NOTICE: The text below was created automatically and may contain errors and differences from the contract's original PDF file. Learn more here
Western Australia
Iron Ore (Hope Downs) Agreement Act 1992
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
Western Australia
Iron Ore (Hope Downs) Agreement Act 1992
Contents
1.
2.
3.
4.
5.
Short title
Commencement
Interpretation
Agreement ratified
State empowered under clause 15C(9)(a)
1
1
1
2
2
Schedule 1 — Iron Ore (Hope Downs)
Agreement
Schedule 2 — First Variation
Agreement
Schedule 3 — Second Variation
Agreement
Notes
Compilation table
As at 15 Dec 2011
150
Version 01-e0-05
Published on www.legislation.wa.gov.au
page i
Western Australia
Iron Ore (Hope Downs) Agreement Act 1992
An Act to ratify an agreement between the State and Hope Downs
Limited relating to the development and mining of iron ore deposits,
the processing of iron ore, and for incidental and other purposes.
1.
Short title
This Act may be cited as the Iron Ore (Hope Downs) Agreement
Act 1992 1.
2.
Commencement
This Act shall come into operation on the day on which it
receives the Royal Assent 1.
3.
Interpretation
In this Act, unless the contrary intention appears —
Agreement means the agreement a copy of which is set out in
Schedule 1 and, except in section 4(1), includes that agreement
as varied from time to time in accordance with its provisions
and by the First Variation Agreement and the Second Variation
Agreement;
the First Variation Agreement means the agreement a copy of
which is set out in Schedule 2;
the Second Variation Agreement means the agreement a copy
of which is set out in Schedule 3.
[Section 3 amended: No. 61 of 2010 s. 16; No. 61 of 2011
s. 16.]
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 1
Iron Ore (Hope Downs) Agreement Act 1992
s. 4
4.
Agreement ratified
(1)
The Agreement is ratified.
(2A)
The First Variation Agreement is ratified.
(2B)
The Second Variation Agreement is ratified.
(2)
The implementation of the Agreement is authorised.
(3)
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.
(4)
To avoid doubt, it is declared that the provisions of the Public
Works Act 1902 section 96 do not apply to a railway constructed
under the Agreement.
[Section 4 amended: No. 61 of 2010 s. 17; No. 61 of 2011
s. 17.]
5.
State empowered under clause 15C(9)(a)
The State has power in accordance with clause 15C(9)(a) of the
Agreement.
[Section 5 inserted: No. 61 of 2010 s. 18.]
page 2
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
Schedule 1 — Iron Ore (Hope Downs) Agreement
[s. 3]
[Heading amended: No. 19 of 2010 s. 4; No. 61 of 2010 s. 19.]
THIS AGREEMENT is made this 30th day of November 1992
B E T W E E N:
THE HONOURABLE CARMEN MARY LAWRENCE, B.Psych., Ph.D.,
M.L.A., Premier of the State of Western Australia, acting for and on behalf of
the said State and its instrumentalities from time to time (hereinafter called “the
State”) of the one part and
HOPE DOWNS LIMITED ACN 057 326 815 a company incorporated in the
State of Western Australia and having its registered office at Third Floor,
28-42 Ventnor Avenue, West Perth (hereinafter called “the Company” in which
term shall be included its successors and permitted assigns) of the other part.
W H E R E A S:
(a)
the Company is or is entitled pursuant to transfers to be the holder of
mining tenements comprising Areas A, B and C (as hereinafter defined)
within which iron ore of tonneages and grades sufficient to warrant
economic recovery and marketing have been established;
(b)
the Company wishes to develop a project for the mining, transportation
and sale, either within Australia or by export to overseas purchasers, of
iron ore from the said Areas with an initial production of up to
15,000,000 tonnes of iron ore per annum; and
(c)
the State and Company have agreed to enter into this Agreement for the
purpose of assisting the establishment of the proposed project and
providing a framework for managing future changes to the project.
NOW THIS AGREEMENT WITNESSES:
Definitions
1.
In this Agreement subject to the context —
“accommodation area” means an area or areas on or in the vicinity of
the mining lease for accommodation and ancillary facilities for the
mine camp workforce;
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 3
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
“advise”, “apply”, “approve”, “approval”, “consent”, “certify”,
“direct”, “disclose”, “notify”, “request”, or “require”, means
advise, apply, approve, approval, consent, certify, direct, disclose,
notify, request, or require in writing as the case may be and any
inflexion or derivation of any of those words has a corresponding
meaning;
“agreed or determined” means agreed between the Company and the
Minister or, failing agreement within three months of the Minister
giving notice to the Company that he requires the value of a
quantity of iron ore to be agreed or determined, as determined by
the Minister and in agreeing or determining a fair and reasonable
market value of such iron ore assessed at an arm’s length basis the
Company and/or the Minister as the case may be shall have regard
to prevailing markets and prices for iron ore both outside and
within the Commonwealth and where prices beyond the deemed
f.o.b. point are being considered the deductions mentioned in the
definition of f.o.b. value;
“approved proposal” means a proposal approved or deemed approved
by the Minister under this Agreement or a proposal the subject of
an award made on an arbitration under this Agreement where the
award is accepted by the Company within 3 months of delivery by
the arbitrator;
“Area A” means the areas coloured red on the plan marked “X” initialled
by or on behalf of the parties hereto for the purpose of
identification;
“Area B” means the areas coloured blue on the said plan marked “X”;
“Area C” means the areas coloured yellow on the said plan marked “X”;
“beneficiated manganese ore” and “beneficiated manganiferous ore”
mean respectively manganese ore and manganiferous ore which
has been concentrated or upgraded otherwise than by washing
drying crushing or screening or a combination thereof by the
Company in a plant constructed pursuant to an approved proposal;
“beneficiated ore” means iron ore which has been concentrated or
upgraded otherwise than by washing drying crushing or screening
or a combination thereof by the Company in a plant constructed
pursuant to an approved proposal;
page 4
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
“Clause” means a clause of this Agreement;
“Commonwealth” means the Commonwealth of Australia and includes
the Government for the time being thereof;
“Company’s workforce” means the persons (and the dependants of
those persons) connected directly with the Company’s activities
under this Agreement, whether or not such persons are employed
by the Company;
“deemed f.o.b. point” means on ship at the loading port;
“deemed f.o.b. value” means an agreed or determined value of the iron
ore as if the iron ore was sold f.o.b. at the deemed f.o.b. point as
at —
(i)
in the case of iron ore the property of the Company which is
shipped out of the said State, the date of shipment;
(ii)
in any other case, the date of sale, transfer of ownership,
disposal or use as the case may be;
“EP Act” means the Environmental Protection Act 1986;
“fine ore” means iron ore which is nominally sized minus six
millimetres;
“f.o.b. value” means —
(i)
As at 15 Dec 2011
in the case of iron ore shipped and sold by the Company, the
price which is payable for the iron ore by the purchaser
thereof to the Company or, where the Minister is not
satisfied that the price payable in respect of the iron ore
represents a fair and reasonable market value for that iron
ore assessed at an arm’s length basis, such amount as is
agreed or determined, less all export duties and export taxes
payable to the Commonwealth on the export of the iron ore
and all costs and charges properly incurred and payable by
the Company from the time the iron ore shall be placed on
ship at the loading port to the time the same is delivered and
accepted by the purchaser including —
(1)
ocean freight;
(2)
marine insurance;
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 5
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
(ii)
(3)
port and handling charges at the port of discharge;
(4)
all costs properly incurred in delivering the iron ore
from port of discharge to the smelter and evidenced by
relevant invoices;
(5)
all weighing sampling assaying inspection and
representation costs;
(6)
all shipping agency charges after loading on and
departure of ship from the loading port;
(7)
all import taxes by the country of the port of
discharge; and
(8)
such other costs and charges as the Minister may in
his discretion consider reasonable in respect of any
shipment or sale;
in all other cases, the deemed f.o.b. value.
For the purpose of subparagraph (i) of this definition, it is
acknowledged that the consideration payable in an arm’s
length transaction for iron ore sold solely for testing
purposes may be less than the fair and reasonable market
value for that iron ore and in this circumstance where the
Minister in his discretion is satisfied such consideration
represents the entire consideration payable, the Minister
shall be taken to be satisfied that such entire consideration
represents the fair and reasonable market value;
“iron ore” means iron ore from the mining lease and except in the
definitions of beneficiated ore, fine ore and lump ore includes
beneficiated ore, manganese ore, manganiferous ore, beneficiated
manganese ore and beneficiated manganiferous ore;
“Land Act” means the Land Act 1933;
“loading port” means in the case of iron ore shipped by the Company
out of the said State the port of shipment and in the case of iron ore
not so shipped means a port in the said State determined by the
Minister for the purpose of this definition;
“local authority” means the council of a municipality that is a city, town
or shire constituted under the Local Government Act 1960;
page 6
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
“lump ore” means iron ore which is nominally sized plus six millimetres
minus thirty millimetres;
“manganese ore” means an ore having a naturally combined metal
content of iron and manganese, the latter exceeding 35%;
“manganiferous ore” means an ore having a naturally combined metal
content of iron and manganese, the latter being not less than 2%
and not more than 35%.
“mine camp workforce” means the members of the Company’s
workforce who are accommodated at the accommodation area but
shall not include persons visiting the mine site in connection with
the Company’s mining activities on a short term basis only or
employed for a specific task of limited duration;
“mine site” means the mining lease the accommodation area and other
areas provided for the facilities of the Company in the vicinity of
the mining lease;
“Mining Act” means the Mining Act 1978;
“mining lease” means the mining lease granted pursuant to Clause 12
and includes any renewal thereof and according to the requirements
of the context shall describe the area of land demised as well as the
instrument by which it is demised and any areas added thereto
pursuant to the provisions of Clause 14;
“Minister” means the Minister in the Government of the State for the
time being responsible for the administration of the Act to ratify
this Agreement and pending the passing of that Act means the
Minister for the time being designated in a notice from the State to
the Company and includes the successors in office of the Minister;
“Minister for Mines” means the Minister in the Government of the State
for the time being responsible for the administration of the Mining
Act;
“month” means calendar month;
“notice” means notice in writing;
“person” or “persons” includes bodies corporate;
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 7
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
“private roads” means the roads referred to in subclause (1) of
Clause 18 and any other roads (whether within or outside the
mining lease) constructed by the Company in accordance with an
approved proposal or agreed by the parties to be a private road for
the purposes of this Agreement;
“public road” means a road as defined by the Road Traffic Act 1974;
“said State” means the State of Western Australia;
“State Energy Commission” means The State Energy Commission of
Western Australia as described in section 7 of the State Energy
Commission Act 1979;
“subclause” means subclause of the Clause in which the term is used;
“this Agreement” “hereof” and “hereunder” refer to this Agreement
whether in its original form or as from time to time added to varied
or amended;
“washing” means a process of separation by water using only size as a
criterion.
Interpretation
2.
In this Agreement —
(a)
monetary references are references to Australian currency unless
otherwise specifically expressed;
(b)
power given under any clause other than Clause 36 to extend any
period or date shall be without prejudice to the power of the
Minister under Clause 36;
(c)
clause headings do not affect the interpretation or construction;
(d)
words in the singular shall include the plural and words in the
plural shall include the singular according to the requirements of
the context; and
(e)
reference to an Act includes the amendments to that Act for the
time being in force and also any Act passed in substitution therefor
or in lieu thereof and the regulations for the time being in force
thereunder.
page 8
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
Initial obligations of the State
3.
The State shall —
(a)
introduce and sponsor a Bill in the State Parliament of Western
Australia to ratify this Agreement and endeavour to secure its
passage as an Act prior to 31 December 1992; and
(b)
subject to the adequate protection of the environment (including
flora and fauna) and the land affected (including improvements
thereon) allow the Company to enter upon Crown Lands
(including, if applicable, land the subject of a pastoral lease) to the
extent reasonably necessary for the purposes of undertaking its
obligations under subclause (1) of Clause 5.
Ratification and operation
4.
(1)
The provisions of this Agreement other than this Clause and
Clauses 1, 2 and 3 shall not come into operation until the Bill
referred to in Clause 3 has been passed by the Parliament of
Western Australia and comes into operation as an Act.
(2)
If before 31 December 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 neither party hereto
shall have any claim against the other with respect to any matter or
thing arising out of, done, performed, or omitted to be done or
performed under this Agreement.
(3)
On the said Bill commencing to operate as an Act all the provisions
of this Agreement shall operate and take effect notwithstanding the
provisions of any Act or law.
Initial obligations of the Company
5.
(1)
The Company shall continue its field and office geological,
geophysical, engineering, environmental, marketing and finance
studies and other matters necessary to enable it to finalise and to
submit the proposals referred to in Clause 7.
(2)
The Company shall keep the State fully informed in writing
quarterly as to the progress and results of its operations under
subclause (1).
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 9
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
(3)
The Company shall co-operate with the State and consult with the
representatives or officers of the State regarding matters referred to
in subclauses (1) and (2) and any other relevant studies in relation
to those subclauses that the Minister may wish to undertake.
Initial mining project
6.
(1)
Prior to submission of its proposals under Clause 7 the Company
shall confer with the Minister with regard to the proposed mining
of up to 15,000,000 tonnes of iron ore per annum from Area A
and/or if desired by the Company and approved by the Minister
(where he is satisfied as to the exploration work carried out in
respect thereof) from Area B or portions thereof.
(2)
(a)
Subject to paragraph (b) of this subclause the exploration
licences held by the Company under the Mining Act within
Area A and any portion of Area B approved by the Minister
pursuant to subclause (1) shall remain in force and effect
during the period from the date hereof to the surrender of
those licences pursuant to subclause (1) of Clause 12 (and
shall be renewed as necessary pursuant to section 61(2) of
the Mining Act for this purpose) under and subject to the
Mining Act except that the provisions of sections 62 and 65
of the Mining Act shall not apply to those exploration
licences during that period.
(b)
If this Agreement ceases or determines before the
exploration licences referred to in paragraph (a) of this
subclause are surrendered pursuant to subclause (1) of
Clause 12 each of those exploration licences shall continue
in force and effect under and subject to the Mining Act for
the balance of the term thereof current at the date of
cessation or determination of this Agreement.
Company to submit proposals for initial mining project
7.
(1)
page 10
The Company shall subject to the EP Act and the provisions of this
Agreement submit to the Minister on or before 30 June 1998 to the
fullest extent reasonably practicable its detailed proposals
(including plans where practicable and specifications where
reasonably required by the Minister) with respect to the production
of iron ore from the area or areas approved pursuant to
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
subclause (1) of Clause 6 and the transport and shipment of iron
ore produced which proposals shall make provisions for the
Company’s workforce and associated population required to enable
the Company to mine and recover iron ore from the mining lease
and transport and ship the iron ore and shall include the location,
area, lay-out, design, quantities, materials and time programme for
the commencement and completion of construction or the provision
(as the case may be) of each of the following matters, namely —
(a)
the mining and recovery of iron ore including mining
crushing screening handling transport and storage of iron ore
and plant facilities and any processing of iron ore proposed
to be carried out;
(b)
roads within the mining lease and roads serving the mining
lease;
(c)
temporary accommodation and ancillary facilities for the
mine camp workforce and housing or other appropriate
accommodation and facilities elsewhere for the Company’s
workforce;
(d)
management of vehicles on the mine site;
(e)
water supply;
(f)
power supply;
(g)
transportation of iron ore by rail and/or conveyor;
(h)
storage and ship loading of iron ore;
(i)
mine aerodrome on or in the vicinity of the mining lease and
any other aerodrome facilities and services;
(j)
any other works, services or facilities desired by the
Company;
(k)
use of local labour professional services manufacturers
suppliers contractors and materials and measures to be taken
with respect to the engagement and training of employees by
the Company, its agents and contractors;
(l)
any leases, licences or other tenures of land required from
the State; and
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 11
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
(m)
an environmental management programme as to measures to
be taken, in respect of the Company’s activities under this
Agreement, for rehabilitation and the protection and
management of the environment.
Order of proposals
(2)
Each of the proposals pursuant to subclause (1) may with the
approval of the Minister or 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 (m) of subclause (1).
Use of existing infrastructure
(3)
Each of the proposals pursuant to subclause (1) may with the
consent of the Minister and that of any other parties concerned
instead of providing for the construction of new facilities or
equipment or the provision of new services of the kind therein
mentioned provide for the use by the Company of any existing
facilities equipment or services of such kind belonging to the
Company or upon terms and conditions agreed between the
Company and the other parties concerned of any other existing
facilities equipment or services of such kind.
Additional submissions
(4)
At the time when the Company submits the said proposals it
shall —
(a)
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; and
(b)
furnish to the Minister’s reasonable satisfaction evidence
of —
(i)
page 12
marketing arrangements demonstrating the
Company’s ability to sell iron ore in accordance with
the said proposals;
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
(ii)
the availability of finance necessary for the fulfilment
of the operations to which the said proposals refer;
and
(iii)
the readiness of the Company to embark upon and
proceed to carry out the operations referred to in the
said proposals.
Consideration of proposals
8.
(1)
In respect of each proposal pursuant to subclause (1) of Clause 7
the Minister shall subject to the EP Act —
(a)
approve of the proposal without qualification or reservation;
or
(b)
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 7 not covered by the said proposal;
or
(c)
require as a condition precedent to the giving of his approval
to the said proposal that the Company make such alteration
thereto or comply 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,
PROVIDED ALWAYS that where implementation of any
proposals hereunder have been approved pursuant to the EP Act
subject to conditions or procedures, any approval or decision of the
Minister under this Clause shall if the case so requires incorporate
a requirement that the Company make such alterations to the
proposals as may be necessary to make them accord with those
conditions or procedures.
Advice of Minister’s decision
(2)
The Minister shall within two months after receipt of proposals
pursuant to subclause (1) of Clause 7 or where the proposals are to
be assessed under section 40(1)(b) of the EP Act then within two
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 13
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
months after service on him of an authority under section 45(7) of
the EP Act give notice to the Company of his decision in respect to
the proposals.
Consultation with Minister
(3)
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 him and should it so
desire to submit new or revised proposals either generally or in
respect to some particular matter.
Minister’s decision subject to arbitration
(4)
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.
Arbitration award
(5)
An award made on an arbitration pursuant to subclause (4) shall
have force and effect as follows —
(a)
if by the award the dispute is decided against the Company
then unless the Company within 3 months after delivery of
the award gives notice to the Minister of its acceptance of
the award this Agreement shall on the expiration of that
period of 3 months cease and determine; or
(b)
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 he is so satisfied with and approves the matter
or matters the subject of the arbitration.
Implementation of proposals
(6)
page 14
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.
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
Effect of non-approval of proposals
(7)
Notwithstanding any provision of this Agreement or that under this
Clause any proposals of the Company are approved by the Minister
or determined by arbitration award, unless each and every proposal
and matter required pursuant to Clause 7 is so approved or
determined by 30 June 1999 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 months
period all the detailed proposals and matters are so approved or
determined this Agreement shall on the expiration of that period
cease and determine subject however to the provisions of
Clause 38.
Overall development
9.
(1)
(2)
Having regard to the geographical relationship and physical
association of the mining lease with other iron ore deposits and to
the general development of the Pilbara area, the Company in its
initial proposals under Clause 7 and any subsequent proposals
pursuant to Clause 10 (other than a proposal under that Clause that
does not involve any significant variation to the project
infrastructure) or Clause 11 shall take into account and make
provision where it is reasonably practicable so to do for —
(a)
the economic and orderly overall development of the lands
the subject of this Agreement and those other iron ore
deposits;
(b)
appropriate infrastructure development in the Pilbara area
having regard to then existing iron ore operations and
facilities and other existing developments; and
(c)
an open town or towns or other appropriate housing and
accommodation arrangements to service the iron ore mines
and other developments in the Pilbara area.
The Company and the State shall co-operate and consult with each
other regarding the matters referred to in subclause (1), State
Government policies and development objectives, the Company’s
commercial requirements and any other relevant matters that the
Minister or the Company may wish to consider.
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 15
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
Additional proposals
10.
(1)
Subject to Clause 11 if the Company at any time during the
continuance of this Agreement desires to produce more than the
tonneage of iron ore per annum for transportation from the mining
lease approved under the proposals submitted pursuant to
subclause (1) of Clause 7 or to significantly modify expand or
otherwise vary its activities carried on pursuant to this Agreement
beyond those activities specified in any approved proposals it shall
give notice of such desire to the Minister and within 2 months
thereafter shall 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 (1) of Clause 7 as
the Minister may require.
(2)
The provisions of Clause 7 and Clause 8 (other than
subclauses (5)(a) and (7)) 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.
Aspects of a larger project
11.
(1)
The Company shall not produce more than 15,000,000 tonnes of
iron ore per annum for transportation from the mining lease nor
shall the total number of the mine camp workforce exceed 150 nor
shall the Company proceed with any plan or plans to develop all or
any of a port for the shipment of iron ore, a port townsite, a
townsite in the vicinity of the mining lease or a railway line
extending from the mining lease to a ship loading facility without
the prior consent of the Minister and approval of detailed proposals
in regard thereto in accordance with this Clause.
(2)
(a)
page 16
If the Company desires to increase the annual tonneage or
the mine camp workforce beyond that specified in
subclause (1) or proceed with any plan mentioned therein it
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
shall give notice thereof to the Minister and furnish to the
Minister with that notice an outline of its proposals in
respect thereto (including the matters mentioned in
paragraphs (a) - (m) of subclause (1) of Clause 7).
(b)
The Minister shall within one month of a notice under
paragraph (a) of this subclause advise the Company whether
or not he approves in principle the proposed increase or
progression of the proposed plan. An approval by the
Minister under this subclause may be given subject to
conditions including a condition requiring variations of or
additions to this Agreement PROVIDED THAT any such
condition shall not without the consent of the Company
require variations of —
(i)
the term of the mining lease or any railway lease or
the rental thereunder;
(ii)
the rentals payable under any other lease or licence
hereunder;
(iii)
the rates of or method of calculating royalty; and
(iv)
Clause 24.
The Minister shall afford the Company full opportunity to
consult with him in respect of any decision of the Minister
under this paragraph.
(3)
(4)
(a)
If the Minister approves in principle a proposed increase or
plan the Company shall within six months of that approval
submit to the Minister detailed proposals in respect thereof
in accordance with any conditions of that approval otherwise
that approval shall lapse.
(b)
The provisions of subclause (2) of Clause 10 shall apply to
detailed proposals submitted pursuant to this subclause.
Any proposal under this Clause to increase the annual tonneage to
be produced or the number of the mine camp workforce shall
specify the proposed increase and on and after approval or
determination of any such proposal pursuant to subclause (3)(b) the
provisions of this Clause shall apply mutatis mutandis to the
increased tonneage or number of the mine camp workforce as the
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 17
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
case may be and also to any subsequent desires of the Company for
an increase in the tonneage or mine camp workforce.
Mining lease
12.
(1)
On application made by the Company, not later than 3 months after
all its proposals submitted pursuant to subclause (1) of Clause 7
have been approved or determined and the Company has complied
with the provisions of subclause (4) of Clause 7, for a mining lease
for the mining of iron ore of Area A and so much of the land in
Area B as may be the subject of the said proposals the State shall
upon the surrender by the Company of the exploration licences
over Area A and the surrender of any land in Area B the subject of
the said proposals out of the applicable exploration licences cause
to be granted to the Company at the rental specified from time to
time in the Mining Act 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 the mining of iron
ore only such mining lease to be granted under and, except as
otherwise provided in this Agreement, subject to the Mining Act
but in the form of the Schedule hereto and subject to such
conditions or stipulations consistent with the provisions of this
Agreement and approved proposals as the Minister for Mines may
determine.
(2)
Subject to the performance by the Company of its obligations
under this Agreement and the Mining Act and notwithstanding any
provisions of the Mining Act to the contrary the term of the mining
lease shall be for a period of 21 years commencing from the date of
receipt of the application therefor under subclause (1) 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 current term of the mining lease.
Term
page 18
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
Exemption from expenditure conditions
(3)
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 the
mining lease.
Reports
(4)
The Company shall lodge with the Department of Minerals and
Energy at Perth —
(a)
such periodical reports (except reports in the form of Form 5
of the Mining Regulations 1981 or other reports relating to
expenditure on the mining lease) and returns as may be
prescribed in respect of mining leases pursuant to regulations
under the Mining Act provided that the Minister for Mines
may waive any requirement for lodgment of exploration data
in respect of areas within the mining lease;
(b)
on an annual basis, a report on ore reserves within the
mining lease (using the scheme recommended by the
Australasian Institute of Mining and Metallurgy and the
Australian Mining Industry Council or future equivalent)
together with a list of any geotechnical, metallurgical,
geochemical and geophysical investigations carried out
during the year and, if requested by the Department, details
of any of those investigations;
(c)
reports on drilling operations and drill holes where the main
purpose of the drilling was to discover or define future ore
reserves on the mining lease and, if requested by the
Department, reports on drilling done within blocks of proven
ore for the purpose of mine planning.
