Western Australia: Iron Ore (Murchison) Agreement Authorisation Act 1973 (WA)

Western Australia Iron Ore (Murchison) Agreement Authorisation Act 1973 Western Australia Iron Ore (Murchison) Agreement Authorisation Act 1973 Contents 1. Short title 1 2. Execution of agreement authorised 1 3. Executed agreement to operate and take effect 1 Schedule — Iron Ore (Murchison) Agreement Notes Compilation table 69 Western Australia Iron Ore (Murchison) Agreement Authorisation Act 1973 An Act to authorise the execution on behalf of the State of an agreement with Northern Mining Corporation N.L. relating to the exploration for and the development and treatment of iron ore and for incidental and other purposes. 1. Short title This Act may be cited as the Iron Ore (Murchison) Agreement Authorisation Act 1973 1. 2. Execution of agreement authorised The execution by the Premier of the State of Western Australia acting for and on behalf of the State of an agreement in or substantially in accordance with the form set out in the Schedule is authorised. 3. Executed agreement to operate and take effect When the agreement referred to in section 2 is duly executed by all the parties thereto, the agreement shall, subject to its provisions, operate and take effect as though those provisions were enacted in this Act. Schedule — Iron Ore (Murchison) Agreement [s. 2] [Heading amended: No. 19 of 2010 s. 4.] THIS AGREEMENT made the day of One thousand nine hundred and seventy‑three BETWEEN THE HONOURABLE JOHN TREZISE TONKIN, M.L.A., THE PREMIER OF THE STATE OF WESTERN AUSTRALIA acting for and on behalf of the said State and its instrumentalities from time to time (hereinafter called "the State") of the one part and NORTHERN MINING CORPORATION N.L. a company incorporated under the Companies Act 1961 of the State of Victoria in the Commonwealth of Australia and having its registered office in the State of Western Australia situate at 442 Murray Street Perth (hereinafter called "the Company" which expression shall where the context so admits or requires extend to and include the successors assigns and appointees of the Company) of the other part. WHEREAS: (a) The Company is exploring and investigating the possibility of the mining areas hereinafter defined containing deposits of iron ore. (b) Research is being conducted by the Company with the object of establishing satisfactory ore crushing, screening, and upgrading procedures in the treatment of iron ore from the mining areas. NOW THIS AGREEMENT WITNESSETH as follows — Definitions 2 1. In this Agreement subject to the context — "apply", "appoint", "approve", "approval", "consent", "certify", "direct", "notify", "require" , or "request" means apply, appoint, approve, approval, consent, certify, direct, notify, require, or request in writing as the case may be; "approved proposals" means proposals of the Company which are approved or are deemed to be approved by the Minister pursuant to this Agreement; "associated company" means — (a) any Company notified by the company to the Minister which has a paid‑up capital of not less than two million dollars and is incorporated in the United Kingdom, the United States of America, or the Commonwealth of Australia and which — (i) is promoted by the Company for all or any of the purposes of this Agreement and in which the Company holds not less than twenty per centum of the issued ordinary share capital or — (ii) is related within the meaning of section 6 of the Companies Act 1961 to the Company or to any company in which the Company holds not less than twenty per centum of the issued ordinary share capital and — (b) any other company which the Minister approves as an associated company for the purposes of this Agreement. "Company's wharf" means any wharf utilised by the Company for the purpose of shipping iron ore products produced as the result of the operation of this Agreement and whether the same be a wharf constructed by or on behalf of the Company a wharf used by the Company in conjunction with another or others (including the State) or any temporary structure approved by the Minister as the Company's wharf for the time being for the purposes of this Agreement; "Clause" means a clause of this Agreement; "commencement date" means the date on which this Agreement is executed by all the parties hereto; "Commission" means the State Electricity Commission of Western Australia; "Commonwealth" means the Commonwealth of Australia and includes the Government thereof for the time being; "direct shipping ore" means iron ore which has an average pure iron content of not less than sixty per centum which will not pass through a 6 millimetre mesh screen and which is sold without concentration or other beneficiation other than crushing and screening; "export date" means the date on which the ship carrying the first shipment of iron ore products shipped by the Company under this Agreement (other than iron ore shipped solely for testing purposes) sails from the port at which it has been loaded; "financial year" means a year commencing on and including the 1st day of July; "fine ore" means iron ore which has an average pure iron content of not less than sixty per centum which will pass through a 6 millimetre mesh screen and which is sold without concentration or other beneficiation other than crushing and screening; "fines" means iron ore (not being direct shipping ore or fine ore) which will pass through a 6 millimetre mesh screen; "f.o.b. revenue" means the price for iron ore products the subject of any shipment or sale which is payable by the purchaser thereof to the Company or an associated company, less all export duties and export taxes payable on such iron ore products and less all costs and charges properly incurred and payable on such iron ore products by the Company or an associated company to the State or a third party from the time when the iron ore products are placed on ship at the Company's wharf to the time when the iron ore products are delivered and accepted by the purchaser, there being included in such costs and charges — (1) ocean freight; (2) marine insurance; (3) port and handling charges at port of discharge; (4) costs of delivery from port of discharge to a smelter nominated by the purchaser; (5) weighing, sampling, assaying, inspection and representation costs incurred on discharge or delivery; (6) shipping agency charges; (7) import taxes payable to the country of the port of discharge; (8) demurrage incurred after loading and at port of discharge; and (9) such other costs and charges as the parties (having regard inter alia to such matters as the parties to and the bona fide nature of the transaction as the result of which the cost or charge was incurred) shall agree to include or failing agreement as fixed by arbitration as hereinafter provided. For the purpose of this definition — (a) the Minister may from time to time in respect of any of the costs or charges mentioned in Items (1) to (9) (inclusive) above incurred in relation to any particular shipment or sale notify the Company that he does not regard the cost or charge as being properly incurred and in that event should the Company disagree with the Minister's decision it may refer the matter in question to arbitration as hereinafter provided but unless and until it is otherwise determined such cost or charge shall be treated as being not properly incurred and if otherwise determined the State shall refund to the Company any royalty paid by the Company on the basis that the charge was not properly incurred; (b) notwithstanding anything contained in this definition to the contrary, a cost or charge as set out in items (1) to (8) inclusive of this definition shall not (unless and until the Minister so determines) be deemed to be properly incurred if such charge is directly or indirectly imposed upon or incurred by the Company or an associated company pursuant to an arrangement