Western Australia: Iron Ore (Marillana Creek) Agreement Act 1991 (WA)

Western Australia Iron Ore (Marillana Creek) Agreement Act 1991 Western Australia Iron Ore (Marillana Creek) Agreement Act 1991 Contents 1. Short title 1 2. Commencement 1 3. Terms used 1 4. Agreement ratified 2 4A. Variation Agreement 2 5. Second Variation Agreement 2 6. Variation of Agreement to increase rates of royalty 3 7. Variation of Agreement about size of ore products and applicable royalties 4 8. Third Variation Agreement 6 9. State empowered under clause 14C(9)(a) 6 10. Fourth Variation Agreement 6 Schedule 1 — Iron Ore (Marillana Creek) Agreement Schedule 2 — First Variation Agreement Schedule 3 — Second Variation Agreement Schedule 4 — Third Variation Agreement Schedule 5 — Fourth Variation Agreement Notes Compilation table 148 Defined terms Western Australia Iron Ore (Marillana Creek) Agreement Act 1991 An Act to ratify an agreement between the State and BHP Minerals 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 (Marillana Creek) Agreement Act 1991 1. 2. Commencement This Act shall come into operation on the day on which it receives the Royal Assent 1. 3. Terms used In this Act, unless the contrary intention appears — Agreement means the agreement a copy of which is set out in Schedule 1 and includes that agreement as varied from time to time in accordance with its provisions; First Variation Agreement means the agreement a copy of which is set out in Schedule 2; Fourth Variation Agreement means the agreement a copy of which is set out in Schedule 5; Second Variation Agreement means the agreement a copy of which is set out in Schedule 3; Third Variation Agreement means the agreement a copy of which is set out in Schedule 4. [Section 3 amended: No. 29 of 1994 s. 12; No. 57 of 2000 s. 9; No. 61 of 2010 s. 46; No. 62 of 2011 s. 19.] 4. Agreement ratified (1) The 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. 47.] 4A. Variation Agreement (1) The First Variation Agreement is ratified. (2) The implementation of the First Variation Agreement is authorised. (3) Without limiting or otherwise affecting the application of the Government Agreements Act 1979, the First Variation Agreement shall operate and take effect notwithstanding any other Act or law. [Section 4A inserted: No. 29 of 1994 s. 13; amended: No. 8 of 2009 s. 80.] 5. Second Variation Agreement (1) The Second Variation Agreement is ratified. (2) The implementation of the Second Variation Agreement is authorised. (3) Without limiting or otherwise affecting the application of the Government Agreements Act 1979, the Second Variation Agreement is to operate and take effect despite any other Act or law. [Section 5 inserted: No. 57 of 2000 s. 10.] 6. Variation of Agreement to increase rates of royalty (1) In this section — Agreement means the agreement a copy of which is set out in Schedule 1 — (a) as varied from time to time in accordance with its provisions; and (b) as varied by these agreements — (i) the First Variation Agreement; (ii) the Second Variation Agreement. (2) Clause 1 of the Agreement is varied by inserting in alphabetical order — "fine ore" means iron ore excluding beneficiated ore which is nominally sized minus six millimetres; "lump ore" means iron ore excluding beneficiated ore which is nominally sized plus six millimetres minus thirty millimetres; (3) Clause 13(1) of the Agreement is varied — (a) in paragraph (a) by deleting "3.25%" and inserting — 5% (b) in paragraph (aa)(i) by deleting "5.625%" and inserting — 7.5% (c) after paragraph (aa) by inserting — (ab) on lump ore at the rate of 7.5% of the f.o.b. value; (ac) on fine ore at the rate of 5.625% of the f.o.b. value; (4) Clause 13(1)(a) and (aa)(i) of the Agreement as varied, and clause 13(1)(ab) and (ac) as inserted in the Agreement, by subsection (3) operate and take effect despite — (a) any other provision of the Agreement; and (b) any other agreement or instrument; and (c) any other Act or law. (5) Nothing in this section affects the amount of royalty payable under clause 13 of the Agreement in respect of any period before the commencement of the Iron Ore Agreements Legislation Amendment Act 2010 Part 4 1. [Section 6 inserted: No. 34 of 2010 s. 9.] 7. Variation of Agreement about size of ore products and applicable royalties (1) In this section — Agreement means the agreement a copy of which is set out in Schedule 1 — (a) as varied in accordance with its provisions before 1 July 2010; and (b) as varied by these agreements — (i) the First Variation Agreement; (ii) the Second Variation Agreement; and (c) as varied by the Iron Ore Agreements Legislation Amendment Act 2010 Part 4. (2) Clause 1 of the Agreement is varied — (a) by deleting the definitions of "fine ore" and "lump ore"; (b) by inserting in alphabetical order — "fine ore" means iron ore (not being beneficiated ore or pisolite fine ore) which is screened and will pass through a 6.3 millimetre mesh screen; "lump ore" means iron ore (not being beneficiated ore or pisolite fine ore) which is screened and will not pass through a 6.3 millimetre mesh screen; "pisolite fine ore" means iron ore (not being beneficiated ore) derived from channel iron ore deposits that appear to be chemically precipitated sedimentary deposits comprised of a pisolitic texture of hematite grains rimmed with goethite in a goethitic matrix and: (a) having a product gross loss on ignition of 8.5% or greater; and (b) which is screened and will pass through a 9.5 millimetre mesh screen; (3) Clause 13(1) of the Agreement is varied — (a) in paragraph (ab) after "lump ore" by inserting — and on fine ore and pisolite fine ore where such fine ore and pisolite fine ore is not sold or shipped separately as such (b) in paragraph (ac) after "fine ore" by inserting — and on pisolite fine ore sold or shipped separately as such (4) Clause 13(1)(ab) and (ac) of the Agreement as varied by subsection (3) operate and take effect despite — (a) any other provision of the Agreement; and (b) any other agreement or instrument; and (c) any other Act or law. (5) Nothing in this section affects the amount of royalty payable under clause 13 of the Agreement in respect of any period before 1 July 2010. [Section 7 inserted: No. 61 of 2010 s. 45.] 