Access over mining lease
(5)
The Company shall at all times permit the State and third parties
with the consent of the State (with or without stock, vehicles and
rolling stock) to have access to and to pass over the mining lease
(by separate route, road or railway) so long as that access and
passage does not unduly prejudice or interfere with the activities of
the Company under this Agreement.
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 19
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
Surrender of part of mining lease
(6)
Notwithstanding the provisions of this Clause and the Mining Act
with the approval of the Minister the Company may from time to
time (with abatement of future rent in respect to the area
surrendered but without any abatement of rent already paid or any
rent which has become due and has been paid in advance)
surrender to the State all or any portion or portions of the mining
lease.
Stone sand clay and gravel
(7)
The Company in accordance with approved proposals may for the
construction of works (and the maintenance thereof) for the
purposes of this Agreement and without payment of royalty, obtain
stone sand clay and gravel from the mining lease.
Other mining tenements
(8)
page 20
(a)
Notwithstanding anything contained or implied in this
Agreement or in the mining lease or the Mining Act mining
tenements may subject to the provisions of this Clause be
granted to or registered in favour of persons other than the
Company under the Mining Act in respect of the areas
subject to the mining lease unless the Minister for Mines
determines that such grant or registration is likely unduly to
prejudice or interfere with the current or prospective
operations of the Company hereunder with respect to iron
ore assuming the taking by the Company of reasonable steps
to avoid the prejudice or interference or that there is a
reasonable probability that such a grant or registration would
materially reduce the quantity of economically extractable
iron ore available to the Company.
(b)
A mining tenement granted or registered as a result of this
Clause shall not confer any right to mine or otherwise obtain
rights to iron ore on the tenement.
(c)
(i)
In respect of any application for a mining tenement
made under the Mining Act in respect of an area the
subject of the mining lease the Minister for Mines
shall consult with the Minister and the Company with
respect to the significance of iron ore deposits in, on
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
or under the land the subject of the application and
any effect the grant of a mining tenement pursuant to
such application might have on the current or
prospective iron ore operations of the Company under
this Agreement.
(d)
As at 15 Dec 2011
(ii)
Where the Minister for Mines, after taking into
account any matters raised by the Minister or the
Company determines that the grant or registration of
the application is likely to have the effect on the
operations of the Company or the iron ore referred to
in paragraph (a) of this subclause, he shall, by notice
served on the Warden to whom the application was
made, refuse the application.
(iii)
Before making a determination pursuant to
subparagraph (ii) of this paragraph the Minister for
Mines may request the Warden to hear the application
and any objections thereto and as soon as practicable
after the hearing of the application to report to the
Minister for Mines on the application and the
objections and the effect on the current or prospective
operations of the Company or the quantity of
economically extractable iron ore that a grant of the
application might have.
(i)
Except as provided in paragraph (c) of this subclause a
Warden shall not hear or otherwise deal with an
application for a mining tenement in respect of an area
the subject of the mining lease unless and until the
Minister for Mines has notified him that it is not
intended to refuse the application pursuant to
paragraph (c) of this subclause. Following such
advice to the Warden the application shall be disposed
of under and in accordance with the Mining Act save
that where the Warden has heard the application and
objections thereto pursuant to paragraph (c) of this
subclause, the application may be dealt with by the
Warden without further hearing.
(ii)
The Company may exercise in respect of any
application heard by the Warden any right that it may
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 21
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
have under the Mining Act to object to the granting of
the application.
(iii)
Any mining tenement granted pursuant to such
application shall, in addition to any covenants and
conditions that may be prescribed or imposed, be
granted subject to such conditions as the Minister for
Mines may determine having regard to the matters the
subject of the consultations with the Minister and the
Company pursuant to paragraph (c)(i) of this
subclause and any matters raised by the Company
before the Warden.
(e)
On the grant of any mining tenement pursuant to an
application to which this subclause applies the land the
subject thereof shall thereupon be deemed excised from the
mining lease (with abatement of future rent in respect of the
area excised but without any abatement of rent already paid
or of rent which has become due and has not been paid in
advance).
(f)
If the Company applies —
(i)
during the period of application for or during the term
of any mining tenement referred to in paragraph (e) of
this subclause; or
(ii)
if that tenement is a prospecting licence or exploration
licence and a substitute tenement is granted in respect
thereof pursuant to an application made under
section 49 or section 67 of the Mining Act, during the
term of the substitute title,
to the Minister to have the land the subject of such mining
tenement or substitute title as the case may be revert to the
mining lease on the termination of the mining tenement or
substitute title then notwithstanding anything contained in
the Mining Act on such termination the land the subject of
such mining tenement or substitute title shall thereupon be
deemed to be part of the land in the mining lease (with
appropriate adjustment of rental) and shall be subject to the
terms and conditions of the mining lease and this
Agreement.
page 22
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
Royalties
13.
(1)
(2)
The Company shall during the continuance of this Agreement pay
to the State royalty on all iron ore from the mining lease (other than
iron ore shipped solely for testing purposes and in respect of which
no purchase price or other consideration is payable or due) as
follows —
(i)
on lump ore and on fine ore, where such fine ore is not sold
or shipped separately as such, shipped sold transferred or
otherwise disposed of or used prior to 1 December 2008 at
the rate of 5.625% of the f.o.b. value and thereafter at the
rate of 7.5% of the f.o.b. value;
(ii)
on fine ore sold or shipped separately as such at the rate of
5.625% of the f.o.b. value;
(iii)
on manganese ore and on manganiferous ore sold or shipped
separately as such at the rate of 7.5% of the f.o.b. value;
(iv)
on beneficiated ore at the rate of 3.25% of the f.o.b. value;
(v)
on beneficiated manganese ore and on beneficiated
manganiferous ore at the rate of 5% of the f.o.b. value;
(vi)
on all other iron ore of whatever kind at the rate of 7.5% of
the f.o.b. value.
The Company shall —
(a)
As at 15 Dec 2011
within fourteen days after the quarter days the last days of
March June September and December in each year
commencing with the quarter day next following the first
transportation of iron ore from the mining lease furnish to
the Minister a return showing the quantity of all iron ore the
subject of royalty hereunder and shipped sold transferred or
otherwise disposed of or used (as the case may be) during
the quarter immediately preceding the due date of the return
and shall not later than two (2) months after such due date
pay to the Minister the royalty payable in respect thereof or
if the f.o.b. value is not then finally calculated, agreed or
determined pay to the Minister on account of the royalty
payable hereunder a sum calculated on the basis of invoices
or provisional invoices (as the case may be) rendered by the
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 23
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
Company to the purchaser (which invoices the Company
shall render without delay simultaneously furnishing copies
thereof to the Minister) of such iron ore or on the basis of
estimates as agreed or determined and shall from time to
time in the next following appropriate return and payment
make (by return and by cash) all such necessary adjustments
(and give to the Minister full details thereof) when the f.o.b.
value shall have been finally calculated, agreed or
determined;
(b)
permit the Minister or his nominee to inspect at all
reasonable times the books of account and records of the
Company including contracts relative to any shipment or
sale of iron ore hereunder and records of iron ore in stockpile
or transit and to take copies of extracts therefrom and for the
purpose of determining the f.o.b. value in respect of any
shipment sale transfer or other disposal or use or production
of iron ore hereunder the Company will take reasonable
steps (i) to provide the Minister with current prices for iron
ore outside and within the Commonwealth and other details
and information that may be required by the Minister for the
purpose of agreeing or determining the f.o.b. value and (ii) to
satisfy the State either by certificate of a competent
independent party acceptable to the State or otherwise to the
Minister’s reasonable satisfaction as to all relevant weights
and analyses and will give due regard to any objection or
representation made by the Minister or his nominee as to any
particular weight or assay of iron ore which may affect the
amount of royalty payable hereunder; and
(c)
as and when required by the Minister for Mines from time to
time install and thereafter maintain in good working order
and condition meters for measuring quantities of iron ore and
iron ore products of such design or designs and at such
places as the Minister for Mines may require.
Area B
14.
(1)
page 24
The Company shall progressively explore and carry out full
geological investigations on the lands within Area B (except any
portion thereof approved by the Minister pursuant to subclause (1)
of Clause 6) expending in respect of each mining tenement within
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
those lands amounts at least equal to the prescribed expenditure
conditions applicable to the mining tenement under the Mining Act
and shall report to the State the results of such exploration and
investigations as and when required by the Minister.
(2)
The Company may from time to time during the currency of this
Agreement until 30 June 2000 apply to the Minister for any mining
tenements held by it within Area B not then the subject of the
mining lease to be included in the mining lease and provided the
tenement or tenements concerned have been explored to the
satisfaction of the State, the Minister for Mines will subject to
surrender by the Company of the mining tenement or tenements
concerned include the land the subject thereof in the mining lease
by endorsement on the mining lease subject to such of the
conditions of the surrendered mining tenements as the Minister for
Mines determines but otherwise subject to the same terms
covenants and conditions as apply to the mining lease (with such
apportionment of rents as is necessary), notwithstanding that the
survey of such additional land has not been completed (but subject
to correction to accord with the survey when completed at the
Company’s expense).
(3)
(a)
Subject to paragraph (b) of this subclause exploration
licences held by the Company under the Mining Act within
Area B and which are not the subject of an approval by the
Minister under subclause (1) of Clause 6 or included in the
mining lease shall remain in force and effect during the
period from the date hereof to 30 June 2000 (and shall be
renewed as necessary pursuant to section 61(2) of the
Mining Act for this purpose) under and subject to the Mining
Act except that the provisions of section 65 of the Mining
Act shall not apply to those exploration licences during that
period.
(b)
On and after 30 June 2000 or the sooner determination or
cessation of this Agreement each exploration licence to
which paragraph (a) of this subclause applies then held by
the Company within Area B shall continue in force and
effect under and subject to the Mining Act for the balance of
the term thereof then current.
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 25
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
Area C
15.
(1)
(a)
Subject to paragraph (b) of this subclause the exploration
licences held by the Company at the date hereof under the
Mining Act within Area C shall remain in force and effect
during the period from the date hereof to 30 June 2003 (and
shall be renewed as necessary pursuant to section 61(2) of
the Mining Act for this purpose) under and subject to the
Mining Act except that (subject to subclause (3)) the
provisions of section 65 of the Mining Act shall not apply to
those exploration licences during that period.
(b)
On and after June 2003 or the sooner determination or
cessation of this Agreement each exploration licence then
held by the Company within Area C shall continue in force
and effect under and subject to the Mining Act for the
balance of the term thereof then current.
(2)
The Company shall comply with the provisions of section 62 of the
Mining Act in regard to the exploration licences (subject to any
exemption under section 102A of that Act).
(3)
The State and the Company may negotiate during the currency of
this Agreement until 30 June 2003 as to the basis on which the
Company may be given rights to mine and recover iron ore from
Area C.
Protection and management of the environment
16.
(1)
The Company shall in respect of the matters referred to in
paragraph (m) of subclause (1) of Clause 7 and which are the
subject of approved proposals, carry out a continuous programme
of investigation research and monitoring to ascertain the
effectiveness of the measures it is taking both generally and
pursuant to such approved proposals for rehabilitation and the
protection and management of the environment.
(2)
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
page 26
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
Company of the elements of the approved proposals relating to
rehabilitation and the 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
rehabilitation and the protection and management of the
environment during the three year period ending two calendar
months before 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
rehabilitation and the protection and management of the
environment.
(3)
The Minister may within 2 months of receipt of a report pursuant
to subclause (2) notify the Company that the Minister —
(a)
requires amendment of the report and/or programme; or
(b)
requires additional detailed proposals to be submitted for the
protection and management of the environment.
(4)
The Company shall within 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.
(5)
The Minister may within 1 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 rehabilitation and the protection and management of the
environment.
(6)
The Company shall within 2 months of 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 8 shall
mutatis mutandis apply in respect of such proposals.
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 27
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
(7)
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.
Use of local labour professional services and materials
17.
(1)
page 28
The Company shall, for the purposes of this Agreement —
(a)
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
recruited from the Pilbara) or if such labour is not available
then, except as aforesaid, use labour otherwise available
within Australia;
(b)
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;
(c)
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;
(d)
give proper consideration and where possible preference to
Western Australian suppliers manufacturers and contractors
when letting contracts or placing orders for works, materials,
plant, equipment and supplies where price quality delivery
and service are equal to or better than that obtainable
elsewhere or, subject to the foregoing, give that
consideration and where possible preference to other
Australian suppliers manufacturers and contractors; and
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
(e)
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.
(2)
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.
(3)
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 reports
need not be provided in respect of contracts of such kind or value
as the Minister may from time to time determine.
(4)
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 have
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.
Private roads
18.
(1)
The Company shall —
(a)
As at 15 Dec 2011
be responsible for the cost of the construction and
maintenance of all private roads which shall be used in its
activities hereunder;
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 29
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
(b)
at its own cost erect signposts and take other steps that may
be reasonable in the circumstances to prevent any persons
and vehicles other than those engaged upon the Company’s
activities and its invitees and licensees from using the private
roads; and
(c)
at any place where any private roads are constructed by the
Company so as to cross any railways or public roads provide
at its cost such reasonable protection and signposting as may
be required by the Commissioner of Main Roads or the
Railways Commission as the case may be.
Maintenance of public roads
(2)
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.
Upgrading of public roads
(3)
In the event that for or in connection with the Company’s activities
hereunder the Company or any person engaged by the Company
uses or wishes to use a public road (whether referred to in
subclause (2) or otherwise) which is inadequate for the purpose, or
any use by the Company or any person engaged by the Company
of any public road results in excessive damage to or deterioration
thereof (other than fair wear and tear) the Company shall pay to the
State or the local authority as the case may require the whole or an
equitable part of the total cost of any upgrading required or of
making good the damage or deterioration as may be reasonably
required by the Commissioner of Main Roads having regard to the
use of such public road by others.
Acquisition of private roads
(4)
page 30
Where a road constructed by the Company for its own use 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 activities of the
Company under this Agreement, resume and dedicate such road as
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
a public road. Upon any such resumption the State shall pay to the
Company such amount as is reasonable.
Aerodrome
19.
(1)
The Company shall confer with the Minister on any upgrading of
existing aerodrome facilities and services in the Pilbara region that
the Minister after consultation with the relevant local authority may
consider to be required as a result of the Company’s activities
under this Agreement.
(2)
The Company shall not propose or construct any mine aerodrome
of a standard greater than the minimum requirements for an
Authorised Landing Area of a standard suitable for use by a
Canadair Challenger 600-601 jet aircraft or other similar aircraft
without the approval of the Minister.
Electricity — mine site
20.
(1)
For the purposes of facilitating integration of electricity generation
and transmission facilities in the area of the mine site the Company
shall purchase its electricity requirements (if available) from the
State Energy Commission or negotiate with the State Energy
Commission for the payment by the Company of an equitable
contribution towards the augmentation of the facilities of the State
Energy Commission to enable it to supply such electricity to the
Company. Electricity supplied to the Company pursuant to this
subclause shall be at rates and on terms and conditions to be agreed
between the State Energy Commission and the Company.
Electricity generation
(2)
In the event of the Company demonstrating to the satisfaction of
the Minister that the provisions of subclause (1) would be unduly
prejudicial to its activities or if the State Energy Commission is
unable to provide supply the Company may —
(a)
As at 15 Dec 2011
in accordance with its approved proposals hereunder and
subject to the provisions of the Electricity Act 1945 and the
approval and requirements of the State Energy Commission
pursuant to any Act, install and operate without cost to the
State, at an appropriate location equipment of sufficient
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 31
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
capacity to generate electricity for its activities at the mine
site; and
(b)
transmit power within the mine site and for the operations of
the Company’s railway subject to the provisions of the
Electricity Act 1945 and the approval and requirements of
the State Energy Commission pursuant to any Act.
Easements
(3)
In the event that the Company is unable to procure easements or
other rights over land required for the purposes of subclause (2) on
reasonable terms the State shall assist the Company to such extent
as may be reasonably necessary to enable it to procure the said
easements or other rights over land.
Supply to State Energy Commission
(4)
If the State Energy Commission desires to purchase power for its
own use and the Company has the ability to supply such power in
excess of the Company’s own requirements, the Company shall use
its best endeavours to supply on terms and conditions to be
negotiated between the State Energy Commission and the
Company and the Company shall in that event be empowered to
supply such power.
Water — mine site
21.
(1)
page 32
(a)
The State and the Company shall agree upon the amounts
(and qualities thereof) of the Company’s annual and
maximum daily water requirements for use in its activities
hereunder at the mine site (which amounts or such other
amounts as shall from time to time be agreed between the
parties to be reasonable are hereinafter called “the mining
water requirements”).
(b)
To the fullest extent reasonably practicable the Company
shall use water obtained from dewatering on the mining
lease for its purposes under this Agreement.
(c)
Nothing in this Agreement shall be construed to exempt the
Company from any liability to the State or to third parties
arising out of or caused by extraction of water from the
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
mining lease by dewatering or any discharge or escape from
the mining lease of water obtained by dewatering.
Search within mining lease
(2)
The Company shall at its cost and in collaboration with the State
search for underground water within the mining lease. Where
appropriate the Company shall employ and retain experienced
groundwater consultants. The Company shall furnish to the
Minister details of the results of its investigations and copies of the
reports of such consultants as they become available.
Search outside mining lease
(3)
If in the opinion of the Minister, the details and reports of the
consultants pursuant to subclause (2) indicate that any source of
underground water in the mining lease is likely to be inadequate or
unsuitable to supply the mining water requirements the State and
the Company shall (having due regard to the then present or likely
future requirements of third parties for water) collaborate and agree
on the programme which shall be carried out by the State at the
cost of the Company to search for water inside and outside the
mining lease.
Grant of licence
(4)
If the investigations referred to in subclauses (2) and (3) prove to
the satisfaction of the Minister the availability of any suitable
underground water source in or near the mining lease which can
continue to be drawn on by the Company without seriously
affecting the water level in that water source beneath the mining
lease or adjacent areas or the availability or water in the adjacent
areas the State shall grant to the Company a licence to develop and
draw from that source at the Company’s cost but without fee, the
mining water requirements on such terms and conditions as are
necessary to ensure good water resource management as the
Minister may from time to time require and during the continuance
of this Agreement grant renewals of any such licence PROVIDED
HOWEVER that should that source in the opinion of the Minister
prove hydrologically inadequate to meet the mining water
requirements, the State may on at least 6 months prior notice to the
Company (or on at least 48 hours prior notice if in the opinion of
the Minister an emergency situation exists) limit the amount of
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 33
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
water which may be taken from that source at any one time or from
time to time to the maximum which that source is hydrologically
capable of meeting as aforesaid.
Investigation of surface water
(5)
In the event of water supplies from available underground sources
proving insufficient to meet the mining water requirements the
Company shall notwithstanding the provisions of subclause (4)
collaborate with the State in an investigation of surface water,
water catchments and storage dams. The Company shall if it
proposes to utilise such surface water, water catchments and
storage dams pay to the State a sum or sums to be agreed towards
the cost of such investigation.
Alternative water source
(6)
Should the State at any time pursuant to the proviso to
subclause (4) limit the amount of water to be taken from any
underground water source or if otherwise the mining water
requirements cannot be met from any water source on a continuous
basis the State shall with all reasonable expedition and in
conjunction with and upon the request of the Company search for
new or additional water sources with a view to restoring or
ensuring the full quantity of the mining water requirements. The
Company shall pay to the State a fair and reasonable proportion of
the cost of investigating and developing such new and additional
water sources as agreed between the Company and the State.
Development of water sources
(7)
The Company shall provide at its cost or with finance arranged by
it and construct to standards and in accordance with designs
approved by the State and operate and maintain in accordance with
the relevant approved proposals all necessary dams, bores, valves,
distribution pipelines, reticulation, meters, tanks, equipment and
appurtenances necessary to draw transport use reticulate and
dispose of water obtained by the Company pursuant to this Clause.
State’s acquisition of water facilities
(8)
page 34
If during the currency of this Agreement the Minister is of the
opinion that it would be desirable for water conservation purposes
or water management purposes that sources of water utilised by the
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
Company be controlled and operated by the State as part of a
regional water supply scheme, the Minister may, on giving
6 months prior notice to the Company of his intention to do so,
acquire the Company’s water supply facilities for a monetary
consideration to be agreed between the Minister and the Company.
Immediately thereafter the State shall, subject only to the continued
hydrological availability of water from such sources (as determined
by the Minister) commence and thereafter continue to supply water
of the relevant qualities up to the amount and at the rates required
by the Company being the amounts and rates to which the
Company was previously entitled and the proviso to subclause (4)
and the provisions of subclause (5) shall in like manner apply to
this subclause.
Enlarged water capacity
(9)
The State, after first having due regard to the mining water
requirements and to the hydrological adequacy of existing water
sources, may in its discretion develop all or any of the water
resources referred to in this Clause or construct any works in
connection therewith to a greater capacity than that required to
supply the mining water requirements but in that event the
Company shall pay to the State a share of the cost of the system as
so enlarged as may be agreed between the parties to be fair in all
the circumstances.
Third party use
(10) The State may after first having due regard to the mining water
requirements and to the hydrological adequacy of the applicable
water source, upon not less than 3 months prior notice to the
Company specifying the identity of the third party including where
applicable the State and the estimated maximum daily and total
quantity of water to be drawn by that third party and the period
over which such drawing is to occur, grant to a third party rights to
draw water or itself draw water from that source PROVIDED
HOWEVER that —
(a)
As at 15 Dec 2011
where the Company has paid (in whole or in part) any
moneys in respect of the investigation development and
utilisation of that water source the State shall require as a
condition of the grant that where the third party is or will be
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 35
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
a substantial drawer of water from that water source within
5 years of the commencement date the third party (but not
the State) shall reimburse to the Company prior to the third
party exercising its rights to draw water, such proportion of
those moneys as the Minister determines is fair and
reasonable; and
(b)
where the Company draws water from that water source the
State shall ensure that it is a condition of the grant to third
parties that in the event that the capacity of that water source
is reduced, such reduction shall be first applied to the third
parties and thereafter if further reduction is necessary the
State’s and the Company’s requirements shall be reduced in
such proportion as may be agreed.
Payment for water
(11) The Company shall pay to the State for water supplied by the State
pursuant to subclauses (5) and (8) a fair price to be agreed between
the parties hereto having regard to the actual cost to the State of
establishing operating and maintaining the supply and provision for
replacement of the water supply facilities.
Design of plant
(12) The Company shall to the extent that it is practical and economical
design construct and operate all plant required under this Clause so
as to ensure the most efficient use of the available water resources
including if required by the Minister the use of brackish or saline
water.
Charges for supply of water to third parties
(13) Subject to the Minister’s approval the Company may supply water
to third parties including the State at a charge to be approved by the
Minister after consultation with the Company. The Company shall
have all the powers and authorities with respect to such water as
are determined by the Minister which may include all or any of the
powers of a water board under the Water Boards Act 1904 and,
with the consent of the Minister for Local Government, those of a
local authority.
page 36
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
Minimisation of water consumption
(14) The Company shall to the extent that it is practical and economical
design construct and operate all plant and equipment used in its
activities under this Agreement so as to minimise water
consumption and shall at all times use its best endeavours to
minimise the consumption of water in its activities under this
Agreement and ensure the most efficient use of the available water
resources.
State to restrict adverse grants
(15) The State shall ensure that no rights to mine minerals petroleum or
other substances are granted over the area of any water source from
which the Company is drawing water or from time to time have the
right to draw water hereunder unless the Minister reasonably
determines that such grant is not likely to unduly prejudice or to
interfere with the activities of the Company hereunder and is not
likely to render the water source incapable of supplying the mining
water requirements on a continuous basis.
Rights in Water and Irrigation Act
(16) Any reference in the foregoing provisions of this Clause to a
licence is a reference to a licence under the Rights in Water and
Irrigation Act 1914 and the provisions of that Act relating to water
rights and licences shall except where inconsistent with the
provisions of this Agreement apply to any water source developed
for the Company’s purposes under this Agreement.
Provision of accommodation/housing
22.
