Onslow Solar Salt Agreement Act 1992

The Agreement is ratified.

The implementation of the Agreement is authorised.

Without limiting or otherwise affecting the application of the Government Agreements Act 1979, the Agreement shall operate and take effect notwithstanding any other Act or law.

the Company is the holder of exploration licences Nos. 08/372 and 08/335 and desires to establish and operate a salt project at Onslow;

the Company is the holder of exploration licence No. 08/373 which it desires to use for the future expansion of the salt project at Onslow;

the Company intends to provide such facilities and services as may be necessary for its activities under this Agreement;

the Company has put forward a project outline for a salt operation which will initially produce approximately 1,000,000 tonnes of salt per annum and have the capacity to produce up to 2,500,000 tonnes of salt per annum for transportation from the mining leases as markets develop; and

the State for the purpose of promoting resource development within Western Australia has agreed to assist the Company upon and subject to the terms of this Agreement.

monetary references are references to Australian currency unless otherwise specifically expressed;

power given under any clause other than Clause 31 to extend any period or date shall be without prejudice to the power of the Minister under Clause 31;

clause headings do not affect the interpretation or construction;

words in the singular shall include the plural and words in the plural shall include the singular according to the requirements of the context; and

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.

The provisions of this Agreement other than this Clause and Clauses 1 and 2 shall not come into operation until the Bill referred to in subclause (1) has been passed by the Parliament of Western Australia and comes into operation as an Act.

If before 31 December 1992 the said Bill has not commenced to operate as an Act then unless the parties hereto otherwise agree this Agreement shall then cease and determine and no party hereto shall have any claim against any other party hereto with respect to any matter or thing arising out of, done, performed, or omitted to be done or performed under this Agreement.

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.

The Company shall keep the State fully informed in writing quarterly as to the progress and results of its operations under subclause (1).

The Company shall co‑operate with the State and consult with the representatives or officers of the State regarding matters referred to in subclause (1) and any other relevant studies in relation to that subclause that the Minister may wish to undertake.

the extraction and production of salt from within the project site;

roads;

workforce accommodation;

township requirements including provision of utilities and services and social infrastructure;

water supply;

electricity supply;

sewerage and drainage;

transport storage and ship loading of salt;

air services and facilities;

any other works, services or facilities desired by the Company;

use of local labour professional services manufacturers suppliers contractors and materials and measures to be taken with respect to the recruitment and training by the Company, its agents and contractors;

port facilities (including dredging and third party use);

any leases, licences or other tenures of land required from the State; and

an environmental management programme as to measures to be taken, in respect of the Company’s activities under this Agreement, for the rehabilitation, protection and management of the environment.

Each of the proposals pursuant to subclause (1) may with the approval of the Minister or shall if so required by the Minister be submitted separately and in any order as to the matter or matters mentioned in one or more of paragraphs (a) to (n) of subclause (1).

At the time when the Company submits the said proposals it shall —

submit to the Minister details of any services (including any elements of the project investigations design and management) and any works materials plant equipment and supplies that it proposes to consider obtaining from or having carried out or permitting to be obtained from or carried out outside Australia together with its reasons therefor and shall, if required by the Minister, consult with the Minister with respect thereto;

furnish to the Minister’s satisfaction evidence of —

marketing arrangements demonstrating the Company’s ability to profitably sell or use salt 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 operations referred to in the said proposals.

approve 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 (1) of Clause 5 not covered by the said proposals; or

require as a condition precedent to the giving of the Minister’s approval to the said proposals that the Company make such alteration thereto or comply with such conditions in respect thereof as the Minister (having regard to the circumstances including the overall development of and the use by others as well as the Company of all or any of the facilities proposed to be provided) thinks reasonable and in such a case the Minister shall disclose the Minister’s reasons for such conditions,

The Minister shall within two months after receipt of the said proposals pursuant to subclause (1) of Clause 5 or where the said proposals are to be assessed under section 40(1)(b) of the EP Act then within two months after service on the Minister of an authority under section 45(7) of the EP Act give notice to the Company of the Minister’s decision in respect of the said proposals.

