South Australian Consolidated Acts South Australian Consolidated ActsTABLE OF CONTENTS
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1. |
Defined Terms |
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2. |
Ambit of Indenture |
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3. |
Initial Government Obligations |
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4. |
Condition Precedent |
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5. |
Initial Obligations of the Joint Venturers |
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6. |
Commitment to Initial Project |
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7. |
Approvals |
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8. |
Implementation of Initial Project |
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9. |
Subsequent Projects |
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10. |
Compliance with Codes |
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11. |
Protection and Management of the Environment |
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12. |
Use of Local Professional Services, Labour and Materials |
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13. |
Joint Venturers' Water Requirements |
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14. |
Roads |
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15. |
Airstrip and Related facilities |
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16. |
Railway facilities |
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17. |
Port |
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18. |
Power |
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19. |
Special Mining Leases |
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19A. |
Pipeline Licence |
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20. |
Special Exploration Licences |
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21. |
Provision of Infrastructure |
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22. |
Infrastructure Costs |
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23. |
Establishment of Municipality |
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24. |
Freehold Grants |
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25. |
Special Buffer Zones |
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26. |
Further Processing |
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27. |
Leases, Licences, Easements and Rights of Way |
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28. |
Zoning, Rentals and Fees |
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29. |
Rating |
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30. |
No Resumption |
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30A. |
Safety Net |
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31. |
Resumption for the Purposes of this Indenture |
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32. |
Royalties |
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32A. |
Production of Non-minesite Product |
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32B. |
Royalties in respect of Non-minesite Product |
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33. |
No Special Taxes |
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34. |
Non Discrimination |
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35. |
Confidentiality |
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36. |
Assignment |
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37. |
Liability of Joint Venturers |
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38. |
Force Majeure |
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39. |
Payments |
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40. |
Commonwealth Licences and Consents |
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41. |
Termination of Indenture by the State |
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42. |
Effect of Termination by the State |
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43. |
Stamp Duty Exemption |
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44. | |
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45. |
Trade Practices Act |
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46. |
No Partnership |
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47. |
Enforcement |
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48. |
State Assistance |
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49. |
Arbitration |
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50. |
Independent Expert |
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51. |
Provisions Applicable to Special Tenements |
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52. |
Derogating Legislation |
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53. |
Extensions of Time |
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54. |
Notices |
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55. |
Consultation |
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56. |
Variation |
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57. |
Applicable Law |
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SCHEDULE 1 | |
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SCHEDULE 2 | |
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SCHEDULE 3 | |
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SCHEDULE 4 | |
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SCHEDULE 5 | |
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SCHEDULE 6 | |
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SCHEDULE 7 | |
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SCHEDULE 8 | |
THIS INDENTURE made the THIRD day of MARCH 1982
BETWEEN:
THE STATE OF SOUTH AUSTRALIA (hereinafter referred to as "the State") of the
first part,
THE MINISTER OF MINES AND ENERGY the Minister administering the Mining
Act 1971–1981 of the State a corporation sole pursuant to the
provisions of the said Mining Act of the second part,
ROXBY MINING CORPORATION PTY. LTD. a company incorporated in the State of
South Australia and having its registered office at 41 Currie Street, Adelaide
in the said State (hereinafter called "RMC") of the third part,
BP AUSTRALIA LIMITED a company incorporated in the State of Victoria and
having its registered office in the State of South Australia at 30 Flinders
Street, Adelaide in the said State (hereinafter called "BPA") of the fourth
part,
BP PETROLEUM DEVELOPMENT LIMITED a company incorporated in the United Kingdom
and having its registered office in the State of South Australia at
30 Flinders Street, Adelaide in the said State (hereinafter called
"BPPD") of the fifth part, and
WESTERN MINING CORPORATION LIMITED a company incorporated in the State of
Victoria and having its principal office in the State of South Australia at
41 Currie Street, Adelaide in the said State (hereinafter called "WMC")
of the sixth part.
WHEREAS:
(a)
The Joint Venturers (as hereinafter defined) have established the existence of
extensive mineralisation within the Olympic Dam Area (as hereinafter defined)
containing, inter alia, copper, uranium, gold and rare earths;
(b) The Olympic Dam
Joint Venturers (as hereinafter defined) have been and are continuing to
define the limits and reserves of such mineralisation and contemporaneously
therewith have begun and will continue to evaluate the geological, economic,
engineering, mining, environmental, metallurgical treatment and marketing
aspects of the development of such mineralisation;
(c)
The Joint Venturers in conjunction with the State intend to provide certain
infrastructure facilities under this Indenture including certain facilities
and services necessary for the accommodation and welfare of the workforce (and
their dependants) and also of others (including their dependants) connected
directly or indirectly with operations under this Indenture;
(d) The State and
the Joint Venturers have agreed as hereafter in this Indenture provided as to
the provision of certain infrastructure facilities at the townsite and
elsewhere, of the kinds normally provided by governments or government
instrumentalities, appropriate to the scale of the Joint Venturers' operations
from time to time up to the production of 350 000 tonnes per annum of
contained copper in saleable Product, saleable Non-minesite Product and
associated by-products in connection with operations under this Indenture;
(e)
The Joint Venturers in conjunction with the State intend to take adequate
measures to safeguard the public, the workforce and the environment in
relation to operations under this Indenture;
(f) It is contemplated
in this Indenture by the Joint Venturers and the State that there may be
Subsequent Projects from time to time;
(g) It is in the
interests of the State that the mineralisation within the Olympic Dam and
Stuart Shelf Areas should be developed and the State is satisfied that a very
large capital expenditure is necessary to ensure that such deposits are
efficiently and economically developed;
(h) The evaluations
referred to in recital (b) constitute an initial risk stage which itself
requires a large capital expenditure;
(i) The sum of fifty
million dollars has already been expended in carrying out the evaluations
referred to in recital (b) , and the Olympic Dam Joint Venturers intend to
spend as from the 1st day of January, 1982, the sum of fifty million dollars
as provided in paragraph (b) of sub-clause (1) of Clause 6;
(j) It is necessary to
give the Joint Venturers the security and assurances which will facilitate the
provision of finance for the continuation of such evaluations and subsequent
development;
(k) It is the
intention of the State and the Joint Venturers that this agreement shall not
be amended nor shall the rights and privileges of the Joint Venturers or the
State be derogated from other than by mutual consent and in accordance with
the procedures specified herein;
(l) In recognition of
the importance to the State of the operations of the Joint Venturers in
establishing and developing certain of the State's mineral resources the
parties have agreed to enter into this Indenture; and
(m) It is agreed
between the parties hereto that if the Joint Venturers discover within the
Olympic Dam Area or the Stuart Shelf Area or (after selection) the Selected
Areas or produce petroleum or petroleum products therefrom the provisions of
this Indenture shall not apply to such discovery or production and that the
applicable provisions shall (unless otherwise agreed and provided for) be
those of the Petroleum Act, 1940–1981, then in force.
NOW THIS INDENTURE WITNESSES that the parties hereto covenant and agree with
each other as follows—
(1) In this Indenture
unless the context otherwise requires—
"advise", "agree", "apply", "approve", "approval", "consent", "certify",
"direct", "elect", "inform", "notice", "notify", "request", or "require",
means advise, agree, apply, approve, approval, consent, certify, direct,
elect, inform, notify, notice request or require in writing as the case may
be;
"associated company" means—
(a) any company or
corporation which is notified to the Minister by the Joint Venturers as an
associated company which—
(i)
is promoted by the Joint Venturers or any of them (or by
a wholly owned subsidiary of a Joint Venturer) for all or any of the purposes
of the project or projects the subject of this Indenture and in which
the Joint Venturers or any of them or such wholly owned subsidiary has not
less than 20 per centum of the issued share capital or some lesser percentage
acceptable to the Minister; or
(ii)
is related within the meaning of that term as used in
section 6 of the Companies Act, 1962, as at present in force, to
the Joint Venturers or any of them or to any company or corporation in which
the Joint Venturers or any of them or a wholly owned subsidiary of any of them
holds not less than 20 per centum of the issued ordinary share capital; or
(b) any company or
corporation approved by the Minister at the request of the Joint Venturers;
"Clause" means a clause of this Indenture;
"Commencement Date" means the first day of the month after the date on which
the treatment plant first to be commissioned for the Initial Project or (as
the case may be) the first stage thereof as notified by the Joint Venturers to
the Minister after consultation in respect thereof has operated for 60
consecutive days at an average rate of production over such 60 consecutive
days of not less than 85% of—
(i)
the installed capacity thereof in respect of tonnes
treated
and not less than 85% of—
(ii)
the designed rate of production thereof contemplated by
the final feasibility study for the Initial Project in respect of ore grade,
Product recovery and production of Product;
"Commonwealth" means the Commonwealth of Australia and includes the Government
for the time being thereof;
"Indenture" means this Indenture whether in its original form or as from time
to time supplemented, varied or amended in accordance with the provisions of
clause 56 hereto;
"the Initial Project" means the construction maintenance and operation of a
mine in the Olympic Dam Area or a Selected Area, and the construction,
acquisition, maintenance and operation of mining treatment transportation and
other facilities plant and equipment, and all infrastructure necessary or
appropriate for the mining and treatment of ore, such treatment facilities to
have a capacity to produce such quantities of copper, uranium oxide gold and
other minerals and metals as the Joint Venturers shall specify in the first
Project Notice (as may be amended from time to time) pursuant to the
provisions of Clause 6, such infrastructure to include a town and all related
and ancillary facilities for the workforce and their dependents and others
engaged in the aforesaid mining and treatment and other activities;
"the Joint Venturers" means collectively RMC, BPA, BPPD and WMC and includes
their respective successors and permitted assigns and "Joint Venturer" means
any one of them or their respective successors and permitted assigns;
"Manager" means a manager appointed pursuant to sub-clause (2) of Clause 54;
"minerals" means—
(a) any naturally
occurring deposit of metal or metalliferous substance, precious stones (other
than opal), or any other mineral (including sand, gravel, stone, shell, coal,
oil shale, shale and clay);
(b) any metal,
metalliferous substance, or mineral recoverable from the sea or a natural
water supply; or
(c) any metal,
metalliferous substance, or mineral that has been dumped or discarded in the
course of mining operations or operations incidental thereto;
"the Mines Minister" means the Minister in the Government of the State for the
time being responsible (under whatsoever title) for the administration of the
Mining Act;
"the minesite" means the site of any mine or mines within the area of a
Special Mining Lease;
"mine buffer zone" means the area of land surrounding the minesite, designated
pursuant to Clause 25 and being the subject of a Special Buffer Zone Lease in
the form or substantially of the Fourth Schedule hereto;
"the Mining Act" means the Mining Act 1971–1981;
"the 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;
"month" means calendar month;
"municipality" means the municipality to be established pursuant to Clause 23;
"Non-minesite Materials" means any of copper, gold or silver, or other mineral
approved by the Minister in any of the following forms:
(a) in the form of
concentrate, fluxing agent, slime or slag, or any other form approved by the
Minister which has been obtained from ore not extracted from lands comprised
in a Special Mining Lease; or
(b) in the form of ore
not extracted from lands comprised in a Special Mining Lease but extracted
from lands within South Australia;
"Non-minesite Product" means all saleable mineral production from a treatment
plant and produced from Non-minesite Materials for the benefit of the
Joint Venturers or any of them;
"non-potable water" means water other than potable water;
"notice" means notice in writing;
"the Olympic Dam Area" means the area bordered black on the plan annexed
hereto marked "A" and as more particularly described in the Fifth Schedule
hereto;
"the Olympic Dam Joint Venturers" means collectively RMC, BPA and BPPD and
includes their and each of their respective successors and permitted assigns;
"ore" means ore extracted from lands comprised in a Special Mining Lease but
excludes Non-minesite Materials;
"participating Joint Venturer" in respect of the Initial or any Subsequent
Project means a Joint Venturer which is notified to the State pursuant to
sub-clause (2) of Clause 6, sub-clause (2) of Clause 9 or sub-clauses (2) or
(3) of Clause 37 as being a participant in that particular Project;
"person" in addition to a natural person includes a body corporate, and any
agency, authority or instrumentality of the Crown or of any government or any
statutory or local authority;
"petroleum" means "petroleum" as defined in the Petroleum Act, 1940;
"Pilot Plant" means any chemical or metallurgical plant which is not designed,
intended or used for commercial production;
"Pipeline Licence" means the pipeline licence granted, in accordance with
Clause 19A, pursuant to the Petroleum Act, 1940 and the ratifying
Act and includes any new pipeline licence granted pursuant either to any
agreement entered into pursuant to Clause 30A or to subclause 30A(4);
"potable water" means water of a quality which is deemed suitable for human
consumption in accordance with the maximum permissible standards for potable
water quality determined by the World Health Organization;
"private road" means a road, street or thoroughfare including every
carriageway, footpath, dividing strip and traffic island therein which is
owned or occupied by the Joint Venturers or any of them or an associated
company and to which the public is not generally admitted;
"Product" means all saleable mineral production from a treatment plant and
produced from ore for the benefit of the Joint Venturers or any of them but
excludes Non-minesite Product;
"Project Notice" in respect of the Initial Project or a Subsequent Project
means a notice given to the Minister by the Joint Venturers of a decision to
proceed with the Initial Project or a Subsequent Project (as the case may be)
pursuant to sub-clause (2) of Clause 6 or sub-clause (2) of Clause 9
respectively;
"public road" means any road not being a private road;
"ratifying Act" means the Act to ratify this Indenture and referred to in
sub-clause (1) of Clause 3;
"the Selected Areas" means those areas of land (not exceeding ten) within the
Stuart Shelf Area which BPA and BPPD may specify to WMC and the Minister on or
before 31st December, 1985 as "Selected Areas" each of which shall have a
total area not exceeding 65 square kilometres and wherever practicable shall
be in the shape of a rectangle;
"Special Buffer Zone Lease" means a lease by that name created only pursuant
to this Indenture and the ratifying Act in the form or substantially in the
form of the Fourth Schedule or the Eighth Schedule hereto and includes any new
Special Buffer Zone Lease granted pursuant either to any agreement entered
into pursuant to Clause 30A or to subclause 30A(4);
"Special Exploration Licence" means a licence by that name created only
pursuant to this Indenture and the ratifying Act and in the form or
substantially in the form of the Third Schedule hereto and includes any new
exploration licence granted pursuant either to any agreement entered into
pursuant to Clause 30A or to subclause 30A(4);
"Special Mining Lease" means a lease by that name created only pursuant to
this Indenture and the ratifying Act and in the form or substantially in the
form of the Second Schedule hereto and includes any new mining lease granted
pursuant either to any agreement entered into pursuant to Clause 30A or to
subclause 30A(4);
"Special Tenements" means collectively all Special Buffer Zone Leases Special
Exploration Licences Special Mining Leases and Special Water Licences, and
"Special Tenement" means any one of them;
"Special Water Licence" means a licence by that name created pursuant only to
this Indenture and the ratifying Act and in the form or substantially in the
form of the First Schedule hereto and includes any new water licence granted
pursuant either to an agreement entered into pursuant to Clause 30A or to
subclause 30A(4);
"the Stuart Shelf Area" means the area bordered black on the plan annexed
hereto marked "B" and as more particularly described in the Sixth Schedule
hereto;
"the Stuart Shelf Joint Venturers" means collectively WMC, BPA and BPPD and
includes their and each of their respective successors and permitted assigns;
"Subsequent Project" means any project other than the Initial Project for
mining of minerals in the Olympic Dam Area or any of the Selected Areas or the
treatment of minerals therefrom and ancillary and related activities including
infrastructure and includes without limitation any material expansion or other
material variation of the Initial Project or any other Subsequent Project and
also includes the production of Non-minesite Product and ancillary and related
activities including infrastructure, always both in conjunction with the
Initial Project or any Subsequent Project for the production of Product and in
accordance with Clause 32A of the Indenture;
"the town" means the town to be declared pursuant to sub-clause (1) of Clause
24 and to be developed by or at the direction of the Joint Venturers as part
of the Initial Project as the principal housing area for the workforce and
includes all necessary services and facilities and commercial areas in
connection therewith;
"town buffer zone" means the area of land surrounding the townsite, designated
pursuant to Clause 25 and being the subject of a Special Buffer Zone Lease in
the form or substantially in the form of the Eighth Schedule hereto;
"the townsite" means the site on which the town is to be or is situated; and
"treatment plant" means a plant (other than a Pilot Plant) located on the
Special Mining Lease granted in accordance with sub-clause (1) of Clause 19
for producing a form of saleable copper and associated mineral by-products and
includes such other treatment plant as may be located on the land the subject
of a Special Mining Lease;
"Water Resources Act" means the Water Resources Act, 1990 including the
amendments to that Act for the time being in force and also any Act passed in
substitute therefor or in lieu thereof and the regulations and by-laws for the
time being in force thereunder.
(2) In this
Indenture—
(a) monetary
references are references to Australian currency unless otherwise specifically
expressed;
(b) headings and
marginal notes do not affect the interpretation or construction;
(c) 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 and by-laws for the time being
in force thereunder;
(d) words importing
one gender shall include the other genders, words importing persons shall
include corporations, the singular shall include the plural and vice versa;
(e) reference to any
Minister includes the person for the time being holding the office or
performing the duties of such Minister; and
(f) where reference is
made to the Consumer Price Index or C.P.I. such reference shall be to the
Consumer Price Index for the City of Adelaide (All Groups) as published by the
Australian Bureau of Statistics Catalogue No. 6401.0 (Base: 1966/67 = 100). If
the said Bureau ceases at any time to publish the said Consumer Price Index,
the Joint Venturers and the Minister shall confer and agree upon the adoption
of another suitable index or standard.
(3) The Schedules and
annexures hereto form part of this Indenture. Should any inconsistency arise
between a provision of a Schedule or an annexure hereto and a provision of the
remainder of this Indenture (other than another Schedule or annexure) the
provision of the said remainder shall prevail.
The scope and purpose of this Indenture is to provide comprehensively between
the State and the relevant Joint Venturers for a proposed mining development
and future mining developments in the Olympic Dam Area and the Selected Areas
and for associated treatment, and transportation facilities and related
infrastructure in connection therewith.
3. INITIAL GOVERNMENT OBLIGATIONS
(1) The Mines Minister
shall cause the Government of the State as soon as practicable after the
execution of this Indenture to introduce into and sponsor in the Parliament of
the State a Bill in the form initialed by or on behalf of the parties for an
Act to be intituled "The Roxby Downs (Indenture Ratification) Act, 1982"
to, inter alia, approve and ratify this Indenture in all respects in the form
executed by the parties hereto, to provide for carrying it into effect,
authorizing, empowering and requiring the State, the Ministers of the State,
all statutory bodies and authorities (including any local authority) and all
Government instrumentalities to do all things necessary or expedient for the
carrying out and of giving full effect to this Indenture, amending certain
Acts of Parliament of the State and the said Government will endeavour to
secure the passage of such Bill through the said Parliament and have it
commence to operate as an Act prior to the 30th day of June 1982.
(2) The State will
ensure that until a Special Mining Lease has been granted pursuant to
sub-clause (1) of Clause 19 or until the 31st day of December, 2005, which
ever first occurs, each of Retention Lease No. 14, Exploration Licence No.
783, Extractive Minerals Lease No. 4895 and Miscellaneous Purposes Licences
Nos. 12 and 13 will be renewed or extended (as the case may be) on the terms
and conditions contained therein, (as varied, mutatis mutandis, so as to
conform with Clauses 5 and 6), subject to compliance by the Joint Venturers'
with their obligations under Clauses 5 and 6.
(3) Upon this
Indenture coming into operation as herein provided the State shall after
consultation with the Joint Venturers appoint a township development officer
to advise the State and to liaise with the Joint Venturers in respect of the
municipality and town to be constituted pursuant to Clause 23.
(1) The provisions of
this Indenture other than Clause 1, and sub-clauses (1) and (2) of Clause 3
and this Clause shall not come into operation until the Bill referred to in
sub-clause (1) of Clause 3 has been passed by the Parliament of the State, has
received the Governor's assent and has commenced to operate as an Act either
on the day the Governor's assent was given or on some other day proclaimed to
be the date upon which the Act shall come into operation.
(2) If the Bill
referred to in sub-clause (1) of Clause 3 is not passed by the Parliament of
the State in the form initialed by or on behalf of the parties hereto or in
such other terms as the parties to this Indenture may agree in writing (and
any failure so to agree shall not be arbitrable) on or before the 30th day of
June, 1982, so as to commence to operate as an Act prior to the 30th day of
June 1982 or such later date as the parties hereto may have mutually agreed
(and any failure so to agree shall not be arbitrable) this Indenture will then
cease and determine in which event the provisions of sub-clause (8) of Clause
53 will mutatis mutandis apply and none of the parties hereto will have any
claim against any other of them with respect to any matter or thing arising
out of done performed or omitted to be done or performed under this Indenture.
5. INITIAL OBLIGATIONS OF THE JOINT VENTURERS
(1) The Olympic Dam
Joint Venturers shall continue their field, engineering and office studies
referred to in recital (b) and other studies and matters necessary to enable
them to evaluate all aspects of development of the mineralisation within the
Olympic Dam Area.
(2) The Stuart Shelf
Joint Venturers shall continue their activities of exploration for
mineralisation in the Stuart Shelf Area with a view to the selection of up to
ten (10) Selected Areas for further evaluation and if warranted for mining
development in accordance with the conditions attaching to the relevant
tenements.
(3) Joint Venturers to
Keep State Informed —The relevant Joint Venturers shall as part of their
reporting obligations under Exploration Licence Nos. 783 and 784, the
Exploration Licence to be issued in consequence of Application for Exploration
Licence No. 611 of 1980 and Retention Lease No. 14 keep the State informed as
to the progress and results of their respective operations under sub-clauses
(1) and (2) of this Clause.
(4) Joint Venturers
Co-operation with the State —The Olympic Dam Joint Venturers shall
co-operate with the State and consult with the representatives or officers of
the State and its instrumentalities regarding the matters referred to in
sub-clause (1) of this Clause.
6. COMMITMENT TO INITIAL PROJECT
(1) —
(a)
The Joint Venturers shall use all reasonable efforts, to complete, by the 31st
day of December, 1984, such detailed studies and evaluations of the nature
referred to in recital (b) as in their opinion may be necessary or desirable
to enable them, or any of them, then to undertake necessary final evaluations
and negotiations with respect to finance and the sale of Product, prior to
taking any decision to proceed with the Initial Project in accordance with
this clause provided always that the obligation of the Joint Venturers to
complete such detailed studies and evaluations by the 31st day of December,
1984, shall be subject to the availability of all relevant information to
the Joint Venturers on terms or conditions acceptable to the Joint Venturers.
(b) The Olympic Dam
Joint Venturers undertake that during the calendar year 1982 they will spend
not less than twenty million dollars in respect of the studies and evaluations
referred to in recital (b) and during the period commencing on the 1st day of
January 1982 and expiring on the 31st day of December 1984 or twelve months
after the date upon which both State and Commonwealth approvals (on
conditions, acceptable to the Olympic Dam Joint Venturers) to an Environmental
Impact Statement in respect of the development of the mineralisation within
the Olympic Dam Area are received by the Olympic Dam Joint Venturers,
whichever is the later, will spend not less than a total of fifty million
dollars in respect of the said studies and evaluations, provided however, that
the expenditure obligations imposed upon the Olympic Dam Joint Venturers by
this sub-clause shall be deemed to have been satisfied upon the giving of a
Project Notice relating to the Olympic Dam Area.
(2) As soon as
the Joint Venturers consider it practicable, but before the 31st day of
December, 1987, the Joint Venturers shall, subject to the terms of this
Indenture (in particular, Clause 53), notify the Minister of their decision
with respect to proceeding with the Initial Project and as appropriate,
provide—
(a) details in respect
of the mining, treatment, transport and shipment of Product and in respect of
the treatment, transport and shipment of Non-minesite Materials and
Non-minesite Product and provision for the necessary workforce and population
as specified in sub-clause (3) of this Clause;
(b) advice of their
being satisfied that suitable arrangements can be made for the financing of
the Initial Project;
(c) advice of their
readiness to embark upon and proceed to implement the Initial Project; and
(d) particulars of the
participating Joint Venturers in respect of the Initial Project and the
percentage interest of each such Joint Venturer therein.
(3) The details to be
advised to the Minister pursuant to paragraph (a) of sub-clause (2) of this
Clause are:—
(a) the mining and all
stages of treatment of ore or all stages of treatment of Non-minesite
Materials including the tonnages of ore to be mined and treated or the
tonnages of Non-minesite Materials to be treated and the disposal of tailings;
(b) streets and roads;
(c) railways and/or
spur lines, sidings and weighbridges;
(d) facilities at
ports in the State for the purposes of the Initial Project;
(e) construction camp;
(f) housing and town
requirements (including site and conceptual layout) and including social,
civic and engineering services;
(g) water supply;
(h) sewerage and
effluent disposal;
(i) electricity
supply;
(j) any fee simple
estates, leases, licences or other tenures of land required from the State;
(k) any other works,
services or facilities desired by the Joint Venturers;
(l) airport;
(m) any significant
aboriginal and historic sites and measures for their protection;
(n) safety measures,
including radiometric measures, for the workforce and associated population
and for the transport storage and shipping of Product;
(o) use of local
professional services, labour and materials;
(p) an environmental
management programme as to measures to be taken in respect of
the Joint Venturers' operations in respect of the Initial Project for the
protection and management of the environment;
(q) the size and
capacity of the treatment plant, the proposed construction programme, and the
proposed extent of the mine; and
(r) any other details
which the Joint Venturers consider to be relevant.
(4) The details
furnished pursuant to sub-clause (3) of this Clause may be submitted
separately and in any order as to the matter or matters mentioned in one or
more of paragraphs (a) to (r) of sub-clause (3) of this Clause and may from
time to time be varied or amended by the participating Joint Venturers.
(5) Use of Existing
Infrastructure —The details furnished to the Minister pursuant to
sub-clause (3) of this Clause may instead of providing for the construction of
new facilities of the kind therein mentioned provide for the use by the
participating Joint Venturers upon reasonable terms and conditions of any
existing facilities of such kind.
(6) The participating
Joint Venturers shall co-operate with the State and when and where appropriate
consult with the representatives or officers of the State and its
instrumentalities regarding the matter or matters mentioned in one or more of
paragraphs (a) to (r) of sub-clause (3) of this Clause.
(1) Notwithstanding
any provision of any Act, regulation, by-law or rule of law to the contrary,
but subject always to the provisions of the ratifying Act and sub-clause (2)
of Clause 23, whenever the Joint Venturers or any of them are, or an
associated company is, required to obtain any permit, consent approval,
authorization or permission of any kind whatsoever whether from the State or
its instrumentalities or any statutory authority or any local government
authority to enable them to discharge their obligations under this Indenture
or to proceed with the implementation of the Initial or any Subsequent Project
the application for such permit, consent, approval, authorization or
permission may in the discretion of the relevant Joint Venturers be made to
the Minister.
(2) Every application
pursuant to sub-clause (1) of this Clause shall be in the form and shall
provide the information and details required by the Act, regulation or by-law
applicable to such application and on receipt thereof the Minister shall
(a) approve the said
application without qualification or reservation; or
(b) require as a
condition of the giving of his approval to the said application that the
applicant comply with such conditions in respect thereof as he (having regard
to the circumstances including the overall development of the relevant
Project, the use by others as well as the applicant (or as the case may be,
the Joint Venturers or any of them) of all or any of the facilities to be
provided and the factors which would normally be taken into account in respect
of such an application) thinks reasonable and in such a case the Minister
shall disclose his reasons for such conditions; or
(c) refuse the
application (having regard to the circumstances including the overall
development of the relevant Project, the use by others as well as the
applicant (or as the case may be, the Joint Venturers or any of them) of all
or any of the facilities to be provided and the factors which would normally
be taken into account in respect of such an application) and in such a case
the Minister shall disclose his reasons for such refusal.
(3) The Minister
shall—
(a) where details in
respect of the subject matter of an application have previously been supplied
to him pursuant to sub-clause (2) or (4) of Clause 6 and the application is
substantially in accordance with such details, within two months of the
receipt of such application; or
(b) in any other case,
within four months of the receipt of an application,
give notice to the applicant of his decision in respect of the application.
(4) Consultation with
Minister —If the decision of the Minister is as mentioned in paragraph
(b) or (c) of sub-clause (2) of this Clause the Minister shall afford the
applicant full opportunity to consult with him and should it so desire to
submit new or revised applications either generally or in respect to some
particular matter and the provisions of this clause shall apply to any such
new or revised application.
(5)
The Joint Venturers may, pursuant to sub-clause (1) of this Clause, seek any
number of approvals, permits, consents authorizations or permissions (whether
under one Act or any number of Acts) at any one time or as part of one
application, and the Minister may deal therewith in accordance with the
provisions of this Clause.
(6) Minister's
Decision Subject to Arbitration —If in respect of any application made
pursuant to sub-clause (1) of this Clause—
(a) the decision of
the Minister is as mentioned in paragraph (b) of sub-clause (2) of this Clause
and the applicant considers that any condition is unreasonable; or
(b) the decision of
the Minister is as mentioned in paragraph (c) of sub-clause (2) of this Clause
and the applicant considers that such decision is unreasonable; or
(c) the Minister fails
to give notice to the applicant of his decision within the time specified in
sub-clause (3) of this Clause
the applicant, within two months of receipt of the notice mentioned in
sub-clause (3) of this Clause or (as the case may be) of the expiration of the
time specified in the said sub-clause (3), may refer—
(i)
the reasonableness of the condition; or
(ii)
the reasonableness of the refusal; or
(iii)
the application for the approval in question
as the case may be to arbitration in the manner provided in Clause 49.
8. IMPLEMENTATION OF INITIAL PROJECT
The participating Joint Venturers shall upon a Project Notice being given in
respect of the Initial Project implement or cause to be implemented the
Initial Project with all reasonable diligence in accordance with the terms of
this Indenture.
(1) Obligations in
respect of Subsequent Projects —Unless otherwise expressly provided
herein the obligations of the parties hereto, or any of them in respect of the
provision of, or payment for the provision of, infrastructure, facilities and
services is limited to the infrastructure, facilities and services appropriate
to that required for production at the minesite of 350 000 tonnes per
year of contained copper in saleable Product, saleable Non-minesite Product
and associated by-products and in the event that production at the minesite is
planned to exceed that tonnage the Joint Venturers and the Minister shall
negotiate in good faith as to the provision of and payment for further
infrastructure, facilities and services (including any payment of the nature
referred to in sub-clause (4) of Clause 29). A failure to agree in respect
thereof shall not be arbitrable. It is the primary intention of the parties
that the provision of, or payment for the provision of, infrastructure,
facilities and services appropriate to the said production of 350 000
tonnes per year of contained copper in saleable Product, saleable Non-minesite
Product and associated by-products will be related to the Initial Project and
(if appropriate) any Subsequent Project which constitutes a material expansion
or other material variation of the Initial Project but it is nevertheless
recognized by the parties that a portion of such provision or payment may
relate to a Subsequent Project which does not constitute such an expansion or
variation to the Initial Project.
(2) If
the Joint Venturers or any of them at any time during the continuance of this
Indenture desire to proceed with and implement a Subsequent Project they shall
give notice of such desire to the Minister and within 2 months thereafter
shall submit to the Minister details in respect of all matters covered by such
notice and such of the other matters mentioned in paragraphs (a) to (r) of
sub-clause (3) of Clause 6 as the Minister and the Joint Venturers may agree.
The provisions of Clauses 6 (other than the time limit specified therein), 7,
8 and 10 where applicable shall mutatis mutandis apply to such Subsequent
Project.
(1) Notwithstanding
any other provision of this Indenture, in relation to the Initial Project or
any Subsequent Project, the relevant Joint Venturers shall observe and comply
with the undermentioned codes, standards or recommendations and any amendments
thereof or any codes, standards or recommendations substituted therefor—
(a) "Code of Practice
on Radiation Protection in the Mining and Milling of Radioactive Ores, 1987",
published for the Commonwealth Department of the Arts, Sport, the Environment,
Tourism and Territories in 1987 by the Australian Government Publishing
Service (International Standard Book Number I.S.B.N. 0644 07101 X).
(b) "Code of Practice
for the Safe Transport of Radioactive Substances, 1990," published for the
Department for the Arts, Sport, the Environment, Tourism and Territories by
the Australian Government Publishing Service (International Standard Book
Number I.S.B.N. 0 644 1186 1).
(c) "Code of Practice
on the Management of Radioactive Wastes from the Mining and Milling of
Radioactive Ores, 1982", published for the Department of Home Affairs and
Environment, by the Australian Government Publishing Service (International
Standard Book Number I.S.B.N. 0 644 02066 0).
(d) Codes based on
scientific studies and scientific assessment presently issued or to be issued
from time to time by the National Health and Medical Research Council of
Australia.
(e) Codes or
recommendations presently issued or to be issued from time to time by the
International Commission on Radiological Protection or the International
Atomic Energy Agency.
(2) Notwithstanding
the provisions of sub-clause (1) of this Clause, the relevant Joint Venturers
shall, at all times, use their best endeavours to ensure that the radiation
exposure of employees and the public shall be kept to levels that are in
accordance with the principles of the system of dose limitation as recommended
by the International Commission on Radiological Protection (publication number
26 of 1977) as varied or substituted from time to time.
(3) Where, by or under
an Act of the Parliament of the State or Commonwealth provision is made in
respect of a matter contained in a code, standard or recommendation described
in sub-clause (1) of this Clause, the relevant Joint Venturers shall comply
with that provision.
(4) The State shall
not, in relation to the Initial Project or any Subsequent Project, seek to
impose on the Joint Venturers or any of them or an associated company any
standard relating to the mining, treatment, processing, handling, transporting
or storage of radioactive ores, residues, effluents, wastes, tailings,
concentrates or Product which is more stringent than the most stringent
standards contained in any of the codes, standards or recommendations referred
to in sub-clause (1) of this Clause.
11. PROTECTION AND MANAGEMENT OF THE ENVIRONMENT
(1) Within a
reasonable time after giving a Project Notice in respect of the Initial
Project or any Subsequent Project and at three yearly intervals thereafter the
participating Joint Venturers shall submit to the Minister a three year
programme for the protection, management and rehabilitation (if appropriate)
of the environment in respect of that Project including arrangements with
respect to monitoring and the study of sample areas to ascertain the
effectiveness of such programme.
(2) On receipt of any
programme submitted to him pursuant to sub-clause (1) of this Clause the
Minister shall—
(a) approve the said
programme without qualification or reservation; or
(b) approve the said
programme subject to such conditions in respect thereof or such variations
thereto as he thinks reasonable; or
(c) refuse to approve
the said programme.
(3) The Minister shall
within two months of receipt of a programme submitted to him pursuant to
sub-clause (1) of this Clause give notice to the relevant Joint Venturers of
his decision in respect thereof. If the decision of the Minister is as
mentioned in paragraph (b) or (c) of sub-clause (2) of this Clause the
Minister shall disclose to such Joint Venturers his reasons for his decision.
(4) The provisions of
sub-clauses (4) and (6) of Clause 7 shall mutatis mutandis apply to any
decision of the Minister in the terms of paragraphs (b) or (c) of sub-clause
(2) of this Clause.
(5) The relevant Joint
Venturers shall implement the programme when approved or determined by
arbitration in accordance with the terms (including any conditions) thereof.
(6) The relevant Joint
Venturers shall—
(a) provide all
relevant raw data to the Minister;
(b) at yearly
intervals, commencing from the date when the programme is approved, submit an
interim report to the Minister concerning such programme; and
(c) at the expiration
of three years from the date the programme is approved submit a detailed
report to the Minister concerning such programme during the previous three
years.
(7) In the event of a
sudden and unexpected material detriment to the environment occurring as a
result of the Joint Venturers' operations, the relevant Joint Venturers as
soon as reasonably practicable shall submit to the Minister a programme for
the mitigation of such detriment and the provisions of sub-clauses (2) to (6)
inclusive of this Clause shall apply to any such programme.
(8) For the purposes
of the Noise Control Act 1976–1977, the area of the Initial Project
or any Subsequent Project shall be described as predominantly industrial.
(9) Notwithstanding
the provisions of this Clause, the State acknowledges that
the Joint Venturers, in assessing the economic feasibility of the Initial
Project or any Subsequent Project, will have regard to the laws, regulations
or standards (other than those referred to in Clause 10) relative to the
environment existing at the time at which the relevant Project Notice is
given. Should there occur during the currency of this Indenture any changes to
any such laws, regulations or standards of or applied by the State the result
of which is to impose substantial additional costs upon the Joint Venturers or
any of them the State shall, upon request of the relevant Joint Venturers give
due consideration to ameliorating the adverse effects of such costs.
12. USE OF LOCAL PROFESSIONAL SERVICES, LABOUR AND
MATERIALS
(1)
The Joint Venturers shall for the purposes of this Indenture 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 State;
(b) use labour
available within the State;
(c) when calling for
tenders and letting contracts for works materials plant equipment and supplies
ensure that South Australian suppliers manufacturers and contractors are given
reasonable opportunity to tender or quote; and
(d) give proper
consideration and where possible preference to South 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 State
continues to support the availability of analytical, process research and
development and other scientific and technical services in South Australia and
the Joint Venturers, in accordance with the provisions of sub-clause (1) of
this Clause, will give reasonable consideration to the use of such services
for the purposes of this Indenture.
