Western Australia: Nickel (Agnew) Agreement Act 1974 (WA)

Western Australia Nickel (Agnew) Agreement Act 1974 Western Australia Nickel (Agnew) Agreement Act 1974 Contents 1. Short title 1 2. Terms used 1 3. Ratification of the Agreement 1 3A. Ratification of the Variation Agreement 2 3B. Ratification of 2022 variation agreement 2 4. By‑laws 2 First Schedule — Nickel (Agnew) Agreement Second Schedule — Variation Agreement Third Schedule — 2022 variation agreement Notes Compilation table 106 Other notes 106 Defined terms Western Australia Nickel (Agnew) Agreement Act 1974 An Act to ratify an agreement between the State of Western Australia and Western Selcast (Pty) Limited and Mount Isa Mines Limited with respect to the mining and treatment of certain nickel ore reserves. 1. Short title This Act may be cited as the Nickel (Agnew) Agreement Act 1974. 2. Terms used In this Act — 2022 variation agreement means the agreement a copy of which is set out in the Third Schedule; the Agreement means the agreement a copy of which is set out in the First Schedule and includes that agreement as so altered from time to time in accordance with its provisions and, except in section 3, by the Variation Agreement and the 2022 variation agreement; the Joint Venturers has the same meaning as it has in the Agreement; the Variation Agreement means the Variation Agreement a copy of which is set out in the Second Schedule. [Section 2 amended: No. 98 of 1976 s. 2; No. 17 of 2023 s. 4.] 3. Ratification of the Agreement The Agreement is hereby ratified. 3A. Ratification of the Variation Agreement The Variation Agreement is hereby ratified. [Section 3A inserted: No. 98 of 1976 s. 3.] 3B. Ratification of 2022 variation agreement (1) The 2022 variation agreement is ratified. (2) The implementation of the 2022 variation agreement is authorised. (3) Without limiting or otherwise affecting the Government Agreements Act 1979, the 2022 variation agreement operates and takes effect despite any enactment or other law. [Section 3B inserted: No. 17 of 2023 s. 5.] 4. By‑laws The Governor may, on the recommendation of the Joint Venturers, make, alter and repeal by‑laws, in accordance with and for the purposes referred to in clause 18 of the Agreement, and the by‑laws — (a) shall be published in the Gazette; (b) shall take effect and have the force of law from the date they are so published or from a later date fixed by the order making the by‑laws; (c) may prescribe penalties not exceeding $100 for a breach of any of the by‑laws; (d) are not subject to section 36 of the Interpretation Act 1918 1, but shall be laid before each House of Parliament within the 6 sitting days of such House next following the publication of the by‑laws in the Gazette. [Heading deleted: No. 19 of 2010 s. 42(2).] First Schedule — Nickel (Agnew) Agreement [s. 2] [Heading amended: No. 19 of 2010 s. 4.] THIS AGREEMENT made this 21st day of November, 1974 BETWEEN THE HONOURABLE SIR CHARLES WALTER MICHAEL COURT, O.B.E., 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 WESTERN SELCAST (PTY) LIMITED a company incorporated under the Companies Act 1961 of the State of New South Wales and registered in the State of Western Australia as a foreign company and having its registered office at 50 St George's Terrace Perth and MOUNT ISA MINES LIMITED a company incorporated under the Companies Act 1961 of the State of Queensland and registered in the State of Western Australia as a foreign company and having its registered office at 220 St George's Terrace Perth (hereinafter collectively called "the Joint Venturers" in which term shall be included their respective successors and permitted assigns and appointees) of the other part. WHEREAS: (a) the Joint Venturers have established the existence of nickel ore reserves within the mining areas hereinafter defined and have carried out certain investigations relating inter alia to the mining and treatment of that ore and the sale of nickel containing products; (b) the Joint Venturers desire to develop such nickel ore reserves and to establish in the Agnew area mining concentrating and smelting facilities and associated works; (c) the Joint Venturers intend to investigate the technical and economic feasibility of establishing a refinery within the said State. NOW THIS AGREEMENT WITNESSETH: Definitions 2 1. In this Agreement subject to the context — "apply", "approve", "approval", "consent", "certify", "direct", "notify", "request" or "require" means apply, approve, approval, consent, certify, direct, notify, request or require in writing as the case may be; "associated company" means — (a) any company or corporation providing for the purposes of this Agreement capital of not less than Two Million Dollars ($2 000 000) which is incorporated or formed within the United Kingdom the United States of America or Australia or such other country as the Minister may approve and which — (i) is promoted by the Joint Venturers or any of them for all or any of the purposes of this Agreement and in which the Joint Venturers or any of them or some other company or corporation acceptable to the Minister hold not less than a twenty five per cent (25%) interest or some lesser interest acceptable to the Minister; or (ii) is related within the meaning of that term as used in section 6 of the Companies Act 1961, as at present in force to either of the Joint Venturers or to any company in which the Joint Venturers or any of them or some other company or corporation acceptable to the Minister held not less than twenty five per cent (25%) of the issued ordinary share capital; and (iii) is notified to the Minister by the Joint Venturers or any of them as being such a company; (b) any company or corporation approved in writing by the Minister; "associated works" means and includes mine development the installation of mining plant mining equipment and plant for the treatment of ore as hereinafter defined or any derivative thereof, works for the provision of electricity, water, roads, communications, transportation and the construction of housing and communal and other facilities for the proper and reasonable accommodation health and recreation of workers employed by the Joint Venturers and of contractors engaged in carrying out the Joint Venturers' operations under this Agreement; "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; "Land Act" means the Land Act 1933; "matte" means a smelter product containing principally nickel with other elements in varying proportions; "mineral claim" means a mineral claim granted pursuant to regulations made under the Mining Act or any mining right (other than a mineral lease) granted in substitution therefor under any amendment to the Mining Act or any Act passed in substitution therefor or in lieu thereof and the regulations for the time being in force thereunder; "mineral lease" means the mineral lease referred to in Clause 15 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; "Mining Act" means the Mining Act 1904; "mining areas" means the areas delineated and coloured red (hereinafter called "the red areas") on the plan marked "A" (initialled by or on behalf of the parties hereto for the purposes of identification) over which the Joint Venturers as at the date hereof hold mineral leases, together with such of the areas delineated and coloured yellow (hereinafter called "the yellow areas") on the said plan over which mineral claims may at any time (whether before or after the commencement of this Agreement) prior to application being made