South Australian Consolidated Acts South Australian Consolidated ActsSchedule 1—The original Indenture
This Indenture made on the fourth day
of October, 1937 BETWEEN HIS MOST GRACIOUS MAJESTY KING GEORGE THE SIXTH by
the Grace of God, of Great Britain, Ireland and the British Dominions beyond
the Seas King, Defender of the Faith, Emperor of India, of the first part, HIS
EXCELLENCY THE LIEUTENANT-GOVERNOR of the State of South Australia and its
Dependencies in the Commonwealth of Australia, contracting for and on behalf
of the State of South Australia and the Governments thereof from time to time
in office, of the second part, and THE BROKEN HILL PROPRIETARY COMPANY LIMITED
(which with its successors and assigns is hereinafter called "the Company") of
the third part:
WHEREAS the establishment of a blast furnace in South Australia for smelting
iron ores would be of great economic advantage to South Australia and of
considerable value for the purposes of national defence and the Honourable
Richard Layton Butler Premier and Treasurer of the said State has on behalf of
the Government of the said State requested the Company to establish within the
said State a blast furnace and the works and plant ancillary thereto: AND
WHEREAS the Company has agreed to comply with that request and to establish
such a furnace and such works and plant upon the Government of South Australia
entering into this Indenture and upon and subject to the covenants terms and
conditions therein contained and subject to the authorization and ratification
thereof by the Parliament of the said State AND WHEREAS in consideration of
the great expenditure to be incurred by the Company in complying with the
request and establishing the furnace works and plant it is agreed that the
tenure and other rights of the Company should be effectively extended
preserved and protected and that adequate rights of winning transporting
treating and shipping ironstone and its products and other materials and
stores used by the Company should be secured to the Company, and that
arrangements should be made for providing the Company with additional sites
for the erection of wharves and jetties and with other shipping facilities:
NOW THIS INDENTURE WITNESSETH AS FOLLOWS:
1. This Indenture to be subject to ratification
(a) The Government of
the State will as early as practicable after the execution of this Indenture
and during the session of Parliament current at the time of the execution of
this Indenture introduce a Bill into the Parliament of the State for
authorizing and ratifying this Indenture and securing to the Company the
rights provided for in this Indenture and enabling this Indenture to be fully
carried into operation. If such a Bill is not passed during the said session
the clauses of this Indenture, other than this clause, shall not come into
operation but if such a Bill is so passed and the Act founded thereon comes
into operation before the 1st March, 1938 those clauses shall become binding
on the day on which the said Act comes into operation.
(b) Interpretation
In this Indenture, except where the context otherwise requires, the following
terms have the following meanings:
"The commencement of this Indenture" means the day on which the Act for
authorizing and ratifying this Indenture and securing to the Company the
rights provided for in this Indenture and enabling this Indenture to be fully
carried into operation, comes into operation:
"The Government" means the Government of the State of South Australia for the
time being in office during the term of this Indenture:
"The State" means the State of South Australia:
"The term of this Indenture" (without affecting any obligation of any party to
do any act after the expiration of the term of this Indenture) means the
period of fifty years from the commencement of this Indenture and, if the
period of operation of this Indenture is extended by mutual agreement,
includes the period for which the operation of this Indenture is so extended:
"The Treasurer" means the Treasurer of the State of South Australia for the
time being in office:
"Blast furnace" means a blast furnace and all ancillary works plant tramways
jetties wharves roads and other works necessary for the production of pig
iron.
2. Construction of works by the Company
The Company will at its own expense establish at or in the vicinity of Whyalla
a blast furnace for the production of pig iron.
The Company shall commence the work of constructing the blast furnace as early
as practicable after the commencement of this Indenture and shall so carry on
the said work of construction that the blast furnace will be capable of
producing pig iron within three years from the commencement of this Indenture,
or within such extended period as the Treasurer approves.
The Treasurer shall not capriciously withhold his approval to any extension of
period reasonably asked for by the Company, and shall not withhold his
approval to any extension of period rendered necessary by labour troubles or
causes beyond the Company's control.
3. Extension of mineral leases
The term of all the leases described in the schedule to this Indenture shall
be extended so that every such lease shall expire upon the expiration of fifty
years from the commencement of this Indenture: and the Government will cause
to be executed such endorsements or instruments as are necessary to give
effect to this covenant.
