1Short title
This Act may be cited as the Iron Ore (Murchison) Agreement Authorisation Act 1973 1.
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Bill homepageThis Act may be cited as the Iron Ore (Murchison) Agreement Authorisation Act 1973 1.
The execution by the Premier of the State of Western Australia acting for and on behalf of the State of an agreement in or substantially in accordance with the form set out in the Schedule is authorised.
When the agreement referred to in section 2 is duly executed by all the parties thereto, the agreement shall, subject to its provisions, operate and take effect as though those provisions were enacted in this Act.
Schedule — Iron Ore (Murchison) Agreement
[s. 2]
[Heading amended: No. 19 of 2010 s. 4.]
THIS AGREEMENT made the day of
One thousand nine hundred and seventy‑three BETWEEN THE HONOURABLE JOHN TREZISE TONKIN, M.L.A., THE 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 NORTHERN MINING CORPORATION N.L. a company incorporated under the Companies Act 1961 of the State of Victoria in the Commonwealth of Australia and having its registered office in the State of Western Australia situate at 442 Murray Street Perth (hereinafter called “the Company” which expression shall where the context so admits or requires extend to and include the successors assigns and appointees of the Company) of the other part.
WHEREAS:
The Company is exploring and investigating the possibility of the mining areas hereinafter defined containing deposits of iron ore.
Research is being conducted by the Company with the object of establishing satisfactory ore crushing, screening, and upgrading procedures in the treatment of iron ore from the mining areas.
NOW THIS AGREEMENT WITNESSETH as follows —
Definitions 2
“apply”, “appoint”, “approve”, “approval”, “consent”, “certify”, “direct”, “notify”, “require” , or “request” means apply, appoint, approve, approval, consent, certify, direct, notify, require, or request in writing as the case may be;
“approved proposals” means proposals of the Company which are approved or are deemed to be approved by the Minister pursuant to this Agreement;
“associated company” means —
any Company notified by the company to the Minister which has a paid‑up capital of not less than two million dollars and is incorporated in the United Kingdom, the United States of America, or the Commonwealth of Australia and which —
is promoted by the Company for all or any of the purposes of this Agreement and in which the Company holds not less than twenty per centum of the issued ordinary share capital or —
is related within the meaning of section 6 of the Companies Act 1961 to the Company or to any company in which the Company holds not less than twenty per centum of the issued ordinary share capital and —
any other company which the Minister approves as an associated company for the purposes of this Agreement.
“Company’s wharf” means any wharf utilised by the Company for the purpose of shipping iron ore products produced as the result of the operation of this Agreement and whether the same be a wharf constructed by or on behalf of the Company a wharf used by the Company in conjunction with another or others (including the State) or any temporary structure approved by the Minister as the Company’s wharf for the time being for the purposes of this Agreement;
“Clause” means a clause of this Agreement;
“commencement date” means the date on which this Agreement is executed by all the parties hereto;
“Commission” means the State Electricity Commission of Western Australia;
“Commonwealth” means the Commonwealth of Australia and includes the Government thereof for the time being;
“direct shipping ore” means iron ore which has an average pure iron content of not less than sixty per centum which will not pass through a 6 millimetre mesh screen and which is sold without concentration or other beneficiation other than crushing and screening;
“export date” means the date on which the ship carrying the first shipment of iron ore products shipped by the Company under this Agreement (other than iron ore shipped solely for testing purposes) sails from the port at which it has been loaded;
“financial year” means a year commencing on and including the 1st day of July;
“fine ore” means iron ore which has an average pure iron content of not less than sixty per centum which will pass through a 6 millimetre mesh screen and which is sold without concentration or other beneficiation other than crushing and screening;
“fines” means iron ore (not being direct shipping ore or fine ore) which will pass through a 6 millimetre mesh screen;
“f.o.b. revenue” means the price for iron ore products the subject of any shipment or sale which is payable by the purchaser thereof to the Company or an associated company, less all export duties and export taxes payable on such iron ore products and less all costs and charges properly incurred and payable on such iron ore products by the Company or an associated company to the State or a third party from the time when the iron ore products are placed on ship at the Company’s wharf to the time when the iron ore products are delivered and accepted by the purchaser, there being included in such costs and charges —
ocean freight;
marine insurance;
port and handling charges at port of discharge;
costs of delivery from port of discharge to a smelter nominated by the purchaser;
weighing, sampling, assaying, inspection and representation costs incurred on discharge or delivery;
shipping agency charges;
import taxes payable to the country of the port of discharge;
demurrage incurred after loading and at port of discharge; and
such other costs and charges as the parties (having regard inter alia to such matters as the parties to and the bona fide nature of the transaction as the result of which the cost or charge was incurred) shall agree to include or failing agreement as fixed by arbitration as hereinafter provided.