(3) In providing the
support referred to in sub-clause (2) of this Clause the State is establishing
Technology Park Adelaide adjacent to The Levels Campus of the South Australian
Institute of Technology as a centre for research and development in relevant
fields and for high technology/science based industry and the Joint Venturers,
in accordance with the provisions of sub-clause (1) of this Clause, will give
reasonable consideration to use of this Park as a site for research and
development activities for the purposes of this Indenture.
(4) Nothing in this
Clause shall require the Joint Venturers or any of them or an associated
company to act upon other than commercial considerations.
(5)
The Joint Venturers shall from time to time during the currency of this
Indenture when requested by the Minister submit a report concerning their
implementation of the provisions of sub-clauses (1), (2) and (3) of this
Clause.
13. JOINT VENTURERS' WATER REQUIREMENTS
(1)
The Joint Venturers shall commencing on the 1st day of January 1983 and at
yearly intervals thereafter provide the Minister with a ten year schedule of
their best estimates of the annual average daily water requirements for the
forthcoming ten years in respect of
(a) potable water; and
(b) non-potable water
in each case for both
(c) the minesite; and
(d) the townsite
and the actual or expected sources of supply for such water.
(2) Potable Water
—The participating Joint Venturers for the Initial Project shall
construct adequate potable water storage facilities for the town at a location
and of a capacity to be agreed with the State (which storage facilities are in
this Clause 13 referred to as "the Storage Facilities"). The Storage
Facilities shall be and remain the property of the relevant Joint Venturers
and in accordance with sub-clause (23) of this Clause may be constructed in
several stages.
(3)
The Joint Venturers or any of them shall have the right (to be exercised in
their sole discretion) to construct a pipeline and appurtenant works from Port
Augusta to Olympic Dam (which pipeline and works is in this Clause 13 referred
to as "the Pipeline") capable of delivering to Olympic Dam a sufficient supply
of potable water to satisfy that portion of the mine and town water
requirements in respect of potable water appropriate to a level of production
at the minesite of 350 000 tonnes per annum of contained copper in
saleable Product, saleable Non-minesite Product and associated by-products
which may not be provided from some other source. The timing of the
construction of the Pipeline shall be at the discretion of the Joint Venturers
and the route thereof shall be subject to generally applicable environmental
procedures and approvals.
(4) If
the Joint Venturers or any of them construct the Pipeline pursuant to
sub-clause (3) of this Clause the State will make available to the relevant
Joint Venturers at Port Augusta 9 000 kilolitres of potable water per
day. If on the 31st day of December 1993 (or such other date as
the Joint Venturers and the Minister may agree and any failure to agree shall
not be arbitrable) the Joint Venturers or any of them are not utilising the
said supply of potable water at an annual average rate of 9 000
kilolitres per day and there is a reasonable expectation that the whole of
such supply will not be so utilised, the State may make available the unused
part (or the expected unused part) of such water to other consumers.
(4A) —
(a)
(i)
Paragraph (c) of this subclause (4A) shall operate
subject to and only impose or create obligations on the State or the South
Australian Water Corporation in the following manner:
(1) to the extent that
paragraph (c) is not unlawful, invalid, unenforceable, illegal or void, is
voidable and avoided or is otherwise contrary to the
Competition Policy Reform (South Australia) Act, 1996, the Competition
Code or any other law or regulation, howsoever applying or in force pursuant
thereto or otherwise, in relation to the establishment, implementation,
operation or enforcement of national competition policy as envisaged by that
legislation or the Conduct Code Agreement referred to in the
Competition Policy Reform (South Australia) Act, 1996, irrespective of
when any such law or regulation is enacted; and
(2) the obligations in
paragraph (c) shall not exist or have any force or effect if the State's or
the South Australian Water Corporation's agreement to this subclause prevents,
reduces, delays or adversely affects or derogates from the Commonwealth's
obligations to make any payment to the State or the State's rights to receive
any such payments in relation to the establishment, implementation or
operation of national competition policy pursuant to the Agreement to
Implement the National Competition Policy and Related Reforms dated 11 April
1995 made between the Commonwealth and each of the States and Territories, to
any other agreement amending or replacing that Agreement or to any law or
regulation applicable to any such payment enacted or promulgated respectively
after the date of that Agreement.
(b) If any of the
provisions of paragraph (c) of this subclause (4A) is unlawful, invalid,
unenforceable, illegal or void, is voidable and avoided or is otherwise
contrary to the provisions of any law or regulation referred to in
subparagraph (a) (i)(1) above, then the obligations paragraph (c) shall
not exist or create or impose obligations on the State or the South Australia
Water Corporation to the extent that the existence or performance of such
provisions would have any such relevant effect or consequence.
(c) Subject to
subparagraphs (a) and (b) , if and only if the following events occur:
(i)
the Joint Venturers or any of them construct the
Pipeline;
(ii)
the Joint Venturers or any of them is granted, obtains or
otherwise acquires licences for the taking of water from the River Murray;
(iii)
the relevant Joint Venturers have given the State, at any
time before, during or after construction of the Pipeline, not less than four
(4) years' written notice either that they require the State to make potable
water available to them at Port Augusta or that they require the State to
reserve pipeline capacity in the Morgan-Whyalla pipeline system for that
purpose; and
(iv)
the relevant Joint Venturers' said written notice
specifies the date on which they require the State actually to make available
to them potable water at Port Augusta,
then the following provisions shall apply:
(v)
Subject to subparagraphs (vi) and (ix), the South
Australian Water Corporation shall make available to the relevant Joint
Venturers at Port Augusta the lesser of either 9 000 kilolitres of
potable water per day or of the volume of water per day equivalent to the
volume of water from the River Murray made available at Morgan to the South
Australian Water Corporation by the relevant Joint Venturers from time to time
pursuant to the licences referred to in subparagraph (ii) above by the date
agreed between the parties, or in the absence of any such agreement, then the
last to occur of the following dates:
(1) the date specified
in the relevant Joint Venturers' said notice;
(2) the fourth
anniversary of the date of the relevant Joint Venturers' said notice; or
(3) the second
anniversary of the date of any agreement entered into pursuant to subparagraph
(vi).
(vi)
The South Australian Water Corporation's obligation to
make available to the relevant Joint Venturers potable water at Port Augusta
pursuant to this subclause (4A) shall be subject to and conditional upon the
South Australian Water Corporation entering into a detailed agreement on the
basis specified in subparagraph (vii) and on terms and conditions not
materially less favourable than similar agreements entered into by the South
Australian Water Corporation on an arm's length basis for the delivery of
water taken from or through the Morgan-Whyalla pipeline system, including,
without limitation, in relation to the following matters:
(1) the treatment,
pumping, storage, distribution and continuity of supply of any such water;
(2) the plant,
equipment, facilities, services or other infrastructure required for any such
delivery;
(3) the obligations to
construct, and to pay for the construction, of any such plant, equipment,
facilities or other infrastructure; and
(4) the costs or
charges payable by the relevant Joint Venturers to the South Australian Water
Corporation for any such delivery including, without limitation, in relation
to any of the foregoing specified matters.
(vii)
The agreement referred to in subparagraph (vi) shall be
entered into on the following basis:
(1) there be no
subsidy provided (either directly or indirectly) by either the State, the
South Australian Water Corporation or other consumers with respect to the
delivery of the said potable water to the Joint Venturers;
(2)
the Joint Venturers shall pay the actual cost incurred by the South Australian
Water Corporation in delivering the said potable water to them, and shall not
be required to subsidize the said delivery by the South Australian Water
Corporation;
(3) the actual cost
incurred by the South Australian Water Corporation delivering the said potable
water will be calculated on a total system basis for the Morgan-Whyalla
Pipeline System with appropriate allocation of costs (or on such other basis
as the parties may agree) having regard to (but not limited to):
• the degree to
which relevant costs (if any) are borne by the Joint Venturers;
• statutory
contributions, rates, taxes, levies and other charges payable by the South
Australian Water Corporation to the State or any local government or statutory
authority on a non-discriminatory basis; and
• the need for
the South Australian Water Corporation to service borrowings, to make
reasonable provision for depreciation and replacement of plant and any return
on capital invested.
(viii)
The terms of the said agreement shall permit the South
Australian Water Corporation, at any time during the term of the said
agreement, to increase the charges to the Joint Venturers in accordance with
the following principles:
(1) the charges shall
be increased only as part of and at the same time as the South Australian
Water Corporation reviews and increases the charges to other customers to whom
the South Australian Water Corporation supplies or delivers potable water
originating from or through the Morgan-Whyalla pipeline system;
(2) the rate of
increase of the charges shall not exceed the overall rate of increase of all
other such charges of the South Australian Water Corporation on other
consumers of water supplied or delivered by the Morgan-Whyalla Pipeline
System; and
(3) the terms of the
agreement shall provide that if the Joint Venturers do not accept the charges
as increased by the South Australian Water Corporation, then the reviewed
charges shall be determined by an independent expert appointed pursuant to
this Indenture. The independent expert shall have regard to the principles in
subparagraph (vii) in making a determination. Until any determination is made
by the independent expert, the charges so determined by the South Australian
Water Corporation shall continue to apply, and following such determination,
the charges determined by the independent expert shall apply from the
beginning of the period when the South Australian Water Corporation increased
the charges.
(ix)
The South Australian Water Corporation's obligation to
make available to the relevant Joint Venturers potable water at Port Augusta
pursuant to this subclause (4A) shall be subject to and conditional upon the
Pipeline being constructed and operational.
(x)
If the South Australian Water Corporation and the
relevant Joint Venturers are unable to agree on the charges payable by the
relevant Joint Venturers pursuant to the said agreement within 180 days, then
the matter shall be referred to an independent expert for determination
pursuant to this Indenture. The independent expert shall have regard to the
principles specified in subparagraph (vii) in making a determination of the
charges payable by the relevant Joint Venturers pursuant to the said
agreement.
(xi)
The parties shall act reasonably and in good faith in
negotiating any agreement referred to in subparagraph (vi).
(xii)
The State guarantees compliance by the South Australian
Water Corporation with the provisions of this subclause 13(4A) as apply to the
South Australian Water Corporation and with such of the provisions of any
detailed agreement entered into pursuant to subparagraph (vi) relating or
incidental to the supply of potable water by the South Australian Water
Corporation including any amendments to or substitutions for any such detailed
agreement which have the prior approval of the Minister.
(d) If one of the
following provisions apply:
(i)
the relevant Joint Venturers have requested the South
Australian Water Corporation to reserve pipeline capacity pursuant to
paragraph (c) ; or
(ii)
the relevant Joint Venturers have requested the South
Australian Water Corporation to make available to them potable water pursuant
to paragraph (c) and the relevant Joint Venturers do not accept or take
delivery of that potable water by the date specified in paragraph (c) ,
then the Joint Venturers shall pay to the South Australian Water Corporation
an annual reservation charge for the reservation of pipeline capacity, the
amount of which is to be determined on the following basis:
(iii)
the costs incurred by the South Australian Water
Corporation to construct or install additional capital works, plant, equipment
or other infrastructure as a consequence either of its reservation of that
pipeline capacity for so long as any such reservation occurs or of it being in
a position to make available the relevant volume of water to the relevant
Joint Venturers in accordance with any such agreement for so long as any such
failure to accept or take such water continues; and
(iv)
the period either for which any such reservation has been
requested or for which any such failure to accept or take such water is likely
to continue (as the case may be).
(e) The annual
reservation charge shall be payable on and from either the date on which any
such reservation commences or the date on which any such failure commences (as
the case may be). The Joint Venturers shall pay the said annual reservation
charge to the South Australian Water Corporation within thirty (30) days of
the South Australian Water Corporation serving on the Joint Venturers a notice
requesting the payment of the said reservation charge together with an
accompanying statement setting out the manner in which the amount of the said
reservation charge the subject of the notice has been determined.
(f) If the relevant
Joint Venturers do not accept the annual reservation charge as determined by
the South Australian Water Corporation within 30 days, then the amount of the
annual reservation charge shall be referred to an independent expert for
determination pursuant to this Indenture. The independent expert shall have
regard to the costs incurred by the South Australian Water Corporation
referred to in subparagraph (d) (iii) and the period specified in subparagraph
(d) (iv) in making a determination. Until any determination is made by the
independent expert, the annual reservation charge as determined by the South
Australian Water Corporation shall continue to apply, and following such
determination, the annual reservation charges determined by the independent
expert shall apply on and from the date on which the annual reservation charge
is payable pursuant to paragraph (d) .
(5) The supply of
water through the Pipeline to the relevant Joint Venturers shall be metered at
the delivery point to the relevant Joint Venturers, which shall be the point
at which the Pipeline connects with the State's water supply facilities at
Port Augusta. The metering equipment shall be owned, installed and maintained
by the State at its cost and shall have the best commercially available
accuracy of recording being not less than that required under the Waterworks
Act. The accuracy of such equipment shall be tested by the State at
appropriate intervals agreeable to the State and the relevant Joint Venturers,
but not less frequently than once every twenty-four months.
(6) If the Pipeline is
constructed by the Joint Venturers or any of them such pipeline shall be and
remain the property of the relevant Joint Venturers who shall, at their cost,
operate and maintain the same. The relevant Joint Venturers may enter into
contracts with a third party (including the State) for the performance of
their obligations under this sub-clause.
(7) Underground Water
Search —The Joint Venturers or any of them may, in accordance with the
provisions of any relevant Act and following consultation with the State,
search for underground water within and without the Olympic Dam Area. Where
appropriate, in the opinion of the Joint Venturers, they shall engage
experienced groundwater consultants. The relevant Joint Venturers shall
furnish to the Minister details of the results of any investigations and
copies of any reports of such consultants as they become available.
(8) Grant of Licence
to Draw Underground Water —If the investigations referred to in
sub-clause (7) of this Clause prove the availability of any underground water
source or sources which can be drawn on by the relevant Joint Venturers for
the purposes of their operations, and following—
A. agreement by the
relevant Joint Venturers or an associated company and the Minister of Water
Resources of the dimensions and locations of the wellfield or wellfields
hereinafter mentioned, and
B. —
(i)
designation, in accordance with the following procedures,
of an area (hereinafter referred to as the "designated area") in which
designated area the said wellfield or wellfields are intended to be located
for the purposes of this Indenture.
(ii)
the designated area shall be that area from which it is
reasonably expected that the abstraction of water therefrom by the relevant
Joint Venturers or an associated company for the thirty year period next
ensuing will not reduce the potentiometric pressure by more than five metres
(or such other pressure reduction as may be agreed between the relevant Joint
Venturers or an associated company and the Minister of Water Resources) at the
boundary of the designated area.
(iii)
the relevant Joint Venturers or an associated company
shall advise the Minister of Water Resources of the area they propose should
constitute the designated area.
(iv)
when notifying the Minister of Water Resources of the
area they propose should constitute the designated area, the relevant Joint
Venturers or an associated company shall supply to the Minister of Water
Resources such data as is necessary to enable the Minister of Water Resources
to determine whether the extent, location and boundaries of such proposed
designated area are appropriate.
(v)
the Minister of Water Resources and the relevant Joint
Venturers or an associated company shall liaise with a view to agreeing the
extent, location and boundaries of the designated area. If agreement thereon
cannot be reached, the matter shall be referred to arbitration pursuant to
Clause 49.
the State shall, subject to the provisions of sub-clause (13) of this Clause
and if so requested by the Joint Venturers, grant to them or to such of them
as they may nominate to the Minister or to an associated company as they may
nominate to the Minister (and when and where appropriate shall grant renewals
thereof) a Special Water Licence or Special Water Licences for an initial
period commencing with effect from the date of the application therefor, and
(if appropriate), terminating on the commencement of a Special Mining Lease
and thereafter for a period conterminous with the period of a Special Mining
Lease as nominated by the relevant Joint Venturers to the Minister (or for
such lesser period as the relevant Joint Venturers may specify) exclusively
and irrevocably to develop and draw subject only to the provisions of
sub-clause (16) of this Clause and this sub-clause, free of charge underground
water (both potable and non-potable) to satisfy, in whole or in part, the mine
water requirements and the base quantity of water (as that term is defined in
sub-clause (21) of this Clause) from wells situated in a wellfield or
wellfields subject to the following conditions:
(a) the relevant Joint
Venturers will design, install and maintain in good working order, and collect
data from, an appropriate monitoring system approved by the State. The
monitoring system (which shall include such monitoring wells as are necessary)
will have for its purpose the collection of adequate data for the management
of the use of the underground water resources and will allow for the
collection of the following data:
(i)
Total water quantities withdrawn from any wellfield on
both an individual well and wellfield basis. Abstraction shall be added to the
record on a monthly basis.
(ii)
Water pressures and levels in all monitoring and
production wells, and at the boundary of the area designated pursuant to
placitum (v) of paragraph B of this sub-clause (8).
(iii)
Water qualities in all monitoring and production wells on
a quarterly basis.
The data base shall be adequate for the purpose of allowing periodic
assessment of the water supply position and the response of the aquifers to
water production for use in connection with the Joint Venturers' operations.
(b) the relevant Joint
Venturers shall cause an annual report to be prepared by a competent
hydrologist or hydrogeologist and submitted to the State. The purpose of the
report will be to:
(i)
Define aquifer response to water production for use in
connection with the Joint Venturers' operations during the review period;
(ii)
Define the resource's ability to maintain the supply for
use in connection with the Joint Venturers' operations;
(iii)
Define a strategy for future water production and
management in connection with the Joint Venturers' operations; and
(iv)
Define the need for further exploration for, development
of, or use of, additional water sources by the Joint Venturers for their
operations.
(c) —
(i)
If, after considering the data collected and supplied to
him pursuant to paragraphs (a) and (b) of this sub-clause (8), the Minister of
Water Resources is of the opinion that the extent or boundaries of the
designated area should be varied, he shall liaise with the relevant Joint
Venturers with a view to agreeing upon such variation. If agreement thereon
cannot be reached, the matter may be referred to arbitration pursuant to
Clause 49. If the designated area is varied pursuant to this paragraph, the
Special Water Licence shall be amended accordingly.
(ii)
If the Minister of Water Resources has reason to believe
that the continued abstraction of water by the Joint Venturers from the
designated area will be detrimental to the water resource or that there is a
reasonable possibility of a complete or partial failure of the water supply
therefrom, he may issue to the relevant Joint Venturers a notice requiring
them to restrict the abstraction of water from the designated area to the
limit set out in the notice, or, if appropriate, to establish another
wellfield and designated area.
(iii)
If the Joint Venturers dispute the terms of the notice
issued pursuant to placitum (ii) of paragraph (c) above they may refer the
matter to arbitration pursuant to Clause 49, and they shall comply with the
terms of the notice as issued by the Minister of Water Resources or (if
applicable) determined by the arbitrator.
(iv)
Notwithstanding the provisions of this sub-clause (8),
the Minister of Water Resources may, if he is of the opinion that an emergency
situation exists, give not less that ninety-six hours notice to
the Joint Venturers requiring them to limit the amount of water which may be
taken from a wellfield or designated area at any one time or from time to time
to the maximum which such wellfield or designated area is hydrologically
capable of safely supplying.
(9) Should the
Minister at any time pursuant to the provisions of subclause (8) of this
Clause limit the amount of water to be taken from any wellfield or if
otherwise that portion of the mine water requirements and of the base quantity
(as that term is defined in sub-clause (21) of this Clause) which is being
supplied from a wellfield in respect of which a Special Water Licence has been
granted pursuant to sub-clause (8) of this Clause cannot continue to be met
from such wellfield on a continuous basis the relevant Joint Venturers may, in
the terms of sub-clause (7) of this Clause, following consultation with the
State, search for new or additional underground water sources with a view to
restoring or ensuring the full quantity of the mine water requirements and
(subject to sub-clause (23) of this Clause) the base quantity (as that term is
defined in sub-clause (21) of this Clause). The State shall, following
agreement of the dimensions and locations of the relevant wellfield or
wellfields and agreement or determination of the relevant designated area as
provided in paragraphs A. and B. of sub-clause (8) respectively and subject to
the provisions of sub-clause (13) of this Clause, grant to the Joint Venturers
or such of them as they may nominate to the Minister or to an associated
company as they may nominate to the Minister (and when and where appropriate
shall grant renewals thereof) a Special Water Licence or Licences for an
initial period commencing with effect from the date of the application
therefor, and (if appropriate), terminating on the commencement of a Special
Mining Lease and thereafter for a period conterminous with the period of a
Special Mining Lease as nominated by the relevant Joint Venturers to the
Minister, exclusively and irrevocably subject to the provisions of sub-clauses
(8), (13) and (16) of this Clause to develop and draw from a wellfield or
wellfields within any such new or additional underground water sources water
to satisfy in whole or in part that portion of the mine water requirements and
the base quantity (as that term is defined in sub-clause (21) of this Clause)
which cannot be met from any wellfield or wellfields as aforesaid. Pending the
establishment of new or additional water sources and the granting of a Special
Water Licence or Licences in respect thereof the State shall negotiate with
the relevant Joint Venturers in good faith regarding supply to the relevant
Joint Venturers of sufficient water (if available) to meet that portion of the
mine water requirements and of the base quantity (as that term is defined in
sub-clause (21) of this Clause) which cannot be met as aforesaid.
(10) Surface Water
Investigations —The Joint Venturers or any of them may, in accordance
with the provisions of any Act or law and following consultation with the
State, investigate the potential for the development and utilisation of
surface run off water from sources within and without the Olympic Dam Area and
may, subject to concluding any necessary arrangements with relevant occupiers
and other persons having existing rights in respect thereof, develop, utilise,
draw water and recharge underground water sources from such sources for the
purposes of their operations.
(11) Re-cycled Water
—The relevant Joint Venturers shall to the extent that it is reasonably
practicable and economically feasible for them to do so design, construct and
operate their plant and works in the conduct of their operations in such a
manner as to re-cycle as much water as possible.
(12) Charges
—The State shall not impose on the Joint Venturers or any of them or on
any associated company any charge in respect of the development of or use of
any water from any of the water sources or wellfields referred to in
sub-clauses (7), (8), (9), (10) and (11) of this Clause.
(13) Third Party Use
—
(a) —
(i)
In association with the granting of any Special Water
Licence or Licences by the State in respect of any wellfield pursuant to the
provisions of sub-clause (8) or (9) of this Clause, the relevant Joint
Venturers shall conduct a survey of existing users of the resource within the
designated area in which they intend to locate a wellfield. The said survey
shall determine and record, as accurately as is reasonably practicable, the
annual water usage of such existing users, the location and depth of their
wells, the quality and flow rate of the water obtained and (if the well be
sub-artesian) the depth of the water in the well. The relevant Joint Venturers
shall provide a copy of the survey to the Minister of Water Resources.
(ii)
The existing users within the designated area (and their
successors in title or occupancy) shall continue to have the right to use
water from that resource for the proper development or management of the
existing use of the lands occupied by such a user unless the State and
relevant Joint Venturers agree that such continued use will affect the mine
water requirements and the base quantity (as that term is defined in
sub-clause (21) of this Clause) in which case the right of such existing users
will only be restricted or terminated by the State if the relevant Joint
Venturers make alternative supplies available to those users or agree with
such users on an appropriate level of compensation to be paid to such users,
and such compensation is paid accordingly, or make such other arrangements
with such users as may be agreed.
(b) The State may,
after first ensuring that the mine water requirements and the base quantity
(as that term is defined in sub-clause (21) of this Clause) will be met on a
continuous basis and after having due regard to the hydrological adequacy of
the applicable underground water source, upon not less than 3 months
prior notice to the relevant Joint Venturers specifying the identity of the
third party (which may in this paragraph (b) include the State but not an
existing user (including where applicable the State) requiring water for the
proper development and management of the existing use of the lands occupied by
such a user) 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 underground water
from a designated area in respect of which those Joint Venturers or any of
them or an associated company are the holders of a Special Water Licence,
provided however that—
(i)
Where the Joint Venturers or any of them or any
associated company draws water from a wellfield or wellfields within a
designated area the State shall ensure that it is a condition of any grant to
any third party (other than an existing user requiring water for the proper
development and management of the existing use of the lands occupied by such a
user) that in the event that the capacity of that designated area is unduly
reduced, such reduction shall be borne by any third party and not by the
relevant Joint Venturers or any associated company;
(ii)
This sub-clause (13) shall apply only to the rights to
draw water from a particular water source and not to the use by a third party
of any plant, equipment, facility or infrastructure supplied or installed by
the Joint Venturers or any of them or an associated company for the purpose of
drawing water from such source it being agreed that any such use and the terms
thereof shall be a matter for separate and private negotiation between the
relevant Joint Venturers or associated company and the third party.
(14) The State shall
ensure that no rights to prospect for or mine or extract minerals petroleum or
other substances are hereafter granted over any designated area from which
the Joint Venturers or any of them or an associated company are drawing water
or have the right to draw water hereunder or from which water is from time to
time supplied to the Joint Venturers or any of them or an associated company
hereunder if such a grant will or may reasonably be expected to result in the
detrimental contamination of water or detrimentally reduce the quality or
quantity of the water which the relevant Joint Venturers or an associated
company are able or permitted to draw therefrom.
(15) The relevant
Joint Venturers shall, to the extent that it is reasonably practical and
economical for them to do so, design, construct and operate or cause to be
designed, constructed and operated all plant so as to ensure the most
efficient use of all water sources including the use of brackish or saline
water.
(16) Except as
otherwise provided herein, the relevant Joint Venturers shall provide at no
cost to the State, all necessary bores, valves, pipelines, meters, tanks,
reservoirs, treatment plants, power supply, access roads, equipment and
appurtenances necessary to draw, transport, use and dispose of water drawn
from any sources licensed to or for the benefit of or any sources which may be
used by the Joint Venturers or any of them or an associated company under this
Clause.
(17)
The Joint Venturers or any of them or an associated company shall have the
right to construct, operate and maintain such water (both potable and
non-potable) supply, storage and distribution facilities as may be necessary
for the conduct of their operations and, at the request of the relevant Joint
Venturers, the State in respect of any land owned by it or resumed pursuant to
Clause 31 shall grant to the Joint Venturers or such of them as they may
nominate to the Minister or to an associated company as they may nominate to
the Minister (or procure the grant of) or assist the relevant Joint Venturers
or associated company to obtain at no cost to them other than as provided in
Clause 31 such fee simple estates in land and leases, licences, easements and
rights free of any liens charges or encumbrances which the relevant Joint
Venturers may reasonably require for the exercise of the Joint Venturers'
rights and obligations under this clause.
(18) Water Charges
—
(a) The relevant Joint
Venturers or an associated company shall pay to the State quarterly in arrears
in respect of water supplied pursuant to sub-clause (4) of this Clause a unit
rate to be determined from time to time in accordance with the provisions of
this sub-clause.
(b) The unit rate
referred to in paragraph (a) of this sub-clause shall be:
(i)
in respect of the twelve month period commencing on the
first day of July, 1981, the sum of 32 cents per kilolitre; and
(ii)
in respect of any twelve month period commencing on the
first day of July thereafter, calculated in accordance with the following
formula:
Where
R = the unit rate payable expressed in cents per kilolitre;
X2 = the total revenue received by the State in the twelve month period
immediately preceding the twelve month period in respect of which the
calculation is being made in respect of potable water supplied by the State in
South Australia divided by the total amount of such water so supplied during
such twelve month period as set out in the report of the Auditor-General under
the heading "Metropolitan and Country Waterworks";
X1 = the total revenue received by the State in the twelve month period ended
30th day of June 1981 in respect of potable water supplied by the State in
South Australia divided by the total amount of such water so supplied during
such twelve month period as set out in the report of the Auditor-General under
the heading "Metropolitan and Country Waterworks".
(19) Subject to the
provisions of this Indenture (and in particular sub-clauses (4), (8), (9) and
(23) of this Clause 13) the delivery of the base quantity of water (as that
term is defined in sub-clause (21) of this Clause) to the Distribution
Authority shall be the obligation of the relevant Joint Venturers which
obligation shall commence upon completion of the necessary works and shall be
discharged by delivery to such Authority at the point of discharge from the
Storage Facilities.
(20) The authority
charged with the distribution of potable water within the township and, where
reasonably practical and economic the recycling thereof, (in this Clause 13
referred to as "the Distribution Authority") shall be:—
(a) either the
Engineering and Water Supply Department of the State or the Municipality
established pursuant to Clause 23 of this Indenture, as determined by the
Minister after consultation with the Joint Venturers, and
(b) responsible for
the operation and maintenance of the township sewerage facilities, including
the treatment of sewage and where reasonably practical and economic the
recycling of water therefrom.
(21) The relevant
Joint Venturers shall supply or cause to be supplied potable and non-potable
water to the Distribution Authority on the following terms and
conditions:—
(a) the relevant Joint
Venturers shall supply a quantity of water (hereinafter called "the base
quantity") at the same unit rate as that calculated pursuant to sub-clause
(18) of this Clause.
(b) the base quantity
shall be the quantity of potable and non-potable water which is agreed by
the Joint Venturers and the Minister to be sufficient to meet the residential,
industrial, local government, commercial, community and recreational needs of
the township appropriate to a level of production at the minesite of
150 000 tonnes per year of contained copper in saleable Product and
associated by-products calculated with reference to a reasonable usage
allowance per head of population (being a minimum allowance of 650 litres of
potable water per head of population per day plus a reasonably sufficient
quantity of potable and non-potable water for public and community parks,
gardens and recreational uses) and after having made due allowance for the use
of recycled water wherever reasonably practical or economic to do so. If
the Joint Venturers and the Minister are unable to agree within two months of
first conferring the question of the base quantity shall be referred to
arbitration pursuant to Clause 49.
(c) in the event that
the Joint Venturers or any of them supply or cause to be supplied water to the
Distribution Authority in excess of the base quantity (which it is hereby
expressly agreed the Joint Venturers shall not be under any obligation to do)
the unit rate payable by the Distribution Authority in respect of such excess
shall be the actual cost to the relevant Joint Venturers or associated company
of supplying such excess and shall include that proportion of costs, which
bears the same ratio to the total actual cost as the amount of such excess
during an accounting period referred to in placitum (i) of paragraph (e) of
this sub-clause bears to the total amount of water supplied to the
Distribution Authority and the minesite during such period, of:—
(i)
the charges (if any) pursuant to sub-clause (18) of this
Clause;
(ii)
depreciation calculated on the straight line method over
20 years;
(iii)
return on capital calculated on the then depreciated
value at a rate obtained by applying a factor of 1.5 to the Commonwealth of
Australia Bond Rate (as that expression is defined in sub-clause (7) of Clause
32);
(iv)
allowance for pumping, evaporation and other losses;
(v)
all costs and expenses of an operating or maintenance
nature including administrative overheads and salary and wages on-costs.
(d) in the event that
the relevant Joint Venturers provide or cause to be provided the base quantity
or any water in excess thereof to the Distribution Authority from more than
one source they shall install maintain and operate such meters and other
equipment as may be necessary to calculate the appropriate charges under
placitum (i) of paragraph (c) of this sub-clause (21).
(e) —
(i)
the relevant Joint Venturers, in respect of the quarters
ending on the last days of March, June, September and December (or such other
periods, having regard to the accounting practices of the relevant Joint
Venturers or of any manager appointed pursuant to sub-clause (2) of
Clause 54, as may from time to time be agreed by the Minister and
the Joint Venturers), shall forward to the Distribution Authority an account
for water delivered to it during each quarter (or other period) pursuant to
sub-clause (19) of this Clause and such account shall be payable by the
Distribution Authority within thirty days from receipt thereof.
(ii)
if at the time of preparation of the account referred to
in placitum (i) of this paragraph (e) the relevant Joint Venturers are unable
to calculate the charges under paragraph (a) of this sub-clause (21) on the
basis of actual costs and charges they shall calculate it on the basis of
estimates thereof and within sixty days of the relevant Joint Venturers
becoming aware of actual costs and charges in respect of which estimates have
been made they shall determine the actual charges under paragraph (a) of this
sub-clause (21) and forward a statement thereof to the Distribution Authority
whereupon the following amounts shall be payable:—
A. where the estimate
of charges exceeds the actual charge the difference shall be forthwith paid by
the relevant Joint Venturers to the Distribution Authority;
B. where the estimate
of charges is less than the actual charge the difference shall be forthwith
paid by the Distribution Authority to the relevant Joint Venturers.
(f) the State shall
ensure that those water consumers and sewerage facility users within the town
who are employees of or are employed or retained by the Joint Venturers or any
of them or an associated company or who or which are located in the town for
the purpose of providing services (including any public or municipal services)
assistance or facilities to such employees or retainees are and continue to be
supplied with water in accordance with the allowances and other considerations
used in determining the base quantity pursuant to paragraph (b) of this
sub-clause and access to the sewerage facilities provided by
the Joint Venturers or any of them pursuant to this Indenture in priority to
any other water consumers or sewerage facility users within the town,
provided, however, that nothing in this sub-clause shall be construed as
preventing the supply of water on a household, allotment or other unit basis,
and charging for such water accordingly.
(22) The charges
(including stepped charges) to be levied for the supply of potable water and
the provision of sewerage services shall be determined by the Distribution
Authority, provided that the charges to be levied shall be such that each
consumer shall be entitled to a quantity of water to be agreed by the
Joint Venturers and the Minister at a price not exceeding the rate payable by
the relevant Joint Venturers or an associated company pursuant to sub-clause
(18) of this Clause plus 30% (or such other percentage as may be agreed
(failure to so agree shall not be subject to arbitration) between the
Distribution Authority and the Joint Venturers) of such rate and the
Distribution Authority may operate at a profit and shall not operate, as far
as is reasonably practicable, at a loss, provided, however, that nothing in
this sub-clause shall be construed as preventing the Distribution Authority
from making reasonable financial provision to meet the costs of future
maintenance or replacement. Any profit earned or derived by the Distribution
Authority from the charges (including stepped charges) levied on consumers for
the supply of potable water and the provision of sewerage services shall be
paid to the municipality within thirty days of the profit for the relevant
financial year of the Distribution Authority being determined in accordance
with consistently applied accounting standards and principles generally
accepted in Australia. Any moneys paid to the municipality as profit pursuant
to this subclause shall be revenue of the municipality for the financial year
in which any such moneys are paid and shall only be used for proper purposes
of the municipality in accordance with this Indenture.
(22A) The Distribution
Authority shall, as far as is reasonably practicable, encourage its consumers
to observe and implement sound water conservation principles and practices and
generally to use water resources efficiently.
(23) The obligations
of the relevant Joint Venturers to construct the Storage Facilities pursuant
to sub-clause (2) of this Clause and to deliver the base quantity to the
Distribution Authority pursuant to sub-clause (19) of this Clause shall, in
respect of the base quantity, be limited to ensuring the supply of such
requirements as are appropriate to the scale of the Joint Venturers'
operations from time to time with a maximum obligation appropriate to a level
of production at the minesite of 350 000 tonnes per annum of
contained copper in saleable Product, saleable Non-minesite Product and
associated by-products.
(24) All of the
potable water supply and sewerage facilities constructed within the township
or for township purposes are to be constructed and maintained to standards
normally adopted by the Engineering and Water Supply Department and the
quality of the water supplied for township purposes shall be to standards
reasonably acceptable to the South Australian Health Commission.
(25) Except where
expressly necessary for the purpose of implementing the provisions of this
Clause 13, the provisions of the Water Resources Act shall apply to all work
undertaken pursuant to this Clause.
(26) The State shall
recommend to the Governor of the State that every well in a designated area,
not already proclaimed under the Water Resources Act, 1976 or the Water
Resources Act, be declared a proclaimed well pursuant to the Water Resources
Act.
(27) If it becomes
necessary or desirable to prevent or reduce the wastage of water for the
purpose of preserving or protecting any water source used or proposed to be
used by the Joint Venturers or any of them or an associated company, the State
shall:
(a) recommend to the
Governor of the State that any watercourse, lake, well or part of the State,
not already proclaimed under the Water Resources Act, 1976 or the Water
Resources Act, be declared to be a proclaimed watercourse, lake, well or
surface water proclaimed area (as the case may be) pursuant to the Water
Resources Act; and
(c) take such other
action as may be necessary or desirable to prevent or reduce such wastage of
water.
(28) It is agreed by
the parties hereto that the right of the Joint Venturers to obtain a Special
Water Licence pursuant to this Clause is not limited by the provisions of
sub-clause (1) of Clause 9.
(29)
The Joint Venturers may take water, pursuant to a Special Water Licence,
contrary to the provisions of any water plan that applies in relation to the
water taken pursuant to that Special Water Licence.
(1) The participating
Joint Venturers shall
(a) be responsible for
the provision of finance for and the construction and maintenance of all
private roads required for any Project in respect of which they are
participating Joint Venturers;
(b) have the right at
their cost to make such provision (including if necessary the erection of
physical barriers) as shall ensure that all persons and vehicles (other than
those engaged upon the Joint Venturers' operations and their invitees and
licensees) are excluded from use of such private roads or any part thereof.
