) that on the cessation or determination of this
Agreement —
(i) except as otherwise agreed by the Minister the
rights of the Joint Venturers to in or under this Agreement and the rights of
the Joint Venturers or any assignee of the Joint Venturers or any mortgagee to
in or under the mining lease and any other lease licence easement grant or
other title 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 AND the Joint Venturers shall without further consideration but
otherwise at the request and cost of the State transfer or surrender to the
State or the Crown all land the subject of any lease licence easement or right
granted or demised hereunder or pursuant hereto and the Joint Venturers hereby
irrevocably constitute and appoint the Minister or such person as he may from
time to time nominate the true and lawful attorney of the Joint Venturers to
execute the transfer or surrenders aforesaid;
(ii) the Joint Venturers 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;
(iii) save as aforesaid and as provided in
paragraph (c) of this Clause neither of the parties hereto shall have any
claim against the other with respect to any matter or thing in or arising out
of this Agreement;
(c) that on the expiration cessation or
determination of any lease licence easement or right granted or demised
hereunder or pursuant hereto by the State to the Joint Venturers or (except as
otherwise agreed by the Minister) to an assignee of the Joint Venturers under
Clause 30 —
(i) the improvements and things erected on the
relevant land other than machinery equipment (including the flume structure
(other than the earth-works) and linings to the concentration ponds and
crystallising ponds) and removable buildings shall remain or become the
absolute property of the State without compensation and freed and discharged
from all mortgages and encumbrances and the Joint Venturers will do such
things and execute such documents (including surrenders) as the State may
reasonably require to give effect to this provision AND the Joint Venturers
hereby irrevocably constitute and appoint the Minister or such person as he
may from time to time nominate the true and lawful attorney of the Joint
Venturers to do those things and to execute those documents (including
surrenders);
(ii) in the event of the Joint Venturers
immediately prior to such expiration cessation or determination or subsequent
thereto deciding to remove their machinery equipment (including the flume
structure (other than the earthworks) and linings to the concentration ponds
and crystallising ponds) and removable buildings or any of them from the
project site the Joint Venturers shall not do so without first notifying the
State in writing of their decision and thereby granting to the State the right
or option exercisable within 3 months thereafter to purchase in situ the said
machinery equipment and removable buildings or any of them at a valuation to
be mutually agreed or in default of agreement to be made by such competent
valuer as the parties hereto may appoint or failing agreement as to such
appointment then by two competent valuers one to be appointed by each party or
by an umpire appointed by such valuers should they fail to agree; and
(iii) any machinery equipment and removable
buildings not purchased by the State pursuant to subparagraph (ii) of this
paragraph and not removed by the Joint Venturers from the project site at the
expiration of 6 months from such expiration cessation or determination shall
thereupon become the absolute property of the State without compensation and
freed and discharged from all charges and encumbrances.
Salt for use in Australia 3
28. The Joint Venturers acknowledge the desire of
the State to have available a constant and reliable source of supply of salt
for use in Australia. To attain this object the Joint Venturers subject to the
fulfilment of their overseas contracts will use their 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 Joint Venturers 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 Joint Venturers are receiving or able to receive for similar
quantities of salt sold on similar terms and conditions for use outside
Australia.
29. The State further covenants with the Joint
Venturers that the State —
Restrictions on resumption 3
(a) having regard to the particular nature of the
industry in which the Joint Venturers are engaged pursuant to this Agreement
and subject to this Agreement and to the performance by the Joint Venturers of
their obligations hereunder shall not resume or suffer or permit to be resumed
by any State instrumentality or by any local or other authority of the said
State any portion of the project site the resumption of which would
unreasonably impede the Joint Venturers’ activities nor shall the State
create grant or permit or suffer to be created or granted by an
instrumentality or authority of the said State as aforesaid any road right of
way or easement of any nature or kind whatsoever over or in respect of the
project site which may unduly prejudice or interfere with the Joint
Venturers’ operations hereunder without the consent in writing of the
Joint Venturers first having been obtained which consent shall not be
arbitrarily or unreasonably withheld;
No discriminatory taxes or charges 3
(b) except as provided in this Agreement shall not
impose or 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
operations of the Joint Venturers in the conduct of the Joint Venturers’
business hereunder nor shall the State take or permit to be taken by any such
agency instrumentality or authority any other discriminatory action which
would deprive the Joint Venturers of full enjoyment of the rights granted and
intended to be granted under this Agreement;
Rating 3
(c) 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 as to any
part upon which a residence is 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 salt) 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 PROVIDED THAT
nothing in this Clause shall prevent the Joint Venturers making the election
provided for by section 533B of the Local Government Act 1960 .