entered into between the Company and the State; (c) in the event of the parties failing to agree to the inclusion of a cost or charge which might be included pursuant to item (9) and referring the matter to arbitration then unless and until it is otherwise determined such cost or charge shall be excluded but if it is determined that the same should be included the State shall refund to the Company any royalty paid by reason of the same having been excluded; "integrated iron and steel industry" means an industry for the manufacture of iron and steel or for the manufacture of steel from iron ore by a process which does not necessarily involve the production of pig iron or basic iron in the production of steel; "iron ore" means iron ore from the mining areas; "iron ore concentrates" means products (whether in pellet or other form) resulting from secondary processing but does not include metallised agglomerates; "iron ore pellets" means iron ore in pellet or other form produced by pelletisation or a more advanced reduction or other treatment or process from iron ore mined on the mineral lease; "iron ore products" is an inclusive term covering iron ore of all grades obtained from the mineral lease and also all products produced by secondary and tertiary processing any part of such iron ore; "Land Act" means the Land Act 1933; "locally used ore" means iron ore used by the Company or an associated company within the Commonwealth for secondary processing or tertiary processing and includes iron ore used by any other person in the said State for secondary processing or tertiary processing; "metallised agglomerates" means products resulting from the reduction of iron ore or iron ore concentrates by any method whatsoever and having an iron content of not less than eighty five per centum; "mineral lease" means the mineral lease or mineral leases referred to in Clause 12(1) and includes any renewal thereof and where the context so permits shall describe the area of land demised as well as the instrument by which it is demised; "mine townsite" means a townsite or townsites established by the Company on or near the mining areas pursuant to this Agreement and includes any existing townsite approved by the Minister; "Mining Act" means the Mining Act 1904; "mining areas" means the area delineated and coloured green on the plan marked "A" together with such of the areas delineated and coloured blue on that plan over which rights of occupancy pursuant to section 276 of the Mining Act may at any time (whether before or after the commencement of this Agreement) be granted to the Company or transferred to the Company with the approval of the Minister for Mines; "Minister" means the Minister in the Government of the said State for the time being responsible for the administration of this Agreement; "Minister for Mines" means the Minister in the Government of the said State for the time being responsible for the administration of the Mining Act; "month" means calendar month; "notice" means notice in writing; "ore" means iron ore; "parties" means the parties to this Agreement; "person" or "persons" includes bodies corporate; "port" means a new port to be established near Geraldton under the control of the Geraldton Port Authority in implementation of approved proposals hereunder whether the same be established by the Company exclusively or by it in conjunction with another or others (including the State) and should no such new port be established the term means any existing port developed or used by the Company for the purposes of this Agreement by arrangement with another or others (including the State) and in either case the term extends to and includes as well as the land upon which the Company's wharf is erected also the adjacent land serving the Company's wharf and the adjacent land on which it is proposed to locate or on which could be located or in fact is located secondary processing plants crushing grinding and screening facilities stock piling yards electric power generating plant petroleum storage and other ancillary facilities; "port townsite" subject to the provisions of Clause 26 means the town of Geraldton including those environs of that town within the Shires of Chapman Valley and Greenough; "Railways Commission" means the Western Australian Government Railways Commission established pursuant to the Government Railways Act 1904; "said State" means the State of Western Australia; "secondary processing" means the concentration or other beneficiation of iron ore otherwise than by crushing or screening and includes thermal electrostatic magnetic and gravity processing and the production of pellets iron ore concentrates metallised agglomerates and sponge iron; "steel" means steel in the form of steel billets or manufactured steel products; "tertiary processing" means the production of pig iron by blast furnace smelting the production of steel by any means whatsoever and the further processing of steel into special shapes and alloys; "this Agreement" "hereof" and "hereunder" includes this Agreement as from time to time added to varied or amended; "tonne" means a tonne of 1000 kilograms net dry weight; "Transfer of Land Act" means Transfer of Land Act 1893; "wharf" includes any jetty structure; "Year 1" means the year next following the export date and "year" followed immediately by any other numeral has a corresponding meaning. Interpretation 2 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 47 to extend any period or date shall be without prejudice to the power of the Minister under Clause 47; (c) marginal notes 2 do not affect the interpretation or construction; and (d) 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) Where any provision of this Agreement constitutes an agreement or undertaking by one of the parties to make a payment or to perform some act or to carry out some obligation or to assume some responsibility or liability or to grant some right concession or advantage that party shall by its execution hereof be deemed to have covenanted and agreed with the other party accordingly. (3) The State and the Minister shall be deemed to have power and authority to exercise all such powers and discretions and to do all such other acts matters and things as may be required or be necessary to be exercised or done in order to carry out and give effect to the provisions of this Agreement and in particular the State and the Minister shall be deemed to have power — (i) to close or vary the alignments or boundaries of any public road and — (ii) to resume as and for a public work any land or other estate right or interest in land. Effect on existing Acts 2 3. As from the date hereof all the provisions of this Agreement shall operate and take effect notwithstanding the provisions of any other Act or any law to the contrary and for the purposes of this Agreement and without limiting the generality of the foregoing the undermentioned Acts shall be deemed modified and amended to the extent indicated namely — (a) the Mining Act by deleting Sections 277 and 282 thereof; (b) the Land Act — (i) by deleting subsections (1) and (2) of Section 45A thereof and by substituting the following — "45A (1) Notwithstanding anything contained in the last preceding Sections of this Part (Part IV) of this Act the Governor may dispense with the requirements thereof as to the sale of town or country lands and may approve of any lot being offered for sale or for leasing in the manner prescribed in subsection (2) of this Section. (2) Upon the Governor signifying approval pursuant to subsection (1) of this Section in respect of any such lands the Minister may offer the said lands or any part thereof for sale or may grant leases or licences thereof for such price or prices and for such period or periods (including rights of renewal) and upon and subject to such other terms and conditions and in such form as the Minister may think fit provided