For the purpose of this definition —
the Minister may from time to time in respect of any of the costs or charges mentioned in Items (1) to (9) (inclusive) above incurred in relation to any particular shipment or sale notify the Company that he does not regard the cost or charge as being properly incurred and in that event should the Company disagree with the Minister’s decision it may refer the matter in question to arbitration as hereinafter provided but unless and until it is otherwise determined such cost or charge shall be treated as being not properly incurred and if otherwise determined the State shall refund to the Company any royalty paid by the Company on the basis that the charge was not properly incurred;
notwithstanding anything contained in this definition to the contrary, a cost or charge as set out in items (1) to (8) inclusive of this definition shall not (unless and until the Minister so determines) be deemed to be properly incurred if such charge is directly or indirectly imposed upon or incurred by the Company or an associated company pursuant to an arrangement entered into between the Company and the State;
in the event of the parties failing to agree to the inclusion of a cost or charge which might be included pursuant to item (9) and referring the matter to arbitration then unless and until it is otherwise determined such cost or charge shall be excluded but if it is determined that the same should be included the State shall refund to the Company any royalty paid by reason of the same having been excluded;
“integrated iron and steel industry” means an industry for the manufacture of iron and steel or for the manufacture of steel from iron ore by a process which does not necessarily involve the production of pig iron or basic iron in the production of steel;
“iron ore” means iron ore from the mining areas;
“iron ore concentrates” means products (whether in pellet or other form) resulting from secondary processing but does not include metallised agglomerates;
“iron ore pellets” means iron ore in pellet or other form produced by pelletisation or a more advanced reduction or other treatment or process from iron ore mined on the mineral lease;
“iron ore products” is an inclusive term covering iron ore of all grades obtained from the mineral lease and also all products produced by secondary and tertiary processing any part of such iron ore;
“Land Act” means the Land Act 1933;
“locally used ore” means iron ore used by the Company or an associated company within the Commonwealth for secondary processing or tertiary processing and includes iron ore used by any other person in the said State for secondary processing or tertiary processing;
“metallised agglomerates” means products resulting from the reduction of iron ore or iron ore concentrates by any method whatsoever and having an iron content of not less than eighty five per centum;
“mineral lease” means the mineral lease or mineral leases referred to in Clause 12(1) and includes any renewal thereof and where the context so permits shall describe the area of land demised as well as the instrument by which it is demised;
“mine townsite” means a townsite or townsites established by the Company on or near the mining areas pursuant to this Agreement and includes any existing townsite approved by the Minister;
“Mining Act” means the Mining Act 1904;
“mining areas” means the area delineated and coloured green on the plan marked “A” together with such of the areas delineated and coloured blue on that plan over which rights of occupancy pursuant to section 276 of the Mining Act may at any time (whether before or after the commencement of this Agreement) be granted to the Company or transferred to the Company with the approval of the Minister for Mines;
“Minister” means the Minister in the Government of the said State for the time being responsible for the administration of this Agreement;
“Minister for Mines” means the Minister in the Government of the said State for the time being responsible for the administration of the Mining Act;
“month” means calendar month;
“notice” means notice in writing;
“ore” means iron ore;
“parties” means the parties to this Agreement;
“person” or “persons” includes bodies corporate;
“port” means a new port to be established near Geraldton under the control of the Geraldton Port Authority in implementation of approved proposals hereunder whether the same be established by the Company exclusively or by it in conjunction with another or others (including the State) and should no such new port be established the term means any existing port developed or used by the Company for the purposes of this Agreement by arrangement with another or others (including the State) and in either case the term extends to and includes as well as the land upon which the Company’s wharf is erected also the adjacent land serving the Company’s wharf and the adjacent land on which it is proposed to locate or on which could be located or in fact is located secondary processing plants crushing grinding and screening facilities stock piling yards electric power generating plant petroleum storage and other ancillary facilities;
“port townsite” subject to the provisions of Clause 26 means the town of Geraldton including those environs of that town within the Shires of Chapman Valley and Greenough;
“Railways Commission” means the Western Australian Government Railways Commission established pursuant to the Government Railways Act 1904;
“said State” means the State of Western Australia;
“secondary processing” means the concentration or other beneficiation of iron ore otherwise than by crushing or screening and includes thermal electrostatic magnetic and gravity processing and the production of pellets iron ore concentrates metallised agglomerates and sponge iron;
“steel” means steel in the form of steel billets or manufactured steel products;
“tertiary processing” means the production of pig iron by blast furnace smelting the production of steel by any means whatsoever and the further processing of steel into special shapes and alloys;
“this Agreement” “hereof” and “hereunder” includes this Agreement as from time to time added to varied or amended;
“tonne” means a tonne of 1000 kilograms net dry weight;
“Transfer of Land Act” means Transfer of Land Act 1893;
“wharf” includes any jetty structure;
“Year 1” means the year next following the export date and “year” followed immediately by any other numeral has a corresponding meaning.
Interpretation 2
monetary references are references to Australian currency unless otherwise specifically expressed;
power given under any clause other than Clause 47 to extend any period or date shall be without prejudice to the power of the Minister under Clause 47;
marginal notes 2 do not affect the interpretation or construction; and
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.
Where any provision of this Agreement constitutes an agreement or undertaking by one of the parties to make a payment or to perform some act or to carry out some obligation or to assume some responsibility or liability or to grant some right concession or advantage that party shall by its execution hereof be deemed to have covenanted and agreed with the other party accordingly.
