[s. 3(1)]
[Heading amended: No. 19 of 2010 s. 4.]
THIS AGREEMENT is made this 6th day of June 1988 BETWEEN THE HONOURABLE PETER
M’CALLUM DOWDING, LL.B., 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 MULGA MINES PTY. LTD. a company incorporated
in Victoria and having its principal place of business in Western Australia at
41 Dugan Street, Kalgoorlie and WESTERN AUSTRALIAN MINT, a body corporate
established under section 7 of the Western Australian Mint Act 1970 and
trading under the business name “Westmill” and having its
principal office at 310 Hay Street, East Perth (hereinafter collectively
called “the Joint Venturers” in which term shall be included their
respective successors and permitted assigns) of the other part.
WHEREAS:
(a) Mulga Mines Pty. Ltd. has applied pursuant to
clause 7 of the Second Schedule to the Mining Act 1978 for renewal of licences
to remove and treat tailings numbers 26/139, 26/140, 26/146, 26/147, 26/148,
26/149, 26/151, 26/161, 26/163, 26/164, 26/183, 26/223 and 26/224 (hereinafter
called “the LTTs”);
(b) the Joint Venturers wish to remove the
tailings from the LTTs by hydraulic reclamation and transport and treat the
tailings at a treatment area for the recovery of gold and silver and a
proposal in connection therewith has been referred to the Environmental
Protection Authority pursuant to section 38 of the
Environmental Protection Act 1986 by the Minister (as hereinafter defined);
(c) the Joint Venturers intend to provide such
facilities and services as may be necessary for their activities under this
Agreement and for the accommodation and welfare of their workforce;
(d) the State, for the purpose of promoting
employment opportunity and development within Western Australia and in the
light of its wish to have the dumps, the subject of the LTTs, removed, has
agreed to assist the Joint Venturers upon and subject to the terms of this
Agreement.
NOW THIS AGREEMENT WITNESSES:
Definitions
1. In this Agreement subject to the context
—
“advise”, “apply”,
“approve”, “approval”, “consent”,
“certify”, “direct”, “notify”,
“request”, or “require”, means advise, apply, approve,
approval, consent, certify, direct, notify, request, or require in writing as
the case may be and any inflexion or derivation of any of those words has a
corresponding meaning;
“approved project” means the project
as described in the bound volume entitled “Project Description”
initialled by or on behalf of the Minister and the Joint Venturers for the
purpose of identification;
“approved proposal” means a proposal
approved or determined under this Agreement;
“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;
“CPI” means the Consumer Price
Index-All Groups-Weighted Average of Eight Capital Cities published by the
Australian Bureau of Statistics, or, if the same is not published, such other
similar index as the Minister may reasonably determine;
“EP Act” means the
Environmental Protection Act 1986 ;
“Joint Venturers’ workforce”
means the persons (and the dependants of those persons) connected with the
Joint Venturers’ activities under this Agreement, whether or not such
persons are employed by the Joint Venturers;
“licence areas” means the areas of the
dumps the subject of the LTTs;
“local authority” means the council of
a municipality that is a city, town or shire constituted under the Local
Government Act 1960 ;
“ Mining Act” means the
Mining Act 1978 ;
“Minister” means the Minister in the
Government of the State for the time being responsible for the administration
of the Act to ratify this Agreement and pending the passing of that Act means
the Minister for the time being designated in a notice from the State to the
Joint Venturers;
“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;
“notice” means notice in writing;
“person” or “persons”
includes bodies corporate;
“said State” means the State of
Western Australia;
“Special Licence” means the licence
granted pursuant to Clause 5 and according to the context shall also describe
the areas and tailings the subject of the licence;
“subclause” means subclause of the
Clause in which the term is used;
“this Agreement” refers to this
Agreement whether in its original form or as added to varied or amended from
time to time.
Interpretation
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 18 to extend any period or date
shall be without prejudice to the power of the Minister under Clause 18;
(c)
clause headings do not affect the interpretation or construction;
(d)
words in the singular shall include the plural and words in the plural shall
include the singular according to the requirements of the context;
(e)
reference to an Act includes the amendments to that Act for the time being in
force and also any Act passed in substitution therefor or in lieu thereof and
the regulations for the time being in force thereunder; and
(f) any
covenant or agreement on the part of the Joint Venturers under this Agreement
shall be deemed to be a joint and several covenant or agreement as the case
may be.