(2) Public Roads
—Following the giving of a Project Notice in respect of the Initial
Project the State when requested to do so by the Joint Venturers shall
construct and maintain or cause to be constructed and maintained a new sealed
public road from Pimba (or the vicinity thereof) to the boundary of the
Special Mining Lease to be granted pursuant to sub-clause (1) of Clause 19,
and connecting with the townsite and the airstrip referred to in Clause 15
(which shall be sealed to an ultimate width of not less than 7.4 metres with
at least 2 metre verges or such other widths as the Joint Venturers and the
Minister may agree and which may be undertaken by the widening and sealing of
the existing private unsealed road from Woomera to Olympic Dam, including the
widening and maintenance of the public road between Pimba and Woomera)
suitable for the purposes of the Joint Venturers' operations and in accordance
with the usual standards prevailing in South Australia in respect of roads of
a comparable nature, the funding of such construction to be provided in
accordance with the terms of this Indenture.
(3) The State shall
use its best endeavours to ensure the completion of the construction of the
road referred to in sub-clause (2) of this Clause as soon as is reasonably
practicable and the Commissioner of Highways or other relevant authority and
the Joint Venturers shall confer with a view to minimizing the periods of time
for such completion.
(4) Maintenance of
Public Roads —The municipality shall maintain or cause to be maintained
the public roads within the town and the State shall maintain or cause to be
maintained the road referred to in sub-clause (2) of this Clause to a standard
similar to comparable public roads which in South Australia bear comparable
traffic loads.
(5)
The Joint Venturers or any of them shall not be or be deemed to be liable for
the maintenance of any road except private roads which the relevant Joint
Venturers have an obligation to maintain pursuant to the provisions of
paragraph (a) of sub-clause (1) of this Clause.
(6) Any contribution
made by the Joint Venturers or any of them or an associated company to the
State for the upgrading of any public road by the Joint Venturers or any of
them or an associated company pursuant to the provisions of sub-clauses (1),
(2), (4) or (7) of this Clause shall not be construed as an admission of
responsibility for road maintenance under this Indenture or otherwise.
(7)
The Joint Venturers or any of them or an associated company shall with the
consent of the Minister (which shall not be unreasonably withheld) have the
right at their cost to upgrade (whether by way of widening, surfacing,
resurfacing, sealing, re-sealing or otherwise howsoever) any public road for
the purposes of their operations. The standard of upgrading shall be that
appropriate to the relevant Joint Venturers' requirements only provided that
the relevant Joint Venturers and the Minister may agree upon a higher standard
in which case the additional cost involved shall be borne by the State.
(8)
The Joint Venturers may at any time and from time to time, with the consent of
the municipality in respect of a private road which is within the area of the
municipality and with the consent of the Minister in respect of any other
private road (neither consent to be unreasonably withheld or subject to
arbitration pursuant to Clause 49), dedicate any private road as a public road
whereupon the provisions of sub-clause (4) of this Clause shall apply to any
such road provided always that any such road meets the usual standards
prevailing in South Australia in respect of roads of a comparable nature at
the time of such dedication.
(9) Notwithstanding
the provisions of Clause 30 of this Indenture, the State may, after
consultation with the Joint Venturers, compulsorily acquire from
the Joint Venturers or any of them or an associated company such land as is
necessary to construct a public road across or over a private road owned by
the Joint Venturers or any of them or an associated company, provided always,
that any compensation payable in respect of any such acquisition shall include
any costs incurred by the Joint Venturers or any of them or an associated
company in constructing or otherwise providing for any necessary grade
separation.
15. AIRSTRIP AND RELATED FACILITIES
(1)
The Joint Venturers or any of them or an associated company may, and if
appropriate and the Minister so consents (which consent shall not be
unreasonably withheld), in conjunction with the municipality, construct or
cause to be constructed a sealed airstrip and related facilities to facilitate
their operations.
(2) At the request of
the Joint Venturers made at any time after the giving of a Project Notice in
respect of the Initial Project the State shall grant (or procure the grant) to
the Joint Venturers or such of them as they may nominate to the Minister or to
an associated company or to the municipality as they may nominate to the
Minister at no cost to the Joint Venturers other than as provided in Clause 31
the fee simple estate of the land delineated as the airstrip and related
facilities as agreed by the Joint Venturers and the Minister and shall grant
(or procure the grant of) at no cost to the relevant Joint Venturers,
associated company or the municipality any easements and rights which the
relevant Joint Venturers may reasonably request for the full enjoyment of the
said land for the purpose of the construction, maintenance and operation of
the aforesaid airstrip and related facilities. The grant of the fee simple
estate as aforesaid shall be made free and clear of all easements of
whatsoever nature or kind other than as may have been previously advised in
writing to the Joint Venturers by the State and expressly agreed by
the Joint Venturers or as shall have been requested of the State by
the Joint Venturers and shall be made free and clear of all liens, charges and
encumbrances.
(3) The relevant Joint
Venturers shall as and when required by the State surrender or cause to be
surrendered to the State (which surrender shall be accepted) that part or
parts of any exploration licences, retention leases, miscellaneous purposes
licences, extractive minerals leases or other tenements whatsoever (if any) as
shall be necessary to enable the State to comply with its obligations under
sub-clause (2) of this Clause.
(1)
The Joint Venturers shall consult with the appropriate authorities for the
provision maintenance and operation of such railways sidings, shunting loops,
spurs and other connections as are required for their operations and the
provision and maintenance of loading and unloading facilities sufficient to
meet train operating requirements and terminal equipment (including weighing
devices and communications systems) together with a staff adequate to ensure
the proper operation thereof and when appropriate and from time to time shall
inform the State of their anticipated railway requirements.
(2) At the request of
the Joint Venturers made at any time after the giving of a Project Notice in
respect of the Initial Project the State in respect of any land owned by it or
resumed pursuant to Clause 31 shall grant to the Joint Venturers or such of
them as they may nominate to the Minister or to an associated company or third
party as they may nominate to the Minister (or procure the grant of) or assist
the relevant Joint Venturers or associated company or such third party to
obtain at no cost to the Joint Venturers other than as provided in Clause 31
such fee simple estates in land and leases licences easements and rights free
of any liens charges or other encumbrances which the relevant Joint Venturers
may reasonably require for their operations as contemplated by sub-clause (1)
of this Clause.
(3) In the event that
any rate, charge, levy or impost is or becomes payable by the Joint Venturers
or any of them or by an associated company to the State for or in connection
with the provision, availability or use of all or any of the things referred
to in sub-clause (1) of this Clause, the State will ensure that any such rate,
charge, levy or impost is calculated on the same basis as that payable by
other users generally of such services and includes all allowances, discounts
and subsidies as may from time to time be granted or given to such other
users.
(1)
The Joint Venturers shall from time to time review with the Minister the
technical, logistical and economic feasibility of using existing ports and
facilities within South Australia for the purposes of the Initial or any
Subsequent Project.
(2) If
the Joint Venturers or any of them determine to utilize the facilities of a
port or ports within the State for the purposes of their operations the
relevant Joint Venturers, subject to sub-clause (5) of this Clause and in the
manner agreed by the Joint Venturers and the Minister shall provide any
additional facilities required at such port or ports to facilitate conduct of
their operations.
(3) The relevant Joint
Venturers, as an alternative to sub-clause (2) of this Clause, may agree with
third parties already operating at the relevant port or ports upon a basis of
sharing, at no cost to the State, port facilities already provided by others.
(4) The relevant Joint
Venturers shall, in respect of the use by them of a State owned port, pay to
the relevant port authorities all charges properly and lawfully levied by such
authorities from time to time and the State shall ensure that such charges are
levied on a non-discriminatory basis compared with charges levied by the State
on all other importers and exporters within South Australia.
(5) At the request of
the Joint Venturers made at any time after the giving of a Project Notice in
respect of the Initial Project the State in respect of any land owned by it or
resumed pursuant to Clause 31 shall grant to the Joint Venturers or such of
them as they may nominate to the Minister or to an associated company as they
may nominate to the Minister (or procure the grant of) or assist the relevant
Joint Venturers or associated company to obtain at no cost to the relevant
Joint Venturers other than as provided in Clause 31 such leases licences
easements and rights free of any liens charges or other encumbrances which
the Joint Venturers may reasonably require for the performance of the relevant
Joint Venturers' obligations under sub-clause (2) of this Clause.
(6) Notwithstanding
the other provisions of this Clause the Joint Venturers or any of them and the
State may enter into an agreement whereby additional facilities are provided
by and at the cost of the State in consideration of the relevant Joint
Venturers agreeing to pay special rates for the use of those facilities.
(1) Commencing on the
1st day of January, 1983, and at yearly intervals thereafter,
the Joint Venturers shall provide the Minister and The Electricity Trust of
South Australia (hereinafter called "the Trust") with a ten year schedule of
their best estimates of the monthly electricity requirements (including peak
load conditions) in respect of:—
(a) the minesite
(hereinafter called "the mine power requirements"); and
(b) the townsite
(hereinafter called "the town power requirements")
and the desired source that is to say either from the Trust or otherwise and
the transmission voltage of such requirements.
The Joint Venturers and the Minister may from time to time agree such other
amount or amounts as is or are reasonable to be the mine and town power
requirements or source or transmission voltage thereof and the said schedule
shall be varied accordingly. A failure of the Joint Venturers and the Minister
so to agree shall not be arbitrable and the schedule as provided by the Joint
Venturers shall continue to apply.
(2) Notwithstanding
the provisions of sub-clause (1) of this Clause, the Trust's obligations under
this Indenture with regard to the supply of quantities of electricity shall
not exceed those hereinafter appearing.
(3) The relevant Joint
Venturers may not more frequently than at three yearly intervals give notice
to the Minister and the Trust of their electricity requirements and the Trust
shall supply and the State shall procure the supply of such electricity
requirements within three years of the giving of such notice. The first such
notice may be for a quantity of electricity of up to 30 megawatts and may be
given at any time after the 30th day of December, 1982. Any and each
subsequent notice may be for an additional quantity of electricity of up to 40
megawatts provided that the Trust shall not be required to supply a total
quantity to the relevant Joint Venturers exceeding 150 megawatts.
The Trust shall use its best endeavours to supply the relevant Joint
Venturers' additional electricity requirements from time to time not the
subject of any notice under this sub-clause (3).
(3A) —
(a)
(i)
Paragraph (c) of this subclause (3A) shall operate
subject to and only impose or create obligations on the State or the Trust in
the following manner:
(1) to the extent that
paragraph (c) is not unlawful, invalid, unenforceable, illegal or void, is
voidable and avoided or is otherwise contrary to the
Competition Policy Reform (South Australia) Act, 1996, the Competition
Code or any other law or regulation, howsoever applying or in force pursuant
thereto or otherwise, in relation to the establishment, implementation,
operation or enforcement of national competition policy as envisaged by that
legislation or the Conduct Code Agreement referred to in the
Competition Policy Reform (South Australia) Act, 1996, irrespective of
when any such law or regulation is enacted;
(2) for so long as,
and to the extent that, a Minister of the State may control and direct the
Trust but not so as to affect the existence, performance or validity of any
agreement actually entered into pursuant to paragraph (c) when the Minister
could control and direct the Trust;
(3) the obligations in
paragraph (c) shall not exist or have any force or effect if any of the
following events occur or states of affairs subsist:
(A) the State's or the Trust's agreement to
this subclause prevents, reduces, delays, adversely affects or derogates from
the Commonwealth's obligations to make any payment to the State or the State's
rights to receive any such payments in relation to the establishment,
implementation or operation either of the national electricity market or of
national competition policy pursuant to the Agreement to Implement the
National Competition Policy and Related Reforms dated 11 April 1995 made
between the Commonwealth and each of the States and Territories, to any other
agreement amending or replacing that Agreement or to any law or regulation
applicable to any such payment enacted or promulgated respectively after the
date of that Agreement;
(B) a national electricity market is
operating in South Australia such that the following conditions are satisfied:
(I) the provisions contained in Parts 2, 3
and 4 of the National Electricity (South Australia) Act, 1996 come into
operation in South Australia and substantially similar legislation to those
Parts of that Act come into operation in each of New South Wales and Victoria;
(II) the National
Electricity (South Australia) Law set out in the Schedule to the
National Electricity (South Australia) Act, 1996 comes into operation in
South Australia and substantially similar legislation comes into operation in
each of New South Wales and Victoria;
(III) the National
Electricity Code (defined as the "Code" in the National Electricity (South
Australia) Law) comes into operation in each of South Australia, New South
Wales and Victoria;
(IV) there are at
least four (4) persons who are registered, pursuant to the said National
Electricity Code, to sell and supply electricity to contestable customers of
electricity and who are legally permitted and able to supply to
the Joint Venturers at Olympic Dam the quantity of electricity required by
the Joint Venturers pursuant to subclauses (3) and (3A);
(V) at least three (3) of those persons are
not individually:
(i)
ultimately controlled or owned by the State or the Trust;
(ii)
able to be directed by the State or the Trust; or
(iii)
statutory corporations established in South Australia;
and
(VI) customers or
consumers of electricity who have a projected electricity capacity requirement
or actual electricity capacity of at least five (5) megawatts are contestable;
or
(C) a competitive state electricity market
is operating such that the following conditions are satisfied:
(I) legislation comes into operation in
South Australia permitting persons to be licensed to sell and supply
electricity to contestable customers;
(II) there are at
least four (4) persons who are licensed, pursuant to that legislation, to sell
and supply electricity to contestable customers of electricity and who are
legally permitted and able to supply to the Joint Venturers at Olympic Dam the
quantity of electricity required by the Joint Venturers pursuant to subclauses
(3) and (3A);
(III) at least three
of those persons are not individually:
(i)
ultimately controlled or owned by the State or the Trust;
(ii)
able to be directed by the State or the Trust; or
(iii)
statutory corporations established in South Australia;
and
(IV) customers or
consumers of electricity who have a projected electricity capacity requirement
or actual electricity capacity of at least five (5) megawatts are contestable.
(b) If any of the
provisions of paragraph (c) of this subclause (3A) is unlawful, invalid,
unenforceable, illegal or void, is voidable and avoided or is otherwise
contrary to the provisions of any law or regulation referred to in
subparagraph (a) (i)(1) above, then the obligations in paragraph (c)
shall not exist or create or impose obligations on the State or the Trust to
the extent that the existence or performance of any such provision has any
such relevant effect or consequence.
(c) Subject to
paragraphs (a) and (b) , if and only if the relevant Joint Venturers have
requested and the Trust either is supplying to the relevant Joint Venturers a
total quantity of electricity of at least 120 megawatts or is in breach of an
unconditional obligation to supply a total quantity of electricity of at least
120 megawatts, then the following provisions shall apply. Otherwise they shall
not have any force or effect.
(i)
The relevant Joint Venturers may, not more frequently
than at three yearly intervals (or such shorter period agreed to by the
Minister, any failure to agree shall not be arbitrable), give notice to the
Minister and the Trust of their electricity requirements.
(ii)
The Trust shall supply such electricity requirements
within three years of the giving of such notice.
(iii)
The first such notice may be for a quantity of
electricity of up to 80 megawatts and may be given at any time after this
subclause has effect.
(iv)
Any and each subsequent notice may be for an additional
quantity of electricity of up to 80 megawatts provided that the Trust shall
not be required to supply to the relevant Joint Venturers a total quantity of
electricity, pursuant to the combined operation of subclauses (3) and (3A), in
excess of 250 megawatts.
(v)
The Joint Venturers shall enter into a detailed agreement
with the Trust relating to the conditions of the supply of electricity by the
Trust to the Joint Venturers pursuant to this subclause, and the tariffs to be
payable by the Joint Venturers to the Trust therefor. The terms and conditions
of any such detailed agreement shall be such as may be agreed between the
Trust and the Joint Venturers, or, in the absence of agreement in relation to
any relevant matter or thing, then consistent with the provisions of the most
recent electricity supply agreement entered into between the Trust and
the Joint Venturers, as at the relevant date, for the supply of electricity by
the Trust to the Joint Venturers.
(vi)
The said agreement shall operate for such initial period
and may contain such rights of renewal or extension as the Trust and the
relevant Joint Venturers may agree.
(vii)
The Joint Venturers shall, in accordance with the
provisions of the said agreement, pay to the Trust the tariffs set out in the
agreement for all power supplied by the Trust pursuant to the said agreement.
The tariffs shall be determined by the Trust on the following basis:
(1) there be no
subsidy provided (either directly or indirectly) by either the State, the
Trust or other consumers with respect to the supply of electricity to
the Joint Venturers;
(2)
the Joint Venturers shall pay the actual cost incurred by the Trust in
supplying electricity to them, and shall not be required to subsidize the
supply of electricity, by the Trust, to other consumers; and
(3) the actual cost
incurred by the Trust in supplying electricity will be calculated with
appropriate allocation of costs (or on such other basis as the parties may
agree) having regard to (but not limited to):
• the degree to
which transmission (including transformation) costs (if any) are borne by
the Joint Venturers;
• the degree to
which the electricity load supplied to the Joint Venturers is expected to be
interruptable;
• the peak and
base loads of the Joint Venturers requirements;
• statutory
contributions, rates, taxes and other charges payable by the Trust to the
State or any local government or statutory authority on a non-discriminatory
basis; and
• the need for
the Trust to service borrowings, to make reasonable provision for depreciation
and replacement of plant and any return on capital invested.
(viii)
If the relevant Joint Venturers do not accept the tariffs
as determined by the Trust pursuant to subparagraph (vii), then the amount of
the tariffs shall be referred to an independent expert for determination
pursuant to this Indenture. The independent expert shall have regard to the
principles specified in subparagraph (vii).
(ix)
The State guarantees compliance by the Trust with such of
the provisions of this subclause 18(3A) as apply to the Trust and with the
provisions of any detailed agreement entered into pursuant to subparagraph
18(3A) (c) (v) relating or incidental to the supply of electricity by the
Trust including any amendments to or any substitutions for any such detailed
agreement which have the prior approval of the Minister.
(d) A reference to the
"Trust" in this subclause means and shall be construed as a reference to one
of the following corporations:
(i)
whichever is appropriate of ETSA Corporation or ETSA
Power; or
(ii)
such other electricity corporation, for the purpose of
the Electricity Corporations Act, 1994, to whom the ETSA Corporation's or
ETSA Power's (as the case may be) obligations contained in paragraph (c) may
be transferred pursuant to clause 4, Part B of Schedule 3 to that Act,
and includes the successors or assignees of any such corporation.
(4) The participating
Joint Venturers for the Initial Project may in their discretion at any time
construct switching yard facilities at a location designated by them after
consultation with the State (which switching yard facilities are in this
Clause 18 referred to as "the Switching Facilities"). The Switching Facilities
shall be and remain the property of the relevant Joint Venturers and may be
constructed in several stages and shall be such as to ensure that the mine and
town power requirements can be supplied through such spur or feeder lines as
may be appropriate.
(5) The State shall,
if so requested by the Joint Venturers, use its best endeavours to acquire,
from the Commonwealth, ownership and control of the power line running from
Port Augusta to Woomera. If the State, at the request of the Joint Venturers,
acquires ownership and control of the said power line on conditions acceptable
to the Joint Venturers, the relevant Joint Venturers shall reimburse to the
State any costs incurred by the State in so doing as a contribution towards
the cost of providing power for the Initial Project, and the State shall vest
the said power line in, or cause the said power line to be operated and
controlled by, the Trust.
The Joint Venturers acknowledge that the maximum capacity of the said power
line is 40 megawatts and that the maximum amount of electricity which can be
transmitted to the Joint Venturers over the said power line at any time is the
difference between the said maximum capacity and the amount of electricity
supplied to the Commonwealth from time to time. Nothing in this Clause 18
shall entitle the Joint Venturers to demand from the State or to have
exclusive use of the said power line for transmission of electricity for
the Joint Venturers' purposes.
(6) If pursuant to a
request of the Joint Venturers under sub-clause (5) of this Clause the State
has acquired ownership and control of the power line running from Port Augusta
to Woomera the participating Joint Venturers for the Initial Project shall at
their cost commence and proceed with the construction of a 132 000 volts
(or such other voltage as may be appropriate) power line from Woomera to
Olympic Dam as an extension of the Port Augusta to Woomera power line (which
power line from Port Augusta as extended is in this Clause 18 referred to as
"the Power Line") the route of which shall be subject to all applicable
environmental procedures and approvals.
(7) Period of Supply
—The period of supply of electricity under this clause shall commence on
the day on which the Trust commences to supply electricity and shall continue
until determined by the relevant Joint Venturers by at least seven years (or
such lesser period as shall be agreed and failure to so agree shall not be
arbitrable) written notice given by the relevant Joint Venturers to the Trust
and the Minister at any time.
(8)
The Joint Venturers, or any of them, shall have the right to construct, at any
time, an additional power line and appurtenant works from the Davenport
Substation near Port Augusta to Olympic Dam or to Woomera as the Joint
Venturers may require (which additional power line is in this Clause 18
referred to as "the Additional Power Line") capable of transmitting to the
Switching Facilities a sufficient supply of electricity to satisfy that part
(if any) of the mine and town power requirements appropriate to a level of
production at the minesite of 350 000 tonnes per annum of contained
copper in saleable Product, saleable Non-minesite Product and associated
by-products which is not provided from some other source. The timing of the
construction of the Additional Power Line shall be in the discretion of
the Joint Venturers and the route thereof shall be subject to generally
applicable environmental procedures and approvals.
(9) If either the
power line from Woomera to Olympic Dam referred to in sub-clause (6) of this
Clause or the Additional Power Line is constructed by the Joint Venturers, or
any of them, such power line or Additional Power Line shall be and remain the
property of the relevant Joint Venturers who shall, at their cost, operate and
maintain the same. The relevant Joint Venturers may enter into contracts with
a third party (including the State) for the performance of their obligations
under this sub-clause (9).
(10) Joint Venturers'
Rights —The Joint Venturers, or any of them or an associated company,
shall have the right to install and operate or cause to be installed and
operated, without cost to the State, at an appropriate location equipment and
plant to generate, transmit and reticulate electricity for the purposes of
their operations.
(11) At the request of
the Joint Venturers the State, in respect of land owned by it or resumed
pursuant to Clause 31, shall grant to the Joint Venturers, or such of them as
they may nominate to the Minister or to an associated company as they may
nominate to the Minister, or procure the grant of or assist the relevant Joint
Venturers or associated company to obtain, at no cost to them, other than as
provided in Clause 31, such fee simple estates in land and leases, licences,
easements and other rights free of any liens, charges or encumbrances which
the Joint Venturers may reasonably require for the exercise of their rights
and obligations under this Clause.
(12) Preservation of
Joint Venturers' Power Requirements —Subject to sub-clause (13) of this
Clause 18, the Joint Venturers shall not be obliged to supply or cause to be
supplied electricity through the power line constructed by the Joint Venturers
pursuant to sub-clause (6) of this Clause or through the Additional Power Line
for other than the Joint Venturers' operations.
(13) Subject to the
provisions of this Indenture (and in particular sub-clauses (11) and (17) of
this Clause), the supply of electricity to the authority charged with the
supply thereof within the town (which shall be the municipality or such other
authority as the Joint Venturers and the Minister may agree and which is
hereinafter in this Clause 18 referred to as "the power distribution
authority") shall be the obligation of the relevant Joint Venturers which
obligation shall commence upon completion of the necessary works and shall be
discharged by supply to such authority at the outgoing side of a three phase
set of insulators attached to a slack span connected between the first tower
in the relevant spur or feeder line and the Switching Facilities.
(14) Electricity
Charges, Terms and Conditions —
(a) Subject as
hereinbefore provided the Joint Venturers shall enter into a detailed
agreement consistent with the terms of this Indenture and the Seventh Schedule
hereof with the Trust relating to the conditions of the supply of electricity
by the Trust to the Joint Venturers, and the tariffs to be payable by
the Joint Venturers to the Trust therefor.
(b)
The Joint Venturers shall confer with the Minister concerning the terms and
conditions of the agreement referred to in paragraph (a) of this sub-clause
prior to the execution thereof, and shall consider such representation as the
Minister may make with respect thereto.
(c)
The Joint Venturers shall, in accordance with the provisions of the said
agreement, pay to the Trust the tariffs set out in the agreement for all power
supplied by the Trust through the Additional Power Line (if constructed)
referred to in sub-clause (8) of this Clause. The tariffs shall comprise both
a demand charge and an energy charge and shall be determined by the Trust on
the following basis:
(i)
there be no subsidy provided (either directly or
indirectly) by either the State, the Trust or other consumers with respect to
the supply of electricity (or the production thereof) to the Joint Venturers,
(ii)
the Joint Venturers shall pay the actual cost incurred by
the Trust in producing and supplying electricity to them, and shall not be
required to subsidise the supply of electricity, by the Trust, to other
consumers, and
(iii)
the actual cost incurred by the Trust in producing and
supplying electricity will be calculated on a total system basis with
appropriate allocation of costs (or on such other basis as the parties may
agree) having regard to (but not limited to):
• the degree to
which transmission (including transformation) costs (if any) are borne by
the Joint Venturers
• the degree to
which the electricity load supplied to the Joint Venturers is expected to be
interruptable
• the peak and
base loads of the Joint Venturers requirements
• statutory
contributions, rates, taxes and other charges payable by the Trust to the
State or any local government or statutory authority on a non-discriminatory
basis, and
• the need for
the Trust to service borrowings, to make reasonable provision for depreciation
and replacement of plant and any return on capital invested.
(d) The tariff set out
in the said agreement shall apply, subject to the provisions of paragraph (f)
of this sub-clause, for a period of five years from the execution of the said
agreement.
(e) The tariffs shall
be further agreed between the Joint Venturers and the Trust at the end of the
five year period referred to in paragraph (d) of this sub-clause, shall be
calculated in accordance with the provisions referred to in paragraph (c)
hereof, and shall thereafter be agreed in a like manner at intervals of five
years.
(f) The terms of the
said agreement shall permit the Trust, at any time during any five year period
referred to in paragraphs (d) and (e) of this sub-clause, to increase the
tariffs charged to the Joint Venturers in accordance with the following
principles:
(i)
the tariffs shall be increased only as part of and at the
same time as the Trust reviews and increases the tariffs charged to other
consumers of electricity supplied by it, and
(ii)
the rate of increase of the tariffs shall not exceed the
overall rate of increase (assessed on a weighted average of actual tariff
usage basis) of all other tariffs charged by the Trust to other consumers,
namely tariffs J, K, M, P, R, S and W, and any tariffs in addition to or in
substitution for such tariffs.
(g) The terms of the
agreement shall provide that if the Joint Venturers do not accept the tariffs,
as determined by the Trust, to apply at the commencement of each five year
period as referred to in paragraphs (d) and (e) of this sub-clause, the
tariffs for that five year period shall be determined by an independent
expert. The person appointed as the independent expert shall be agreed between
the Trust and the Joint Venturers or, in default of agreement, shall be
appointed by the President of the Institution of Engineers, Australia and in
making a determination shall have regard to the principles in paragraph (c) of
this subclause. Until any determination is made by the independent expert
appointed pursuant to this sub-clause the tariff so determined by the Trust
shall continue to apply and following such determination the tariff determined
by the independent expert shall apply from the beginning of the relevant five
year period.
(h) The State
guarantees compliance by the Trust with the provisions of the Seventh Schedule
hereof and with such of the provisions of this Clause 18 as apply to the
Trust, and with the detailed agreement to be entered into pursuant to
paragraph (a) of this sub-clause and any amendments thereto or substitutions
therefor which have the prior approval of the Minister.
(15)
The Joint Venturers shall, for all power supplied to them through the power
line running from Port Augusta to Woomera, pay to the Trust the charges
therefor calculated in accordance with and based on the applicable standard
tariff charged, from time to time, by the Trust.
(16) The State shall
procure the power distribution authority, in respect of electricity supplied
by such authority to consumers within the town, to charge tariffs which shall
not exceed the relevant tariffs from time to time generally charged to
consumers of the same class within the metropolitan area of Adelaide plus ten
per centum (10%).
(17) —
(a)
The Joint Venturers shall in respect of electricity supplied by them to the
power distribution authority pursuant to sub-clause (13) of this Clause,
charge a rate which will be assessed on the following principles:—
(i)
the power distribution authority shall run at neither a
profit nor a loss, provided, however, that nothing herein shall be construed
as preventing the power distribution authority from making reasonable
financial provision to meet the costs of future maintenance or replacement,
(ii)
the power distribution authority shall properly maintain
and service its plant and equipment, and shall be properly able to administer
its undertaking and provide electricity in accordance with the terms of this
Clause, and
(iii)
the rate charged shall be such that the power
distribution authority will be able to supply electricity to consumers at the
tariffs specified in sub-clause (16) of this Clause.
(b) In the event that
the relevant Joint Venturers provide the town power requirements from more
than one source they shall install, maintain and operate such meters and other
equipment as may be necessary.
(c) The relevant Joint
Venturers, in respect of the quarters ending on the last days of March, June,
September and December (or such other periods, having regard to the accounting
practices of the relevant Joint Venturers or of any manager appointed pursuant
to sub-clause (2) of Clause 54, as may from time to time be agreed by the
Minister and the Joint Venturers), shall forward to the power distribution
authority an account for electricity supplied to it during each quarter (or
other period) pursuant to sub-clause (13) of this Clause and such account
shall be paid by the power distribution authority within thirty days from
receipt thereof.
(18) The right of the
relevant Joint Venturers to construct the Switching Facilities pursuant to
sub-clause (4) of this Clause and the obligation to supply electricity to the
power distribution authority pursuant to sub-clause (13) of this Clause shall,
in respect of the town power requirements, be limited to ensure the supply of
such requirements as is appropriate to the scale of the Joint Venturers'
operations from time to time with a maximum obligation appropriate to a level
of production at the minesite of 350 000 tonnes per annum of contained
copper in saleable Product, saleable Non-minesite Product and associated
by-products.
(19) The State shall
ensure that those electricity consumers within the town who are employees of
or are employed or retained by the Joint Venturers or any of them or an
associated company or who or which are located in the town for the purposes of
providing services (including any public or municipal services) assistance or
facilities to such employees or retainees are and continue to be supplied with
electricity which is delivered to the power distribution authority by
the Joint Venturers or any of them pursuant to this Indenture, in priority to
any other electricity consumers within the town.
(20) In performing
their obligations under this Clause the relevant Joint Venturers shall observe
standards normally adopted by the Trust.
(21) At the request of
either the Trust or the Joint Venturers or any of them to the other, the
relevant Joint Venturers and the Trust shall enter into negotiations regarding
the transmission of electricity generated and owned by either the Trust or the
relevant Joint Venturers over transmission lines situate anywhere in the State
of South Australia owned or operated by either the Trust or the relevant Joint
Venturers. Any failure to so agree as a consequence of such negotiations shall
not be arbitrable.
(21A) —
(a) —
(i)
Paragraph (c) of this subclause (21A) shall operate
subject to and only impose or create obligations on the State or the Trust in
the following manner:
(1) to the extent that
paragraph (c) is not unlawful, invalid, unenforceable, illegal or void, is
voidable and avoided or is otherwise contrary to the
Competition Policy Reform (South Australia) Act, 1996, the Competition
Code or any other law or regulation, howsoever applying or in force pursuant
thereto or otherwise, in relation to the establishment, implementation,
operation or enforcement of national competition policy as envisaged by that
legislation or the Conduct Code Agreement referred to in the
Competition Policy Reform (South Australia) Act, 1996, irrespective of
when any such law or regulation is enacted;
(2) for so long as,
and to the extent that, a Minister of the State may control and direct the
Trust but not so as to affect the existence, performance or validity of any
agreement actually entered into pursuant to paragraph (c) when the Minister
could control the Trust; or
(3) the obligations in
paragraph (c) shall not exist or have any force or effect if any of the
following events occur or states of affairs subsist:
(A) the State's or the Trust's agreement to
this subclause prevents, reduces, delays or adversely affects or derogates
from the Commonwealth's obligations to make any payment to the State or the
State's rights to receive any such payments in relation to the establishment,
implementation or operation either of the national electricity market or of
national competition policy pursuant to the Agreement to Implement the
National Competition Policy and Related Reforms dated 11 April 1995 made
between the Commonwealth and each of the States and Territories, to any
agreement amending or replacing that Agreement or to any law or regulation
applicable to any such payment enacted or promulgated respectively after that
date of that Agreement;
(B) third party access to and pricing for
such access to the Trust's transmission or distribution system is regulated by
law; or
(C) a national electricity market is
operating in South Australia such that the following conditions are satisfied:
(I) the provisions contained in Parts 2, 3
and 4 of the National Electricity (South Australia) Act, 1996 come into
operation in South Australia and substantially similar legislation to those
Parts of that Act come into operation in each of New South Wales and Victoria;
(II) the National
Electricity (South Australia) Law set out in the Schedule to the
National Electricity (South Australia) Act, 1996 comes into operation in
South Australia and substantially similar legislation comes into operation in
each of New South Wales and Victoria;
(III) the National
Electricity Code (defined as the "Code" in the National Electricity (South
Australia) Law) comes into operation in each of South Australia, New South
Wales and Victoria;
(IV) there are at
least four (4) persons who are registered, pursuant to the said National
Electricity Code, to sell and supply electricity to contestable customers of
electricity and who are legally permitted and able to supply to
the Joint Venturers at Olympic Dam the quantity of electricity required by
the Joint Venturers pursuant to subclauses (3) and (3A);
(V) at least three (3) of those persons are
not individually:
(i)
ultimately controlled or owned by the State or the Trust;
(ii)
able to be directed by the State or the Trust; or
(iii)
statutory corporations in South Australia; and
(VI) customers or
consumers of electricity who have a projected electricity capacity requirement
or actual electricity capacity of at least five (5) megawatts are contestable;
or
(D) a competitive state electricity market
is operating such that the following conditions are satisfied:
(I) legislation comes into operation in
South Australia permitting persons to be licensed to sell and supply
electricity to contestable customers;
(II) there are at
least four (4) persons who are licensed, pursuant to that legislation, to sell
and supply electricity to contestable customers of electricity and who are
legally permitted and able to supply to the Joint Venturers at Olympic Dam the
quantity of electricity required by the Joint Venturers pursuant to subclauses
(3) and (3A);
(III) at least three
of those persons are not individually:
(i)
ultimately controlled or owned by the State or the Trust;
(ii)
able to be directed by the State or the Trust; or
(iii)
statutory corporations in South Australia; and
(IV) customers or
consumers of electricity who have a projected electricity capacity requirement
or actual electricity capacity of at least five (5) megawatts are contestable.
(b) If any of the
provisions of paragraph (c) of this subclause (21A) is unlawful, invalid,
unenforceable, illegal or void, is voidable and avoided or is otherwise
contrary to the provisions of any law or regulation referred to in
subparagraph (a) (i)(1) above, then the obligations in paragraph (c)
shall not exist or create or impose obligations on the State or the Trust to
the extent that the existence or performance of such provisions would have any
such relevant effect or consequence.
(c) Subject to
paragraphs (a) , (b) and (d) , the Trust shall provide access to and the use
of the Trust's transmission or distribution system (as defined in Schedule 4
of the Electricity Corporations Act, 1994) to enable the relevant Joint
Venturers to contribute to such system electricity generated and owned by the
relevant Joint Venturers on such terms and conditions, if any, as may be
agreed by the Joint Venturers and the Trust pursuant to paragraph (d) .
(d) The Trust's
obligation pursuant to paragraph (c) shall be subject to and conditional upon
the Trust and the relevant Joint Venturers entering into a detailed agreement
on an arm's length and commercial basis for access to and the use of the
Trust's transmission and distribution system and which may deal with such
matters as a party to that agreement may consider relevant.
(e) The parties shall
act reasonably and in good faith in negotiating any agreement referred to in
paragraph (d) .
(f)
The Joint Venturers shall pay a fee to the Trust for making available access
to and use of the Trust's transmission and distribution system. The amount of
the fee shall be agreed on an arm's length and commercial basis between
the Joint Venturers and the Trust.
(g) If the Trust and
the relevant Joint Venturers are unable to agree upon the fee payable by the
relevant Joint Venturers to the Trust for access to and the use of the Trust's
transmission and distribution system within 180 days, then the matter shall be
referred to an independent expert for determination pursuant to this
Indenture. The independent expert, in making a determination, may have regard
to such matters as the Trust or any relevant Joint Venturer may request that
the independent expert consider, with the weight and in such manner as the
independent expert considers appropriate, or any other matter which the
independent expert considers relevant.
(h) A reference to the
"Trust" in this subclause means and shall be construed as a reference to one
of the following corporations:
(i)
whichever is appropriate of ETSA Corporation or ETSA
Transmission; or
(ii)
such other electricity corporation, for the purpose of
the Electricity Corporations Act, 1994, to whom the ETSA Corporation's or
ETSA Transmission's (as the case may be) obligations contained in paragraph
(c) may be transferred pursuant to clause 4, Part B of Schedule 3 to that Act,
and includes the successors or assignees of any such corporation.
(22)
The Joint Venturers and each of them or an associated company in any case as
nominated in writing from time to time by the Joint Venturers to the Minister
shall be deemed to be registered by the Trust as a supplier of electricity for
the purpose of the Electricity Act.
