Mineral Sands (Beenup) Agreement Act 1995 (WA)

Western Australia Mineral Sands (Beenup) Agreement Act 1995 Western Australia Mineral Sands (Beenup) Agreement Act 1995 Contents 1. Short title 1 2. Commencement 1 3. Interpretation 1 4. Agreement ratified and implementation authorised 1 Schedule 1 — Mineral Sands (Beenup) Agreement Notes Compilation table 38 Defined terms Western Australia Mineral Sands (Beenup) Agreement Act 1995 An Act to ratify, and authorise the implementation of, an agreement between the State and Mineral Deposits Pty. Ltd. in relation to the establishment of a proposed heavy mineral mining operation at Beenup in the south west of Western Australia. 1. Short title This Act may be cited as the Mineral Sands (Beenup) Agreement Act 1995 1. 2. Commencement This Act comes into operation on the day on which it receives the Royal Assent 1. 3. Interpretation In this Act unless the contrary intention appears the Agreement means the Mineral Sands (Beenup) Agreement, a copy of which is set out in Schedule 1, and includes the Agreement as varied from time to time in accordance with its provisions. 4. Agreement ratified and implementation authorised (1) The Agreement is ratified. (2) The implementation of the Agreement is authorised. (3) Without limiting or otherwise affecting the application of the Government Agreements Act 1979, the Agreement operates and takes effect despite any other Act or law. Schedule 1 — Mineral Sands (Beenup) Agreement [s. 3] [Heading amended: No. 19 of 2010 s. 4.] THIS AGREEMENT is made this 22nd day of December 1994 BETWEEN THE HONOURABLE RICHARD FAIRFAX COURT, B.Com., 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 MINERAL DEPOSITS PTY. LTD. ACN 000 154 067 a company incorporated in the State of New South Wales and having its principal place of business in the State of Western Australia at Suite 2, 72 Melville Parade, South Perth (hereinafter called "the Company" in which term shall be included its successors and permitted assigns) of the other part. WHEREAS: (a) the Company has established within the Mining Leases hereinafter defined heavy mineral sands deposits of tonneages and grades sufficient to warrant economic recovery and marketing; (b) the Company has put forward a project proposal for a mining operation which will have a capacity to produce not less than 500,000 tonnes per year of heavy mineral products for transportation from the Mining Leases to the Port of Bunbury for export; (c) the Company and the State have agreed with respect to the funding of the initial costs of constructing a power line to the minesite and of constructing or upgrading certain public roads to be used for product haulage as hereinafter appears; (d) the Company has undertaken to continue to investigate economically viable means to add value to ilmenite from the Mining Leases through processing activities within Western Australia and to report the results of such investigations to the Minister on a regular basis; and (e) the State for the purpose of promoting employment opportunity and development within Western Australia has agreed to enter into this Agreement to assist the establishment of the proposed mining operation upon and subject to the terms of this Agreement. NOW THIS AGREEMENT WITNESSES: Definitions 1. In this Agreement subject to the context — "advise", "apply", "approve", "approval", "consent", "notify", "request", or "require", means advise, apply, approve, approval, consent, notify, request, or require in writing as the case may be and any inflexion or derivation of any of those words has a corresponding meaning; "approved proposal" means a proposal approved or determined under this Agreement; "Berth C" means the Bunbury Port Authority's planned Berth C comprising a wharf, conveyor, ship loading facilities and storage area to be situated on the northern side of the Inner Harbour of the port; "Berth 2" means the Bunbury Port Authority's general purpose berth known as Berth 2 and situated on the southern side of the Inner Harbour of the port; "Bunbury Port Authority" means the body corporate established pursuant to the Bunbury Port Authority Act 1909; "Clause" means a clause of this Agreement; "Commissioner of Main Roads" means the Commissioner of Main Roads appointed under the Main Roads Act 1930; "Commissioner of Railways" means the Commissioner of the Western Australian Government Railways for the time being in office under the Government Railways Act 1904; "Commonwealth" means the Commonwealth of Australia and includes the Government for the time being thereof; "Company's workforce" means the persons (and the dependents of those persons) engaged whether as employees, agents or contractors in the Company's activities under this Agreement; "EP Act" means the Environmental Protection Act 1986; "haulage route" means those parts of the route between the Mining Leases and the northern end of the Capel bypass shown coloured red and green on the plan marked "A" initialled by or on behalf of the parties hereto for the purpose of identification; "heavy minerals" means titaniferous minerals (including ilmenite rutile and leucoxene) and magnetite zircon monazite kyanite staurolite xenotime and garnet obtained from the Mining Leases; "heavy