(1)
Accommodation for the mine camp workforce when the Company
is producing not more than 15,000,000 tonnes of iron ore per
annum for transportation from the mining lease and the total
number of the mine camp workforce is not more than 150 shall be
by way of temporary accommodation units (not caravans) and
ancillary facilities of a standard generally used in the mining
industry located in the vicinity of the mining lease and —
(a)
As at 15 Dec 2011
the accommodation units and facilities ancillary to the
accommodation units (which may include a mess/wet mess,
amenities blocks and offices for Company management
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 37
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
personnel) may be provided by the Company or a contractor
to the Company but shall be subject to the prior approval of
the Minister as to nature and type;
(2)
(b)
unless otherwise agreed by the Minister all accommodation
units on the mine site shall be removed from the mine site
upon the mine camp workforce being accommodated
elsewhere than at the mine site;
(c)
only the mine camp workforce and persons visiting the mine
site in connection with the Company’s mining activities on a
short term basis or employed for a specific task of limited
duration shall be permitted to stay at the accommodation
area; and
(d)
except where the Minister otherwise agrees in a particular
case, no dependants or pets shall be allowed on the mine site.
If and whenever the Company proposes —
(a)
to give a notice of proposed increase of tonneages or
workforce pursuant to Clause 11;
(b)
to substantially add to upgrade replace or relocate
accommodation units; or
(c)
to construct an additional accommodation area separate from
that already established
it shall confer with the Minister with respect to the future
accommodation of the mine camp workforce (including those
members of the mine camp workforce then accommodated at the
accommodation area) which may include expansion or alteration of
the accommodation area, establishment of or assimilation into a
new townsite, and assimilation into an existing town before
submitting any proposal in regard thereto to the Minister.
(3)
The Company shall likewise confer with the Minister at the request
of the Minister if the State proposes an open town in the Pilbara
area and shall co-operate with the State on any studies in relation to
such a proposal that may be required to select a site for the town.
(4)
If the State and the Company agree that the mine camp workforce
can be located in the proposed open town then the Company will
page 38
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
relocate the workforce to the open town within an agreed period of
time at no cost to the State and make such contributions to the
infrastructure and community facilities in the open town as are
agreed between the State and the Company to be required to
service the needs of the Company’s workforce.
(5)
The Company shall confer with the Minister as and when required
by the Minister and the relevant local authorities with a view —
(a)
to ensuring that appropriate planning is being made for the
provision of adequate serviced land for housing the
Company’s workforce in any existing town; and
(b)
to assisting in the cost of providing any appropriate
community, recreation, civic or social amenities at any
existing town required for the Company’s workforce and
associated population.
Lands
23.
(1)
The State shall in accordance with the Company’s approved
proposals 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 rentals
and renewal rights as shall be reasonable having regard to the
requirements of the Company and as are consistent with the terms
of this Agreement and approved proposals, leases and where
applicable licences easements and rights of way for all or any of
the purposes of the Company’s activities hereunder including any
of the following namely — accommodation area, rail spur line,
railway line, conveyor, private roads, tailing areas, water pipelines,
pumping installations and reservoirs, power transmission lines,
radio and communication sites, plant site areas and borrow pits for
stone sand clay and gravel.
Modification of Land Act
(2)
For the purpose of this Agreement in respect of any land leased to
the Company by the State the Land Act shall be deemed to be
modified by —
(a)
As at 15 Dec 2011
the substitution for subsection (2) of section 45A of the
following subsection —
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 39
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
“(2) Upon the Minister signifying approval pursuant to
subsection (1) of this section in respect of any such
land the same may subject to this section be leased.”;
(b)
the deletion of the proviso to section 116;
(c)
the deletion of section 135;
(d)
the deletion of section 143;
(e)
the inclusion of a power to grant occupancy rights over land
on such terms and conditions as the Minister for Lands may
determine;
(f)
the inclusion of a power to grant leases or licences for terms
or periods and on such terms and conditions (including
renewal rights) and in forms consistent with the provisions
of this Agreement in lieu of the terms or periods, the terms
and conditions and the forms referred to in the Land Act.
The provisions of this subclause shall not operate so as to prejudice
the rights of the State to determine any lease licence or other right
or title in accordance with the other provisions of this Agreement.
Railway
24.
(1)
page 40
Subject to the State having assured to the Company all necessary
rights in or over Crown lands available for the purpose the
Company shall in a proper and workmanlike manner and in
accordance with recognised standards for railways of a similar
nature operating under similar conditions construct along the route
specified in the approved proposals (but subject to the provisions
of the Public Works Act 1902, to the extent that they are
applicable) the rail spur line or lines or railway line (of standard
gauge, 1.4351 metres) specified in the approved proposals and
shall also construct inter alia any necessary deviations, loops,
spurs, sidings, crossings, points, bridges signalling switches and
other works and appurtenances and provide for crossing places and
(where appropriate and required by the Minister) grade separation
or other protective devices including flashing lights and boom
gates at places where the specified railway crosses or intersects
with major roads or existing railways (all of which together with
the specified rail spur line or lines or railway line being hereinafter
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
referred to as “the said railway”) and shall operate the said railway
with sufficient and adequate locomotives freight cars and other
railway stock and equipment for the purposes of the Company’s
activities under this Agreement.
Operation of railway
(2)
The Company shall during the continuance of this Agreement
operate the said railway in a safe and proper manner and shall
provide crossings for livestock and also for any roads and other
railways which now exist and where it can do so without unduly
prejudicing or interfering with its activities hereunder the Company
shall allow such crossings for roads and railways which may be
constructed for future needs and which may be required to cross
the said railway.
Third parties iron ore
(3)
The Company shall if and when required carry iron ore and iron
ore products of third parties (being iron ore or iron ore products
obtained from outside the mineral lease) over the said railway in
accordance with arrangements (including provision for payment of
charges by such third parties) to be entered into for the purpose of
this subclause between the Company and the State such
arrangements unless the parties hereto otherwise agree to be similar
in all material respects with any other arrangements for the carriage
of iron ore products of third parties made pursuant to any other
agreement with the State relating to the mining of iron ore.
Passengers and freight
(4)
Where the Company can do so without materially prejudicing or
interfering with its operations hereunder and subject to the payment
to it of the charges prescribed by and for the time being payable
under any by-laws made by the Company in respect of the
transporting of passengers and the carriage of freight over the said
railway and subject to the due compliance with the other
requirements and conditions prescribed by such by-laws (or should
there be no such by-laws for the time being in force then subject to
the payment of such charges and the due compliance with such
requirements and conditions as in either case shall be reasonable
having regard to the cost to the Company of the construction and
operation of the said railway) the Company shall if and when
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 41
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
reasonably required so to do transport passengers and carry the
freight of the State and third parties (other than iron ore or iron ore
products of third parties) over the said railway but in relation to its
use of the said railway the Company shall not be deemed to be a
common carrier at law or otherwise.
Use of other railways
(5)
The Company shall not enter into any agreement or other
arrangement for the use of or the carriage of the iron ore products
of the Company over any railway not established by the Company
pursuant to this Agreement without the prior approval of the State
thereto and to the proposed terms and conditions (including
charges) for such use or carriage.
Shipping facilities
25.
(1)
Where pursuant to Clause 11 and approved proposals the Company
is to develop a port for the shipment of iron ore, the Company shall
develop the port in accordance with the approved proposals and
shall construct a Company wharf and carry out all necessary
dredging of approach channels, swinging basins and berth at the
Company’s wharf and provide all necessary buoys, beacons,
markers, navigational aids, lighting equipment and services and
facilities required in connection therewith.
(2)
Notwithstanding the provisions of subclause (1), the Company and
the State recognise with respect to any wharf or port and shipping
facilities and services to be established for the purposes of this
Agreement that it may be advantageous for the State to provide all
or any of such works or services and in such case the Company and
the State shall together with other users and potential users of a
wharf or port and/or those facilities or services confer as to the
manner in and the conditions upon which the State should provide
such works facilities or services to the mutual advantage of all.
The Company shall pay to the State a sum or sums to be agreed
(not exceeding the amount that would have been payable had the
Company carried out the said works) towards the cost of the said
works facilities or services provided by the State.
page 42
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
Use of shipping facilities
(3)
The Company shall subject to and in accordance with by-laws
(which shall include provision for reasonable charges) from time to
time to be made and altered as provided in Clause 26 and subject
thereto, or if no such by-laws are made or in force then upon
reasonable terms and at reasonable charges (having regard to the
cost thereof to the Company) allow the State and third parties to
use any wharf and port installations wharf machinery and
equipment and wharf and port services and facilities constructed or
provided by the Company PROVIDED THAT such use shall not
unduly prejudice or interfere with the Company’s operations
hereunder and that such use shall be subject to the prior approval of
the Company.
By-laws
26.
The Minister may upon recommendation by the Company make alter and
repeal by-laws for the purpose of enabling the Company to fulfil its
obligations under Clause 24 and subclause (3) of Clause 25 upon terms
and subject to conditions (including terms and conditions as to user
charging and limitation of the liability of the Company) as set out in such
by-laws consistent with the provisions hereof. Should the Minister 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 Minister may
reasonably require or (in the event of their being any dispute as to the
reasonableness of such requirement) then as may be decided by
arbitration hereunder.
Further processing
27.
(1)
During the continuance of this Agreement commencing from the
date when the Company first transports iron ore from the mining
lease (other than iron ore shipped solely for testing purposes) the
Company shall undertake ongoing investigations into the technical
and economic feasibility of establishing facilities within the said
State either alone or in association with others for the further
processing of iron ore obtained from the mining lease and as and
when requested by the Minister, but not more frequently than once
in every two years, shall submit detailed reports of their
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 43
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
investigations to the date of request and their conclusions in regard
thereto.
(2)
The State may undertake similar investigations and, for this
purpose, the Company shall provide the State, within a reasonable
time of request, with such information as the State may reasonably
request. The Company shall not be obliged to supply technical
information of a confidential nature or financial and economic
information the disclosure of which would unduly prejudice
contractual or commercial arrangements between the Company and
third parties, but will use reasonable endeavours to arrange for the
supply of this or like information on request by the State.
(3)
If as result of investigations undertaken under subclause (1) or (2),
the Company or the State reasonably concludes that further
processing of iron ore from the mining lease with or without other
iron ore and by the Company alone or in association with others is
technically and economically feasible, then the State and the
Company shall consult on the implementation of such further
processing.
(4)
If the Company is unwilling to proceed with implementation of
such further processing on a timetable acceptable to the State, the
State may allow a third party to carry out that implementation but
the State will not grant to the third party terms and conditions more
favourable on the whole than it was prepared to grant to the
Company. In such circumstances, the Company will if required by
the third party supply iron ore to the third party at the wharf or port
through which iron ore from the mining lease is then or was last
exported or such other place as the third party and the Company
agree in sufficient quantities and appropriate rates and grades and
at appropriate times to meet the requirements of the third party for
at least the first ten years of its operations at a reasonable price and
in determining a reasonable price regard shall be had to any
comparable sales then being made by the Company and if there are
no such sales, comparable sales (if any) then being made by other
iron ore producers in the Pilbara area. The Minister may relieve
the Company in whole or in part of its obligations under this
subclause where the Company demonstrates to the satisfaction of
the Minister that full or partial supply of the required iron ore is not
practicable on economic or technical grounds.
page 44
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
Zoning
28.
The State shall ensure after consultation with the relevant local authority
that the mining lease and any lands the subject of any Crown Grant lease
licence or easement granted to the Company under this Agreement shall
be and remain zoned for use or otherwise protected during the currency of
this Agreement so that the activities of the Company hereunder may be
undertaken and carried out thereon without any interference or
interruption by the State or by any State agency or instrumentality or by
any local or other authority of the State on the ground that such activities
are contrary to any zoning by-law regulation or order.
Rating
29.
(1)
The State shall ensure that notwithstanding the provisions of any
Act or anything done or purported to be done under any Act the
valuation of all lands the subject of this Agreement (except the
accommodation area and any other parts of the lands the subject of
this Agreement on which accommodation units or housing for the
Company’s workforce is erected or which is occupied in
connection with such accommodation units or housing and except
as to any part upon which there stands any improvements that are
used in connection with a commercial undertaking not directly
related to the mining activities carried out by the Company
pursuant to approved proposals) shall for rating purposes under the
Local Government Act 1960, be deemed to be on the unimproved
value thereof and no such lands shall be subject to any
discriminatory rate and further as regards the mining lease that the
unimproved value thereof shall be calculated on the basis that the
mining lease is a mining lease under the Mining Act and not as
land held pursuant to an agreement made with the Crown in right
of the State and scheduled to an Act approving the agreement.
(2)
It is hereby declared and agreed that the provisions of section 533B
of the Local Government Act 1960 shall not apply to any lands the
subject of this Agreement.
No discriminatory rates
30.
Except as provided in this Agreement the State shall not impose, nor shall
it permit or authorise any of its agencies or instrumentalities or any local
or other authority of the State to impose discriminatory taxes rates or
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 45
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
charges of any nature whatsoever on or in respect of the titles property or
other assets products materials or services used or produced by or through
the activities of the Company in the conduct of its business hereunder nor
will the State take or permit to be taken by any such State authority any
other discriminatory action which would deprive the Company of full
enjoyment of the rights granted and intended to be granted under this
Agreement.
Resumption for the purposes of this Agreement
31.
The State may as and for a public work under the Public Works Act 1902,
resume any land required for the purposes of this Agreement and
notwithstanding any other provisions of that Act may sell lease or
otherwise dispose of that land to the Company and the provisions of
subsections (2) to (7) inclusive of section 17 and section 17A of that Act
shall not apply to or in respect of that land or the resumption thereof. The
Company shall pay to the State on demand the costs of and incidental to
any land resumed at the request of and on behalf of the Company.
No resumption
32.
Subject to the performance by the Company of its obligations under this
Agreement the State shall not during the currency of this Agreement
without the consent of the Company resume nor suffer nor permit to be
resumed by any State instrumentality or by any local or other authority of
the State any of the works installations plant equipment or other property
for the time being belonging to the Company and the subject of or used
for the purpose of this Agreement or any of the works on the lands the
subject of any lease or licence granted to the Company in terms of this
Agreement or any works installations plant equipment or other property
on such lands and belonging to a contractor to the Company and being
used in the Company’s activities under this Agreement AND without
such consent (which shall not be unreasonably withheld) the State shall
not create or grant or permit or suffer to be created or granted by any
instrumentality or authority of the State as aforesaid any road
right-of-way water right or easement of any nature or kind whatsoever
over or in respect of any such lands which may unduly prejudice or
interfere with the Company’s activities under this Agreement.
page 46
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
Assignment
33.
(1)
Subject to the provisions of this Clause the Company may at any
time assign mortgage charge sublet or dispose of to any company
or persons 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 the mining lease (or the exploration licences referred
to in recital (a) hereof if the mining lease is not then issued) or any
other lease licence easement grant or other title) and of the
obligations of the Company hereunder subject however in the case
of an assignment subletting or disposition to the assignee sublessee
or disponee (as the case may be) executing in favour of the State
(unless the Minister otherwise determines) a deed of covenant in a
form to be approved by the Minister to comply with observe and
perform the provisions 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 subletting or disposition.
(2)
Notwithstanding anything contained in or anything done under or
pursuant to subclause (1) 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 in this Agreement and in the
mining lease or any other lease licence easement grant or other title
the subject of an assignment mortgage subletting or disposition
under subclause (1) PROVIDED THAT the Minister may agree to
release the Company from such liability where the Minister
considers such release will not be contrary to the interests of the
State.
(3)
Notwithstanding the provisions of the the Mining Act, the Transfer
of Land Act 1893 and the Land Act, insofar as the same or any of
them may apply —
(a)
As at 15 Dec 2011
no assignment mortgage charge sublease or disposition made
or given pursuant to this Clause of or over the mining lease
or any other lease licence easement grant or other title
granted under or pursuant to this Agreement by the
Company or any assignee sublessee or disponee who has
executed and is for the time being bound by deed of
covenant made pursuant to this Clause; and
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 47
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
(b)
no transfer assignment mortgage or sublease made or given
in exercise of any power contained in any such mortgage or
charge
shall require any approval or consent other than such consent as
may be necessary under this Clause and no equitable mortgage or
charge shall be rendered ineffectual by the absence of any approval
or consent (otherwise than as required by this Clause) or because
the same is not registered under the provisions of the Mining Act.
Variation
34.
(1)
The parties to this Agreement may from time to time by agreement
in writing add to substitute for cancel or vary all or any of the
provisions of this Agreement or of any lease licence easement grant
or other title granted under or pursuant to this Agreement for the
purpose of more efficiently or satisfactorily implementing or
facilitating any of the objects of this Agreement.
(2)
The Minister shall cause any agreement made pursuant to
subclause (1) in respect of any addition substitution cancellation or
variation of the provisions of this Agreement to be laid on the
Table of each House of Parliament within 12 sitting days next
following its execution.
(3)
Either House may, within 12 sitting days of that House after the
agreement has been laid before it pass a resolution disallowing the
agreement, but if after the last day on which the agreement might
have been disallowed neither House has passed such a resolution
the agreement shall have effect from and after that last day.
Force majeure
35.
This Agreement shall be deemed to be made subject to any delays in the
performance of the obligations under this Agreement and to the
temporary suspension of continuing obligations under this Agreement
that may be caused by or arise from circumstances beyond the power and
control of the party responsible for the performance of those obligations
including without limiting the generality of the foregoing delays or any
such temporary suspension as aforesaid caused by or arising from act of
God force majeure earthquakes floods storms tempest washaways fire
(unless caused by the actual fault or privity of the party responsible for
such performance) act of war act of public enemies riots civil
page 48
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
commotions strikes lockouts stoppages restraint of labour or other similar
acts (whether partial or general) acts or omissions of the Commonwealth
shortages of labour or essential materials reasonable failure to secure
contractors delays of contractors and inability to sell iron ore profitably or
factors due to overall world economic conditions or factors due to action
taken by or on behalf of any government or governmental authority (other
than the State or any authority of the State) or factors that could not
reasonably have been foreseen PROVIDED ALWAYS that the party
whose performance of obligations is affected by any of the said causes
shall promptly give notice to the other party of the event or events and
shall use its best endeavours to minimise the effects of such causes as
soon as possible after the occurrence.
Power to extend periods
36.
Notwithstanding any provision of this Agreement 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 or in
any approved proposal for such period or to such later date as the
Minister thinks fit whether or not the period to be extended has expired or
the date to be varied has passed.
Determination of Agreement
37.
(1)
In any of the following events namely if —
(a)
(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 lease 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
(ii)
the Company abandons or repudiates this Agreement
or its activities under this Agreement
and such default is not remedied or such activities resumed
within a period of 180 days after notice is given by the State
as provided in subclause (2) or, if the default or
abandonment is referred to arbitration, then within the period
mentioned in subclause (3); or
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 49
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
(b)
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 33
the State may by notice to the Company determine this Agreement.
(2)
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 33 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.
(3)
(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.
(b)
If the question is decided against the Company, the
Company shall comply with the arbitration award within a
reasonable time to be fixed by that award PROVIDED
THAT if the arbitrator finds that there was a bona fide
dispute and that the Company was 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.
(4)
page 50
If the default referred to in paragraph (a) of subclause (1) shall not
have been remedied after receipt of the notice referred to in that
subclause 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
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
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.
Effect of cessation or determination of Agreement
38.
(1)
(2)
On the cessation or determination of this Agreement —
(a)
except as otherwise agreed by the Minister the rights of the
Company to in or under this Agreement and the rights of the
Company or of any assignee of the Company or any
mortgagee to in or under the mining lease and any other
lease licence easement grant or other title or right granted
hereunder or pursuant hereto (but excluding townsite lots
which have been granted to or acquired by the Company and
which are no longer owned by it) shall thereupon cease and
determine but without prejudice to the liability of either of
the parties hereto in respect of any antecedent breach or
default under this Agreement or in respect of any indemnity
given under this Agreement;
(b)
the Company shall forthwith pay to the State all moneys
which may then have become payable or accrued due;
(c)
save as aforesaid and as otherwise provided in this
Agreement neither of the parties shall have any claim against
the other of them with respect to any matter or thing in or
arising out of this Agreement.
Subject to the provisions of subclause (3) upon the cessation or
determination of this Agreement except as otherwise determined by
the Minister all buildings erections and other improvements erected
on any land then occupied by the Company under the mining lease
or any other lease licence easement grant or other title made under
or pursuant to this Agreement 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
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 51
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
surrenders) as the State may reasonably require to give effect to the
provisions of this subclause.
(3)
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 fixed or movable plant and equipment or any part
thereof from any part of the land occupied by it at the date of such
cessation or determination it shall give to the State notice of such
desire and thereby shall grant to the State the right or option
exercisable within 3 months thereafter to purchase in situ such
fixed or moveable plant and equipment at a fair valuation to be
agreed between the parties or failing agreement determined by
arbitration under this Agreement.
Environmental protection
39.
Nothing in this Agreement shall be construed to exempt the Company
from compliance with any requirement in connection with the protection
of the environment arising out of or incidental to its activities under this
Agreement that may be made pursuant to the EP Act.
Indemnity
40.
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 activities hereunder or arising out of or in
connection with the construction maintenance or use by the Company or
its servants agents contractors or assignees of the Company’s works or
services the subject of this Agreement or the plant apparatus or
equipment installed in connection therewith PROVIDED THAT subject
to the provisions of any other relevant Act such indemnity shall not apply
in circumstances where the State, its servants, agents, or contractors are
negligent in carrying out work for the Company pursuant to this
Agreement.
Commonwealth licences and consents
41.
(1)
page 52
The Company shall from time to time make application to the
Commonwealth or to the Commonwealth constituted agency,
authority or instrumentality concerned for the grant to it of any
licence or consent under the laws of the Commonwealth necessary
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
to enable or permit the Company to enter into this Agreement and
to perform any of its obligations hereunder.
(2)
On request by the Company the State shall make representations to
the Commonwealth or to the Commonwealth constituted agency
authority or instrumentality concerned for the grant to the
Company of any licence or consent mentioned in subclause (1).
Subcontracting
42.
The State shall ensure that without affecting the liabilities of the parties
under this Agreement either party shall have the right from time to time
to entrust to third parties the carrying out of any portions of the activities
which it is authorised or obliged to carry out hereunder.
Stamp duty exemption
43.
(1)
The State shall exempt from any stamp duty which but for the
operation of this Clause would or might be assessed and chargeable
on —
(a)
this Agreement;
(b)
instruments of transfer under the Mining Act dated
30 November 1992 by Hancock Resources Limited to the
Company of Exploration Licences Nos. 47/243, 47/308,
47/309, 47/427, 47/428, 47/429, 47/430, 47/431 and 47/597;
(c)
any instrument executed by the State pursuant to this
Agreement granting to or in favour of the Company or any
permitted assignee any tenement lease licence easement or
other right or rights; and
(d)
any assignment sublease or disposition (other than by way of
mortgage or charge) made in conformity with the provisions
of subclause (1) of Clause 33
PROVIDED THAT this subclause shall not apply to any
instrument or other document executed or made after
31 December 1996.
(2)
If prior to the date on which the Bill referred to in Clause 3 to ratify
this Agreement is passed as an Act stamp duty has been assessed
and paid on any instrument or other document or transaction
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 53
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
referred to in subclause (1) the State when such Bill is passed as an
Act shall on demand refund any stamp duty paid on any such
instrument or other document or transaction to the person who paid
the same.
Arbitration
44.
(1)
Any dispute or difference between the parties arising out of or in
connection with this Agreement the construction of this Agreement
or as to the rights duties or liabilities of either party under this
Agreement 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 and settled by arbitration under the
provisions of the Commercial Arbitration Act 1985 and
notwithstanding section 20(1) of that Act each party may be
represented before the arbitrator by a duly qualified legal
practitioner or other representative.
(2)
Except where otherwise provided in this Agreement, the provisions
of this Clause shall not apply to any case where the State the
Minister or any other Minister in the Government of the said State
is by this Agreement given either expressly or impliedly a
discretionary power.
(3)
The arbitrator of any submission to arbitration under this
Agreement is hereby empowered upon the application of either of
the parties to grant in the name of the Minister any interim
extension of any period or variation of any date referred to herein
which having regard to the circumstances may reasonably be
required in order to preserve the rights of that party or of the parties
under this Agreement and an award may in the name of the
Minister grant any further extension or variation for that purpose.
Consultation
45.
The Company shall during the currency of this Agreement consult with
and keep the State fully informed on a confidential basis concerning any
action that the Company propose to take with any third party (including
the Commonwealth or any Commonwealth constituted agency authority
instrumentality or other body) which might significantly affect the overall
interest of the State under this Agreement.
page 54
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
Notices
46.