(1) Upon application
by or on behalf of the participating Joint Venturers for the Initial Project,
made to the Minister not later than 6 months after the Joint Venturers have
given a Project Notice in respect of the Initial Project for a Special Mining
Lease for all minerals over such of the Olympic Dam Area or the Selected Areas
and any additional area or areas as may be reasonably necessary for surface
facilities as those Joint Venturers shall specify, the State shall
(contemporaneously with the surrender, conditional on fulfilment by the State
of its obligation pursuant to this sub-clause (1), by such of the
Joint Venturers as is appropriate of such exploration licences retention
leases miscellaneous purposes licences extractive minerals leases or other
tenements whatsoever as are inconsistent with the grant of a Special Mining
Lease (which surrender shall be accepted by the Mines Minister) held by them
or any of them or on their behalf or on behalf of any of them at the date of
the said application in or over the area specified in the application for a
Special Mining Lease) cause to be granted to the participating Joint Venturers
for the Initial Project or to such of them as they may nominate to the
Minister or to an associated company as they may nominate to the Minister at
the rental specified in sub-clause (5) of this Clause a Special Mining Lease
over such land 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 at those participating Joint Venturers' expense).
The property in minerals contained in the land the subject of any Special
Mining Lease shall pass to the holders of such Special Mining Lease at the
time the mineralised rock is brought to the surface notwithstanding that
royalties in respect of the minerals contained therein shall not have then
been paid.
(2) —
(a) Subject to the
performance by the Joint Venturers of their respective obligations under this
Indenture and to the performance by the holders thereof of their obligations
under the Special Mining Lease granted in accordance with sub-clause (1) of
this Clause, the term of such Special Mining Lease shall be for a period of
fifty years with effect from the date of receipt of the application therefor.
(b) During the eighth
last year of the initial or any extended period of the Special Mining Lease
granted in accordance with sub-clause (1) of this Clause the holders of such
Special Mining Lease shall calculate the expected life of the mine or mines
within such Special Mining Lease on the basis of then measured, indicated and
inferred reserves and then current and proposed production rates. If the
expected life of such mine or mines is—
(i)
greater than forty years, the Special Mining Lease, at
the expiration of the then current period thereof, shall be automatically
extended for a further period of fifty years; or
(ii)
less than forty years, the Special Mining Lease at the
expiration of the then current period thereof, shall be automatically extended
for the period of such expected life plus ten years,
unless, in either case, the holders thereof, by notice given to the Minister
not less than one year prior to the expiry of such initial or extended period,
advise that they do not require the said Special Mining Lease to be so
extended.
(c) The conditions to
apply during any extended period of the Special Mining Lease granted in
accordance with sub-clause (1) of this Clause (other than conditions relating
to the term, rent and royalty rate) may be reviewed by the Minister at the
commencement of each extended period and the Minister subject to Clause 34 may
impose such reasonable additional conditions or variations to the existing
conditions to apply during such extended period for, without limitation, the
purpose of preventing or reducing adverse effects upon the environment of the
lands the subject of such Special Mining Lease provided always that if the
holders of such Special Mining Lease consider any such condition other than a
condition relating to safety to be unreasonable or objectionable they may
refer the question to arbitration pursuant to Clause 49 within sixty days of
receipt of advice from the Minister of such condition. Any condition imposed
by the Minister under this subclause may at any time be cancelled by him and
any reference pursuant to this sub-clause to arbitration shall not affect the
continuance or continuity of the Special Mining Lease.
(3) Conversion of
Special Exploration Licence to Special Mining Lease -The holders for the time
being of a Special Exploration Licence may, not later than 6 months after
the Joint Venturers have, pursuant to Clause 6 or Clause 9 as the case may be,
given a Project Notice in respect of the Initial Project or a Subsequent
Project, apply to the Minister for a Special Mining Lease for all minerals
over the whole or part of the area of a Special Exploration Licence in respect
of that Project Notice and any additional area or areas as may be reasonably
necessary for surface facilities as may be specified in the said application.
The State shall (contemporaneously with the surrender, conditional on
fulfilment by the State of its obligation under this sub-clause (3), of the
whole or part (as the case may require) of the Special Exploration Licence
(which surrender shall be accepted by the State)) cause to be granted to
the Joint Venturers or such of them as they may nominate to the Minister or to
an associated company as they may nominate to the Minister a Special Mining
Lease over the land specified in the application (notwithstanding that the
survey in respect thereof has not been completed but subject to such
corrections to accord with the survey when completed at the relevant Joint
Venturers' expense).
(4) Incorporation of
Lands in Special Mining Lease —If an application is made under
sub-clause (3) of this Clause by or on behalf of the same Joint Venturers as
then have the benefit of another Special Mining Lease granted in accordance
with this Clause 19 the State shall, if so required by those Joint Venturers,
incorporate the lands the subject of the said application into that other
Special Mining Lease whether contiguous therewith or not and the State and the
relevant Joint Venturers shall ensure that the said Special Mining Lease is
modified as necessary to incorporate such lands as may be added as aforesaid.
(5) Special Mining
Lease Rent —The holders of a Special Mining Lease shall, subject to
Clause 34 of this Indenture, pay rent to the State for all that land the
subject thereof at the annual rate applicable to all mineral leases granted
under the Mining Act.
(6) Exclusive Rights
of Entry —Subject always to the ratifying Act the State shall ensure
that the holders of a Special Mining Lease and their agents, servants and
invitees shall have exclusive rights of entry upon and occupation of the lands
the subject thereof provided always that nothing shall prevent or hinder the
entry onto such lands by any employee of the State or any instrumentality
thereof for the purpose of discharging or carrying out any statutory duty or
acting in the proper course of his employment.
(7) The provisions of
this Clause shall apply, mutatis mutandis, to any Special Mining Leases
granted in accordance with sub-clause (3) of this Clause.
(8) The State shall
ensure that, during the currency of this Indenture and subject to compliance
with the terms and conditions set out in a Special Mining Lease, the holders
of a Special Mining Lease shall not be required, with respect to that Special
Mining Lease, to comply with the labour conditions and/or expenditure
conditions (if any) imposed by or under the Mining Act.
(9) State Use
—The State and the holders thereof may agree upon the use of any portion
of the lands comprised in a Special Mining Lease for provision of a public
utility crossing of the lands comprised in that Special Mining Lease
(including roads railways pipelines and transmission lines) provided that such
use does not conflict or interfere with the Joint Venturers' operations or the
rights granted under such Special Mining Lease.
(10) Substituted
Securities —Where the Joint Venturers or any of them whether before or
after the execution of this Indenture executes and has registered or recorded
in the Department of Mines and Energy or other relevant Department in the
State a mortgage charge or other encumbrance over their or its interest in a
mining lease exploration licence retention lease miscellaneous purposes
licence extractive minerals lease or other tenement and the land the subject
thereof on the surrender thereof becomes incorporated in a Special Exploration
Licence, or a Special Mining Lease then provided the consent of the mortgagee
chargee or other encumbrancee is first obtained the interest of the said Joint
Venturer in the Special Exploration Licence or Special Mining Lease (as the
case may be) shall notwithstanding the provisions of any Act and any rule of
law or equity to the contrary be deemed to be the subject of such mortgage
charge or other encumbrance as if the Special Exploration Licence or Special
Mining Lease (as the case may be) had been referred to in the mortgage charge
or other encumbrance. A memorandum of any such mortgages charges or other
encumbrances shall thereupon by force of this Indenture and the ratifying Act
be endorsed on the Special Exploration Licence or Special Mining Lease (as the
case may be) in the order in which they appeared registered or recorded
against an interest as aforesaid in any such surrendered tenement at the time
of its surrender.
(11)
The Joint Venturers or any of them or an associated company may, where
reasonably necessary for the purposes of carrying on their mining operations,
dewater or drain, either wholly or partially, any ore body or adjoining strata
and may (if appropriate) use such water for any purpose connected with such
mining operations.
(12) Any Special
Mining Lease issued pursuant to this Clause applying to the Andamooka Precious
Stones Field (as proclaimed at the date upon which this Indenture is signed
the area of which is specified in the Sixth Schedule hereto) shall be issued
subject to the rights pursuant to the Mining Act of opal miners (both present
and future) prospecting or mining in the said precious stones field, provided
however, that such rights shall not extend to a depth of more than fifty
metres below the surface of the earth.
(1) Subject to
subclause (2), both upon written application by or on behalf of
the Joint Venturers or any of them and upon the provision to the Minister of
the information or documents specified in subclause (2), the Minister shall
grant, pursuant to the Petroleum Act, 1940, a pipeline licence (the
"Pipeline Licence") to the relevant Joint Venturers or to such of them as they
may nominate to the Minister or to an associated company as they may nominate
to the Minister (the "Licensee") to construct and operate a petroleum pipeline
and tanks, machinery and appurtenances integral to the relevant pipeline which
is one of the following:
(a) an extension to
the Moomba-Adelaide pipeline (as defined in the
Natural Gas Authority Act, 1967) to Olympic Dam;
(b) a pipeline from
Moomba to Olympic Dam; or
(c) a pipeline to
Olympic Dam, approved by the Minister, along a route which is other than from
Moomba to Olympic Dam, which approval may be given or withheld, including
conditionally, in the Minister's absolute and unfettered discretion and such
that neither a failure to give approval nor the nature or imposition of any
conditions shall be arbitrable,
for the purpose of delivering petroleum to Olympic Dam. The conditions of the
Pipeline Licence shall be those specified in and otherwise consistent with
this Clause together with the rights, obligations and liabilities, to the
extent not expressly modified by this Clause, of the Minister and of a
licensee of a pipeline licence specified in the Petroleum Act, 1940.
(2) If the relevant
Joint Venturers apply for the Pipeline Licence in respect of a pipeline
referred to in subparagraph (1) (a) above, then the relevant Joint Venturers
shall, together with and when making an application for the grant of the
Pipeline Licence, provide to the Minister copies of any executed unconditional
(except for conditions relating to the construction of the pipeline, the
Pipeline Licence being granted, the Licensee obtaining any necessary estates
or interests in land to construct or operate the pipeline, conditions relating
to the performance of obligations of the State pursuant to the Indenture or
such other conditions which the Minister approves) and legally binding and
enforceable written contracts to the effect that the owner or operator of the
said Moomba-Adelaide pipeline or any other relevant person (other than the
Minister) agrees and consents to the construction and operation of the said
extension to that pipeline to Olympic Dam pursuant to and on the terms and
conditions specified in this Clause for the term (including any renewals
thereof) of the Pipeline Licence specified in this Clause.
(3) Prior to applying
for the grant of the Pipeline Licence pursuant to subclause (1), the relevant
Joint Venturers shall, by written notice, provide to the Minister the
following:
(a) the information or
documents specified in or which may be required pursuant to section 80E of the
Petroleum Act, 1940;
(b) such information
or documents as the Minister may reasonably require in relation to design,
manufacture, construction, operation, maintenance or testing of the said
pipeline;
(c) such information
or documents as the Minister may reasonably require in relation to any
environmental or safety matters relevant to the design, construction,
operation, maintenance or testing of the said pipeline; and
(d) such information
as the Minister may reasonably require in relation to any relevant factor for
the purpose of section 80G of the Petroleum Act, 1940, other than any
information concerning the financial resources of the relevant Joint
Venturers.
(4) The Minister may,
pursuant to section 80F of the Petroleum Act, 1940, require the relevant
Joint Venturers to give notice of their application for the Pipeline Licence
to such persons and in such manner as the Minister may, by notice in writing
served personally or by post upon the relevant Joint Venturers, specify.
(5) The Minister shall
grant the Pipeline Licence to the Licensee for an initial term of twenty one
(21) years.
(6) The Licensee shall
pay to the Minister the licence fees payable, from time to time, in respect of
such licences pursuant to the Petroleum Act, 1940, subject always to the
provisions of clause 34 as to non-discrimination.
(7) The Licensee may,
from time to time, apply for a renewal of the term of the Pipeline Licence.
The Licensee may apply for such renewals of the term of the Pipeline Licence
at any time during which a Special Mining Lease over the Olympic Dam Area or
any part thereof is granted and is in force. If the Minister is satisfied both
that the Licensee has complied with the conditions of the Pipeline Licence and
the relevant provisions of the Petroleum Act, 1940 during the current
term of the Pipeline Licence and that all necessary contracts referred to in
paragraph (2) are in force for the duration of the renewed term, then the
Minister shall renew the Pipeline Licence for a further term of twenty one
(21) years or such shorter period for which the Licensee may apply.
(8) The conditions
applicable to the Pipeline Licence shall be similar to the conditions, subject
to clause 34 as to non-discrimination, on which such pipeline licences are
usually granted pursuant to the Petroleum Act, 1940 either at the time
the Pipeline Licence is granted pursuant to subclause (1) or at the time the
term of the Pipeline Licence is being renewed pursuant to this Clause provided
that the Minister may make or impose such reasonable additional conditions or
variations on those usual conditions which the Minister reasonably considers
appropriate in relation to or as a consequence of any of the following
matters:
(a) only as at the
time the Pipeline Licence is initially granted pursuant to subclause (1), the
nature or route of the pipeline in respect of which the Pipeline Licence is
being granted;
(b) the prevention or
reduction of adverse effects upon the environment of the lands across which
the said pipeline is to be constructed or operated or the implementation or
observance of any industry standards, procedures or practices, whether
international or otherwise, which the Minister reasonably considers
appropriate to minimize or ameliorate any such adverse effects;
(c) industry
standards, procedures or practices, whether international or otherwise, in
relation to the design, construction, maintenance or operation of the said
pipeline or any safety or security standards, procedures or practices;
(d) access by third
parties to use any excess capacity in or of the said pipeline; or
(e) such other matters
as the Minister may reasonably consider relevant in the light of technical,
operational, environmental or safety developments in relation to the design,
construction, operation, maintenance or testing of petroleum pipelines or
associated tanks, plant, machinery or appurtenances at the time the Pipeline
Licence is granted or the term of which is being renewed pursuant to this
Clause,
and provided further that any such determination, whether initially or upon a
renewal of the term, of the conditions applicable to the Pipeline Licence by
the Minister shall not be arbitrable pursuant to this Indenture but otherwise
without prejudice to the Joint Venturers other rights or remedies generally
available under statute, at law or in equity to contest, dispute or seek the
review of any such determination of the Minister.
(9) If the Licensee
applies for a renewal of the term of the Pipeline Licence, then the Minister
may review, at the commencement of each renewed period, the conditions to
apply to the Pipeline Licence in relation to any of the matters specified in
subclause (8) during any such renewed period and the Minister may,
subject to the provisions of Clause 34 as to non-discrimination, impose such
reasonable additional conditions or variations to the existing conditions
which will apply during any such renewed period.
(10) The pipeline in
respect of which the Pipeline Licence is to be granted shall be of a size and
capacity capable of delivering petroleum to Olympic Dam to satisfy current and
estimated future mine and town petroleum requirements.
(11) The Licensee
shall design, construct, manufacture, operate, maintain, and repair and test
the pipeline in respect of which the Pipeline Licence is to be granted in
accordance with the Petroleum Act, 1940, any regulations promulgated,
from time to time, pursuant to that Act and the Pipeline Licence.
(12) If the Pipeline
Licence is granted to more than one person pursuant to this Clause, then the
obligations of those persons pursuant to this Clause and the Petroleum
Act, 1940 shall be several and not, as specified in section 80IA of the
Petroleum Act, 1940, joint and several.
(13) The Licensee
shall ensure that any necessary contracts referred to in subclause (2) are in
force and effect during the term (including any renewed term) for which the
Pipeline Licence has been granted pursuant to this Clause.
(14) The route of the
pipeline in respect of which the Pipeline Licence is to be granted shall be
subject to generally applicable environmental procedures and approvals.
(15) Any condition
imposed by the Minister under this Clause may, at any time, be cancelled by
the Minister.
(16) Section 80QC of
the Petroleum Act, 1940 shall not apply during the initial term or any
renewed term of the Pipeline Licence.
(17) The provisions of
the Petroleum Act, 1940 shall apply to both the said pipeline and the
Pipeline Licence to the extent not expressly modified by or inconsistent with
the provisions of this Clause.
20. SPECIAL EXPLORATION LICENCES
(1) Subject to the
Stuart Shelf Joint Venturers complying with the conditions of Exploration
Licence number 784 and with the conditions of the Exploration Licence to be
issued in consequence of Application for Exploration Licence number 611 of
1980 or any other tenement issued pursuant to the provisions of the Mining Act
in substitution therefor (which tenements are hereinafter referred to as the
"Stuart Shelf Licences"), the tenure of the Stuart Shelf Licences is hereby
extended until either the 31st day of December, 1985 or the date (hereinafter
referred to as the "Selection Date") upon which the Stuart Shelf Joint
Venturers specify the Selected Areas to the Minister pursuant to sub-clause
(4) of this Clause, whichever first occurs.
(2) The expenditure
requirements for the Stuart Shelf Licences shall, upon this Indenture coming
into operation, be aggregated and shall be:—
(a) for the period
which commenced on the 29th day of May, 1979, and ending on the 29th day of
May, 1982, a sum of not less than five million dollars,
($5 000 000.00) and
(b) for the period
commencing on the 30th day of May 1982 and ending on either the Selection Date
or the 31st day of December, 1985, which ever first occurs, a sum calculated
at the rate of One Million Five Hundred Thousand Dollars
($1 500 000.00) for each year or, if less than a year, then at the
rate of One Hundred and Twenty-five Thousand Dollars ($125 000.00) for
each month or part thereof during that period.
(3) The Stuart Shelf
Licences shall be subject to the terms and conditions contained therein at the
date of the execution of this Indenture.
(4) Upon one or more
application or applications by or on behalf of the Stuart Shelf Joint
Venturers, made on or prior to the 31st day of December 1985, for a Special
Exploration Licence or Special Exploration Licences over such of the Selected
Areas as may be specified in the said application or applications the State
shall (contemporaneously with the surrender, conditional on fulfilment by the
State of its obligations pursuant to this sub-clause (4), by the Stuart Shelf
Joint Venturers of the relevant portion or portions of all exploration
licences, retention leases, miscellaneous purposes licences, extractive
minerals leases or other tenements whatsoever as are inconsistent with the
grant of a Special Exploration Licence (which surrender shall be accepted by
the Mines Minister) held by them or any of them or on behalf of any of them at
the date of the said application in relation to the whole or part of a
Selected Area the subject of an application) cause to be granted to
the Joint Venturers or such of them as the Stuart Shelf Joint Venturers may
nominate to the Minister or to an associated company as they may nominate to
the Minister at the rental hereafter specified a Special Exploration Licence
or Special Exploration Licences over the Selected Area or Selected Areas (or
part or parts thereof as they shall nominate) the subject of each application
(notwithstanding that the survey in respect thereof has not been completed but
subject to such corrections to accord with the survey when completed at the
Stuart Shelf Joint Venturers' expense).
Each such Special Exploration Licence shall, subject to the performance by the
holders thereof of their obligations thereunder and under this Indenture, be
for a term commencing with effect from the date of receipt of the application
therefor and expiring, subject to paragraph (e) of sub-clause (9) and
sub-clause (5) of this Clause on the 31st day of December 2005. The
expenditure and relinquishment obligations of the holders of a Special
Exploration Licence shall be as follows:—
(a) in respect of any
two or more areas, the subject of Special Exploration Licences, which are
contiguous, an expenditure obligation of $5 000 (escalated) per square
kilometre per annum which shall be satisfied if the aggregate of actual
expenditures (escalated) in each year of such Special Exploration Licences in
respect of the aggregate area of such Special Exploration Licences is not less
than $5 000 (escalated) per square kilometre;
(b) in respect of any
area the subject of a Special Exploration Licence, (whether or not contiguous
with any other such area) an expenditure obligation of $5 000 (escalated)
per square kilometre per annum which shall be satisfied if during each of the
periods which:—
(i)
commences on the commencement of the Special Exploration
Licence and expires on the 31st day of December 1990;
(ii)
commences on the 1st day of January 1991 and expires on
the 31st day of December 1995;
(iii)
commences on the 1st day of January 1996 and expires on
the 31st day of December 2000;
(iv)
commences on the 1st day of January 2001 and expires on
the 31st day of December 2005,
the aggregate of actual expenditures (escalated) during the relevant period,
in respect of such area expressed as a rate per annum in respect of the
relevant period, is not less than $5 000 (escalated) per square
kilometre;
(c) the holders of a
Special Exploration Licence shall, on the 31st day of December in each of
1990, 1995 and 2000, relinquish such lands the subject of that Licence as
shall be nominated by them, so that as of the 1st day of January in each of
1991, 1996 and 2001 the percentage of the area in respect of which the said
Licence was originally granted is not more than as hereafter specified—
|
1st day of January 1991 |
80% |
|
1st day of January 1996 |
64% |
|
1st day of January 2001 |
51% |
|
1st day of January 2006 |
41% |
(d) a reference in
this sub-clause (4) to—
(i)
"$5 000 (escalated)" shall be read as a reference to
a sum of money calculated in accordance with the following formula:—
Where
A = the sum of money to be calculated;
B = the Consumer Price Index for the City of Adelaide (All Groups) for the
quarter ending on the 31st day of December in the relevant year;
C = the Consumer Price Index for the City of Adelaide (All Groups) for the
quarter ended 31st day of December 1981;
D = the sum of $5 000
(ii)
"the annual expenditures (escalated)" shall be read as a
reference to a sum of money calculated in accordance with the following
formula:—
Where:
A = the sum of money to be calculated;
B = the Consumer Price Index for the City of Adelaide (All Groups) for the
quarter ending on the 31st day of December in the relevant year;
C = the Consumer Price Index for the City of Adelaide (All Groups) for each
quarter during which expenditure has been incurred;
D = the actual expenditure to be escalated for the relevant quarter.
(5) If, at the time at
which the Minister receives an application pursuant to sub-clause (4) of this
Clause, the Joint Venturers have not given a Project Notice in respect of the
Initial Project pursuant to sub-clause (2) of Clause 6 of this Indenture, the
State, upon receipt of such application, shall issue to the Stuart Shelf Joint
Venturers, or such of them or an associated company nominated in such
application, a Special Exploration Licence for a term expiring on the 31st day
of December 1995.
If at a subsequent date, but before the 31st day of December 1991, the
Joint Venturers give a Project Notice in respect of the Initial Project
pursuant to sub-clause (2) of Clause 6 of this Indenture, the State upon
receipt of such notice by the Minister, shall extend the term of the Special
Exploration Licences referred to in this sub-clause (5) until the 31st day of
December 2005.
(6) The State will
ensure that from the date upon which all areas of land to be specified to WMC
and the Minister by BPA and BPPD as Selected Areas have been specified an
Exploration Licence in respect of the balance remaining of the lands the
subject of the Stuart Shelf Licences (in this Clause 20 referred to as "the
Initial Exploration Licence") is granted pursuant to the Mining Act to WMC for
a period of six months. Such Exploration Licence shall not impose any minimum
expenditure obligations on WMC.
(7) The State will
ensure that, from the expiration of the Initial Exploration Licence, an
Exploration Licence or Licences in respect of a maximum of three thousand
square kilometres to be nominated by WMC out of the area of the Initial
Exploration Licence is granted pursuant to the Mining Act to WMC for a period
(including renewals) of five years. The terms and conditions of such
Exploration Licence or Licences shall be similar to those which are generally
applicable to Exploration Licences then granted under the Mining Act.
(8) In the event that
the holders of a Special Exploration Licence make a promising discovery on the
area of that Special Exploration Licence the holders thereof will undertake a
programme of further exploration and appraisal and will promptly advise the
Mines Minister of the results thereof and proposals for further exploration.
(9) —
(a) If, in respect of
a Special Exploration Licence granted pursuant to sub-clause (4) of this
Clause, the Minister at any time is of the opinion that, on the basis of
information lodged with the Department of Mines and Energy, it is economically
practicable for the holders thereof to commit to a Subsequent Project in
respect thereof, he may, after consultation with the holders of the relevant
Special Exploration Licence, notify such holders that he requires them to
undertake a review of the economic viability of such a Project and report to
him within 30 days after receipt by such holders of such notification.
(i)
If, after receiving such report indicating that such a
Subsequent Project is not likely to be economically practicable, the Minister
is dissatisfied with the report he may within 30 days after receipt thereof,
refer the report to an Independent Expert pursuant to Clause 50.
(ii)
If the Independent Expert determines that such a
Subsequent Project is unlikely to be economically practicable, the holders of
the Special Exploration Licence shall not be obliged to undertake further
studies except pursuant to paragraph (f) of this sub-clause (9).
(iii)
If the Independent Expert determines that such a
Subsequent Project is likely to be economically practicable the Minister may
within 30 days of receipt by him of such determination give notice of his
opinion (in this sub-clause (9) referred to as "the Minister's opinion") to
such holders that such a Subsequent Project is likely to be economically
practicable.
(b) Where the holders
of a Special Exploration Licence have received the Minister's opinion they
shall, as soon as practicable, prepare or cause to be prepared a feasibility
study to show whether or not it is economically practicable for them to commit
to a Subsequent Project in respect thereof.
(c) Where a
feasibility study prepared pursuant to paragraph (b) of this sub-clause (9)
shows it is not then economically practicable for the holder of the relevant
Special Exploration Licence to commit to a Subsequent Project in respect
thereof, the Minister shall accept such result.
(d) Where a
feasibility study prepared pursuant to paragraph (b) of this sub-clause (9)
shows it is economically practicable for the holders of the relevant Special
Exploration Licence to commit to a Subsequent Project in respect
thereof:—
(i)
such holders will commit to such Subsequent Project
within three years of the date upon which the feasibility study, showing that
it is then economically practicable for them to do so, is received by them; or
(ii)
if such holders do not so commit to such Subsequent
Project the Special Exploration Licence shall terminate at the end of such
three year period.
(e) If such holders,
following receipt by them of the Minister's opinion, fail to prepare or cause
to be prepared a feasibility study pursuant to paragraph (b) of this
sub-clause (9), the Special Exploration Licence shall terminate within 2 years
from the date of receipt of the Minister's opinion or such other time as may
be reasonably necessary to prepare such a study.
(f) The Minister may
not give notice of the Minister's opinion in respect of any Special
Exploration Licence more frequently than at two yearly intervals from the date
of receipt of the Independent Expert's determination or of the feasibility
study result, as the case may be.
(g) In determining
whether or not it is economically practicable for the holders of a Special
Exploration Licence to commit to a Subsequent Project in respect thereof,
account shall be taken of the provisions of sub-clause (1) of Clause 9 and
whether or not the negotiations required thereby have been completed and if so
the results thereof and any such Subsequent Project shall be considered on a
stand alone basis.
(10) Any Special
Exploration Licence issued pursuant to this Clause applying to the Andamooka
Precious Stones Field (as proclaimed at the date upon which this Indenture is
executed the area of which is specified in the Sixth Schedule hereto) shall be
issued subject to the rights, pursuant to the Mining Act, of opal miners (both
present and future) prospecting or mining in the said precious stones field,
provided, however, that such rights shall not extend to a depth of more than
fifty metres below the surface of the earth.
21. PROVISION OF INFRASTRUCTURE
(1) The relevant Joint
Venturers as developer but subject always to the other provisions of this
Indenture and in particular Clauses 22 and 23 shall provide or cause to be
provided at the town such housing, accommodation, services and works necessary
to provide for the needs of persons (and the dependants of those persons) who
are employed by or on behalf of those Joint Venturers and those Joint
Venturers will use their best endeavours to assist in the provision of the
housing needs of such other persons and their dependants who provide services
in the town that are ancillary and necessary to the needs of
the Joint Venturers' employees and their dependants.
(2) The conduct of all
planning within the townsite other than for building design and landscaping of
buildings to be owned or occupied by the State or municipality (which shall be
designed by the State) shall be the responsibility of the relevant Joint
Venturers, and subject to sub-clauses (3) and (4) of this Clause, the conduct
of all development and construction within the townsite of:
(a) all buildings and
structures required for educational, hospital, medical, dental, police, fire,
local government, judicial, recreational, town maintenance depots and other
civic and communal services;
(b) adequate housing
accommodation for married and single personnel directly connected with the
construction, operation and maintenance of the infrastructure and facilities
the subject of paragraphs (a) and (c) of this sub-clause (2); and
(c) all public roads
and the lighting therefor, electricity headworks and reticulation, sewerage
works (including reticulation) and treatment plant, garbage disposal
facilities, water supply works (including reticulation) and drainage works
shall be the responsibility of the relevant Joint Venturers or, as the case
may be, the State.
(3) The obligation of
the relevant Joint Venturers to provide housing accommodation services and
works pursuant to sub-clause (1) of this Clause and to provide infrastructure
pursuant to sub-clause (2) of this Clause shall be limited to the provision of
such housing accommodation and infrastructure as is appropriate to the scale
of the Joint Venturers' operations from time to time with a maximum obligation
appropriate to a level of the production at the minesite of 350 000
tonnes per annum of contained copper in saleable Product, saleable
Non-minesite Product and associated by-products. The Joint Venturers and the
Minister shall, having regard to then current or recent developments of a
similar nature by the private sector elsewhere in Australia, agree upon the
then current need for and extent of such housing accommodation and
infrastructure and if agreement cannot be reached within three months after
first conferring the matter shall be referred to arbitration in accordance
with Clause 49.
(4) —
(a) The programme for
the development and construction of the infrastructure referred to in
sub-clause (2) of this Clause (including priorities in such development and
construction) shall be agreed from time to time by the Joint Venturers and the
Minister and if agreement cannot be reached within three months after first
conferring the matter shall be referred to arbitration in accordance with
Clause 49.
(b) In respect of the
items specified in sub-clause (2) of Clause 22 other than the road referred to
in sub-clause (2) of Clause 14, the construction of such items shall be by way
of tender (unless otherwise agreed by the Minister) and be subject to the
direction and control of the relevant Joint Venturers, provided however, that
the following shall apply to any contract for the construction of any such
item:—
(i)
all contracts shall be awarded on the basis of
competitive tender unless the Minister in any case otherwise agrees (failure
to so agree shall not be arbitrable);
(ii)
no tender shall be accepted without the consent of the
relevant Joint Venturers and the Minister (which consents shall not be
unreasonably withheld) and in accepting any tender regard shall be had to the
programme referred to in paragraph (a) of this sub-clause.
(c) If any of the
items specified in sub-clause (2) of Clause 22 is constructed prior to a
Project Notice being given in respect of the Initial Project they shall be
constructed at the cost and expense of the relevant Joint Venturers provided
that upon a Project Notice being given in respect of the Initial Project the
State shall pay to such Joint Venturers the total costs and expenses of such
construction paid or subsequently paid by them escalated in accordance with
the following formula:—
Where
A = the sum of money to be calculated;
B = the Consumer Price Index for the City of Adelaide (All Groups) for the
quarter last ended prior to the payment by the State to the relevant Joint
Venturers;
C = the Consumer Price Index for the City of Adelaide (All Groups) for each
quarter during which expenditure has been incurred by the relevant Joint
Venturers;
D = the actual expenditure by the relevant Joint Venturers to be escalated for
the relevant quarter.
(5) In any case where
relevant standards and specifications are not contained in the Building Rules
under the Development Act, 1993, the Joint Venturers and the Minister
shall, having regard to then current or recent developments of a similar
nature by the private sector elsewhere in Australia and after consultation
with any relevant Department or instrumentality of the State, the Commonwealth
or the municipality, agree upon the standards and specifications to be applied
and if agreement cannot be reached within three months after first conferring
the matter shall be referred to arbitration in accordance with Clause 49.
(6) Subject to the
other provisions of this Indenture, the relevant Joint Venturers shall provide
at their cost all equipment initially required in relation to public roads and
the lighting therefor, electricity reticulation, sewerage reticulation and
treatment works, water supply and drainage works and all other essential
services which it is the responsibility of those Joint Venturers to plan,
develop and construct at the townsite as provided in paragraph (c) of
sub-clause (2) of this Clause.
(7) The State shall
provide or cause to be provided full and free access to, egress from and
possession of any site or sites which is reasonably required by
the Joint Venturers or any of them or an associated company in order for them
to discharge any obligation or responsibility or exercise any right under this
Indenture. Without limiting the foregoing the Joint Venturers or any of them
or an associated company shall have the right to make excavations in public
roads and as necessary erect barricades, safety lighting, close or partially
close such roads and do such other acts as may be appropriate.
(8) Subject to the
provisions of the Mining Act, the Joint Venturers or any of them or an
associated company shall have the right to extract and use such stone, sand,
gravel or clay from within or without the townsite as may be necessary for the
purpose of discharging their obligations under this Indenture.
(9) Nothing contained
in this Clause 21 shall be construed as placing on the Joint Venturers or any
of them an obligation to provide or pay for personnel required to operate the
educational, hospital, medical, dental, police, fire, local government,
judicial, recreational or other civic and communal services which obligation
shall at all times be discharged by the State, the municipality or other
appropriate authority.
(10) The State, in
accordance with the provisions of sub-clause (5) of Clause 22, shall at no
cost to the Joint Venturers equip the buildings and structures referred to in
paragraph (a) of sub-clause (2) of this Clause required for educational,
hospital, medical, dental, police, fire, local government, judicial,
recreational, town maintenance depots or other civic and communal services and
the housing accommodation referred to in paragraph (b) of sub-clause (2)
of this Clause, (other than accommodation for construction purposes) and shall
provide all necessary staff and personnel in connection therewith.
(11) The State shall
at all times be responsible for the service, maintenance and where necessary,
repair renovation and replacement of the housing accommodation referred to in
paragraph (b) of sub-clause (2) of this Clause (and all equipment therefor)
(other than accommodation for construction purposes) and of all buildings and
structures (and all equipment therefor) referred to in paragraph (a) of
sub-clause (2) of this Clause for educational, hospital, medical, dental,
police, fire, judicial, recreational, town maintenance depots or other civic
and communal services.
(12) Subject to the
provisions of sub-clause (13) of this Clause the State or, as the case may be,
the municipality shall operate and maintain or cause to be operated and
maintained within the townsite, from the date of completion thereof all public
roads and the lighting therefor, electricity headworks and reticulation,
sewerage works (including reticulation) and treatment plant, garbage disposal
facilities, water supply works (including reticulation) and drainage works and
subject as aforesaid shall operate and maintain or cause to be operated and
maintained within the townsite all educational, hospital, medical, dental,
police, fire, local government, judicial, recreational, town maintenance
depots or other civic and communal facilities.
(13)
The Joint Venturers may agree with the Minister (and failure to so agree shall
not be arbitable) that, at the cost of the State and until the responsibility
therefor is assumed by the State or the municipality as provided in sub-clause
(12) of this Clause, they or any of them or an associated company will be
responsible for the operation, service, maintenance and where necessary,
repair renovation and replacement of all public roads and the lighting
therefor, electricity headworks and reticulation, sewerage works (including
reticulation) and treatment plant, water supply works (including reticulation)
and drainage works referred to in paragraph (c) of sub-clause (2) of this
Clause and of the equipment referred to in sub-clause (6) of this Clause. In
respect of the planning development and construction of the facilities,
services and infrastructure referred to in sub-clause (2) of Clause 22 which
is undertaken by the Joint Venturers or any of them or an associated company
or in accepting responsibility under this sub-clause (13) for any servicing,
maintenance, repair, renovation or replacement the Joint Venturers or any of
them or an associated company may act as contractors for the State and,
subject to sub-clause (5) of Clause 22 (if appropriate), all costs and
expenses of the Joint Venturers or any of them or such associated company in
relation thereto (which shall, without limitation, include the costs and
expenses of all sub-contractors engaged by or at the direction of
the Joint Venturers or any of them or such associated company) shall be borne
by the State or the municipality as the case may be on a cost reimbursement
basis to such Joint Venturers or such associated company so that after making
a reasonable and proper allowance for interest on capital, depreciation in
respect of plant and equipment and overhead charges of such Joint Venturers or
associated company neither they nor the associated company would make a profit
nor suffer a loss from undertaking such planning, development and construction
of facilities or such service maintenance repair renovation or replacement.
Invoicing of costs and expenses and the reimbursement to such Joint Venturers
or associated company will be as frequently as may be agreed by
the Joint Venturers and the Minister but in any event not less frequently than
quarterly.
(14) Where pursuant to
sub-clause (13) of this Clause the Joint Venturers or any of them or an
associated company accept responsibility for the operation, service,
maintenance and, where necessary, repair, renovation and replacement of the
services, facilities and infrastructure therein specified and accordingly
becomes the initial supply authority to the public the billing and collection
of any charges for the provision of such services will be conducted by the
State at its cost (either by itself or the municipality) on behalf of such
Joint Venturers or associated company in a manner agreed by
the Joint Venturers and the Minister.
(15) The relevant
Joint Venturers shall, upon completion of each of the facilities and
infrastructure specified in sub-clause (2) of this Clause (other than
accommodation for construction purposes), transfer to the State or as it may
direct for no consideration (other than reimbursement of rates, taxes and
other outgoings payable or previously paid in respect thereof) the lands upon
which such facilities and infrastructure are situated if such lands are not
then held by the State or on its behalf.
(16) The provisions of
this Clause 21 and of Clause 22 shall not impose any obligation on
the Joint Venturers or any of them or on the State until the Joint Venturers
have given a Project Notice in respect of the Initial Project, provided
always, that the Joint Venturers or any of them or an associated company may,
subject to the other provisions of this Clause, at their discretion commence
or cause to be commenced the construction and development of any such
facilities and infrastructure.
(1) Except as
otherwise provided in this Indenture the provision of the facilities, services
and infrastructure referred to in Clauses 13, 14, 15, 16, 17, 18 and 21 shall
be at the cost of the relevant Joint Venturers.