If the decision of the Minister is as mentioned in either of paragraphs (b) or (c) of subclause (1) the Minister shall afford the Company full opportunity to consult with the Minister and should it so desire to submit new or revised proposals either generally or in respect of some particular matter.

If the decision of the Minister is as mentioned in either of paragraphs (b) or (c) of subclause (1) and the Company considers that the decision is unreasonable the Company within two months after receipt of the notice mentioned in subclause (2) may elect to refer to arbitration in the manner hereinafter provided the question of the reasonableness of the decision PROVIDED THAT any requirement of the Minister pursuant to the proviso to subclause (1) shall not be referable to arbitration hereunder.

An award made on an arbitration pursuant to subclause (4) shall have force and effect as follows —

if by the award the dispute is decided against the Company then unless the Company within 3 months after delivery of the award give notice to the Minister of its acceptance of the award this Agreement shall on the expiration of that period of 3 months cease and determine; or

if by the award the dispute is decided in favour of the Company the decision shall take effect as a notice by the Minister that the Minister is so satisfied with and approves the matter or matters the subject of the arbitration.

Notwithstanding that under subclause (1) any proposals of the Company are approved by the Minister or determined by arbitration award, unless each and every such proposal and matter is so approved or determined by 31 December 1993 or by such extended date or period if any as the Company shall be granted pursuant to the provisions of this Agreement then the Minister may give to the Company 12 months notice of intention to determine this Agreement and unless before the expiration of the said 12 month period all the detailed proposals and matters are so approved or determined this Agreement shall cease and determine subject however to the provisions of Clause 33.

Subject to and in accordance with the EP Act and any approvals and licences required under that Act the Company shall implement the approved proposals in accordance with the terms thereof.

The provisions of Clause 5 and Clause 6 (other than subclauses (5)(a) and (6) of Clause 6) shall mutatis mutandis apply to detailed proposals submitted pursuant to this subclause with the proviso that the Company may withdraw such proposals at any time before approval thereof or, where any decision of the Minister in respect thereof is referred to arbitration, within 3 months after the award by notice to the Minister that it shall not be proceeding with the same. Subject to and in accordance with the EP Act and any approvals and licences required under that Act the Company shall implement approved proposals pursuant to this Clause in accordance with the terms thereof.

The Company shall during the currency of this Agreement submit to the Minister at yearly intervals commencing from the date when the Company’s proposals are approved or determined (except those years in which a comprehensive report is required to be submitted) a brief report concerning investigations research and monitoring carried out pursuant to subclause (1) and the implementation by the Company of the elements of the approved proposals relating to the rehabilitation, protection and management of the environment in the year ending two calendar months before the due date for the brief report, and, at three yearly intervals commencing from such date, a comprehensive report on the result of such investigations research and monitoring and the implementation by the Company of the elements of the approved proposals relating to the rehabilitation, protection and management of the environment during the three year period ending two calendar months the due date for the comprehensive report and the programme proposed to be undertaken by the Company during the following three year period in regard to investigations research and monitoring pursuant to subclause (1) and the implementation by the Company of the elements of the approved proposals relating to the rehabilitation, protection and management of the environment.

The Minister may within two (2) months of receipt of a report pursuant to subclause (2) notify the Company that the Minister —

requires amendment of the report and/or programme; or

requires additional detailed proposals to be submitted for the protection and management of the environment.

The Company shall within two (2) months of receipt of a notice pursuant to paragraph (a) of subclause (3) submit to the Minister an amended report and/or programme as required. The Minister shall afford the Company full opportunity to consult with the Minister on the Minister’s requirements during the preparation of any amended report or programme.

The Minister may within one month of receipt of an amended report or programme pursuant to subclause (4) notify the Company that the Minister requires additional detailed proposals to be submitted for the protection and management of the environment.

The Company shall within two months of the receipt of a notice given pursuant to paragraph (b) of subclause (3) or subclause (5) submit to the Minister additional detailed proposals as required and the provisions of subclauses (1), (2), (3) and (4) of Clause 6 shall mutatis mutandis apply in respect of such proposals.