that the price period or other terms and conditions shall not be inconsistent with the provisions of any agreement executed by the Premier of the State of Western Australia acting for and on behalf of the said State pursuant to the authority in that behalf given by an Act of the Parliament of the said State."; (ii) by deleting the proviso to Section 116 thereof; (iii) by deleting Sections 135 and 143 thereof; (c) the Public Works Act 1902 — by deleting subsections (2) to (7) inclusive of Section 17 thereof and also the whole of Section 17A thereof; (d) Section 82 of the Mining Act and Section 81D of the Transfer of Land Act shall not apply to a mortgage or charge in the form commonly known as a floating charge given by the Company or an associated company pursuant to Clause 41 or to a transfer or assignment in exercise of a power of sale contained in any such mortgage or charge; (e) no lease sublease licence or other title or right granted or assigned under or pursuant to this Agreement shall be subject to or capable of partition and the provisions of Part XVI of the Property Law Act 1969 shall not apply thereto. Right to enter Crown land 2 4. To the extent reasonably necessary for the purpose of the investigations and studies and subject to the adequate protection of the environment (including flora and fauna) and the affected land and improvements thereon the State shall permit the Company to enter into and upon Crown land other than the mining areas (including the lands the subject of a pastoral lease) and to survey possible sites for its proposed operations under this Agreement. Rights of occupancy of mining areas 2 5. As soon as practicable after the commencement date the State shall upon application by the Company cause to be granted to the Company the sole and exclusive right to search and prospect for iron ore in the mining areas (but excluding therefrom any existing prospecting areas, claims, leases, or authorised holdings under the Mining Act and any land alienated or in the course of alienation and any land reserved (not being Crown land within the meaning of the Mining Act).) by granting to the Company rights of occupancy pursuant to section 276 of the Mining Act over the Temporary Reserves contained in the mining areas for the period and upon and subject to the following terms and conditions — Existing rights to be surrended 2 (a) the rights of occupancy shall be granted subject to the condition precedent that the Company surrenders all its existing rights of occupancy in respect of the mining areas to the Minister for Mines; Period of rights of occupancy 2 (b) the rights of occupancy shall be for a period expiring five years after the commencement date; Consideration of rights of occupancy 2 (c) the Company shall within one month after the commencement date and thereafter on the first and every subsequent anniversary of the commencement date during the continuance of the period of the rights of occupancy pay to the State as consideration for the rights of occupancy in advance an annual fee of one thousand dollars for each Temporary Reserve comprised in the mining areas and in addition ten dollars for each square kilometre or part of a square kilometre of the mining areas for the time being subject to the rights of occupancy; Obligation to prospect 2 (d) the Company shall in so far as it has not already done so at its expense and in accordance with a programme first approved by the Minister for Mines prospect the mining areas to the satisfaction of the Minister for Mines during the term of such rights; Reports 2 (e) the Company shall during the term of the rights of occupancy furnish to both the Minister and the Minister for Mines an annual report on all operations carried out in the mining areas by or on behalf of the Company; Other mining tenements 2 (f) the Minister for Mines may grant to any person (including the Company) mining tenements pursuant to the Mining Act for any mineral other than iron ore within the mining areas if the Minister for Mines is satisfied that such grant would be unlikely to materially prejudice or interfere with the Company's operations under this Agreement; Determination of occupancy 2 (g) the rights of occupancy shall forthwith cease and determine on the happening of any of the following events namely — (i) upon the Company by notice to the Minister relinquishing the same; or (ii) upon the period of the rights of occupancy expiring by effluxion of time; or (iii) upon the State granting to the Company a mineral lease pursuant to Clause 12 (notwithstanding that the instrument of such lease may not be issued); or (iv) upon the Company making default in the due and punctual payment of any annual fee payable pursuant to paragraph (c) of this Clause and failing to comply with a notice from the State specifying such default and calling upon the Company to remedy the same within a period of fourteen days of the service of such notice; or (v) upon the Company making default in the due performance or observance of any of the other of the terms and conditions upon and subject to which the rights of occupancy were granted and failing to comply with a notice from the State specifying such default and calling upon the Company to remedy the same within a period of fourteen days of the service of such notice. Investigations and Studies 2 6. (1) The Company shall insofar as it has not already done so to the satisfaction of the Minister, commence as soon as reasonably practicable and carry out at its expense (with the assistance of experienced consultants where appropriate) — (a) a thorough geological and (as necessary) geophysical investigation and proving of the iron ore deposits in the mining areas and the testing and sampling of such deposits; (b) a reconnaissance of site of the operations proposed pursuant to this Agreement together with the preparation of suitable maps and drawings; (c) an engineering investigation of the route for a railway from the mining areas to the port or to connect with any existing or proposed railway and for this purpose the Company shall in consultation with the Railways Commission carry out such investigations as may be agreed; (d) an engineering investigation of a port site; (e) a study of the technical and economic feasibility of the mining transporting handling and shipping of iron ore from the mining areas; (f) the planning for the development of a suitable mine townsite and where appropriate a suitable port townsite (including design of housing utilities and associated facilities and social cultural and civic facilities) in consultation with the State having due regard to the possible or probable use of the same by others as well as the Company; (g) the investigation, in areas approved by the Minister, of suitable water supplies for mining industrial and mine townsite purposes; (h) metallurgical and market research; and (i) an assessment of the environmental effects likely to result from operations pursuant to this Agreement together with outlines of proposals to minimise any deleterious effects on the environment. Port investigations 2 (2) After consultation with the Minister concerning the result of the investigations and surveys mentioned in paragraph (d) of subclause (1) of this Clause the Company shall employ or retain experienced consultant engineers acceptable to the State to investigate report upon and make recommendations as to the best overall development of a port at such location as appears to be most suitable to the Company's proposed operations hereunder. The Company shall require such engineers when making such report and recommendations to have full regard for the general development of the port with a view to its reasonable use by others and the Company shall furnish to the State copies of such reports and recommendations. When submitting to the Minister pursuant to Clause 7 detailed proposals in regard to the matters