The State and the Minister shall be deemed to have power and authority to exercise all such powers and discretions and to do all such other acts matters and things as may be required or be necessary to be exercised or done in order to carry out and give effect to the provisions of this Agreement and in particular the State and the Minister shall be deemed to have power —
to close or vary the alignments or boundaries of any public road and —
to resume as and for a public work any land or other estate right or interest in land.
Effect on existing Acts 2
3. As from the date hereof all the provisions of this Agreement shall operate and take effect notwithstanding the provisions of any other Act or any law to the contrary and for the purposes of this Agreement and without limiting the generality of the foregoing the undermentioned Acts shall be deemed modified and amended to the extent indicated namely —
the Mining Act by deleting Sections 277 and 282 thereof;
the Land Act —
by deleting subsections (1) and (2) of Section 45A thereof and by substituting the following —
“45A (1) Notwithstanding anything contained in the last preceding Sections of this Part (Part IV) of this Act the Governor may dispense with the requirements thereof as to the sale of town or country lands and may approve of any lot being offered for sale or for leasing in the manner prescribed in subsection (2) of this Section.
Upon the Governor signifying approval pursuant to subsection (1) of this Section in respect of any such lands the Minister may offer the said lands or any part thereof for sale or may grant leases or licences thereof for such price or prices and for such period or periods (including rights of renewal) and upon and subject to such other terms and conditions and in such form as the Minister may think fit provided that the price period or other terms and conditions shall not be inconsistent with the provisions of any agreement executed by the Premier of the State of Western Australia acting for and on behalf of the said State pursuant to the authority in that behalf given by an Act of the Parliament of the said State.”;
by deleting the proviso to Section 116 thereof;
by deleting Sections 135 and 143 thereof;
the Public Works Act 1902 — by deleting subsections (2) to (7) inclusive of Section 17 thereof and also the whole of Section 17A thereof;
Section 82 of the Mining Act and Section 81D of the Transfer of Land Act shall not apply to a mortgage or charge in the form commonly known as a floating charge given by the Company or an associated company pursuant to Clause 41 or to a transfer or assignment in exercise of a power of sale contained in any such mortgage or charge;
no lease sublease licence or other title or right granted or assigned under or pursuant to this Agreement shall be subject to or capable of partition and the provisions of Part XVI of the Property Law Act 1969 shall not apply thereto.
Right to enter Crown land 2
4. To the extent reasonably necessary for the purpose of the investigations and studies and subject to the adequate protection of the environment (including flora and fauna) and the affected land and improvements thereon the State shall permit the Company to enter into and upon Crown land other than the mining areas (including the lands the subject of a pastoral lease) and to survey possible sites for its proposed operations under this Agreement.
Rights of occupancy of mining areas 2
5. As soon as practicable after the commencement date the State shall upon application by the Company cause to be granted to the Company the sole and exclusive right to search and prospect for iron ore in the mining areas (but excluding therefrom any existing prospecting areas, claims, leases, or authorised holdings under the Mining Act and any land alienated or in the course of alienation and any land reserved (not being Crown land within the meaning of the Mining Act).) by granting to the Company rights of occupancy pursuant to section 276 of the Mining Act over the Temporary Reserves contained in the mining areas for the period and upon and subject to the following terms and conditions —
Existing rights to be surrended 2
the rights of occupancy shall be granted subject to the condition precedent that the Company surrenders all its existing rights of occupancy in respect of the mining areas to the Minister for Mines;
Period of rights of occupancy 2
the rights of occupancy shall be for a period expiring five years after the commencement date;
Consideration of rights of occupancy 2
the Company shall within one month after the commencement date and thereafter on the first and every subsequent anniversary of the commencement date during the continuance of the period of the rights of occupancy pay to the State as consideration for the rights of occupancy in advance an annual fee of one thousand dollars for each Temporary Reserve comprised in the mining areas and in addition ten dollars for each square kilometre or part of a square kilometre of the mining areas for the time being subject to the rights of occupancy;
Obligation to prospect 2
the Company shall in so far as it has not already done so at its expense and in accordance with a programme first approved by the Minister for Mines prospect the mining areas to the satisfaction of the Minister for Mines during the term of such rights;
Reports 2
the Company shall during the term of the rights of occupancy furnish to both the Minister and the Minister for Mines an annual report on all operations carried out in the mining areas by or on behalf of the Company;
Other mining tenements 2
the Minister for Mines may grant to any person (including the Company) mining tenements pursuant to the Mining Act for any mineral other than iron ore within the mining areas if the Minister for Mines is satisfied that such grant would be unlikely to materially prejudice or interfere with the Company’s operations under this Agreement;
Determination of occupancy 2
the rights of occupancy shall forthwith cease and determine on the happening of any of the following events namely —
upon the Company by notice to the Minister relinquishing the same; or
upon the period of the rights of occupancy expiring by effluxion of time; or
upon the State granting to the Company a mineral lease pursuant to Clause 12 (notwithstanding that the instrument of such lease may not be issued); or
upon the Company making default in the due and punctual payment of any annual fee payable pursuant to paragraph (c) of this Clause and failing to comply with a notice from the State specifying such default and calling upon the Company to remedy the same within a period of fourteen days of the service of such notice; or
upon the Company making default in the due performance or observance of any of the other of the terms and conditions upon and subject to which the rights of occupancy were granted and failing to comply with a notice from the State specifying such default and calling upon the Company to remedy the same within a period of fourteen days of the service of such notice.