During the said period and, unless otherwise agreed, during any further period
for which the operation of this Indenture is extended, the covenants terms
conditions and provisoes of the said leases shall remain as at the
commencement of this Indenture, subject only to the modifications provided for
in this Indenture.
Upon the expiration of the term of this Indenture the Company shall have a
right to the renewal of the said leases from time to time for periods of
twenty-one years and the renewal shall be on the terms and conditions
prescribed in that behalf by the laws of the State in force at the
commencement of this Indenture, subject to payment of the same royalty as is
provided for in subclause (2) of clause 6 of this Indenture.
5. Compliance with labour conditions
It shall be a sufficient compliance with the labour conditions of any of the
said leases if the horsepower and labour employed on any one or more of the
said leases satisfy the total labour conditions of the whole of the said
leases.
(1) As from the
commencement of this Indenture until the 3lst December, 1939, or the date on
which the Company commences the production of pig iron in South Australia,
whichever is earlier, the Company shall pay to the Treasurer a royalty at the
rate of three pence per ton on all ironstone won by it in the State, which
during the period aforesaid is shipped from Whyalla or sold in the State.
(2) From the 31st
December, 1939, or the earlier date aforesaid and throughout the remainder of
the term of this Indenture, the Company shall pay to the Treasurer a royalty
at the rate of sixpence per ton on all ironstone won by the Company in the
State, which during the period aforesaid is shipped in the State, or used by
the Company in its smelting operations in the State, or delivered in the State
on sale.
(3) The said royalties
shall be—
(a) computed upon the
total quantity of ironstone shipped or used or delivered as aforesaid during
every period of six calendar months ending respectively on the 30th day of
June and the 31st day of December, and also during any portion of any such
period occurring at the beginning or end of the term of this Indenture; and
(b) paid not later
than two months after the end of the period for which they are computed.
(4) For the purpose of
computing the tonnage upon which the said royalty is payable the Company's
weighbridge and weightometer records with such corrections and adjustments
thereof as it is necessary to make to achieve reasonable exactitude shall be
accepted as correct.
(5) The said royalties
shall be substituted for any other royalties or payments in the nature of
royalties reserved under any of the leases mentioned in the schedule to this
Indenture.
(6) The Company shall
in every month of July and every month of January during the term of this
Indenture and within one month after the expiration of the term of this
Indenture furnish to the Minister of Mines of the State a full and complete
return of all ironstone shipped used or delivered as aforesaid during the
period of six calendar months ending on the preceding 30th day of June or 31st
day of December or during any portion of any such period for which the return
is furnished and any other information reasonably required by the said
Minister for the purpose of enabling him to compute the amount of royalty
payable by the Company. The said Minister his officers servants and agents
shall for the purpose of checking and verifying any such return have free
access to and right of inspection of all books papers and documents of the
Company in so far as they shew the quantities of ironstone shipped or used or
delivered and the right to enter and examine the lands comprised in the said
leases.
7. Rights to construct jetties
(a) The Company may
erect construct occupy maintain and use at or near False Bay on any part of
the area hereinafter described in this subclause (being land of the Crown,
foreshore and sea-bed) a jetty or jetties extending to seaward for such
distance within the said area as the Company thinks proper, with any wharves
channels works buildings approaches roads ways tramways and conveniences which
are reasonably required in connection with the operations of the Company, and
may, within the said area, extend any jetty or wharf existing at the time when
this Indenture comes into operation.
The area previously referred to in this subclause consists of land of the
Crown, foreshore and sea-bed defined as follows:
Commencing at the eastern corner of Section 2, Hundred of Randell; thence
southeasterly by a line being the production of the northeastern boundary of
said section; thence northeasterly at right angles by a line 30 chains
southeast of the southeastern edge of the Ore Berth at Whyalla Jetty for 160
chains; thence northwesterly at right angles to high water mark on the sea
coast; thence generally southerly along said high water mark to the point of
commencement, together with the 150 links Coast Reserve abutting the above
defined area on its coastal boundary and extending throughout the length of
that boundary.
