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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Iron Ore (FMG Chichester Pty Ltd) Agreement
Bill 2006
CONTENTS
1. Short title 2
2. Commencement 2
3. Terms used in this Act 2
4. Ratification and authorisation 2
5. State empowered under clause 22 2
6. Effect on other laws 2
Schedule 1 -- Iron Ore (FMG
Chichester Pty Ltd) Agreement
127--1 page i
Western Australia
LEGISLATIVE ASSEMBLY
Iron Ore (FMG Chichester Pty Ltd) Agreement
Bill 2006
A Bill for
An Act to ratify, and authorise the implementation of, an agreement
between the State and FMG Chichester Pty Ltd and Fortescue
Metals Group Ltd relating to the development of a project for the
mining of iron ore in the Pilbara region of the State.
The Parliament of Western Australia enacts as follows:
page 1
Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
s. 1
1. Short title
This is the Iron Ore (FMG Chichester Pty Ltd) Agreement
Act 2006.
2. Commencement
5 This Act comes into operation on the day on which it receives the
Royal Assent.
3. Terms used in this Act
In this Act --
"scheduled agreement" means the agreement of which a copy
10 is set out in Schedule 1;
"the Agreement" means the scheduled agreement or, if it is
varied in accordance with its terms, that agreement as
varied from time to time.
4. Ratification and authorisation
15 (1) The scheduled agreement is ratified.
(2) The implementation of the Agreement is authorised.
5. State empowered under clause 22
The State has power in accordance with clause 22 of the
Agreement.
20 6. Effect on other laws
(1) The Agreement operates and takes effect despite any enactment
or other law.
(2) If a provision of the scheduled agreement expressly or by
implication purports to modify or exclude the application or
25 operation of an enactment for a purpose or in relation to a
person or thing, the application or operation of the enactment is
modified or excluded for that purpose, or in relation to that
page 2
Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
s. 6
person or thing, to the extent or for the period mentioned in the
provision or necessary for the provision to have effect.
(3) To avoid doubt, it is declared that the provisions of the Public
Works Act 1902 section 96 do not apply to any railway
5 constructed pursuant to the Agreement.
(4) This section does not limit or otherwise affect the application of
the Government Agreements Act 1979.
page 3
Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Schedule 1 Iron Ore (FMG Chichester Pty Ltd) Agreement
Schedule 1 -- Iron Ore (FMG Chichester Pty Ltd)
Agreement
[s. 3]
5 2005
THE STATE OF WESTERN AUSTRALIA
10
and
15 FMG CHICHESTER PTY LTD
ACN 109 264 262
and
20
FORTESCUE METALS GROUP LTD
ACN 002 594 872
25
IRON ORE (FMG CHICHESTER PTY LTD) AGREEMENT
30
35
[Solicitor's details]
page 4
Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Iron Ore (FMG Chichester Pty Ltd) Agreement Schedule 1
THIS AGREEMENT is made this 1st day of December 2005
BETWEEN
5
THE HONOURABLE GEOFFREY IAN GALLOP, B.Ec., MA., MPhil.,
DPhil., M.L.A., Premier of the State of Western Australia, acting for and on
behalf of the said State and its instrumentalities from time to time (hereinafter
10 called "the State") of the first part,
FMG CHICHESTER PTY LTD ACN 109 264 262 of Ground Floor,
46-50 Kings Park Road, West Perth, Western Australia (hereinafter called "the
Company" in which term shall be included its successors and permitted assigns)
15 of the second part, and
FORTESCUE METALS GROUP LTD ACN 002 594 872 of Level 1, 46-50
Kings Park Road, West Perth, Western Australia (hereinafter called "the
Guarantor") of the third part.
20
WHEREAS:
25 A. The Company wishes to develop within the Defined Area in the vicinity
of the Chichester Ranges in the Pilbara region of Western Australia a
project for the mining of iron ore for sale either within Australia or by
export to overseas purchasers.
30 B. At the date of this Agreement the Company holds, in respect of the
Defined Area, the exploration licences referred to in part A of schedule 1
and has applied under the Mining Act to have granted to it the exploration
licences referred to in part B of schedule 1. The Company has also
applied under the Mining Act to have granted to it the mining leases, as
35 referred to in schedule 2, in respect of part of the land the subject of those
exploration licences held by it.