by the Joint Venturers for a mineral lease be granted to the Joint Venturers by the Minister for Mines or transferred to the Joint Venturers with the approval of that Minister; "Minister" means the Minister in the Government of the State for the time being responsible (under whatsoever title) for the administration of the Ratifying Act and pending the passing of the Act means the Minister for the time being designated in a notice from the State to the Joint Venturers 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; "nickel concentrates" means concentrates obtained by treating ore as hereinafter defined; "nickel‑containing products" means nickel concentrates, matte, nickel metal and any other nickel‑containing product; "nickel metal" means the metallic product obtained by refining nickel concentrates or matte; "notice" means notice in writing; "ore" means nickeliferous ore from the mineral lease; "person" or "persons" includes bodies corporate; "private road" means a road (not being a public road) which is either constructed by the Joint Venturers in accordance with their proposals as approved by the Minister hereunder or agreed by the parties to be a private road for the purposes of this Agreement; "production date" means the date when the Joint Venturers first commence to concentrate ore; "public road" means a road as defined by the Traffic Act 1919; "Public Works Act" means the Public Works Act 1902; "Railways Commission" means the Western Australian Government Railways Commission established pursuant to the Government Railways Act 1904; "Ratifying Act" means the Act to ratify this Agreement and referred to in Clause 4; "refinery" means a refining plant in which nickel concentrates or matte are treated to produce nickel metal; "said State" means the State of Western Australia; "smelter" means a smelter plant or any other plant in which matte or nickel‑containing smelter products are produced from ore or nickel concentrates; "State Electricity Commission" means the State Electricity Commission of Western Australia established pursuant to the State Electricity Commission Act 1945; "this Agreement" "hereof" and "hereunder" refers to this Agreement whether in its original form or as from time to time added to varied or amended; "town" means the town to be developed by the Joint Venturers as the principal housing area for their mine workforce with the approval of the State and may include an existing town; "townsite" means the site on which the town is to be situated; "Yakabindie Homestead" means the homestead existing at the date of this Agreement situated on Pastoral Lease No 3114/649; Interpretation 2 2. In this Agreement — (a) monetary references are references to Australian currency unless otherwise specifically expressed; (b) power given under any clause other than Clause 33 to extend any period or date shall be without prejudice to the power of the Minister under Clause 33; (c) marginal notes do not affect the interpretation or construction 2; and (d) reference to an Act unless otherwise specifically expressed 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 in force thereunder. Initial obligations of the State 2 3. The State shall — (a) introduce and sponsor a Bill in the Parliament of Western Australia to ratify this Agreement and endeavour to secure its passage as an Act prior to the 31st day of December, 1974; and (b) to the extent reasonably necessary for the purposes of this agreement allow the Joint Venturers to enter upon Crown lands (including, if applicable, land the subject of a pastoral lease). Ratification and operation 2 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 the 31st day of December, 1974 the said Bill has not commenced to operate as an Act this Agreement will, unless the parties hereto otherwise agree, then cease and determine and neither of the parties hereto will have any claim against the other of them with respect to any matter or thing arising out of, done, performed or omitted to be done or performed under this Agreement. (3) On the said Bill commencing to operate as an Act all the provisions of this Agreement shall operate and take effect notwithstanding the provisions of any Act or law. Initial obligations of the Joint Venturers 2 5. (1) The Joint Venturers shall continue their field and office engineering studies and market and finance studies and other matters necessary including an environmental impact study to enable them to finalise and to submit to the Minister the detailed proposals and other matters referred to in subclauses (1) and (4) of Clause 6. (2) The Joint Venturers shall keep the State fully informed in writing at least quarterly as to the progress and results of the Joint Venturers' operations under subclause (1) of this Clause. The first quarterly report shall be lodged during the month of July, 1975 and shall be in respect of the quarter ending on the 30th day of June, 1975 and thereafter the quarterly reports shall be in respect of the quarter ending on the last day of the month preceding the month in which they are lodged. (3) The Joint Venturers shall co‑operate with the State and consult with the representatives or officers of the State regarding matters referred to in subclause (1) of this Clause. Joint Venturers to submit Proposals 2 6. (1) On or before the 31st day of December 1975 (or thereafter within such extended time as the Minister may allow as hereinafter provided) the Joint Venturers shall submit to the Minister to the fullest extent reasonably practicable their detailed proposals (which proposals shall include plans where practicable and specifications where reasonably required by the Minister) for a mining and treatment project with a capacity to produce not less than one million (1 000 000) tonnes of ore per year and the transport and shipment through a port within the said State of nickel‑containing products and for making provision for the necessary work force and associated population required to enable the Joint Venturers to mine ore and to process it at the Joint Venturers' plant in the Agnew area or at such other site or sites as the parties hereto may agree, and including 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, concentrating and smelting of ore; (b) roads; (c) railways; (d) facilities for the export of nickel‑containing products through a port in the said State; (e) water supply; (f) townsite and town including housing, provision of utilities and services and associated facilities; (g) power generation and distribution; (h) any other works, services or facilities desired by the Joint Venturers; (i) any leases, licences or other tenures of land required from the State; (j) airport; and (k) measures to be taken for the protection management and rehabilitation of the environment. Order of Proposals 2 (2) The proposals may with the approval of the Minister and shall if so required by the State be submitted separately and in any order as to the matter or matters mentioned in one or more of paragraphs (a) to (k) of subclause (1) of this Clause. Use of existing infrastructure 2 (3) The proposals relating to any of the matters mentioned in subclause (1) 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 Joint Venturers upon reasonable terms and conditions of any existing facilities of such kind. Marketing and financial arrangements 2 (4) At the time when the Joint Venturers submit the said proposals they shall furnish to the State's satisfaction evidence of — (a) marketing arrangements demonstrating the Joint Venturers' ability