(b) The Company may
also erect construct occupy maintain and use at Rapid Bay on any part of the
foreshore or sea-bed within one mile from the following point namely: the
point in or near Rapid Bay where the jetty opposite section 1507 Hundred of
Yankalilla and shewn on the Surveyor General's maps as existing at the
commencement of this Indenture, intersects high water mark, a jetty or jetties
and any wharves channels works buildings approaches roads ways tramways and
conveniences which are reasonably required in connection with the operations
of the Company: Provided that the right conferred by this clause shall lapse
on the expiration of five years from the commencement of this Indenture if the
actual work of erecting a jetty or other works for working a limestone or
other deposit has not commenced before such expiration.
(c) The Company shall
be entitled to occupy maintain and use all jetties wharves works buildings
approaches roads ways tramways and conveniences which are erected or
constructed by it pursuant to this Indenture; and such rights shall be as full
and extensive as the rights granted to the Company by or under the Broken Hill
Proprietary Company Limited's Hummock Hill to Iron Knob Tramways and Jetties
Act, 1900 , in respect of the jetties wharves works buildings approaches roads
ways tramways and conveniences mentioned in sections 22 and 23 of that Act.
8. Right of Company to construct tramways
The Company may, on any land which is vested in it or over which it holds or
acquires the necessary rights, make form lay down construct maintain and work
such new tramways or extensions of existing tramways as are necessary for the
purpose of transporting ironstone and other material from and to any mineral
leases for the time being held by the Company; but before commencing to make
any such tramway or extension the Company shall deposit the usual and proper
plans thereof in the office of the Surveyor General.
9. Right of Company as to vermin fences
For the purpose of making forming laying down constructing and working any
such new tramway or extension of any tramway, the Company may cut sufficient
spaces or openings through any vermin fence, dog-proof fence or rabbit proof
fence within the meaning of the Vermin Act, 1931, through which the
tramway or extension passes; but the Company shall erect and at all times
maintain across every opening or space so cut good and sufficient gates or
other effective apparatus or devices for preventing the ingress or egress of
vermin. Such gates or other apparatus or devices shall be constructed in such
a manner that such gates when closed or such other apparatus or devices will
be at least as effective for the exclusion of rabbits dogs and other vermin as
the fence through which the openings or spaces are cut. The Company (unless
other apparatus or devices are employed) shall keep such gates constantly
closed and securely fastened, but may open any of them so long as is necessary
to enable any engines, waggons, carriages or other conveyances or traffic of
the Company to pass through them.
10. Application of Statute to tramway built by the
Company
In and for the purpose of making, forming, laying down, constructing,
maintaining and working any tramways or extensions of tramways under this
Indenture the Company shall conform to and have the benefit of those
provisions of the Broken Hill Proprietary Company Limited's Hummock Hill to
Iron Knob Tramways and Jetties Act, 1900, including the provisions of any
Acts incorporated with that Act, which relate to the tramways authorized by
that Act, as if those provisions applied also to the tramways and extensions
provided for in this Indenture; but no provision of that Act or any Act
incorporated therewith inconsistent with this indenture or fixing the period
for the completion of any tramway, or empowering the Government to license any
person to use the tramways, or binding the Company to file accounts relating
to tramways shall apply to or in relation to the tramways or extensions
provided for in this Indenture.
11. Land for tramways and electric transmission
(a) If for the purpose
of or in connection with the construction extension or working of any tramways
mines or quarries, or the installation of any posts, wires, conduits or other
apparatus or equipment for or in connection with the transmission of
electricity, the Company should require the fee simple of, or any lease
easement or other rights over, any land comprised in any pastoral lease or
other lease from the Crown, and any Minister of the Crown or any authority
under the Crown has power to resume such land, the Minister or other authority
shall at the request of the Company exercise such power to the extent
necessary, and transfer convey or assign to the Company the land or the lease
easement or rights which the Company requires for the purposes aforesaid; but
the Company shall pay to the Minister or other authority a reasonable price
for such land lease easement or other rights, sufficient to cover the
expenditure incurred by such Minister or other authority for and in connection
with the resumption.
(b) If for any of the
purposes mentioned in paragraph (a) of this clause the Company requires the
fee simple of or any rights over any Crown Lands not subject to any lease or
agreement, the Government will sell to the Company at such reasonable price as
may be agreed the fee simple of that land or the other rights required by the
Company over that land.