8. Third Variation Agreement (1) The Third Variation Agreement is ratified. (2) The implementation of the Third Variation Agreement is authorised. (3) Without limiting or otherwise affecting the application of the Government Agreements Act 1979, the Third Variation Agreement is to operate and take effect despite any other Act or law. [Section 8 inserted: No. 61 of 2010 s. 48.] 9. State empowered under clause 14C(9)(a) The State has power in accordance with clause 14C(9)(a) of the Agreement. [Section 9 inserted: No. 61 of 2010 s. 48.] 10. Fourth Variation Agreement (1) The Fourth Variation Agreement is ratified. (2) The implementation of the Fourth Variation Agreement is authorised. (3) Without limiting or otherwise affecting the application of the Government Agreements Act 1979, the Fourth Variation Agreement is to operate and take effect despite any other Act or law. [Section 10 inserted: No. 62 of 2011 s. 20.] Schedule 1 — Iron Ore (Marillana Creek) Agreement [s. 3] [Heading amended: No. 29 of 1994 s. 14; No. 19 of 2010 s. 4.] THIS AGREEMENT is made this 20th day of December 1990 BETWEEN 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 BHP MINERALS LIMITED a company incorporated in the State of Western Australia and having its registered office at Level 18, 200 St George's Terrace, Perth (hereinafter called "the Company" in which term shall be included its successors and permitted assigns) of the other part. WHEREAS: (a) the Company has established within the lands the subject of Exploration Licences Nos. 47/294, 47/71 and 47/23 iron ore of tonneages and grades sufficient to warrant economic recovery and marketing; (b) the said Exploration Licence No. 47/294 comprises the land within Temporary Reserve No. 3359H which (with other land) has hitherto been reserved by the State under the provisions of clause 23(4)(g) of the Agreement defined in section 2 of the Iron Ore (The Broken Hill Proprietary Company Limited) Agreement Act 1964 (hereinafter called "the 1964 Agreement"); (c) by an assignment dated the 18th day of March 1966 the benefit of the said clause 23(4)(g) and certain other clauses of the 1964 Agreement was assigned with the consent of the State to the Company; (d) The Broken Hill Proprietary Company Limited and Australian Iron & Steel Proprietary Limited also hold interests under the 1964 Agreement and by an agreement of even date herewith they the State and the Company have agreed to the cancellation of the 1964 Agreement to take effect on the coming into operation of this Agreement; (e) the Company has put forward a project outline for an initial mining operation which will produce approximately 5,500,000 tonnes of iron ore per annum for transportation from the mining lease and have capacity to produce up to 10,000,000 tonnes of iron ore per annum for transportation from the mining lease as markets develop and which will provide accommodation for the mine workforce by way of temporary facilities established in the vicinity of the mining lease; and (f) the State and Company have agreed to enter into this Agreement for the purpose of assisting the establishment of the initial mining operation as described above and providing a framework for managing future changes to the project, particularly in relation to production and workforce increases and changes in workforce accommodation arrangements. 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 workforce; "advise", "apply", "approve", "approval", "consent", "certify", "direct", "notify", "request", or "require", means advise, apply, approve, approval, consent, certify direct, notify, request, or require in writing as the case may be and any inflexion or derivation of any of those words has a corresponding meaning; "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 not including beneficiated ore or beneficiated ore as the case may require 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 determined under this Agreement; "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; "Clause" means a clause of this Agreement; "commencement date" means the date the Bill referred to in Clause 3 comes into operation as an Act; "Commonwealth" means the Commonwealth of Australia and includes the Government for the time being thereof; "Company'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 Environment Act 1986; "f.o.b. value" means — (i) 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; (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; (ii) 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" includes beneficiated ore; "Land Act" means the Land Act 1933; "loading port" means the port of Port Hedland or if iron ore is not shipped, or is not shipped from that port, then such port (which may include the port of Port Hedland) as the Minister may determine 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; "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; "mine workforce" means the Company's workforce engaged for the Company's activities on the mine site 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; "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; "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; "Mount