to profitably sell or use nickel‑containing products or a substantial proportion thereof 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 Joint Venturers to embark upon and proceed to carry out the operations referred to in the said proposals. Extension of time for financing and marketing 2 (5) If the Joint Venturers for any reason desire an extension of time beyond the said 31st day of December, 1975 within which to comply with the requirements of subclause (4) of this clause they may make a request therefor to the Minister not earlier than the 1st day of October, 1975 or later than the 30th day of November, 1975 and with such request shall supply the Minister with details of their endeavours to comply with those requirements. If the Minister is satisfied that such endeavours are reasonable in the circumstances and that the Joint Venturers have otherwise duly complied with their obligations hereunder the Minister shall grant an extension of such time for a period of twelve (12) months. Consideration of Proposals 2 7. (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 Joint Venturers submit a further proposal or proposals in respect of some other of the matters mentioned in subclause (1) of Clause 6 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 Joint Venturers 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 Joint Venturers 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 Joint Venturers 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 Joint Venturers full opportunity to consult with him and should they so desire to submit new or revised 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 Joint Venturers consider that the condition precedent is unreasonable the Joint Venturers within two months after receipt of the notice mentioned in subclause (2) of this Clause may elect to refer to arbitration in the manner hereinafter provided the question of the reasonableness of the condition precedent. Arbitration Award 2 (5) 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 the dispute is decided against the Joint Venturers then unless the Joint Venturers within three (3) months after delivery of the award give notice to the Minister of their acceptance of the award this Agreement shall on the expiration of that period of three (3) months cease and determine; or (b) if by the award the dispute is decided in favour of the Joint Venturers 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 2 (6) Notwithstanding that under subclause (1) of this Clause any detailed proposals of the Joint Venturers are approved by the Minister or determined by arbitration award, unless each and every such proposal and the other matters referred to in subclause (4) of this Clause are so approved or determined by the 28th day of February, 1977 or by such extended date if any as the Joint Venturers shall be granted pursuant to the provisions of this Agreement then the Minister may give to the Joint Venturers twelve (12) months notice of intention to determine this Agreement and unless before the expiration of the said twelve (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. Additional Proposals 2 8. (1) If the Joint Venturers at any time during the continuance of this Agreement desire to modify expand or otherwise vary their activities beyond those specified in any approved proposals they shall give notice of such desire to the Minister and within two (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 (k) of subclause (1) of Clause 6 as the Minister may require. The provisions of Clauses 6 and 7 where applicable shall mutatis mutandis apply to detailed proposals submitted pursuant to this subclause. Determination of extent of Joint Venturers' obligations 2 (2) The extent of the Joint Venturers' responsibilities under Clause 18 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 Joint Venturers and in making such determination the Minister shall have regard inter alia to the current and anticipated composition of the town 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. Construction of works 2 9. The Joint Venturers shall in accordance with their proposals as finally approved under Clause 7 within six (6) months next following the date of such approval commence the construction of the works referred to in such proposals and will complete all such works within three (3) years of their commencement except as otherwise specified in such proposals. Use of local professional services labour and materials 2 10. (1) The Joint Venturers shall for the purposes of this Agreement as far as it is reasonable and economically practicable — (a) use the services of engineers, surveyors, architects and other professional consultants resident and available within the said State; (b) use labour available within the said State; (c) when calling for tenders and letting contracts for works materials plant equipment and supplies ensure that Western Australian suppliers manufacturers and contractors are given reasonable opportunity to tender or quote; and (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. (2) The Joint Venturers shall from time to time during the currency of this Agreement when requested by the Minister submit a report concerning their implementation of the provisions of subclause (1) of this Clause. Roads 2 11. (1) The Joint Venturers shall — (a) be responsible for the provision of finance for and the construction in maintenance of all private roads which shall be used in their operations hereunder; (b) at their cost make such provision as shall ensure that all persons and vehicles (other than those engaged upon the Joint Venturers' operations and their invitees and licencees) are excluded from use of any such private roads; and (c) at any place where such private roads are constructed by the Joint Venturers as to cross any railways or public roads provide adequate grade separation or such other reasonable protection as may be required by the Commissioner of Main Roads or Railways Commission as the case may be. Public Roads to be constructed by the State 2 (2) The State shall construct or cause to be constructed new public roads suitable for the Joint Venturers' operations hereunder in accordance with the requirements of the Commissioner of Main Roads as follows — (a) an unsealed road from Leonora extending to a point (to be agreed between the parties) near the Yakabindie Homestead (in this Clause called "the Leonora‑Yakabindie road"). That part of the Leonora‑Yakabindie road from Leonora to the turn‑off to the minesite (in this Clause called "the turn‑off") shall be sealed by the State to a width of not less than seven decimal three (7.3) metres within two (2) years of the date of completion of construction. That part of the Leonora‑Yakabindie road from the turn‑off to the Yakabindie Homestead shall be constructed to a standard similar to the existing Leonora‑Wiluna main road. The Joint Venturers shall pay to the State at the times and in the manner required by the State one half of the cost of the construction (including investigation survey and design) of the Leonora‑Yakabindie road and one half of the cost of the sealing referred to in this paragraph; (b) an unsealed road connecting the turn‑off with the townsite. Such road shall be sealed by the State to a width of not less than seven decimal three (7.3) metres within two (2) years of the date of completion of its construction. The Joint Venturers shall pay to the State at the times and in the manner required by the State one half of the