Any notice consent or other writing authorised or required by this
Agreement to be given or sent shall be deemed to have been duly given or
sent by the State if signed by the Minister or by any senior officer of the
Public Service of the said State acting by the direction of the Minister and
forwarded by prepaid post or handed to the Company at its address
hereinbefore set forth or other address in the said State nominated by the
Company to the Minister and by the Company if signed on its behalf by
any person or persons authorised by the Company or by its solicitors as
notified to the State from time to time and forwarded by prepaid post or
handed to the Minister and except in the case of personal service any such
notice consent or writing shall be deemed to have been duly given or sent
on the day on which it would be delivered in the ordinary course of post.
Term of Agreement
47.
Subject to the provisions of subclauses (5) and (7) of Clause 8 and
Clauses 37 and 38, this Agreement shall expire on the expiration or
sooner determination or surrender of the mining lease.
Applicable law
48.
This Agreement shall be interpreted according to the law for the time
being in force in the State of Western Australia.
THE SCHEDULE
WESTERN AUSTRALIA
MINING ACT 1978
IRON ORE (HOPE DOWNS) AGREEMENT ACT 1992
MINING LEASE
MINING LEASE NO.
The Minister for Mines a corporation sole established by the Mining Act 1978
with power to grant leases of land for the purposes of mining in consideration of
the rents hereinafter reserved and of the covenants on the part of the Lessee
described in the First Schedule to this lease and of the conditions hereinafter
contained and pursuant to the Mining Act 1978 (except as otherwise provided by
the Agreement (hereinafter called “the Agreement”) described in the Second
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 55
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
Schedule to this lease) hereby leases to the Lessee the land more particularly
delineated and described in the Third Schedule to this lease for iron ore and for
manganese ore and manganiferous ore (as defined in the Agreement) subject
however to the exceptions and reservations set out in the Fourth Schedule to this
lease and to any other exceptions and reservations which subject to the
Agreement are by the Mining Act 1978 and by any Act for the time being in
force deemed to be contained herein to hold to the Lessee this lease for a term
of twenty one years commencing on the date set out in the Fifth Schedule to this
lease (subject to the sooner determination of the said term upon the cessation or
determination of the Agreement) upon and subject to such of the provisions of
the Mining Act 1978 except as otherwise provided by the Agreement as are
applicable to mining leases granted thereunder and to the terms covenants and
conditions set out in the Agreement and to the covenants and conditions herein
contained or implied and any further conditions or stipulations set out in the
Sixth Schedule to this lease the Lessee paying therefor the rents for the time
being and from time to time prescribed pursuant to the provisions of the Mining
Act 1978 at the times and in the manner so prescribed and royalties as provided
in the Agreement with the right during the currency of the Agreement and in
accordance with the provisions of the Agreement to take two successive
renewals of the term each for a further period of 21 years upon the same terms
and conditions subject to the sooner determination of the term upon cessation or
determination of the Agreement PROVIDED ALWAYS that this lease shall not
be determined or forfeited otherwise than in accordance with the Agreement.
In this lease —
—
“Lessee” includes the successors and permitted assigns of the Lessee.
—
If the Lessee be more than one the liability of the Lessee hereunder shall
be joint and several.
—
Reference to an Act includes all amendments to that Act for the time
being in force and also any Act passed in substitution therefor or in lieu
thereof and to the regulations and by-laws for the time being in force
thereunder.
FIRST SCHEDULE
HOPE DOWNS LIMITED ACN 057 326 815 a company incorporated in the
State of Western Australia and having its registered office at Third Floor,
28-42 Ventnor Avenue, West Perth.
page 56
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
SECOND SCHEDULE
The Agreement made between the State of Western Australia and Hope Downs
Limited and ratified by the Iron Ore (Hope Downs) Agreement Act 1992.
THIRD SCHEDULE
(Description of land:)
Locality:
Mineral Field:
Area, etc.:
Being the land delineated on Survey Diagram No.
Department of Mines, Perth.
and recorded in the
FOURTH SCHEDULE
All petroleum as defined in the Petroleum Act 1967 on or below the surface of
the land the subject of this lease is reserved to the Crown in right of the State of
Western Australia with the right of the Crown in right of the State of Western
Australia and any person lawfully claiming thereunder or otherwise authorised
to do so to have access to the land the subject of this lease for the purpose of
searching for and for the operations of obtaining petroleum (as so defined) in
any part of the land.
FIFTH SCHEDULE
(Date of commencement of the lease).
SIXTH SCHEDULE
(Any further conditions or stipulations).
IN witness whereof the Minister for Mines has affixed his seal and set his hand
hereto this
day of
19
IN WITNESS WHEREOF this Agreement has been executed by or on behalf of
the parties hereto the day and year first hereinbefore mentioned.
SIGNED by the said
THE HONOURABLE CARMEN
As at 15 Dec 2011
)
)
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 57
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 1
Iron Ore (Hope Downs) Agreement
MARY LAWRENCE in
the presence of:
)
)
MINISTER FOR STATE DEVELOPMENT
THE COMMON SEAL of
HOPE DOWNS LIMITED was
hereunto affixed by
authority of the Directors
in the presence of:
CARMEN LAWRENCE
IAN TAYLOR
)
)
)
)
)
G. RINEHART
___________________________________
Director
G. SCHWAB
___________________________________
Secretary
page 58
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
Schedule 2 — First Variation Agreement
[s. 3]
[Heading inserted: No. 61 of 2010 s. 20.]
2010
THE HONOURABLE COLIN JAMES BARNETT
PREMIER OF THE STATE OF WESTERN AUSTRALIA
AND
HOPE DOWNS IRON ORE PTY. LTD.
ACN 071 514 308
HAMERSLEY WA PTY. LTD.
ACN 115 004 138
IRON ORE (HOPE DOWNS) AGREEMENT 1992
RATIFIED VARIATION AGREEMENT
[Solicitor’s details]
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 59
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
THIS AGREEMENT is made this 17th day of November 2010
BETWEEN
THE HONOURABLE COLIN JAMES BARNETT MLA., Premier of the
State of Western Australia acting for and on behalf of the said State and
instrumentalities thereof from time to time (State)
AND
HOPE DOWNS IRON ORE PTY LTD ACN 071 514 308 of Level 3, Hppl
House, 28-42 Ventnor Avenue, West Perth, Western Australia and
HAMERSLEY WA PTY. LTD. ACN 115 004 138 of Level 22, Central Park,
152-158 St Georges Terrace, Perth, Western Australia. (Joint Venturers).
RECITALS
A.
The State and the Joint Venturers are now the parties to the agreement
dated 30 November 1992 ratified by and scheduled to the Iron Ore (Hope
Downs) Agreement Act 1992 and which as subsequently added to, varied
or amended is referred to in this Agreement as the "Principal
Agreement".
B.
The State and the Joint Venturers wish to vary the Principal Agreement.
THE PARTIES AGREE AS FOLLOWS:
1.
Subject to the context, the words and expressions used in this Agreement
have the same meanings respectively as they have in and for the purpose
of the Principal Agreement.
2.
The State shall sponsor a Bill in the Parliament of Western Australia to
ratify this Agreement and shall endeavour to secure its passage as an Act
prior to 31 December 2010 or such later date as the parties may agree.
3.
(a)
Clause 4 does not come into operation unless or until an Act passed
in accordance with clause 2 ratified this Agreement.
(b)
If by 30 June 2011, or such later date as may be agreed pursuant to
clause 2, clause 4 has not come into operation then unless the
parties hereto otherwise agree this Agreement shall cease and
determine and none of the parties shall have any claim against the
other parties with respect to any matter or thing arising out of or
page 60
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
done or performed or omitted to be done or performed under this
Agreement.
4.
The Principal Agreement is hereby varied as follows:
(1)
in clause 1:
(a)
by deleting the existing definitions of "approved proposal",
"beneficiated ore", "beneficiated manganese ore",
"beneficiated manganiferous ore", "fine ore", "iron ore",
"loading port", "lump ore" and "metallised agglomerates";
(b)
by inserting in the appropriate alphabetical positions the
following new definitions:
"approved proposal" means a proposal approved or
determined under this Agreement;
"associated company" means:
(a)
As at 15 Dec 2011
any company notified in writing by the Company to
the Minister which is incorporated in the United
Kingdom, the United States of America or Australia
and which is:
(i)
a subsidiary of the Company within the
meaning of the term "subsidiary" in section 46
of
the
Corporations
Act
2001
(Commonwealth);
(ii)
promoted by the Company for all or any of the
purposes of this Agreement and in which the
Company holds not less than $2,000,000 of the
issued ordinary capital;
(iii)
a company in which the Company holds not
less than 20% of the issued ordinary share
capital;
(iv)
a related body corporate (within the meaning of
the term "related body corporate" in section 9 of
the Corporations Act 2001 (Commonwealth))
of the Company or of any company in which
the Company holds not less than 20% of the
issued ordinary share capital; and
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 61
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
(b)
any other company approved in writing by the
Minister for the purpose of this Agreement which is
associated directly or indirectly with the Company in
its business or operations under this Agreement;
"beneficiated
manganese
ore"
and
"beneficiated
manganiferous ore" mean respectively manganese ore and
manganiferous ore that has been concentrated or upgraded
(otherwise than solely by crushing, screening, separating by
hydrocycloning or a similar technology which uses primarily
size as a criterion, washing, scrubbing, trommelling or
drying or by a combination of 2 or more of those processes)
by the Company in a plant constructed pursuant to a
proposal approved pursuant to an Integration Agreement or
in such other plant as is approved by the Minister after
consultation with the Minister for Mines;
"beneficiated ore" means iron ore (other than manganese ore
and manganiferous ore) that has been concentrated or
upgraded (otherwise than solely by crushing, screening,
separating by hydrocycloning or a similar technology which
uses primarily size as a criterion, washing, scrubbing,
trommelling or drying, or by a combination of 2 or more of
those processes) by the Company in a plant constructed
pursuant to a proposal approved pursuant to an Integration
Agreement or in such other plant as is approved by the
Minister after consultation with the Minister for Mines and
"beneficiation" and "beneficiate" have corresponding
meanings;
"East Angelas Deposit" has the meaning given in subclause
(3) of Clause 15;
"fine ore" means iron ore (not being beneficiated ore,
beneficiated manganese ore or beneficiated manganiferous
ore) which is screened and will pass through a 6.3 millimetre
mesh screen;
"Government agreement" has the meaning given in the
Government Agreements Act 1979 (WA);
"Integration Agreement" means:
page 62
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
As at 15 Dec 2011
(a)
the agreement approved by and scheduled to the Iron
Ore (Hamersley Range) Agreement Act 1963, as from
time to time added to, varied or amended; or
(b)
the agreement approved by and scheduled to the Iron
Ore (Robe River) Agreement Act 1964, as from time to
time added to, varied or amended; or
(c)
the agreement approved by and scheduled to the Iron
Ore (Hamersley Range) Agreement Act Amendment
Act 1968, as from time to time added to, varied or
amended; or
(d)
the agreement ratified by and scheduled to the Iron
Ore (Mount Bruce) Agreement Act 1972, as from time
to time added to, varied or amended; or
(e)
the agreement ratified by and scheduled to the Iron
Ore (Hope Downs) Agreement Act 1992, as from time
to time added to, varied or amended; or
(f)
the agreement ratified by and scheduled to the Iron
Ore (Yandicoogina) Agreement Act 1996, as from
time to time added to, varied or amended; or
(g)
the agreement approved by and scheduled to the Iron
Ore (Mount Newman) Agreement Act 1964, as from
time to time added to, varied or amended; or
(h)
the agreement approved by and scheduled to the Iron
Ore (Mount Goldsworthy) Agreement Act 1964, as
from time to time added to, varied or amended; or
(i)
the agreement ratified by and scheduled to the Iron
Ore (Goldsworthy-Nimingarra) Agreement Act 1972,
as from time to time added to, varied or amended; or
(j)
the agreement authorised by and as scheduled to the
Iron Ore (McCamey's Monster) Agreement
Authorisation Act 1972, as from time to time added to,
varied or amended; or
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 63
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
(k)
the agreement ratified by and scheduled to the Iron
Ore (Marillana Creek) Agreement Act 1991, as from
time to time added to, varied or amended;
"Integration Proponent" means in relation to an Integration
Agreement, "the Company" or "the Joint Venturers" as the
case may be as defined in, and for the purpose of, that
Integration Agreement;
"iron ore" includes, without limitation, beneficiated ore,
beneficiated manganese ore and beneficiated manganiferous
ore;
"laws relating to native title" means laws applicable from
time to time in the said State in respect of native title and
includes the Native Title Act 1993 (Commonwealth);
"loading port" means:
(a)
the Port of Dampier; or
(b)
Port Walcott; or
(c)
the Port of Port Hedland; or
(d)
any other port constructed after the variation date
under an Integration Agreement; or
(e)
such other port approved by the Minister at the request
of the Company from time to time for the shipment of
iron ore from the mining lease;
"lump ore" means iron ore (not being beneficiated ore,
beneficiated manganese ore or beneficiated manganiferous
ore) which is screened and will not pass through a 6.3
millimetre mesh screen;
"metallised agglomerates" means products resulting from the
reduction of iron ore by any method whatsoever and having
an iron content of not less than 85%;
"Related Entity" means a company in which:
page 64
(a)
as at 21 June 2010; and
(b)
after 21 June 2010, with the approval of the Minister,
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
a direct or (through a subsidiary or subsidiaries within the
meaning of the Corporations Act 2001 (Commonwealth))
indirect shareholding of 20% or more is held by:
(c)
Rio Tinto Limited ABN 96 004 458 404; or
(d)
BHP Billiton Limited ABN 49 004 028 077; or
(e)
those companies referred to in paragraphs (c) and (d)
in aggregate;
"variation date" means the date on which clause 4 of the
variation agreement made on or about 17 November 2010
between the State and the Company comes into operation;
and
(c)
As at 15 Dec 2011
in the definition of "agreed or determined" by:
(i)
inserting "(following, if requested by the Company,
consultation with the Company and its consultants in
regard thereto" after "as determined by the Minister";
(ii)
deleting "assessed at" and substituting "assessed on";
and
(iii)
deleting all the words after "shall have regard to"
and substituting a colon followed by:
"(i)
in the case of iron ore initially sold at cost
pursuant to the proviso to clause 12(10), the
prices for that type of iron ore prevailing at
the time the price for such iron ore was
agreed between the arm's length purchaser
referred to in paragraph (iii) of that proviso
and the seller in relation to the type of sale
and the relevant international seaborne iron
ore market into which such iron ore was sold
and where prices beyond the deemed f.o.b.
point are being considered the deductions
mentioned in the definition of f.o.b. value;
and
(ii)
in any other case, the prices for that type of
iron ore prevailing at the time the price for
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 65
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
such iron ore was agreed between the
Company and the purchaser in relation to the
type of sale and the market into which such
iron ore was sold and where prices beyond
the deemed f.o.b. point are being considered
the deductions mentioned in the definition of
f.o.b. value;";
(d)
in the definition of "f.o.b. value" by:
(i)
in paragraph (i):
(A)
inserting "subject to paragraph (ii)," before "in
the case of";
(B)
deleting "assessed at" and substituting "assessed
on"; and
(C)
inserting "relevant" before "loading port" in
both places where it appears;
(ii)
remembering paragraph (ii) as paragraph (iii); and
(iii)
inserting after paragraph (i) the following new
paragraph:
"(ii)
page 66
in the case of iron ore initially sold at cost
pursuant to the proviso to clause 12(10), the
price which is payable for the iron ore by the
arm's length purchaser as referred to in
paragraph (iii) of that proviso or, where the
Minister considers, following advice from the
appropriate Government department, that the
price payable in respect of the iron ore does
not represent a fair and reasonable market
value for that type of iron ore assessed on an
arm's length basis in the relevant international
seaborne iron ore market, such amount as is
agreed or determined as representing such a
fair and reasonable market value, less all
duties, taxes, costs and charges referred to in
paragraph (i) above"; and
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
(e)
(2)
in the definition of "mining lease" by deleting "Clause 14"
and substituting "Clauses 12A, 14 or 15(3)";
by inserting after clause 2 the following new clause:
"2A. Nothing in this Agreement shall be construed:
(3)
(4)
(a)
to exempt the Company from compliance with any
requirement in connection with the protection of the
environment arising out of or incidental to its
activities under this Agreement that may be made by
or under the EP Act; or
(b)
to exempt the State or the Company from compliance
with or to require the State or the Company to do
anything contrary to any laws relating to native title or
any lawful obligation or requirement imposed on the
State or the Company as the case may be pursuant to
any laws relating to native title; or
(c)
to exempt the Company from compliance with the
provisions of the Aboriginal Heritage Act 1972
(WA).";
in clause 10(1):
(a)
by inserting "from the mining lease (other than from the
East Angelas Deposit)" after "desires to produce";
(b)
by deleting "proposals submitted pursuant to subclause (1)
of Clause 7" and substituting "approved proposals
(including for the development of the East Angelas
Deposit)"; and
(c)
by inserting "(other than for the development of the East
Angelas Deposit) or under Clause 15C)" after "activities
carried on pursuant to this Agreement";
by inserting the following sentence at the end of clause 10(1):
"The provisions of clause 7(4)(b) shall apply to proposals
submitted pursuant to this clause.";
(5)
by deleting subclause (2) of clause 10 and substituting the
following new subclauses:
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 67
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
"(2) A proposal may with the consent of the Minister (except in
relation to an Integration Agreement) and that of any parties
concerned (being in respect of an Integration Agreement the
Integration Proponent for that agreement) provide for the use
by the Company of any works installations or facilities
constructed or established under a Government agreement.
(6)
(3)
Each of the proposals pursuant to subclause (1) may with the
approval of the Minister or, if so required by the Minister,
shall be submitted separately and in any order as to any
matter or matters in respect of which such proposals are
required to be submitted.
(4)
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.
(5)
The Company may withdraw its proposals pursuant to
subclause (1) at any time before approval thereof, or where
any decision in respect thereof is referred to arbitration as
referred to in clause 10A, within 3 months after the award by
notice to the Minister that it shall not be proceeding with the
same.";
by inserting after clause 10 the following new clauses:
"Consideration of Company's proposals under clause 10
10A. (1)
In respect of each proposal pursuant to subclause (1)
of Clause 10 the Minister shall:
(a)
page 68
subject to the limitations set out below, refuse
to approve the proposal (whether it requests the
grant of new tenure or not) if the Minister is
satisfied on reasonable grounds that it is not in
the public interest for the proposal to be
approved; or
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
(b)
approve of the proposal without qualification or
reservation; or
(c)
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 Clause 10(1)
not covered by the said proposal; or
(d)
require as a condition precedent to the giving of
his approval to the said proposal that the
Company make such alteration thereto or
comply with such conditions in respect thereto
as he thinks reasonable, and in such a case the
Minister shall disclose his reasons for such
conditions,
PROVIDED
ALWAYS
that
where
implementation of any proposals hereunder has
been approved pursuant to the EP Act subject to
conditions or procedures, any approval or
decision of the Minister under this clause shall
if the case so requires incorporate a requirement
that the Company make such alterations to the
proposals as may be necessary to make them
accord with those conditions or procedures.
In considering whether to refuse to approve a proposal
the Minister is to assess whether or not the
implementation of the proposal by itself, or together
with any one or more of the other submitted
proposals, will:
As at 15 Dec 2011
(i)
detrimentally affect economic and orderly
development in the said State, including
without limitation, infrastructure development
in the said State; or
(ii)
be contrary to or inconsistent with the planning
and development policies and objectives of the
State; or
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 69
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
(iii)
detrimentally affect the rights and interests of
third parties; or
(iv)
detrimentally affect access to and use by others
of the lands the subject of any grant or
proposed grant to the Company.
The right to refuse to approve a proposal conferred by
paragraph (a) may only be exercised in respect of a
proposal where the Minister is satisfied on reasonable
grounds that a purpose of the proposal is the
integrated use of works installations or facilities (as
defined in subclause (7) of clause 15A for the purpose
of that clause) as contemplated by clause 15A. It may
not be so exercised in respect of a proposal if
pursuant to clause 10B(5) the Minister, prior to the
submission of the proposal, advised the Company in
writing that the Minister has no public interest
concerns (as defined in that clause) with the single
preferred development (as referred to in clause
10B(5)(a)) the subject of the submitted proposals and
those proposals are consistent (as to their substantive
scope and content) with the information provided to
the Minister pursuant to clause 10B(5) in respect of
that single preferred development.
page 70
(2)
The Minister shall within 2 months after receipt of
proposals pursuant to clause 10(1) give notice to the
Company of his decision in respect to the proposals,
PROVIDED THAT where a proposal is to be
assessed under Part IV of the EP Act the Minister
shall only give notice to the Company of his decision
in respect to the proposal within 2 months after service
on him of an authority under section 45(7) of the EP
Act.
(3)
If the decision of the Minister is as mentioned in
either of paragraphs (a), (c) or (d) of subclause (1) the
Minister shall afford the Company full opportunity to
consult with him and should it so desire to submit
new or revised proposals either generally or in respect
to some particular matter.
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
(4)
If the decision of the Minister is as mentioned in
either of paragraphs (c) or (d) of subclause (1) and the
Company considers that the decision is unreasonable
the Company within 2 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. A decision of
the Minister under paragraph (a) of subclause (1) shall
not be referable to arbitration under this Agreement.
(5)
If by the award made on the arbitration pursuant to
subclause (4) the dispute is decided in favour of the
Company the decision shall take effect as a notice by
the Minister that he is so satisfied with and approves
the matter or matters the subject of the arbitration.
(6)
The Company shall implement the approved
proposals in accordance with the terms thereof.
(7)
Notwithstanding Clause 34, the Minister may during
the implementation of approved proposals approve
variations to those proposals.
Notification of possible proposals
10B. (1)
If the Company, upon completion of a pre-feasibility
study in respect of any matter that would require the
submission and approval of proposals pursuant to this
Agreement (being proposals which will have as their
purpose, or one of their purposes, the integrated use
of works installations or facilities as contemplated by
Clause 15A) for the matter to be undertaken, intends
to further consider the matter with a view to possibly
submitting such proposals it shall promptly notify the
Minister in writing giving reasonable particulars of the
relevant matter.
(2)
Within one (1) month after receiving the notification
the Minister may, if the Minister so wishes, inform
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 71
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
the Company of the Minister's views of the matter at
that stage.
page 72
(3)
If the Company is informed of the Minister's views, it
shall take them into account in deciding whether or
not to proceed with its consideration of the matter and
the submission of proposals.
(4)
Neither the Minister's response nor the Minister
choosing not to respond shall in any way limit,
prejudice or otherwise affect the exercise by the
Minister of the Minister's powers, or the performance
of the Minister's obligations, under this Agreement or
otherwise under the laws from time to time of the said
State.
(5)
(a)
This subclause applies where the Company has
settled upon a single preferred development a
purpose of which is the integrated use of works
installations or facilities (as defined in
subclause (7) of Clause 15A for the purpose of
that clause) as contemplated by Clause 15A.
(b)
For the purpose of this subclause "public
interest concerns" means any concern that
implementation of the single preferred
development or any part of it will:
(i)
detrimentally affect economic and
orderly development in the said State,
including
without
limitation,
infrastructure development in the said
State; or
(ii)
be contrary to or inconsistent with the
planning and development policies and
objectives of the State; or
(iii)
detrimentally affect the
interests of third parties; or
(iv)
detrimentally affect access to and use by
others of lands the subject of any grant
or proposed grant to the Company.
Version 01-e0-05
Published on www.legislation.wa.gov.au
rights
and
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
(c)
At any time prior to submission of proposals the
Company may give to the Minister notice of its
single preferred development and request the
Minister to confirm that the Minister has no
public interest concerns with that single
preferred development.
(d)
The Company shall furnish to the Minister with
its notice reasonable particulars of the single
preferred development including, without
limitation:
(i)
as to the matters that would be required to
be addressed in submitted proposals; and
(ii)
its progress in undertaking any feasibility
or other studies or matters to be completed
before submission of proposals; and
(iii)
its timetable for obtaining required
statutory and other approvals in relation to
the submission and approval of proposals;
and
(iv)
its tenure requirements.
(e)
If so required by the Minister, the Company will
provide to the Minister such further information
regarding the single preferred development as the
Minister may require from time to time for the
purpose of considering the Company's request
and also consult with the Minister or
representatives or officers of the State in regard
to the single preferred development.