(2) Subject to
sub-clause (4) of this Clause the State shall pay all costs of the provision
of the following facilities, services and infrastructure:—
(a) allotment
development costs in respect of allotments within the townsite required for
public and civic facilities and for housing referred to in paragraph (b) of
this sub-clause (2);
(b) all housing
accommodation within the townsite for married and single personnel connected
with the operation and maintenance of the infrastructure and facilities
referred to in sub-clause (2) of Clause 21 (other than accommodation for
construction purposes);
(c) police station,
lock-up and court house within the townsite;
(d) necessary air
conditioned child care centres within the townsite;
(e) necessary air
conditioned kindergartens and pre schools within the townsite;
(f) necessary air
conditioned primary schools within the townsite including adequate teaching
spaces, administration block, shaded or covered play areas, amenities block,
tuck shop and staff facilities;
(g) necessary air
conditioned secondary schools within the townsite including library,
administration block, staff facilities and senior centre lecture theatre;
(h) a ten (10) bed
acute facility providing facilities for accident and emergency, minor surgical
and obstetric services, community health services and private dental services
and such other additional health facilities as the Minister, with the
agreement of the Minister for Health, on request from the Joint Venturers from
time to time or otherwise, reasonably considers to be required for the
township of Roxby Downs after taking into consideration its location and
demographic factors and other relevant factors for the provision of health
facilities at that time;
(j) local authority
offices within the townsite including municipal offices, meeting room, public
toilets, library, civic auditorium, works depot and workshop;
(k) swimming pool
complex within the townsite including 50 m unheated pool, wading pool,
gardens, change rooms and car parks;
(l) necessary sporting
facilities and playing fields within the townsite together with appropriate
changeroom facilities;
(m) premises and
facilities within the townsite for creative, performing and visual arts;
(n) fire services
within the townsite including a 2 bay fire station equipped with a fire tender
and an additional pump and trailer unit;
(o) State Government
offices within the townsite;
(p) 50% of the cost of
the upgrading or construction of the road referred to in sub-clause (2) of
Clause 14;
(q) Ambulance centre
and equipment within the townsite including vehicle;
(r) Parks and gardens
within the townsite;
(s) Garbage disposal
facilities for the town;
(t) Plant and
equipment (including vehicles) necessary for the provision within the townsite
of State and Local Authority services and facilities.
(3)
The Joint Venturers and the Minister may from time to time agree (failure to
thus agree shall not be subject to arbitration) to vary the provisions of
sub-clause (2) of this Clause by deletion from, addition to or substitution
for (or any combination thereof) of the services, facilities and
infrastructure listed therein. For the purposes of this sub-clause (3) only
and to provide a basis upon which value equivalents can be agreed, the parties
agree that the value of the infrastructure items referred to in the placita on
the right hand side hereunder shall be the values (being the values of those
items based on a population of 9 000 people), expressed in June, 1981,
dollars, set out to the left of the said placita.
|
Placita | ||
|---|---|---|
|
(a) |
$3 200 000.00 |
22(2) (a) |
|
(b) |
$7 700 000.00 |
22(2) (b) |
|
(c) |
$770 000.00 |
22(2) (c) |
|
(d) |
$270 000.00 |
22(2) (d) |
|
(e) |
$660 000.00 |
22(2) (e) |
|
(f) |
$11 000 000.00 |
22(2) (f) |
|
(g) |
$6 600 000.00 |
22(2) (g) |
|
(h) |
$4 730 000.00 |
22(2) (h) |
|
(i) |
$220 000.00 |
22(2) (i) |
|
(j) |
$3 080 000.00 |
22(2) (j) |
|
(k) |
$1 100 000.00 |
22(2) (k) |
|
(l) |
$1 100 000.00 |
22(2) (l) |
|
(m) |
$220 000.00 |
22(2) (m) |
|
(n) |
$110 000.00 |
22(2) (n) |
|
(o) |
$330 000.00 |
22(2) (o) |
|
(p) |
$6 050 000.00 |
22(2) (p) |
|
(q) |
$110 000.00 |
22(2) (q) |
|
(r) |
$660 000.00 |
22(2) (r) |
|
(s) |
$220 000.00 |
22(2) (s) |
|
(t) |
$1 870 000.00 |
22(2) (t) |
(4) The maximum
obligation of the State to pay the costs of the provision of certain
infrastructure pursuant to sub-clause (2) of this Clause (as varied from time
to time pursuant to sub-clause (3) of this Clause) shall, notwithstanding the
provisions of sub-clause (1) of Clause 9, be the cost of the provision of
the items so specified which are appropriate to provide for the needs of
9 000 people being people connected directly with the Joint Venturers
operations or with the provision of government or other necessary services to
such persons (and the dependants of such persons) whether or not such persons
are employed by the Joint Venturers or any of them or an associated company.
(5) It is the
intention of the parties that, subject to the other provisions of this Clause,
the cost of the provision of the facilities, services and infrastructure
specified in sub-clause (2) of this Clause (as varied from time to time
pursuant to sub-clause (3) of this Clause) shall be met wholly by the
State and shall not fall upon or be charged to the municipality in any way
whatsoever.
23. ESTABLISHMENT OF MUNICIPALITY
(1) The State, upon a
Project Notice being given in respect of the Initial Project, shall recommend
to the Governor that a proclamation be made pursuant to section 7 of the
Local Government Act declaring that such area as may be agreed by
the Joint Venturers and the Minister be constituted as a municipality
(notwithstanding that any survey in respect thereof has not been completed but
subject to such corrections to accord with the survey when completed).
The Joint Venturers and the Minister may from time to time agree to vary the
boundaries of the municipality, and failure to so agree shall not be
arbitrable. It is agreed by the parties that the area to be constituted a
municipality pursuant to this sub-clause shall not include the lands the
subject of the Special Mining Lease to be granted pursuant to sub-clause (1)
of Clause 19 and the State will ensure that the lands the subject of such
Special Mining Lease or any other Special Mining Lease granted pursuant to
this Indenture are not within the area of the municipality or any other local
authority.
(2) The municipality
shall have the following powers and functions:—
(a) all the powers
vested in municipalities by the Local Government Act but subject to any
limitations thereon or variations thereto which may be specified in the
ratifying Act;
(b) During the period
of the appointment of the Administrator pursuant to sub-clause (3) of this
Clause the provisions of Clause 7 shall apply to any approval sought from, or
granted by, the municipality by or to the Joint Venturers or any of them or an
associated company save only that a reference in that clause to "the Minister"
shall be read as a reference to "the municipality".
(3) For a period
commencing on the making of the proclamation pursuant to sub-clause (1)
of this Clause and expiring five years after the Commencement Date or such
longer or shorter period as may be agreed by the Joint Venturers and the
Minister (which shorter period is expressly agreed by the parties not to be
arbitrable pursuant to Clause 49) the provisions of the Local Government Act
relating to the election of councillors shall be suspended as provided in the
ratifying Act and in lieu thereof the State shall cause a person approved by
the Joint Venturers to be appointed as Administrator of the municipality. The
appointment shall commence upon the establishment of the municipality as
hereinbefore provided and shall continue until the fifth anniversary of the
Commencement Date or until the expiration of the longer or shorter period as
aforesaid. During the period of his appointment the Administrator shall
exercise all of the powers and discharge all of the functions of the
municipality as set out in sub-clause (2) of this Clause and in the ratifying
Act.
(4) The State shall
assume or cause the municipality or the relevant distribution authority to
assume all responsibility for all functions in the town as shall be the normal
and usual responsibility of the State or of a municipality under the
Local Government Act respectively and the relevant Joint Venturers shall where
necessary and upon completion thereof as certified by the relevant Joint
Venturers transfer or cause to be transferred to the State or to the
municipality as appropriate at no cost (except as otherwise provided elsewhere
in this Indenture) to the relevant Joint Venturers ownership and control as
appropriate of all works facilities and services within the town to enable the
State or as may be appropriate the municipality fully and effectually to
assume and observe its responsibility as aforesaid including without
limitation—
(a) public roads and
lighting therefor;
(b) drainage works;
(c) the sewerage
reticulation system and works;
(d) the potable water
reticulation system and works; and
(e) the electricity
reticulation system (but not the Joint Venturers' electricity generating and
distribution equipment) referred to in sub-clause (9) of Clause 18.
(5) The participating
Joint Venturers in respect of the Initial Project shall at their cost,
undertake all initial survey work (including any necessary subsequent
corrections thereto) necessary or connected with the purposes of this Clause
and shall meet such reasonable requests as the Surveyor-General may, from time
to time, issue with respect to such surveys but shall have no other
obligations with respect to any other survey in connection with the
municipality.
(1) Upon this
Indenture coming into operation the State shall recommend to the Governor that
a proclamation be made pursuant to paragraph (d) of section 5 of the Crown
Lands Act to dedicate such lands, having an area of approximately 100 square
kilometres, as may be agreed between the Joint Venturers and the Minister for
development for township purposes (including the area of a town buffer zone)
pursuant to this Indenture. The Minister and the Joint Venturers may, at any
time, agree that the lands so dedicated shall be extended, reduced or other
lands substituted therefor, in which event the State shall recommend to the
Governor that such proclamation as is necessary so to dedicate such extended,
reduced or substituted lands be made.
(2) The State shall
recommend to the Governor that any land dedicated pursuant to sub-clause (1)
of this Clause be placed under the care, control and management of the
Minister, pursuant to paragraph (f1) of section 5 of the Crown Lands Act.
(3) At any time (and
from time to time) after a Project Notice has been given in respect of the
Initial Project, the State shall, at the request of the Joint Venturers,
recommend to the Governor that, pursuant to paragraph (d) of section 5 of the
Crown Lands Act, the fee simple estate of those portions of the lands (not
being lands so dedicated which have been designated pursuant to Clause 25 for
the purposes of a town buffer zone) dedicated pursuant to sub-clause (1) of
this Clause as are then required by the Joint Venturers or any of them or an
associated company for township purposes be granted to them or such of them or
such associated company as they may nominate to the Minister for such
purposes. The said grants shall be at no cost to such Joint Venturers or
associated company and shall be made free and clear of all easements,
restrictions, liens, charges and other encumbrances whatsoever, other than
such easements or restrictions which may have been previously agreed in
writing between the joint Venturers and the Minister.
(4)
The Joint Venturers or any of them or an associated company (as the case may
be) may subdivide or resubdivide any land granted to them pursuant to
sub-clause (3) of this Clause for the development thereof for township
purposes pursuant to this Indenture and may, for that purpose, at their
option:
(a) seek, pursuant to
Clause 7, all necessary approvals for such subdivision or resubdivision; or
(b) surrender the fee
simple estate of the land proposed to be subdivided or resubdivided to the
State, such surrender to be conditional upon subdivision or resubdivision of
such land by the State pursuant to the provisions of the Crown Lands Act, in
accordance with plans and specifications to be agreed between
the Joint Venturers or an associated company and the Minister, and the issue
of a land grant for an estate in fee simple free and clear of all
encumbrances, liens or charges whatsoever (other than any existing in respect
of the surrendered title) in respect of each subdivided or resubdivided
allotment (not being a road, park or reserve to vest in the municipality).
(5) The sale of any
land by the Joint Venturers or any of them or an associated company within the
townsite shall be at a price which is not (unless the consent of the Minister
is first obtained, which consent shall not be subject to arbitration) in
excess of the allotment development cost in respect of such land. The
allotment development cost shall be agreed from time to time between
the Joint Venturers and the Minister and shall be a proportion of all costs
incurred by the relevant Joint Venturers or an associated company associated
with the development of such land, and:—
(a) the escalation of
such cost of development which escalation shall be calculated in accordance
with the percentage increase in the Consumer Price Index for the City of
Adelaide (All Groups) from the quarter last ended prior to the date such costs
are incurred to the quarter last ended prior to the date of any such sale; and
(b) an amount of 5%
per annum of such development costs, calculated from the time of such
development until the time of sale.
(6)
The Joint Venturers may, at any time after a Project Notice has been given in
respect of the Initial Project or a Subsequent Project, advise the Minister of
the dimensions and location of the area of lands which the relevant Joint
Venturers reasonably require from time to time for the purposes of
establishing a minesite, being that land which is reasonably required for the
establishment of buildings, structures, ponds, tailings dams and plant and
surface facilities associated with the mine or mines for the Initial or
Subsequent Project and the State shall recommend to the Governor that the said
land be reserved pursuant to the provisions of paragraph (f) of section 5 of
the Crown Lands Act.
(7) The State shall,
at the request of the Joint Venturers made at any time after the issue of a
Special Mining Lease issued for the purposes of the Initial Project or a
Subsequent Project, grant an estate in fee simple, free of any easements,
liens, charges or other encumbrances whatsoever over all of the land reserved
pursuant to the provisions of sub-clause (6) of this Clause.
(8) The provisions of
this Clause 24 shall apply, mutatis mutandis, to any area of land required for
townsite purposes required by the Joint Venturers or any of them with respect
to any Subsequent Project.
(9) The relevant Joint
Venturers shall, at their cost, undertake all initial survey work (including
any necessary subsequent corrections thereto) necessary or connected with the
purposes of this Clause, and shall meet such reasonable requests as the
Surveyor-General may, from time to time, issue with respect to such surveys.
(10) Where, pursuant
to sub-clause (7) of this Clause, a fee simple estate over any land has vested
in the Joint Venturers, such land shall automatically revert to the State at
the expiration of the period ending two years after the termination (whether
by effluxion of time or otherwise) of the Special Mining Lease (including any
extensions or renewals thereof) in which such land situated.
(1) The State shall,
upon a Project Notice being given in respect of the Initial Project, grant (or
procure the grant) for a period of 21 years with automatic extensions for
further successive periods each of 21 years upon the same terms and conditions
to:—
(a) the municipality a
Special Buffer Zone Lease in the form or substantially in the form of the
Eighth Schedule hereto of such land surrounding or on the boundary of the
townsite as shall be agreed from time to time by the Joint Venturers and the
Minister for the purposes of creating a town buffer zone within which no
development may take place and access may be restricted provided that such
grant shall contain appropriate reservations in favour of the Joint Venturers
or any of them or an associated company as they may nominate to the Minister
to ensure that such Joint Venturers or associated company may construct,
operate, maintain and use without restriction such roads (both private and
public), railways and other forms of transportation and have access to and
egress from the minesite for the proper and efficient conduct of their
operations; and
(b)
the Joint Venturers or such of them or an associated company as they may
nominate to the Minister a Special Buffer Zone Lease in the form or
substantially in the form of the Fourth Schedule hereto of such land
surrounding the Special Mining Lease to be granted pursuant to
sub-clause (1) of Clause 19 as shall be agreed from time to time by
the Joint Venturers and the Minister for the purposes of creating a mine
buffer zone, within which access may be restricted, to safeguard the public,
the work force and the environment in relation to operations under this
Indenture and such grants shall have regard to the then current and the future
requirements of the Joint Venturers' operations.
(2) Additional Buffer
Zones —The State shall at the request of the Joint Venturers from time
to time cause to be added to the Special Buffer Zone Lease surrounding the
Special Mining Lease to be granted pursuant to sub-clause (1) of Clause 19
referred to in sub-clause (1) of this Clause or grant such further Special
Buffer Zone Leases as may be appropriate over such land surrounding a Special
Mining Lease or Special Mining Leases to be granted pursuant to sub-clause (3)
of Clause 19 as shall be agreed by the Joint Venturers and the Minister to be
necessary as additional mine buffer zones in respect of any Subsequent
Project, whether or not such additional land is contiguous with the land the
subject of the Special Buffer Zone Lease granted pursuant to paragraph (b) of
sub-clause (1) of this Clause.
(3) The surface of any
land the subject of a Special Buffer Zone Lease and any strata to a depth of
fifty metres below such surface shall not be used for any mining operations
other than for, or in connection with, a down cast airway.
(1) Having regard to
the State's intention to have established the further processing of Product
within the State, the Joint Venturers shall, in accordance with the provisions
of this clause, unless otherwise agreed in writing by the Minister, review the
further processing of Product within the State.
(2) The said review
shall ascertain the feasibility of the further processing of Product to the
following stages:—
(a) copper to the
refined stage, and
(b) the recovery of
base and precious metals.
(3)
The Joint Venturers shall, within three years of the Commencement Date,
provide to the Minister a report in writing setting out the results of such
review.
(4) Upon submitting
the Minister the report referred to in sub-clause (3) of this clause,
the Joint Venturers shall, whilst Product remains unprocessed within the State
to the stages referred to in sub-clause (2) of this clause, continue to review
the further processing of Product within the State and shall, every three
years thereafter, provide to the Minister further report in writing setting
out the results of such continued review.
(5)
The Joint Venturers shall give preference to the further processing of Product
within the State, and will, if further processing of Product within the State
is technically and economically feasible, encourage and support such further
processing.
(6) Nothing in this
Clause shall oblige the Joint Venturers or any of them to disclose any
information the disclosure of which will or may be in breach of any obligation
(whether statutory or otherwise) which will or may render the Joint Venturers,
or any of them, liable to a fine, penalty, forfeiture or detriment of any
kind.
(7) Nothing in this
Clause shall oblige the Joint Venturers to process or sell Product on other
than commercial terms acceptable to them, or impinge upon or restrict, in any
way, the rights of the Joint Venturers to enter into and comply with contracts
for the sale of Product in any form.
27. LEASES, LICENCES, EASEMENTS AND RIGHTS OF WAY
Without prejudice to the other provisions of this Indenture which provide for
the grant of specific leases, licences, easements and other tenures and
estates in land the State shall, in respect of land owned by it not reasonably
required by the State for any other purpose or resumed pursuant to Clause 31,
as may be agreed by the Joint Venturers and the Minister, for the purposes of
the Joint Venturers' operations, from time to time grant (or cause to be
granted) to the Joint Venturers or such of them as they may nominate to the
Minister or to an associated company as they may nominate to the Minister for
such period and on such terms and conditions (including renewal rights) as
shall be reasonable in all the circumstances, leases and where applicable
licences easements and rights of way for all or any of the purposes of
the Joint Venturers' operations.
(1) The provisions of
the Development Act, 1993 shall not apply except for those contained in
Division 2 of Part 4, which shall apply as varied and in the manner specified
in subclauses (2), (3), (4) and (5) to any land the subject of a Special
Mining Lease granted pursuant to this Indenture or to any lands owned or
occupied by the Joint Venturers or any of them or an associated company or of
which such Joint Venturers or associated company have or are entitled to the
benefit or use and which are reasonably required for the transport, supply or
provision of petroleum, electricity or water for the Initial Project or any
Subsequent Project.
(2) A reference, if
any, to the "Minister," the "Major Developments Panel" or the "Development
Assessment Commission" in the said Division 2 of Part 4 shall be construed as
a reference to the Minister for the purpose of this Indenture.
(3) If the Minister is
of the opinion that an environmental impact statement, a public environmental
report or a development report is appropriate or necessary pursuant to the
said Division 2 of Part 4 in relation to any proposed development or project
and any such statement or report or a statement or report of a substantially
similar nature and dealing with substantially similar matters or any other
statement or report investigating the environmental impact, if any, of the
proposed development or project, however named, is also necessary or
appropriate pursuant to any Federal legislation in relation to the same
proposed development or project, then the statement or report to be prepared
in accordance with the Federal legislation shall, subject to subclause (4), be
and be deemed to be an environmental impact statement, public environmental
report or development report (as the case may be) prepared in accordance with
and for the purposes of the said Division 2 of Part 4.
(4) If subclause (3)
applies in relation to any statement or report, then the Minister may
determine that the statement or report must consider such other or additional
matters to those required to be considered pursuant to the applicable Federal
legislation as provided for in the said Division 2 of Part 4 as the Minister
considers appropriate.
(5) Clause 7 of this
Indenture applies to any approval or authorization required pursuant to the
said Division 2 of Part 4.
(1) The State shall
ensure that rates, land tax and all similar levies and imposts are assessed
and levied only upon or in respect of land which has been granted to
the Joint Venturers pursuant to sub-clause (3) of Clause 24 (hereafter called
in this Clause 29 "granted land") within the townsite and shall, without
limitation to the foregoing, ensure that such rates, land tax and similar
levies and imposts are not assessed and levied upon or in respect of the
occupation of any lands or properties situated within the minesite and used by
the Joint Venturers or any of them or by an associated company in relation to
the Joint Venturers' operations.
(2) No discriminatory
rates —The State shall not impose or permit or suffer any
instrumentality of the State or any local or other authority or any statutory
authority to impose discriminatory rates, land tax or similar levies. Imposts,
rates and land tax may be assessed and levied only upon or in respect of
granted land within the townsite as provided in sub-clause (1) of this Clause,
provided, however, that nothing in this Clause shall be construed as
preventing the Distribution Authority charging the Joint Venturers on a
non-discriminatory basis for any water or sewerage services supplied to and
used on any land owned by the Joint Venturers or any of them.
(3) Without limitation
to the provisions of sub-clause (2) of this Clause and in accordance with the
provisions of the ratifying Act the following provisions regarding the levying
of rates by the municipality shall apply during the period of the
Administrator's appointment pursuant to sub-clause (3) of Clause 23:—
(a)
The Joint Venturers and the municipality shall agree upon the general or any
other rate which is to be levied by the municipality in respect of the
townsite or any services, facilities or infrastructure provided therein;
(b) Where the proposed
income and expenditure of the municipality for any financial year of the
municipality has been approved by the State and the Joint Venturers prior to
the commencement of that financial year, or any revision thereof has been so
approved prior to any commitment by the municipality in respect thereof, and
the revenue of the municipality during that financial year (including grants
approved by either the Commonwealth or the State and any funds which the
municipality is reasonably able to borrow) is shown by the statement and
balance sheet which the municipality is required by section 296 of the
Local Government Act to prepare to be insufficient to meet such approved
expenditure, one half of that portion of the shortfall directly or necessarily
related to the Joint Venturers' operations shall be borne by the State and one
half of that portion of the shortfall directly or necessarily related to
the Joint Venturers' operations shall be borne by the Joint Venturers.
(4) Notwithstanding
that the lands the subject of a Special Mining Lease granted pursuant to this
Indenture will not be within the area of the municipality and that the
municipality is not required pursuant to this Indenture to bear any capital
costs for the provision of infrastructure, facilities and services within the
townsite, the relevant Joint Venturers, in addition to any rates payable by
them or any of them in respect of any granted land within the townsite, shall
make a contribution, in respect of the minesite, to the revenues of the
municipality of an amount not exceeding One Hundred and Fifty Thousand Dollars
in each financial year of the municipality. The said contribution shall be
pro-rated on the basis of 9 000 people connected directly with
the Joint Venturers' operations or with the provision of Government or other
necessary services (and the dependants of such people) whether or not such
people are employed by the Joint Venturers or an associated company. The
amount of the contribution to be made in each year shall be determined on the
basis of the estimated number of such people living in the town of the 1st day
of July of the year in which such contribution is made. The obligation of
the Joint Venturers under this subclause (4) shall not come into
operation until the expiration of the period of the Administrator's
appointment pursuant to sub-clause (3) of Clause 23 and the amount shall be
increased or decreased by the percentage increase or decrease in the Consumer
Price Index for the City of Adelaide (All Groups) from the quarter ended the
31st March, 1982, to the quarter last ended prior to the commencement of the
financial year of the municipality in respect of which the contribution is
being made.
(5) Without limitation
to the provisions of sub-clause (1) of this Clause and without prejudice to
any of the provisions of this Indenture which fix or determine the basis for
fixing of costs and charges for the provision of specific facilities or
services, the State shall not impose or permit or suffer any instrumentality
of the State or any local or other authority or statutory authority to impose
discriminatory rates or charges of any nature whatsoever on or in respect of
the supply of facilities or services to and within the town or the minesite or
elsewhere for the purposes of this Indenture and such rates or charges shall
be fixed having regard to the reasonable costs incurred or likely to be
incurred in providing such facilities or services and to charges paid by other
industrial users and country area consumers respectively in the State and
shall include all such allowances, discounts and subsidies as may from time to
time be granted or given to such users and consumers.
The State agrees that it shall not requisition, resume, compulsorily acquire
or reserve or suffer or permit to be requisitioned, resumed, compulsorily
acquired or reserved by an instrumentality or by any local or other authority
of the State or any statutory authority—
(a) any portion of the
land the subject of any Special Water Licence or Special Mining Lease; or
(b) any portion of the
land the subject of any fee simple estate, lease, licence, right of way or
easement granted or used for the transport, supply or provision of petroleum,
electricity or water for the Initial Project or any Subsequent Project or for
the transport of goods, materials, Non-minesite Product or Product in
connection therewith the resumption of which would impede or hinder the Joint
Venturer's works and activities or the works and activities of any of them or
of an associated company including, without limitation, the Joint Venturer's
present or future mining and treatment activities at the minesite, nor shall
the State create of grant or permit or suffer to be created or granted by an
instrumentality or by any local or other authority of the State or any
statutory authority any road right of way or easement of any nature or kind
whatsoever over or in respect of the land comprised in any such Pipeline
Licence, Special Water Licence, Special Mining Lease, fee simple estate,
lease, licence, right of way or easement without the consent of the relevant
Joint Venturers first had and obtained.
(1) The Minister may
enter into an agreement with the Joint Venturers or any of them:
(a) that, if a Special
Mining Lease, a Special Exploration Licence or the Pipeline Licence should, at
some future time, be found to be wholly or partially invalid due to
circumstances beyond the control of the Joint Venturers, then
the Joint Venturers will have a preferential right to the grant of a new
Special Mining Lease, Special Exploration Licence or Pipeline Licence (as the
case may be); or
(b) that, if a Special
Water Licence, a Special Buffer Zone Lease or any fee simple estate, lease,
licence, right of way, easement or other estate or tenure granted to
the Joint Venturers by the State pursuant to this Indenture for the transport,
supply or provision of petroleum, electricity or water for the Initial Project
or any Subsequent Project or for the transport of goods, materials, Product or
Non-minesite Product in connection therewith should, at some future time, be
found to be wholly or partially invalid due to circumstances beyond the
control of the Joint Venturers, then the Joint Venturers will have a
preferential right to the grant of a new Special Water Licence, Special Buffer
Zone Lease, fee simple estate, lease, licence, right of way, easement or other
estate or tenure (as the case may be);
and
(c) dealing with the
terms and conditions on which the new Special Mining Lease, Special
Exploration Licence or the Pipeline Licence or the new Special Water Licence,
Special Buffer Zone Lease, fee simple estate, lease, licence, right of way,
easement or other estate or tenure (as the case may be) will be provided.
(2) The Minister must
consider any proposal by a Joint Venturer for an agreement under this Clause.
(3) Without limiting
the obligation of the Minister pursuant to subclause (2) to consider any
proposal by a Joint Venturer for an agreement pursuant to subclause (1),
the Joint Venturers acknowledge and agree that the Minister may decide to
enter into any agreement contemplated by or in relation to the matters
specified in paragraph 1 (b) in his absolute and unfettered discretion and on
such terms and conditions as he, again in his absolute and unfettered
discretion, considers appropriate. Neither the Minister's refusal or failure
to enter into an agreement contemplated by or in relation to the matters
specified in paragraph (1) (b) nor the terms and conditions of any such
agreement to which the Minister is or is not prepared to agree to shall be
matters which are arbitrable pursuant to this Indenture or otherwise, subject
to any judicial review, prerogative writ or any other proceedings to review
the exercise of the Minister's discretions or be otherwise justiciable or
reviewable but shall remain exclusively within the parties' capacities freely
to contract.
(4) Subject to
subclause (6), if any event of invalidity specified in paragraphs 1 (a) or 1
(b) should occur due to circumstances beyond the control of
the Joint Venturers, then the State shall, at that time, consider in good
faith and take whatever action, if any, within the State's powers and not
otherwise prohibited or impermissible, as the State considers, in its
discretion, to be appropriate, after taking into account any adverse effects
or impacts on the Joint Venturers caused by any such invalidity and any other
relevant factors, for the purpose either of granting a new Special Mining
Lease, Special Exploration Licence, Pipeline Licence, Special Water Licence,
Special Buffer Zone Lease or any fee simple estate, lease, licence, right of
way, easement or other estate or tenure (as the case may be) or of
ameliorating or, to the extent possible, remedying any adverse effects or
impacts of any such invalidity on the Joint Venturers. In particular, the
State shall, in its absolute and unfettered discretion, consider proposing
legislation or amendments to existing legislation in order to remedy or
ameliorate the adverse effects or impacts of any such invalidity. Any decision
made by the State to take action or not in relation to any such event of
invalidity shall not be arbitrable pursuant to this Indenture or otherwise or
be otherwise justiciable or reviewable in any manner whatsoever.
(5) The State and
the Joint Venturers shall confer in relation to any such matters.
(6) The State shall
obtain the prior agreement of the Joint Venturers to the State doing or not
doing any act, matter or thing, pursuant either to any agreement entered into
pursuant to subclause (1) or to any action taken by the State pursuant to
subclause (4), which is reasonably likely to cause or does cause the State to
incur or suffer a Claim or have the consequence of the State incurring or
suffering a Claim for the purpose of subclause (9) in respect of which
the Joint Venturers have indemnified the State. If the Joint Venturers do not
or fail to agree to the State doing or not doing any such act, matter or
thing, then the State shall not be obliged to do or not do any such act,
matter or thing (as the case may be).
(7)
The Joint Venturers shall take whatever action, if any, within the
Joint Venturers' powers and not otherwise prohibited or impermissible, as the
Joint Venturers consider, in their respective discretions, to be appropriate,
after taking into account any adverse effects or impacts on
the Joint Venturers caused by any such invalidity and any other relevant
factors, for the purpose of themselves ameliorating or, to the extent
possible, remedying any adverse effects or impacts of any such invalidity.
(8)
The Joint Venturers shall provide such reasonable assistance to the State as
may be reasonably necessary in relation to any proposed action of the State
pursuant to subclause (4).
(9) Subject both to
the State obtaining the prior agreement of the Joint Venturers pursuant to
subclause (6) and to any agreement to the contrary between the State and
the Joint Venturers in relation to the extent of the indemnity,
the Joint Venturers shall indemnify and keep indemnified the Minister and the
State from and against any Claim which the State or the Minister may suffer or
incur to itself or himself respectively or to any other person caused by or as
a consequence of either any such new Special Water Licence, Special Buffer
Zone Lease, fee simple estate, lease, licence, right of way, easement or other
estate or tenure (as the case may be) being granted by the State to
the Joint Venturers pursuant to any agreement entered into pursuant to
subclause (1) or any action taken by the State pursuant to subclause (4).
(10) For the purpose
of subclauses (6) and (9), "Claim" means any amount, claim, demand, action,
cause of action, proceedings, judgment, order, relief, remedy, right,
entitlement, damages, liquidated damages, arbitration award, loss,
compensation, reimbursement, penalty, cost, expense or liability payable,
incurred or suffered of any nature, however arising and whether arising under
statute, at law or in equity or whether of a contractual, proprietary or
tortious nature or any other civil cause of action or civil liability
whatsoever.
(11) Nothing in this
Clause 30A limits, derogates or in any affects any obligation of the State
pursuant to this Indenture, including, without limitation, pursuant to Clauses
27 or 31.
31. RESUMPTION FOR THE PURPOSES OF THIS INDENTURE
(1) The State shall as
necessary resume any land required for the purposes of this Indenture and
notwithstanding any provision of any Act may sell, lease, grant licences,
easements, and rights-of-way in respect of or otherwise dispose of, such land
to the Joint Venturers or to such of them as they may nominate to the Minister
or to an associated company as they may nominate to the Minister. The relevant
Joint Venturers shall reimburse to the State reasonable compensation
previously agreed with those Joint Venturers and paid by it in respect of any
land resumed at the request of and on behalf of them pursuant to this Clause.
(2) Where the State,
pursuant to this Indenture, is required to grant to the Joint Venturers any
estate, lease, licence or easement (not being a Special Tenement created
pursuant to this Indenture) over land (not being land resumed pursuant to
sub-clause (1) of this Clause) the property of the State, other than over any
land lying in the townsite, a Special Mining Lease, a well field, or a service
corridor for a road, railway, powerline or pipeline, the Joint Venturers shall
pay to the State the value of such estate, lease, licence or easement as
agreed with the Minister or determined by arbitration pursuant to Clause 49.
(1) Each Joint
Venturer shall pay or cause to be paid to the State in respect of Product
owned by it and which leaves the Special Mining Lease within which the
treatment plant is situated:
(a) at any time prior
to and including the fifth anniversary of the Commencement Date a royalty
(hereinafter in this Clause referred to as "the initial basic royalty") at the
rate of 2.5% of the value ex mine lease of Product; and
(b) after the fifth
anniversary of the Commencement Date and on or prior to the 31st day of
December 2005 a royalty (hereinafter in this Clause referred to as "the
subsequent basic royalty") at the rate of 3.5% of the value ex mine lease of
that Product.
In each case computed in Australian currency at the appropriate buying rate of
exchange prevailing on the date upon which—
(i)
in the case specified in either paragraph (a) or
paragraph (b) of sub-clause (2) of this Clause, the gross proceeds are
receivable; or
(ii)
in any other case, the value ex mine lease is determined,
as quoted by the Australian and New Zealand Banking Group Limited Melbourne
or, in the absence of the said bank giving a quotation, at the appropriate
rate of exchange agreed between the Minister and the relevant Joint Venturer
within 60 days of the relevant quarter day (being a quarter day specified in
paragraph (a) of sub-clause (4) of this Clause) and in the absence of
agreement as determined by arbitration in accordance with Clause 49. The
initial basic royalty and the subsequent basic royalty are hereafter in this
Clause referred to as "the basic royalty".
(2) For the purpose of
this Clause 32 the expression "value ex mine lease" means:—
(a) in the case of
Product which leaves the Special Mining Lease within which the treatment plant
is situated pursuant to an arm's length sale of that Product in the form in
which it does so leave the said Special Mining Lease—the gross proceeds
receivable in respect of that sale less all costs and expenses incurred or
payable by the relevant Joint Venturer in respect of that sale but not
including costs and expenses incurred or payable in respect of producing or
stockpiling such Product within the said Special Mining Lease;
(b) in the case of
Product which leaves the Special Mining Lease within which the treatment plant
is situated pursuant to a non arm's length sale of that Product in the form in
which it does so leave the said Special Mining Lease—the value as agreed
by the relevant Joint Venturer and the Minister (which value shall take into
account all costs and expenses incurred or payable by the relevant Joint
Venturer in respect of that sale but not including costs and expenses incurred
or payable in respect of producing or stockpiling such Product within the said
Special Mining Lease) within 60 days of the relevant quarter day (being a
quarter day specified in paragraph (a) of sub-clause (4) of this Clause) or if
no such agreement is reached the value as determined pursuant to paragraph (d)
of this sub-clause (2);
(c) in the case of
Product which leaves the Special Mining Lease within which the treatment plant
is situated, other than Product referred to in paragraphs (a) and (b) of this
sub-clause (2), and which is subsequently sold in the form in which it does so
leave the said Special Mining Lease pursuant to an arm's length sale prior to
the date upon which a return in respect thereof is to be furnished to the
Minister pursuant to paragraph (a) of sub-clause (4) of this Clause—the
gross proceeds receivable in respect of that sale less all costs and expenses
incurred or payable by the relevant Joint Venturer in respect of that sale but
not including costs and expenses incurred or payable in respect of producing
or stockpiling such Product within the said Special Mining Lease;
(d) in any other
case—the deemed value. The deemed value shall be calculated as
follows:—
firstly, the relevant Joint Venturer and the Minister shall for each relevant
quarter agree upon an appropriate quoted price (commonly used in price setting
in that particular commodity) in respect of Product in the form in which it
leaves the Special Mining Lease within which the treatment plant is situated
or where there is no such quoted price shall agree upon an appropriate quoted
price in respect of Product in a form other than that in which it leaves the
said Special Mining Lease and which price is commonly used in price setting of
Product in the form in which it does leave the said Special Mining Lease
(either of such prices being herein called "the reference price");
secondly, the relevant Joint Venturer and the Minister shall by agreement
adjust each quotation of the reference price during the relevant quarter to a
price comparable to prices then being obtained on the open market for material
comparable to Product in the form in which it leaves the Special Mining Lease
within which the treatment plant is situated and giving appropriate weight to
all relevant factors including:—
A. in any case where
the reference price agreed pursuant to "firstly" (above) is in respect of a
form of Product different from the form in which Product leaves the Special
Mining Lease within which the treatment plant is situated, the quality of
Product compared with the quality of the commodity in respect of which the
reference is quoted;
B. the then current
free market sales terms and conditions in contracts for the relevant commodity
for deliveries in the relevant quarter by on-going producers of the commodity
selling substantial quantities of the commodity directly or indirectly to
commercial undertakings (and in the case of uranium oxide, to electricity
producers or other like commercial undertakings) on an arm's length basis;
C. the date, term and
nature (including without limitation, the pricing basis thereof) of such
contracts and the quantity and quality of the commodity involved;
D. relevant
information published or made available on a regular basis by government
agencies and reputable companies or organisations involved in collating
pricing and other information of a commercial nature relating to the purchase
and sale of the relevant commodity;
thirdly, from each such adjusted quoted price shall be deducted all costs and
expenses which the relevant Joint Venturer and the Minister agree within
60 days of the relevant quarter day (being a quarter day specified in
paragraph (a) of sub-clause (4) of this Clause) would have been incurred
or payable by the relevant Joint Venturer—
A. in respect of a
sale of Product at each such adjusted quoted price, if such sale had taken
place; and
B. each such sale
would have required delivery of Product in the terms contemplated by each such
adjusted quoted price; and
C. such costs and
expenses would have been incurred or payable in respect of such a sale (but
not including costs and expenses incurred or payable in respect of producing
or stockpiling such Product within the Special Mining Lease within which the
treatment plant is situated) until the point of delivery which would have been
required by a sale at each such adjusted quoted price
and each resultant value shall be a gate value;
fourthly, the average of all gate values calculated for the relevant quarter
shall be obtained and the resultant shall be the deemed value for the purpose
of calculating value ex mine lease of Product.