cost of the construction (including investigation survey and design) and sealing of such road; (c) an unsealed road connecting a point to be agreed on the Leonora‑Yakabindie road to a point to be agreed on the existing Leonora‑Wiluna road. The Joint Venturers shall pay to the State at the times and in the manner required by the State one half of the cost of the construction (including investigation survey and design) of the road. Such road shall be constructed to a standard similar to the existing Leonora‑Wiluna road. The State shall use its best endeavours to complete the construction of the roads referred to in this subclause by the date that the Joint Venturers' mining and treatment plant comes into operation. Public road to be constructed by the Joint Venturers 2 (3) The Joint Venturers shall investigate survey design and construct or cause to be constructed a new sealed public road suitable for their operations hereunder in accordance with the requirements of the Commissioner of Main Roads to connect the minesite with the townsite and shall provide or arrange the finance therefor. Maintenance of public roads 2 (4) The State shall maintain or cause to be maintained public roads over which it has control (and which may be used by the Joint Venturers) to a standard similar to comparable public roads maintained by the State. In the event that the Joint Venturers' road haulage operations require the use of a public road which is inadequate for the purpose, or results in excessive damage or deterioration of any public road (other than fair wear and tear) the Joint Venturers shall pay to the State the whole or 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. Liability 2 (5) The parties hereto further covenant and agree with each other that — (a) for the purposes of determining whether and the extent to which — (i) the Joint Venturers are liable to any person or body corporate (other than the State); or (ii) an action is maintainable by any such person or body corporate in respect of the death or injury of any person or damage to any property arising out of the use of any of the roads for the maintenance of which the Joint Venturers are responsible hereunder and for no other purpose the Joint Venturers shall be deemed to be a municipality and the said roads shall be deemed to be streets under the care control and management of the Joint Venturers; and (b) for the purposes of this Clause the terms "municipality" "street" and "care control and management" shall have the meanings which they respectively have in the Local Government Act 1960. (6) Notwithstanding anything hereinbefore contained in this Clause and without limiting the Joint Venturers' obligations under subclause (4) of this Clause the Joint Venturers shall not be or be deemed to be liable for the maintenance of any public road except when such road is within the town and the Joint Venturers have an obligation to maintain that road pursuant to the provisions of Clause 18. (7) Any contribution made by the Joint Venturers to the State pursuant to the provisions of subclause (4) of this Clause shall not be deemed to be a responsibility for road maintenance under this Agreement. Railway 2 12. (1) Subject to the by‑laws made under the Government Railways Act 1904 (insofar as those by‑laws are not inconsistent with this Agreement) and subject to the provisions of this Clause the Joint Venturers shall in accordance with their approved proposals consign at their own risk, and the State shall cause the Railways Commission to transport, by rail, all the Joint Venturers' requirements of — Nickel-containing Products 2 (a) nickel‑containing products from the railhead at Leonora to any processing plant port or ports in a location approved by the Minister; (b) nickel‑containing products between the mining areas and Leonora in the event of a railway being constructed between those places; and (c) insofar as practicable all other bulk commodities required for the Joint Venturers' operations hereunder. Other Commodities 2 (2) The Joint Venturers may at their election transport either by road or by rail all commodities other than those referred to in subclause (1) of this Clause required for their operations hereunder between Kalgoorlie and the mining areas PROVIDED THAT the Railways Commission shall not be required to accept rail freight in less than full wagon loads. Road Licences 2 (3) Where the Joint Venturers elect to transport commodities by road pursuant to subclause (2) of this Clause the Commissioner of Transport shall issue licences for road carriage upon request by the Joint Venturers and upon payment of the licence fees prescribed by him under the Transport Commission Act 1966. (4) The Joint Venturers shall pay to the State as advance payment of freight rates payable under subclause (10) of this Clause, the amount of One million dollars ($1 000 000) by an instalment of Three hundred thousand dollars ($300 000) by not later than the end of the year in which construction of the works referred to in Clause 9 commences and a further instalment of Seven hundred thousand dollars ($700 000) by not later than the end of the next succeeding year. New Railway 2 (5) In the event of the State electing to construct a railway between Leonora and the mining areas to enable the Railways Commission to transport the Joint Venturers' rail freight in the course of their operations hereunder the Joint Venturers shall pay to the State a sum or sums to be agreed between the parties towards the cost of providing such railway (including all necessary land acquisitions, loops, spurs, sidings, crossings, points, bridges and other works and appurtenances and if required by the Railways Commission additional rolling stock). Upgrading 2 (6) The State shall complete the upgrading of the existing railway line between Leonora and Kalgoorlie by not later than the production date to achieve a capacity to enable the Railways Commission to transport nickel‑containing products at a quantity of not less than fifty thousand (50 000) tonnes per annum and all other bulk commodities as required by the Joint Venturers for their operations hereunder. Other facilities 2 (7) The Joint Venturers shall pay or arrange finance for the provision and maintenance of such sidings, shunting loops, spurs and other connections as are required solely for their operations hereunder and the provision and maintenance of loading and unloading facilities sufficient to meet train operating requirements and terminal equipment (including weighing devices), together with a staff adequate to ensure the proper operation of all such loading and unloading facilities and terminal equipment. Notice of Anticipated Tonneages 2 (8) The Joint Venturers shall provide to the satisfaction of the Railways Commission adequate notice in advance or their requirements (including anticipated tonneages in each year) as to the use of the railway to enable the Railways Commission to make arrangements to meet those requirements and shall thereafter give adequate notice of any change in those requirements. In particular the Joint Venturers shall agree with the Railways Commission the pattern of working including weekly and monthly despatches and the hours of working. Conditions of carriage 2 (9) All commodities transported by the Railways Commission pursuant to this Clause shall be carried at the Joint Venturers' risk and shall be subject to the by‑laws made under the Government Railways Act 1904 (insofar as those by‑laws are not inconsistent with this Agreement) and