Subject to and in accordance with the EP Act and any approvals and licences required under that Act the Company shall implement the decision of the Minister or any award on arbitration as the case may be in accordance with the terms thereof.

except in those cases where the Company can demonstrate it is impracticable so to do, use labour available within Western Australia (using all reasonable endeavours to ensure that as many as possible of the Company’s workforce be locally recruited) or if such labour is not available then, except as aforesaid, use labour otherwise available within Australia;

as far as it is reasonable and economically practicable so to do, use the services of engineers surveyors architects and other professional consultants experts and specialists, project managers, manufacturers, suppliers and contractors resident and available within Western Australia or if such services are not available within Western Australia then, as far as practicable as aforesaid, use the services of such persons otherwise available within Australia;

during design and when preparing specifications, calling for tenders and letting contracts for works materials plant equipment and supplies (which shall at all times, except where it is impracticable so to do, use or be based upon Australian Standards and Codes) ensure that suitably qualified Western Australian and Australian suppliers manufacturers and contractors are given fair and reasonable opportunity to tender or quote;

give proper consideration and where possible preference to suppliers manufacturers and contractors located in Western Australia when contracts or placing orders for works, materials, plant, equipment and supplies where price quality delivery and service are equal to or better than that obtainable elsewhere or, subject to the foregoing, give that consideration and where possible preference to other suppliers manufacturers and contractors located in Australia; and

if notwithstanding the foregoing provisions of this subclause a contract is to be let or an order is to be placed with other than a Western Australian or Australian supplier, manufacturer or contractor, give proper consideration and where possible preference to tenders arrangements or proposals that include Australian participation.

Except as otherwise agreed by the Minister the Company shall in every contract entered into with a third party for the supply of services labour works materials plant equipment or supplies for the purposes of this Agreement require as a condition thereof that such third party shall undertake the same obligations as are referred to in subclause (1) and shall report to the Company concerning such third party’s implementation of that condition.

The Company shall submit a report to the Minister at monthly intervals or such longer period as the Minister determines commencing from the date of this Agreement concerning its implementation of the provisions of this Clause together with a copy of any report received by the Company pursuant to subclause (2) during that month or longer period as the case may be PROVIDED THAT the Minister may agree that any such report need not be provided in respect of contracts of such kind or value as the Minister may from time to time determine.

The Company shall keep the Minister informed on a regular basis as determined by the Minister from time to time or otherwise as required by the Minister during the currency of this Agreement of any services (including any elements of the project investigations design and management) and any works materials plant equipment and supplies that it may be proposing to obtain from or has carried out or permit to be obtained from or carried out outside Australia together with its reasons therefor and shall as and when required by the Minister consult with the Minister with respect thereto.

Upon grant of a mining lease pursuant to paragraph (a) of this subclause, the Company shall provide to the satisfaction of the Minister an unconditional performance bond, guaranteed by a Bank or other financial institution acceptable to the Minister, in favour of the Minister for Mines for the sum of $170 000. Moneys under the bond may be used by the State should the Company fail to perform its rehabilitation obligations under this Agreement and approved proposals. The amount of the bond may be varied from time to time by the Minister in consultation with the Minister for Mines and the Company to reflect the performance of the Company in meeting its rehabilitation obligations under this Agreement and approved proposals.

(a) On application made by the Company, not later than 12 months after all proposals submitted pursuant to subclause (1) of Clause 5 have been approved or determined, for a mining lease over so much of the land coloured red on the said plan marked “A” (hereinafter referred to as the “red area”), the State shall upon and subject to the surrender by the Company of the exploration licence referred to in recital (b) of this Agreement cause to be granted to the Company a mining lease of such land (notwithstanding that the survey in respect thereof has not been completed but subject to such corrections to accord with the survey when completed at the Company’s expense) for evaporites, such mining lease to be granted under and, except as otherwise provided in this Agreement, subject to the Mining Act but substantially in the form of the Schedule hereto and subject to such conditions and stipulations consistent with the provisions of the Agreement and approved proposals as the Minister for Mines may determine.