In any case where the relevant Joint Venturer and the Minister are unable to
agree upon—
A. a reference price
pursuant to 'firstly' of paragraph (d) of this sub-clause (2); or
B. an adjustment to a
quotation of a reference price pursuant to 'secondly' of paragraph (d) of this
subclause (2); or
C. the deductability
of any costs and expenses pursuant to 'thirdly' of paragraph (d) of this
sub-clause (2)
the matter shall be referred to an independent expert for determination
pursuant to Clause 50.
(e) for the purpose of
determining gross proceeds receivable in the case of paragraphs (a) and (c) of
this sub-clause—
firstly, determine sales proceeds actually receivable. Sales proceeds actually
receivable include—
(i)
in the case where sales revenues have been received in
respect of Product prior to it leaving the Special Mining Lease within which
the treatment plant is situated, the amount which has been received after
allowance for any interest or amounts in the nature of interest have been
taken into account in respect of those sales revenues; and
(ii)
in the case where sales revenues are to be received in
respect of Product after it leaves the Special Mining Lease within which the
treatment plant is situated, the amount which is to be received after
allowance for any interest or amounts in the nature of interest have been
taken into account in respect of those sales revenues.
The amount determined pursuant to "firstly" of this paragraph (e) is the
adjusted amount.
Secondly, calculate the current value of the adjusted amount by applying the
following formula—
Where
C = the current value of the adjusted amount
A = the adjusted amount
CPI 1 = the Consumer Price Index for the City of Adelaide (All Groups) for the
quarter within which the adjusted amount—
(i)
in the case where sales revenues have been received in
respect of Product prior to it leaving the Special Mining Lease within which
the treatment plant is situated, was received, and,
(ii)
in the case where sales revenues are to be received in
respect of Product after it leaves the Special Mining Lease within which the
treatment plant is situated, is estimated to be received.
CPI 2 = the Consumer Price Index for the City of Adelaide (All Groups) for the
quarter within which the Product in respect of which the adjusted amount is
received or receivable leaves the Special Mining Lease within which the
treatment plant is situated.
provided that where an adjusted amount is received or is estimated to be
received within 60 days of the date upon which the Product to which the
adjusted amount relates leaves the Special Mining Lease within which the
treatment plant is situated the current value thereof will be deemed to be the
adjusted amount.
thirdly, if necessary, calculate the sum of the current values of the adjusted
amounts in respect of the same sale and the resultant of that calculation is
the gross proceeds receivable in respect of that sale.
(3) After the 31st day
of December 2005 royalty on Product in substitution for the basic royalty and
the surplus related royalty shall unless the Minister and the holders of each
Special Mining Lease otherwise agree be calculated and payable on the basis
which, subject always to the provisions of Clause 34 as to non-discrimination,
is equivalent to that specified from time to time to be payable in respect of
the mining of the relevant mineral as provided in the Mining Act. Any failure
by the Minister and the said holders to agree as aforesaid shall not be
arbitrable.
(4) —
(a) Each Joint
Venturer shall during such time as it is obliged to pay royalties to the State
pursuant to the preceding sub-clauses of this Clause within 90 days after the
following quarter days (in this sub-clause referred to as "the due date")
namely the last days of March June September and December or such other days
(having regard to a Joint Venturer's accounting practice) as may be agreed
from time to time by the Minister and the relevant Joint Venturer in each year
furnish or cause to be furnished to the Minister a return showing all
particulars necessary to enable the calculation of the royalty payable for the
quarter immediately preceding the due date of the return which return shall be
accompanied by the amount of the royalty to be paid to the State in accordance
with the return.
(b) If at the time of
preparation of the return referred to in paragraph (a) of this sub-clause (4)
the relevant Joint Venturer is unable to calculate the royalty on the basis of
actual revenues and costs and charges pursuant to paragraph (a) or (c) of
sub-clause (2) of this Clause it shall calculate the royalty on the basis of
estimates thereof and within 30 days of the relevant Joint Venturer becoming
aware of actual revenues and costs and charges in relation to Product in
respect of which estimated royalty has been calculated and paid as
hereinbefore provided, the relevant Joint Venturer shall determine the actual
amount of the royalty payable and shall furnish or cause to be furnished to
the Minister a return showing relevant particulars and the following amounts
shall thereupon be payable:—
(i)
where the estimate of the royalty payable exceeds the
actual royalty payable the difference shall be forthwith paid to the relevant
Joint Venturer by the State;
(ii)
where the estimate of the royalty payable is less than
the actual royalty payable the difference shall be forthwith paid to the State
by the relevant Joint Venturer.
(5) Should the
Minister so request within 6 months of the furnishing thereof in respect of
any return furnished pursuant to sub-clause (4) of this Clause, the Joint
Venturer to whom the request is made shall provide to the Minister as promptly
as practicable after the request is made an auditor's report on the said
return by its external auditor. Within the said period of 6 months the State
Auditor General or a registered auditor approved by the Minister may request
from a Joint Venturer reasonable and relevant information in respect of any
such return and the relevant Joint Venturer shall provide the same. Any
information so provided by a Joint Venturer shall be treated by the Minister,
the State Auditor-General or any registered auditor appointed by the Minister
on a strictly confidential basis and the right to request such information
shall include the right to examine the books of the joint venture kept by the
Manager and that part of the books of a relevant Joint Venturer which relates
to the conduct of the relevant Joint Venturer's operations in respect of which
royalty is payable pursuant to this Clause. If a report provided to the
Minister by the State Auditor-General or other auditor appointed by the
Minister disagrees with an auditor's report provided as aforesaid, the
relevant Joint Venturer and the Minister shall agree whether an adjustment
should be made between the State and the relevant Joint Venturer of the amount
of any royalty paid or which should have been paid hereunder and such
adjustment shall be promptly made between the State and the Joint Venturer
concerned provided always that if the relevant Joint Venturer and the Minister
are unable to agree the matter shall be referred to arbitration pursuant to
Clause 49.
(6) In addition to the
basic royalty payable to the State under this Clause 32 there shall be payable
in respect of each relevant group (as that expression is defined in
sub-clause (11) of this Clause) to the State in respect of each financial
year or part of a financial year from the Commencement Date until and
including the 31st day of December 2005 (each such financial year or part
thereof being hereinafter in this Clause referred to as an "SRR year") a
further royalty (in this Clause referred to as "surplus related royalty")
calculated in accordance with the following formula:
Where:
SRR = the amount of the surplus related royalty;
C = the rate of royalty expressed as a percentage calculated as provided in
sub-clause (10) of this Clause;
APTPS = average post threshold project surplus calculated as provided in
sub-clause (7) of this Clause;
T =
(i)
in each SRR year until and including the fifth
anniversary of the Commencement Date, zero;
(ii)
in each SRR year from and after the fifth anniversary of
the Commencement Date until and including the 31st day of December 2005 the
lesser of
|
(1) |
|
|
(2) |
M, where M = 1% of the value ex mine lease of the relevant group's Product
calculated as provided in sub-clause (2) of this Clause for the relevant SRR
year. |
Each Joint Venturer which is a member of a relevant group (as that expression
is defined in sub-clause (11) of this Clause) shall be jointly liable with
other members of the same relevant group to pay to the State the surplus
related royalty in respect of that relevant group provided that a Joint
Venturer shall have no liability to pay the surplus related royalty in respect
of a relevant group of which it is not a member.
Where the Commencement Date or the 31st day of December 2005 does not coincide
with the date of commencement of a financial year of a relevant group or the
expiry of such a financial year respectively the basic principles embodied in
this Clause with regard to the determination of SRR shall be applied in
respect of the period between the Commencement Date and the end of such
financial year in which the Commencement Date occurs, and of the period
between the end of the financial year immediately preceding the 31st day of
December 2005 and the 31st day of December 2005.
For the purposes of determining, in particular but without limitation, PTPS
and FE, depreciation charges and escalation calculated in accordance with sub
clause (8) of this Clause in respect of each of the aforesaid periods in
question shall be pro rated in the proportion that each such period bears to a
full financial year.
(7) For the purposes
of the formula in sub-clause (6) of this Clause APTPS is determined as
follows—
First determine the relevant group's project cash surplus ("PCS") for the
relevant SRR year.
PCS = the value ex mine lease of all Product for which sales revenues are
receivable or are deemed to be receivable in the relevant SRR year.
For the purposes of determining PCS—
(a) sales revenues
shall become receivable, subject to the next succeeding paragraphs (b) and (c)
on the date upon which title to the Product in respect of which such sales
revenues are receivable passes to the purchaser of such Product;
(b) in the case of
Product which leaves the Special Mining Lease within which the treatment plant
is situated unsold for further processing, sales revenues will be deemed to be
receivable in the SRR year during which such Product so leaves the said
Special Mining Lease;
(c) where sales
revenues have been received in respect of Product prior to it leaving the
Special Mining Lease within which the treatment plant is situated, PCS for an
SRR year shall include the value ex mine lease of such Product in respect of
which that portion of sales revenues so received is applicable to Product
which has actually left the said Special Mining Lease during that SRR year.
plus all income receivable by or on behalf of the relevant group in the
relevant SRR year from the rental of housing accommodation at the town the
provision of which housing accommodation is the responsibility of the Joint
Venturers or any of them under or pursuant to this Indenture, and all income
from the sale of power and water, and the provision of sewerage and other
facilities and services, at the town the operating costs related to which are
included within the deductible expenditure of a member of the relevant group
for the Initial Project or subject to paragraph (g) of sub-clause (11) of this
Clause any Subsequent Project pursuant to paragraphs (a) to (h) inclusive as
next provided
less the following costs and expenses of the relevant group or any member
thereof to the extent that such costs and expenses relate to activities
undertaken within or in respect of a Special Mining Lease.
(a) all costs and
expenses other than those referred to in the next succeeding paragraph (b) of
an operating nature properly chargeable to a member of the relevant group by
the Manager in the relevant SRR year which costs and expenses are attributable
to the mining and production of Product;
(b) the lesser of:
(i)
the portion of actual rentals payable to the State in
respect of any Special Mining Lease payable by or properly chargeable to a
member of the relevant group in the relevant SRR year; or
(ii)
the portion of the maximum rental in respect of any
Special Mining Lease calculated in accordance with the following formula which
would have been payable by or properly chargeable to a member of the relevant
group in the relevant SRR year:
Where
MR = the maximum rental
A = the area (in hectares) of all Special Mining Leases as at the commencement
of the relevant SRR year of which a member of the relevant group is a holder
B = $5, being the rent payable per hectare in respect of mineral leases
granted under the Mining Act as at 30 September 1981
CPI 1 = the Consumer Price Index for the City of Adelaide (All Groups) for the
quarter ended 30th September 1981
CPI 2 = the Consumer Price Index for the City of Adelaide (All Groups) for the
quarter last ended before the end of the relevant SRR year;
(c) all reasonable
stockpiling, transport and other expenses necessarily payable by a member of
the relevant group in the relevant SRR year in respect of Product;
(d) an amount equal to
2.5% of the value ex mine lease of Product owned by a member of the relevant
group which in the relevant SRR year leaves the Special Mining Lease within
which the treatment plant is situated;
(e) reasonable
administrative overheads relative to the Initial Project and subject to
paragraph (g) of subclause (11) of this Clause any Subsequent Project for the
relevant SRR year;
(f) to the extent that
same is not included as a cost and expense under the last preceding paragraph
(a) , that part of the provisions made in the relevant SRR year in the books
of account of a member of the relevant group for long service leave, holiday
pay and superannuation benefits and entitlements of its employees that relates
to personnel of that member of the relevant group engaged on the Initial
Project and subject to paragraph (g) of sub-clause (11) of this Clause any
Subsequent Project pro rated in respect of those employees who are not engaged
full time thereon in accordance with the time actually spent;
(g) any borrowing or
financing costs and expenses (including Stamp Duty) in respect of the Initial
Project and subject to paragraph (g) of sub-clause (11) of this Clause any
Subsequent Project incurred in the relevant SRR year but after the
Commencement Date; and
(h) provision for mine
closure and rehabilitation made in the relevant SRR year in the books of
account of a member of the relevant group which provision shall be as agreed
between the relevant Joint Venturers and the State in relation to the Initial
Page 191 Project and subject to paragraph (g) of sub-clause (11) of this
Clause any Subsequent Project and in the absence of agreement as determined by
arbitration in accordance with Clause 49;
Provided However that there shall not be deducted from or added to either the
aforesaid value ex mine lease or income of the relevant group or any member
thereof either of the following—
(i)
interest payable or receivable
(ii)
any loss or gain attributable to a movement in currency
exchange rates on borrowings by a member of the relevant group for purposes of
the Initial Project or subject to paragraph (g) of sub-clause (11) of this
Clause any Subsequent Project.
The resultant of making the foregoing deductions from the aforesaid aggregate
of the value ex mine lease and other income is the PCS for the relevant SRR
year of the relevant group which may be a positive or negative amount.
Second determine the project surplus ("PS") for the relevant SRR year of the
relevant group by deducting from PCS
(a) where PCS is a
positive amount an amount equal to the amount of definition D in the formula
in sub-clause (8) of this Clause 32; and
(b) after making the
deduction in the immediately foregoing paragraph (a) (if any), an amount
derived by applying to that resultant a percentage equal to the average rate
of tax (being the amount of tax that would be payable expressed as a
percentage of taxable income) that would have applied pursuant to income tax
or like legislation of the Commonwealth of Australia and/or of any State of
Australia applicable in respect of the relevant SRR year as if the relevant
group was a single taxpayer and the resultant obtained after making the
deduction in the immediately foregoing paragraph (a) (whether a positive or
negative amount but expressed as a positive amount for the purposes only of
ascertaining the appropriate rate of tax) was its only taxable income; and
(c) after making the
deduction in the immediately foregoing paragraph (b) , an amount derived by
deducting from the resultant the amount or value of any "resources" or similar
tax, rent, charge, duty, rate, tariff or levy imposed by the Government of the
Commonwealth of Australia or any State of Australia and paid by a member of
the relevant group in the relevant SRR year which amount if not payable only
in relation to the Initial Project or subject to paragraph (g) of sub-clause
(11) of this Clause a Subsequent Project, shall be the amount or value in
relation to the members of the relevant group calculated (if such be
appropriate) on the notional basis that such Initial Project or Subsequent
Project (as the case may be) is the sole activity of the relevant member of
the relevant group.
The resultant expressed in Australian currency of the calculations under the
passage described as "Second" above, is project surplus ("PS") for the
relevant SRR year of the relevant group which may be a positive or negative
amount.
Third deduct from PS for the relevant SRR year an amount obtained by
multiplying "MFE" (as that expression is defined in sub-clause (8) of this
Clause) by a factor equal to 1.2 times the ten year Commonwealth of Australia
Bond Rate of the relevant SRR year expressed as percentage, such percentage
being hereinafter referred to as the threshold rate of return ("TRR") for the
relevant SRR year.
The resultant of the calculation under the passage described as "Third" above
is the post threshold project surplus ("PTPS") for the relevant SRR year of
the relevant group which may be a positive or negative amount.
For the purposes of the passage described as "Third" above and of this Clause
32 the "Commonwealth of Australia Bond Rate" is the theoretical yield on a non
brokerage basis for non rebate bonds based on the average for the week
centered on the last Wednesday of the month of June for Commonwealth
Government Bonds with a maturity nearest to ten years after the relevant month
of June as currently quoted in the monthly Reserve Bank of Australia Bulletin.
APTPS is in respect of the relevant group in each SRR year the PTPS of that
relevant group for that SRR year plus the PTPS of that relevant group for each
consecutive preceding SRR year up to a maximum of 4 such preceding consecutive
SRR years divided by the number of SRR years so taken into account.
(8) Funds Employed
("FE") of a relevant group as used in the passage described as "Third" in
sub-clause (7) of this clause is determined in accordance with the following
formula—
Where:
FE = the total funds employed by the relevant group for the relevant SRR year
in the Initial Project and subject to paragraph (g) of sub-clause (11) of this
Clause in any Subsequent Project and (as the case may be) in the Olympic Dam
Area and, prior to the selection of all Selected Areas, the Stuart Shelf Area
and after such selection, the Selected Areas:
Where:
PFE =
(i)
in respect of the first SRR year, the relevant group's
accumulated expenditure (including, without limiting the generality of the
foregoing, interest (which in the case of an arm's length transaction shall be
interest actually payable and in the case of a non arm's length transaction
shall be at a rate which is reasonable having regard to the type and size of
the loan facility in question) (whether capitalised or not), together with the
cost of borrowing (including Stamp Duty), exploration expenditure and other
pre-production expenses) for the Initial Project and, subject to paragraph (g)
of sub-clause (11) of this Clause any Subsequent Project and (as the case may
be) in the Olympic Dam Area and, prior to the selection of all Selected Areas,
the Stuart Shelf Area and after such selection, the Selected Areas
(hereinafter all referred to as "Project Assets") incurred at any time prior
to the Commencement Date; and
(ii)
in respect of each subsequent SRR year after the first
SRR year until and including the 31st day of December 2005 the APFE of the
relevant group in respect of the immediately preceding financial year;
D = the lesser of:
(i)
depreciation at the rate hereinafter mentioned on PFE
(current written down value) of the relevant SRR year; or
(ii)
the greater of PCS of the relevant group for the relevant
SRR year and zero.
The rate of depreciation aforesaid shall be:
(1) the percentage
determined by dividing 100 by the number which equals the remaining life
(expressed in numbers of complete years) of the mine or if there is more than
one mine, of the mine that has the longer or longest estimated remaining life
which form part of the Initial Project or subject to paragraph (g) of
sub-clause (11) of this Clause a Subsequent Project (as the case may be) which
said remaining life shall be as agreed between the relevant Joint Venturers
and the State and failing agreement shall be as determined by arbitration in
accordance with Clause 49, or
(2) 20%,
whichever is the higher rate.
CPIM2 = the Consumer Price Index for the City of Adelaide (All Groups)
published by the Australian Bureau of Statistics for the quarter last ended
prior to the end of the relevant SRR year;
CPIM1 = the Consumer Price Index for the City of Adelaide (All Groups)
published by the Australian Bureau of Statistics for the quarter last ended
prior to the end of the year immediately preceding the relevant SRR year to
which CPIM2 relates;
NF =
(i)
in relation to the Initial Project and subject to
paragraph (g) of sub-clause (11) of this Clause any Subsequent Project in
respect of which start up has occurred in a previous SRR year, capital
expenditure of all members of the relevant group on all Project Assets
(including expenditure on exploration), other than current assets, for the
relevant SRR year; and
(ii)
subject to paragraph (g) of sub-clause (11) of this
Clause in relation to any Subsequent Project in respect of which start up has
not yet occurred:—
(a) where a negative
election has been made, capital expenditure of all members of the relevant
group on all Project Assets (including expenditure on exploration), other than
current assets, for the relevant SRR year; or
(b) where a positive
election has been made, nil; and
(iii)
subject to paragraph (g) of sub-clause (11) of this
Clause in relation to any Subsequent Project in respect of which start up
occurred during the relevant SRR year:—
(a) where a negative
election has been made, capital expenditure of all members of the relevant
group on all Project Assets (including expenditure on exploration), other than
current assets, for the relevant SRR year; or
(b) where a positive
election has been made:—
(1) all expenditure of
the relevant group from the date upon which a Project Notice in respect of
that Subsequent Project was given until the date upon which start up occurred
including (without limiting the generality of the foregoing) interest (whether
capitalised or not), cost of borrowing (including Stamp Duties), exploration
expenditure and other pre-production expenses; plus
(2) capital
expenditure of all members of the relevant group on all Project Assets
(including expenditure on exploration) other than current assets, during the
relevant SRR year subsequent to start up; and
(iv)
any exploration expenditure during the relevant SRR year
by a member of the relevant group in the Olympic Dam Area and in the Stuart
Shelf Area prior to the selection of all Selected Areas and after such
selection, in the Selected Areas which expenditure is not otherwise included
pursuant to the preceding paragraphs (i), (ii) or (iii);
less the escalated written down value (determined in accordance with the
formula for calculating APFE) of:
(a) any asset acquired
for or in connection with the Initial Project or subject to paragraph (g) of
sub-clause (11) of this Clause any Subsequent Project which is sold and the
proceeds of such sale are received during the relevant SRR year; and
(b) where in any
relevant SRR year a member of the relevant group has sold, assigned or
transferred a share or interest in the Initial Project or subject to paragraph
(g) of sub-clause (11) of this Clause a Subsequent Project to a third party
(other than a sale, assignment or transfer to an associated company or by way
of security) the percentage of Funds Employed as at the end of the relevant
SRR year represented by the share or interest sold, assigned or transferred;
and
(c) where in any
relevant SRR year a member of the relevant group has granted for valuable
consideration to a third party (other than an associated company) a right to
use any asset acquired for or in connection with the Initial Project or
subject to paragraph (g) of sub clause (11) of this Clause any Subsequent
Project an appropriate proportion of the amount represented in Funds Employed
by that asset as at the end of the relevant SRR year such proportion being
calculated in the proportion that the use made of that asset by the third
party bears to the total use of that asset.
When subject to paragraph (g) of sub-clause (11) of this Clause a Project
Notice in respect of the first Subsequent Project is given each Joint Venturer
which is a participating Joint Venturer shall, at the time of giving such
Notice, notify the State whether the relevant group of which it is a member
elects (for the purposes of calculating SRR):
(1) to include
subsequent capital expenditure in respect of that Subsequent Project and,
subject to paragraph (g) of sub-clause (11) of this Clause, any other
Subsequent Project in NF as it is incurred (which for the purposes of the last
preceding paragraphs (ii) and (iii) shall be a negative election); or
(2) to include in NF
in the relevant SRR year during which start up in respect of such first or
other Subsequent Project occurs all capital expenditure in respect of that
first and, subject to paragraph (g) of sub clause (11) of this Clause, any
Subsequent Project incurred from the date the said Project Notice in respect
of the relevant Subsequent Project is given until start up in respect of that
Subsequent Project occurs including (without limiting the generality of the
foregoing) interest (whether capitalised or not), cost of borrowing (including
Stamp Duty), exploration expenditure and other pre production expenses (which
for the purposes of the last preceding paragraphs (ii) and (iii) shall be a
positive election).
In the event that no participating Joint Venturer in a relevant group makes a
positive or negative election the Project Notice in respect of the first
Subsequent Project shall be a valid Notice and the relevant group shall be
deemed to have made a negative election.
For the purposes of calculating NF the date upon which start up in respect of
any Subsequent Project occurs shall be the date which the participating Joint
Venturers in respect of that Subsequent Project notify to the State as being
the start up date and if any date so notified is not accepted by the State
within 60 days from receipt of such notification then the question shall
be referred to abitration pursuant to Clause 49.
WC = the net working capital of the relevant group in relation to the Initial
Project and subject to paragraph (g) of sub-clause (11) of this Clause any
Subsequent Project and (as the case may be) in the Olympic Dam Area, and,
prior to the selection of all Selected Areas, the Stuart Shelf Area and after
such selection, the Selected Areas as at the end of the relevant SRR year.
For the purpose of WC "net working capital" means trade debtors, stocks
(including work-in-progress) and stores less trade creditors and current
provisions (including provisions for current income tax calculated if
necessary on the notional basis that the taxable income (if any) of the
members of the relevant group is derived solely from the Initial Project and
subject to paragraph (g) of sub-clause (11) of this Clause any Subsequent
Project (as the case may be) and for the 2½% ad valorem royalty payable
under this Indenture but excluding provisions for interest, resources tax and
SRR royalty payable under this Indenture).
Average funds employed ("AFE") of a relevant group in an SRR year is the MFE
of that relevant group for that SRR year plus the MFE of that relevant group
for each consecutive preceding SRR year up to a maximum of 4 such preceding
consecutive SRR years divided by the number of SRR years so taken into
account.
MFE means the funds employed at the mid point of the relevant SRR year
calculated by averaging the FE at the beginning of that year with the FE at
the end of that year.
(9) PRR of a relevant
group for an SRR year is determined in accordance with the following formula
Where:
PRR = the project rate of return;
APS = in respect of a relevant group in an SRR year, the PS of the relevant
group for that SRR year plus the PS of the relevant group for each consecutive
preceding SRR year up to a maximum of 4 such preceding consecutive SRR years
divided by the number of SRR years so taken into account;
AFE = has the meaning ascribed thereto in sub-clause (8) of this Clause 32.
(10) The rate of
royalty payable in respect of a relevant group (being C in the definition of
SRR) and calculated to the third decimal place is determined in respect of an
SRR year by applying the formula which applies to the range of PRR's into
which the PRR of the relevant group expressed as a multiple of the
Commonwealth of Australia Bond Rate (expressed as a number) for the relevant
SRR year falls as follows—
|
Range of PRR's (Q) |
Formula "C" | |
|
less than 1.2 |
C = Zero | |
|
1.2 to less than 1.8 (inclusive) |
C = 10 |
|
|
1.8 to less than 2.4 (inclusive) |
C = 10 + 5 |
|
|
2.4 and over |
C = 15 | |
Where:
C = the rate of royalty expressed as a percentage;
Q = the PRR of the relevant group expressed as a multiple of the Commonwealth
of Australia Bond Rate (expressed as a number).
(11) For the purposes
of the calculation of SRR the following principles and definitions shall,
inter alia, be applied—
(a) all accounting
terms and expressions shall (as appropriate) be interpreted in accordance with
generally accepted accounting principles in Australia consistently applied and
any such principle adopted or used by a Joint Venturer shall be accepted as
correct for the purposes of calculations pursuant to this Clause;
(b) all monetary
amounts shall be calculated and stated in Australian currency and where
appropriate converted to Australian currency at the appropriate buying rate of
exchange prevailing on the relevant date as quoted by the Australian and New
Zealand Banking Group Limited Melbourne or, in the absence of the said bank
giving a quotation, at the appropriate rate of exchange agreed between the
Minister and the Joint Venturers. If agreement cannot be reached within three
months after first conferring the matter shall be referred to arbitration in
accordance with Clause 49;
(c) if the Australian
Bureau of Statistics ceases to publish a relevant index then
the Joint Venturers and the Minister shall confer forthwith and endeavour to
agree upon the adoption of another suitable index or basis for use in the
calculation of APFE in lieu of the one which has ceased to be published. If
agreement cannot be reached within three months after first conferring the
matter shall be referred to arbitration in accordance with Clause 49;
(d) if there is at any
time no applicable Commonwealth of Australia Bond Rate available in respect of
an SRR year the Joint Venturers and the Minister shall confer forthwith and
endeavour to agree upon the adoption of another suitable rate or basis for use
in substitution therefor which shall be as nearly as practicable equivalent to
the basis or rate theretofor provided by the Commonwealth of Australia Bond
Rate. If agreement cannot be reached within three months after first
conferring the matter shall be referred to arbitration in accordance with
Clause 49;
(e) in the calculation
of "value ex mine lease" in the determination of PCS for an SRR year, the
provisions of sub-clause (2) and of paragraph (b) of sub-clause (4) of
this Clause shall apply, mutatis mutandis;
(f) in the calculation
of PCS for an SRR year, if insufficient provision has been made for mine
closure and rehabilitation expenses in respect of a particular mine then the
total amount of such insufficient provision shall be apportioned equally
between all previous SRR years in which provision has been made for mine
closure and rehabilitation expenses in respect of that mine so that SRR for
each such previous year shall be recalculated to take into account actual mine
closure and rehabilitation expenses of the affected relevant group or groups
for that mine and the State shall, if more SRR has been paid in respect of a
previous SRR year or years than would have been paid had SRR for such previous
SRR year or years been calculated on the basis of PS that took into account
the actual mine closure and rehabilitation expenses ("the surplus"), promptly
pay to the affected relevant group or groups upon request (which shall be
accompanied by all particulars necessary to substantiate the same) an amount
equal to the surplus as escalated by applying thereto the Commonwealth of
Australia Bond Rate from the date the surplus was paid as SRR to the date of
payment by the State to the affected relevant group or groups hereunder;
(g) APTPS and FE shall
be calculated for each Joint Venturer, its related corporations (within the
meaning of that term as used in section 6 of the Companies Act, 1962, as
at present in force) and associated companies (in this Clause 32 referred to
as "a relevant group") on an aggregate basis in respect of the Initial Project
and all Subsequent Projects regardless of their locations except in relation
to the Initial or any Subsequent Project within the Olympic Dam Area which,
and only to the extent that, such Project includes income derived from and
expenses incurred in the production and sale of diamonds and in relation to
the Initial Project or any Subsequent Project outside the Olympic Dam Area
which, and only to the extent that, such Project includes income derived from
and expenses incurred in the production and sale of tin or diamonds and except
further in relation to any Subsequent Project within the Olympic Dam Area to
the extent, and only to the extent, that any such Subsequent Project includes
income derived from and expenses incurred in the production and sale of
Non-minesite Product;
(h) in the calculation
of "M" in the definition of "T" in sub-clause (6) of this Clause "value ex
mine lease" and "costs and charges properly incurred" as referred to in
sub-clause (2) of this Clause shall be calculated by aggregating for each
relevant group their respective "value ex mine lease" and "costs and charges
properly incurred" in respect of the Initial Project and subject to paragraph
(g) of this sub-clause (11) all Subsequent Projects;
(i) "relevant SRR
year" means the SRR year in respect of which the calculation of SRR is being,
or is required to be, made;
(j) "financial year"
means the financial year of the relevant group in respect of which the
expression is used;
(k) the return to be
furnished to the Minister pursuant to sub-clause (13) of this Clause for the
SRR year which includes the 31st day of December 2005 shall be prepared on the
notional basis that all stocks (including work-in-progress) on hand as at the
31st day of December 2005 shall have been sold on that date for an amount
equal to the value ex mine lease of that Product (with appropriate adjustment
being made in respect of work-in-progress) calculated in accordance with
paragraph (d) of sub-clause (2) of this Clause;
(l) unless otherwise
agreed (and failure to so agree shall not be arbitrable), for the purpose of
sub-clause (3) of this Clause, where Product has been deemed to have been sold
pursuant to paragraph (k) of this sub-clause no royalty, other than royalty of
a type similar to the basic royalty, shall be payable in respect of that
Product or in respect of the proceeds derived from the subsequent sale of that
Product or, in the case of work-in-progress, that part of the Product or of
the proceeds of that Product produced therefrom in respect of which royalty
has been paid as a result of the application of paragraph (k) of this
sub-clause.
(12) —
(a)
The Joint Venturers shall keep or cause to be kept a record of the type,
amount and form of all Product which leaves the Special Mining Lease within
which the treatment plant is situated and of the type, amount and form of such
Product which is owned by each Joint Venturer.
(b)
The Joint Venturers shall deliver or cause to be delivered to the Minister
within thirty days before each due date specified in paragraph (a) of
sub-clause (4) of this Clause a copy of the record required to be kept under
paragraph (a) of this sub-clause in respect of the preceding quarter and the
copy so delivered shall in the absence of proof to the contrary be deemed to
contain a correct record of the details contained therein.
(13) —
(a) Each Joint
Venturer which is a member of a relevant group shall during such time as SRR
is payable to the State pursuant to and in accordance with sub-clauses (6) to
(11) (both inclusive) of this Clause, within one hundred and twenty days after
the close of each relevant financial year be jointly liable with every other
member of the same relevant group to furnish or cause to be furnished to the
Minister a return in respect of that relevant group for that relevant
financial year showing all particulars necessary to enable the calculation of
SRR (if any) to be made for the relevant financial year which return shall be
accompanied by the amount of the SRR to be paid to the State hereunder in
accordance with the return.
(b) The provisions of
paragraph (b) of sub-clause (4) of this Clause shall apply, mutatis mutandis,
to the calculations included in any return referred to in paragraph (a) of
this sub-clause (13).
(14) The provisions of
sub-clause (5) of this Clause shall apply, mutatis mutandis, to any return
furnished pursuant to sub-clause (13) of this Clause.
(15) In any case where
the portion of the actual rental payable to the State by a member or members
of a relevant group in respect of all Special Mining Leases in an SRR year
exceeds the portion of the maximum rental for that relevant year calculated
pursuant to sub-paragraph (ii) of paragraph (b) of sub-clause (7) of this
Clause which would be payable by that member or members, then the SRR payable
(if any) by that relevant group shall be reduced by the amount of such excess
and if any of such excess then remains the basic royalty payable by such
member or members shall be reduced by the amount of such remainder.
(16) In the event that
any royalty payable to the State by a Joint Venturer pursuant to this Clause
32 is not paid within the time specified for the payment thereof and remains
unpaid for a period of thirty days after notice of such non payment shall have
been given by the Minister to such Joint Venturer the State may by action in
any Court of competent jurisdiction recover the amount of such unpaid royalty
as a civil debt.
(17) Failure by a
Joint Venturer to pay any royalty to the State pursuant to this Clause 32
shall not confer on the State any right to—
(a) terminate this
Indenture; or
(b) seek to recover
the amount of such unpaid royalty (in the case of the basic royalty) from any
other Joint Venturer or (in the case of the surplus related royalty) from any
Joint Venturer which is not a member of the relevant group
and the remedies of the State in respect of such non payment shall be limited
to the remedies specified in sub-clause (16) of this Clause.
32A. PRODUCTION OF NON-MINESITE PRODUCT
The Joint Venturers or any of them may produce or cause to be produced, in a
calendar year, Non-minesite Product from Non-minesite Materials in the form of
ore not extracted from lands comprised in a Special Mining Lease but extracted
from lands within South Australia up to a maximum weight in tonnes which is
less than or equal to twenty per cent (20%) of the weight in tonnes of Product
produced pursuant to the Indenture for the same calendar year. The Joint
Venturers shall not produce or permit or cause to be produced, in any calendar
year, Non-minesite Product from such ore in excess of that maximum weight for
the relevant calendar year.
32B. ROYALTIES IN RESPECT OF NON-MINESITE PRODUCT
(1) Each Joint
Venturer shall pay or cause to be paid to the State an amount of royalty in
respect of Non-minesite Product produced from ore as referred to in paragraph
(b) of the definition of "Non-minesite Materials" and which is Non-minesite
Product owned by the relevant Joint Venturer or produced for the relevant
Joint Venturer's benefit and which leaves the Special Mining Lease within
which the treatment plant is situated.
(2) The said amount of
royalty shall be equal to the following amount:
(a) after the fifth
anniversary of the Commencement Date and on or prior to the 31st day of
December 2005, the amount, if any,
by which the following amount:
(i)
3.5% of the value ex mine lease of any such Non-minesite
Product,
exceeds the following amount:
(ii)
the actual amount of royalty otherwise payable in respect
of the Non-minesite Material from which any such Non-minesite Product is
produced; and
(b) after the 31st day
of December 2005, the amount, if any,
by which the following amount:
(i)
the amount of royalty, unless the Minister and the
holders of each Special Mining Lease otherwise agree, calculated and payable
on the basis which, subject always to the provisions of Clause 34 as to
non-discrimination, is equivalent to that specified, from time to time, to be
payable in respect of the mining of the relevant mineral as provided in the
Mining Act,
exceeds the following amount:
(ii)
the actual amount of royalty otherwise payable in respect
of the Non-minesite Material from which any such Non-minesite Product is
produced.
Any failure by the Minister and the said holders to agree as aforesaid shall
not be arbitrable.
(3) Each Joint
Venturer shall, together with and at the same time as a Joint Venturer
furnishes to the Minister each return required pursuant to subclause 32(4),
furnish or cause to be furnished to the Minister a return itemizing the
following matters:
(a) the source, type,
amount and form of any Non-minesite Materials processed or treated at a
treatment plant;
(b) the type, amount
and form of any Non-minesite Product produced from such Non-minesite
Materials;
(c) the type, amount
and form of all Non-minesite Product which leaves the Special Mining Lease
within which the treatment plant is situated; and
(d) the type, amount
and form of such Non-minesite Product which is owned by each Joint Venturer,
during the quarter to which the relevant return furnished pursuant to
sub-clause 32(4) relates.
(4)
The Joint Venturers shall keep or cause to be kept a record of each of the
matters specified in paragraphs (a) , (b) , (c) and (d) of subclause (3).
(5) The provisions of
subclause 32(2) shall apply, mutatis mutandis , to the calculation of the
value ex mine lease of Non-minesite Product for the purpose of this Clause
32B.
(6) The provisions of
sub-clause 32(5) shall apply, mutatis mutandis , to any return furnished
pursuant to subclause (3) and to the records kept pursuant to subclause (4) of
this Clause.
(7) The provisions of
each of subclauses 32(4), (16) and (17) shall apply, mutatis mutandis , to the
calculating or paying of any royalty payable to the Minister pursuant to
subclause (1) or any failure to pay any such amount.