Ratification of Agreement
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 31 December 1988.
Commencement and operation of Agreement
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 31
December 1988 the said Bill has not commenced to operate as an Act then unless
the parties otherwise agree this Agreement shall then cease and determine and
no party to this Agreement shall have any claim against any other party 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 the provisions of this Agreement shall
operate and take effect notwithstanding the provisions of any Act or law.
Special Licence
5. (1) Notwithstanding
the provisions of the Mining Act the State shall on application made by the
Joint Venturers not later than three months after the coming into operation of
this Agreement but subject to the withdrawal by Mulga Mines Pty. Ltd. of its
applications for renewal of the LTTs, cause to be granted to the Joint
Venturers a licence to remove and treat tailings within the licence areas in
the form of the Schedule hereto and subject to such further terms and
conditions as the Minister for Mines may consider reasonable.
(2) The term of the
Special Licence shall, subject to the sooner determination thereof on the
determination or cessation of this Agreement, be for a period of 10 years from
the grant thereof Provided However that the Minister at his discretion may
from time to time agree that the term of the Special Licence be extended for
such period or periods not exceeding in the aggregate 5 years as he determines
and an endorsement of any such extension shall be made by the Department of
Mines on the Special Licence.
(3) The Joint
Venturers shall not be entitled to surrender the Special Licence or any part
or parts thereof without the prior consent of the Minister.
(4) The Joint
Venturers shall pay to the State in respect of the Special Licence an annual
licence fee during the term thereof of $5,000.
(5) Notwithstanding
the provisions of the Mining Act the Joint Venturers may from time to time
during the currency of this Agreement apply to the Minister for tailings held
by the Joint Venturers or either of them or any company related to the Joint
Venturers or either of them within the meaning of that term as used in section
7 of the Companies (Western Australia) Code under a licence to treat tailings
or other mining tenement under the Mining Act to be included in the Special
Licence. The Minister shall confer with the Minister for Mines in regard to
any such application and if they approve the application the Minister for
Mines shall upon the surrender of the relevant licence or other mining
tenement include the tailings the subject of the application in the Special
Licence subject to such of the conditions of the surrendered licence or mining
tenement as the Minister for Mines determines but otherwise subject to the
same terms covenants and conditions as apply to the Special Licence and
subject to such amendment to the annual licence fee referred to in subclause
(4) as the Minister for Mines considers appropriate.
Implementation of approved project
6. (1) The Joint
Venturers shall subject to and in accordance with the EP Act and any approvals
and licences required under that Act implement the approved project in
accordance with the terms thereof.
(2) The Joint
Venturers shall not remove or treat any tailings from any of the dumps within
the Special Licence otherwise than in accordance with the approved project or
approved proposals or pursuant to subclause (2) of Clause 8.
General Purpose Leases
7. (1) The State shall
in accordance with the approved project and notwithstanding the Mining Act,
upon application by the Joint Venturers within 3 months after the commencement
date, cause to be granted to the Joint Venturers, at the rentals specified
from time to time in the Mining Act, general purpose leases of the sites for
the treatment plant and tailings residue dam (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 notwithstanding that the areas thereof may exceed the maximum area
provided for in the Mining Act in respect of general purpose leases) such
general purpose leases to be granted under and, except as otherwise provided
in this Agreement, subject to the Mining Act and subject to such conditions as
the Minister for Mines determines.
(2) Subject to the
performance by the Joint Venturers of their obligations under this Agreement
and the Mining Act and subject to Clause 20 and notwithstanding any provisions
of the Mining Act to the contrary —
(a) the
initial term of the general purpose lease for the treatment plant shall be 21
years from the commencement date; and
(b) the
term of the general purpose lease for the tailings residue dam shall be a
period commencing on the commencement date and continuing until the expiration
of 10 years after the expiration or sooner determination of the term (and any
extensions thereof) of the Special Licence.