(i) The Company shall not carry out any activities (other than activities for the planning for future development of the red area) on any part of the red area pursuant to paragraph (a) of this subclause until proposals submitted pursuant to subclause (1) of Clause 7 have been approved or determined.

If the Company’s proposals with respect to the red area referred to in subclause (1) of Clause 7 have not been approved or determined by 31 December 2002, then the mining lease and all rights thereunder referred to in paragraph (a) of this subclause shall be surrendered and forfeited to the State.

Upon approval or determination of proposals submitted pursuant to subclause (1) of Clause 7 in relation to the mining lease granted pursuant to paragraph (a) of this subclause for the development of the red area, the Company shall provide to the satisfaction of the Minister an unconditional performance bond, guaranteed by a Bank or other financial institution acceptable to the Minister, in favour of the Minister for Mines for a sum to be determined by the Minister in consultation with the Minister for Mines. Moneys under the bond may be used by the State should the Company fail to perform its rehabilitation obligations under this Agreement and approved proposals. The amount of the bond may be varied from time to time by the Minister in consultation with the Minister for Mines and the Company to reflect the performance of the Company in meeting its rehabilitation obligations under this Agreement and approved proposals.

Rental in respect of the mining leases granted pursuant to this Clause shall be computed at a base rate of $9.84 per 100 hectares per annum and the base rate shall be escalated in the manner prescribed by Clause 12.

Subject to the performance by the Company of its obligations under this Agreement and the Mining Act and notwithstanding any provisions of the Mining Act to the contrary the term of the mining leases shall be for a period of 21 years commencing from the respective dates of receipt of the applications therefor under subclauses (1) or (2) as the case may be with the right during the currency of this Agreement to take two successive renewals of the said term each for a further period of 21 years upon the same terms and conditions, subject to the sooner determination of the said term upon cessation or determination of this Agreement, such right to be exercisable by the Company making written application for any such renewal not later than one month before the expiration of the then current term of the respective mining leases.

The State shall ensure that during the currency of this Agreement and subject to compliance with its obligations hereunder the Company shall not be required to comply with the expenditure conditions imposed by or under the Mining Act in regard to mining leases or exploration licences held pursuant to this Agreement.

The State shall ensure that during the currency of this Agreement and subject to compliance with its obligations hereunder the Company shall not be required to comply with the provisions of Section 65 of the Mining Act in relation to exploration licences held pursuant to this Agreement.

Notwithstanding the provisions of the Mining Act the Company may from time to time during the currency of this Agreement apply to the Minister for areas held by the Company under a mining tenement granted under the Mining Act to be included in one of the mining leases. The Minister shall confer with the Minister for Mines in regard to any such application and if they approve the application the Minister for Mines shall upon the surrender of the relevant mining tenement include the area the subject thereof in such one of the mining leases and subject to such conditions and stipulations consistent with the provisions of the Agreement and approved proposals as the Minister for Mines in each case may determine, which may include conditions of the surrendered mining tenement. In respect of any such land —

the land shall in addition to any conditions so determined by the Minister for Mines be subject to the same terms covenants and conditions as apply to the mining leases;

the Minister for Mines may make such apportionment of rents as may be necessary in connection therewith; and

the land may be included notwithstanding that the survey of the land has not been completed but subject to correction to accord with the survey when completed at the Company’s expense.

Notwithstanding the provisions of this Clause and the Mining Act with the approval of the Minister the Company may from time to time surrender to the State all or any portion or portions of the mining leases with abatement of future rent in respect of the area surrendered but without any abatement of rent already paid or rent which has become due and has been paid in advance.

The Company in accordance with approved proposals may for the construction of works (and maintenance thereof) for the purposes of this Agreement and without payment of royalty, obtain stone sand clay and gravel from the mining leases.

Within twenty‑one days after the quarter days being the last days of March, June, September and December in each year commencing with the quarter day next following the commencement date the Company shall furnish to the Minister for Mines a return showing the quantity of all salt the subject of royalty hereunder produced and transported during the quarter or part thereof (as the case may be) ending on the respective quarter day and shall not later than one month after the date on which such return is due pay to the State the royalty in respect of all salt produced and transported during that quarter.