12. Deviation of Port Augusta-Whyalla Road
If any part of the Port Augusta-Whyalla Road passes through the site selected
by the Company for its blast furnace or other plant and works the Government
shall procure the closing of that part of the said road, and shall procure the
opening of a new piece of road in substitution for the part of the road so
closed, along a route convenient as far as possible both to the Company and
the public; and the new piece of road shall be constructed, in a manner
similar to the previously existing road, at the cost of the Company.
In order to assist the Company to further extend its works by the
establishment in the vicinity of Whyalla of Coke Oven Plant and/or works for
the production of Steel, Rolling Mills, and other plant, the Government on
being notified by the Company that it is prepared to establish any such works
will use every endeavour to provide the Company with a supply of fresh water
at the site of such works sufficient for the full requirements of the Company
at such fair and reasonable price as may be mutually agreed upon.
14. Provision in event of removal of works to
Backie Bay
If at any time during the term of this Indenture the Company desires to erect
new furnaces plant wharves jetties or other works at Backie Bay or to transfer
all or any part of its furnace plant wharves jetties and other works from
Whyalla to Backie Bay the Government will endeavour by all reasonable and
lawful means to secure to the Company, as far as possible, rights at and in
relation to Backie Bay its foreshore sea-bed and lands adjacent thereto for
the purpose of enabling the Company to carry on its operations there, similar
to the rights which the Company enjoys at the commencement of and by virtue of
this Indenture in relation to and for the purpose of its operations at
Whyalla.
15. Tolls and dues in respect of use of jetties
During the term of this Indenture no charges or imposts other than those which
have heretofore been collected from the Company shall be imposed in respect of
the use or occupation of the said wharves and jetties or on the shipment or
carriage of goods to over or from the said wharves and jetties nor on the
ships engaged in the shipment thereof.
Neither the Governor of the State nor the South Australian Railways
Commissioner nor any Governmental or other body shall during the term of this
Indenture exercise any right conferred on any of them by The General Tramways
Act, 1884, or The Broken Hill Proprietary Company Limited's Hummocks Hill
to Iron Knob Tramways and Jetties Act, 1900, or any Act amending either
of those Acts of purchasing any part of the Company's land tramways wharves
jetties works plant or other property, or of granting any licence to any other
person to use the wharves jetties or tramways of the Company.
In further consideration of the Company entering into this Indenture it is
hereby further covenanted that neither during the term of this Indenture nor
during any extension of that term shall the rights of tenure and otherwise of
the Company existing at the commencement or by virtue of this Indenture or
lawfully acquired during the term of this Indenture, be in any wise impaired
disturbed or prejudicially affected; and the Government shall take all
necessary steps to secure those rights to the Company and prevent them from
being impaired disturbed or prejudicially affected in any way whatsoever, and
no other person shall have the right to acquire a mining claim or title over
any land occupied by the Company for its works.
Provided that no tax payable by the Company or in respect of its property
under any public general Act of the Parliament of the State at rates not
exceeding those applicable generally throughout the State shall be deemed to
impair disturb or prejudicially affect any right of the Company.
IN WITNESS WHEREOF the public seal of the State and the common seal of the
Company were hereunto affixed on the days and years set out below.
|
The Common seal of the Broken Hill Proprietary Company Limited was affixed
hereunto on the fourth day of October, 1937, in the presence of— |
Seal of Company. |
|
Public Seal of the State. |
H.G. DARLING, Director. |
THE SCHEDULE TO THE AGREEMENT.
A.
Mineral Leases over iron ore deposits held by or to be issued to The Broken
Hill Proprietary Company Limited, the term of which is extended by this
Indenture:
Numbers: 1659–1667, 2238–2242, 2383, 2384, 2386–2392,
2397–2403, 2560–2568, 2612–2614, 2631, 2632,
2647–2654, 2656–2663, 2668–2674, 2677–2712.
B.
Any leases which may be granted to the Company before or during the term of
this Indenture in respect of areas pegged out and held by virtue of the
following Miner's Rights:
Numbers: 1874, 1875, 1951, 1995, 1996, 1997, 1999, 2001, 2002, 2010, 2058,
2061, 2063, 2080, 2081, 2084, 2111, and 2059.