(3) The Joint
Venturers shall not be entitled to surrender the general purpose lease for the
tailings residue dam in whole or in part without the prior consent of the
Minister.
Additional proposals
8. (1) If the Joint
Venturers at any time during the continuance of this Agreement desire to
significantly modify expand or otherwise vary their activities carried on
pursuant to this Agreement beyond those specified in the approved project or
in any approved proposals or, having first obtained the Minister’s
consent thereto, to treat gold bearing material other than tailings from the
Special Licence they shall give notice of such desire to the Minister and if
required by the Minister within 2 months of the giving of such notice shall
submit to the Minister within such period as the Minister may reasonably allow
detailed proposals in respect of all matters covered by such notice and such
other matters, including matters relating to any of the following, namely
—
(a)
methods of removal and treatment of the tailings or other material;
(b)
sites for the treatment plant and tailings residue dam;
(c)
water supply;
(d)
power supply;
(e)
residue disposal;
(f) use
of local labour, professional services, manufactures, suppliers, contractors
and materials and measures to be taken with respect to the engagement and
training of employees by the Joint Venturers, their agents or contractors; and
(g) an
environmental management programme as to measures to be taken in respect of
the Joint Venturers’ activities under the Agreement for the protection
and management of the environment
and other relevant
information as the Minister may require.
(2) If the Minister
does not require the Joint Venturers to submit proposals under subclause (1)
the Joint Venturers may, subject to compliance with all applicable laws,
proceed with the modification, expansion or variation of their activities
carried on pursuant to this Agreement.
(3) Subject to the EP
Act the Minister shall within 2 months of the receipt of proposals submitted
pursuant to subclause (1) give to the Joint Venturers notice either of —
(a) his
approval thereof; or
(b) any
objections or alterations desired thereto and in such case shall afford the
Joint Venturers an opportunity to consult with and submit new proposals to the
Minister.
(4) If within 2 months
of receipt of a notice pursuant to paragraph (b) of subclause (3) the Minister
has not given approval to the said proposals, the said proposals shall not be
referable to arbitration hereunder but shall lapse.
(5) Subject to and in
accordance with the EP Act and any approvals and licences required under that
Act the Joint Venturers shall implement proposals approved pursuant to this
Clause in accordance with the terms thereof.
Protection and management of the environment
9. (1) The Joint
Venturers shall in respect of the matters relating to the environment which
are referred to in the approved project or which are the subject of approved
proposals carry out a continual programme of investigation, research and
monitoring to ascertain the effectiveness of the measures they are taking both
generally and pursuant to the approved project or the approved proposals as
the case may be for the protection and management of the environment.
(2) The Minister may
from time to time during the currency of this Agreement require the Joint
Venturers to report to him within one month or such longer period as the
Minister may allow concerning —
(a)
measures which have been taken for the protection and management of the
environment both generally and pursuant to approved proposals;
(b)
investigations, research and monitoring carried out pursuant to subclause (1);
and
(c) any
changes proposed to be adopted in the ongoing measures for protection and
management of the environment, including investigations, research and
monitoring.
(3) The Minister may
within 2 months of receipt of a report pursuant to subclause (2) notify the
Joint Venturers that he —
(a)
requires amendment of the report and the changes to be adopted in the ongoing
programme or either of them; or
(b)
requires additional detailed proposals to be submitted for the protection and
management of the environment in relation to matters the subject of approved
proposals.
(4) The Joint
Venturers shall within 2 months of receipt of a notice pursuant to paragraph
(a) of subclause (3) submit to the Minister an amended report and programme or
either of them as required. The Minister shall afford the Joint Venturers full
opportunity to consult with him on his requirements during the preparation of
any amended report or programme.
(5) The Minister may
within 1 month of receipt of an amended report or programme pursuant to
subclause (4) notify the Joint Venturers that he requires additional detailed
proposals to be submitted for the protection and management of the environment
in relation to matters the subject of approved proposals.
(6) The Joint
Venturers shall within 2 months of receipt of a notice pursuant to paragraph
(b) of subclause (3) or subclause (5) submit to the Minister additional
detailed proposals as required.