Investigations and Studies 2
6. (1) The Company shall insofar as it has not already done so to the satisfaction of the Minister, commence as soon as reasonably practicable and carry out at its expense (with the assistance of experienced consultants where appropriate) —
a thorough geological and (as necessary) geophysical investigation and proving of the iron ore deposits in the mining areas and the testing and sampling of such deposits;
a reconnaissance of site of the operations proposed pursuant to this Agreement together with the preparation of suitable maps and drawings;
an engineering investigation of the route for a railway from the mining areas to the port or to connect with any existing or proposed railway and for this purpose the Company shall in consultation with the Railways Commission carry out such investigations as may be agreed;
an engineering investigation of a port site;
a study of the technical and economic feasibility of the mining transporting handling and shipping of iron ore from the mining areas;
the planning for the development of a suitable mine townsite and where appropriate a suitable port townsite (including design of housing utilities and associated facilities and social cultural and civic facilities) in consultation with the State having due regard to the possible or probable use of the same by others as well as the Company;
the investigation, in areas approved by the Minister, of suitable water supplies for mining industrial and mine townsite purposes;
metallurgical and market research; and
an assessment of the environmental effects likely to result from operations pursuant to this Agreement together with outlines of proposals to minimise any deleterious effects on the environment.
Port investigations 2
After consultation with the Minister concerning the result of the investigations and surveys mentioned in paragraph (d) of subclause (1) of this Clause the Company shall employ or retain experienced consultant engineers acceptable to the State to investigate report upon and make recommendations as to the best overall development of a port at such location as appears to be most suitable to the Company’s proposed operations hereunder. The Company shall require such engineers when making such report and recommendations to have full regard for the general development of the port with a view to its reasonable use by others and the Company shall furnish to the State copies of such reports and recommendations. When submitting to the Minister pursuant to Clause 7 detailed proposals in regard to the matters mentioned in this subclause the Company shall so far as reasonably practicable ensure that the detailed proposals —
do not materially depart from the reports and recommendations of such engineers;
provide for the best overall development of the port so far as the same relates to the Company’s activities;
disclose any conditions of user; and
where alternative proposals are submitted the Company’s preferences in regard thereto.
The Company shall collaborate with and keep the State fully informed by quarterly reports as to the progress and results of the Company’s operations under subclauses (1) and (2) of this Clause. The Company shall as and when the Minister may reasonably require furnish the Minister with copies of all appropriate reports received by it from consultants in connection with the matters referred to in this Clause and with copies of all relevant findings made and reports prepared by the Company.
If the State concurrently carries out its own investigations and reconnaissances in regard to all or any of the matters mentioned in subclauses (1) and (2) of this Clause the Company shall co‑operate with the State therein and so far as it is reasonably practicable so to do shall consult with the representatives or officers of the State and make full disclosures and give expressions of opinion regarding the matters referred to in those subclauses.
State Assistance 2
The State shall if required assist the Company in completing its investigations and studies pursuant to this Clause and shall furnish such advice and commentaries as the Company may require and as may be practicable for the State so to do.
Company’s proposals 2
7. (1) As soon as practicable after the completion of the investigations mentioned in Clause 6 the Company shall submit to the Minister proposals as to the location of the port and an outline in sufficient detail to enable the Minister to satisfy himself as to the suitability, technical feasibility and practicability, of the proposed development of the port (having regard to the matters mentioned in paragraph (a) of subclause (2) of this Clause). The Minister shall within two months after such submission notify the Company whether he approves or otherwise of such proposals or the Minister may within that time himself suggest an alternative proposal. If the Minister does not approve of the Company’s proposals or if he himself submits an alternative proposal the Minister shall disclose his reasons for so doing in the said notice and afford the company ample opportunity to consult with him to submit further or alternative proposals and to consider any alternative proposal suggested by the Minister. When considering any of the Company’s proposals and in making his own proposal the Minister shall have regard to the possible future requirements of others (including the State) and no preference or other priority shall be given to the Company or its proposals by reason only that the proposals were submitted for consideration before proposals from any other party.
Detailed proposals 2
Subject to the proposals or any alternative proposals as to the location and development of the port being approved the Company shall on or before the fifth anniversary of the commencement date or on or before such later date as the Minister may approve or as may be determined by arbitration as hereinafter provided submit to the Minister subject to the provisions of this Agreement detailed proposals which shall include (where practicable) appropriate plans and (where reasonably required by the Minister) appropriate specifications in respect of the mining of iron ore on and the future development of the mining areas (or so much thereof as is likely to be comprised in the mineral lease mentioned in Clause 12) and detailed particulars as to the measures proposed to be taken for the protection of the environment should the said proposals be approved or deemed to be approved and also (to the fullest extent reasonably practicable) detailed particulars as to the location area layout design number materials to be used in and time programme for the commencement and completion of the construction or the provision (as the case may be) of each of the following matters —
(to the extent not already covered by the proposals mentioned in subclause (1) of this Clause) the port and port development including the dredging thereof and the disposal and depositing of the spoil the provision of navigational aids and a fair contribution to their maintenance the Company’s wharf the berth and swinging basin proposed in connection with the Company’s use thereof and the port installations facilities and services to be available all of which are to be of such nature and extent as to be capable of and suitable for adaptation to permit use of the Company’s wharf by ships having a capacity to carry 150 000 tonnes of iron ore;
the railway from the mining areas to the port or to connect with an existing railway and the proposed operation of such railway;
the development of the mine townsite and where appropriate the port townsite including services and facilities in relation thereto;
housing;
water supply;
roads;
generation transmission and distribution of electricity;
airfields;
the leases licences or other tenures of land jetty structures and mooring areas (if any) required from the State;
disposal of waste materials;
drainage;
dust control measures; and
any other works, services or facilities proposed or required by the Company.