mentioned in this subclause the Company shall so far as reasonably practicable ensure that the detailed proposals — (a) do not materially depart from the reports and recommendations of such engineers; (b) provide for the best overall development of the port so far as the same relates to the Company's activities; (c) disclose any conditions of user; and (d) where alternative proposals are submitted the Company's preferences in regard thereto. (3) The Company shall collaborate with and keep the State fully informed by quarterly reports as to the progress and results of the Company's operations under subclauses (1) and (2) of this Clause. The Company shall as and when the Minister may reasonably require furnish the Minister with copies of all appropriate reports received by it from consultants in connection with the matters referred to in this Clause and with copies of all relevant findings made and reports prepared by the Company. (4) If the State concurrently carries out its own investigations and reconnaissances in regard to all or any of the matters mentioned in subclauses (1) and (2) of this Clause the Company shall co‑operate with the State therein and so far as it is reasonably practicable so to do shall consult with the representatives or officers of the State and make full disclosures and give expressions of opinion regarding the matters referred to in those subclauses. State Assistance 2 (5) The State shall if required assist the Company in completing its investigations and studies pursuant to this Clause and shall furnish such advice and commentaries as the Company may require and as may be practicable for the State so to do. Company's proposals 2 7. (1) As soon as practicable after the completion of the investigations mentioned in Clause 6 the Company shall submit to the Minister proposals as to the location of the port and an outline in sufficient detail to enable the Minister to satisfy himself as to the suitability, technical feasibility and practicability, of the proposed development of the port (having regard to the matters mentioned in paragraph (a) of subclause (2) of this Clause). The Minister shall within two months after such submission notify the Company whether he approves or otherwise of such proposals or the Minister may within that time himself suggest an alternative proposal. If the Minister does not approve of the Company's proposals or if he himself submits an alternative proposal the Minister shall disclose his reasons for so doing in the said notice and afford the company ample opportunity to consult with him to submit further or alternative proposals and to consider any alternative proposal suggested by the Minister. When considering any of the Company's proposals and in making his own proposal the Minister shall have regard to the possible future requirements of others (including the State) and no preference or other priority shall be given to the Company or its proposals by reason only that the proposals were submitted for consideration before proposals from any other party. Detailed proposals 2 (2) Subject to the proposals or any alternative proposals as to the location and development of the port being approved the Company shall on or before the fifth anniversary of the commencement date or on or before such later date as the Minister may approve or as may be determined by arbitration as hereinafter provided submit to the Minister subject to the provisions of this Agreement detailed proposals which shall include (where practicable) appropriate plans and (where reasonably required by the Minister) appropriate specifications in respect of the mining of iron ore on and the future development of the mining areas (or so much thereof as is likely to be comprised in the mineral lease mentioned in Clause 12) and detailed particulars as to the measures proposed to be taken for the protection of the environment should the said proposals be approved or deemed to be approved and also (to the fullest extent reasonably practicable) detailed particulars as to the location area layout design number materials to be used in and time programme for the commencement and completion of the construction or the provision (as the case may be) of each of the following matters — (a) (to the extent not already covered by the proposals mentioned in subclause (1) of this Clause) the port and port development including the dredging thereof and the disposal and depositing of the spoil the provision of navigational aids and a fair contribution to their maintenance the Company's wharf the berth and swinging basin proposed in connection with the Company's use thereof and the port installations facilities and services to be available all of which are to be of such nature and extent as to be capable of and suitable for adaptation to permit use of the Company's wharf by ships having a capacity to carry 150 000 tonnes of iron ore; (b) the railway from the mining areas to the port or to connect with an existing railway and the proposed operation of such railway; (c) the development of the mine townsite and where appropriate the port townsite including services and facilities in relation thereto; (d) housing; (e) water supply; (f) roads; (g) generation transmission and distribution of electricity; (h) airfields; (i) the leases licences or other tenures of land jetty structures and mooring areas (if any) required from the State; (j) disposal of waste materials; (k) drainage; (l) dust control measures; and (m) any other works, services or facilities proposed or required by the Company. Order of proposals 2 (3) The proposals may with the approval of the Minister and shall if so required by the State be submitted separately and in any order as to the matter or matters mentioned in one or more of paragraphs (a) to (m) of subclause (2) of this Clause. Use of existing infrastructure 2 (4) The proposals relating to any of the matters mentioned in subclause (2) of this Clause may with the approval of the Minister and that of any third parties concerned instead of providing for the construction of new facilities of the kind therein mentioned provide for the use by the company upon reasonable terms and conditions of any existing facilities of such kind. Marketing and financial arrangements 2 (5) At the time when the Company submits the said proposals it shall furnish to the State's satisfaction in all respects evidence of — (a) marketing arrangements demonstrating the Company's ability to profitably sell iron ore and iron ore products in accordance with the said proposals; (b) the availability of finance necessary for the fulfilment of the operations to which the said proposals refer; and (c) the readiness of the Company to embark upon and proceed to carry out the operations referred to in the said proposals. Port Location 2 (6) Notwithstanding anything contained in this Agreement the State's determination in respect of the Company's proposals relating to the location of the port and in respect of proposals relating to the development of the port (insofar as such proposals concern the development of the port for use by or in conjunction with others) and the location of the port townsite shall be final and no such determination may be referred to arbitration by the Company. Consideration of proposals 2 8. (1) On receipt of the said proposals the Minister shall — (a) approve of the said proposals either wholly or in part 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 (2) of Clause 7 not covered by the said proposals; or (c) require as a condition precedent to the giving of his approval to the said proposals that the Company makes such alteration thereto or complies with such conditions in respect thereto as he (having regard to the circumstances including the overall development of and the use by others as well as the Company of all or any of the facilities proposed to be provided) thinks reasonable and in such a case the