(7) On receipt of
proposals pursuant to subclause (6) 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,
PROVIDED ALWAYS that
any approval or decision of the Minister under this clause shall be in
accordance with the conditions and procedures, if any, to which implementation
of the project is made subject pursuant to the EP Act and such approval or
decision shall if the case so requires incorporate a requirement that the
Joint Venturers make such alterations to the said proposals as may be
necessary to make them accord with those conditions or procedures.
(8) Subject to the EP
Act the Minister shall within two months after receipt of the proposals
pursuant to subclause (7) give notice to the Joint Venturers of his decision
in respect to the same.
(9) If the decision of
the Minister is as mentioned in paragraph (b) of subclause (7) the Minister
shall afford the Joint Venturers full opportunity to consult with him and
should they so desire to submit new or revised proposals either generally or
in respect to some particular matter.
(10) If the decision
of the Minister is as mentioned in paragraph (b) of subclause (7) and the
Joint Venturers consider that the decision is unreasonable the Joint Venturers
within two months after receipt of the notice of the decision may elect to
refer to arbitration in the manner hereinafter provided the question of the
reasonableness of the decision PROVIDED THAT any requirement of the Minister
pursuant to the proviso to subclause (7) shall not be referable to arbitration
hereunder.
(11) Subject to and in
accordance with the EP Act and any approvals and licences required under that
Act the Joint Venturers shall implement the decision of the Minister or an
award on arbitration as the case may be in accordance with the terms thereof.
Use of local labour and professional services
10. (1) The Joint
Venturers shall, for the purposes of this Agreement —
(a)
except in those cases where the Joint Venturers can demonstrate it is
impracticable so to do, use labour available within the said State;
(b) so
far as it is reasonable and economically practicable so to do, use the
services of engineers, surveyors, architects and other professional
consultants, project managers manufacturers suppliers and contractors resident
and available within the said State;
(c) when
preparing specifications for works materials plant equipment and supplies
(which shall, except where it is impracticable so to do, use or be based upon
Australian Standards or Codes) and when calling for tenders and letting
contracts ensure that Western Australian manufacturers suppliers and
contractors are given fair and reasonable opportunity to tender or quote; and
(d) give
proper consideration and where possible preference to Western Australian
manufacturers suppliers 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)
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 at monthly intervals
commencing from the commencement date or such longer periods as the Minister
may from time to time determine concerning their implementation of the
provisions of this Clause and the performance of third parties in relation
thereto pursuant to subclause (2) together with a copy of any report received
by the Joint Venturers pursuant to that subclause during that month or longer
period as the case may be.
(4) The Joint
Venturers shall keep the Minister informed on a regular basis during the
currency of this Agreement of any services (including any elements of the
project investigations design and management) and any works materials plant
equipment and supplies that they may be proposing to obtain from or have
carried out or permit to be obtained from or carried out outside Australia
together with their reasons therefore and shall, as and when required by the
Minister, consult with the Minister with respect thereto.
Water
11. (1) The Joint
Venturers shall endeavour to obtain their requirements for water by utilizing
subterranean water from beneath land to which the Joint Venturers have rights
of ownership or occupancy or hold a miscellaneous licence under the Mining Act
or other appropriate title from time to time (hereinafter referred to as
“the Joint Venturers’ land”).
(2) To enable the
Joint Venturers to investigate the availability of subterranean water beneath
the Joint Venturers’ land the State shall grant to the Joint Venturers a
licence under the Rights in Water and Irrigation Act 1914 to permit the Joint
Venturers to explore for water beneath the Joint Venturers’ land.
(3) The Joint
Venturers shall furnish to the State a full report on the result of their
investigations as to the amount of subterranean water available from bores or
wells to be constructed on the Joint Venturers’ land.
(4) The State shall if
it is satisfied with the report referred to in subclause (3) grant to the
Joint Venturers under the Rights in Water and Irrigation Act 1914 a licence
to permit the Joint Venturers to construct bores on the Joint Venturers’
land and draw water up to a specified maximum annual quantity subject to such
conditions as the State considers necessary to ensure good water management
PROVIDED THAT the State may in consultation with the Joint Venturers, amend
the licence from time to time.