Order of proposals 2
The proposals may with the approval of the Minister and shall if so required by the State be submitted separately and in any order as to the matter or matters mentioned in one or more of paragraphs (a) to (m) of subclause (2) of this Clause.
Use of existing infrastructure 2
The proposals relating to any of the matters mentioned in subclause (2) of this Clause may with the approval of the Minister and that of any third parties concerned instead of providing for the construction of new facilities of the kind therein mentioned provide for the use by the company upon reasonable terms and conditions of any existing facilities of such kind.
Marketing and financial arrangements 2
At the time when the Company submits the said proposals it shall furnish to the State’s satisfaction in all respects evidence of —
marketing arrangements demonstrating the Company’s ability to profitably sell iron ore and iron ore products in accordance with the said proposals;
the availability of finance necessary for the fulfilment of the operations to which the said proposals refer; and
the readiness of the Company to embark upon and proceed to carry out the operations referred to in the said proposals.
Port Location 2
Notwithstanding anything contained in this Agreement the State’s determination in respect of the Company’s proposals relating to the location of the port and in respect of proposals relating to the development of the port (insofar as such proposals concern the development of the port for use by or in conjunction with others) and the location of the port townsite shall be final and no such determination may be referred to arbitration by the Company.
Consideration of proposals 2
approve of the said proposals either wholly or in part without qualification or reservation; or
defer consideration of or decision upon the same until such time as the Company submits a further proposal or proposals in respect of some other of the matters mentioned in subclause (2) of Clause 7 not covered by the said proposals; or
require as a condition precedent to the giving of his approval to the said proposals that the Company makes such alteration thereto or complies with such conditions in respect thereto as he (having regard to the circumstances including the overall development of and the use by others as well as the Company of all or any of the facilities proposed to be provided) thinks reasonable and in such a case the Minister shall disclose his reasons for such conditions.
Advice of Minister’s decision 2
The Minister shall within two months after receipt of the said proposals give notice to the Company of his decision in respect to the same.
Consultation with Minister 2
If the decision of the Minister is as mentioned in either of paragraphs (b) or (c) of subclause (1) of this Clause the Minister shall afford the Company full opportunity to consult with him and should it so desire to submit new proposals either generally or in respect to some particular matter.
Minister’s decision subject to arbitration 2
If the decision of the Minister is as mentioned in the said paragraph (c) and the Company considers that the condition precedent is unreasonable the Company may within two months after receipt of the notice mentioned in subclause (2) of this Clause elect to refer to arbitration in the manner hereinafter provided the question of the reasonableness of the condition precedent.
Reasonableness of Minister’s decision 2
In addition to any other matter to which the arbitrator is required to have regard in considering the reasonableness of any decision of the Minister made pursuant to subclause (1) of this Clause the Minister shall not be regarded to have acted unreasonably if he shall defer his decision on a proposal made in relation to the matters mentioned in paragraph (i) of subclause (2) of Clause 7 until the said proposals in relation to the matters mentioned in the other paragraphs of subclause (2) of Clause 7 have become or deemed to have become approved proposals and the Company has complied with the provisions of subclause (5) of Clause 7.
Arbitration Award 2
An award made on an arbitration pursuant to subclause (4) of this Clause shall have force and effect as follows —
if by the award it is adjudged that the condition precedent is reasonable then the decision of the Minister in respect to the said proposals shall stand; or
if by the award it is adjudged that the condition precedent is unreasonable then the said proposals shall be deemed to have been approved by the Minister in the form in which the same were submitted.
Guarantee 2
9. (1) After the Company’s proposals submitted pursuant to Clause 7(1) have been approved by the State and the Company has complied with the provisions of Clause 7(5) to the satisfaction of the State, the State undertakes that it will guarantee any loan or loans to the Company in respect of the construction of the railway referred to in Clause 20(1), subject to: —
the State first approving of the Lender and the terms and conditions of the loan or loans and the form of the securities therefor;
the Company demonstrating to the State that it is unable to arrange satisfactory terms for financing the construction of the railway without the aforesaid guarantee;
the terms and conditions of the guarantee being determined by the State.
The total liability of the State under this Clause shall not exceed forty‑two million dollars.
The provisions of Clause 50 shall not apply to this Clause.