mineral concentrates" means heavy mineral ore concentrated prior to separation into component heavy minerals; "heavy mineral products" means commercially valuable heavy minerals recovered for sale by the separation into its component minerals of heavy mineral concentrates; "Land Act" means the Land Act 1933; "laws relating to traditional usage" means laws applicable from time to time in Western Australia in respect of rights or entitlements to or interests in land or waters which rights, entitlements or interests are acknowledged, observed or exercisable by Aboriginal persons (whether communally or individually) in accordance with Aboriginal traditions, observances, customs or beliefs; "local authority" means the council of a municipality that is a city, town or shire constituted under the Local Government Act 1960; "Mining Act" means the Mining Act 1978; "Mining Leases" means mining leases Nos. M70/574, M70/575, M70/576, M70/577, M70/747 and M70/787 and according to the requirements of the context shall describe the area of land demised as well as the instrument by which it is demised; "Minister" means the Minister in the Government of the State for the time being responsible for the administration of the Act to ratify this Agreement and pending the passing of that Act means the Minister for the time being designated in a notice from the State to the Company and includes the successors in office of the Minister; "Minister for Mines" means the Minister in the Government of the State for the time being responsible for the administration of the Mining Act; "month" means calendar month; "notice" means notice in writing; "person" or "persons" includes bodies corporate; "port" means the port as defined in section 2 of the Bunbury Port Authority Act 1909; "public road" means a road as defined by the Road Traffic Act 1974; "said State" means the State of Western Australia; "SECWA" means the State Energy Commission of Western Australia as described in section 7 of the State Energy Commission Act 1979 and includes, in respect of any particular statutory function of the State Energy Commission under the State Energy Commission Act, any successor of the State Energy Commission in respect of that statutory function; "SECWA Agreement" means the agreement to be entered into between SECWA and the Company in respect of supply of electricity to the Mining Leases; "specified date" means the date specified in any current notice from the Company to the Bunbury Port Authority pursuant to subclause (1) of Clause 12; "subclause" means subclause of the Clause in which the term is used; "this Agreement" "here of" and "hereunder" refer to this Agreement whether in its original form or as from time to time added to varied or amended. Interpretation 2. In this Agreement — (a) monetary references are references to Australian currency unless otherwise specifically expressed; (b) power given under any clause other than Clause 25 to extend any period or date shall be without prejudice to the power of the Minister under Clause 25; (c) clause headings do not affect the interpretation or construction; (d) words in the singular shall include the plural and words in the plural shall include the singular according to the requirements of the context; (e) one gender includes the other genders; and (f) 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, except that in the case of a reference to the State Energy Commission Act 1979, a reference to that Act relating to any particular subject matter or statutory function of the State Energy Commission includes a reference to any Act or particular provision passed in substitution therefor relating to that same or a similar subject matter or statutory function. Ratification and operation 3. (1) The State shall 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 30 June 1995 or such later date as the parties may agree. (2) The provisions of this Agreement other than this Clause and Clauses 1 and 2 shall not come into operation until the Bill referred to in subclause (1) has been passed by the Parliament of Western Australia and comes into operation as an Act. (3) If before 30 June 1995 or such later date as aforesaid the said Bill has not commenced to operate as an Act then unless the parties hereto otherwise agree this Agreement shall then cease and determine and no party hereto shall have any claim against any other party hereto with respect to any matter or thing arising out of done performed or omitted to be done or performed under this Agreement. (4) 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. Company to submit proposals 4. (1) The Company shall on or before 31 December 1995 (or by such extended date as the Minister may allow as hereinafter provided) and subject to the EP Act, the laws relating to traditional usage and the provisions of this Agreement submit to the Minister to the fullest extent reasonably practicable its detailed proposals (including plans where practicable and specifications where reasonably required by the Minister and any other details normally required by the local authority in which area the project is to be situated) for a mining and treatment project with a capacity to produce not less than 500,000 tonnes per year of heavy