(5) The Joint
Venturers shall be wholly responsible for the expenses incurred in the
investigations referred to in subclause (2) and in constructing any works
referred to in subclause (4) required for development of a subterranean water
supply source for the Joint Venturers’ operations under this Agreement.
(6) In the event of
interest being expressed by a third party in utilisation of water from the
aquifer developed under subclause (4) the State will first direct the third
party to consider other options for securing a water supply. If the State is
satisfied that other suitable options are not available to the third party the
State, having regard for the capability of the aquifer to support the combined
draw of both parties, may grant a licence to the third party under the
Rights in Water and Irrigation Act 1914 allowing the third party to draw
water from the aquifer unless the Minister determines that such grant is
likely to unduly prejudice the operations of the Joint Venturers under this
Agreement. Before granting such a licence the State shall consult with the
Joint Venturers and shall give fair and reasonable consideration to the
expense and effort expended by the Joint Venturers in investigation and
development of the aquifer and to the impact of the third party’s draw
of water on availability of water to the Joint Venturers. In the event of
granting of a licence to the third party to draw water from the aquifer the
State will where it considers it appropriate require the third party to
reimburse the Joint Venturers for a reasonable proportion of the expenses
incurred by the Joint Venturers in investigations of the aquifer carried out
under subclause (2). In the event the State requires a reduction in the
quantity of water that may be drawn from the aquifer it shall reduce the
amount that may be withdrawn by the third party before reducing the Joint
Venturers’ allowable draw.
(7) Notwithstanding
the foregoing provisions of this Clause the State may from time to time
determine that the Joint Venturers shall obtain water for their operations
under this Agreement from sources in lieu of or in addition to those
hereinbefore provided for. The Joint Venturers shall bear the whole or such
proportion of the costs involved in providing such water supply as the
Minister may determine.
Roads
12. (1) The Joint
Venturers shall —
(a) be
responsible for the cost of the construction and maintenance of all private
roads which shall be used in their operations hereunder;
(b) at
their own cost make such provision as shall ensure that all persons and
vehicles (other that those engaged upon the Joint Venturers’ operations
and their invitees and licencees) are excluded where required by the Joint
Venturers from use of any such private roads; and
(c) at
any place where such private roads cross any railways or public roads provide
at their cost such reasonable protection as may be required by the Railways
Commission or the Commissioner of Main Roads as the case may be.
(2) In the event that
for or in connection with the Joint Venturers’ operations hereunder the
Joint Venturers or any person engaged by the Joint Venturers uses or wishes to
use a public road which is inadequate for the purpose, or any use by the Joint
Venturers or any person engaged by the Joint Venturers of any public road
results in excessive damage thereto or deterioration thereof (other than fair
wear and tear) the Joint Venturers shall pay to the State or the relevant
local authority as the case may require 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
or relevant local authority having regard to the use of such public road by
others.
Other infrastructure
13. The Joint Venturers shall confer with the
Minister and the relevant local authorities with a view —
(a) to
ensuring that appropriate planning is being made for the provision of adequate
serviced land for housing the Joint Venturers’ workforce; and
(b) to
assisting in the cost of providing community, recreation, civic and social
amenities where appropriate, having due regard to the size of the Joint
Venturers’ workforce and the scope of the Joint Venturers’
operations to be carried out pursuant to this Agreement.
Compensation for removal or destruction of natural vegetation
14. (1) The Joint
Venturers shall pay to the Executive Director of the Department of
Conservation and Land Management as and when demanded from time to time
compensation at the specified amount per hectare of natural vegetation on any
land reserved under the Land Act removed or destroyed by or in connection with
the Joint Venturers’ activities or by water escaping from the areas of
the Joint Venturers’ operations PROVIDED THAT the Executive Director and
the Joint Venturers may agree from time to time that land shall be transferred
by the Company to the Executive Director in lieu of a payment under this
subclause.
(2) In subclause (1)
“specified amount” means $1150 escalated on 1 January in each year
commencing with 1 January 1989 by the percentage by which the CPI last
published prior to the relevant 1 January has increased over the CPI last
published prior to 1 January 1988.