Additional Proposals 2
10. (1) If the Company at any time during the continuance of this Agreement desires to modify expand or otherwise substantially vary its activities beyond those specified in any approved proposals the Company shall give notice of such desire to the Minister and within two months thereafter shall subject to the provisions of this Agreement submit to the Minister detailed proposals in respect of all matters covered by such notice and such of the other matters mentioned in paragraphs (a) to (m) of subclause (2) of Clause 7 as the Minister may require. The provisions of Clauses 7 and 8 shall mutatis mutandis apply to detailed proposals submitted pursuant to this subclause.
Basis of Submission 2
In the event of the Company submitting detailed proposals pursuant to subclause (1) of this Clause, or, if as a consequence of it submitting detailed proposals pursuant to Clause 34 or 35, the Minister requires further detailed proposals to be submitted on any of the said matters mentioned in paragraphs (a) to (m) of subclause (2) of Clause 7, then subject as provided in subclause (3) of this Clause the additional proposals shall be submitted on the basis that should the same become approved proposals the provisions of Clause 26 shall apply mutatis mutandis in respect of any increase in the extent of the services and facilities mentioned in subclause (1) of Clause 26 and also in respect of the provision of the additional services or facilities (whether of the kind mentioned in subclause (1) of Clause 26 or not) occasioned in either case by the additional proposals becoming approved proposals.
Determination of extent of Company’s obligations 2
The extent of the Company’s responsibilities under Clause 26 to provide the capital cost of and to maintain any increased or additional services and facilities of the kind mentioned in subclause (1) of that Clause occasioned by the additional proposals or any of them becoming approved proposals shall be determined by the Minister after discussion and negotiation on such matters with the Company and in making such determination the Minister shall have regard inter alia to the current and anticipated composition of any mining or other town affected and the extent to which the ordinary responsibilities of the State with respect to the provision of the capital cost of such services and facilities are to be assumed by the State in the light of the State’s current capital resources at that time.
Determination before implementation of proposals 2
assign mortgage charge sublet or dispose of to an associated company as of right or to any other company or person with the consent of the Minister the whole or any part of the rights of the Company hereunder (including its rights to or as the holder of any lease licence easement grant or other title) and of the obligations of the Company hereunder; and
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 that are or may be conferred on the Company hereunder:
subject however to the assignee or the appointee (as the case may be) executing in favour of the State a deed of covenant in a form to be approved by the Minister to comply with observe and perform the provisions hereof on the part of the Company to be complied with observed or performed in regard to the matter or matters the subject of such assignment mortgage charge subletting disposition or appointment.
Notwithstanding anything contained in or anything done under or pursuant to subclause (1) of this Clause the Company shall at all times during the currency of this Agreement be and remain liable for the due and punctual performance and observance of all the covenants and agreements on its part contained herein and in any lease licence easement grant or other title the subject of an assignment mortgage subletting or disposition or appointment under subclause (1) of this Clause.
By‑laws 2
42. The Governor in Executive Council may upon the recommendation of the Company make alter and repeal by‑laws for the purpose of enabling the Company to fulfil its obligations under Clauses 23(5) and 24(2) and (unless and until the townsite concerned is declared a townsite pursuant to Section 10 of the Land Act) under Clause 26(1)(a)(v) upon terms and subject to conditions (including terms and conditions as to user charging and limitation of the liability of the Company) 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 Company 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.
Determination of Agreement 2
43. (1) In any of the following events namely if the Company makes default which the State considers material in the due performance or observance of any of the convenants or obligations to the State herein or in any lease sublease licence or other title or document granted or assigned under this Agreement on its part to be performed or observed or if the Company abandons or repudiates its operations under this Agreement and such default is not remedied or such operations resumed within a period of one hundred and eighty (180) days after notice as provided in subclause (2) of this Clause is given by the State (or — if the alleged default abandonment or repudiation is contested by the Company and within sixty (60) days after such notice is submitted by the Company to arbitration — within a reasonable time fixed by the arbitration award but not less than ninety (90) days after the making of the arbitration award where the question is decided against the Company the arbitrator finding that there was a bona fide dispute and that the Company had not been dilatory in pursuing the arbitration) or if the Company goes into liquidation (other than a voluntary liquidation for the purpose of reconstruction) then and in any of such events the State may by notice to the Company determine this Agreement and the rights of the Company hereunder and under any lease licence easement or right granted hereunder or pursuant hereto shall thereupon determine.
The notice to be given by the State in terms of subclause (1) of this Clause shall specify the nature of the default or other ground so entitling the State to exercise such right of determination and where appropriate and known to the State the party or parties responsible therefor and shall be given to the Company and all such assignees mortgagees chargees and disponees for the time being of the Company’s said rights to or in favour of whom or by whom an assignment mortgage charge or disposition has been effected in terms of Clause 41 whose name and address for service of notice has previously been notified in writing to the State by the Company or any such assignee mortgagee chargee or disponee.
The abandonment or repudiation by or liquidation of the Company referred to in subclause (1) of this Clause means the abandonment or repudiation by or the liquidation of all of them the Company and all assignees and appointees who have executed and are for the time being bound by a deed of covenant in favour of the State as provided in Clause 41.