C. The Guarantor and The Pilbara Infrastructure Pty Ltd ACN 103 096 340
are proceeding with detailed feasibility studies for the construction and
40 operation of a multi-user railway from in the vicinity of the Chichester
Ranges to multi-user port facilities within the Port of Port Hedland or to a
page 5
Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Schedule 1 Iron Ore (FMG Chichester Pty Ltd) Agreement
location near the boundary of that port for delivery to such port facilities
by multi-user conveyor, and of such multi-user port facilities, for the
shipping and export of iron ore products, freight goods and other
products. The State has agreed to assist the development of those
5 multi-user facilities upon and subject to the terms of the Railway and Port
Agreement.
D. The Guarantor and the Company intend the railway and port facilities,
upon being constructed, to be used for the transportation, shipping and
10 export of iron ore produced as part of the Company's proposed project.
E. The State, for the purposes of promoting the development of the iron ore
industry and the creation of employment opportunity generally in
Western Australia, has agreed to assist the Company in the establishment
15 of its proposed project and has agreed to provide a framework for
managing future changes to the project, upon and subject to the terms of
this Agreement.
F. This Agreement is the Mining Agreement as defined in clause 1 of the
20 Railway and Port Agreement.
NOW THIS AGREEMENT WITNESSES:
25 Definitions
1. In this Agreement subject to the context:
"Access Act" means the Railways (Access) Act 1998;
30
"Access Code" means the Railways (Access) Code 2000;
"Access Minister" means the Minister in the Government of the State
for the time being responsible for the administration of the
35 Access Act;
"accommodation area" means an area or areas on, or subject to
clause 6 in the vicinity of, the Mining Leases for accommodation
and ancillary facilities for the mine workforce;
40
page 6
Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Iron Ore (FMG Chichester Pty Ltd) Agreement Schedule 1
"advise", "apply", "approve", "approval", "consent", "certify",
"direct", "notify", "request", or "require", means advise,
apply, approve, approval, consent, certify, direct, notify, request
or require in writing as the case may be and any inflexion or
5 derivation of any of those words has a corresponding meaning;
"Agreement Mining Tenements" means:
(a) the exploration licences listed in part A of schedule 1;
10
(b) any exploration licences granted to the Company pursuant
to the applications for exploration licences listed in part B
of schedule 1;
15 (c) any mining leases granted to the Company pursuant to its
applications for mining leases referred to in schedule 2;
(d) any other mining leases or general purpose leases granted
to the Company wholly by way of conversion of all or part
20 of an exploration or exploration licences which at the time
of conversion is an Agreement Mining Tenement or are
Agreement Mining Tenements;
(e) any other mining tenements granted to the Company in
25 accordance with approved proposals; and
(f) any other mining tenements approved by the Minister as
Agreement Mining Tenements pursuant to clause 12(10),
30 and includes any renewals or extensions thereof as the case may
be;
"approved proposal" means a proposal approved or deemed to be
approved under this Agreement;
35
"beneficiated ore" means iron ore which has been concentrated or
upgraded, otherwise than by washing, drying, crushing or
screening or a combination thereof, by the Company in a plant
constructed pursuant to an approved proposal or such other plant
40 as is approved by the Minister after consultation with the
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Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Schedule 1 Iron Ore (FMG Chichester Pty Ltd) Agreement
Minister for Mines and "beneficiation" and "beneficiate" have
corresponding meanings;
"commencement date" means the date on which the Bill referred to
5 in clause 3 comes into operation as an Act;
"Commonwealth" means the Commonwealth of Australia and
includes the Government for the time being thereof;
10 "Company's workforce" means the persons (and the dependants of
those persons) connected directly with the Company's activities
under this Agreement, whether or not such persons are employed
by the Company and includes the persons (and the dependants of
those persons) involved in the construction phases of the Project;
15
"Defined Area" means the area of land shown hatched on the plan
annexed to this Agreement and marked with the letter "A";
"Department" means the instrumentality of the State from time to
20 time assisting the Minister for Mines in the administration of the
Mining Act;
"EP Act" means the Environmental Protection Act 1986;
25 "Government agreement" has the meaning given to it in the
Government Agreements Act 1979;
"iron ore" includes beneficiated ore;
30 "iron ore products" includes iron ore of all grades and all products