The State covenants not to levy or impose or seek to levy or impose or permit
to be levied or imposed a tax, duty, rent, charge, tariff, levy or any rate or
other like impost on Product or Non-minesite Product or on or in respect of
the sale of Product or Non-minesite Product or on or in respect of the conduct
by a Joint Venturer or the Joint Venturers or an associated company of a
Project or Projects the subject of this Indenture or on income derived by any
of them as a consequence thereof, otherwise than is permitted pursuant to this
Indenture, which discriminates adversely or unfairly against a Joint Venturer
within the meaning of Clause 34.
(1) It is the
intention of the parties hereto, which intention is fundamental to the making
of this Indenture, that the State shall not do or cause to be done or permit
any act, thing or omission whether legislative, executive or administrative
either by itself, by any Minister of the Crown, by any State or other
instrumentality or authority or by any servant or agent of the State or such
instrumentality or authority which discriminates adversely and unfairly
against the Joint Venturers or any of them or the production, treatment,
transport or sale of Product or Non-minesite Product or any aspect of the
conduct of a Project or Projects the subject of this Indenture or any income
derived therefrom.
(2) An act, thing or
omission referred to in sub-clause (1) of this Clause shall be deemed
adversely and unfairly to discriminate against a Joint Venturer or against the
production, treatment, transport or sale of Product or Non-minesite Product,
or any aspect of the conduct of a Project the subject of this Indenture or any
income derived therefrom, if it results, upon its application, in a
deprivation of the full enjoyment of the rights granted or intended to be
granted to a Joint Venturer under this Indenture which is relatively greater
or more onerous than the deprivation suffered generally by industrial or
commercial enterprises in the State (having regard to the particular nature of
the rights granted or intended to be granted under this Indenture) as a
consequence of the same act, thing or omission. Without limiting the
generality of the foregoing, the following factors will be taken into account
in determining whether there has been an adverse and unfair discrimination
against the Joint Venturers:
(a) the purpose of the
relevant legislation, act, thing or omission;
(b) the effect or
potential effect of any act, thing or omission;
(c) notwithstanding
that any act, thing or omission is, or is expressed to be, of general
application, whether the Joint Venturers or any of them or the production,
treatment, transport or sale of Product or Non-minesite Product or any aspect
of the conduct of a Project or Projects the subject of this Indenture or any
income derived therefrom is or are the only person or persons or thing or
things affected or potentially affected by any such act, thing or omission.
(3) In the event that
there is adverse and unfair discrimination against the Joint Venturers or any
of them or the production, treatment, transport or sale of Product or
Non-minesite Product or any aspect of the conduct of a Project or Projects the
subject of this Indenture or any income derived therefrom within the terms of
this Clause the Joint Venturers may exercise all or any of the rights
conferred upon them by Clause 52.
No party shall make public any information provided by another party hereto
pursuant to this Indenture without first obtaining the consent of the relevant
party and shall have due regard to any interests obligations or commitments of
that relevant party in relation thereto. Nothing contained in this Clause
shall restrict or inhibit in any manner the rights of any party pursuant to
this Indenture pursuant to Clauses 49 and 50.
(1) Subject to the
provisions of this Clause a Joint Venturer may—
(a) at any time as of
right assign, mortgage, charge or otherwise encumber or sublet, or dispose of
to another Joint Venturer and may as of right mortgage charge or otherwise
encumber in favour of any other person the interest or any part thereof of the
Joint Venturer under this Indenture (including its rights under any Special
Tenement and any other lease, licence, easement, grant or other title
(including an estate in fee simple)) and appoint as of right an associated
company to exercise all or any of the powers functions and authorities that
are or may be conferred on it hereunder; and
(b) at any time with
the consent of the Minister (which consent shall be subject to such conditions
(which shall not include a guarantee given by the assignor to the Minister or
the State) as the Minister thinks fit but which shall not be unreasonably
withheld) assign, sublet or otherwise dispose of to a person or company (not
being a subsidiary referred to in paragraph (c) of this sub-clause) the
interest or any part thereof of the Joint Venturer under this Indenture and
appoint (with like consent, which consent shall not be unreasonably withheld
nor will a guarantee be required from the Joint Venturers or any of them for
the giving thereof) any corporation or person (not being an associated
company) to exercise all or any of the powers functions and authorities as
aforesaid.
(c) at any time with
the consent of the Minister assign, sublet or dispose of to a wholly owned
subsidiary of:
A Joint Venturer which is a party to this Indenture, or
A company of which such a Joint Venturer is itself a subsidiary;
the interest or any part thereof of the Joint Venturer under this Indenture,
provided, however, that if the Minister is satisfied that such wholly owned
subsidiary is capable of properly discharging all of the obligations (whether
financial or otherwise) arising from such assignment, subletting or
disposition, he shall grant his consent thereto.
(d) subject to the
provisions of Clause 37, an assignor shall be released from its liability
under this Indenture to the extent of the percentage interest of the assignor
which is assigned.
(2) Notwithstanding
the provisions of the Crown Lands Act and the Pastoral Act, in so far as the
same or any of them may apply:
(a) no assignment,
mortgage, charge, other encumbrance, sublease or other disposition or
appointment made or given pursuant to this Clause by a Joint Venturer or any
assignee, sublessee, disponee or appointee who has executed and is for the
time being bound by deed of covenant made pursuant to this Clause; and
(b) no transfer,
assignment, mortgage or sublease made or given in exercise of any power of
sale contained in any such mortgage, charge or other encumbrance;
shall require any approval or consent (other than such consent as may be
necessary from the Minister under this Clause or the consent of a prior
mortgagee or chargee) and no equitable mortgage or charge shall be rendered
ineffectual by the absence of any approval or consent (otherwise than as
required by this Clause or the consent of a prior mortgagee or chargee).
(3)
The Joint Venturers shall advise the Minister of every assignment, charge,
encumbrance or disposition made, issued or given by them pursuant to this
Clause.
37. LIABILITY OF JOINT VENTURERS
(1) The liability of
each Joint Venturer under this Indenture shall be several and not joint nor
joint and several and in respect of the Initial Project or any Subsequent
Project shall, subject to the provisions of Clause 36 and this Clause, be
limited to the percentage interest of that Joint Venturer notified to the
Minister pursuant to sub-clause (2) of Clause 6, Clause 9 or sub-clause (3) of
this Clause (or any variation thereof advised to the Minister pursuant to
sub-clause (2) of this Clause) in the Initial Project or any Subsequent
Project.
(2) In the event of
any variation of the percentage interests of the participating Joint Venturers
in the Initial Project or any Subsequent Project or the acquisition of a
percentage interest in such a Project by another Joint Venturer (which by such
acquisition becomes a participating Joint Venturer therein),
the Joint Venturers shall notify the Minister thereof within thirty days of
each such variation or acquisition.
(3) If
the Joint Venturers fail to notify the Minister pursuant to sub-clause (2) of
Clause 6 or sub-clause (2) of Clause 9 of the participating Joint Venturers
and their percentage interests in respect of the Initial Project or any
Subsequent Project the Joint Venturers shall be jointly and severally liable
in respect of that Project until such time as a notice in such terms is given
to the Minister and from the giving of such notice the liability of the
Joint Venturers shall be determined pursuant to sub-clause (1) of this Clause.
(4) Where, in respect
of the Initial Project or any Subsequent Project, there is any non performance
or only part performance of any of the obligations on the part of the
participating Joint Venturers in respect of such Project, such participating
Joint Venturers shall be liable in respect thereof in accordance with their
percentage interests therein as notified to the Minister pursuant to
sub-clause (2) of Clause 6, sub-clause (2) of Clause 9 or sub-clause (2) or
(3) of this Clause notwithstanding that such non performance or part
performance is attributable to some but not all of such participating Joint
Venturers provided always that the provisions of this Clause shall not in any
way affect the rights of the Joint Venturers or any of them inter se.
(5) The obligations
and liability of the Joint Venturers or any of them in respect of any royalty
payable in respect of Product shall not be governed by this Clause and such
obligations and liability shall be determined by the provisions of Clause 32.
(1) Subject as
hereinafter provided, the time for the performance of any obligation under or
arising out of this Indenture, except an obligation to pay money, which
performance is delayed by circumstances beyond the reasonable control of the
party to this Indenture responsible for the performance of such obligation,
shall be extended by the period of the delay, but no longer than the
continuance thereof, and no party to this Indenture shall be liable in damages
or otherwise to any party to this Indenture nor shall any action, claim or
demand be taken or made against that party to this Indenture by reason solely
of such delay in the performance of such obligation in circumstances beyond
the reasonable control of that party.
(2) The party to this
Indenture responsible for the performance of any such obligation shall use all
reasonable diligence to remove the circumstances beyond the reasonable control
of that party to this Indenture as quickly as practicable after notice of the
same shall have come to its attention save and except that the settlement of
any strike, lockout and other industrial dispute shall be entirely within the
discretion of any party directly concerned and nothing herein shall require
the settlement thereof by acceding to the demands of the opposing party or
parties where such course is inadvisable in the absolute discretion of the
party concerned, and the exercise of such discretion shall not be arbitrable.
(3) Each party to this
Indenture shall keep the others of them promptly informed of any delay in the
performance of any obligation on its part under or arising out of this
Indenture where such delay is caused by circumstances beyond the reasonable
control of such party, of the likely duration of such delay as a consequence
thereof and of the cessation of such circumstances.
(4) In this Clause,
the expression "circumstances beyond the reasonable control" shall include,
without limitation, acts of God, force majeure, earthquakes, floods, storms,
tempests, washaways, fires (unless caused by the actual fault or privity of
the party responsible for such performance), acts of war, acts of public
enemies, riots, civil commotions, strikes, lockouts, bans, "go-slow" activity,
stoppages, restraints of labour or other similar acts (whether partial or
entire), acts or omissions of the Commonwealth or any instrumentality (whether
legislative, executive or administrative) of the Commonwealth or of any other
government or governmental authority or instrumentality (whether legislative,
executive or administrative), shortages of labour or essential materials,
reasonable inability to obtain contractors, delays of contractors, inability
profitably to sell Product, factors due to over-all world economic conditions,
inability or delay in obtaining any Government or local authority approval,
permit or licence, delays arising from any submission to arbitration under
Clause 49 or any other cause whether of a kind specifically enumerated above
or otherwise which is not reasonably within the control of the party to this
Indenture carrying out or obligated to carry out any obligation under this
Indenture.
(5) The party whose
performance of any obligation is affected by any of the circumstances beyond
the reasonable control hereinbefore referred to shall, as soon as reasonably
practicable, give notice to the other parties to this Indenture of each event
alleged to constitute such circumstances and shall, subject to sub-clause (2)
of this Clause, use its best endeavours to minimise the effect of such
circumstances as soon as practicable after the occurrence thereof.
(6) Notwithstanding
the provisions of this Clause:
(a) Neither the State
nor the Minister shall be at liberty to rely upon any action within the
reasonable control of the Government of the State or of the Minister or any
other Minister of the Crown in right of the State or other instrumentality of
the Crown in right of the State or other competent authority of the State
under its control as constituting "circumstances beyond the reasonable
control" of such party.
(b) Neither
the Joint Venturers nor any of them shall be at liberty to rely upon any
action within the reasonable control of another Joint Venturer or any
associated or subsidiary company of any Joint Venturer as constituting
"circumstances beyond the reasonable control" of such party.
(1) Where under any
provision of this Indenture the Joint Venturers or any of them or an
associated company are or is liable to make any payment to the State, the
relevant Joint Venturers or associated company may, with the agreement of the
Minister, in lieu of such payment, otherwise provide such payment or cause
such payment to be provided to an amount equal to the particular liability.
(2) Where under any
provision of this Indenture the Joint Venturers or any of them or an
associated company are liable to make any payment to the State for services
and facilities to be provided by the State or the State is liable to make any
payment to the Joint Venturers or any of them or to an associated company the
parties shall subject to the relevant provision enter into an agreement
regarding the nature and extent of such payment prior to the commencement of
any such work or expenditure.
40. COMMONWEALTH LICENCES AND CONSENTS
(1)
The Joint Venturers shall from time to time where appropriate—
(a) make application
to; or
(b) enter into
negotiations with
the Commonwealth or to the Commonwealth constituted agency, authority or
instrumentality concerned
(c) for the grant to
them of any licence or consent under the laws of the Commonwealth; or
(d) in relation to any
agreement
respectively necessary to enable or permit the Joint Venturers to enter into
this Indenture or to perform any of their obligations hereunder.
(2) On request by
the Joint Venturers the State shall make representations to the Commonwealth
or to the Commonwealth constituted agency authority or instrumentality
concerned for, and use its best endeavours to assist in procuring, the grant
to the Joint Venturers or any of them or an associated company of any licence
or consent or in connection with any agreement mentioned in sub-clause (1) of
this Clause.
41. TERMINATION OF INDENTURE BY THE STATE
(1) Without prejudice
to the other circumstances for termination of this Indenture provided in
Clauses 4 and 53 and subject to the provisions of sub-clauses (16) and (17) of
Clause 32 the State may terminate this Indenture by not less than one hundred
and eighty days notice to the Joint Venturers in any one or more of the
following events—
(a) if
the Joint Venturers or any of them are in default in the due performance or
observance of any of the covenants or obligations on their part to be observed
under this Indenture or any lease (including without limitation a Special
Mining Lease, and the Special Buffer Zone Lease) licence (including without
limitation a Special Exploration Licence, the Pipeline Licence or Special
Water Licence) easement or other title or document granted under or pursuant
to this Indenture and/or the ratifying Act which default is material and such
default is not remedied (or active steps are not commenced and continued to
remedy the same if the default is of a type not capable of speedy remedy) or
compensation paid in respect thereof (in the case of default not capable of
remedy but for which payment of compensation is adequate recompense to the
State) within a period of 180 days after notice as provided in
sub-clause (2) of this Clause is given by the Minister to the Joint
Venturers, or if the alleged default is contested by the relevant Joint
Venturer and within 60 days after such notice it is submitted to arbitration
in accordance with Clause 49 then within a reasonable time as fixed by
the arbitration award where the question is decided against
the Joint Venturers; or
(b) if
the Joint Venturers abandon their operations (which expression shall not
include placing the same on care and maintenance) under this Indenture or
repudiate their obligations under this Indenture and operations are not
resumed within a period of 180 days after notice as provided in sub-clause (2)
of this Clause is given by the Minister to the Joint Venturers.
(2) Notice of
termination —The notice to be given by the Minister in terms of
sub-clause (1) of this Clause shall specify the nature of the default or
other ground so entitling the State to exercise such right of determination
and where known to the State the party or parties responsible therefor and
shall be given to the Joint Venturers and such assignees mortgagees chargees
other encumbrancees sub-lessees disponees and appointees for the time being of
the Joint Venturers' said rights to or in favour of whom or by whom an
assignment mortgage charge other encumbrance sub-lease or other disposition or
appointment has been effected in terms of Clause 36 whose name and address for
service of notice has previously been notified to the State by the Joint
Venturers or by any such assignee mortgagee chargee other encumbrancee
sub-lessee disponee or appointee.
(3) The abandonment or
the repudiation by the Joint Venturers referred to in paragraph (b) of
sub-clause (1) of this Clause means the abandonment or repudiation by all of
them the Joint Venturers and all assignees disponees and appointees who have
executed and are for the time being bound by a deed of covenant in favour of
the State as provided in Clause 36.
(4) Termination by
Effluxion of Time —Except as otherwise specifically provided in this
Indenture or as is otherwise mutually agreed between the State of the one part
and the Joint Venturers of the other part this Indenture shall terminate upon
the expiry of the last to expire of the Special Mining Leases or any extension
or renewal thereof.
42. EFFECT OF TERMINATION BY THE STATE
(1) Upon termination
of this Indenture as provided in sub-clause (1) of Clause 41
(a) except as
otherwise agreed by the Minister and subject to sub-clauses (2) and (3) of
this Clause, the rights of the Joint Venturers and associated companies to in
or under this Indenture and the rights of the Joint Venturers and associated
companies or any assignee, sub-lessee, mortgagee, chargee or other
encumbrancee to in or under any Special Tenement, lease, licence, easement,
grant or other title or right granted hereunder or pursuant hereto shall
thereupon cease and determine but without prejudice to the liability of the
parties hereto in respect of any antecedent breach or default under this
Indenture or in respect of any indemnity given hereunder;
(b) the relevant Joint
Venturers shall forthwith pay or cause to be paid to the State all moneys
which may then have become payable or accrued due;
(c) the relevant Joint
Venturers shall carry out such restoration of lands as may be reasonable and
in accordance with their obligations pursuant to Clauses 10 and 11 of this
Indenture;
(d) save as aforesaid
and as otherwise provided in this Indenture the parties hereto shall not have
any claim against the others of them with respect to any matter or thing in or
arising out of this Indenture.
(2) In the event of
the cessation or determination of this Indenture as provided in
sub-clause (1) of Clause 41 the State shall have the right or option
(which right or option the State may assign) exercisable within 6 months
thereafter to purchase in situ fixed or movable plant and equipment or any
part thereof located on any land occupied by the Joint Venturers or any of
them or an associated company in relation to the Initial Project or a
Subsequent Project at a fair valuation to be agreed between the relevant
parties or failing agreement determined by arbitration in accordance with
Clause 49. The relevant Joint Venturers shall have the right to remove any
such plant and equipment not purchased by the State.
(3) Before termination
of this Indenture as provided in sub-clause (1) of Clause 41 the relevant
Joint Venturers may, as an alternative to sub-clause (2) of this Clause, at
their option to be exercised by notice to the Minister at any time prior to
the cessation or determination of this Indenture, request the Special
Tenements or any of them to be converted to any appropriate tenement under the
Mining Act or other appropriate lease, licence, easement, tenure or right of
such form, so conditioned and for such term and at such rental compatible and
in accordance with legislation at that time in force in the State as the
Minister and the relevant Joint Venturers may agree and the State may, if
the Joint Venturers have complied with paragraph (b) of sub-clause (1) of this
Clause, accede to such request.
(4) Final termination
—The provisions of this Indenture shall terminate when all matters, acts
and things required by or pursuant to this Indenture have been duly performed
and completed.
(1) The State shall
exempt from any stamp gift or like duty:
(a) this Indenture and
the agreement contemplated by paragraph (a) of sub-clause (14) of Clause
18;
(b) any instrument
executed by the State pursuant to this Indenture granting to or in favour of
the Joint Venturers or any of them or any permitted assignee of
the Joint Venturers or any of them or to an associated company any lease
licence easement estate in fee simple or other right (including, without
limitation, a Special Tenement) granted or demised hereunder or pursuant
hereto;
(c) up to and
including the first anniversary of the giving of the first Project
Notice,—
(i)
any transfer assignment sublease or other disposition or
any appointment in any case to or in favour of the Joint Venturers or any of
them or an associated company or any permitted assignee, of any interest right
obligation power function or authority made granted or created pursuant to the
provisions of this Indenture or the ratifying Act (including, without
limitation, a Special Tenement) and any assignment sublease or other
disposition of any interest of any Joint Venturer or an associated company
under any joint venture agreement relating to the whole or any part of the
Olympic Dam Area or the Stuart Shelf Area; and
(ii)
any bill of sale or other instrument effecting or
evidencing an absolute assignment of personal property or choses in action
between the Joint Venturers or any of them or between the Joint Venturers or
any of them and an associated company or between associated companies in any
case for or in respect of the purposes of this Indenture
except that where transactions of the kind referred to in this paragraph are
attributable in whole or in part to the financing of the Joint Venturers' (or
any of them) or an associated company's participation in the activities
contemplated by Clauses 13, 14, 15, 16, 17, 18, and 22 and
paragraphs 21(2) (a) and (c) of this Indenture, such transactions shall
be exempt, without limitation of time, in accordance with this Clause in
proportion to that part of the consideration or the principal sum involved in
such transaction which is so attributable.
(d) any policy of
insurance taken out by the Joint Venturers or any of them or an associated
company against risks, and any premium received by any company, person or firm
required to take out an annual licence pursuant to section 33 of the Stamp
Duties Act in respect of any policy of insurance against risks taken out by
the Joint Venturers or any of them or an associated company directly related
to the subject matter of Clauses 13, 14, 15, 16, 17, 18 and 22 and paragraphs
21(2) (a) and (c) of this Indenture; and
(e) any other document
or instrument which the Minister agrees, which agreement or the refusal
thereof shall not be subject to arbitration.
(2) Without derogating
from the provisions of sub-clause (1) of this Clause, the State shall exempt
from stamp duty the proportion of the consideration or principal sum expressed
in any instrument of mortgage charge bill of sale debenture or other
encumbrance covenant or other security given by the Joint Venturers or any of
them or an associated company to secure the payment or repayment of any money
advanced (whether by way of prepayment or otherwise) guaranteed or indemnified
by any person for purposes directly related to the subject of Clauses 13, 14,
15, 16, 17, 18 and 22 and paragraphs 21(2) (a) and (c) of this Indenture.
(3) The State shall
exempt from Stamp Duty each amount or proportion of an amount which would
otherwise be included in a statement lodged pursuant to section 31f of the
Stamp Duties Act, as it relates to loans to the Joint Venturers or any of them
or an associated company, and as certified by the Joint Venturers to the
Commissioner of Stamps, to the extent of and attributable to the financing of
the Joint Venturers' (or any of them) or an associated company's participation
in the activities contemplated by Clauses 13, 14, 15, 16, 17, 18 and 22 and
paragraphs 21(2) (a) and (c) of this Indenture.
(4) If prior to the
date hereof stamp duty or gift duty has been assessed and paid on any
instrument or other document referred to in the preceding sub-clauses of this
Clause the State shall after the date hereof on demand refund the relevant
amount of stamp duty or gift duty to the person who paid the same.
The Residential Tenancies Act, 1995 does not apply to an agreement that
relates to residential premises which are situated in the town site and which
are the subject of a tenancy agreement to which a Joint Venturer or an
associated company is a party as a landlord.
The State may, where it is necessary to do so to avoid contravention of the
Trade Practices Act of the Commonwealth, pursuant to the ratifying Act,
specifically authorise or approve
(a) the entry into and
giving effect to in the State of any joint venture agreement entered into
between the Joint Venturers or any of them for the purposes of this Indenture;
(b) the entry into and
giving effect to in the State of any agreement between the Joint Venturers or
any of them pursuant to any such joint venture agreement or associated
therewith for the sale of Product whether jointly or separately or through a
sales agent or sales representative;
(c) any agreements,
arrangements, understandings, practices, acts or things made, done, given
effect to or carried out in the State in each case by the Joint Venturers or
any of them or by an associated company which have given rise to or have
flowed from any of the foregoing agreements referred to in this Clause.
Nothing in this Indenture contained or implied shall constitute a partnership
between the State and the Joint Venturers or any of them or an associated
company or between the Joint Venturers themselves.
Enforcement of compliance with the provisions of this Indenture and with the
conditions of any Special Tenement shall rest only with the State, the
Minister and the Joint Venturers.
The State hereby covenants with the Joint Venturers to give full support and
sponsorship to all matters the subject of or contemplated by this Indenture
and not to do or omit to do or cause anything to be done or omitted to be done
which would or might be inconsistent with the terms, objects and intent of
this Indenture or prohibit or interfere with the performance of this Indenture
and the contractual arrangements established thereby.
(1) Where, pursuant to
the terms of this Indenture, any question, difference or dispute arising
between the State or the Minister and the Joint Venturers or any of them or an
associated company concerning any provision of this Indenture or the meaning
or construction of any matter or thing in any way connected with this
Indenture or the rights duties or liabilities of the State, the Minister or
the Joint Venturers or any of them, or an associated company, or any statutory
authority under or in pursuance of the provisions of this Indenture, including
any question whether the State or the Joint Venturers or any of them or an
associated company is or are in default under any provisions of this
Indenture, or as to any matter to be agreed upon between the State or the
Minister or any instrumentality of the State or any statutory authority and
the Joint Venturers or any of them or an associated company is to be referred
to arbitration, such question, difference, dispute, matter or thing shall be
referred to arbitration as hereinafter provided.
(2) Where, pursuant to
the terms of this Indenture, any question, difference or dispute arising
between a Crown corporation, a Crown instrumentality or a local authority and
the Joint Venturers or any of them or an associated company concerning any
matter or thing arising out of the provisions of this Indenture is to be
referred to arbitration pursuant to this Indenture, such question difference
or dispute shall upon request of such Crown corporation, Crown
instrumentality, local authority or Joint Venturers or any of them or
associated company be referred to arbitration as hereinafter provided.
(3) References to
arbitration hereunder shall be to a single arbitrator to be agreed between the
relevant Joint Venturers or associated company and the other party or parties
to the arbitration and in the absence of agreement within 14 days of first
attempting to reach agreement shall be to two arbitrators one to be appointed
by the relevant Joint Venturers or associated company and the other by the
other party or parties to the arbitration, the two arbitrators to appoint
their umpire before proceeding in the reference (a single arbitrator or two
arbitrators and an umpire (as the case may be) being hereinafter in this
Clause referred to as "the arbitrators") and every such arbitration shall be
conducted in accordance with the provisions of the Arbitration Act as at
present in force except that the provisions of section 24a(1) of the said Act
shall not apply and any question difference or dispute referred to arbitration
shall be deemed to be a submission to arbitration within the meaning of the
said Act.
(4) The arbitrators
after hearing the representations of all parties directly involved in the
question difference or dispute shall make such decision as is proper and just
having regard to the integration into the Initial Project or the relevant
Subsequent Project (as the case may be) as a whole of the question, difference
or dispute the subject of the arbitration.
(5) Every such
decision of the arbitrators shall remain in force for such period fixed by the
decision and shall be binding on all persons affected thereby.
(6) The Minister may
of his own volition and shall when requested by the Joint Venturers or any of
them refer to arbitration hereunder any matter requiring decision under the
provisions of this Indenture.
(7) —
(a) The arbitrators
may direct that any party to any proceedings pay (whether by way of lump sum
or otherwise) the whole or such part as the arbitrators may think fit of the
costs of and incidental to those proceedings incurred by any other party
thereto or any costs incurred by the arbitrators and in the absence of any
direction, the party whose submission is not upheld (and if no submission is
upheld, by the parties to the reference equally) shall pay such costs.
(b) In case of
difference as to the amount of any costs (except a lump sum amount) directed
to be paid as aforesaid such costs shall be taxed by a taxing officer of the
Supreme Court of the State as if the arbitration proceedings had been
proceedings in the said Court. A direction or decision of the arbitrators as
to costs may be enforced in the same manner as a Judgment or Order of the said
Court.
(8) The State, the
Minister, a State instrumentality, statutory or other authority, local
authority, the Joint Venturers or any of them or an associated company shall
not be entitled to commence or maintain any action or other proceedings
whatsoever in respect of any question difference dispute matter or thing which
under the provisions of this Indenture may be referred to arbitration until
such claim question difference or dispute has been referred to and determined
by arbitration and then only for the amount of money or other relief awarded
by arbitration provided that the foregoing provisions of this sub-clause (8)
shall not apply should the State or the Joint Venturers or any of them or an
associated company seek declaratory Orders from the Supreme Court of the State
(which they are hereby expressly empowered to do) upon any matter in or
arising out of this Indenture.
(9) An award made on
an arbitration pursuant to sub-clause (6) of Clause 7 shall have force and
effect as follows—
(a) if by the award
the submission of the applicant is upheld the award shall take effect as a
notice by the Minister that he approves the matter or matters the subject of
the arbitration; or
(b) if by the award
the submissions of neither the applicant nor the Minister are upheld and the
parties to the dispute by notice to each other given within two months of the
date of the award agree to accept the terms of the award then such award shall
take effect as a notice by the Minister that he approves in terms of the award
the matter or matters the subject of the arbitration.
(10) Any arbitration
decision hereunder may upon the application of the State or
the Joint Venturers or any of them or an associated company be made an Order
of a Court of competent jurisdiction and may be enforceable as such.
(11) Where any matter
is by this Indenture required to be referred to arbitration in the absence of
agreement and no time for reaching agreement is specified, the matter in
question may be referred to arbitration if no agreement is reached within
three months of the relevant persons first conferring in respect thereof.
(12) Except where
expressly provided therein to the contrary, any question, difference or
dispute arising pursuant to the provisions of Clauses 7, 8, 10, 11, 13, 14,
15, 17, 18, 19, 20, 21, 22, 24, 25, 27, 29, 31, 32 and 38, and paragraph (f)
of sub-clause (2) of Clause 1, sub-clause (2) of Clause 9, sub-clause (1) of
Clause 23 and sub-clause (2) of Clause 39 shall be referred to arbitration
pursuant to the provisions of this Clause.
(1) If any matter
question difference or dispute whatsoever is by this Indenture required to be
referred to an independent expert for determination then and in every such
case such matter question difference or dispute shall be referred to an
independent expert as hereinafter provided.
(2) Within fourteen
days of a request given by any party to a matter which is to be referred to an
independent expert to the other party thereto, each party shall notify the
other of an independent person who is, by virtue of his knowledge and
experience with respect to the matter for determination, qualified to
determine that matter and acceptable to the party concerned as an expert. In
this Clause 50 the persons so notified are referred to as "the experts".
Before proceeding in the reference and within thirty days of their
appointment, the experts shall appoint an independent person, who is, by
virtue of his knowledge and experience with respect to the matter for
determination, qualified to determine that matter and acceptable to the
experts. In this Clause 50 the person so appointed is referred to as "the
umpire". In the event that the experts cannot agree the umpire shall be
appointed by the President for the time being of the Australian Institute of
Mining and Metallurgy.
(3) Within thirty days
of the date upon which the last of the experts is notified pursuant to
sub-clause (2) of this Clause each party shall provide a written submission to
the experts with a copy to the other party. There shall accompany such
submission any supporting information communicated by the relevant party to
the other during negotiations upon the matter for determination. No
information which is new or additional so far as the other party is concerned
may be presented to the experts unless the occurrence giving rise to such
information took place or became generally known after the relevant
negotiations had concluded.
(4) The other party
shall have thirty days from receipt thereof within which to respond in writing
to the experts and the relevant party to such new information.
(5) A party may
disclose to the experts proprietary or sensitive information held in
confidence during negotiations without disclosing the same to the other party.
The parties may jointly submit to the experts for consideration any
information which they agree to be relevant or appropriate.
(6) Except as provided
in the preceding sub-clauses of this Clause neither party shall communicate
with the experts pending their determination save only to provide any
clarification sought by the experts in respect of a submission provided
pursuant to sub-clause (3) of this Clause and such clarification shall be
provided by the party from whom it is sought within fourteen days of a request
therefor.
(7) The experts or, as
the case may be, the umpire shall consider only the submissions provided by
each party and shall exclude from consideration information or data which, in
their or his opinion, ought not to be taken into account.
(8) Within thirty days
of receipt by the experts of the submission or clarification last received
from the parties, the experts shall use their best efforts to confirm or
reject the information included in the respective submissions by any
appropriate means available to them and shall not make a determination upon
the matter question difference or dispute before them but—
(a) in the case of a
reference pursuant to Clause 53 shall decide whether or not it was at the
relevant time economically practicable for the Joint Venturers to commit to an
Initial Project pursuant to this Indenture; and
(b) in the case of a
reference pursuant to Clause 20 shall decide whether or not it was at the
relevant time economically practicable for the holders of the relevant Special
Exploration Licence to commit to a Subsequent Project pursuant to this
Indenture,
provided always that if a party fails to comply in a material way with the
procedures contained in this Clause and, in particular, fails to provide a
written submission in accordance with sub-clause (3) of this Clause, the
experts shall make a decision in favour of the other party.
(9) In the event that
the experts are unable to agree upon a decision pursuant to
sub-clause (8) of this Clause, they shall refer the question to the
umpire for a decision in accordance with the provisions of the said sub-clause
(8).
(10) A decision shall
be made by the umpire within thirty days of the question being referred to
him.
(11) Subject to the
other provisions of this Indenture the cost of determination including
reasonable legal fees and other costs and disbursements shall be borne as
determined by the experts or the umpire (as the case may be) and, in the
absence of such determination, by the party against whom the decision has been
made pursuant to sub-clause (8) or (9) of this Clause.
(12) The experts or
the umpire (as the case may be) acting pursuant to this Clause shall act as an
expert and not as an arbitrator pursuant to the Arbitration Act.
(13) The decision of
the experts or the umpire (as the case may be) shall be notified in writing to
the parties as soon as practicable and shall be final and binding upon all
parties to this Indenture or (as appropriate) to the question to be
determined.
51. PROVISIONS APPLICABLE TO SPECIAL TENEMENTS
(1) Every Special
Tenement shall be issued in sufficient number for each lessee or licensee to
receive one copy thereof and after being duly executed by all the parties
thereto shall be forwarded to the Mining Registrar who shall insert one copy
in a book to be called the Register of Special Tenements and shall forward the
other copies to the lessees or licensees entitled thereto.
(2) The Mining
Registrar, upon all relevant documents (or copies thereof) including all
copies of the relevant Special Tenement being produced to him, shall make the
appropriate notations in the Register of Special Tenements and upon each copy
of the relevant Special Tenement.
(3) The holders of a
Special Tenement may from time to time (with abatement of future rent or other
expenditure obligation (if any) in respect to the area surrendered but without
any abatement of the rent already paid or any rent which has become due and
has been paid in advance or any such obligation already discharged) surrender
to the State all or any portion or portions (of reasonable shape and size) of
the lands the subject of such Special Tenement and such surrender shall be
accepted by the State provided always that any surrender of a Special Buffer
Zone Lease in respect of a mine buffer zone shall be subject to the consent of
the Minister which shall not be unreasonably withheld.
Without in any way derogating from the rights or remedies of the Joint
Venturers or any of them or an associated company in respect of a breach of
this Indenture, if the Parliament of the State should at any time enact
legislation which materially modifies the rights or materially increases the
obligations of the Joint Venturers or any of them or an associated company
under the ratifying Act or under this Indenture or materially reduces the
obligations of the State under the ratifying Act or under this Indenture
the Joint Venturers shall have the right to terminate this Indenture by notice
to the State and to require the Special Tenements or any of them to be
converted to any tenement under the Mining Act or other lease, licence,
easement, tenure or right of such form so conditioned and for such term and at
such rental compatible with legislation at that time in force in the State as
the Minister and the Joint Venturers may agree.
(1) Notwithstanding
any provision of this Indenture the Minister may, at the request of the
relevant Joint Venturers from time to time, extend or further extend any
period or vary or further vary any date referred to in this Indenture for such
period or to such later date as the Minister thinks fit whether or not the
period to be extended has expired or the date to be varied has passed and any
decision of the Minister under this sub-clause (1) shall not be
arbitrable.
(2) If
the Joint Venturers do not give notification to the Minister by the 31st day
of December 1987 of a decision to proceed with the Initial Project this
Indenture shall terminate as herein provided, unless the Joint Venturers
within three months prior to such date certify to the Minister that, having
regard to financing, marketing, economic, technical or other relevant matters
it is not then economically practicable for them to commit to an Initial
Project.
(3) If the Minister
having received a certificate from the Joint Venturers pursuant to sub-clause
(2) of this Clause is not satisfied that it was then economically
impracticable for the Joint Venturers to commit to an Initial Project he may,
within twenty eight days of receipt of such certificate elect to refer the
question of economic practicability to an independent expert for determination
pursuant to Clause 50.
(4) Where
(a) the Minister
having received a certificate from the Joint Venturers pursuant to sub-clause
(2) of this Clause does not elect pursuant to sub-clause (3) of this Clause to
refer the question of economic practicability to an independent expert; or
(b) an independent
expert following a reference to him pursuant to Clause 50 determines that it
was then economically impracticable for the Joint Venturers to commit to an
Initial Project,
the date by which any notification, details, advice or particulars are
required to be given to the Minister by the Joint Venturers pursuant to
sub-clause (2) of Clause 6 shall be the 31st day of December 1989.
(5) Where an
independent expert, following a reference to him pursuant to Clause 50
determines that it was then economically practicable for the Joint Venturers
to commit to an Initial Project, this Indenture shall terminate six months
from the date upon which the determination of the independent expert has been
received by the Minister and the Joint Venturers unless within such six months
period the Joint Venturers give a Project Notice in respect of the Initial
Project.
(6) If the date by
which any notification, details, advice or particulars are required to be
given to the Minister by the Joint Venturers pursuant to sub-clause (2) of
Clause 6 has been extended to the 31st day of December 1989 pursuant to
sub-clause (4) of this Clause, the obligation of the Joint Venturers to give
notification to the Minister by such date of a decision to proceed with the
Initial Project shall be subject to the provisions of sub-clauses (2), (3),
(4) and (5) of this Clause save and except only that
(a) the reference in
the said sub-clause (2) to "1987" shall be read as "1989"; and
(b) the reference in
the said sub-clause (3) to "1989" shall be read and construed as "1991".
(7) If the date by
which any notification, details, advice or particulars are required to be
given to the Minister by the Joint Venturers pursuant to sub-clause (2) of
this Clause has been extended to the 31st day of December 1991 pursuant to
sub-clause (4) and (6) of this Clause and the Joint Venturers do not give to
the Minister by such date a Project Notice in respect of the Initial Project
this Indenture shall thereupon terminate unless the State and the Joint
Venturers have negotiated and agreed upon new provisions relating to the
subject matters contained in Clauses 6, 7, 9, 11, 13, 14, 15, 16, 17, 18, 21,
22, 23, 24, 29, 32, 43 and this Clause provided that any failure to agree
pursuant to this sub-clause shall not be arbitrable.