If the default referred to in subclause (1) of this Clause shall not have been remedied after such notice or within the time fixed by the arbitration award as aforesaid the State instead of determining this Agreement as aforesaid because of such default may itself remedy such default or cause the same to be remedied (for which purpose the State by agents workmen or otherwise shall have full power to enter upon lands occupied by the Company and to make use of all plant machinery equipment and installations thereon) and the costs and expenses incurred by the State in remedying or causing to be remedied such default shall be a debt payable by the Company to the State on demand.
Effect of cessation and determination of Agreement 2
except as otherwise agreed by the Minister the rights of the Company and those of any assignee or mortgagee of the Company under this Agreement or under the mineral lease or any other lease, licence, easement or right granted hereunder or pursuant hereto and all the right title and interest of the Company and of any such assignee or mortgagee in and to any land wherever situated granted to the Company or to such assignee for any other of the purposes of this Agreement shall thereupon cease and determine, but without prejudice to the liability of either of the parties in respect of any antecedent breach or default under this Agreement or in respect of any indemnity given hereunder; and
the Company shall forthwith pay to the State all monies that may then have been payable or accrued due hereunder; and
except as provided in this Clause or otherwise provided in this Agreement neither of the parties shall have any claim against the other of them in respect to any matter or thing contained in or arising out of this Agreement.
Subject to the provisions of subclause (3) of this Clause upon the cessation or determination of this Agreement all buildings erections and other improvements erected on any land then occupied by the Company or any associated company or assignee of the Company under the mineral lease or any other lease, licence, easement, right or grant made hereunder for the purpose hereof (including the wagons and other facilities and appurtenances provided by the Company pursuant to Clause 20 and including also the Company’s wharf) shall become and remain the absolute property of the State without the payment of any compensation or consideration to the Company or any other party and freed and discharged from all mortgages and other encumbrances and the Company shall do and execute all such deeds documents and other acts matters and things (including surrenders) as the State may reasonably require to give effect to the provisions of this subclause.
In the event of the Company immediately prior to the cessation or determination of this Agreement or subsequently thereto desiring to remove any of its electricity generating plant and transmission system or any of its other fixed or movable plant and equipment from any part of the land occupied by it at the date of such cessation or determination the Company shall give to the State notice of such desire and thereby shall grant to the State the right or option exercisable within three months thereafter to purchase in situ the said electricity generating plant transmission system and other fixed or movable plant and equipment or any part thereof at a fair valuation to be agreed between the parties or failing agreement determined by arbitration hereunder.
Indemnity 2
45. The Company shall indemnify and keep indemnified the State and its servants agents and contractors in respect of all actions suits claims demands or costs of third parties arising out of or in connection with any work carried out by or on behalf of the Company pursuant to this Agreement or relating to its operations or arising out of or in connection with the construction maintenance operation or use by the Company or its servants agents contractors appointees or assignees of the works or services constructed maintained operated or used by it under this Agreement or the plant apparatus or equipment installed in connection therewith.
Variation 2
46. (1) The parties may from time to time by agreement in writing add to substitute for cancel or vary all or any of the provisions of this Agreement or of any lease licence easement or right granted hereunder or pursuant hereto for the purpose of more efficiently or satisfactorily implementing or facilitating any of the objects of this Agreement.
Where in the opinion of the Minister an agreement made pursuant to subclause (1) of this Clause constitutes a material or substantial alteration of the rights or obligations of either party, the agreement shall contain a declaration to that effect and the Minister shall cause that agreement to be laid upon the Table of each House of Parliament within the twelve sitting days next following its execution.
Either House may, within twelve (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 2
47. The Minister may at the request of the Company from time to time extend or further extend any period or vary or further vary any date referred to in this Agreement 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.
Notices 2
48. Any notice consent or other writing authorised by or required by this Agreement to be given or sent shall be deemed to have been duly given or sent by the State if signed by the Minister or by a senior officer of the Public Service of the said State acting by the direction of the Minister and forwarded by prepaid post to the Company at its registered office for the time being in the said State and by the Company if executed by the Company or signed for and on behalf of the Company by any person or persons authorised by the Company in that behalf or by its solicitors (which solicitors have been notified to the State from time to time) and forwarded by prepaid post to the Minister at his office in Perth in the said State and every such notice consent or writing shall be deemed to have been duly given or sent on the day on which it would be delivered to the addressee in the ordinary course of post.
Exemption from Stamp Duty 2
this Agreement;
any instrument executed by the State pursuant to this Agreement granting to or in favour of the Company or any associated company or permitted assignee of the Company any tenement lease easement licence or other right or interest;
any assignment sublease or disposition (other than by way of mortgage or charge) and any appointment to or in favour of the Company or an associated company of any interest right obligation power function or authority made pursuant to the provisions of Clause 41.
This Clause does not apply to any instrument or other document executed or made more than seven years after the date of the execution hereof.
Arbitration 2
50.
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.
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.
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 extension of any period or variation of any date referred to herein which having regard to the circumstances may reasonably be required in order to preserve the rights of that party or of the parties hereunder and an award may in the name of the Minister grant any further extension or variation for that purpose.