Resumption for the purposes of this Agreement
15. The State may as and for a public work under
the Public Works Act 1902 , resume any land required for the purposes of this
Agreement and notwithstanding any other provisions of that Act may sell lease
or otherwise dispose of that land to the joint Venturers and the provisions of
subsections (2) and (7) inclusive of sections 17 and 17A of that Act shall not
apply to or in respect of that land or the resumption thereof. The Joint
Venturers shall pay to the State on demand the costs of and incidental to any
land resumed at the request of and on behalf of the Joint Venturers.
Assignment
16. (1) Subject to the
provisions of this Clause the joint Venturers or either of them may at any
time with the consent of the Minister assign mortgage charge sublet or dispose
of the whole or any part of the rights of the Joint Venturers or either of
them under this Agreement (including their respective rights to or as holder
of the Special Licence and the general purpose leases referred to in Clause 7)
and of the obligations of the Joint Venturers under this Agreement subject
however in the case of an assignment subletting or disposition to the assignee
sub-lessee or disponee (as the case may be) executing in favour of the State
(unless the Minister otherwise determines) a deed of covenant in a form to be
approved by the Minister to comply with observe and perform the provisions of
this Agreement 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 or disposition.
(2) Notwithstanding
anything contained in or anything done under or pursuant to subclause (1) 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 in this Agreement
PROVIDED THAT the Minister may agree to release the Joint Venturers or either
of them from such liability where he considers such release will not be
contrary to the interests of the State.
Variation
17. (1) The parties to
this Agreement 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, the Special
Licence or the general purpose leases for the purpose of more efficiently or
satisfactorily implementing or facilitating any of the objects of this
Agreement.
(2) The Minister shall
cause any agreement made pursuant to subclause (1) in respect of any addition
substitution cancellation or variation of the provisions of this Agreement to
be laid on the Table of each House of Parliament within 12 sitting days next
following its execution.
(3) Either House may,
within 12 sitting days of that House after the agreement has been laid before
it pass a resolution disallowing the agreement but if after the last day on
which the agreement might have been disallowed neither House has passed such a
resolution the agreement shall have effect from and after that last day.
Power to extend periods
18. 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 or in the approved project or an approved
proposal for such period or to such later date as the Minister thinks fit
whether or not the period to be extended has expired or the date to be varied
has passed.
Determination of Agreement
19. (1) In any of the
following events namely if —
(a) the
Joint Venturers, after the commissioning of the treatment plant, fail to treat
pursuant to the approved project at least 3,000,000 tonnes, or such lesser
tonneage as the Minister may from time to time allow, of tailings in any
period of 12 consecutive months (or such extended period as the Minister may
allow); or
(b)
(i) the Joint Venturers make
default which the State considers material in the due performance or
observance of any of the covenants or obligations in this Agreement on the
Joint Venturers’ part to be performed or observed; or
(ii)
the Joint Venturers abandon or repudiate this Agreement
or their operations under this Agreement
and such default is
not remedied or such operations resumed within a period of 90 days after
notice is given by the State as provided in subclause (2) or, if the default
or abandonment is referred to arbitration, then within the period mentioned in
subclause (3); or
(c) the
Joint Venturers or either of them go into liquidation (other than a voluntary
liquidation for the purpose of reconstruction) or, in the case of Western
Australian Mint if it ceases to subsist, and unless within 3 months from the
date of such liquidation or cessation the interest of the Joint Venturer is
assigned to the other Joint Venturer or to an assignee approved by the
Minister under Clause 16,
the State may by
notice to the Joint Venturers determine this Agreement.
(2) The notice to be
given by the State in terms of subclause (1) shall specify the nature of the
default or other ground so entitling the State to exercise such right of
determination and where appropriate and known to the State the party or
parties responsible therefor and shall be given to the Joint Venturers and all
such assignees mortgagees chargees and disponees for the time being of the
Joint Venturers’ said rights to or in favour of whom or by whom an
assignment mortgage charge or disposition has been effected in terms of Clause
16 whose name and address for service of notice has previously been notified
to the State by the Joint Venturers or any such assignee mortgagee chargee or
disponee.