Assignment 3
30. (1) Subject to the
provisions of this Clause the Joint Venturers or any of them may at any time
—
(a) assign mortgage charge sublet or dispose of to
an associated company as of right, and to any other company or persons with
the consent of the Minister the whole or any part of the rights of the Joint
Venturers hereunder (including their rights to or as the holder of the mining
lease or any other lease licence easement grant or other title) and of the
obligations of the Joint Venturers 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 Joint Venturers hereunder; subject however in the case of an assignment
subletting disposition or appointment to the assignee sublessee disposee or
the appointee (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 Joint Venturers to be complied with observed or performed in
regard to the matter or matters the subject of such assignment subletting
disposition or appointment.
(2) Notwithstanding
anything contained in or anything done under or pursuant to subclause (1) of
this Clause the Joint Venturers 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 their part contained herein
and in the mining lease or any other lease licence easement grant or other
title the subject of an assignment mortgage subletting disposition or
appointment under subclause (1) of this Clause PROVIDED THAT the Minister may
agree to release the Joint Venturers or any of them from such liability where
he considers such release will not be contrary to the interests of the State.
Arbitration 3
31. (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 hereunder 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.
(2) Except where
proposals are pursuant to the provisions of this Agreement referred to
arbitration, 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 said
State is by this Agreement given either expressly or impliedly a discretionary
power.
(3) The arbitrators or
umpire (as the case may be) of any submission to arbitration hereunder are
hereby empowered upon the application of either of the parties to grant in the
name of the Minister any interim extensions 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 hereunder and an award may in the name of the Minister grant any
further extension or variation for that purpose.
Variation 3
32. (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 the mining
lease or any other lease licence easement grant or other title granted
hereunder or pursuant hereto 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) of this Clause 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 3
33. During the period of this Agreement the State
shall not authorise the construction of any works which could reasonably be
considered as having the possible effect of stopping the flow of sea water
into Useless Inlet or diminishing such flow as to result in the drawing of sea
water by the Joint Venturers from Shark Bay being either impracticable or only
practical with the expenditure by the Joint Venturers of additional money for
capital or in operating costs.
Force majeure 3
34. 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 and to
relief from forfeiture for failure to ship the annual and average tonneages
referred to in paragraph (a) of Clause 27 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 or failure as aforesaid caused by or arising from act of God force
majeure floods storms tempests washaways abnormal tides and waves fire (unless
caused by the actual fault or privity of the Joint Venturers) 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 of
labour or essential materials reasonable failure to secure contractors delays
of contractors and inability (common in the salt export industry) to
profitably sell salt or factors due to overall world economic conditions or
factors which could not reasonably have been 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 minimise the effect of the said causes as soon as possible after
their occurrence.
Environmental protection 3
35. Nothing in this Agreement shall be construed
to exempt the Joint Venturers from compliance with any requirement in
connection with the protection of the environment arising out of or incidental
to their 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.
Indemnity 3
36. The Joint Venturers 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 Joint Venturers
pursuant to this Agreement or relating to their operations hereunder or
arising out of or in connection with the construction maintenance or use by
the Joint Venturers or their servants agents contractors or assignees of the
Joint Venturers’ works or services the subject of this Agreement or the
plant apparatus or equipment installed in connection therewith.
Compliance with laws 3
37. Subject to this Agreement the Joint Venturers
in the construction operation maintenance and use of any work installation
plant machinery equipment service or facility provided or controlled by them
shall comply with and observe the laws for the time being in force in the said
State.