to the provisions of this Clause. Freight Rates 2 (10) The Joint Venturers shall pay to the State freight in respect of all commodities specified in the First Schedule hereto carried by the Railways Commission pursuant to this Agreement at the appropriate freight rates and in the manner and subject to the conditions set out in that Schedule. Leonora Interchange 2 (11) The Joint Venturers shall as required collaborate with the State in the planning of a road‑rail interchange at Leonora. Electricity — Purchase of Electricity 2 13. (1) For the purposes of facilitating integration of electricity generation and transmission facilities in areas where the Joint Venturers operate, the Joint Venturers shall purchase electricity if available from the State Electricity Commission, or, negotiate with the State Electricity Commission for the payment by the Joint Venturers of an equitable contribution towards the augmentation of the facilities of the State Electricity Commission to enable it to supply electricity to the Joint Venturers. Electricity supplied to the Joint Venturers pursuant to this subclause shall be at the standard tariff applicable from time to time. Electricity generation 2 (2) In the event of the Joint Venturers demonstrating to the satisfaction of the Minister that the provisions of subclause (1) of this Clause would be unduly prejudicial to their operations; the Joint Venturers may — (a) in accordance with their approved proposals hereunder and subject to the provisions of the Electricity Act and the approval and requirements of the State Electricity Commission, install and operate without cost to the State, at an appropriate location equipment to generate electricity of sufficient capacity for their operations hereunder; (b) transmit power within the mining areas and from the mining areas to the town or elsewhere subject to the provisions of the Electricity Act and the approval and requirements of the State Electricity Commission; and (c) subject to the provisions of the Electricity Act and the requirements of the State Electricity Commission sell power transmitted pursuant to paragraph (b) of this subclause to third parties within the mining areas and to third parties elsewhere. (3) In the event that the Joint Venturers are unable to procure easements or other rights over land required for the purposes of subclause (2) of this Clause on reasonable terms the State shall assist the Joint Venturers to such extent as may be reasonably necessary to enable them to procure the said easements or other rights over land. Acquisition of facilities 2 (4) Notwithstanding the provisions of the State Electricity Commission Act the State may at any time give to the Joint Venturers twelve (12) months' notice of its intention to acquire and may thereafter acquire the Joint Venturers' electricity facilities or any part thereof up to the first point of voltage breakdown or such other appropriate point as may be agreed, at a price to be agreed between the parties and the Joint Venturers shall take all such steps as may be necessary to effect the acquisitions. The State undertakes that in such event the Joint Venturers shall for their purposes hereunder have first call on the power generated and transmitted by such electricity facilities so acquired and the State undertakes subject only to its inability to supply power for any of the reasons set forth in Clause 32 to supply the Joint Venturers with power for their purposes hereunder up to the normal continuous full load capacity of the electricity facilities so acquired and that in the event of such inability to supply power occurring the State shall take all possible steps to restore such supply regardless of the time or day when such inability arises and may call upon the Joint Venturers to provide employees for that purpose at the State's expense. Charges for electricity 2 (5) In the event of the State acquiring the Joint Venturers' electricity facilities the Joint Venturers shall pay to the Commission the cost of all electricity supplied to the Joint Venturers by the Commission at a rate equal to the standard tariff from time to time applying to the Commission's system less the difference (if any) between the Commission's standard tariff in force at the time of the State's acquisition of the electricity facilities and the Joint Venturers' cost of operating the electricity facilities (including inter alia appropriate capital charges) at the time of the said acquisition. The Commission's rate for electricity supplied calculated as aforesaid shall apply only in respect of an amount of electricity equal to the continuous full load capability (after allowing for a standby plant) of the electricity facilities so acquired and the Joint Venturers shall pay for all electricity supplied to them by the Commission in excess of such amount at the Commission's standard tariff applicable from time to time. Should the Joint Venturers desire to expand their operations hereunder and for that purpose require power beyond the continuous full load capacity of the electricity facilities so acquired the Joint Venturers shall give to the State two (2) years notice of their additional power requirements and the State shall thereupon cause the Commission to negotiate with the Joint Venturers the terms and conditions under which the additional generating capacity required to meet the needs of such expansion may be implemented. Bulk supply to State 2 (6) Should the Joint Venturers' relevant approved proposal provide for the Commission to reticulate electricity to houses occupied by the Joint Venturers' work‑force and by any other persons connected directly with the Joint Venturers' operations whether employees or not and to commercial establishments directly connected with such operations, the Joint Venturers shall sell to the Commission in bulk electricity in sufficient quantities to meet the needs of such workforce persons and establishments at a price equal to the Joint Venturers' actual cost of generating and transmitting such electricity including, inter alia, appropriate capital charges. Water 2 14. (1) The State recognises — Joint Venturers' water requirements 2 (a) that the Joint Venturers have an indicated annual average daily water requirement of twenty eight thousand (28 000) cubic metres, comprising both potable and non potable water for their purposes (which amount or such other amounts as shall from time to time be agreed between the parties to be reasonable are hereinafter called "the Joint Venturers' daily water requirements"); (b) that sources of water within the mining areas are inadequate to meet the Joint Venturers' daily water requirements; and (c) that it has been established at the Joint Venturers' cost that a ground water resource of an indicated capacity adequate to meet the Joint Venturers' daily water requirements exists in the Depot Springs Water Reserve (gazetted on the 15th day of June, 1973) (hereinafter called "the water resource"). Development of Water Resource 2 (2) The Joint Venturers shall provide at their cost or with finance arranged by them and construct to standards and in accordance with designs approved by the State in accordance with the relevant approved proposal all necessary bores valves pipelines meters tanks equipment and appurtenances necessary to draw transport use and dispose of water drawn from sources licensed to the Joint Venturers. Water Licence 2 (3) The Joint Venturers shall make application to the State for a licence to draw water up to twenty eight