Newman Participants" means the parties (or party) for the time being constituting "the Company" under the agreement defined in section 2 of the Iron Ore (Mount Newman) Agreement Act 1964; "notice" means notice in writing; "person" or "persons" includes bodies corporate; "private roads" means the roads referred to in subclause (1) of Clause 16 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; "ultimate holding company" bears the same meaning as in section 7(6) of the Companies (Western Australia) Code (as enacted at the date of execution of this Agreement); "washing" means a process of separation by water using only size as a criterion. Interpretation 2. (1) In this Agreement — (a) monetary references are references to Australian currency unless otherwise specifically expressed; (b) power given under any clause other than Clause 33 to extend any period or date shall be without prejudice to the power of the Minister under Clause 33; (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. (2) For the purposes of subclause (3) of Clause 7 and subclause (5) of Clause 23 the Company shall be deemed to be associated with the Mount Newman Participants in the following events — (a) when one party only constitutes "the Company" under this Agreement and one party only constitutes the Mount Newman Participants and — (i) those parties are the same party; or (ii) each of those parties has an ultimate holding company which is the same company; or (b) when more than one party constitutes "the Company" under this Agreement and more than one party constitutes the Mount Newman Participants and each of the parties constituting "the Company" under this Agreement — (i) is a Mount Newman Participant; (ii) has an ultimate holding company which is also the ultimate holding company of a Mount Newman Participant; (iii) is the ultimate holding company of a Mount Newman Participant; or (iv) has a Mount Newman Participant as its ultimate holding company AND either — (v) all the parties constituting the Mount Newman Participants are related to the parties constituting "the Company" under this Agreement in a manner mentioned in subparagraphs (i)‑(iv) of this paragraph; or (vi) if any parties constituting the Mount Newman Participants are not so related each of those parties has an ultimate holding company which is also an ultimate holding company of a Mount Newman Participant which is so related. 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 30 June 1991; 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 6. 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 30 June 1991 the said Bill has not commenced to operate as an Act then unless the parties hereto otherwise agree this Agreement shall then cease and determine and no party hereto shall have any claim against any other party hereto with respect to any matter or thing arising out of, done, performed, or omitted to be done or performed under this Agreement. (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. Cancellation of 1964 Agreement 5. The parties hereto acknowledge that pursuant to the agreement referred to in recital (d) hereof the 1964 Agreement has on the coming into operation of this Agreement been cancelled and the rights and obligations of the parties thereunder terminated (but without affecting the variations made to the agreement ratified by the Broken Hill Proprietary Steel Industry Agreement Act 1952 and the agreement ratified by the Broken Hill Proprietary Company's Integrated Steel Works Agreement Act 1960 (each as amended from time to time) by clauses 20 and 24 of the 1964 Agreement). Initial obligations of the Company 6. (1) The Company shall continue its field and office engineering, environmental, market and finance studies and other matters necessary to enable it to finalise and to submit to the Minister the detailed 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). (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. Company to submit proposals 7. (1) Subject to and in accordance with the EP Act and any approvals and licences required under that Act the Company shall on or before 31 October 1991 and subject to the provisions of this Agreement submit to the Minister 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 up to 5,500,000 tonnes of iron ore per annum for transportation from the land to be the subject of the mining lease 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 workforce on or in the vicinity of the mining lease 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; (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 (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 him 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 the Mount Newman Participants during any period when the Company is associated with the Mount Newman Participants, or upon reasonable terms and conditions 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 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. Consideration of proposals 8. (1) Subject to the EP Act, in respect of each proposal pursuant to subclause (1) of Clause 7 the Minister shall — (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 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 give notice to the Minister of its acceptance of the award this Agreement shall on the expiration of that period of 3 months cease and determine; or (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. Effect of non‑approval of proposals (6) Notwithstanding that under subclause (1) any proposals of the Company are approved by the Minister or determined by arbitration award, unless each and every such proposal and