(f)
Within 2 months after receiving the notice (or if
the Minister requests further information, within
2 months after the provision of that information)
the Minister must advise the Company:
(i)
As at 15 Dec 2011
that the Minister has no public interest
concerns with the single preferred
development; or
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 73
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
(ii)
(g)
that he is not then in a position to advise
that he has no public interest concerns
with the single preferred development
and the Minister's reasons in that regard.
If the Minister gives the advice mentioned in
paragraph (f)(ii) the Company may, should it so
desire, give a further request to the Minister in
respect of a revised or alternate single preferred
development and the provisions of this subclause
shall apply mutatis mutandis thereto.";
(7)
in clause 11(1) by inserting "for the initial mining project referred
to in Clause 7 or for the East Angelas Deposit project referred to in
subclause (4) of Clause 15" after "exceed 150";
(8)
in clause 11(2):
(9)
(a)
by in paragraph (a) inserting "or in respect of the East
Angelas Deposit the matters mentioned in paragraphs (a)(m) of subclause (4) of Clause 15" after "Clause 7"; and
(b)
by in paragraph (c) inserting "or under subclause (8) of
Clause 15" after "Clause 8";
in clause 11(3):
(a)
by in paragraph (a):
(i)
inserting "and such increase or plan relates to or
primarily relates to the initial mining project referred
to in Clause 7" after "in principle a proposed
increase or plan"; and
(ii)
in subparagraph (i) inserting "approval" after "in
principle";
(b)
by redesignating the existing paragraph (b) as paragraph (c);
(c)
by inserting the following new paragraph (b):
"(b)
page 74
If the Minister approves a proposed increase or
plan and such increase or plan relates to or
primarily to the East Angelas Deposit project
referred to in subclause (4) of Clause 15:
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
(d)
(i)
if it has not already submitted pursuant to
subclause (4) of Clause 15 all of its
proposals for its East Angelas Deposit
project, submit to the Minister pursuant to
subclause (4) of Clause 15 detailed
proposals in respect of the proposed
increase or plan as part of the Company's
proposals for its East Angelas Deposit
project and in accordance with any
conditions of the Minister's in principle
approval; or
(ii)
if it has already submitted pursuant to
subclause (4) of Clause 15 all of its proposals
for its East Angelas Deposit project, within six
(6) months of the Minister's in principle
approval submit to the Minister detailed
proposals in respect of the proposed increase
or plan in accordance with any conditions of
that approval otherwise that approval shall
lapse."; and
by in paragraph (c) deleting the second sentence and
substituting the following sentence:
"The provisions of:
(i)
subclause (4)(b) of Clause 7, subclauses (2) to (5)
of Clause 10 and of Clause 10A shall apply to
detailed proposals submitted pursuant to paragraph
(a)(ii) of this subclause;
(ii)
subclauses (4) to (14) of Clause 15 shall apply
mutatis mutandis to detailed proposals regarding a
proposed increase or plan referred to in paragraph
(b)(i) of this subclause; and
(iii)
subclause (15)(b) of Clause 15 shall apply to detailed
proposals submitted pursuant to paragraph (b)(ii) of
this subclause.";
(10) in clause 11(4) by deleting "pursuant to Clause 8" and substituting
"as referred to in";
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 75
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
(11) by inserting after clause 12(8) the following new subclauses:
"Blending of iron ore
(9)
(a)
(b)
page 76
The Company may blend iron ore mined from the
mining lease with any:
(i)
iron ore mined from a mining tenement or other
mining title granted under, or pursuant to, an
Integration Agreement; or
(ii)
iron ore mined from a Mining Act 1978 mining
lease located in, or proximate to, the Pilbara
region of the said State which is held by a
Related Entity alone or with a third party or
parties (excluding any mining lease granted
pursuant to, or held under, a Government
agreement); or
(iii)
with the prior approval of the Minister, iron ore
mined in, or proximate to, the Pilbara region of
the said State under a Government agreement
(excluding an Integration Agreement); or
(iv)
with the prior approval of the Minister, iron ore
mined by a third party from a Mining Act 1978
mining lease located in, or proximate to, the
Pilbara region of the said State (excluding
under a Government agreement) which has
been purchased by an Integration Proponent
from the third party.
The authority given under paragraph (a) is subject to
the Minister being reasonably satisfied that there are
in place adequate systems and controls for the correct
apportionment of the quantities of iron ore being
blended as between each of the sources referred to in
paragraph (a), which systems and controls monitor
production, processing, transportation, stockpiling and
shipping of all such iron ore. If at any time the
Minister ceases to be so satisfied he may, after
consulting the Company and provided the Company
has not within three (3) months after the
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
commencement of such consultation addressed the
matters of concern to the Minister to his satisfaction,
by notice in writing to the Company suspend the
above authority in respect of the relevant blending
arrangements until he is again satisfied in terms of
this paragraph (b).
(c)
If any blending of iron ore occurs as contemplated by
this subclause, then for the purposes of Clauses 13(1)
and (2)(a), a portion of the iron ore so blended being
equal to the proportion that the amount of iron ore
from the mining lease used in the admixture of iron
ore bears to the total amount of iron ore so blended,
shall be deemed to be produced from the mining lease.
Shipment of and price for iron ore
(10) The Company shall during the continuance of this
Agreement ship, or procure to be shipped, all iron ore mined
from the mining lease and sold:
(a)
from a wharf in a loading port which has been
constructed under an Integration Agreement; or
(b)
with the Minister's approval given before submission
of proposals in that regard, from any other wharf in a
loading port which wharf has been constructed under
another Government agreement (excluding the
Integration Agreements),
and use its best endeavours to obtain for all iron ore from the
mining lease the best price possible having regard having
regard to market conditions from time to time prevailing;
PROVIDED THAT iron ore from the mining lease may be
sold by the Company prior to or at the time of the shipment
under this Agreement at a price equal to the production costs
in respect of that iron ore up to the point of sale, if:
As at 15 Dec 2011
(i)
the Minister is notified before the time of shipment
that the sale is to be made at cost, providing details of
the proposed sale; and
(ii)
the Minister is notified of the proposed arm's length
purchaser in the relevant international seaborne iron
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 77
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
ore market of the iron ore the subject of the proposed
sale at cost; and
(iii)
there is included in the return lodged pursuant to
clause 13(2) particulars of the transaction in which the
ore sold at cost was subsequently purchased in the
relevant international seaborne iron ore market by an
arm's length purchaser specifying the purchaser, the
seller, the price and the date when the sale was agreed
between the arm's length purchaser and the seller; and
(iv)
the arm's length purchaser referred to in (iii) above is
not then a designated purchaser as referred to below.
If required by notice in writing from the Minister, the
Company must provide the Minister within 30 days after
receiving the notice with evidence that the transaction as
included in the return pursuant to paragraph (b)(iii) above
was a sale in the relevant international seaborne iron ore
market to an independent participant in that market. If no
evidence is provided or the Minister is not so satisfied on the
evidence provided or other information obtained, the
Minister may by notice to the Company designate the
purchaser to be a designated purchaser and that designation
will remain in force unless and until lifted by further notice
from the Minister to the Company. For the avoidance of
doubt, and without limiting the Minister's discretion above,
the parties acknowledge that marketing entities forming part
of a corporate group that includes at the time a person (alone
or together with other persons) that comprise the Company
(or part of a parallel corporate group if that person is part of
a dual-listed corporate structure) are not independent
participants for the purposes of this subclause.";
(12) by inserting after clause 12 the following new clause:
"Additional areas
12A. (1)
page 78
Notwithstanding the provisions of the Mining Act
1904 or the Mining Act 1978 the Company may from
time to time during the currency of this Agreement
apply to the Minister for areas held by the Company
or an associated company under a mining tenement
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
granted under the Mining Act 1978 (excluding the
exploration licences referred to in subclause (3) of
Clause 15) to be included in the mining lease but so
that the total area of the mining lease, any land that
may be included in the mining lease pursuant to this
Agreement and of any other mineral lease or mining
lease granted under or pursuant to this Agreement (as
aggregated) shall not at any time exceed 777 square
kilometres. 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 the
mining lease by endorsement subject to such of the
conditions of the surrendered mining tenement as the
Minister for Mines determines but otherwise subject to
the same terms covenants and conditions as apply to
the mineral lease (with such apportionment of rents as
is necessary) and notwithstanding that the survey of
such additional land has not been completed but
subject to correction to accord with the survey when
completed at the Company's expense.
As at 15 Dec 2011
(2)
The Minister may approve, upon application by the
Company from time to time, for the total area referred
to in subclause (1) to be increased up to a limit not
exceeding 1,000 square kilometres.
(3)
The Company shall not mine or carry out other
activities (other than exploration, bulk sampling and
testing) on any area or areas added to the mining lease
pursuant to subclause (1) of this Clause unless and
until proposals with respect thereto are approved or
determined pursuant to the subsequent provisions of
this Clause.
(4)
If the Company desires to commence mining of iron
ore or to carry out any other activities (other than as
aforesaid) on the said areas it shall give notice of such
desire to the Minister and shall within 2 months of the
date of such notice (or thereafter within such extended
time as the Minister may allow as hereinafter
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 79
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
provided) and subject to the provisions of this
Agreement submit to the Minister to the fullest extent
reasonably practicable its detailed proposals (which
proposals shall include plans where practicable and
specifications where reasonably required by the
Minister) with respect to such mining or other
activities as additional proposals pursuant to Clauses
10 or 11 as the case may be.";
(13) in clause 13(1):
(a)
in paragraph (iv), by deleting "3.25%" and inserting "5%";
and
(b)
by inserting at the end of clause 13(1) the following new
paragraphs:
"Where beneficiated ore is produced from an admixture of
iron ore from the mining lease and other iron ore a portion
(and a portion only) of the beneficiated ore so produced
being equal to the proportion that the amount of iron in the
iron ore from the mining lease used in the production of
beneficiated ore bears to the total amount of iron in the iron
ore so used shall be deemed to be produced from iron ore
from the mining lease.
Where for the purpose of determining f.o.b. value it is
necessary to convert an amount or price to Australian
currency, the conversion is to be calculated using a rate
(excluding forward hedge or similar contract rates) that has
been approved by the Minister at the request of the Company
and in the absence of such request as determined by the
Minister to be a reasonable rate for the purpose.
The provisions of regulation 85AA (Effect of GST etc on
royalties) of the Mining Regulations 1981 (WA) shall apply
mutatis mutandis to the calculation of royalties under this
clause.";
(14) in clause 13(2):
(a)
page 80
by inserting in paragraph (a) "and also showing such other
information in relation to the abovementioned iron ore as
the Minister may from time to time reasonably require in
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
regard to, and to assist in verifying, the calculation of
royalties in accordance with subclause (1)" after "the due
date of the return";
(b)
by in paragraph (a) deleting all words after "on the basis of"
and substituting a colon followed by:
"(i)
in the case of iron ore initially sold at cost pursuant to
the proviso to clause 12(10), at the price notified
pursuant to paragraph (iii) of that proviso;
(ii)
in any other case, invoices or provisional invoices (as
the case may be) rendered by the Company to the
purchaser (which invoices the Company shall render
without delay simultaneously furnishing copies
thereof to the Minister) of such iron ore or on the basis
of estimates as agreed or determined,
and shall from time to time in the next following appropriate
return and payment make (by return and by cash) all such
necessary adjustments (and give to the Minister full details
thereof) when the f.o.b. value shall have been finally
calculated, agreed or determined;";
(c)
(d)
As at 15 Dec 2011
in paragraph (b):
(i)
by deleting "books of account and records of the
Company including contracts relative" and
substituting "books, records, accounts, documents
(including contracts), data and information of the
Company stored by any means relating";
(ii)
by inserting "(in whatever form)" after "copies or
extracts";
(iii)
by inserting "the subject of royalty" before each
reference to "hereunder"; and
(iv)
by deleting "and" after the semi colon; and
by in paragraph (c) deleting the full stop and substituting ";
and" and inserting after paragraph (c) the following new
paragraph:
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 81
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
"(d) cause to be produced in Perth in the said State all
books, records, accounts, documents (including
contracts), data and information of the kind referred to
in paragraph (n) to enable the exercise of rights by the
Minister or the Minister's nominee under paragraph
(n), regardless of the location in which or by whom
those books, records, accounts, documents (including
contracts), data and information are stored from time
to time.";
(15) in clause 15(1):
(a)
by in paragraph (a) inserting "and subclause (3)" after "this
subclause"; and
(b)
by in paragraphs (a) and (b) deleting "2008" and substituting
"2012";
(16) by deleting subclause (3) of Clause 15 and substituting the
following new subclauses:
"(3) Notwithstanding the provisions of the Mining Act the
Company may on or before 31 December 2012 (or such
later date as the parties may agree) apply to the Minister
for all exploration licences held by it at the time of
application within Area C (and being the subject of
subclause (1)) to be included in the mining lease and
provided that the exploration licences have been explored
to the satisfaction of the State the Minister for Mines
shall, subject to the surrender by the Company of the
exploration licences concerned include the land the
subject thereof (herein called "the East Angelas
Deposit") in the mining lease by endorsement on the
mining lease subject to such of the conditions of the
surrendered exploration licences as the Minister for
Mines determines but otherwise subject to the same
terms and covenants and conditions as apply to the
mining lease (with such apportionment of rents as is
necessary) and notwithstanding that the survey of the
East Angelas Deposit has not been completed (but subject
to correction to accord with the survey when completed at
the Company's expense).
page 82
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
(4)
The Company shall subject to the EP Act, Clause 11 and
the other provisions of this Agreement submit to the
Minister on or before the date occurring 2 years after the
East Angelas Deposit is included in the mining lease to
the fullest extent reasonably practicable its detailed
proposals (including plans where practicable and
specifications where reasonably required by the Minister
and any other details normally required by a local
government in whose area any works are to be situated)
with respect to the production of iron ore from the East
Angelas Deposit and the transport and shipment of iron
ore produced which proposals shall make provisions for
the Company's' workforce and associated population
required to enable the Company to mine and recover iron
ore from the East Angelas Deposit and transport and ship
the iron ore and shall include the location, area, lay-out,
design, quantities, materials and time programme for the
commencement and completion of construction or
provision (as the case may be) of each of the following
matters, namely:
(a)
the mining and recovery of iron ore including mining
crushing screening handling transport and storage of iron
ore and plant facilities and any processing of iron ore
proposed to be carried out;
(b)
roads within the mining lease and roads serving the
mining lease;
(c)
temporary accommodation and ancillary facilities for the
mine camp workforce and housing and other appropriate
accommodation and facilities elsewhere for the
Company's' workforce, in each case engaged in the East
Angelas Deposit project;
(d)
management of vehicles on the mine site;
(e)
water supply;
(f)
power supply;
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 83
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
(g)
transportation of iron ore by conveyor or, subject to
Clause 11, by rail way or rail spur line constructed under
an Integration Agreement;
(h)
subject to Clauses 11 and 12(10), storage and ship
loading of iron ore;
(i)
mine aerodrome on or in the vicinity of the mining lease
and any other aerodrome facilities and services;
(j)
any other works installations or facilities or services
desired by the Company;
(k)
use of local labour professional services manufacturers
suppliers contractors and materials and measures to be
taken with respect to the engagement and training of
employees by the Company, its agents and contractors;
(l)
any leases, licences or other tenures of land required from
the State; and
(m)
an environmental management programme as to
measures to be taken, in respect of the Company's
activities under this Agreement, for the rehabilitation and
the protection and management of the environment.
(5)
A proposal may with the consent of the Minister (except in
relation to an Integration Agreement) and that of any parties
concerned (being in respect of an Integration Agreement the
Integration Proponent for that agreement) provide for the use by
the Company of any works installations or facilities constructed or
established under a Government agreement.
(6)
Each of the proposals pursuant to subclause (4) may with the
approval of the Minister or, if so required by the Minister, shall be
submitted separately and in any order as to any matter or matters in
respect of which such proposals are required to be submitted.
(7)
At the time when the Company submits the said proposals it shall:
(a)
page 84
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
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
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; and
(b)
(8)
furnish to the Minister's reasonable satisfaction evidence of:
(i)
marketing arrangements demonstrating the Company's
ability to sell iron ore in accordance with the said
proposals;
(ii)
the availability of finance necessary for the fulfilment
of the operations to which the said proposals refer;
and
(iii)
the readiness of the Company to embark upon and
proceed to carry out the operations referred to in the
said proposals.
In respect of each proposal pursuant to subclause (4) the Minister
shall:
(a)
subject to the limitations set out below, refuse to approve
the proposal (whether it requests the grant of new tenure or
not) if the Minister is satisfied on reasonable grounds that it
is not in the public interest for the proposal to be approved;
or
(b)
approve of the proposal without qualification or reservation;
or
(c)
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 (4) not covered by the said proposal; or
(d)
require as a condition precedent to the giving of his approval
to the said proposal that the Company make such alteration
thereto or comply with such conditions in respect thereto as
he thinks reasonable, and in such a case the Minister shall
disclose his reasons for such conditions,
PROVIDED ALWAYS that where implementation of any
proposals hereunder has been approved pursuant to the EP Act
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 85
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
subject to conditions or procedures, any approval or decision of the
Minister under this clause shall if the case so requires incorporate a
requirement that the Company make such alterations to the
proposals as may be necessary to make them accord with those
conditions or procedures.
In considering whether to refuse to approve a proposal the Minister
is to assess whether or not the implementation of the proposal by
itself, or together with any one or more of the other submitted
proposals, will:
(i)
detrimentally affect economic and orderly development in
the said State, including without limitation, infrastructure
development in the said State; or
(ii)
be contrary to or inconsistent with the planning and
development policies and objectives of the State; or
(iii)
detrimentally affect the rights and interests of third
parties; or
(iv)
detrimentally affect access to and use by others of the
lands the subject of any grant or proposed grant to the
Company.
The right to refuse to approve a proposal conferred by paragraph
(a) may only be exercised in respect of a proposal where the
Minister is satisfied on reasonable grounds that a purpose of the
proposal is the integrated use of works installations or facilities (as
defined in subclause (7) of clause 15A for the purpose of that
clause) as contemplated by clause 15A. It may not be so exercised
in respect of a proposal if pursuant to clause 10B(5) the Minister,
prior to the submission of the proposal, advised the Company in
writing that the Minister has no public interest concerns (as
defined in that clause) with the single preferred development (as
referred to in clause 10B(5)(a)) the subject of the submitted
proposals and those proposals are consistent (as to their
substantive scope and content) with the information provided to
the Minister pursuant to clause 10B(5) in respect of that single
preferred development.
(9)
page 86
The Minister shall within 2 months after receipt of proposals
pursuant to subclause (4) give notice to the Company of his
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
decision in respect to the proposals, PROVIDED THAT where a
proposal is to be assessed under Part IV of the EP Act the Minister
shall only give notice to the Company of his decision in respect to
the proposal within 2 months after service on him of an authority
under section 45(7) of the EP Act.
(10) If the decision of the Minister is as mentioned in either of
paragraphs (a), (c) or (d) of subclause (8) the Minister shall afford
the Company full opportunity to consult with him and should it so
desire to submit new or revised proposals either generally or in
respect to some particular matter.
(11) If the decision of the Minister is as mentioned in either of
paragraphs (c) or (d) of subclause (8) and the Company considers
that the decision is unreasonable the Company within 2 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 (8)
shall not be referable to arbitration hereunder. A decision of the
Minister under paragraph (a) of subclause (8) shall not be referable
to arbitration under this Agreement.
(12) If by the award made on the arbitration pursuant to subclause (11)
the dispute is decided in favour of the Company the decision shall
take effect as a notice by the Minister that he is so satisfied with
and approves the matter or matters the subject of the arbitration.
(13) The Company shall implement the approved proposals in
accordance with the terms thereof.
(14) Notwithstanding Clause 34, the Minister may during the
implementation of approved proposals approve variations to those
proposals.
(15) (a)
As at 15 Dec 2011
Subject to Clause 11, if the Company at any time during the
continuance of this Agreement desires to produce more iron
ore from the East Angelas Deposit than the tonneage of iron
ore for transportation from the mining lease approved under
approved proposals or to significantly modify expand or
otherwise vary its activities in relation to the mining of the
East Angelas Deposit beyond those activities specified in
any approved proposals it shall give notice of such desire to
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 87
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
the Minister and shall within 2 months thereafter 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 (4) as the
Minister may require.
(b)
The provisions of subclauses (5) to (14) 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 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.";
(17) by inserting after clause 15 the following new clauses:
"Integrated use of works installations or facilities under the
Integration Agreements
15A. (1)
Subject to subclauses (2) to (7) of this Clause and to
the other provisions of this Agreement, the Company
may during the continuance of this Agreement:
(a)
page 88
use any existing or new works installations or
facilities constructed or held:
(i)
under this Agreement; or
(ii)
under any other Integration Agreement
which are made available for such use
and during the continuance of such
Integration Agreement; or
(iii)
with the approval of the Minister, under a
Government agreement (excluding an
Integration Agreement) which are made
available for such use and during the
continuance of that agreement,
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
(wholly or in part) in the activities of the
Company carried on by it pursuant to this
Agreement including, without limitation, as
part of those activities, transporting by railway
and shipping from a loading port and
undertaking any ancillary and incidental
activities in doing so (including, without
limitation, blending permitted by Clause 12(9))
of:
(b)
As at 15 Dec 2011
(A)
iron ore mined from a Mining Act 1978
mining lease located in, or proximate to,
the Pilbara region of the said State which
is held by a Related Entity alone or with a
third party or parties (excluding any
mining lease granted pursuant to, or held
under, a Government agreement); or
(B)
with the prior approval of the Minister,
iron ore mined in, or proximate to, the
Pilbara region of the said State under a
Government agreement (excluding an
Integration Agreement); or
(C)
with the prior approval of the Minister,
iron ore mined by a third party from a
Mining Act 1978 mining lease located in,
or proximate to, the Pilbara region of the
said
State
(excluding
under
a
Government agreement) which has been
purchased by the Company from the third
party; or
(D)
iron ore mined under an Integration
Agreement;
make any existing or new works installations or
facilities constructed or held under this
Agreement available for use (wholly or partly)
by another Integration Proponent during the
continuance of its Integration Agreement in the
activities of that Integration Proponent carried
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 89
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
on by it pursuant to its Integration Agreement
including, without limitation, as part of those
activities, transporting by railway and shipping
from a loading port and undertaking any
ancillary and incidental activities in doing so
(including, without limitation, blending
permitted by that Integration Agreement) of:
(c)
(i)
iron ore mined from a Mining Act 1978
mining lease located in, or proximate to,
the Pilbara region of the said State which
is held by a Related Entity alone or with a
third party or parties (excluding any
mining lease granted pursuant to, or held
under, a Government agreement); or
(ii)
with the prior approval of the Minister (as
defined in that Integration Agreement),
iron ore mined in, or proximate to, the
Pilbara region of the said State under a
Government agreement (excluding an
Integration Agreement); or
(iii)
with the prior approval of the Minister (as
defined in that Integration Agreement),
iron ore mined by a third party from a
Mining Act 1978 mining lease located in,
or proximate to, the Pilbara region of the
said
State
(excluding
under
a
Government agreement) which has been
purchased by that Integration Proponent
from the third party; or
(iv)
iron ore mined under an Integration
Agreement;
make any existing or new works installations or
facilities constructed or held under this
Agreement available for use (wholly or partly)
in connection with operations under:
(i)
page 90
a Mining Act 1978 mining lease located
in, or proximate to, the Pilbara region of
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
the said State, for iron ore, which is held
by a Related Entity alone or with a third
party or parties (excluding any mining
lease granted pursuant to, or held under a
Government agreement); or
(ii)
As at 15 Dec 2011
with the approval of the Minister, a
Government agreement (other than an
Integration Agreement) for the mining of
iron ore in, or proximate to, the Pilbara
region of the said State;
(d)
subject to subclause (2), under this Agreement
and for the purpose of any use or making
available for use referred to in paragraph (a),
(b) or (c) connect any existing or new works
installations or facilities constructed or held
under this Agreement to any existing or new
works installations or facilities constructed or
held under another Integration Agreement;
(e)
subject to subclause (2), under this Agreement
and for the purpose of any use or making
available for use referred to in paragraph (a),
(b) or (c) or making of any connection referred
to in paragraph (d) construct new works
installations or facilities and expand modify or
otherwise vary any existing and new works
installations or facilities constructed or held
under this Agreement;
(f)
allow a railway or rail spur line (not being a
railway or rail spur line constructed or held
under an Integration Agreement) to be
connected to a railway or rail spur line or other
works installations or facilities constructed or
held under this Agreement for the delivery of
iron ore to an Integration Proponent for
transport by railway and shipping from a
loading port (together with any ancillary and
incidental activities in doing so) as part of its
activities under its Integration Agreement; and
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 91
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
(g)
(2)
allow an electricity transmission line (not being
an electricity transmission line constructed or
held under an Integration Agreement) to be
connected to an electricity transmission line
constructed or held under this Agreement for
the supply of electricity permitted to be made
under an Integration Agreement.