(8) Where this
Indenture terminates pursuant to any of the provisions of this Clause nothing
herein contained shall operate or be deemed to operate so as to restrict,
curtail, derogate from or otherwise affect any of the rights or benefits to
which the Joint Venturers or any of them are or an associated company is at
such termination entitled under or pursuant to any of Retention Lease No. 14,
Extractive Minerals Lease No. 4895, Miscellaneous Purposes Licences Nos.
12 and 13, Exploration Licences Nos. 783 and 784, and the Exploration Licence
to be issued in consequence of Application for Exploration Licence No. 611 of
1980 or under or pursuant to any Lease, Licence or other tenement held by
the Joint Venturers or any of them or by an associated company in lieu thereof
or substitution therefor, provided however, that the Joint Venturers or any of
them shall not, after termination of this Indenture pursuant to the provisions
of this Clause, give a Project Notice.
(1) Any notice consent
communication or other writing authorised by or required by this Indenture to
be given or sent shall be deemed to have been duly given or sent by the State
if signed by the Minister or by any senior officer of the Public Service of
the State acting by the direction of the Minister and forwarded by prepaid
post to the relevant Joint Venturers at their principal offices for the time
being in the State and by the Joint Venturers if signed on behalf of each of
them by a director manager or secretary of the relevant Joint Venturer or by
any person or persons authorised by a Joint Venturer in that behalf or by its
solicitors (which solicitors have been notified to the State from time to
time) and forwarded by prepaid post to the Minister and any such notice
consent communication or writing shall be deemed to have been duly given or
sent (unless the contrary be shown) on the day on which it would be delivered
in the ordinary course of post provided that any notice consent communication
or other writing as aforesaid may be given by telex and when despatched to
such telex number (with answer back code) as the relevant addressee may
hereafter specify for such purpose to the other parties by notice in writing
shall be deemed to be duly given and signed on the date of despatch if the
recipient machine causes the answer back code of the recipient to be printed
at the beginning and end of the said notice consent communication or other
writing provided transmission thereof is completed during normal business
hours on a business day in the place of the addressee and if it is not so
completed shall be deemed to be duly given and signed upon the commencement of
normal business hours on the next business day in the place of the addressee
after transmission is completed.
(2)
The Joint Venturers may appoint a manager being an associated company to
administer various aspects of this Indenture and to act as the agent of the
Joint Venturers in matters relating to this Indenture. The manager when
appointed and notice of such appointment has been given to the Minister shall
have authority to give and receive a notice consent communication or other
writing in accordance with sub-clause (1) of this Clause.
(3) Where the Minister
has in accordance with the provisions of this Indenture been provided with the
names and addresses of mortgagees chargees and other encumbrancees and
sub-lessees of the Joint Venturers or any of them or an associated company the
Minister or the State shall give or cause to be given thereto a copy of any
notice given to the Joint Venturers or associated company pursuant to
sub-clause (1) of this Clause provided that failure on the part of the
Minister or the State to do so in any case shall not be held to invalidate any
notice duly given to the Joint Venturers or any of them or associated company
and provided further that neither the Minister nor the State shall be liable
for any damages costs or expenses suffered or incurred by any person as a
result of any failure to give a copy of any such notice to any mortgagee
chargee or other encumbrancee or sub-lessee.
The Joint Venturers shall during the currency of this Indenture consult with
and keep the State informed on a confidential basis concerning any action that
they or an associated company propose to take with any third party (including
the Commonwealth or any Commonwealth constituted agency authority
instrumentality or other body) or as between themselves which might
significantly affect the overall interest of the State under this Indenture.
(1) The parties hereto
may from time to time by agreement in writing add to or substitute for cancel
or vary all or any of the provisions of this Indenture or of any Special
tenement lease licence easement or right granted or intended to be granted
hereunder or pursuant hereto for the purpose of more efficiently or
satisfactorily implementing or facilitating any of the objects of this
Indenture.
(2) The Minister shall
cause any agreement made pursuant to sub-clause (1) of this Clause to be laid
on the Table of each House of the Parliament of South Australia within twelve
sitting days next following its execution.
(3) Either House may,
within twelve sitting days of that House after the agreement has been laid
before it pass a resolution disallowing the agreement, but if after the last
day on which the agreement might have been disallowed neither House has passed
such a resolution the agreement shall have effect from and after that last
day.
(4) The provisions of
this Clause shall apply to any agreement reached between the State and
the Joint Venturers pursuant to sub-clause (7) of Clause 53.
This Indenture shall be governed by and construed in accordance with the law
for the time being applicable in the State and the parties to this Indenture
consent and submit to the jurisdiction of the Courts of the State and to all
Courts having jurisdiction and being competent to hear appeals therefrom.
FIRST SCHEDULE
SOUTH AUSTRALIA—SPECIAL WATER LICENCE
His Excellency the Governor in and over the State of South Australia, in the
Commonwealth of Australia, pursuant to and in exercise of the powers and
authorities conferred upon him by the Roxby Downs (Indenture Ratification)
Act, 1982, and of all other powers enabling him in that behalf, doth
hereby grant to
(hereinafter called "the Licensees" which expression shall include their and
each of their respective successors and assigns) an exclusive licence to draw
water from the areas and water sources specified in Item A of the Schedule
hereto (hereinafter called "the source or area") subject only to and upon the
terms and conditions hereinafter appearing
WHEREAS:
(a) The State of South
Australia ("the State") has entered into an Indenture with the Minister of
Mines and Energy, Roxby Mining Corporation Pty. Ltd., BP Australia Limited, BP
Petroleum Development Limited and Western Mining Corporation Limited which
Indenture bears date the
day of
1982 (hereinafter referred to as "the Indenture").
(b) The Parliament of
the State has ratified the Indenture by the enactment of the Roxby Downs
(Indenture Ratification) Act, 1982.
(c) Pursuant to
the Indenture the State undertook upon satisfaction of certain conditions
precedent to grant a Special Water Licence upon the terms and conditions set
out in the Indenture.
(d) The said
conditions precedent now being satisfied the State has executed this Special
Water Licence in partial satisfaction and fulfilment of its obligations
pursuant to the Indenture (and in particular pursuant to Clause 13 thereof).
1. The Licensees shall
be at liberty subject only to the express provisions of this Special Water
Licence and the Indenture to draw water from the source or area for such
purposes consistent with the provisions of the Indenture as they shall in
their absolute discretion think fit.
2. The Licensees shall
not be at liberty to withdraw water except for exploration construction and
testing purposes until the agreement has been reached between the Minister of
Water Resources and the Licensees as provided in paragraphs (a) , (c) and (d)
of sub-clause (8) of Clause 13 of the Indenture.
3. —
(a) If the Minister of
Water Resources has reason to believe that the continued abstraction of water
by the Licensees from the designated area will be detrimental to the source or
area or that there is a reasonable possibility of a complete or partial
failure of the water supply therefrom, he may issue to the Licensees a notice
requiring them to restrict the abstraction of water from the designated area
to the limit set out in the notice.
(b) The Minister of
Water Resources may, if he is of the opinion that an emergency situation
exists, give not less than ninety six hours notice to the Licensees requiring
them to limit the amount of water which may be taken from the source or area
at any one time or from time to time to the maximum which such source or area
is hydrologically capable of safely supplying.
(c) In the event that
the Minister of Water Resources shall at any time limit the amount of water to
be taken from the source or area the obligation of the State and the Licensees
shall be as set forth in sub-clause (9) of Clause 13 of the Indenture.
4. The Licensees may
construct all necessary bores, valves, pipelines, meters, tanks, equipment and
appurtenances necessary to draw, transport, use and dispose of water drawn
from the source or area AND SUBJECT THERETO the Licensees shall to the extent
that it is practical and economical for them to do so design, construct and
operate or cause to be designed, constructed or operated all such plant so as
to promote the most efficient use of water.
5. The State shall be
at liberty to grant to third parties (including where applicable the State)
rights to draw water from the source or area only in accordance with the
provisions of sub-clause (13) of Clause 13 of the Indenture.
6. This licence shall
commence on the
day of
,
and expire upon
subject to any renewal or renewals hereof.
7. An application for
renewal of this Licence shall be made by the Licensees to the Minister.
8. The Licensees
pursuant to sub-clause (3) of Clause 51 of the Indenture shall be at liberty
to surrender any portion or portions of the lands the subject of this Licence
by giving to the Minister of Water Resources three calendar months notice in
writing of their intention or desire so to do. The State shall not terminate
this Licence except by notice to the Licensees in accordance with the
provisions of Clauses 41 and 42 of the Indenture.
9. The conditions of
the Licence may be amended or modified or compliance with any such conditions
may be waived by agreement in writing between the State and the Licensees and
not otherwise.
10. If any question
difference or dispute shall arise under or in relation to this Licence between
the State and the Licensees or any of them concerning any provisions of this
Licence or the meaning or construction of any matter or thing arising under or
in any way connected with this Licence or the rights duties or liabilities of
either the State or the Licensees or any of them under or in pursuance of the
provisions of this Licence including any question of whether the State or a
Licensee is or are in default under any provisions of this Licence then and in
every such case the question difference dispute matter or thing shall be
referred to arbitration in accordance with the procedure set out in Clause 49
of the Indenture and accordingly the Licensees shall waive any right of appeal
afforded by the provisions of the Water Resources Act.
11. This Licence and
any transfer mortgage or other dealing herewith shall be recorded in
accordance with the provisions of Clause 51 of the Indenture.
12. Any notice to be
given or demand to be made by the Licensees or by or on behalf of the Minister
of Water Resources shall be given or made as specified in Clause 54 of
the Indenture.
13. In the
construction of this Licence each and every word term or expression defined or
used in the Indenture shall have the same meaning when used in this Licence as
in the Indenture; words importing one gender shall include the other genders;
the singular shall include the plural and vice versa.
|
IN WITNESS whereof this Licence has been granted and executed by His
Excellency the Governor of the State and by the Licensees. | |
|
His Excellency the Governor of South Australia caused the Public Seal of the
State to be affixed hereto on the ...... day of ............ 19 ............ |
........................................................................
|
SECOND SCHEDULE
SOUTH AUSTRALIA—SPECIAL MINING LEASE
His Excellency the Governor in and over the State of South Australia in the
Commonwealth of Australia in conformity with and in exercise of the powers and
authorities conferred upon him by the Roxby Downs (Indenture Ratification)
Act, 1982, and of all other powers enabling him in that behalf, doth
hereby lease to
(hereinafter referred to as "the Lessees" which expression shall include their
and each of their respective successors and assigns) all that piece of land
containing
hectares or thereabouts and situated at
in the State of South Australia more particularly described and delineated on
the plan annexed hereto (hereinafter referred to as "the said land") including
in such Lease during its continuance subject always to the provisions of the
Indenture the following RIGHTS AND LIBERTIES for the Lessees and the Lessees'
agents servants and workmen to the exclusion of all other persons, subject
however, to the provisions of the Indenture:
(1) To enter into and
occupy the said land;
(2) To explore for and
to mine and obtain all minerals (other than opal) in or upon the said land;
(2A) To treat or
process Non-minesite Materials (other than opal) always in accordance with
the Indenture;
(3) For or incidental
to the purposes aforesaid in or upon the said land—
(a) To cut and
construct races drains dams reservoirs roads railways and tramways; and
(b) To erect offices
building works and machinery;
(4) To sell and
dispose of the minerals obtained from the said land and to utilise any such
minerals for any commercial or industrial purpose;
TO HOLD the said land with the appurtenances thereto unto the Lessees for the
period of fifty years commencing with effect from the date of receipt of the
application therefor subject to any extension or extensions hereof for the
purpose of exploration and mining thereon all minerals (other than opal)
together with the rights and liberties hereinbefore granted YIELDING AND
PAYING THEREFOR unto the State the rental and the royalty specified in Clauses
1 and 2 of the covenants hereinafter set forth.
AND IT IS HEREBY AGREED AND DECLARED as follows:
1. Subject to Clause
34 of the Indenture the Lessees shall pay to the State at the office of the
Minister or such other place as shall be agreed between the parties hereto
yearly in advance on the first day of
in each year during the said term, rental in accordance with sub-clause (5) of
Clause 19 of the Indenture.
2. The Lessees shall
severally pay or cause to be paid to the State at the office of the Minister
or such other place as shall be agreed between the parties hereto royalty at
the times in the manner and at the rates specified in Clause 32 of
the Indenture.
3. The property in the
minerals contained in the said land shall pass to the Lessees at the time the
mineralized rock is brought to the surface notwithstanding that royalty shall
not at that stage have been paid in respect thereof.
4. The Lessees shall
observe the provisions of all regulations relating to the mining, treatment,
storage and transport of radioactive ores and the management of waste relating
thereto as provided for in the Indenture.
5. The Lessees shall
keep and maintain such records and reports as may properly be required of them
and forward to the Minister or other relevant authority of the State all such
records and reports so required to be forwarded pursuant to the Indenture.
6. The Lessees shall
permit the Minister of Mines and Energy or the Director of Mines or any person
duly appointed by either the Minister or the Director at all proper and
reasonable times during the said term to enter into and upon the said land to
view and examine the mining operations conducted or performed in pursuance of
this Lease.
7. Subject to due
performance and observance by the Lessees of their obligations hereunder this
Lease shall be extended in accordance with, subject to and for the periods of
time set out in the provisions of Clause 19 of the Indenture. An application
for extension of this Lease shall be made by the Lessees to the Minister of
Mines and Energy.
8. That the Lessees
shall be at liberty from time to time (with abatement of future rent in
respect of the area surrendered but without any abatement of the rent already
paid or any rent which has become due and has been paid in advance) to
surrender this Lease in respect of all or any portion (of reasonable shape and
size) of the said land by giving to the Minister three calendar months' notice
in writing of the Lessees' desire or intention so to do.
9. The Lessees shall
comply with the provisions of the Mines and Works Inspection Act and all
regulations made thereunder.
10. The State may
terminate this Lease for any substantial breach of the conditions set out
herein in accordance with the provisions of paragraph (a) of sub-clause (1) of
Clause 41 of the Indenture.
11. This Lease may be
varied by agreement in writing between the State and the Lessees and not
otherwise, provided, however, that any failure to agree shall not be subject
to arbitration pursuant to Clause 49 of the Indenture.
12. The area comprised
in this Lease shall be subject to correction to accord with any survey to be
made by and at the cost of the Lessees.
13. Where the Director
of Mines has served upon the Lessees a notice requiring the Lessees to furnish
the Director with such records and geological samples as the Director may by
notice served upon the Lessees properly have required the Lessees to keep, the
Lessees shall furnish the Director with those records and geological samples
at the times specified in the notice.
14. That the Lessees
will cause to be made and maintained a survey of the mine workings located
within the said land and cause to be forwarded to the Department of Mines and
Energy a map or plan of such survey.
15. That the Lessees
will at all times during the said term keep and preserve the mines and
premises in good mechanical order repair and condition and in such good
mechanical order repair and condition at the end or other sooner determination
of the said term deliver peaceable possession thereof and of all and singular
the said land hereby leased unto the State or to some officer duly authorized
by it to receive possession thereof.
16. That the Lessees
will furnish as prescribed by the said Mining Act and regulations all returns
prescribed by the said Mining Act and regulations.
17. That the Lessees
will not during the continuance of the said term without the written consent
of the Minister first had and obtained use or occupy or permit to be used or
occupied the said land other than for the purpose of exercising the rights and
liberties hereinbefore granted.
18. That the Lessees
will build and keep in proper repair a sufficient and substantial fence around
the Lease so as effectually to prevent all unauthorized access.
19. The obligations to
pay royalty imposed on each of the Lessees as hereinbefore provided shall be
as provided in sub-clauses (1), (6), (16) and (17) of Clause 32 of
the Indenture.
20. This Lease and any
Transfer, Mortgage or other dealing therewith shall be recorded in accordance
with the provisions of Clause 51 of the Indenture.
21. The Minister may
exempt the Lessees or any of them from any obligation to comply with any
condition of this Lease.
22. Any notice to be
given or demand to be made by a Lessee or by or on behalf of the Minister
shall be given or made as specified in Clause 54 of the Indenture.
23. If any question
difference or dispute shall arise under or in relation to this Lease between
the State and the Lessees or any of them concerning any provision of this
Lease or the meaning or construction of any matter or thing arising under or
in any way connected with this Lease or the rights duties or liabilities of
either the State or the Lessees or any of them under or in pursuance of the
provisions of this Lease including any question whether the State or a Lessee
is or are in default under any provisions of this Lease then and in every such
case the question difference or dispute matter or thing shall be referred to
arbitration in accordance with the procedure set out in Clause 49 of
the Indenture.
24. That the Lessees
will report to the Minister when opal or petroleum or substances governed by
the Petroleum Act are discovered in or upon the said land. In the event that
any person other than the Lessees or any of them now or hereafter becomes the
registered owner of a precious stones claim for opal pursuant to the
Mining Act in relation to any area being part of the said land, the Lessees
will not, by any act or omission to act, nor will they cause any act or
omission to act to be done, prevent that person from exercising any rights
conferred at law upon him in respect of that precious stones claim.
25. This Lease is
issued subject to the rights pursuant to the Mining Act of opal miners (both
present and future) prospecting or mining in the Andamooka Precious Stones
Field, in accordance with sub-clause (12) of Clause 19 of the Indenture
provided that such rights shall not extend to a depth of more than fifty
metres below the surface.
26. In the
construction of these presents each and every word term or expression defined
in the Indenture shall have the same meaning where used in these presents
words importing one gender shall include the other genders, and singular shall
include the plural and vice versa and when the context or circumstances
require and unless inconsistent with or repugnant to the context the following
words shall have the meanings set opposite to them respectively—
"the ratifying Act" means the Roxby Downs (Indenture Ratification)
Act, 1982;
"the said land" includes any part thereof;
"the said term" includes any extensions hereof;
"the Indenture" means the Indenture dated the
day of
,
1982 between the State of South Australia, the Minister of Mines and Energy,
Roxby Mining Corporation Pty. Ltd., BP Australia Limited, BP Petroleum
Development Limited and Western Mining Corporation Limited as ratified by an
Act of the Parliament of the State of South Australia intituled The
Roxby Downs (Indenture Ratification) Act, 1982".
|
IN WITNESS whereof this Lease has been executed by His Excellency the Governor
of the State and by the Lessees. | |
|
His Excellency the Governor of South Australia caused the Public Seal of the
State to be affixed hereto on the ...... day of ...... 19 ...... |
|
THIRD SCHEDULE
SOUTH AUSTRALIA—SPECIAL EXPLORATION LICENCE
His Excellency the Governor in and over the State of South Australia, in the
Commonwealth of Australia, pursuant to and in exercise of the powers and
authorities conferred upon him by the Roxby Downs (Indenture Ratification)
Act, 1982, and of all other powers enabling him in that behalf, doth
hereby grant to
(hereinbefore referred to as "the Licensees" which expression shall include
their and each of their respective successors and assigns):
(a) an exclusive
licence to prospect for minerals other than opal within the area situated at
in the State of South Australia more particularly described and delineated on
the plan annexed hereto in Schedule A(hereinafter referred to as "the said
land") for a term commencing on the
day of
and expiring on 31st day of December 1995/2005 for an annual rent equal to the
annual rate applicable to exploration licences granted under the Mining Act;
and
(b) an exclusive right
during the said term to apply for a mining tenement of the appropriate class
under the Mining Act or for a Special Tenement under the Indenture and the
ratifying Act in respect of the said land.
AND IT IS HEREBY AGREED AND DECLARED between the parties hereto that the
Licence is granted upon the further conditions set out hereunder:
1. For the purposes of
prospecting for and proving the extent of mineral deposits but subject to such
conditions with regard to the protection of the environment as may be
prescribed in accordance with the provisions of the Indenture the
Licensees:—
(a) shall have full
and free liberty of access ingress and egress with or without vehicles engines
and machinery and all other necessary implements and things into and from the
said land; and
(b) may dig excavate
and drill on and into the said land and extract and carry away minerals
therefrom for the purpose of carrying out tests and studies in respect
thereof.
2. The State shall
procure that during the term of this Licence no mineral claim shall be
registered and no licence or lease shall be granted over land comprised in
this Licence otherwise than to the Licensees or their nominee except with the
consent of the Licensees. The Licensees shall not unreasonably prevent pegging
of precious stones claims for opal on the said land and the State shall not
grant nor permit to be granted any rights resulting from such pegging which
extend to a depth of more than fifty metres below the surface.
3. The Licensees shall
pay to the State at the office of the Department of Mines and Energy or such
other place as shall be agreed between the parties hereto the annual rental on
the day of
in each year during the term hereof.
4. The Licensees as
far as practicable shall undertake continuous exploration of the said land
such that not less than the amount specified in Clause 20 of the Indenture is
expended in respect of the said land.
5. The Licensees shall
report forthwith to the Minister the discovery of any minerals potentially
capable of economic production.
6. The Licensees shall
furnish the Director of Mines with the information and geological samples
required by Section 32 of the Mining Act at three calendar monthly intervals.
7. In furnishing the
Director of Mines with the information required by Section 32 of the Mining
Act the Licensees shall submit all plans in the form of a transparency
accompanied by a print.
8. The Licensees shall
conduct exploration in pursuance of this Licence in such a manner so as:
(a) to prevent
pollution to or contamination of surface or underground waters and
(b) to minimize
surface damage to the said land.
9. The Licensees shall
not construct major campsites, new tracks, upgrade existing tracks, or use
declared equipment without the prior approval of the Director-General,
Department of Mines and Energy.
10. The Licensees
shall take due care to preserve all Aboriginal and Historic Relics sites and
areas of archaeological or anthropological importance and shall notify the
Heritage section of the Department of the Environment of the State of any
localities discovered in the course of exploration.
11. In any off-road
use of vehicles the Licensees are to take due care to avoid environmental
damage, and in the case of repeated use of vehicles to restrict activity to
existing or approved tracks.
12. The Licensees
shall notify the Director-General, Department of Mines and Energy, at the
planning stage of any airborne survey, details of the type of survey, area to
be surveyed, flight line spacing and flight height.
13. Prior to
commencing exploration on the said land the Licensees will be required to
liaise with the Supervising Geologist, Mineral Exploration, Department of
Mines and Energy, to determine departmental requirements for map presentation
of reported data.
14. The Licensees
shall consult with the Director-General, Department of Mines and Energy prior
to undertaking any drilling operations.
15. All exploration
activity is prohibited within 200 metres of any positively identified
Aboriginal engraving sites or stone arrangements without the prior approval of
the Director-General, Department of Mines and Energy.
16. Vehicle travel
will follow interdunal corridors and cross dunes at right angles where
necessary.
17. The Licensees
shall notify the Director-General, Department of Mines and Energy, in writing,
of any proposals for groundwater investigations for the purpose of water
supplies, dewatering, in-situ leaching, waste disposal or any other purpose,
at least one month before they are to be undertaken, so that the proposal can
be discussed with the South Australian Underground Waters Technical Advisory
Committee.
18. The Licensees
shall permit the Minister or the Director of Mines or any person duly
appointed by either the Minister or the Director at all proper and reasonable
times during the said term to enter into and upon and to view and examine the
said land.
19. The Licensees
shall be at liberty to surrender this Licence by giving to the Minister three
calendar months notice in writing of the Licensees, desire or intention so to
do.
20. In the event that
the Licensees encounter significant underground water during drilling
operations on the said land they shall notify the exact location of such
underground water to the Director of Mines and shall if practicable collect
samples and forward same to the Director and shall do all such things as the
Director may require to protect the aquifers.
21. The State may
terminate this Licence for any substantial breach of the terms and conditions
set out herein in accordance with the provisions of paragraph (a) of
sub-clause (1) of Clause 41 of the Indenture.
22. This Licence may
be varied by agreement in writing between the State and the Licensees and not
otherwise, provided however, that any failure to so agree shall not be subject
to arbitration pursuant to Clause 49 of the Indenture.
23. If any question
difference or dispute shall arise under or in relation to this Licence between
the State and the Licensees or any of them concerning any provision of this
Licence or the meaning or construction of any matter or thing arising under or
in any way connected with this Licence or the rights duties or liabilities of
either the State or the Licensees or any of them under or in pursuance of the
provisions of this Licence including any question whether the State or a
Licensee is or are in default under any provisions of this Licence then and in
every such case the question difference or dispute matter or thing shall be
referred to arbitration in accordance with the procedure set out in Clause 49
of the Indenture.
24. The area comprised
in this Licence shall be subject to correction to accord with any Survey to be
made by and at the expense of the Licensees.
25. This Licence and
any Transfer, Mortgage or other dealing therewith shall be recorded in
accordance with the provisions of Clause 51 of the Indenture.
26. The Minister may
exempt the Licensees or any of them from any obligation to comply with any
condition of this Licence and may waive payment of or grant time or indulgence
for the payment of any rental or other amount due hereunder or suspend
expenditure on exploration.
27. Any notice to be
given or demand to be made by the Licensees or by or on behalf of the Minister
shall be given or made as specified in Clause 54 of the Indenture.
28. In the
construction of these presents each and every word term or expression defined
in the Indenture shall have the same meaning where used in these presents;
words importing one gender shall include the other genders; and the singular
shall include the plural and vice versa when the context or circumstances
require and unless inconsistent with or repugnant to the context the following
words shall have the meanings set opposite to them respectively—
"the said land" includes any part thereof;
"the Indenture" means the Indenture dated the
day of
19 between the State of South Australia, the
Minister of Mines and Energy, Roxby Mining Corporation Pty. Ltd., BP Australia
Limited, BP Petroleum Development Limited and Western Mining Corporation
Limited as ratified by an Act of the Parliament of the State of South
Australia intituled " Roxby Downs (Indenture Ratification) Act, 1982".
|
IN WITNESS whereof the parties hereto have hereunto set their hands and seals
this
day of
19 . | |
|
His Excellency the Governor of South Australia caused the Public Seal of the
State to be affixed hereto on the ...... day of ...... 19 ...... |
........................................................................
|
FOURTH SCHEDULE
SPECIAL BUFFER ZONE LEASE (MINE)
His Excellency the Governor in and over the State of South Australia in the
Commonwealth of Australia in conformity with and in exercise of the powers and
authorities conferred upon him by the Roxby Downs (Indenture Ratification)
Act, 1982, and of all other powers enabling him in that behalf, doth
hereby lease to (hereinafter referred to as
"the Lessees" which expression shall include their and each of their
respective successors and assigns) all that piece of land containing
square kilometres
or thereabouts and situated at
in the State of South Australia more particularly described and delineated in
the plan annexed hereto (hereinafter with any additions thereto called "the
land") to be held by the Lessees for a term of twenty one years commencing on
the
day of
19 until and
including the
day of
19 subject to any
extension or extensions at a yearly rent of ten cents ($0.10) to be paid
yearly in advance SUBJECT ONLY to the covenants and conditions stated below.
1. The Lessees shall
during the term of this Lease:
(i)
subject to Clause 34 of the Indenture, pay the said rent
to the State at the offices of the Minister of Mines and Energy or such other
place as shall be agreed between the parties hereto yearly in advance on the
first day of
in each year during the said term;
(ii)
forthwith commence to destroy and during the term of the
Lease use reasonable means to keep the land free from vermin and pests;
(iii)
take adequate measures to safeguard the public, the work
force and the environment in relation to operations under the Indenture;
(iv)
carry out, in accordance with any approved environmental
management programme, any necessary planting and take adequate measures to
preserve the vegetation in the zone, prevent erosion of its surface, and
rehabilitate any degradation thereof;
(v)
whenever required so to do by the Minister at the
Lessees' own cost build and keep in proper repair a sufficient and substantial
fence around the land so as effectually to restrict all unauthorized access.
2. The Lessees shall
not assign, sublet, charge or encumber the whole or any part of the land or
this Lease otherwise than in accordance with the Indenture (as hereinafter
defined).
3. The Lessees shall
be entitled to use the land for any purpose specified in Clause 25 of
the Indenture.
4. This Lease may be
varied by agreement in writing between the State and the Lessees and not
otherwise and failure to agree shall not be arbitrable pursuant to Clause 49
of the Indenture.
5. An application for
extension of this Lease shall be made by the Lessees to the Minister.
6. Except as otherwise
provided if any question difference or dispute shall arise under or in
relation to this Lease between the State and the Lessees or any of them
concerning any provision of this Lease or the meaning or construction of any
matter or thing arising under or in any way connected with this Lease or the
rights duties or liabilities of either the State or the Lessees or any of them
under or in pursuance of the provisions of this Lease including any question
of whether the State or a Lessee is or are in default under any provisions of
this Lease then and in every such case the question difference or dispute
matter or thing shall be referred to arbitration in accordance with the
procedure set out in Clause 49 of the Indenture.
7. This Lease and any
Transfer, Mortgage or other dealing herewith shall be recorded in accordance
with the provisions of Clause 51 of the Indenture.
8. The Minister may by
notice in writing exempt the Lessees or any of them from any obligation to
comply with any condition of this Lease and may waive payment of or grant time
or indulgence for the payment of any Rental or other amount due hereunder.
9. The area comprised
in this Lease shall be subject to correction to accord with any Survey to be
made by and at the expense of the Lessees and shall be subject to variance in
accordance with Clause 25(2) of the Indenture.
10. Any notice to be
given or demand to be made upon the Lessees by or on behalf of the Minister
shall be given or made as specified in Clause 54 of the Indenture.
11. In the
construction of this Lease each and every word term or expression also defined
or used in the Indenture shall have the same meaning when used in this Lease;
words importing one gender shall include other genders; the singular shall
include the plural and vice versa; when the context or circumstances require
and unless inconsistent with or repugnant to the context the following words
shall have the meanings set opposite to them respectively—
"the land" includes any part thereof and any lands substituted therefor;
"the Indenture" means the Indenture dated the
................................................ day of
........................ 1982 and made between the State of South Australia,
the Minister of Mines and Energy, Roxby Mining Corporation Pty. Ltd., BP
Australia Limited, BP Petroleum Development Limited and Western Mining
Corporation Limited as ratified by an Act of the Parliament of the State of
South Australia intituled "The Roxby Downs
(Indenture Ratification) Act, 1982".
|
IN WITNESS whereof this Lease has been granted and executed by the State of
South Australia. | |
|
His Excellency the Governor of South Australia caused the Public Seal of the
State to be affixed hereto on the ...... day of ...... 19 ...... |
........................................................................
|
FIFTH SCHEDULE
DESCRIPTION OF THE OLYMPIC DAM AREA
The Olympic Dam area is an area bounded as follows:
commencing at a point being the intersection of latitude 30° 23′S
and longitude 136° 50′E thence east to longitude 136°
57′E, south to latitude 30° 30′S west to longitude 136°
50′E and north to point of commencement.
SIXTH SCHEDULE
DESCRIPTION OF THE STUART SHELF AREA
THE STUART SHELF AREA, is an area bounded as follows:
Commencing at a point being the intersection of latitude 29° 45′S
and longitude 136° 36′E, thence east to longitude 136°
48′E south to latitude 29° 48′S, east to longitude 136°
57′E, south to latitude 30° 09′S, east to longitude 137°
19′E, south to latitude 30° 12′S, east to longitude 137°
32′E, south to latitude 30° 25′S, east to longitude 137°
52′E, south to latitude 30° 37′S, east to longitude 138°
00′E, south to latitude 30° 49′S, west to longitude 137°
55′E, south to latitude 31° 09′S, west to longitude 137°
50′E, south to latitude 31° 25′S, west to longitude 137°
39′E, south to latitude 31° 45′S, west to longitude 137°
30′E, north to latitude 31° 35′S, west to longitude 137°
25′E, north to latitude 31° 15′S, east to longitude 137°
30′E, north to latitude 31° 00′S, west to longitude 137°
23′E, south to latitude 31° 15′S, west to longitude 137°
18′E, north to latitude 31° 07′S, west to longitude 137°
06′E, south to latitude 31° 10′S, west to longitude 136°
51′E, north to latitude 31° 07′S, west to longitude 136°
49′E, north to latitude 30° 55′S, east to longitude 136°
57′E, north to latitude 30° 49′S, west to longitude 136°
44′E, north to latitude 30° 42′S, west to longitude 136°
41′E, north to latitude 30° 17′S, west to longitude 136°
35′E, north to latitude 30° 13′S, west to longitude 136°
30′E, north to latitude 29° 53′S, east to longitude 136°
36′E and north to the point of commencement, but excluding:
(1) The area bounded
as follows:
Commencing at a point being the intersection of latitude 30° 23′S
and longitude 136° 50′E, thence east to longitude 136°
57′E, south to latitude 30° 30′S, west to longitude to
136° 50′E and north to the point of commencement.
(2) The surface
stratum of the area known as the Andamooka Precious Stones Field to a depth of
50 metres.
The area of the Andamooka Precious Stones Field is an area bounded as follows:
commencing at a point being the intersection of latitude 30° 22′S
and longitude 137° 06′E, thence east to longitude 137°
10′E, south to latitude 30° 25′S, east to longitude 137°
12′E, south tp latitude 30° 26′S, east to longitude 137°
14′E, south to latitude 30° 29′S, east to longitude 137°
19′E, south to latitude 30° 32′S, west to longitude to
137° 06′E, north to latitude 30° 31′S, west to longitude
137° 04′E, north to latitude 30° 27′S, east to longitude
137° 06′E, and north to the point of commencement.
SEVENTH SCHEDULE
(a) The Trust shall
supply electricity to the Joint Venturers or such of them as they may nominate
or an associated company as they may nominate (hereinafter referred to as "the
Consumers") which shall accept and pay for such electricity subject to the
provisions of this Agreement.
(b) The Trust shall
supply electricity in the first instance at the point of supply referred to in
Clause 2.
(a) The Trust shall
supply electricity of the quantity and nature referred to in Clause 4 in the
following manner:
(i)
The Trust shall supply such electricity to the
Commonwealth at the outgoing sides of a three phase set of insulators attached
to a slack span connected between the first tower in the said transmission
line and the Trust's equipment at the Switchyard of the Thomas Playford Power
Station.
(ii)
If the said transmission line at any time hereafter
becomes vested in or is operated and controlled by the Trust such electricity
shall be supplied at the outgoing side of a three phase set of insulators
attached to a slack span connected between the first tower in a transmission
line owned by the Consumers and the Trust's equipment in a switchyard or
substation at Woomera.
(b) The point at which
electricity shall be supplied (except the change in point of supply
contemplated by sub-clause (a) of this Clause) may be changed only with the
consent of both parties to this Agreement and (unless otherwise agreed in
writing) any such change shall be at the expense in all things of the party
requesting the change. Without limiting the generality of the foregoing such a
change may be requested for the more convenient supply of electricity and
neither party shall unreasonably refuse to consent to a change in the point of
supply.
3. Additional Points of Supply
(a) The Trust shall
supply additional electricity requested by the Consumers from the Davenport
Substation of the Trust near Port Augusta aforesaid which shall be supplied at
the outgoing sides of a three phase set of insulators attached to a slack span
connected between the first tower in a transmission line owned and operated by
the Consumers and the Trust's equipment at the said Substation.
(b) The point at which
electricity shall be supplied may be changed only with the consent of both
parties to this Agreement and (unless otherwise agreed in writing) any such
change shall be at the expense in all things of the party requesting the
change. Without limiting the generality of the foregoing such change may be
requested for the more convenient supply of electricity and neither party
shall unreasonably refuse to consent to a change in the point of supply.
4. Nature and Quantity of Supply
(a) The electricity
supplied pursuant to Clause 2:
(i)
shall be of alternating current fifty (50) hertz three
phase and of 132,000 volts or thereabouts; and
(ii)
shall not be supplied in amounts greater than that
specified in the Indenture.
(b) The electricity
supplied pursuant to Clause 3 shall be of alternating current fifty (50) hertz
three phase and shall be of 275,000 volts or thereabouts.
(c) The Trust does not
guarantee to the Consumers a supply of electricity within any voltage or
frequency range but will use its best endeavours to maintain the voltage of
electricity to be supplied at the undermentioned points of supply within the
following ranges of voltage and frequency under normal operating conditions:
|
Point of Supply |
Voltage |
Frequency | |
|---|---|---|---|
|
1. |
Port Augusta |
within 100% to 105% of 132 000 volts |
within 0.15 hertz of fifty (50) hertz |
|
2. |
Woomera |
within 95% to 105% of 132 000 volts |
within 0.15 hertz of fifty (50) hertz |
|
3. |
Davenport |
within 100% to 110% of 275 000 volts |
within 0.15 hertz of fifty (50) hertz |
5. Responsibility for Provision of Works
(a) The Trust shall
supply and maintain such transmission lines transformers circuit breakers
switches protective equipment and other works as it shall think fit for the
supply of electricity to the Consumers pursuant to this Agreement up to and
including the points of supply as hereinbefore defined.
(b) The Consumers
shall supply and maintain or shall cause to be supplied and maintained such
transmission lines transformers circuit breakers switches and protective
equipment and other works as they shall think fit for the transmission thereof
from Woomera and the point of supply referred to in Clause 3.
(c) The Consumers
shall not make any connection between the Consumers' installations and the
Trust's mains except with the specific approval of the Trust.
(d) —
(i) At all times during the period of supply the transmission lines transformers circuit breakers switches protective equipment and other works supplied and maintained by the Consumers for the transmission of electricity pursuant to sub-clause (b) of this Clause and by the power distribution authority for the distribution of electricity within the townsite (the said transmission lines transformers circu
; and 