The Company shall in respect of all evaporites other than salt produced or obtained from the area the subject of the mining leases pay to the State royalties at the rates from time to time prescribed under the Mining Act and comply with the provisions of the Mining Act and regulations made thereunder with respect to the filing of production reports and payment of royalties.

The Company shall permit the Minister for Mines or the Minister’s nominee to inspect at all reasonable times and to take copies of or extracts from all books of accounts and records of the Company as are relevant for the purpose of determining the amount of royalty payable under this Clause and if required by the State take reasonable steps to satisfy the State either by certificate of a competent independent party acceptable to the State or otherwise to the reasonable satisfaction of the Minister for Mines as to all relevant weights and analyses and shall give due regard to any objection or representation made by the Minister for Mines or the Minister’s nominee as to any particular weight or assay of minerals mined or produced by the Company from the mining leases and sold by it which may affect the amount of royalty payable hereunder.

for the period from the commencement date to the anniversary of the commencement date in the year 2003, the several amounts due and payable by the Company to the State as —

rentals under subclause (3) of Clause 10 and subclause (2) of Clause 13; and

royalty under subclause (1) of Clause 11

in the event of the price of salt (as hereinafter defined) on the anniversary of the commencement date in the years 2003, 2010, 2017, 2024, 2031, 2038 or 2045 exceeding $5.16 then the percentage by which the price of salt on the relevant date exceeds $5.16 shall be calculated and the several amounts due and payable by the Company to the State as base rate —

rentals under subclause (3) of Clause 10 and subclause (2) of Clause 13; and

royalty under subclause (1) of Clause 11

For the purpose of this Clause the price of salt on each of the aforesaid dates means the weighted average price per tonne of salt sold during the previous year pursuant to this Agreement payable by the purchaser or purchasers thereof to the Company, or where the Minister is not satisfied that the price payable in respect of the salt represents a fair and reasonable market value for that salt assessed at an arm’s length basis, such amount as is agreed or determined, less all export duties taxes and fees payable to the Commonwealth on the export of salt and the costs and expenses properly incurred and payable by the Company in respect of that sale from the time it is transported in the form in which it is to be sold to the time it is delivered to and accepted by the purchaser or purchasers including —

ocean freight;

marine insurance;

port and handling charges at the port of discharge;

all costs properly incurred in delivering the salt from the port of discharge to the purchaser as evidenced by relevant invoices;

all weighing, sampling, analysis, inspection and representation costs;

all shipping agency charges after transport; and

all import taxes imposed or levied by the country of the port of discharge.

Throughout the continuance of this Agreement the Company shall use its best endeavours to obtain for the salt produced hereunder the best price possible having regard to market conditions from time to time prevailing.

The Minister may from time to time after consultation with the Company vary the dates specified in paragraph (b) of subclause (1) of this Clause or any of them to a later date or dates consistent with the corresponding dates for review of royalty contained in any other Government agreement (as defined in the Government Agreements Act 1979) relating to the production of salt. In the event of any variation of a date pursuant to this subclause any increases to the amounts referred to in subparagraphs (i) and (ii) of paragraphs (a) and (b) of subclause (1) of this Clause then in effect pursuant to that subclause shall continue to apply until the varied date.

in accordance with the Company’s approved proposals and the Mining Act, Land Act, Jetties Act 1926, Marine and Harbours Act 1981, Western Australian Marine Act 1982 and any other relevant statute from time to time, grant to the Company, or arrange to have the appropriate authority or other interested instrumentality of the State grant for such periods and on such terms and conditions (including renewal rights where appropriate) as shall be reasonable having regard to the requirements of the Company, leases, licences, permits and easements for any purposes related to the Company’s operations under this Agreement;

in accordance with the Company’s approved proposals grant general purpose leases for the purposes of the transportation of brine and the transportation, stockpiling and loading of salt for the same term as the mining lease referred to in subclause (4) of Clause 10 which general purpose leases may with the prior approval of the Minister for Mines be granted in respect of areas of land greater than the maximum area provided by the Mining Act.