(a)
A connection referred to in clause
(1)(d) or construction, expansion, modification
or other variation referred to in subclause (1)(e)
by the Company shall, to the extent not already
authorised under this Agreement as at the
variation date, be regarded as a significant
modification expansion or other variation of the
Company's activities carried on by it pursuant
to this Agreement and may only be made in
accordance with proposals submitted and
approved or determined under this Agreement
in accordance with clauses 10 and 10A or
clauses 11, 15 or 15C as the case may require
and otherwise in compliance with the
provisions of this Agreement and the laws from
time to time of the said State. For the avoidance
of doubt, the parties acknowledge that any use
or making available for use contemplated by
subclause (1)(a), (1)(b) or (1)(c) shall not
otherwise than as required by this paragraph (a)
require the submission and approval of further
proposals under this Agreement.
(b)
The Company shall not be entitled to:
(i)
page 92
submit proposals to construct a port
otherwise than as permitted by clause 11
or to establish harbour or port works
installations or facilities, or to expand
modify or otherwise vary harbour or
works installations or facilities otherwise
than within the boundaries of any port
permitted to be constructed by the
Company pursuant to clause 11 or at or
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
near the town of Port Hedland within the
boundaries of the Port of Port Hedland;
or
As at 15 Dec 2011
(ii)
generate and supply power, take and
supply water or dispose of water
otherwise than in accordance with the
other clauses of this Agreement and
subject to any restrictions contained in
those clauses; or
(iii)
without limiting subparagraphs (i) and
(ii) submit proposals to construct or
establish works installations or facilities
of a type, or to make expansions,
modifications or other variations of
works installations or facilities of a type,
which in the Minister's reasonable
opinion this Agreement, immediately
before the variation date, did not permit
or
contemplate
the
Company
constructing, establishing or making as
the case may be otherwise than for
integration use as contemplated by
subclauses (1)(a), (1)(b) or (1)(c) or as
permitted by clause 15C; or
(iv)
submit proposals to make a connection as
referred to in subclause (1)(d) or a
construction, expansion, modification or
other variation as referred to in subclause
(1)(e) otherwise than on tenure granted
under or pursuant to this Agreement from
time to time or held pursuant to this
Agreement from time to time; or
(v)
submit proposals to make a connection
referred to in subclause (1)(d) or a
construction, expansion, modification or
other variation as referred to in subclause
(1)(e) for the purpose of use as
contemplated by subclause (1)(c)(i), if in
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 93
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
the reasonable opinion of the Minister
the activity which is the subject of the
proposals would give to the holder or
holders of the relevant Mining Act 1978
mining lease the benefit of rights or
powers granted to the Company under
this Agreement, over and above the right
of access to and use of the relevant
works, installations or facilities; or
(vi)
submit proposals to make a connection as
referred to in subclause (1)(d) or a
construction, expansion, modification or
other variation as referred to in subclause
(1)(e) for the purpose of use as
contemplated by subclause (1)(c) and
involving the grant of tenure without the
prior approval of the Minister; or
(vii) submit proposals to assign, sublet,
transfer or dispose of any works
installations or facilities constructed or
held under this Agreement or any leases,
licences, easements or other titles under
or pursuant to this Agreement for any
purpose referred to in this clause.
(c)
page 94
Notwithstanding the provisions of clauses 10A,
11, 15 or 15C, the Minister may defer
consideration of, or a decision upon, a proposal
submitted by the Company for a connection as
referred to in subclause (1)(d) or a construction,
expansion, modification or other variation as
referred to in subclause (1)(e), for the purpose
of use or making available for use as referred to
in subclauses (1)(a) or (1)(b), until relevant
corresponding proposals under the relevant
Integration Agreement have been submitted and
those proposals can be approved under that
Integration Agreement concurrently with the
Minister's approval under this Agreement of the
Company's proposal.
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
(3)
Any use or making available for use as referred to in
subclause (1), or submission of proposals as referred
to in subclause (2), in respect of a Related Entity shall
be subject to the Company first confirming with the
Minister that the Minister is satisfied that the relevant
company is a Related Entity.
(4)
The Company shall give the Minister prior written
notice of any significant change (other than a
temporary one for maintenance or to respond to an
emergency) proposed in its use, or in it making
available for use, works, installations or facilities as
referred to in this clause:
(a)
from that authorised under this Agreement
immediately before the variation date; and
(b)
subsequently from that previously notified to
the Minister under this subclause,
as soon as practicable before such change occurs.
The Company shall also keep the Minister fully
informed with respect to any proposed connection as
referred to in subclause (1)(f) or (1)(g) or request of
the Company for such connection to be allowed.
(5)
Nothing in this Agreement shall be construed to:
(a)
exempt another Integration Proponent from
complying with, or the application of, the
provisions of its Integration Agreement.
(b)
restrict the company's rights under Clause 33.
For the avoidance of doubt the approval of proposals
under this Agreement shall not be construed as
authorising another Integration Proponent to undertake
any activities under this Agreement or under another
Integration Agreement.
(6)
As at 15 Dec 2011
Nothing in this clause shall be construed to exempt the
Company from complying with, or the application of,
the other provisions of this Agreement including,
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 95
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
without limitation, Clause 33 and of relevant laws
from time to time of the said State.
(7)
page 96
For the purpose of this Clause "works installations or
facilities" means any:
(a)
harbour or port works installations or facilities
including, without limitation, stockpiles,
reclaimers, conveyors and wharves;
(b)
railway or rail spur lines;
(c)
track structures and systems associated with the
operation and maintenance of a railway
including, without limitation, sidings, train
control and signalling systems, maintenance
workshops and terminal yards;
(d)
train loading and unloading works installations
or facilities;
(e)
conveyors;
(f)
private roads;
(g)
mine aerodrome and associated aerodrome
works installations and facilities;
(h)
iron ore mining, crushing, screening,
beneficiation or other processing works
installations or facilities;
(i)
mine administration buildings including,
without limitation, offices, workshops and
medical facilities;
(j)
borrow pits;
(k)
accommodation
and
ancillary
facilities
including, without limitation, construction
camps and in townsites constructed pursuant to
and held under any Integration Agreement;
(l)
water, sewerage, electricity, gas and
telecommunications works installations and
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
facilities
including,
without
limitation,
pipelines, transmission lines and cables; and
(m)
any other works installations or facilities
approved of by the Minister for the purpose of
this clause.
Transfer of rights to shared works installations or facilities
15B. (1)
For the purposes of this clause "Relevant
Infrastructure" means any works installations or
facilities (as defined in Clause 15A(7)):
(a)
constructed or held under another Integration
Agreement;
(b)
which the Company is using in its activities
pursuant to this Agreement;
(c)
which the Minister is satisfied (after consulting
with the Company and the Integration
Proponent
for
that
other
Integration
Agreement):
(d)
As at 15 Dec 2011
(i)
are no longer required by that other
Integration Proponent to carry on its
activities pursuant to its Integration
Agreement because of the cessation of
the Integration Proponent's mining
operations in respect of which such
Relevant Infrastructure was constructed
or held or because of any other reason
acceptable to the Minister; and
(ii)
are required by the Company to continue
to carry on its activities pursuant to this
Agreement; and
in respect of which that other Integration
Proponent has notified the Minister it consents
to the Company submitting proposals as
referred to in subclause (2).
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 97
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
(2)
The Company may as an additional proposal pursuant
to Clause 10 propose:
(a)
that it be granted a lease licence or other title
over the Relevant Infrastructure pursuant to this
Agreement subject to and conditional upon the
other Integration Proponent surrendering
wholly or in part (and upon such terms as the
Minister considers reasonable including any
variation of terms to address environmental
issues) its lease licence or other title over the
Relevant Infrastructure; or
(b)
that the other Integration Proponent's lease
licence or other title (not being a mineral lease,
mining lease or other right to mine title granted
under a Government agreement, the Mining Act
1904 or the Mining Act 1978) to the Relevant
Infrastructure be transferred to this Agreement
(to be held by the Company pursuant to this
Agreement) with such surrender of land from it
and variations of its terms as the Minister
considers reasonable for that title to be held
under this Agreement including, without
limitation, to address environmental issues and
outstanding obligations of that other Integration
Proponent under its Integration Agreement in
respect of that Relevant Infrastructure.
The provisions of Clause 10A shall mutatis mutandis
apply to any such additional proposal. In addition the
Company acknowledges that the Minister may
require variations of the other Integration Agreement
and/or proposals under it or of this Agreement in
order to give effect to the matters contemplated by
this Clause.
(3)
page 98
This Clause shall cease to apply in the event the State
gives any notice of default to the Company pursuant to
Clause 37(l) and while such notice remains
unsatisfied.
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
Miscellaneous Licences for Railways
15C. (1)
In this Clause subject to the context:
"Additional Infrastructure" means:
(a)
Train Loading Infrastructure;
(b)
Train Unloading Infrastructure;
(c)
a conveyor, train unloading and other
infrastructure necessary for the transport of iron
ore, freight goods or other products from the
Railway (directly or indirectly) to port facilities
within a loading port,
in each case located outside a Port;
"LAA" means the Land Administration Act 1997
(WA);
"Lateral Access Roads" has the meaning given in
subclause (3)(a)(iv));
"Lateral Access Road Licence" means a
miscellaneous licence granted pursuant to subclause
(6)(a)(ii) or subclause (6)(b) as the case may be and
according to the requirements of the context describes
the area of land from time to time the subject of that
licence;
"Port" means any port the subject of the Port
Authorities Act 1999 (WA) or the Shipping and
Pilotage Act 1967 (WA);
"Private Roads" means Lateral Access Roads and the
Company's access roads within a Railway Corridor;
"Rail Safety Act" means the Rail Safety Act 1998
(WA);
"Railway" means a standard gauge heavy haul railway
or railway spur line, located or to be located as the
case may be in, or proximate to, the Pilbara region of
the said State (but outside the boundaries of a Port)
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 99
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
for the transport of iron ore, freight goods and other
products together with all railway track, associated
track structures including sidings, turning loops, over
or under track structures, supports (including supports
for equipment or items associated with the use of a
railway) tunnels, bridges, train control systems,
signalling systems, switch and other gear,
communication
systems,
electric
traction
infrastructure, buildings (excluding office buildings,
housing and freight centres), workshops and
associated plant, machinery and equipment and
including rolling stock maintenance facilities, terminal
yards, depots, culverts and weigh bridges which
railway is or is to be (as the case may be) the subject
of approved proposals under subclause (4) and
includes any expansion or extension thereof outside a
Port which is the subject of additional proposals
approved in accordance with subclause (5);
"Railway Corridor" means, prior to the grant of a
Special Railway Licence, the land for the route of the
Railway the subject of that licence, access roads (other
than Lateral Access Roads), areas from which stone,
sand, clay and gravel may be taken, temporary
accommodation facilities for the railway workforce,
water bores and Additional Infrastructure (if any)
which is the subject of a subsisting agreement pursuant
to subclause (3)(a) and after the grant of the Special
Railway Licence the land from time to time the subject
of that Special Railway Licence;
"Railway Operation" means the construction and
operation under this Agreement of the relevant
Railway and associated access roads and Additional
Infrastructure (if any) within the relevant Railway
Corridor and of the associated Lateral Access Roads,
in accordance with approved proposals;
"Railway spur line" means a standard gauge heavy
haul railway spur line located or to be located in, or
proximate to, the Pilbara region of the said State (but
outside a Port) connecting to a Railway for the
page 100
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
transport of iron ore, freight goods and other products
upon the Railway to (directly or indirectly) a loading
port;
"Railway Operation Date" means the date of the first
carriage of iron ore, freight goods or other products
over the relevant Railway (other than for construction
or commissioning purposes);
"Railway spur line Operation Date" means the date of
the first carriage of iron ore, freight goods or other
products over the relevant Railway spur line (other
than for construction or commissioning purposes);
"Special Railway Licence" means the relevant
miscellaneous licence for railway and, if applicable,
other purposes, granted to the Company pursuant to
subclause (6)(a)(i) as varied in accordance with
subclause (6)(h) or subclause (6)(i) and according to
the requirements of the context describes the area of
land from time to time the subject of that licence;
"Train Loading Infrastructure" means conveyors,
stockpile areas, blending and screening facilities,
stackers, re-claimers and other infrastructure
reasonably required for the loading of iron ore, freight
goods or other products onto the relevant Railway for
transport (directly or indirectly) to a loading port; and
"Train Unloading Infrastructure" means train
unloading infrastructure reasonably required for the
unloading of iron ore from the Railway to be
processed, or blended with other iron ore, at
processing or blending facilities in the vicinity of that
train unloading infrastructure and with the resulting
iron ore products then loaded on to the Railway for
transport (directly or indirectly) to a loading port.
Company to obtain prior Ministerial in-principle
approval
(2)
As at 15 Dec 2011
(a)
If the Company wishes, from time to time
during the continuance of this Agreement, to
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 101
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
proceed under this clause with a plan to develop
a Railway it shall give notice thereof to the
Minister and furnish to the Minister with that
notice an outline of its plan.
(b)
The Minister shall within one month of a notice
under paragraph (a) advise the Company
whether or not he approves in-principle the
proposed plan. The Minister shall afford the
Company full opportunity to consult with him
in respect of any decision of the Minister under
this paragraph.
(c)
The Minister's in-principle approval in respect
of a proposed plan shall lapse if the Company
has not submitted detailed proposals to the
Minister in respect of that plan in accordance
with this Clause within 18 months of the
Minister's in-principle approval.
Railway Corridor
(3)
page 102
(a)
If the Minister gives in-principle approval to a
plan of the Company to develop a Railway it
shall consult with the Minister to seek the
agreement of the Minister as to:
(i)
where the Railway will begin and end;
and
(ii)
a route for the Railway, access roads to
be within the Railway Corridor and the
land required for that route as well as
Additional Infrastructure (if any)
including, without limitation, areas from
which stone, sand, clay and gravel may
be taken, temporary accommodation
facilities for the railway workforce and
water bores; and
(iii)
in respect of Additional Infrastructure (if
any) the nature and capacity of such
Additional Infrastructure; and
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
(iv)
the routes of, and the land required for,
roads outside the Railway Corridor (and
also outside a Port) for access to it to
construct the Railway (such roads as
agreed being "Lateral Access Roads").
In seeking such agreement, regard shall be had
to achieving a balance between engineering
matters including costs, the nature and use of
any lands concerned and interests therein and
the costs of acquiring the land (all of which
shall be borne by the Company). The parties
acknowledge the intention is for the Company
to construct the Railway, the access roads for
the construction and maintenance of the
Railway which are to be within the Railway
Corridor and the relevant Additional
Infrastructure (if any) along the centreline of
the Railway Corridor subject to changes in that
alignment to the extent necessary to avoid
heritage, environmental or poor ground
conditions that are not identified during
preliminary investigation work, and recognise
the width of the Railway Corridor may need to
vary along its route to accommodate Additional
Infrastructure (if any), access roads, areas from
which stone, sand, clay and gravel may be
taken, temporary accommodation facilities for
the railway workforce and water bores. The
provisions of clause 44 shall not apply to this
subclause.
(b)
As at 15 Dec 2011
If the date by which the Company must submit
detailed proposals under subclause (4)(a) (as
referred to in subclause (2)(c)) is extended or
varied by the Minister pursuant to Clause 36,
any agreement made pursuant to paragraph (a)
before such date is extended or varied shall
unless the Minister notifies the Company
otherwise be deemed to be at an end and
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 103
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
neither party shall have any claim against the
other in respect of it.
(c)
The Company acknowledges that it shall be
responsible for liaising with every title holder
in respect of the land affected and for
obtaining in a form and substance acceptable
to the Minister all unconditional and
irrevocable consents of each such title holder
to, and all statutory consents required in respect
of the land affected for:
(i)
the grant of the Special Railway Licence
for the construction, operation and
maintenance within the Railway
Corridor of the Railway, access roads
and Additional Infrastructure (if any) to
be within the Railway Corridor; and
(ii)
the grant of Lateral Access Road
Licences for the construction, use and
maintenance of Lateral Access Roads
over the routes for the Lateral Access
Roads agreed pursuant to paragraph (a);
and
(iii)
the inclusion of additional land in the
Special Railway Licence as referred to
in subclause (6)(h) or subclause (6)(i),
in accordance with this clause.
For the
purposes of this subclause (3)(c), "title holder"
means a management body (as defined in the
LAA) in respect of any part of the affected land,
a person who holds a mining, petroleum or
geothermal energy right (as defined in the
LAA) in respect of any part of the affected land,
a person who holds a lease or licence under the
LAA in respect of any part of the affected land,
a person who holds any other title granted under
or pursuant to a Government agreement in
respect of any part of the affected land, a person
page 104
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
who holds a lease or licence in respect of any
part of the affected land under any other Act
applying in the said State and a person in whom
any part of the affected land is vested,
immediately before the provision of such
consents to the Minister as referred to in
subclause (4)(e)(ii) (including as applying
pursuant to subclause 5(d)).
Company to submit proposals for Railway
(4)
As at 15 Dec 2011
(a)
The Company shall, subject to the EP Act, the
provisions of this Agreement, agreement at that
time subsisting in respect of the matters
required to be agreed pursuant to subclause 3(a),
submit to the Minister by the latest date
applying under subclause (2)(c) to the fullest
extent reasonably practicable its detailed
proposals (including plans where practicable
and specifications where reasonably required by
the Minister and any other details normally
required by a local government in whose area
any works are to be situated) with respect to the
undertaking of the relevant Railway Operation,
which proposals shall include the location, area,
layout, design, materials and time program for
the commencement and completion of
construction or the provision (as the case may
be) of each of the following matters namely:
(i)
the Railway including fencing (if any)
and crossing places within the Railway
Corridor;
(ii)
Additional Infrastructure (if any) within
the Railway Corridor;
(iii)
temporary accommodation and ancillary
temporary facilities for the railway
workforce on, or in the vicinity of, the
Railway Corridor and housing and other
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 105
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
appropriate facilities elsewhere for the
Company’s workforce;
(iv)
water supply;
(v)
energy supplies;
(vi)
access roads within the Railway Corridor
and Lateral Access Roads both along the
routes for those roads agreed between the
Minister and the Company pursuant to
subclause 3(a);
(vii) any other works, services or facilities
desired by the Company; and
(viii) use of local labour, professional services,
manufacturers, suppliers contractors and
materials and measures to be taken with
respect to the engagement and training of
employees by the Company, its agents
and contractors.
page 106
(b)
Proposals pursuant to paragraph (a) must
specify the matters agreed for the purpose
pursuant to subclause (3)(a) and must not be
contrary to or inconsistent with such agreed
matters.
(c)
Each of the proposals pursuant to paragraph (a)
may with the approval of the Minister, or must
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
subparagraphs (i) to (viii) of paragraph (a) and
until all of its proposals under this subclause
have been approved the Company may
withdraw and may resubmit any proposal but
the withdrawal of any proposal shall not affect
the obligations of the Company to submit a
proposal under this subclause in respect of the
subject matter of the withdrawn proposal.
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
(d)
The Company shall, whenever any of the
following matters referred to in this subclause
are proposed by the Company (whether before
or during the submission of proposals under
this subclause), 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.
(e)
At the time when the Company submits the last
of the said proposals pursuant to this subclause,
it shall:
(f)
(i)
furnish to the Minister's reasonable
satisfaction
evidence
of
all
accreditations under the Rail Safety Act
which are required to be held by the
Company or any other person for the
construction of the Railway; and
(ii)
furnish to the Minister the written
consents referred to in subclause
(3)(c)(i) and (3)(c)(ii).
The provisions of clause 10A shall apply
mutatis mutandis to detailed proposals
submitted under this subclause.
Additional Railway Proposals
(5)
As at 15 Dec 2011
(a)
If the Company at any time during the currency
of a Special Railway Licence desires to
construct a Railway spur line (connecting to the
Railway the subject of that Special Railway
Licence) or desires to significantly modify,
expand or otherwise vary its activities within
the land the subject of the Special Railway
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 107
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
Licence that are the subject of this Agreement
and that may be carried on by it pursuant to this
Agreement (other than by the construction of a
Railway spur line) beyond those activities
specified in any approved proposals for that
Railway, it shall give notice of such desire to
the Minister and furnish to the Minister with
that notice an outline of its proposals in respect
thereto (including, without limitation, such
matters mentioned in subclause (4)(a) as are
relevant or as the Minister otherwise requires).
page 108
(b)
If the notice relates to a Railway spur line, or
to the construction of Train Loading
Infrastructure
or
Train
Unloading
Infrastructure on land outside the then
Railway Corridor, the Minister shall within
one month of receipt of such notice advise the
Company whether or not he approves inprinciple the proposed construction of such
spur line, Train Loading Infrastructure or
Train Unloading Infrastructure.
If the
Minister gives in-principle approval the
Company may (but not otherwise) submit
detailed proposals in respect thereof provided
that the provisions of subclause (3) shall
mutatis mutandis apply prior to submission of
detailed proposals in respect thereof.
(c)
Subject to the EP Act, the provisions of this
Agreement and agreement at that time
subsisting in respect of any matters required
to be agreed pursuant to subclause (3)(a) (as
referred to in paragraph (b)), the Company
shall submit to the Minister within a
reasonable timeframe, as determined by the
Minister after receipt of the notice referred to
in paragraph (a) (or in the case of a notice
referred to in paragraph (b) the giving of the
Minister's in-principle consent as referred to
in that paragraph), detailed proposals in
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
respect of the proposed construction of such
Railway
spur
line,
Train
Loading
Infrastructure, Train Unloading Infrastructure
or other proposed modification, expansion or
variation of its activities including such of the
matters mentioned in subclause (4)(a) as the
Minister may require.
(d)
The provisions of subclause (4) (with the date
for submission of proposals being read as the
date or time determined by the Minister under
paragraph (c) and the reference in subclause
(4)(e)(ii) to subclause (3)(c)(i) being read as a
reference to subclause (3)(c)(iii)) and of
clause 10A shall mutatis mutandis apply to
detailed proposals submitted pursuant to this
subclause.
Grant of Tenure
(6)
(a)
On application made by the Company to the
Minister in such manner as the Minister may
determine, not later than 3 months after all its
proposals submitted pursuant to subclause
(4)(a) have been approved or deemed to be
approved and the Company has complied with
the provisions of subclause (4)(e), the State
notwithstanding the Mining Act 1978 shall
cause to be granted to the Company:
(i)
As at 15 Dec 2011
a miscellaneous licence to conduct within
the Railway Corridor and in accordance
with its approved proposals all activities
(including the taking of stone, sand, clay
and gravel, the provision of temporary
accommodation facilities for the railway
workforce and, subject to the Rights in
Water and Irrigation Act 1914 (WA), the
operation of water bores) necessary for the
planning,
design,
construction,
commissioning,
operation
and
maintenance within the Railway Corridor
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 109
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
of the Railway, access roads and
Additional Infrastructure (if any) ("the
Special Railway Licence") such licence to
be granted under and subject to, except as
otherwise provided in this Agreement, the
Mining Act 1978 in the form of the
Second Schedule hereto and subject to
such terms and conditions as the Minister
for Mines may from time to time consider
reasonable and at a rental calculated in
accordance with the Mining Act 1978:
(A)
prior to the Railway Operation
Date, as if the width of the
Railway Corridor were 100
metres; and
(B)
on and from the Railway
Operation Date, at the rentals
from time to time prescribed under
the Mining Act 1978; and
(ii) a miscellaneous licence or licences to
allow the construction, use and
maintenance of Lateral Access Roads
within the routes agreed for those Lateral
Access Roads under subclause (3)(a)
(each a "Lateral Access Road Licence"),
each such licence to be granted under and
subject to, except as otherwise provided in
this Agreement, the Mining Act 1978 in
the form of the Third Schedule hereto and
subject to such terms and conditions as the
Minister for Mines may from time to time
consider reasonable and at the rentals from
time to time prescribed under the Mining
Act 1978.