matter is so approved or determined by 31 October 1992 or by such extended date or period if any as the Company shall be granted pursuant to the provisions of this Agreement then the Minister may give to the Company 12 months notice of intention to determine this Agreement and unless before the expiration of the said 12 months period all the detailed proposals and matters are so approved or determined this Agreement shall cease and determine subject however to the provisions of Clause 35. Implementation of proposals (7) 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. Overall development 9. (1) Having regard to the geographical relationship and physical association of the mining lease with other iron ore deposits in and to the general development of the central Hamersley Range 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 to increase production of iron ore where the total production after such increase will not exceed 10,000,000 tonnes of iron ore per annum for transportation from the mining lease and the proposal does not involve any significant variation to the mine 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 central Hamersley Range area having regard to then existing iron ore operations and facilities and other existing developments; and (c) an open town or other appropriate housing and accommodation arrangements to service the iron ore mines and other developments in the central Hamersley Range area. (2) 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. 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 5,500,000 tonnes of iron ore per annum for transportation from the mining lease 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) and (6)) shall mutatis mutandis apply to detailed proposals submitted pursuant to this subclause with the proviso that the Company may withdraw such proposals at any time before approval thereof or, where any decision of the Minister in respect thereof is referred to arbitration, within 3 months after the award by notice to the Minister that it shall not be proceeding with the same. Subject to and in accordance with the EP Act and any approvals and licences required under that Act the Company shall implement approved proposals pursuant to this Clause in accordance with the terms thereof. Limits on mining 11. (1) The Company shall not produce more than 10,000,000 tonnes of iron ore per annum for transportation from the mining lease nor shall the total number of the mine workforce exceed 100 without the prior consent of the Minister and approval of detailed proposals in regard thereto in accordance with this Clause. (2) (a) If the Company desires to increase the annual tonneage or the mine workforce beyond that specified in subclause (1) it 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. 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 the rail spur 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 23. (3) (a) If the Minister approves in principle a proposed increase the Company must within three 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. (4) Any proposal under this Clause to increase the annual tonneage to be produced or the number of the mine 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 workforce as the case may be and also to any subsequent desires of the Company for an increase in the tonneage or mine 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 so much of the land as is then held by the Company under the exploration licences referred to in recital (a) of this Agreement the State shall upon the surrender by the Company of the 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. Term (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 for 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. 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 Mines 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. 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) (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 is likely unduly to 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 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. (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. (d) (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 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) (i) 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. (ii) On the expiration or sooner determination of any such mining tenement or, 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, then on the expiration or sooner determination of the substitute title the land the subject of such mining tenement or substitute title as the case may be 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. Royalties 13. (1) 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 — (a) on beneficiated ore at the rate of 3.25% of the f.o.b. value; (b) on all other iron ore of whatever kind at the rate of 5.625% of the f.o.b. value. (2) The Company shall — (a) 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 beneficiated ore produced and all other 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 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 or 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. Protection and management of the environment 14. (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 including monitoring to ascertain the effectiveness of the measures it is taking pursuant to such approved proposals for rehabilitation and the protection and management of the environment and shall as and when reasonably required by the Minister from time to time submit to the Minister a detailed report thereon. (2) Whenever as a result of its activities pursuant to subclause (1) or