Rental in respect of general purpose leases granted pursuant to paragraph (b) of subclause (1) of this Clause shall be computed at a base rate of $9.84 per 100 hectares per annum and the base rate shall be escalated in the manner prescribed by Clause 12.

Rental in respect of miscellaneous licences and general purpose leases granted pursuant to paragraph (a) of subclause (1) of this Clause shall be at the rental specified from time to time in the Mining Act.

The Company shall pay to the State or the appropriate authority designated by the Minister the capital cost of establishing and providing additional services, works and facilities and associated equipment including sewerage and water supply schemes, main drains, education, police and hospital services to the extent to which those additional services, works and services are made necessary in Onslow or other existing township as a result of the operations of the Company. The additional services, works and associated equipment referred to in this clause shall be provided by the State to a standard normally adopted by the State in providing new services, works and associated equipment in similar cases in comparable towns.

As and when required by the Minister after consultation with the relevant local authority, the Company shall confer with the Minister with a view to assisting in the cost of providing any appropriate community, recreation, civic or social amenities at Onslow or other existing township required for the Company’s workforce and associated population in accordance with its approved proposals.

be responsible for the cost of the construction and maintenance of all private roads which shall be used in its operations hereunder; and

at any place where a private road crosses any public road provide adequate grade separation or such other reasonable protection as may be required by the Commissioner of Main Roads.

In the event that the Company for the purposes of its operations under this Agreement desire to exclude the public use of any private road it shall be responsible at its own cost to make such provisions as effectively ensure that all persons and vehicles (other than those engaged upon the Company’s operations and its invitees and licencees) are excluded from use of that road.

The State shall maintain or cause to be maintained those public roads under the control of the Commissioner of Main Roads or a local authority which may be used by the Company for the purposes of this Agreement to a standard similar to comparable public roads maintained by the Commissioner of Main Roads or a local authority as the case may be.

In the event that the Company’s operations require the use of a public road which is inadequate for the purpose, or result in excessive damage or deterioration of any public road (other than fair wear and tear) the Company shall pay to the State the whole or an equitable part as determined by the Minister of the total cost of any upgrading required or of making good the damage or deterioration as may be reasonably required by the Commissioner of Main Roads or local authority having regard to the use of such road by others.

Where a private road is subsequently required for public use, the State may, after consultation with the Company and so long as resumption thereof shall not unduly prejudice or interfere with the operations of the Company under this Agreement, resume and dedicate such road as a public road. Upon any such resumption the State shall pay to the Company such amount as the State considers to be reasonable.

In the event that the Company elects to supply all or part of its water requirements excluding sea water, from a water supply identified by the Company which is acceptable to the State, the State will enter into negotiations regarding terms and conditions.

The Company shall to the extent that it is practical and economical, design, construct and operate its works under this Clause so as to —

recycle water excluding sea water; and

prevent loss of water excluding sea water, by leakage, spillage or evaporation.

(a) Subject to the Company constructing, operating and maintaining the facilities referred to in subclause (1) of this Clause, no charge or levy shall be made by the State or by any State authority in relation to the loading of outward or the unloading of inward cargoes for the purposes of this Agreement at the Company’s wharf whether such cargoes shall be the property of the Company or of any other persons but the State accepts no obligation to undertake such loading or unloading and may make the usual charges including pilotage fees from time to time prevailing in respect of services rendered by the State or by any State agency or instrumentality or other local or other authority of the State and may charge conservancy dues payable under the Shipping and Pilotage Act 1967 in respect of any vessel entering the Port of Onslow for the purpose of using the Company’s wharf.

The Company if and when permitted by the relevant State legislation, may provide its own pilotage requirements.

(a) Throughout the continuance of this Agreement, the Company shall allow the State and third parties to use the Company’s facilities referred to in subclause (1) of this Clause PROVIDED THAT such use shall not unduly prejudice or interfere with the Company’s operations and that the entire control of and all personnel for or in respect of such use shall be provided by or with the approval of the Company.