Applicable Law 2
51. This Agreement shall be interpreted according to the law for the time being in force in the said State.
SCHEDULE
WESTERN AUSTRALIA
Mining Act 1904
MINERAL LEASE
LEASE NO. MINERAL FIELD
ELIZABETH THE SECOND, by the Grace of God of the United Kingdom, Australia and Her other Realms and Territories Queen, Head of the Commonwealth, Defender of the Faith. TO ALL TO WHOM these presents shall come,
GREETING:
KNOW YE that —
WHEREAS by an Agreement made the day of 1973 between the Honourable JOHN TREZISE TONKIN, MLA the Premier of the State of Western Australia acting for and on behalf of the said State and its instrumentalities for the time being (hereinafter called “the State”) of the one part and NORTHERN MINING CORPORATION N.L. a company incorporated under the Companies Act 1961 of the State of Victoria and having its registered office in the State of Western Australia at
(in the said Agreement and herein called “the Company” which expression shall include the successors and permitted assigns and appointees of the Company) of the other part (being the agreement referred to in section 2 of the Iron Ore (Murchison) Agreement Authorization Act 1973) the State agreed to cause to be granted to the Company a mineral lease or leases.
AND WHEREAS the said Agreement was executed by the State pursuant to the authority granted by the Iron Ore (Murchison) Agreement Authorization Act 1973 and the same operates and takes effect as provided in the said Act.
NOW WE in consideration of the rents and royalties reserved by and of the provisions of the said Agreement and in pursuance of the said Act DO BY THESE PRESENTS GRANT AND DEMISE unto the Company subject to the said provisions ALL THOSE pieces and parcels of land situated in the
Gold Field containing approximately hectares (subject to such corrections as may be necessary to accord with the survey when made) and particularly described and delineated on the plan in the Schedule hereto and all those mines, veins, seams, lodes and deposits of iron ore in on or under the said land (hereinafter called “the said mine”) together with all rights, liberties, easements, advantages and appurtenances thereto belonging or appertaining to a lessee of a mineral lease under the Mining Act 1904, including all amendments thereof for the time being in force and all regulations made thereunder for the time being in force (which Act and regulations are hereinafter referred to as “the Mining Act”) or to which the Company is entitled under the said Agreement TO HOLD the said land and mine and all and singular the premises hereby demised for the full term of twenty‑one years from the day of 19 with the right to renew the same from time to time for further periods each of twenty‑one years as provided in but subject to the said Agreement for the purposes of the said Agreement but upon and subject to the terms covenants and conditions set out in the said Agreement and to the Mining Act (as modified by the said Agreement) YIELDING and paying therefor the rent and royalties as set out in the said Agreement. AND WE do hereby declare that this lease is subject to the observance and performance by the Company of the following covenants and conditions, that is to say —
that the Company shall and will use the land bona fide exclusively for the purposes of the said Agreement;
subject to the provisions of the said Agreement the Company shall and will observe, perform, and carry out the provisions of the Mines Regulation Act 1946, and all amendments thereof for the time being in force and the regulations for the time being in force made thereunder and (subject to and as modified by the said Agreement) those of the Mining Act in so far as the same affect or have reference to this lease; and
that the Company shall if required by the Minister for Mines supply information of a geological nature relating to the Company’s operations on the demised land.
PROVIDED THAT this lease and any renewal thereof shall not be determined or forfeited otherwise than under and in accordance with the provisions of the said Agreement.
PROVIDED FURTHER that all petroleum on or below the surface of the demised land is reserved to Her Majesty with the right to Her Majesty or any person claiming under her or lawfully authorised in that behalf to have access to the demised land for the purpose of searching for and for the operations of obtaining petroleum in any part of the land under the provisions of the Petroleum Act 1967.
IN WITNESS whereof we have caused our Minister for Mines to affix his seal and set his hand hereto at Perth in our said State of Western Australia and the common seal of the Company has been affixed hereto this day of 19
THE SCHEDULE ABOVE REFERRED TO
In WITNESS whereof this Agreement has been executed the day and year first hereinbefore written.
SIGNED by the said THE HONOURABLE JOHN TREZISE TONKIN, M.L.A., in the presence of — | [Image unavailable: official WA source graphic] |
MINISTER FOR DEVELOPMENT
AND DECENTRALISATION.
MINISTER FOR MINES.
The common seal of NORTHERN MINING CORPORATION N.L. was hereunto affixed with the authority of a resolution of the Board of Directors and in the presence of — | [Image unavailable: official WA source graphic] |
DIRECTOR.
SECRETARY.
1 This is a compilation of the Iron Ore (Murchison) Agreement Authorisation Act 1973 and includes the amendments made by the other written laws referred to in the following table. The table also contains information about any reprint.
Short title | Number | Assent | Commencement | |
|---|---|---|---|---|
Iron Ore (Murchison) Agreement Authorisation Act 1973 | 50 of 1973 | 6 Nov 1973 | 6 Nov 1973 | |
Reprint 1: The Iron Ore (Murchison) Agreement Authorisation Act 1973 as at 5 Nov 2004 | ||||
Standardisation of Formatting Act 2010 s. 4 | 19 of 2010 | 28 Jun 2010 | 11 Sep 2010 (see s. 2(b) and Gazette 10 Sep 2010 p. 4341) | |
2 Marginal notes in the agreement have been represented as bold headnotes in this reprint but that does not change their status as marginal notes.
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