Minister shall disclose his reasons for such conditions. Advice of Minister's decision 2 (2) The Minister shall within two months after receipt of the said proposals give notice to the Company of his decision in respect to the same. Consultation with Minister 2 (3) If the decision of the Minister is as mentioned in either of paragraphs (b) or (c) of subclause (1) of this Clause the Minister shall afford the Company full opportunity to consult with him and should it so desire to submit new proposals either generally or in respect to some particular matter. Minister's decision subject to arbitration 2 (4) If the decision of the Minister is as mentioned in the said paragraph (c) and the Company considers that the condition precedent is unreasonable the Company may within two months after receipt of the notice mentioned in subclause (2) of this Clause elect to refer to arbitration in the manner hereinafter provided the question of the reasonableness of the condition precedent. Reasonableness of Minister's decision 2 (5) In addition to any other matter to which the arbitrator is required to have regard in considering the reasonableness of any decision of the Minister made pursuant to subclause (1) of this Clause the Minister shall not be regarded to have acted unreasonably if he shall defer his decision on a proposal made in relation to the matters mentioned in paragraph (i) of subclause (2) of Clause 7 until the said proposals in relation to the matters mentioned in the other paragraphs of subclause (2) of Clause 7 have become or deemed to have become approved proposals and the Company has complied with the provisions of subclause (5) of Clause 7. Arbitration Award 2 (6) An award made on an arbitration pursuant to subclause (4) of this Clause shall have force and effect as follows — (a) if by the award it is adjudged that the condition precedent is reasonable then the decision of the Minister in respect to the said proposals shall stand; or (b) if by the award it is adjudged that the condition precedent is unreasonable then the said proposals shall be deemed to have been approved by the Minister in the form in which the same were submitted. Guarantee 2 9. (1) After the Company's proposals submitted pursuant to Clause 7(1) have been approved by the State and the Company has complied with the provisions of Clause 7(5) to the satisfaction of the State, the State undertakes that it will guarantee any loan or loans to the Company in respect of the construction of the railway referred to in Clause 20(1), subject to: — (a) the State first approving of the Lender and the terms and conditions of the loan or loans and the form of the securities therefor; (b) the Company demonstrating to the State that it is unable to arrange satisfactory terms for financing the construction of the railway without the aforesaid guarantee; (c) the terms and conditions of the guarantee being determined by the State. (2) The total liability of the State under this Clause shall not exceed forty‑two million dollars. (3) The provisions of Clause 50 shall not apply to this Clause. Additional Proposals 2 10. (1) If the Company at any time during the continuance of this Agreement desires to modify expand or otherwise substantially vary its activities beyond those specified in any approved proposals the Company shall give notice of such desire to the Minister and within two months thereafter shall subject to the provisions of this Agreement submit to the Minister detailed proposals in respect of all matters covered by such notice and such of the other matters mentioned in paragraphs (a) to (m) of subclause (2) of Clause 7 as the Minister may require. The provisions of Clauses 7 and 8 shall mutatis mutandis apply to detailed proposals submitted pursuant to this subclause. Basis of Submission 2 (2) In the event of the Company submitting detailed proposals pursuant to subclause (1) of this Clause, or, if as a consequence of it submitting detailed proposals pursuant to Clause 34 or 35, the Minister requires further detailed proposals to be submitted on any of the said matters mentioned in paragraphs (a) to (m) of subclause (2) of Clause 7, then subject as provided in subclause (3) of this Clause the additional proposals shall be submitted on the basis that should the same become approved proposals the provisions of Clause 26 shall apply mutatis mutandis in respect of any increase in the extent of the services and facilities mentioned in subclause (1) of Clause 26 and also in respect of the provision of the additional services or facilities (whether of the kind mentioned in subclause (1) of Clause 26 or not) occasioned in either case by the additional proposals becoming approved proposals. Determination of extent of Company's obligations 2 (3) The extent of the Company's responsibilities under Clause 26 to provide the capital cost of and to maintain any increased or additional services and facilities of the kind mentioned in subclause (1) of that Clause occasioned by the additional proposals or any of them becoming approved proposals shall be determined by the Minister after discussion and negotiation on such matters with the Company and in making such determination the Minister shall have regard inter alia to the current and anticipated composition of any mining or other town affected and the extent to which the ordinary responsibilities of the State with respect to the provision of the capital cost of such services and facilities are to be assumed by the State in the light of the State's current capital resources at that time. Determination before implementation of proposals 2 11. In any of the following events namely — (a) if all of the rights of occupancy cease and determine pursuant to paragraph (g) of Clause 5 (other than subparagraph (iii) ); or (b) if the Company gives to the State notice of its intention to abandon or discontinue the investigations and the studies; or (c) if the Company fails within the time (or any extension thereof) limited by subclause (2) of Clause 7 to submit any proposals and fails to satisfy the Minister that it is then diligently and actively conducting the necessary investigations and studies incidental to the preparation of the proposals; or (d) if the effect of an award made upon an arbitration under subclause (4) of Clause 8 is that the decision of the Minister is to stand and the Company fails within three months after the making of the award to give notice that it accepts the same and proposes forthwith to implement the proposals in respect of which the award was made — the State may give to the Company one month's notice determining this Agreement and on the expiration of such notice this Agreement shall cease and determine and neither party shall have any claim against the other in respect of any matter or thing arising out of or done or performed or omitted to be done or performed under this Agreement except as provided under Clause 44. Mineral lease 2 12. (1) As soon as practicable after the said proposals become approved proposals and the Company has complied with the provisions of subclause (5) of Clause 7 the State shall in accordance with the relevant approved proposal on the application of the Company cause to be granted to it a mineral lease in the form set out in the Schedule to this Agreement for the mining of iron ore from such part or parts of the land comprised in the mining areas as is or are then subject to the rights of occupancy and referred to in the said proposals. The following provisions shall apply to the mineral lease — Provisions 2 (a) the total area of the land the subject thereof shall not exceed seven hundred and seventy‑seven square kilometres; (b) the boundaries of the land comprising such area shall be so located as to form either a rectangular parallelogram or rectangular parallelograms or as near thereto as is practicable; (c) the rent reserved thereby shall be that fixed in subclause (4) of this Clause; (d) the Company shall therein covenant to pay to the State in addition to the said rent the royalties fixed in Clause 32; (e) subject to the due payment by the Company of the said rent and royalties and to the due performance and observance by the Company of its other obligations thereunder and of its obligations under this Agreement the term thereof will be twenty‑one years as from the date of the granting thereof but the Company shall during the continuance of this Agreement have the right to take successive renewals of the said term each for a period of twenty‑one years upon the same terms and conditions subject to the sooner determination of the said term upon the 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 mineral lease; (f) subject to paragraphs (a) to (e) inclusive of this subclause and as in this Agreement otherwise provided all relevant provisions of the Mining Act and the Regulations thereunder shall apply but subject to the Company discharging and carrying out its obligations under this Agreement the Company shall not be required to comply with the labour conditions imposed by the said Act in respect of mineral leases. Survey 2 (2) The State shall cause to be made any survey necessary to define the area and boundaries of the land to be comprised in the mineral lease and the Company shall upon demand made on or after the completion of such survey pay to the State the cost thereof. The Minister for Mines may decline to issue the instrument for the mineral lease until such survey is completed. Surrender of part of mineral lease 2 (3) Notwithstanding the provisions of paragraph (e) of subclause (1) of this Clause 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 reasonable size and shape) of the mineral lease. Rent 2 (4) The rent payable by the Company under the mineral lease shall be an annual rent (payable annually in advance) of a sum equal to 1.7297 dollars per hectare calculated on the total area of land for the time being the subject of the mineral lease. The said rent shall run as from the date of the granting of the mineral lease and the first payment of rent shall become due and payable within one month of the grant of the mineral lease notwithstanding that the survey mentioned in subclause (2) of this Clause may not have been commenced or completed or the instrument for the mineral lease may not have been issued. Rights to other minerals 2 (5) The State shall to such extent as may be reasonably practicable on the application of the Company from time to time grant to the Company or assist it in obtaining the grant of leases and other rights for limestone, dolomite, granite, diorite, silica sand and other minerals and substances reasonably required by the Company for the purposes of this Agreement. Other mining tenements 2 (6) The State shall not during the continuance of this Agreement register any claim or grant any lease or other mining tenement under the Mining Act or otherwise whereby any person other than the Company might under the laws relating to mining or otherwise obtain any rights to mine or take natural substances (other than petroleum as defined by the Petroleum Act 1967) from within the mineral lease unless the Minister reasonably determines that the registration or grant is not likely to materially prejudice or interfere with the Company's operations hereunder. Access over mineral lease 2 (7) The Company shall at all times permit the State and third parties (with or without stock vehicles and rolling stock) to have access to and to pass over the mineral lease (by separate route, road or railway) so long as that access and passage does not materially prejudice or interfere with the operations of the Company under this Agreement. State may resume land 2 13. 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 the land to the Company. 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 pursuant to this Clause. Other Leases 2 14. (1) The State shall in accordance with the approved proposals as and when required by the Company so to do cause to be granted to the Company such other leases of Crown lands as the parties may consider reasonable and necessary for all or any of the following purposes namely town sites, private roads, railway lines and sidings, tailing areas, overburden areas, water pipelines, pumping installations and reservoirs, airport, power transmission lines and stockpile areas and for any other of the purposes of this Agreement. Such leases shall be granted for such periods at such rentals and upon and subject to such other terms and conditions as shall be reasonable having regard to the obligations of the Company under this Agreement. Special Leases 2 (2) Pursuant to subclause (1) of this Clause the State shall when required by the Company so to do cause to be granted to it — (a) a special lease (or special leases) of Crown land at the mine townsite for residential, professional, business, commercial and industrial purposes and for the purpose of providing communal facilities. Such special lease shall be granted upon all usual terms and conditions and in particular shall contain the following provisions — (i) the term thereof (unless sooner determined) shall expire on the same date as that on which the term of the mineral lease or any renewal thereof terminates or is determined; (ii) the rental payable thereunder shall be one peppercorn per annum payable if and when demanded; (iii) the Company shall have the right during the continuance thereof to purchase (for a price comparable with that charged by the State for other Crown land released for freehold sale in similar towns in the general region of the Company's operations) the fee simple of any parcel or lot being part of the land thereby demised on which is erected buildings or structures (not being dwellings) costing at least ten thousand dollars or dwellings costing at least seven thousand dollars; (iv) the Company shall have the right during the continuance thereof notwithstanding the provisions of the Sale of Land Act 1970 to sell any parcel or lot being part of the land thereby demised on condition that the purchaser erects on such land buildings or structures (not being dwellings) costing at least ten thousand dollars or dwellings costing at least seven thousand dollars; (b) a special lease (or special leases) of Crown land at or near the port for industrial stockpiling, ship loading, power generation and other similar purposes. Such special lease shall be granted upon all usual terms and conditions and in particular shall contain the following provisions — (i) the term thereof shall (unless sooner determined) expire on the same date as that on which the term of the mineral lease or any renewal thereof terminates or is determined; (ii) the rental payable thereunder shall be an annual rental payable in advance to be agreed for the first twenty‑one years and thereafter reviewed at seven year intervals and in each case based on a valuation of the land the subject of the said special leases by a competent and experienced land valuer appointed by the State and acceptable to the Company; Additional rent 2 (c) notwithstanding the provisions contained in the mineral lease or any other lease granted pursuant to either of paragraphs (a) or (b) of this subclause hereby the rent payable thereunder and the times at which such rent is so payable are fixed, the Company shall during the continuance of this Agreement from and after the commencement of Year 16 pay to the State as and by way of an additional annual rent to that payable under such one or more of such leases as the Company may from time to time at its option in a notice to the State designate a sum equal to 24.6052 cents per tonne on all iron ore products in respect of which a royalty is payable under this Agreement such additional rent to be paid at the same times and in the same manner as the said royalty. No resumption 