mineral products and the transport and shipment through the port of heavy mineral products which proposals shall make provision for the Company's workforce required in connection with the project and shall include the location, area, layout, design, quantities, materials and time programme for the commencement and completion of construction or the provision (as the case may be) of each of the following matters, namely ­ (a) the mining and concentration of heavy mineral ore from the Mining Leases and the separation of heavy mineral concentrates into heavy mineral products including plant facilities and the transport of heavy mineral products to the port; (b) accommodation of construction and permanent workforce; (c) water supplies; (d) energy supplies; (e) storage and ship loading of heavy mineral products at the port; (f) use of local professional services, labour and materials and measures to be taken with respect to the engagement and training of employees by the Company, its agents and contractors; (g) any other works, services or facilities desired by the Company; (h) an environmental management programme as to measures to be taken, in respect of the Company's activities under this Agreement, for rehabilitation and the protection and management of the environment. Order of proposals (2) Each of the proposals pursuant to subclause (1) may with the approval of the Minister or if so required by him be submitted separately and in any order as to the matter or matters mentioned in one or more of paragraphs (a) to (h) of subclause (1). Additional submissions (3) At the time when the Company submits the said proposals it shall — (a) submit to the Minister details of any services (including any elements of the project investigations design and management) and any works materials plant equipment and supplies that it proposes to consider obtaining from or having carried out or permitting to be obtained from or carried out outside Australia together with its reasons therefor and shall, if required by the Minister, consult with the Minister with respect thereto; and (b) furnish to the Minister's satisfaction evidence of — (i) marketing arrangements demonstrating the Company's ability profitably to sell or use heavy minerals and heavy mineral products in accordance with the said proposals; (ii) the availability of finance necessary for the fulfilment of the operations to which the said proposals refer; and (iii) the readiness of the Company to embark upon and proceed to carry out the operations referred to in the said proposals. Consideration of proposals 5. (1) Subject to the EP Act and laws relating to traditional usage, in respect of proposals submitted pursuant to subclause (1) of Clause 4 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 (1) of Clause 4 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, PROVIDED ALWAYS that where implementation of any proposals hereunder has been approved pursuant to the EP Act subject to conditions or procedures, any approval or decision of the Minister under this Clause shall if the case so requires incorporate a requirement that the Company makes such alterations to the proposals as may be necessary to make them accord with those conditions or procedures. Advice of Minister's decision (2) The Minister shall within two months after receipt of the said proposals pursuant to subclause (1) of Clause 4 or where the said proposals are to be assessed under section 40(1)(b) of the EP Act or where laws relating to traditional usage apply, then within two months after service on him of an authority under section 45(7) of the EP Act or satisfaction of the requirements under laws relating to traditional usage (as the case may be) give notice to the Company of his decision in respect to the proposals. Consultation with Minister (3) If the decision of the Minister is as mentioned in either of paragraphs (b) or (c) of subclause (1) the Minister shall afford the Company full opportunity to consult with him and should it so desire to submit new or revised proposals either generally or in respect to some particular matter. Minister's decision subject to arbitration (4) If the decision of the Minister is as mentioned in either of paragraphs (b) or (c) of subclause (1) and the Company considers that the decision is unreasonable the Company within two months after receipt of the notice mentioned in subclause (2) may elect to refer to arbitration in the manner hereinafter provided the question of the reasonableness of the decision PROVIDED THAT any requirement of the Minister pursuant to the proviso to subclause (1) shall not be referable to arbitration hereunder. Arbitration award (5) An award made on an arbitration pursuant to subclause (4) shall have force and effect as follows — (a) if by the award the dispute is decided against the Company then unless the Company within 3 months after delivery of the award gives notice to the Minister of its acceptance of the award this Agreement shall on the expiration of that period of 3 months cease and determine; or (b) if by the award the dispute is decided in favour of the Company the decision shall take effect as a notice by the Minister that he is so satisfied with and approves the matter or matters the