(3) (a)
If the Joint Venturers contest an alleged default
abandonment or repudiation referred to in paragraphs (b)(i) and (b)(ii) of
subclause (1) the Joint Venturers shall within 60 days after notice given by
the State as provided in subclause (2) refer the matter in dispute to
arbitration.
(b) If
the question is decided against the Joint Venturers, the Joint Venturers shall
comply with the arbitration award within a reasonable time to be fixed by that
award PROVIDED THAT if the arbitrator finds that there was a bona fide dispute
and that the Joint Venturers were not dilatory in pursuing the arbitration,
the time for compliance with the award shall not be less than 90 days from the
date of such award.
(4) If a default
referred to in paragraphs (b)(i) or (b)(ii) of subclause (1) shall not have
been remedied after receipt of the notice referred to in that subclause or
within the time fixed by 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 Joint Venturers and to make use of all plant machinery and
installations thereon) and the actual costs and expenses incurred by the State
in remedying or causing to be remedied such default shall be payable by the
Joint Venturers to the State on demand.
Effect of cessation or determination of Agreement
20. (1) On the
cessation or determination of this Agreement —
(a)
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 of any
assignee of the Joint Venturers or any mortgagee to in or under the Special
Licence and, subject to paragraph (b) of this subclause, the general purpose
lease for the treatment plant 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) if
at the cessation or determination of this Agreement all dumps within the
licence areas at the commencement date shall have been removed and all
rehabilitative and other conditions and obligations in relation to the licence
areas shall have been performed and observed by the Joint Venturers, the
general purpose lease for the treatment plant shall not then cease and
determine but shall continue for its remaining unexpired term under and in
accordance with the Mining Act;
(c) the
general purpose lease for the tailings residue dam shall continue for its
remaining unexpired term (subject to earlier surrender with the consent of the
Minister) under and in accordance with the Mining Act and notwithstanding the
cessation or determination of this Agreement shall continue to be subject to
all rehabilitative and other conditions and obligations that were applicable
thereto under the Agreement and approved proposals;
(d) the
Joint Venturers shall forthwith pay to the State all moneys which may then
have become payable or accrued due;
(e) save
as aforesaid and as otherwise provided in this Agreement neither of the
parties shall have any claim against the other of them with respect to any
matter or thing in or arising out of this Agreement.
(2) Subject to the
provisions of subclause (3) upon the cessation or determination of this
Agreement except as otherwise determined by the Minister all buildings
erections and other improvements erected on any land then occupied by the
Joint Venturers under the Special Licence and, if it then ceases and
determines, the general purpose lease for the treatment plant shall become and
remain the absolute property of the State without the payment of any
compensation or consideration to the Joint Venturers or any other party and
freed and discharged from all mortgages and other encumbrances and the Joint
Venturers shall do and execute all such deeds documents and other acts matters
and things (including surrenders) as the State may reasonably require to give
effect to the provisions of this subclause.
(3) In the event of
the Joint Venturers immediately prior to the cessation or determination of
this Agreement or subsequently thereto desiring to remove any of their fixed
or movable plant and equipment to any part thereof from any part of the land
occupied by them at the date of such cessation or determination they shall
give to the State notice of such desire and thereby grant to the State the
right or option exercisable within 3 months thereafter to purchase in situ
such fixed or movable plant and equipment at a fair valuation to be agreed
between the State and the Joint Venturers or failing agreement determined by
arbitration hereunder.
Environmental protection
21. 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 activities 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
22. 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 PROVIDED THAT
subject to the provisions of any other relevant Act such indemnity shall not
apply in circumstances where the State, its servants, agents or contractors
are negligent in carrying out work for the Joint Venturers pursuant to this
Agreement.
Sub-contracting
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.
Arbitration
24. (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 a party under this Agreement or as to any matter to be agreed
upon between the parties shall in default of agreement between the parties and
in the absence of any provision in this Agreement to the contrary be referred
to and settled by arbitration under the provisions of the
Commercial Arbitration Act 1985 and notwithstanding section 20(1) of that Act
each party may be represented by a duly qualified legal practitioner or other
representative.