otherwise information becomes available to the Company which in order to more effectively rehabilitate, protect or manage the environment may necessitate or could require any changes or additions to any approved proposals or require matters not addressed in any such proposals to be addressed the Company shall forthwith notify the Minister thereof and with such notification shall submit a detailed report thereon. (3) The Minister may within 2 months of the receipt of a detailed report pursuant to subclauses (1) or (2) notify the Company that he requires additional detailed proposals to be submitted in respect of all or any of the matters the subject of the report and such other reasonable matters as the Minister may require in connection therewith. (4) The Company shall within 2 months of receipt of a notice given pursuant to subclause (3) 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. (5) 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 15. (1) 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 contractor'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 (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. Roads — Private roads 16. (1) (a) Except with the consent of the Minister roads providing access to the mining lease shall be restricted to — (i) a road between the mining lease and the accommodation area; (ii) a road from the mine aerodrome serving the mining lease connecting with the mining lease or the road referred to in subparagraph (iv) of this paragraph; (iii) a railway maintenance road serving the rail spur; and (iv) the existing road from the Newman‑Port Hedland railway road to the mining lease. (b) (i) The use of the road referred to in paragraph (a)(iv) of this subclause is subject to the Company obtaining for itself the right to do so from the holder from time to time of the Crown Lease No. 19/1973 (Pastoral Lease No. 3114/984 — Marillana Station) and likewise obtaining the right to use the Newman‑Port Hedland railway road for the purposes of this Agreement from the holder or holders from time to time of the lease of that road. (ii) The Company shall not upgrade or propose any upgrading of the road referred to in paragraph (a)(iv) of this subclause beyond the standard specified in its initial proposals under Clause 7 without the consent of the Minister. Construction of private roads (2) The Company shall — (a) be responsible for the cost of the construction and maintenance of all private roads which shall be used in its activities hereunder; (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 (3) 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 (4) 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 (3) 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 (5) 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 a public road. Upon any such resumption the State shall pay to the Company such amount as is reasonable. Aerodrome 17. (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 as defined by the Civil Aviation Authority standard AGA‑6 dated 3 May 1990 or future equivalent without the approval of the Minister. Electricity — purchase of electricity 18. (1) For the purposes of facilitating integration of electricity generation and transmission facilities in the areas where the Company carries on activities under this Agreement 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 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) 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 capacity to generate electricity for its activities hereunder; and (b) transmit power within the mine site and for the operations of the rail spur 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, 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‑mining lease 19. (1) (a) To the fullest extent reasonably practicable the Company shall use water obtained from dewatering on the mining lease for its purposes under this Agreement. (b) 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 mining lease by dewatering or any discharge or escape from the mining lease of water obtained by dewatering. Water requirements (2) 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") and amounts required to be withdrawn in dewatering. Search within mining lease (3) The Company shall at its cost and in collaboration with the State continue its investigations with respect to underground water within the mining lease and shall furnish to the Minister details of the results of its investigations from time to time and copies of any reports prepared in connection therewith. Grant of licence (4) Subject to and in accordance with the approved proposals the State shall grant or cause to be granted to the Company a licence to develop and draw from the source specified in those proposals, at the Company's cost but without fee, the mining water requirements and withdrawal amounts 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 prove hydrologically inadequate to meet the mining water requirements on a continuous basis, 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 water which may be taken from that source at any one time or from time to time to the maximum which in the opinion of the Minister that source is hydrologically capable of meeting as aforesaid. Development of water sources (5) 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. Enlarged water capacity (6) 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 (7) 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) 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 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. Charges for supply of water to third parties (8) 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 o