The provisions of paragraph (a) of this subclause shall not affect the Harbour Master or appointed pilot in carrying out any of their respective responsibilities for maritime safety within the Port of Onslow in accordance with the provisions of the Shipping and Pilotage Act 1967.

The State and the Company acknowledge that the Company should be paid a fair and reasonable charge as may be set forth from time to time in schedules provided by the Company and approved by the Minister for the use of the wharf by all vessels and for the use of the channel approach by any vessel whose draught is of such magnitude that it requires to use the channel approach in order to utilise the wharf. In the case of regular use by a shipper of bulk commodities the Company should be reimbursed by such shipper a fair and reasonable proportion of the capital outlay and operation and maintenance costs incurred by the Company for the wharf and channel approach as may be determined by mutual agreement between the parties concerned or failing agreement then as determined by the Minister.

At the recommendation of the Company upon approval or determination of proposals referred to in subclause (1) of Clause 5, the Minister may make alter and repeal by‑laws for the purpose of levying charges pursuant to subclause (4) of this Clause, upon terms and subject to conditions (including terms and conditions as to user charging and limitation of the liability of the Company) set out in such by‑laws consistent with the provisions hereof. Should the State at any time consider that any by‑law made hereunder has as a result of altered circumstances become unreasonable or inapplicable then the Company shall recommend such alteration or repeal thereof as the State may reasonably require.

The Company shall provide or relocate such navigation aids as are reasonably required by the State for the operation of the Company’s facilities referred to in subclause (1) of this Clause. The State will operate and maintain such navigation aids as are required for the continuing operation of the Company’s wharf and channel.

It is acknowledged by the parties hereto that any vessel entering the Port of Onslow for the purpose of using the Company’s wharf will be required to pay conservancy dues prescribed by law and the Company covenant with the State that it will if required by the State so to do, act as the agent of the State for the purpose of collecting from the masters or agents of such vessels and remitting to the State such conservancy dues as may from time to time be payable.

(i) the Company makes default which the State considers material in the due performance or observance of any of the covenants or obligations of the Company in this Agreement or in the mining leases or any other lease licence easement grant or other title or document granted or assigned under this Agreement on its part to be performed or observed; or

the Company abandons or repudiates this Agreement or its activities under this Agreement,

the Company goes into liquidation (other than a voluntary liquidation for the purpose of reconstruction) and unless within 6 months from the date of such liquidation the interest of the Company is assigned to an assignee approved by the Minister under Clause 27,

The notice to be given by the State in terms of paragraph (a) of subclause (1) shall specify the nature of the default or other ground so entitling the State to exercise such right of determination and where appropriate and known to the State the party or parties responsible therefor and shall be given to the Company and all such assignees mortgagees chargees and disponees for the time being of the Company’s said rights to or in favour of whom or by whom an assignment mortgage charge or disposition has been effected in terms of Clause 27 whose name and address for service of notice has previously been notified to the State by the Company or any such assignee mortgagee chargee or disponee.

(a) If the Company contests the alleged default abandonment or repudiation referred to in paragraph (a) of subclause (1) the Company shall within 60 days after notice given by the State as provided in subclause (2) refer the matter in dispute to arbitration.

If the question is decided against the Company, the Company shall comply with the arbitration award within a reasonable time to be specified by that award PROVIDED THAT if the arbitrator finds that there was a bona fide dispute and that the Company were not dilatory in pursuing the arbitration, the time for compliance with the arbitration award shall not be less than 90 days from the date of such award.

If the default referred to in paragraph (a) of subclause (1) shall not have been remedied within the time specified in the notice referred to in that subclause or within the time specified by the arbitration award as aforesaid the State instead of determining this Agreement as aforesaid because of such default may itself remedy such default or cause the same to be remedied (for which purpose the State by agents workers or otherwise shall have full power to enter upon lands occupied by the Company and to make use of all plant machinery equipment and installations thereon) and the actual costs and expenses incurred by the State in remedying or causing to be remedied such default shall be a debt payable by the Company to the State on demand.