(b)
page 110
On application made by the Company to the
Minister in such manner as the Minister may
determine, not later than 3 months after its
proposals submitted pursuant to subclause
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
(5)(a) for the construction of Lateral Access
Roads for access to the Railway Corridor to
construct a Railway spur line have been
approved or deemed to be approved and the
Company has complied with the provisions of
subclause (4)(e) (as applying pursuant to
subclause (5)(d)), the State notwithstanding the
Mining Act 1978 shall cause to be granted to
the Company a miscellaneous licence or
licences to allow the construction, use and
maintenance of Lateral Access Roads within
the routes agreed for those Lateral Access
Roads under subclause (3)(a)) (as applying
pursuant to subclause (5)(b)) (each a "Lateral
Access Road Licence"), each such licence to be
granted under and subject to, except as
otherwise provided in this Agreement, the
Mining Act 1978 in the form of the Fourth
Schedule hereto and subject to such terms and
conditions as the Minister for Mines may from
time to time consider reasonable and at the
rentals from time to time prescribed under the
Mining Act 1978.
As at 15 Dec 2011
(c)
Notwithstanding the Mining Act 1978, the term
of the Special Railway Licence shall, subject to
the sooner determination thereof on the
cessation or sooner determination of this
Agreement, be for a period of 50 years
commencing on the date of grant thereof.
(d)
Notwithstanding the Mining Act 1978, the term
of any Lateral Access Road Licence shall,
subject to the sooner determination thereof on
the cessation or sooner determination of this
Agreement, be for a period of 4 years
commencing on the date of grant thereof.
(e)
Notwithstanding the Mining Act 1978, and
except as required to do so by the terms of the
Special Railway Licence, the Company shall
not be entitled to surrender the Special Railway
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 111
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
Licence or any Lateral Access Road Licence or
any part or parts of them without the prior
consent of the Minister.
(f)
(i)
The Company may in accordance with
approved proposals take stone, sand,
clay and gravel from the Railway
Corridor for the construction, operation
and maintenance of the Railway
constructed within or approved for
construction within the Railway
Corridor.
(ii) Notwithstanding the Mining Act 1978 no
royalty shall be payable under the Mining
Act in respect of stone, sand, clay and
gravel which the Company is permitted by
subparagraph (i) to obtain from the land
the subject of the Special Railway
Licence.
(g)
For the purposes of this Agreement and without
limiting the operation of paragraphs (a) to (f)
inclusive above, the application of the Mining
Act 1978 and the regulations made thereunder
are specifically modified:
(i)
page 112
in section 91(1) by:
(A)
deleting "the mining registrar or
the warden, in accordance with
section 42 (as read with section
92)"
and
substituting
"the
Minister";
(B)
deleting
"any
person"
and
substituting "the Company (as
defined in the agreement ratified
by and scheduled to the Iron Ore
(Hope Downs) Agreement Act
1992, as from time to time added
to, varied or amended)";
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
(C)
deleting "for any one or more of
the purposes prescribed" and
substituting "for the purpose
specified in clause 15C(6)(a)(i),
clause 15C(6)(a)(ii) or clause
15C(6)(b), of the agreement
ratified by and scheduled to the
Iron Ore (Hope Downs) Agreement
Act 1992, as from time to time
added to, varied or amended";
(ii) in section 91(3)(a), by deleting
"prescribed form" and substituting "form
required by the agreement ratified by and
scheduled to the Iron Ore (Hope Downs)
Agreement Act 1992, as from time to time
added to, varied or amended";
(iii) by deleting sections 91(6), 91(9), 91(10)
and 91B;
(iv) in section 92, by deleting "Sections 41, 42,
44, 46, 46A, 47 and 52 apply," and
inserting "Section 46A (excluding in
subsection (2)(a) "the mining registrar, the
warden or") applies," and by deleting "in
those provisions" and inserting "in that
provision";
(v)
by deleting the full stop at the end of the
section 94(1) and inserting, "except to the
extent otherwise provided in, or to the
extent that such terms and conditions are
inconsistent with, the agreement ratified
by and scheduled to the Iron Ore (Hope
Downs) Agreement Act 1992, as from time
to time added to, varied or amended";
(vi) by deleting sections 94(2), (3) and (4);
(vii) in section 96(1), by inserting after
"miscellaneous licence" the words "(not
being a miscellaneous licence granted
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 113
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
pursuant to the agreement ratified by and
scheduled to the Iron Ore (Hope Downs)
Agreement Act 1992, as from time to time
added to, varied or amended";
(viii) by deleting mining regulations 37(2),
37(3), 42 and 42A; and
(ix) by inserting at the beginning of mining
regulations 41(c) and (f) the words
"subject to the agreement ratified by and
scheduled to the Iron Ore (Hope Downs)
Agreement Act 1992, as from time to time
added to, varied or amended".
page 114
(h)
If additional proposals are approved in
accordance with subclause (5) for the
construction of a Railway spur line outside the
then Railway Corridor, the Minister for Mines
shall include the area of land within which
such construction is to occur in the Special
Railway Licence by endorsement. The area of
such 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.
(i)
If additional proposals are approved in
accordance with subclause (5) for the
construction of Train Loading Infrastructure or
Train Unloading Infrastructure outside the then
Railway Corridor, the Minister for Mines shall
include the area of such land within which
such infrastructure is approved for construction
in the Special Railway Licence by
endorsement. The area of such 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.
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
(j)
The provisions of this subclause shall not
operate so as to require the State to cause a
Special Railway Licence or a Lateral Access
Road Licence to be granted or any land
included in the Special Railway Licence as
mentioned above until all processes necessary
under any laws relating to native title to enable
that grant or inclusion of land to proceed, have
been completed.
Construction and operation of Railway
(7)
As at 15 Dec 2011
(a)
Subject to and in accordance with approved
proposals, the Rail Safety Act and the grant of
the relevant Special Railway Licence and any
associated Lateral Access Road Licences the
Company shall in a proper and workmanlike
manner and in accordance with recognised
standards for railways of a similar nature
operating under similar conditions construct the
Railway
and
associated
Additional
Infrastructure and access roads within the
Railway Corridor and shall also construct inter
alia any necessary sidings, crossing points,
bridges, signalling switches and other works
and appurtenances and provide for crossings
and (where appropriate and required by the
Minister) grade separation or other protective
devices including flashing lights and boom
gates at places where the Railway crosses or
intersects with major roads or existing
railways.
(b)
The Company shall while the holder of a
Special Railway Licence:
(i)
keep the Railway the subject of that
licence in an operable state; and
(ii)
ensure that the Railway the subject of
that licence is operated in a safe and
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 115
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
proper manner in compliance with all
applicable laws from time to time; and
(iii)
without limiting subparagraph (ii) ensure
that the obligations imposed under the
Rail Safety Act on an owner and an
operator (as those terms are therein
defined) are complied with in
connection with the Railway the subject
of that licence.
Nothing in this Agreement shall be construed to
exempt the Company or any other person from
compliance with the Rail Safety Act or limit its
application to the Company's operations
generally (except as otherwise may be provided
in that Act or regulations made under it).
page 116
(c)
The Company shall provide crossings for
livestock and also for any roads, other railways,
conveyors, pipelines and other utilities which
exist at the date of grant of the relevant Special
Railway Licence or in respect of land
subsequently included in it at the date of such
inclusion and the Company shall on reasonable
terms and conditions allow such crossings for
roads, railways, conveyors, pipelines and other
utilities which may be constructed for future
needs and which may be required to cross a
Railway constructed pursuant to this clause.
(d)
Subject to Clause 15B, the Company shall at all
times be the holder of Special Railway
Licences and Lateral Access Road Licences
granted pursuant to this clause and (without
limiting Clause 42 but subject to Clause 15B)
shall at all times own manage and control the
use of each Railway the subject of a Special
Railway Licence held by the Company.
(e)
The Company shall not be entitled to exclusive
possession of the land the subject of a Special
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
Railway Licence or Lateral Access Road
Licence granted pursuant to this clause to the
intent that the State, the Minister, the Minister
for Mines and any persons authorised by any of
them from time to time shall be entitled to enter
upon the land or any part of it at all reasonable
times and on reasonable notice with all
necessary vehicles, plant and equipment and
for purposes related to this Agreement or such
other purposes as they think fit but in doing so
shall be subject to the reasonable directions of
the Company so as not to unreasonably
interfere with the Company's operations.
As at 15 Dec 2011
(f)
The Company's ownership of a Railway
constructed pursuant to this clause shall not
give it an interest in the land underlying it.
(g)
The Company shall not at any time without the
prior consent of the Minister dismantle, sell or
otherwise dispose of any part or parts of any
Railway constructed pursuant to this clause, or
permit this to occur, other than for the purpose
of maintenance, repair, upgrade or renewal.
(h)
The Company shall, subject to and in
accordance with approved proposals, in a
proper and workmanlike manner, construct any
Additional Infrastructure, access roads, Lateral
Access Roads and other works approved for
construction under this clause.
(i)
The Company shall while the holder of a
Special Railway Licence at all times keep and
maintain in good repair and working order and
condition (which obligation includes, where
necessary, replacing or renewing all parts
which are worn out or in need of replacement
or renewal due to their age or condition) the
Railway, access roads and Additional
Infrastructure (if any) the subject of that licence
and all such other works installations plant
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 117
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
machinery and equipment for the time being
the subject of this Agreement and used in
connection with the operation use and
maintenance of that Railway, access roads and
Additional Infrastructure (if any).
(j)
Subject to Clause 15B, the Company shall:
(i)
be responsible for the cost of construction
and maintenance of all Private Roads
constructed pursuant to this clause; and
(ii)
at its own cost erect signposts and take
other steps that may be reasonable in the
circumstances to prevent any persons
and vehicles (other than those engaged
upon the Company's activities and its
invitees and licensees) from using the
Private Roads; and
(iii) at any place where any Private Roads are
constructed by the Company so as to
cross any railways or public roads
provide at its cost such reasonable
protection and signposting as may be
required by the Commissioner of Main
Roads or the Public Transport Authority
as the case may be.
(k)
The provisions of Clause 24(4) regarding third
party access shall apply mutatis mutandis to
any Railway or railway spur line constructed
pursuant to this clause except that the Company
shall not be obliged to transport passengers on
any such Railway or Railway spur line and in
relation to its use thereof the Company shall
not be deemed to be a common carrier at law or
otherwise.
Aboriginal Heritage Act 1972 (WA)
page 118
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
(8)
For the purposes of this clause the Aboriginal
Heritage Act 1972 (WA) applies as if it were modified
by:
(a)
the insertion before the full stop at the end of
section 18(1) of the words:
"and the expression "the Company"
means the persons from time to time
comprising "the Company" in their
capacity as such under the agreement
ratified by and scheduled to the Iron Ore
(Hope Downs) Agreement Act 1992, as
from time to time added to, varied or
amended in relation to the use or
proposed use of land pursuant to clause
15C of that agreement after and in
accordance with approved proposals
under clause 15C of that agreement and
in relation to the use of that land before
any such approval of proposals where the
Company has the requisite authority to
enter upon and so use the land";
(b)
the insertion in sections 18(2), 18(4), 18(5)
and 18(7) of the words "or the Company as
the case may be" after the words "owner of
any land";
(c)
the insertion in section 18(3) of the words
"or the Company as the case may be" after
the words "the owner";
(d)
the insertion of the following sentences at
the end of section 18(3):
"In relation to a notice from the Company
the conditions that the Minister may specify
can as appropriate include, among other
conditions, a condition restricting the
Company's use of the relevant land to after
the approval or deemed approval as the case
may be under the abovementioned
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 119
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
agreement of all of the Company's submitted
initial proposals thereunder for the Railway
Operation (as defined in clause 15C(1) of the
abovementioned agreement), or in the case
of additional proposals submitted or to be
submitted by the Company to after the
approval or deemed approval under that
agreement of such additional proposals, and
to the extent so approved. "; and
(e)
the insertion in sections 18(2) and 18(5) of
the words "or it as the case may be" after the
word "he".
The Company acknowledges that nothing in this
subclause (8) nor the granting of any consents under
section 18 of the Aboriginal Heritage Act 1972 (WA)
will constitute or is to be construed as constituting the
approval of any proposals submitted or to be submitted
by the Company under this Agreement or as the grant
or promise of land tenure for the purposes of this
Agreement.
Taking of land for the purposes of this clause
(9)
page 120
(a)
The State is hereby empowered, as and for a
public work under Parts 9 and 10 of the LAA to
take for the purposes of this clause any land
(other than any part of a Port) which in the
opinion of the Company is necessary for the
relevant Railway Operation and which the
Minister determines is appropriate to be taken
for the relevant Railway Operation (except any
land the taking of which would be contrary to
the provisions of a Government agreement
entered into before the submission of the
proposals relating to the proposed taking) and
notwithstanding any other provisions of that
Act may license that land to the Company.
(b)
In applying Parts 9 and 10 of the LAA for the
purposes of this clause:
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
(i)
"land" in that Act includes a legal or
equitable estate or interest in land;
(ii)
sections 170, 171, 172, 173, 174, 175
and 184 of that Act do not apply; and
(iii)
that Act applies as if it were modified in
section 177(2) by inserting (A)
after "railway" the following "or land is being taken pursuant to
a Government agreement as
defined in section 2 of the
Government Agreements Act 1979
(WA)"; and
(B)
after "that Act" the following "or that Agreement as the case may
be".
(c)
The Company shall pay to the State on demand
the costs of or incidental to any land taken at
the request of and on behalf of the Company
including but not limited to any compensation
payable to any holder of native title or of
native title rights and interests in the land.
Notification of Railway Operation Date
(10)
As at 15 Dec 2011
(a)
The Company shall from the date occurring 6
months before the date for completion of
construction of a Railway specified in its time
program for the commencement and
completion of construction of that Railway
submitted under subclause (4)(a), keep the
Minister fully informed as to:
(i)
the progress of that construction and its
likely completion and commissioning;
and
(ii)
the likely Railway Operation Date.
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 121
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
(b)
The Company shall on the Railway Operation
Date notify the Minister that the first carriage
of iron ore, freight goods or other products as
the case may be over the Railway (other than
for construction or commissioning purposes)
has occurred.
(c)
The Company shall from the date occurring 6
months before the date for completion of
construction of a Railway spur line specified in
its time program for the commencement and
completion of construction of that spur line
submitted under subclause (5)(c) keep the
Minister fully informed as to:
(d)
(i)
the progress of that construction and its
likely completion and commissioning;
and
(ii)
in respect of it, the likely Railway spur
line Operation Date.
The Company shall on the Railway spur line
Operation Date in respect of any Railway spur
line notify the Minister that the first carriage of
iron ore, freight goods or other products as the
case may be over such spur line (other than for
construction or commissioning purposes) has
occurred.";
(18) in clause 16(1) by inserting "and paragraph (m) of subclause (4) of
Clause 15" after "Clause 7";
(19) in clause 16(6) by deleting "subclauses (1), (2), (3) and (4) of
Clause 8" and substituting "Clause 10A";
(20) in clause 23(1) by deleting "or in respect of land within the area
coloured red on the plan "Plan A" annexed hereto arrange to have
the Port Authority grant to the Company,";
(21) in clause 23(2) by inserting the following new paragraph:
"(2a) The provisions of subclause (1) of this Clause shall not
operate so as to require the State to grant or vary, or cause to
page 122
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
be granted or varied, any lease licence or other right or title
until all processes necessary under any laws relating to
native title to enable that grant or variation to proceed, have
been completed.";
(22) by deleting clause 23(3);
(23) by deleting clause 24(5);
(24) in clause 27(6), by inserting in paragraph (b) "or cause to be
implemented" after "shall implement";
(25) by deleting subclause (7) of clause 27 and substituting the
following new subclause:
"(7) For the purposes of subclause (6) "alternative project" means:
(a)
a project to establish and operate within the said State
plant for the production of metallised agglomerates;
(b)
a project to establish and operate within the said State
plant which processes and adds value to minerals
mined in the said State; or
(c)
any other project within the said State which the
Minister approves as providing as equivalent benefits
to the State to a project to establish and operate
within the said State plant for the production of
metallised agglomerates,
to be undertaken by:
As at 15 Dec 2011
(d)
the Company (excluding a project referred to in
paragraph (a)): or
(e)
a related body corporate or related bodies corporate
(within the meaning of the Corporations Act 2001
(Cwth) of the Company solely or in conjunction with
the Company; or
(f)
a joint venture in which the Company or its related
body corporate has a majority participating interest;
or
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 123
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
(g)
any other third person or persons which the
Company and the Minister accept as having the
requisite financial and technical capacity and
expertise to undertake solely, or in conjunction with
the Company, the relevant project referred to in
paragraphs (a), (b) or (c).";
(26) by inserting in clause 33(3)(a) "or held pursuant to this Agreement"
after "under or pursuant to this Agreement";
(27) by inserting in clause 34(1) "or held pursuant to this Agreement"
after "pursuant to this Agreement";
(28) in clause 37:
(i)
in subclause (1)(a)(i) by inserting "granted under or
pursuant to this Agreement or held pursuant to this
Agreement" after "easement grant or other title"; and
(ii)
in subclause (4) by deleting "occupied by the Company"
and substituting "the subject of any lease licence
easement or other title granted under or pursuant to this
Agreement or held pursuant to this Agreement";
(29) in clause 38:
(a)
in subclause (1)(a) by inserting "or held pursuant hereto"
after "granted hereunder or pursuant hereto"; and
(b)
in subclause (2) by inserting "or held pursuant to this
Agreement" after "made under or pursuant to this
Agreement";
(30) by inserting the following sentence at the end of clause 40:
"As a separate independent indemnity the Company will 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 use,
making available for use or other activities of the Company as
referred to in Clause 15A."; and
(31) by inserting after the Schedule the following new schedules:
"SECOND SCHEDULE
page 124
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
WESTERN AUSTRALIA
IRON ORE (HOPE DOWNS) AGREEMENT ACT 1992
MINING ACT 1978
MISCELLANEOUS LICENCE FOR A RAILWAY AND
OTHER PURPOSES
No.
MISCELLANEOUS LICENCE [ ]
WHEREAS by the Agreement (hereinafter called "the
Agreement") ratified by and scheduled to the Iron Ore (Hope
Downs) Agreement Act 1992, as from time to time added to, varied
or amended, the State agreed to grant to [
] (hereinafter with its
successors and permitted assigns called "the Company") a
miscellaneous licence for the construction operation and
maintenance of a Railway (as defined in clause 15C(1) of the
Agreement and otherwise as provided in the Agreement) and, if
applicable, other purposes AND WHEREAS the Company
pursuant to clause 15C(6)(a) of the Agreement has made
application for the said licence;
NOW in consideration of the rents reserved by and the provisions
of the Agreement and in pursuance of the Iron Ore (Hope Downs)
Agreement Act 1992, as from time to time added to, varied or
amended, the Company is hereby granted by this licence authority
to conduct on the land the subject of this licence as more
particularly delineated and described from time to time in the
Schedule hereto all activities (including the taking of stone, sand,
clay and gravel, the provision of temporary accommodation
facilities for the railway workforce in accordance with the
Agreement and, subject to the Rights in Water and Irrigation Act
1914 (WA), the operation of water bores) necessary for the
planning, design, construction, commissioning, operation and
maintenance on the land the subject of this licence of the Railway
and Additional Infrastructure (as defined in clause 15C(1) of the
Agreement) and access roads to be located on the land the subject
of this licence in accordance with the provisions of the Agreement
and proposals approved under the Agreement, for the term of 50
years from the date hereof (subject to the sooner determination of
the term upon the determination of the Agreement) and upon and
subject to the terms covenants and conditions set out in the
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 125
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
Agreement and the Mining Act 1978 as it applies to this licence,
and any amendments to the Agreement and the Mining Act 1978
from time to time and to the terms and conditions (if any) now or
hereafter endorsed hereon and the payment of rentals in respect of
this licence in accordance with clause 15C(6)(a)(i) of the
Agreement PROVIDED ALWAYS that this licence shall not be
determined or forfeited otherwise than in accordance with the
Agreement.
In this licence:
-
If the Company be more than one the liability of the
Company hereunder shall be joint and several.
-
Reference to an Act includes all amendments to that Act
for the time being in force and also any Act passed in
substitution therefore or in lieu thereof and to the
regulations and by-laws of the time being in force
thereunder.
-
Reference to "the Agreement" means such agreement as
from time to time added to, varied or amended.
-
The terms "approved proposals", "Railway", "Railway
Operation Date", and "Railway spur line" have the
meanings given in the Agreement.
ENDORSEMENTS AND CONDITIONS
Endorsements
page 126
1.
This licence is granted in accordance with proposals
submitted on [ ], and approved by the Minister (as
defined in the Agreement) on [ ], under the Agreement.
2.
The Company is permitted to, in accordance with
approved proposals, take stone, sand, clay and gravel
from the land the subject of this licence for the
construction, operation and maintenance of the Railway
(including any Railway spur line) constructed within or
approved for construction within the area of land the
subject of this licence.
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
3.
Notwithstanding the Mining Act 1978, no royalty shall be
payable under the Mining Act 1978 in respect of stone,
sand, clay and gravel which the Company is permitted by
the Agreement to obtain from the land the subject of this
licence.
4.
[Any further endorsement which the Minister for Mines
may, consistent with the provisions of the Agreement,
determines and thereafter impose in respect of this
licence including during the term of the Agreement.]
Conditions
1.
2.
As at 15 Dec 2011
(a)
Except as provided in paragraph (b), the
Company shall within 2 years after the Railway
Operation Date surrender in accordance with
the provisions of the Mining Act 1978 the area
of this licence down to a maximum of 100
metres width or as otherwise approved by the
Minister (as defined in the Agreement) for the
safe operation of the Railway then constructed
or approved for construction under approved
proposals.
(b)
Paragraph (a) shall not apply to land the subject
of this licence that was included in this licence
pursuant to clause 15C(6)(h) or clause 15C(6)(i)
of the Agreement.
The Company shall as soon as possible after the
construction of a Railway spur line or of an expansion
or extension thereof as the case may be surrender in
accordance with the Mining Act 1978 the land the
subject of this licence that was included in this licence
pursuant to clause 15C(6)(h) of the Agreement for the
purpose of such construction down to a maximum of
100 metres in width or as otherwise approved by the
Minister (as defined in the Agreement) for the safe
operation of that Railway spur line or expansion or
extension thereof as the case may be then constructed or
approved for construction under approved proposals.
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 127
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
3.
[Any further conditions which the Minister for Mines
may, consistent with the provisions of the Agreement,
determines and thereafter impose in respect of this
licence including during the term of the Agreement.]
SCHEDULE
Land description
Locality:
Mineral Field
Area:
DATED at Perth this
day of
.
MINISTER FOR MINES
THIRD SCHEDULE
WESTERN AUSTRALIA
IRON ORE (HOPE DOWNS) AGREEMENT ACT 1992
MINING ACT 1978
MISCELLANEOUS LICENCE FOR A LATERAL ACCESS
ROAD
No.
MISCELLANEOUS LICENCE [ ]
WHEREAS by the Agreement (hereinafter called "the
Agreement") ratified by and scheduled to the Iron Ore (Hope
Downs) Agreement Act 1992, as from time to time added to, varied
or amended, the State agreed to grant to [
] (hereinafter with
its successors and permitted assigns called "the Company") a
miscellaneous licence for the construction use and maintenance of
a Lateral Access Road (as defined in the Agreement) AND
WHEREAS the Company pursuant to clause 15C(6)(a)(ii) of the
Agreement has made application for the said licence;
NOW in consideration of the rents reserved by and the provisions
of the Agreement and in pursuance of the Iron Ore (Hope Downs)
Agreement Act 1992, as from time to time added to, varied or
page 128
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
amended, the Company is hereby authorised to construct use and
maintain a road on the land more particularly delineated and
described from time to time in the Schedule hereto in accordance
with the provisions of the Agreement and proposals approved
under the Agreement for a term of 4 years commencing on the date
hereof (subject to the sooner determination of the term upon the
cessation or determination of the Agreement) and for the purposes
and upon and subject to the terms covenants and conditions set out
in the Agreement and the Mining Act 1978 as it applies to this
licence, and any amendments to the Agreement and the Mining Act
1978 from time to time and to the terms and conditions (if any)
now or hereafter endorsed hereon and the payment of rentals in
respect of this licence in accordance with clause 15C(6)(a)(ii) of
the Agreement PROVIDED ALWAYS that this licence shall not
be determined or forfeited otherwise than in accordance with the
Agreement.
In this licence:
-
If the Company be more than one the liability of the
Company hereunder shall be joint and several.
-
Reference to an Act includes all amendments to that Act
for the time being in force and also any Act passed in
substitution therefore or in lieu thereof and to the
regulations and by-laws of the time being in force
thereunder.
-
Reference to "the Agreement" means such agreement as
from time to time added to, varied or amended.
ENDORSEMENTS AND CONDITIONS
Endorsements
1.