subject of the arbitration. Effect of non‑approval of proposals (6) Notwithstanding that under subclause (1) any proposals of the Company are approved by the Minister or determined by arbitration award, unless each and every such proposal and matter is so approved or determined by 31 December 1996 or by such extended date or period if any as the Company shall be granted pursuant to the provisions of this Agreement then the Minister may give to the Company 12 months notice of intention to determine this Agreement and unless before the expiration of the said 12 months period all the detailed proposals and matters are so approved or determined this Agreement shall cease and determine subject however to the provisions of Clause 30. Implementation of proposals (7) Subject to and in accordance with the EP Act and any approvals and licences required under that Act and laws relating to traditional usage the Company shall implement the proposals as approved or determined pursuant to this Clause in accordance with the terms thereof. Additional proposals 6. If the Company at any time during the continuance of this Agreement desires to significantly modify expand or otherwise vary its activities carried on pursuant to this Agreement (including levels of production) beyond those activities specified in approved proposals or to mine minerals from the Mining Leases in addition to heavy minerals or to extend mining (whether of heavy minerals or other minerals) into any area of the Mining Leases not the subject of the approved proposals it shall give notice of such desire to the Minister and within 2 months thereafter shall submit to the Minister detailed proposals in respect of all matters covered by such notice and such of the other matters mentioned in paragraphs (a) to (h) of subclause (1) of Clause 4 and other relevant information as the Minister may require. The provisions of Clause 4 and Clause 5 (other than subclauses (5)(a) and (6)) shall mutatis mutandis apply to proposals submitted pursuant to this Clause with the additional provision that the Company may withdraw such proposals at any time before approval thereof or, where any decision of the Minister in respect thereof is referred to arbitration, within 3 months after the award by notice to the Minister that it shall not be proceeding with the same. Subject to and in accordance with the EP Act and any approvals and licences required under that Act and laws relating to traditional usage the Company shall implement proposals approved or determined pursuant to this Clause in accordance with the terms thereof. Protection and management of the environment 7. (1) The Company shall in respect of the matters relating to the environment which are the subject of approved proposals, carry out a continual programme of investigation, research and monitoring to ascertain the effectiveness of the measures they are taking both generally and pursuant to the approved proposals for rehabilitation and the protection and management of the environment. (2) The Company shall during the currency of this Agreement submit to the Minister — (a) not later than 31 July 1997 and 31 July in each year thereafter (except those years in which a comprehensive report is required to be submitted pursuant to paragraph (b) of this subclause) a brief report concerning investigations, research and monitoring carried out pursuant to subclause (1) and the implementation by the Company of the elements of the approved proposals relating to rehabilitation and the protection and management of the environment in the year ending 31 May immediately preceding the due date for the brief report; and (b) not later than 31 July 1999 and 31 July in each third year thereafter, a comprehensive report on the result of such investigations and research and the implementation by the Company of the elements of the approved proposals relating to rehabilitation and the protection and management of the environment during the three year period ending 31 May immediately preceding the due date for the detailed report together with a mining plan setting forth the proposed mining operations of the Company during the three year period commencing 1 June immediately preceding such due date and the programme proposed to be undertaken by the Company during that period in regard to investigation and research under subclause (1) and the implementation by the Company of the elements of the approved proposals relating to rehabilitation and the protection and management of the environment. (3) The Minister may within 2 months of receipt of a report pursuant to paragraph (b) of subclause (2) notify the Company that he — (a) requires amendment of the report and/or programme for the ensuing 3 years; or (b) requires additional detailed proposals to be submitted for rehabilitation and the protection and management of the environment. (4) The Company shall within 2 months of receipt of a notice pursuant to paragraph (a) of subclause (3) submit to the Minister an amended report and/or programme as required. The Minister shall afford the Company full opportunity to consult with him on his requirements during the preparation of any amended report or programme. (5) The Minister may within 1 month of receipt of