thousand (28 000) cubic metres per day from the water resource, and the State shall grant to the Joint Venturers such licence PROVIDED HOWEVER that should the water resource prove hydrologically inadequate to meet the Joint Venturers' daily water requirements, the State may on at least six (6) months prior notice to the Joint Venturers (or on at least forty‑eight (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 the water resource at any one time or from time to time to the maximum which the water resource is hydrologically capable of meeting as aforesaid. Alternative Water Source 2 (4) Should the State at any time pursuant to the proviso to subclause (3) of this Clause limit the amount of water to be taken from the water resource or if otherwise the Joint Venturers' daily water requirements cannot be met from the water resource on a continuous basis the State shall with all reasonable expedition and in conjunction with and upon the request of the Joint Venturers search for new or additional subterranean water sources with a view to restoring or ensuring the full quantity of the joint Venturers' daily water requirements. The Joint Venturers shall pay to the State a fair and reasonable proportion of the cost of investigating and developing such new and additional water sources as agreed between the Joint Venturers and the State. State's Water Supply Obligation 2 (5) The State shall use its best endeavours to supply the Joint Venturers with sufficient water (subject to availability of supply from other sources and to prior commitments if any to third parties) to meet that portion of the Joint Venturers' daily water requirements not obtainable from the water resource pending the establishment of new and additional water sources pursuant to subclause (4) of this Clause on such terms and conditions as the Minister may determine. Design of Plant 2 (6) The Joint Venturers shall to the extent that it is practical and economical, design, construct and operate all plant hereunder so as — (a) to make use of brackish or saline water, (b) to recycle all water; and (c) to prevent loss of water by leakage, spillage or evaporation. State's Acquisition of Water Facilities 2 (7) If during the currency of a licence granted under the provisions of this Clause the Minister is of the opinion that it would be desirable for water conservation purposes or water management purposes that sources of water licensed to the Joint Venturers be controlled and operated by the State as part of a regional water supply scheme the Minister may on giving six (6) months prior notice to the Joint Venturers of his intention, revoke the licence and acquire the Joint Venturers' water supply facilities for a monetary consideration to be determined by the Minister. Immediately from the revocation of such licence the State shall, subject only to the continued hydrological availability of water from such sources, commence and thereafter continue to supply water to an amount and at a rate required by the Joint Venturers being the amount and rate to which the Joint Venturers were entitled under such revoked licence and the proviso to subclause (3) of this Clause and the provisions of subclause (4) of this Clause shall in like manner apply to this subclause. Payment for Water 2 (8) The Joint Venturers shall pay to the State for water supplied by the State pursuant to subclause (7) of this Clause a fair price to be agreed between the parties hereto having regard to the actual cost of operating and maintaining the supply and provision for replacement of the water supply facilities. Notwithstanding the foregoing provisions of this subclause, in respect of water supplied by the State to the Joint Venturers as aforesaid for domestic purposes the Joint Venturers shall pay to the State therefor charges as levied from time to time pursuant to the provisions of the Country Areas Water Supply Act 1947. Enlarged Water Capacity 2 (9) The State after first having due regard to the Joint Venturers' daily water requirements and to the hydrological adequacy of the water resource may in its discretion develop the water resource or construct any works in either case to a greater capacity than that required to supply the Joint Venturers' daily water requirements but in that event the Joint Venturers 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 2 (10) The State may after first having due regard to the Joint Venturers' daily water requirements and to the hydrological adequacy of the water resource upon not less than three (3) months prior notice to the Joint Venturers 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 the water resource PROVIDED HOWEVER that — (a) where the Joint Venturers have paid (in whole or in part) any moneys in respect of the investigation development and utilisation of the water resource the State shall require as a condition of such grant that where such third party is or will be a substantial drawer of water from the water resource within a period of five (5) years from the commencement of first utilisation of the water resource by the Joint Venturers the third party (but not the State) shall reimburse to the Joint Venturers prior to the third party exercising its rights to draw water, a proportion of such moneys as the Minister determines is fair and reasonable; and (b) where the Joint Venturers draw water from the water resource the State shall ensure that it is a condition of such grant to third parties that in the event that the capacity of the water resource is reduced, such reduction shall be first applied to such third parties and thereafter if further reduction is necessary the State's and the Joint Venturers' requirements shall be reduced in such proportion as may be agreed. State to Restrict Adverse Grants 2 (11) The State shall ensure that no rights to mine minerals petroleum or other substances are granted over the area of any aquifer from which the Joint Venturers are drawing water or from time to time have the right to draw water hereunder unless the Minister reasonably determines that such grant is not likely to unduly prejudice or to interfere with the operations of the Joint Venturers hereunder and is not likely to render the water source incapable of supplying the Joint Venturers' daily water requirements on a continuous basis. Joint Venturers' Priority for Pipeline Facilities 2 (12) Nothing herein contained or implied (and in particular the provisions of subclause (7) of this Clause) shall derogate from or curtail the absolute priority of the Joint Venturers to utilize for the purpose of their operations under this Agreement any surplus capacity which might from time to time exist in any pipeline facilities constructed at the cost of the Joint Venturers for the transportation of water from a water source to any treatment plant operated by or for the Joint Venturers pursuant to this Agreement or to the townsite PROVIDED ALWAYS that the Joint Venturers shall not unreasonably withhold their approval to the use of such surplus capacity by the State and third parties on terms and conditions to be agreed. Supply of Water to Third Parties 2 (13) The Joint Venturers may supply water to third parties including the State at a charge to be approved by the Minister after consultation with the Joint Venturers. The Joint Venturers shall have all such powers and authorities with respect to such water as are determined by the Minister which may include all or any of the powers of a water board under the Water Boards Act 1904 and, with the consent of