2 15. The State agrees that subject to the performance by the Company of its obligations hereunder the State shall not resume or suffer or permit to be resumed by an instrumentality or by any local or other authority of the said State any portion of the land the subject of any special lease mentioned in subclause (2) of Clause 14 the resumption of which would materially impede the Company's works and activities thereon or any portion of the land the subject of the mineral lease whereon any of the Company's works are situate in accordance with proposals approved hereunder the resumption of which would materially impede the Company's mining or other activities thereon nor shall the State create or grant or permit or suffer to be created or granted by an instrumentality or authority of the said State any road right of way or easement of any nature or kind whatsoever over or in respect of the land comprised in the said leases whereon any of the Company's works are situate in accordance with proposals approved hereunder without the consent of the Company first had and obtained which consent the Company agrees it shall not arbitrarily or unreasonably withhold. No discriminatory rates 2 16. Except as provided by this Agreement the State shall not impose or permit or suffer any instrumentality of the said State or any local or other authority to impose discriminatory taxes, rates or charges of any nature whatever on or in respect of the titles, property or other assets, products, materials or services used or produced by or through the operations of the Company hereunder and the State shall not take or permit any such instrumentality or any local or other authority to take any other discriminatory action that would deprive the Company of any rights granted or intended to be granted to it under this Agreement. Zoning 2 17. The State shall ensure that the mineral lease and any lands the subject of any Crown grant lease licence or easement granted to the Company under this Agreement and all freehold and leasehold land occupied by the Company in accordance with or the subject of proposals approved hereunder shall be and remain zoned for use or otherwise protected during the currency of this Agreement so that the operations of the Company hereunder may be undertaken and carried out thereon without any interference or interuption by the State by any State agency or instrumentality or by any local or other authority of the State on the ground that such operations are contrary to any zoning by‑law regulation or order. Rating 2 18. 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 (whether of a freehold or leasehold nature) the subject of this Agreement (except as to any part upon which a permanent residence shall be erected or which is occupied in connection with that residence 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 transportation processing and shipment of iron ore or iron ore products) 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, PROVIDED THAT nothing in this Clause shall prevent the Company making the election provided for by Section 533B of the Local Government Act 1960. Construction of plant 2 19. The Company shall within four years next following the date on which all the said proposals required to be submitted hereunder have become approved proposals or at such later date as the Minister may approve at a cost of not less than eighty million dollars construct install provide and do all things necessary to enable it to mine from the mineral lease to transport by rail to the Company's wharf and to commence shipment therefrom in commercial quantities at an annual rate of not less than one million tonnes of iron ore and without lessening the generality of this provision the Company shall within the aforesaid period or extended period as the case may be — (a) construct install and provide upon the mineral lease or in the vicinity thereof or at the port (as the case may be) mining plant and equipment crushing screening stockpiling and car loading plant and facilities power house workshop and other things of a design and capacity adequate to enable the Company to meet and discharge its obligations hereunder and to mine handle load and deal with not less than three thousand tonnes of iron ore per day such capacity to be built up progressively to not less than ten thousand tonnes of iron ore per day within three years next following the export date; Commencement of operations 2 (b) actually commence to mine transport by rail and ship from the Company's wharf iron ore from the mineral lease so that the average annual rate during the first two years after export date shall not be less than one million tonnes. Railway 2 20. (1) The Company shall submit to the Minister for approval the proposed route of the railway (as hereinafter defined) and the Minister shall within two months of the receipt of such submission advise the Company of his decision. In considering the Company's submission the Minister shall have due regard to the shortest practicable route of the railway. The Company, having first obtained the approval of the Minister to the proposed route as aforesaid, and subject to the provisions of this Clause, shall at its expense and in accordance with the relevant approved proposal construct or arrange to have constructed a railway having a 1.435 metre gauge between a mining site or sites within or adjacent to the mining areas and the port. Such railway and other works and appurtenances required to be provided by the Company pursuant to this Clause on the railway lease (as defined in subclause (2) of this Clause) are hereinafter referred to as "the railway". (2) The Company shall give notice to the State in advance of its intention to commence construction of the railway. Upon the receipt of such notice the State shall so soon as conveniently may be — Acquisition of land 2 (a) at the expense of the Company acquire such land as may be necessary and exercise such statutory powers to enable the construction of the railway; and Lease of land to Company 2 (b) grant to the Company for a term of eighteen years a lease of the land so acquired and all other land that may be necessary to enable the construction use and operation of the railway at an annual rental of one peppercorn in accordance with the provisions of this Agreement. Such lease (in this Clause called "the railway lease") shall contain a covenant by the Company to construct the railway and such other covenants and provisos as are reasonably necessary for the protection of the State as lessor. Authorisation 2 (3) The provisions of section 96 of the Public Works Act 1902 shall not apply to the construction of the railway. Determination of Lease 2 (4) The railway shall not be subject to tenant's rights in the Company and at the expiration or sooner determination of the said lease the Company's rights and interest in the railway (whether or not fixtures) shall subject as hereinafter provided absolutely cease and vest or revest in the State and become the absolute property (freed from all encumbrances) of the State which shall not be obliged to pay any compensation to the Company in respect of the railway. Construction of Railway and protective devices 2 (5) The construction of the railway shall be carried out to the standards of and in accordance with plans and specifications approved by the Railways Commission which specifications shall provide inter alia for grade separation when required by the State at all intersections with any other railways and, having regard to the requirements of the Commissioner of Main Roads, for grade separation when required by the State at all intersections with major roads and such warning and protective devices including flashing lights and boom gates at all intersections with other roads. Operation by Railways Commission 2 (6) The Railways Commission shall — (a) notwithstanding the provisions of subclauses (1) and (2) of this Clause be solely responsible for the operation of the railway for its use by the Company and the Railways Commission; (b) during the continuance of this Agreement subject to the Company complying with its obligations hereunder in relation to its use of rail transport and in particular subject to the number of wagons provided by the Company being sufficient for the purpose, operate such trains as the Company may reasonably require for the transport of iron ore products limestone and other commodities for the purposes of this Agreement and allow such trains carrying the Company's iron ore such priority over other traffic on the railway as is reasonable in the circumstances, and subject thereto; (c) be entitled to operate on the railway such trains other than those for the purposes of the Company's operations hereunder as may be practicable. Maintenance by Railways Commission 2 (7) The Railways Commission shall at its expense maintain the railway together with all locomotives brakevans and wagons used on the railway. Notice of requirements 2 (8) The Company shall provide to the satisfaction of the Railways Commission not less than two years in advance of its requiring to use rail transport such particulars of its requirements as to the use of the railway (including the anticipated or provisional annual tonneages from time to time likely to be available for transport) as shall enable the Railways Commission to make arrangements to meet those requirements and shall thereafter give adequate notice of any change in those requirements. Provision and maintenance of equipment by Company 2 (9) The Company shall on land occupied by it at the mining site or sites and at the port (other than on land the subject of the railway lease) at its own cost provide and maintain such sidings, shunting loops, spurs and other rail connections and appurtenances (including all necessary signals and safety devices) as the Railways Commission may reasonably require for its operations under subclause 6(b) of this Clause and loading and unloading facilities sufficient to meet the Company's train operating requirements and terminal equipment (including weighing devices) with such staff as may be adequate to ensure the proper operation of such facilities and equipment. Company to provide wagons 2 (10) The Company shall provide sufficient wagons including spare wagons (of a design and to a specification approved by the Railways Commission) to carry all iron ore products limestone and other commodities required to be transported for the Company between the mining areas and the port and where in the opinion of the Railways Commission any such wagons are no longer capable of being maintained and serviced by the Railways Commission, provide replacement wagons. Locomotives and brake-vans 2 (11) The Company shall if and when required by the Railways Commission provide sufficient locomotives and brakevans (of a design and to a specification approved by the Railways Commission) for the transport of the iron ore products limestone and all other commodities required to be transported for the Company on the railway and the Railways Commission shall lease from the Company the locomotives and brakevans so provided on such terms and conditions as the parties may agree. Loading of wagons 2 (12) The Company shall ensure that all wagons are properly trimmed and are loaded to tonneages approved by the Railways Commission. Connection of Railway to State rail system 2 (13) The Railways Commission may connect the railway to either the existing State rail system or any new system to be operated by the State at a point or points to be determined by the Minister and shall give notice to the Company in advance of its intention to make such connections. Rail Freight Charges 2 (14) During the continuance of this Agreement — (a) The Company shall pay to the Railways Commission freight in respect of the commodities carried for the Company pursuant to this Agreement. The freight rate shall be determined by the Railways Commission from time to time but shall not exceed the actual cost to the Railways Commission of operating and maintaining the railway in accordance with the Company's requirements under this Agreement including (where the Company has exclusive use of the railway) the costs of necessary replacements or (where the Company does not have such exclusive use) a fair contribution thereto and to the standard normally required by the Railways Commission together with a management fee not exceeding 12½% of such operating and maintenance costs. (b) Freight shall be payable by monthly payments in the month next following the month of haulage on the basis of the estimated costs of operating and maintaining the railway and shall be subject to annual adjustment after the expiration of each year. The State shall at the request of the Company procure the certificate of the Auditor General of the State as to the correctness of the Railways Commission's costs of operating and maintaining the railway. Use of railway by others 2 (15) In the event of the Railways Commission making use of the railway to carry freight for other persons within eighteen years of the date of this Agreement and moving over the railway in any one year within that period 100 000 tonnes or more of bulk products the State shall require such other user to make a fair contribution to the cost of the establishment of the railway and from the proceeds of any such contribution or contributions shall pay to the Company such amount as shall be equitable. Roads Construction 2 21. (1) Subject to the State having assured to the Company all necessary rights in or over Crown Lands available for the purpose the Company shall at its own cost and expense construct such new roads as it may reasonably require for the purposes of this Agreement, such roads to be of such widths, of such materials, with such fences, gates, and warning devices, crossings (level or grade separated where required) and pass‑overs for cattle sheep and other livestock and along such routes as the parties shall agree after consideration of the requirements of the Commissioner of Main Roads. Except to the extent that the Company's relevant approved proposal otherwise provides, the Company shall allow the public to use free of charge any roads constructed or upgraded pursuant to or for the purposes of this Agreement so long as such use shall not unduly prejudice or interfere with the Company's operations hereunder. Use of public roads 2 (2) The Company shall have the right to use any public roads that may from time to time exist in the area of its operations under this Agreement both prior to the commencement date and also in the course of its operations hereunder. If the exercise by the Company of such right results in or is likely to result in intensive use of any public road whereby excessive damage or deterioration is caused thereto or whereby the road becomes inadequate for use by the Company and the public, the Company shall upon demand (except where and to the extent that the Commissioner of Main Roads agrees to bear the whole or part of such cost) pay to the State or the local authority concerned or other authority having control of such road the cost (or an equitable proportion thereof having regard to the use of such road by others) of preventing or making good such damage or deterioration or of upgrading the road to a standard commensurate with the increased traffic. Upgrading of public roads 2 (3) If required by the Company the State shall at the Company's cost and expense (except where and to the extent that the Commissioner of Main Roads agrees to bear the whole or any part of the cost) widen upgrade or realign any public road existing from time to time which the Company desires to use for its operations hereunder over which the State has control subject to the prior approval of the Commissioner of Main Roads to