an amended report or programme pursuant to subclause (4) notify the Company that he requires additional detailed proposals to be submitted for rehabilitation and the protection and management of the environment. (6) The Company shall within 2 months of receipt of a notice pursuant to paragraph (b) of subclause (3) or subclause (5) submit to the Minister additional detailed proposals as required and the provisions of subclauses (1), (2), (3), (4) and (5)(b) of Clause 5 shall mutatis mutandis apply to those proposals. (7) Subject to and in accordance with the EP Act and any approvals and licences required under that Act and laws relating to traditional usage the Company shall implement the decision of the Minister or an award on arbitration as the case may be in accordance with the terms thereof. Mining Leases 8. (1) During the currency of this Agreement each of the Mining Leases shall, subject to compliance by the Company with the terms and conditions applicable thereto (as modified by this Clause) be held under and subject to the Mining Act modified as follows — (a) the term of each Mining Lease shall be for a period of 21 years commencing from its date of grant with the right during the currency of this Agreement to take two successive renewals of the said term each for a further period for 21 years upon the same terms and conditions, subject to the sooner determination of the said term upon cessation or determination of this Agreement such right to be exercisable by the Company making written application for any such renewal not later than one month before the expiration of the current term of each Mining Lease; (b) the Company shall not be required to comply with the expenditure conditions imposed by or under the Mining Act in regard to the Mining Leases; and (c) the Company shall lodge with the Department of Minerals and Energy at Perth — (i) such periodical reports (except reports in the form of Form 5 of the Mining Regulations 1981 or other reports relating to expenditure on the Mining Leases) and returns as may be prescribed in respect of mining leases pursuant to regulations under the Mining Act provided that the Minister for Mines may waive any requirement for provision of technical data in respect of areas within the Mining Leases; (ii) on an annual basis, a report on ore reserves within the Mining Leases (using the scheme recommended by the Australasian Institute of Mining and Metallurgy and the Australian Mining Industry Council or future equivalent) together with a list of any geotechnical, metallurgical, geochemical and geophysical investigations carried out during the year and, if requested by the Department, details of any of those investigations; (iii) reports on drilling operations and drill holes where the main purpose of the drilling was to discover or define future ore reserves on the Mining Leases and, if requested by the Department, reports on drilling done within blocks of proven ore for the purpose of mine planning. Additional areas (2) Notwithstanding the provisions of the Mining Act the Company may from time to time during the currency of this Agreement apply to the Minister for approval that the provisions of this Agreement be extended to a mining lease or mining leases held by the Company under the Mining Act. The Minister shall confer with the Minister for Mines in regard to any such application and if they approve the application the provisions of this Agreement shall thereafter during the term of this Agreement apply to such mining lease or mining leases as if they were Mining Leases. Scott River Road (3) Notwithstanding anything to the contrary contained in the Mining Leases, the Company shall have the right to mine Scott River Road within the Mining Leases subject to it providing at its cost during mining suitable deviations of the road to a standard acceptable to the Minister after consultation with the Commissioner of Main Roads and the relevant local authority. Following mining the Company shall at its cost restore the road to an alignment and standard to the satisfaction of the Minister after consultation with the Commissioner of Main Roads. Royalties 9. (1) The Company shall pay to the State in respect of all minerals mined or produced from the Mining Leases and used, sold, transferred or otherwise disposed of royalties at the rates from time to time prescribed under or pursuant to the provisions of the Mining Act. (2) The Company shall comply with the provisions of the Mining Act and regulations thereunder with respect to the filing of production reports and royalty returns and the assessment, verification and payment of royalties. Roads 10. (1) Except as provided in subclause (5) or as otherwise approved by the Minister in consultation with the Commissioner of Main Roads and the relevant local authority, the Company shall not use any roads other than the haulage route for the transport of heavy minerals, heavy mineral concentrates and heavy mineral products between the Mining Leases and the northern end of the Capel bypass. Road works (2) The State shall cause the haulage route to be constructed to a standard suitable for the haulage of heavy minerals, heavy mineral concentrates and heavy mineral products and shall use all reasonable