the Minister for Local Government, a local authority under the Local Government Act 1960. Mineral Lease 2 15. (1) On application made by the Joint Venturers, as soon as practicable after all their proposals hereunder have been approved and the Joint Venturers have complied with the provisions of subclause (4) of Clause 6, for a mineral lease over so much of the land in the red areas as the Joint Venturers desire and in respect of which the Joint Venturers then hold mineral leases, the State shall upon the surrender by the Joint Venturers of all such mineral leases cause to be granted to the Joint Venturers at the rental specified from time to time in the Mining Act a mineral lease of such land within the mining areas so applied for (notwithstanding that the survey in respect thereof has not been completed but subject to such corrections to accord with the survey when completed) such mineral lease to be granted under and, except as otherwise provided in this Agreement, subject to the Mining Act but in the form of the Second Schedule hereto and in respect of the minerals set out therein. (2) Subject to the performance by the Joint Venturers of their obligations under this Agreement and the Mining Act and notwithstanding any provisions of the Mining Act to the contrary, the term of the mineral lease shall be for a period of twenty‑one (21) years commencing from the date of receipt of application with the right during the currency of this Agreement to take successive renewals of the said term each for a period of twenty‑one (21) years upon the same terms and conditions subject to the sooner determination of the said term upon the cessation or determination of this Agreement (subject to the provisions of subclause (4) of Clause 35) such right to be exercisable by the Joint Venturers making written application for any such renewal not later than one (1) month before the expiration of the current term of the mineral lease. Labour conditions 2 (3) The State shall ensure that during the currency of this Agreement and subject to compliance with their obligations hereunder the Joint Venturers shall not be required to comply with the labour conditions imposed by or under the Mining Act in regard to the mineral lease. Other Mining Tenements 2 (4) The State shall not during the currency of this Agreement register any claim or grant any lease or other mining tenement under the Mining Act or otherwise by which any person other than the Joint Venturers or an associated company will obtain under the laws relating to mining or otherwise any rights to mine or take the natural substances (other than petroleum as defined in the Petroleum Act 1967) within the mineral lease unless the Minister for Mines reasonably determines that it is not likely to unduly prejudice or to interfere with the operations of the Joint Venturers hereunder assuming the taking by the Joint Venturers of all reasonable steps to avoid the interference. Right to remove sand, etc. 2 (5) Subject to compliance with the requirements of any Act Regulation or By‑Law from time to time in force the Joint Venturers may for the purposes of this Agreement remove stone sand clay or gravel from the mineral lease. Access over mineral lease 2 (6) The Joint Venturers 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 unduly prejudice or interfere with the operations of the Joint Venturers under this Agreement. Surrender of part of Mineral Lease 2 (7) Notwithstanding the provisions of this Clause the Joint Venturers 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. Mineral Claims in the Yellow Areas 2 16. (1) Notwithstanding the provisions of the Mining Act the following provisions shall apply in respect of mineral claims which the Joint Venturers hold over the yellow areas at the date application is made for a mineral lease pursuant to subclause (1) of Clause 15 — Exemption from labour conditions 2 (a) The State shall ensure that subject to compliance with their obligations under this Agreement the Joint Venturers shall not be required to comply with the labour conditions imposed by the Mining Act. Exploration of the yellow areas 2 (b) Commencing from the expiration of the third year next following the production date the Joint Venturers shall carry out a programme of exploration of the yellow areas the subject of mineral claims and report on the results of such exploration to the Minister for Mines at yearly intervals thereafter. Surrender of the yellow areas 2 (c) On the expiration of the fourth year next following the production date the Joint Venturers shall surrender mineral claims totalling in area at least one third of the yellow areas. (d) On the expiration of the fifth year next following the production date the Joint Venturers shall surrender mineral claims totalling in area at least one half of the balance of the yellow areas. (e) On the expiration of the sixth year next following the production date the Joint Venturers shall surrender all mineral claims held by them in the balance of the yellow areas. Incorporation of yellow areas in the mineral lease 2 (2) Notwithstanding the provisions of the Mining Act the Joint Venturers shall have the right in respect of mineral claims surrendered under subclause (1) of this Clause, at the respective dates of surrender, to apply for and have included in the mineral lease, upon and subject to the same terms covenants and conditions as apply to the mineral lease (with such apportionment of rents as is necessary), such of the areas of the surrendered mineral claims as the Joint Venturers desire notwithstanding that the survey of such additional land has not been completed (but subject to correction to accord with the survey when made at the Joint Venturers' expense). Lands 2 17. (1) For the purposes of the Joint Venturers' operations and associated works at the town the State shall grant to the Joint Venturers for residential agricultural professional business commercial and industrial purposes and the provision of communal or other facilities at the townsite a special lease or special leases under the provisions of the Land Act or occupancy rights on terms and conditions to be determined by the Minister for Lands of the said State for an area or areas of land in the townsite in accordance with the Joint Venturers' proposals as finally approved. Such lease or leases or occupancy rights as the case may be shall be for a term expiring twenty‑one (21) years from the date of such grant at a rental of one (1) peppercorn per annum. The Joint Venturers may at any time during the currency of such lease or leases or occupancy rights purchase for the sum of ten dollars ($10) per lot the fee simple of any townsite lot on which buildings or structures have been erected the cost of which is not less than ten thousand dollars ($10 000) for each such lot or, in the case of dwelling houses when averaged over the lot being purchased, not less than seven thousand dollars ($7 000) for each thousand square metres of such lot and on and subject to such terms and conditions not inconsistent with this Agreement as the Minister for lands considers applicable in the circumstances and including a right for the State at any time and from time to time to exclude from such lease or leases or occupancy rights or to resume without compensation any part or parts of such land on which no buildings or structure has been erected as the State may require for public purposes. (2) The State shall in accordance with the Joint Venturers' approved proposals grant to the Joint