(2) Except where
otherwise provided in this Agreement, the provisions of this Clause shall not
apply to any case where the State the Minister or any other Minister in the
Government of the said State is by this Agreement given either expressly or
impliedly a discretionary power.
(3) The arbitrator of
any submission to arbitration hereunder is hereby empowered upon the
application of either of the parties to grant in the name of the Minister any
interim extension of any period or variation of any date referred to in this
Agreement which having regard to the circumstances may reasonably be required
in order to preserve the rights of that party or of the parties under this
Agreement and an award may in the name of the Minister grant any further
extension or variation for that purpose.
Notices
25. Any notice, consent or other writing
authorised or required by this Agreement to be given or sent shall be deemed
to have been duly given or sent by the State if signed by the Minister or by
any senior officer of the Public Service of the said State acting by the
direction of the Minister and forwarded by prepaid post or handed to the Joint
Venturers at their respective addresses in the said State hereinbefore set
forth or other addresses in the said State nominated by the Joint Venturers to
the Minister from time to time for the purpose of this Clause and by the Joint
Venturers if signed on their behalf by any person or persons authorised by the
Joint Venturers or by their solicitors as notified to the State from time to
time and forwarded by prepaid post or handed to the Minister and except in the
case of personal service any such notice, consent or writing shall be deemed
to have been served on the day on which it would be delivered in the ordinary
course of post.
Term
26. Subject to the provisions of Clauses 19 and 20
this Agreement shall expire on the expiration or sooner determination or
surrender of the Special Licence.
Applicable Law
27. 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
TAILINGS TREATMENT (KALGOORLIE) AGREEMENT ACT 1988
SPECIAL LICENCE TO REMOVE AND TREAT TAILINGS
No.
WHEREAS by the Agreement (hereinafter called “the Agreement”)
ratified by the Tailings Treatment (Kalgoorlie) Agreement Act 1988 the State
agreed to grant to Mulga Mines Pty. Ltd. a company incorporated in Victoria
and having its principal place of business in Western Australia at 41 Dugan
Street, Kalgoorlie and Western Australian Mint a body corporate established
under section 7 of the Western Australian Mint Act 1970 and trading under the
business name ‘Westmill’ and having its principal place of
business at 310 Hay Street, East Perth (hereinafter with their successors and
permitted assigns called “the Joint Venturers”) a licence to
remove and treat tailings within the “licence areas” defined in
the Agreement AND WHEREAS the Joint Venturers pursuant to clause 5(1) of the
Agreement have made application for the said licence and Mulga Mines Pty. Ltd.
has withdrawn its applications for renewal of the licences to remove and treat
tailings referred to in that clause;
NOW THIS IS TO CERTIFY THAT the Joint Venturers are hereby licensed in
accordance with the provisions of the Agreement to remove and treat tailings
within the licence areas defined in the Agreement that is to say the areas
formerly the subject of the late licences to remove and treat tailings
referred to in recital (a) to the Agreement for the term of 10 years from the
date hereof subject to the sooner determination of the said term on the
determination or cessation of the Agreement and subject also to any extension
of the said term granted pursuant to the Agreement and for the purposes and
upon and subject to the terms covenants and conditions set out in the
Agreement and the said Act and any amendments to the Agreement and the said
Act from time to time and to the terms and conditions (if any) endorsed hereon
and to the payment of the annual licence fee provided for in the Agreement.
Endorsements
(Any further terms and conditions)
DATED at Perth this day of
1988.
MINISTER FOR MINES
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 HONOURABLE PETER M’CALLUM DOWDING, LL.B., M.L.A. |
|
|
D. PARKER
MINISTER FOR ECONOMIC DEVELOPMENT AND TRADE
THE COMMON SEAL OF MULGA MINES PTY. LTD. was hereunto affixed by authority of
the Directors and in the presence of — |
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|
C. R. BERGLUND
Director
W. K. MEISCHKE
Authorised Officer
THE COMMON SEAL OF WESTERN AUSTRALIAN MINT was hereunto affixed by authority
of the Board of Directors in the presence of — |
|
[C.S.] |
JOHN HORGAN
Director
B. F. BATH
Director