endeavours to ensure such works are completed by the time heavy minerals, heavy mineral concentrates or heavy mineral products are to be transported on a regular basis from the Mining Leases pursuant to the approved proposals. Contribution to cost of road works (3) (a) The Company shall pay to the State an amount and at such time or times as shall be agreed between the Company and the State towards the cost to construct that part of the haulage route coloured red on the said plan marked "A". (b) Any expenditure incurred by the Company on preliminary design, site studies and land acquisition for the haulage route and approved by the Minister after consultation with the Commissioner of Main Roads for the purposes of this subclause shall be credited against the amount payable by the Company under paragraph (a) of this subclause. Maintenance of haulage route (4) (a) The State shall maintain or cause to be maintained all public roads comprising the haulage route which are under the control of the Commissioner of Main Roads or a local authority and which are used by the Company for the purposes of this Agreement to a standard suitable, in the opinion of the Commissioner of Main Roads, for the transport of heavy minerals, heavy mineral concentrates or heavy mineral products pursuant to the approved proposals. (b) Until such time as the Company ceases permanently to use the haulage route for its transport requirements pursuant to the approved proposals the Company shall pay to the State such proportion or proportions as may be agreed from time to time by the Company and the Commissioner of Main Roads of the cost of maintaining the sections comprising that part of the haulage route which is coloured red on the said plan marked "A". Interim route (5) In the event that the road works mentioned in subclause (2) are not completed by the time therein mentioned the Minister after consultation with the Commissioner of Main Roads, the relevant local authority and the Company shall determine an interim route for use by the Company for its transport requirements under this Agreement pending completion of those works. The Company shall not be required to make any capital contribution to any upgrading of the interim route necessary for the use thereof by the Company but shall pay such reasonable proportion of the cost of maintaining the interim route during its use as is agreed by the Minister, after consultation with the Commissioner of Main Roads and the relevant local authority, and the Company. Damage to roads (6) (a) Subject to paragraph (b), in the event that for or in connection with the Company's operations hereunder any use by the Company or any person engaged by the Company of any public road results in excessive damage to or deterioration of any such public road (other than fair wear and tear) the Company shall pay to the State or the local authority as the case may require the whole or an equitable part of the total cost of making good the damage or deterioration as may be reasonably required by the Commissioner of Main Roads in consultation with the relevant local authority having regard to the use of such public road by others. (b) The provisions of paragraph (a) shall not apply in respect of roads the subject of subclause (5) or to any section of the haulage route referred to in subclause (4)(b) for which a specific arrangement has been entered into pursuant to subclause (4). Road making materials (7) If the Commissioner of Main Roads is given access to the Mining Leases for the purpose of recovering laterite, sand or other materials for use in the construction or upgrading of the haulage route, such materials shall be recovered by the Commissioner of Main Roads without charge by or cost to the Company provided that if, at the request of the Commissioner of Main Roads, the Company agrees to carry out any excavation, processing, stockpiling, loading or transporting of such materials the Company shall be entitled to recover any reasonable direct costs of so doing from the Commissioner of Main Roads. Power 11. (1) The State shall cause SECWA to construct a 132 kV power line from Manjimup Substation to an electrical 132/22 kV substation at Beenup for the supply of electrical power required for the Company's operations pursuant to this Agreement and shall use all reasonable endeavours to ensure that electrical power from SECWA is available when required for the operations of the project in accordance with approved proposals. Cost of works (2) (a) The Company shall pay to SECWA an amount and at such time or times as shall be agreed between the Company and the State towards the costs of the power line referred to in subclause (1). All payments made by the Company to SECWA in respect of route investigations and the preparation of an environmental submission for the said power line shall be credited against the amount payable by the Company under this paragraph. (b) The electrical substation at Beenup referred to in subclause (1) shall be constructed by SECWA but at the expense of the Company. (c) If between the beginning of the electricity supply period and 1 January 2006 SECWA uses or reasonably expects to use the power line referred to in subclause (1) to supply a new or increa