Notices 3
38. Any notice consent request 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 or the Minister 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 pre-paid registered
post to the Joint Venturers at their respective registered offices or
principal place of business for the time being in the said State and by the
Joint Venturers if signed on their behalf by any person or persons for the
time being appointed by them for the purposes of this Clause and forwarded by
pre-paid registered post to the Minister at his office in Perth AND any such
notice consent or writing shall be deemed to have been duly given on the day
on which it would be delivered in the ordinary course of post.
Consultation 3
39. The Joint Venturers shall during the currency
of this Agreement consult with and keep the State fully informed on a
confidential basis concerning any action that the Joint Venturers propose 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.
Determination by Joint Venturers 3
40. (1)
Notwithstanding anything herein contained the Joint Venturers may at any time
give notice to the State that matters have arisen which make the completion or
continuance of the works impracticable or uneconomic and that they desire to
determine this Agreement whereupon this Agreement will then cease and
determine and the State may enforce all or any one or more of its rights
remedies or powers set out in Clause 27.
Right of surrender 3
(2) The Joint
Venturers shall have the right at any time and from time to time to surrender
to the Crown in right of the State any reasonably substantial part of the
project site which is no longer required by the Joint Venturers.
Power to extend periods 3
41. Notwithstanding any provision of this
Agreement the Minister may at the request of the Joint Venturers 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 whether or not the period to be extended has expired or
the date to be varied has passed.
Applicable law 3
42. 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
SHARK BAY SOLAR SALT INDUSTRY AGREEMENT
MINING LEASE
Mining Lease No.
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 21 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
(name address and description of the Lessee.)
AGNEW CLOUGH LIMITED a company incorporated in Western Australia and having
its registered office in the said State at 22 Mount Street, Perth and MITSUI
SALT PTY. LTD. a company incorporated in Western Australia and having its
registered office in the said State at 44 Saint George’s Terrace, Perth
and AUSTRALIAN MUTUAL PROVIDENT SOCIETY a body corporate duly incorporated by
Act of Parliament of New South Wales and having its principal place of
business in Western Australia at 140 Saint George’s Terrace, Perth.
SECOND SCHEDULE
(the Agreement)
The Agreement ratified by the Shark Bay Solar Salt Industry Agreement Act
1983 including any amendments to that Agreement.
THIRD SCHEDULE
(Sketch of Land)
Locality:
Mineral Field: Area, etc.:
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 searching for and for the operations of obtaining petroleum (as
so defined) in any part of the land.
FIFTH SCHEDULE
(Date of commencement of the lease).
SIXTH SCHEDULE
(Any further conditions or stipulations).
In witness whereof the Minister for
Mines has affixed his seal and set his hand hereto this
day of 19 .
IN WITNESS WHEREOF this Agreement has been executed by or on behalf of the
parties hereto the day and the year first hereinbefore mentioned.
|
SIGNED by the said THE HONOURABLE BRIAN THOMAS BURKE, M.L.A., in the presence
of — |
|
BRIAN BURKE. |
MALCOLM J. BRYCE,
MINISTER FOR ECONOMIC DEVELOPMENT
AND TECHNOLOGY.
|
THE COMMON SEAL of AGNEW CLOUGH LIMITED was hereunto affixed in accordance
with its Articles of Association in the presence of —
|
|
(C.S.) |
G. COHEN, DIRECTOR
J. SMITHSON, SECRETARY
|
THE COMMON SEAL of MITSUI SALT PTY. LTD. was hereunto affixed in |
|
(C.S.) |
Y. OKAMOTO, DIRECTOR
M. KINURA, SECRETARY
|
SIGNED for and on behalf of AUSTRALIAN MUTUAL PROVIDENT SOCIETY by its duly
authorised attorneys SIR ERNEST HENRY LEE-STEERE and ERIC HOWARD WHEATLEY under Power of Attorney dated 9th September 1981 who
hereby state that they have no notice of revocation of the said Power of
Attorney in the presence of — |
|
E. H. LEE-STEERE E. H. WHEATLEY |
M. L. PEACOCK,
OFFICER OF THE SOCIETY