This licence is granted in accordance with proposals
submitted on [ ], and approved by the Minister (as
defined in the Agreement) on [ ], under the Agreement.
2.
[Any further endorsement which the Minister for Mines
may, consistent with the provisions of the Agreement,
determines and thereafter impose in respect of this
licence including during the term of the Agreement.]
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 129
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
Conditions
[Such conditions which the Minister for Mines may, consistent
with the provisions of the Agreement, determines and thereafter
impose in respect of the licence, including during the term of the
Agreement.]
SCHEDULE
Description of land
Locality:
Mineral Field:
Area:
DATED at Perth this
day of
.
MINISTER FOR MINES
FOURTH SCHEDULE
WESTERN AUSTRALIA
IRON ORE (HOPE DOWNS) AGREEMENT ACT 1992
MINING ACT 1978
MISCELLANEOUS LICENCE FOR A LATERAL ACCESS
ROAD
No.
MISCELLANEOUS LICENCE [ ]
WHEREAS by the Agreement (hereinafter called "the
Agreement") ratified by and scheduled to the Iron Ore (Hope
Downs) Agreement Act 1992, as from time to time added to, varied
or amended, the State agreed to grant to [
] (hereinafter with
its successors and permitted assigns called "the Company") a
miscellaneous licence for the construction use and maintenance of
a Lateral Access Road (as defined in the Agreement) AND
WHEREAS the Company pursuant to clause 15C(6)(b) of the
Agreement has made application for the said licence;
NOW in consideration of the rents reserved by and the provisions
of the Agreement and in pursuance of the Iron Ore (Hope Downs)
Agreement Act 1992, as from time to time added to, varied or
page 130
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
amended, the Company is hereby authorised to construct use and
maintain a road on the land more particularly delineated and
described from time to time in the Schedule hereto in accordance
with the provisions of the Agreement and proposals approved
under the Agreement for a term of 4 years commencing on the date
hereof (subject to the sooner determination of the term upon the
cessation or determination of the Agreement) and for the purposes
and upon and subject to the terms covenants and conditions set out
in the Agreement and the Mining Act 1978 as it applies to this
licence, and any amendments to the Agreement and the Mining Act
1978 from time to time and to the terms and conditions (if any)
now or hereafter endorsed hereon and the payment of rentals in
respect of this licence in accordance with clause 15C(6)(b) of the
Agreement PROVIDED ALWAYS that this licence shall not be
determined or forfeited otherwise than in accordance with the
Agreement.
In this licence:
-
If the Company be more than one the liability of the
Company hereunder shall be joint and several.
-
Reference to an Act includes all amendments to that Act
for the time being in force and also any Act passed in
substitution therefore or in lieu thereof and to the
regulations and by-laws of the time being in force
thereunder.
-
Reference to "the Agreement" means such agreement as
from time to time added to, varied or amended.
ENDORSEMENTS AND CONDITIONS
Endorsements
1.
This licence is granted in accordance with proposals
submitted on [ ], and approved by the Minister (as
defined in the Agreement) on [ ], under the Agreement.
2.
[Any further endorsement which the Minister for Mines
may, consistent with the provisions of the Agreement,
determines and thereafter impose in respect of this
licence including during the term of the Agreement.]
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 131
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
Conditions
[Such conditions which the Minister for Mines may, consistent
with the provisions of the Agreement, determines and thereafter
impose in respect of the licence, including during the term of the
Agreement.]
SCHEDULE
Description of land
Locality:
Mineral Field:
Area:
DATED at Perth this
day of
.
MINISTER FOR MINES".
page 132
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 2
First Variation Agreement
EXECUTED as a deed.
SIGNED by THE HONOURABLE
COLIN JAMES BARNETT
in the presence of:
)
)
)
[Signature]
)
)
)
)
)
[C.S.]
[Signature]
STEPHEN WOOD
THE COMMON SEAL of HOPE
DOWNS IRON ORE PTY. LTD.
ACN 071 514 308 was hereunto
affixed in accordance with its
constitution in the presence of:
[Signature]
Director
TADEUSZ J WATROBA
[Signature]
Secretary
JAY NEWBY
THE COMMON SEAL of
HAMERSLEY WA PTY. LTD.
ACN 115 004 138 was hereunto
affixed by authority of the Directors
in the presence of:
)
)
)
)
)
[C.S.]
[Signature]
Director
ALAN DAVIES
[Signature]
Secretary
HELEN FERNIHOUGH
[Schedule 2 inserted: No. 61 of 2010 s. 20.]
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 133
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 3
Second Variation Agreement
Schedule 3 — Second Variation Agreement
[s. 3]
[Heading inserted: No. 61 of 2011 s. 18.]
2011
THE HONOURABLE COLIN JAMES BARNETT
PREMIER OF THE STATE OF WESTERN AUSTRALIA
AND
HOPE DOWNS IRON ORE PTY. LTD.
ACN 071 514 308
HAMERSLEY WA PTY. LTD.
ACN 115 004 138
________________________________________________________________
IRON ORE (HOPE DOWNS) AGREEMENT 1992
RATIFIED VARIATION AGREEMENT
________________________________________________________________
[Solicitor's details]
page 134
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 3
Second Variation Agreement
THIS AGREEMENT is made this 9th day of November 2011
BETWEEN
THE HONOURABLE COLIN JAMES BARNETT MLA., Premier of the
State of Western Australia, acting for and on behalf of the said State and
instrumentalities thereof from time to time (State)
AND
HOPE DOWNS IRON ORE PTY LTD ACN 071 514 308 of Level 3, Hppl
House, 28-42 Ventnor Avenue, West Perth, Western Australia and
HAMERSLEY WA PTY. LTD. ACN 115 004 138 of Level 22, Central Park,
152-158 St Georges Terrace, Perth, Western Australia (Joint Venturers).
RECITALS:
A.
The State and the Joint Venturers are now the parties to the agreement
dated 30 November 1992 ratified by and scheduled to the Iron Ore
(Hope Downs) Agreement Act 1992 and which as subsequently added
to, varied or amended is referred to in this Agreement as the
"Principal Agreement".
B.
The State and the Joint Venturers wish to vary the Principal
Agreement.
THE PARTIES AGREE AS FOLLOWS:
1.
Interpretation
Subject to the context, the words and expressions used in this
Agreement have the same meanings respectively as they have in and
for the purpose of the Principal Agreement.
2.
Ratification and Operation
(1)
The State shall introduce and sponsor a Bill in the State Parliament of
Western Australia prior to 31 December 2011 or such later date as
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 135
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 3
Second Variation Agreement
may be agreed between the parties hereto to ratify this Agreement.
The State shall endeavour to secure the timely passage of such Bill as
an Act.
(2)
The provisions of this Agreement other than this clause and clause 1
will not come into operation until the day after the day on which the
Bill referred to in subclause (1) has been passed by the State
Parliament of Western Australia and commences to operate as an Act.
(3)
If by 30 June 2012 the said Bill has not commenced to operate as an
Act then, unless the parties hereto otherwise agree, this Agreement
will then cease and determine and no party hereto will 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.
(4)
On the day after the day on which the said Bill commences to operate
as an Act all the provisions of this Agreement will operate and take
effect despite any enactment or other law.
3.
Variation of Principal Agreement
The Principal Agreement is varied as follows:
(1)
in clause 1 by inserting in the appropriate alphabetical positions the
following new definitions:
"Eligible Existing Tenure" means:
(a)
(i)
a miscellaneous licence or general purpose lease
granted to the Company under the Mining Act 1978;
or
(ii)
a lease or easement granted to the Company under the
LAA,
and not clearly, to the satisfaction of the Minister, granted
under or pursuant to or held pursuant to this Agreement; or
(b)
page 136
an application by the Company for the grant to it of a
tenement referred to in paragraph (a)(i) (which application
has not clearly, to the satisfaction of the Minister, been made
under or pursuant to this Agreement) and as the context
requires the tenement granted pursuant to such an application,
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 3
Second Variation Agreement
where that tenure was granted or that application was made (as the
case may be) on or before 1 October 2011;
"LAA" means the Land Administration Act 1997 (WA);
"Relevant Land", in relation to Eligible Existing Tenure or Special
Advance Tenure, means the land which is the subject of that Eligible
Existing Tenure or Special Advance Tenure, as the case may be;
"second variation date" means the date on which clause 3 of the
variation agreement made on or about 7 November 2011 between the
State and the Company comes into operation;
"Special Advance Tenure" means:
(a)
a miscellaneous licence or general purpose lease requested
under Clause 23(2c) to be granted to the Company under the
Mining Act 1978; or
(b)
an easement or a lease requested under Clause 23(2c) to be
granted to the Company under the LAA,
and as the context requires such tenure if granted;
(2)
in clause 2(e) by inserting after "for the time being in force
thereunder" the words "(and for the avoidance of doubt this principle,
subject to the context and without limitation to its application to other
Acts, may apply in respect of references to the Land Act
notwithstanding references in this Agreement to the LAA)";
(3)
by inserting after clause 10B the following new clauses:
"Community development plan
10C.
As at 15 Dec 2011
(1)
In this Clause, the term "community and social
benefits" includes:
(a)
assistance with skills development and
training opportunities to promote work
readiness and employment for persons
living in the Pilbara region of the said State;
(b)
regional development activities in the
Pilbara region of the said State, including
partnerships and sponsorships;
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 137
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 3
Second Variation Agreement
page 138
(c)
contribution to any community projects,
town services or facilities; and
(d)
a regionally based workforce.
(2)
The Company acknowledges the need for community
and social benefits flowing from this Agreement.
(3)
The Company agrees that:
(a)
it shall prepare a plan which describes the
Company's
proposed
strategies
for
achieving community and social benefits in
connection with its activities under this
Agreement; and
(b)
the Company shall, not later than 3 months
after the second variation date, submit to
the Minister the plan prepared under
paragraph (a) and confer with the Minister
in respect of the plan.
(4)
The Minister shall within 2 months after receipt of a
plan submitted under subclause (3)(b), either notify
the Company that the Minister approves the plan as
submitted or notify the Company of changes which
the Minister requires be made to the plan. If the
Company is unwilling to accept the changes which
the Minister requires it shall notify the Minister to
that effect and either party may refer to arbitration
hereunder the question of the reasonableness of the
changes required by the Minister.
(5)
The effect of an award made on an arbitration
pursuant to subclause (4) shall be that the relevant
plan submitted by the Company pursuant to
subclause (3)(b) shall, with such changes required by
the Minister under subclause (4) as the arbitrator
determines to be reasonable (with or without
modification by the arbitrator), be deemed to be the
plan approved by the Minister under this Clause.
(6)
At least 3 months before the anticipated submission
of proposals relating to a proposed development
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 3
Second Variation Agreement
pursuant to any of Clauses 10, 11, 15, 15C and 27 the
Company must, unless the Minister otherwise
requires, give to the Minister information about how
the proposed development may affect the plan
approved or deemed to be approved by the Minister
under this Clause. This obligation operates in relation
to all proposals submitted on or after the date that is
4 months after the date when a plan is first approved
or deemed to be approved under this Clause.
(7)
The Company shall at least annually report to the
Minister about the Company's implementation of the
plan approved or deemed to be approved by the
Minister under this Clause.
(8)
At the request of either of them made at any time and
from time to time, the Minister and the Company
shall confer as to any amendments desired to any plan
approved or deemed to be approved by the Minister
under this Clause and may agree to amendment of the
plan or adoption of a new plan. Any such amended
plan or new plan will be deemed to be the plan
approved by the Minister under this Clause in respect
of the development to which it relates.
(9)
During the currency of this Agreement, the Company
shall implement the plan approved or deemed to be
approved by the Minister under this Clause.
Local participation plan
10D.
As at 15 Dec 2011
(1)
In this Clause, the term "local industry participation
benefits" means:
(a)
the use and training of labour available
within the said State;
(b)
the use of the services of engineers,
surveyors, architects and other professional
consultants, experts, specialists, project
managers and contractors available within
the said State; and
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 139
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 3
Second Variation Agreement
(c)
page 140
the procurement of works, materials, plant,
equipment and supplies from Western
Australian suppliers, manufacturers and
contractors.
(2)
The Company acknowledges the need for local
industry participation benefits flowing from this
Agreement.
(3)
The Company agrees that it shall, not later than
3 months after the second variation date, prepare and
provide to the Minister a plan which contains:
(a)
a clear statement on the strategies which the
Company will use, and require a third party
as referred to in subclause (7) to use, to
maximise the uses and procurement
referred to in subclause (1);
(b)
detailed information on the procurement
practices the Company will adopt, and
require a third party as referred to in
subclause (7) to adopt, in calling for tenders
and letting contracts for works, materials,
plant, equipment and supplies stages in
relation to a proposed development and
how such practices will provide fair and
reasonable opportunity for suitably
qualified Western Australian suppliers,
manufacturers and contractors to tender or
quote for works, materials, plant,
equipment and supplies;
(c)
detailed information on the methods the
Company will use, and require a third party
as referred to in subclause (7) to use, to
have its respective procurement officers
promptly introduced to Western Australian
suppliers, manufacturers and contractors
seeking such introduction; and
(d)
details of the communication strategies the
Company will use, and require a third party
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 3
Second Variation Agreement
as referred to in subclause (7) to use, to
alert Western Australian engineers,
surveyors, architects and other professional
consultants, experts, specialists, project
managers and consultants and Western
Australian suppliers, manufacturers and
contractors to services opportunities and
procurement opportunities respectively as
referred to in subclause (1).
It is acknowledged by the Company that the strategies
of the Company referred to in subclause (3)(a) will
include strategies of the Company in relation to
supply of services, labour, works, materials, plant,
equipment or supplies for the purposes of this
Agreement.
(4)
At the request of either of them made at any time and
from time to time, the Minister and the Company
shall confer as to any amendments desired to any plan
provided under this clause and may agree to the
amendment of the plan or the provision of a new plan
in substitution for the one previously provided.
(5)
At least 6 months before the anticipated submission
of proposals relating to a proposed development
pursuant to any of Clauses 10, 11, 15, 15C and 27, the
Company must, unless the Minister otherwise
requires, give to the Minister information about the
implementation of the plan provided under this
Clause in relation to the proposed development. This
obligation operates in relation to all proposals
submitted on or after the date that is 7 months after
the date when a plan is first provided under this
Clause.
(6)
During the currency of this Agreement the Company
shall implement the plan provided under this Clause.
(7)
The Company shall:
(a)
As at 15 Dec 2011
in every contract entered into with a third
party where the third party has an
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 141
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 3
Second Variation Agreement
obligation or right to procure the supply of
services, labour, works, materials, plant,
equipment or supplies for or in connection
with a proposed development, ensure that
the contract contains appropriate provisions
requiring the third party to undertake
procurement activities in accordance with
the plan provided under this Clause; and
(b)
(4)
by deleting clause 13(1)(ii) and substituting the following paragraph:
"(ii)
(5)
on fine ore sold or shipped separately as such at the rate of:
(A)
5.625% of the f.o.b. value, for ore shipped prior to or
on 30 June 2012;
(B)
6.5% of the f.o.b. value, for ore shipped during the
period from 1 July 2012 to 30 June 2013 (inclusive of
both dates); and
(C)
7.5% of the f.o.b. value, for ore shipped on or after
1 July 2013;
in clause 15C by:
(a)
deleting in subclause (1) ""LAA"
Administration Act 1997 (WA)";
(b)
inserting after subclause (3)(c) the following new paragraph:
"(d)
means
the
Land
Without limiting subclause (9), the Minister may
waive the requirement under this Clause for the
Company to obtain and to furnish the consent of a
title holder if the title holder has refused to give the
required consent and the Minister is satisfied that:
(i)
page 142
use reasonable endeavours to ensure that
the third party complies with those
provisions.";
the title holder's affected land is or was
subject to a miscellaneous licence granted
under the Mining Act 1978 for the purpose
of a railway to be constructed and operated
in accordance with this Agreement; and
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 3
Second Variation Agreement
(ii)
(A)
the rights of the Company in
relation to the affected land as the
holder of the miscellaneous
licence, relative to its rights as the
holder of the sought Special
Railway Licence or Lateral Access
Road Licence (as the case may be);
and
(B)
the terms of any agreement
between the Company and the title
holder.";
(c)
deleting in subclause (4)(a) the comma after "the provisions
of this Agreement" and substituting "and"; and
(d)
in subclause (7):
(i)
deleting all words in paragraph (c) after "at the date
of such inclusion"; and
(ii)
inserting after paragraph (k) the following new
paragraph:
"(l)
(6)
in the Minister's opinion, the title holder's
refusal to give the required consent is not
reasonable in all the circumstances
including having regard to:
The provisions of clause 24(2a) shall apply
mutatis mutandis to any Railway or
Railway spur line constructed pursuant to
this Clause.";
in clause 23 by:
(a)
inserting at the end of subclause (1) the following new
paragraph:
"Notwithstanding Clause 15A(2)(b)(iv), detailed proposals
may refer to activities on tenure which is proposed to be
granted pursuant to this subclause (1) as if that tenure was
granted pursuant to this Agreement (but this does not limit the
powers or discretions of the Minister under this Agreement or
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 143
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 3
Second Variation Agreement
the Minister responsible for the administration of any relevant
Act with respect to the grant of the tenure).";
(b)
in subclause (2), inserting after "The provisions of this
subclause" the words "and subclauses (2b) and (2c)";
(c)
in subclause (2a), deleting "subclause (1)" and substituting
"subclauses (1), (2b) and (2c)"; and
(d)
inserting after subclause (2a) the following new subclauses:
"Application for Eligible Existing Tenure to be held
pursuant to this Agreement
(2b)
(a)
The Minister may at the request of the
Company from time to time made during
the continuance of this Agreement approve
Eligible Existing Tenure becoming held
pursuant to this Agreement
on such
conditions as the Minister sees fit
(including,
without
limitation
and
notwithstanding the Mining Act 1978 and
the LAA, as to the surrender of land, the
submission of detailed proposals and the
variation of the terms and conditions of the
Eligible Existing Tenure (including for the
Eligible Existing Tenure to be held
pursuant to this Agreement and for the
more efficient use of the Relevant Land))
and the Minister may from time to time
vary such conditions in order to extend any
specified time for the doing of any thing or
otherwise with the agreement of the
Company.
(b)
Eligible Existing Tenure the subject of an
approval by the Minister under this
subclause will be held by the Company
pursuant to this Agreement:
(i)
page 144
if the Minister's approval was not
given subject to conditions, on and
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 3
Second Variation Agreement
from the date of the Minister's
notice of approval;
As at 15 Dec 2011
(ii)
unless paragraph (iii) applies, if the
Minister's approval was given
subject to conditions, on the date
on which all such conditions have
been satisfied; and
(iii)
if the Minister's approval was
given subject to a condition
requiring that the Company submit
detailed proposals in accordance
with this Agreement, on the later of
the date on which the Minister
approves proposals submitted in
discharge of that specified
condition and the date upon which
all other specified conditions have
been satisfied, but the Company is
authorised to implement any
approved proposal to the extent
such implementation is consistent
with the then terms and conditions
of the Eligible Existing Tenure
pending the satisfaction of any
conditions relating to the variation
of the terms or conditions of the
Eligible Existing Tenure. Where
this paragraph (iii) applies, prior to
any approval of proposals and
satisfaction of other conditions, the
relevant tenure will be treated for
(but only for) the purposes of
clause 15A(2)(b)(iv) as tenure held
pursuant to this Agreement.
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 145
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 3
Second Variation Agreement
Application for Special Advance Tenure to be granted
pursuant to this Agreement
(2c)
The Minister may at the request of the Company from
time to time made during the continuance of this
Agreement approve Special Advance Tenure being
granted to the Company pursuant to this Agreement
if:
(a)
the Company proposes to submit detailed
proposals under this Agreement (other than
under Clause 15C) to construct works
installations or facilities on the Relevant
Land and the Company's request is so far as
is practicable made, unless the Minister
approves otherwise, no less than 6 months
before the submission of those detailed
proposals; and
(b)
the Minister is satisfied that it is necessary
and appropriate that Special Advance
Tenure, rather than tenure granted under or
pursuant to the other provisions of this
Agreement, be used for the purposes of the
proposed works installations or facilities on
the Relevant Land,
and if the Minister does so approve:
page 146
(c)
notwithstanding the Mining Act 1978 or the
LAA, the appropriate authority or
instrumentality of the State shall obtain the
consent of the Minister to the form and
substance of the Special Advance Tenure
prior to its grant (which for the avoidance
of doubt neither the State nor the Minister
is obliged to cause) to the Company; and
(d)
if the Company does not submit detailed
proposals relating to construction of the
relevant works installations or facilities on
the Relevant Land within 24 months after
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 3
Second Variation Agreement
the date of the Minister's approval or such
later time subsequently allowed by the
Minister, or if submitted the Minister does
not approve such detailed proposals, the
Special Advance Tenure (if then granted)
shall be surrendered at the request of the
Minister.
(2d)
(7)
The decisions of the Minister under subclauses (2b)
and (2c) shall not be referable to arbitration and any
approval of the Minister under this Clause shall not in
any way limit, prejudice or otherwise affect the
exercise by the Minister of the Minister's powers, or
the performance of the Minister's obligations, under
this Agreement or otherwise under the laws from time
to time of the said State."; and
in clause 24 by:
(a)
deleting in subclause (2) all words after "other railways which
now exist"; and
(b)
inserting after subclause (2) the following new subclause:
"Crossings over Railway
(2a)
As at 15 Dec 2011
For the purposes of livestock and infrastructure such
as roads, railways, conveyors, pipelines, transmission
lines and other utilities proposed to cross the land the
subject of the said railway the Company shall:
(i)
if applicable, give its consent to, or
otherwise facilitate the grant by the State or
any agency, instrumentality or other
authority of the State of any lease, licence
or other title over land the subject of the
said railway so long as such grant does not
in the Minister’s opinion unduly prejudice
or interfere with the activities of the
Company under this Agreement; and
(ii)
on reasonable terms and conditions allow
access for the construction and operation of
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 147
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 3
Second Variation Agreement
such
crossings
infrastructure,
and
associated
provided that in forming his opinion under this
clause, the Minister must consult with the
Company.".
EXECUTED as a deed.
SIGNED by the HONOURABLE
COLIN JAMES BARNETT
in the presence of:
[Signature]
)
)
)
[Signature]
Signature of witness
Stephen Bombardieri
Name of witness
THE COMMON SEAL of HOPE
DOWNS IRON ORE PTY. LTD.
ACN 071 514 308 was hereunto affixed
in accordance with its constitution
in the presence of:
[Signature]
)
)
)
)
)
[C.S.]
Tadeusz J Watroba
Director
[Signature]
Jay Newby
Secretary
page 148
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Schedule 3
Second Variation Agreement
THE COMMON SEAL of
HAMERSLEY WA PTY. LTD.
ACN 115 004 138 was hereunto affixed
by authority of the Directors in the presence of:
[Signature]
)
)
)
)
[C.S.]
Robert Paul Shannon
Director
[Signature]
Helen Fernihough
Secretary
[Schedule 3 inserted: No. 61 of 2011 s. 18.]
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 149
Iron Ore (Hope Downs) Agreement Act 1992
Notes
1
This is a compilation of the Iron Ore (Hope Downs) Agreement Act 1992 and
includes the amendments made by the other written laws referred to in the
following table. The table also contains information about any reprint.
Compilation table
Short title
Number
and year
Assent
Commencement
Iron Ore (Hope Downs)
Agreement Act 1992
62 of 1992
11 Dec 1992 11 Dec 1992 (see s. 2)
Reprint 1: The Iron Ore (Hope Downs) Agreement Act 1992 as at 23 Jan 2004
Standardisation of
Formatting Act 2010 s. 4
19 of 2010
28 Jun 2010
Iron Ore Agreements
Legislation Amendment
Act (No. 2) 2010 Pt. 5
61 of 2010
10 Dec 2010 11 Dec 2010 (see s. 2(c))
Iron Ore Agreements
Legislation Amendment
Act 2011 Pt. 5
61 of 2011
14 Dec 2011 15 Dec 2011 (see s. 2(b))
page 150
11 Sep 2010 (see s. 2(b) and
Gazette 10 Sep 2010 p. 4341)
Version 01-e0-05
Published on www.legislation.wa.gov.au
As at 15 Dec 2011
Iron Ore (Hope Downs) Agreement Act 1992
Defined terms
Defined terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined term
Provision(s)
Agreement............................................................................................................. 3
the First Variation Agreement .............................................................................. 3
the Second Variation Agreement .......................................................................... 3
As at 15 Dec 2011
Version 01-e0-05
Published on www.legislation.wa.gov.au
page 151