Venturers or arrange to have the appropriate authority or other interested instrumentality of the State grant for such periods and on such terms and conditions (including renewal rights) as shall be reasonable having regard to the requirements of the Joint Venturers, leases and where applicable licences easements and rights of way for all or any of the purposes of the Joint Venturers' operations hereunder including any of the following namely — townsites, private roads, railway sidings and spur lines, tailing areas, water pipelines, pumping installations and reservoirs, airport, power transmission lines, stockpile areas and plant site areas (including concentrator areas and smelter areas). Modification of Land Act 2 (3) For the purpose of this Agreement in respect of any land sold or leased to the Joint Ventures by the State the Land Act shall be deemed to be modified by — (a) the substitution for subsection (2) of section 45A of the following subsection — "(2) Upon the Governor signifying approval pursuant to subsection (1) of this section in respect of any such land the same may subject to this section be sold or leased;" (b) the deletion of the proviso to section 116; (c) the deletion of section 135; (d) the deletion of section 143; (e) the inclusion of a power to grant occupancy rights over land on such terms and conditions as the Minister for Lands may determine; (f) the inclusion of a power to offer for sale or leasing land within or in the vicinity of the townsite notwithstanding that the townsite has not been constituted a townsite under section 10; and (g) the inclusion of a power to offer for sale or grant leases or licences for terms or periods and on such terms and conditions (including renewal rights) and in forms consistent with the provisions of this Agreement in lieu of the terms or periods, the terms and conditions and the forms referred to in the Land Act; The provisions of this subclause shall not operate so as to prejudice the rights of the State to determine any lease licence or other right or title in accordance with the other provisions of this Agreement. Sale of Land Act 2 (4) Notwithstanding the provisions of the Sale of Land Act 1970 the Joint Venturers shall, subject to the prior consent of the Minister, have the right during the currency of any lease or leases or occupancy rights granted to them under subclause (1) of this Clause to enter into an agreement to sell any lot the subject of such lease or leases or occupancy rights on condition that the purchaser erects on such lot within two (2) years from the date of such agreement, buildings or structures the cost of which is not less than ten thousand dollars ($10 000) for each such lot, or in the case of dwelling houses when averaged over the lot being purchased not less than seven thousand dollars ($7 000) for each thousand square metres of such lot. Townsite and town development 2 18. (1) (a) Should the approved proposals provide for the establishment of a new town the Joint Venturers shall at their cost or with finance arranged by them and in accordance with the approved proposals — (i) provide at the townsite such housing accommodation services and works (including sewerage reticulation and treatment works water supply works and main drainage works and also social cultural and civic facilities) as may be necessary in order to provide for the needs of persons (and the dependants of those persons) connected directly with the Joint Venturers' operations under this Agreement, whether or not such persons are employed by the Joint Venturers; (ii) provide at the townsite all necessary public roads and buildings required for educational, hospital, medical, police, recreation, fire and other services; (iii) provide all equipment required for the operation and proper functioning of the services and works referred to in subparagraphs (i) and (ii) of this paragraph; and (iv) service maintain and where necessary repair and renovate the housing accommodation services and works mentioned in subparagraphs (i) and (ii) of this paragraph; (v) (subject to and in accordance with by‑laws from time to time to be made and altered by the Joint Venturers which include provisions for fair and reasonable prices rentals or charges or if no such by‑laws are made or in force then at such prices rentals or charges and upon and subject to such terms and conditions as are fair and reasonable) ensure that the said housing accommodation services and works are at all times readily available to persons requiring the same being employees licencees or agents of the Joint Venturers or persons engaged in providing a legitimate and normal service to or for the Joint Venturers or their employees licencees or agents including the dependants of such persons; and (vi) ensure that the roads buildings and other works mentioned in sub-paragraph (ii) of this paragraph and the equipment mentioned in subparagraph (iii) of this paragraph are readily available free of charge to the State. Limitation on Joint Venturers' obligations 2 (b) Nothing contained in paragraph (a) of this subclause shall be construed as placing on the Joint Venturers an obligation to provide and pay for personnel required to operate the educational hospital medical or police services mentioned in that paragraph. Equipment 2 (2) The Joint Venturers shall at their cost or with finance arranged by them equip all the buildings mentioned in paragraph (a) of subclause (1) of this Clause to the extent and of a standard at least equal to that normally adopted by the State in similar types of buildings used for similar purposes in comparable townsites. Staff Housing 2 (3) The Joint Venturers shall at their cost or with finance arranged by them provide adequate housing accommodation for married and single staff directly connected with the educational hospital medical and police services mentioned in subparagraphs (i) and (ii) of paragraph (a) of subclause (1) of this Clause. Existing Towns 2 (4) If the approved proposals provide for the assimilation into any existing town of the whole or part of the Joint Venturers' workforce (including their dependants) and any other persons (including their dependants) connected directly with the Joint Venturers' operations (whether employees of the Joint Venturers or not) whereby the normal population of such existing town is significantly increased then the Joint Venturers to the extent necessary to provide for the needs of the said increase in population of such existing town shall bear the cost of the provision at that existing town of the matters mentioned in subparagraphs (i) (ii) and (iii) of paragraph (a) of subclause (1) of this Clause. The said additional housing services works and equipment may be provided by the State or by another party under an agreement with the State and in either case shall be to the extent and of a standard at least equal to that normally adopted by the State in similar types of buildings used for similar purposes in comparable towns. The Joint Venturers shall pay to the State or such other party such proportion of the cost of such additional housing services works and equipment as is fair and reasonable having regard to the extent of the said increase in the population of such existing town. State services 2 (5) Should the approved proposals place an obligation on the State to provide for any of the matters mentioned in subparagraphs (i) (ii) and (iii) of paragraph (a) of subclause (1) of this Clause or require the State to procure and accept the responsibility of