from the processing of iron ore;
"LAA" means the Land Administration Act 1997;
35 "laws relating to native title" means laws applicable from time to
time in Western Australia in respect of native title and includes
the Native Title Act 1993 (Commonwealth);
"local government" means a local government established under the
40 Local Government Act 1995;
page 8
Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Iron Ore (FMG Chichester Pty Ltd) Agreement Schedule 1
"metallised agglomerates" means the product of a pyrometallurgical
iron ore reduction process which has a composition of not less
than 85% total iron excluding carbon;
5 "mine workforce" means such of the Company's workforce
(excluding dependants) engaged for the Company's activities on
the area of the Mining Leases, the accommodation area, and other
areas provided for the facilities of the Company in the vicinity of
the Mining Leases but does not include persons visiting any of
10 those areas in connection with the Company's activities on a
short term basis only or employed for a specific task of limited
duration;
"Mining Act" means the Mining Act 1978;
15
"Mining Amendment Act" means the Mining Amendment Act 2004;
"Mining Leases" means mining leases granted to the Company
wholly by way of conversion of all or part of an exploration
20 licence or exploration licences which at the time of conversion is
an Agreement Mining Tenement or are Agreement Mining
Tenements and mining leases approved by the Minister as
Agreement Mining Tenements pursuant to clause 12(10) and
includes any renewal thereof and according to the requirements
25 of the context shall describe the area of land demised as well as
the instruments by which such land is demised;
"mining tenement" has the meaning given to it in section 8 of the
Mining Act;
30
"Minister" means the Minister in the Government of the State for the
time being responsible for the administration of the Act to ratify
this Agreement and pending the passing of that Act means the
Minister for the time being designated in a notice from the State
35 to the Company and includes the successors in office of the
Minister;
"Minister for Mines" means the Minister in the Government of the
State for the time being responsible for the administration of the
40 Mining Act;
page 9
Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Schedule 1 Iron Ore (FMG Chichester Pty Ltd) Agreement
"month" means calendar month;
"native title" and "native title rights and interests" have the
meaning given in the Native Title Act 1993 (Commonwealth);
5
"notice" means notice in writing;
"private roads" means the roads referred to in clause 15(1) and any
other roads constructed by the Company in accordance with an
10 approved proposal or agreed by the State and the Company to be
a private road for the purposes of this Agreement;
"Project" means the establishment and operation under this
Agreement and in accordance with approved proposals of a
15 project for the production of iron ore from the Mining Leases for
transportation from the Mining Leases;
"public road" means a road as defined by the Road Traffic Act 1974;
20 "Rail Safety Act" means the Rail Safety Act 1998;
"Railway" has the meaning given to it in clause 1 of the Railway and
Port Agreement;
25 "Railway and Port Agreement" means the agreement ratified by the
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement
Act 2004;
"said State" means the State of Western Australia;
30
"The JORC Code" means the Australasian Code for Reporting of
Mineral Resources and Ore Reserves prepared by the Joint Ore
Reserves Committee of The Australasian Institute of Mining and
Metallurgy, Australian Institute of Geoscientists and Minerals
35 Council of Australia in December 2004 or any future superseding
code issued by the same or any future equivalent organisation or
organisations;
page 10
Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Iron Ore (FMG Chichester Pty Ltd) Agreement Schedule 1
"this Agreement" "hereof " and "hereunder" refer to this
Agreement whether in its original form or as from time to time
added to, varied or amended; and
5 "washing" means a process of separation by water using only size as
a criterion.
Interpretation
10
2. (1) In this Agreement:
(a) monetary references are references to Australian
currency unless otherwise specifically expressed;
15
(b) power given under any clause other than clause 29 to
extend any period or date shall be without prejudice to
the power of the Minister under clause 29;
20 (c) clause headings do not affect interpretation or
construction;
(d) words in the singular shall include the plural and words
in the plural shall include the singular according to the
25 requirements of the context;
(e) one gender includes the other genders;
(f) a covenant or agreement by more than one person
30 binds, and is enforceable against, those persons jointly
and each of them severally;
(g) reference to an Act includes the amendments to that Act
for the time being in force and also any Act passed in
35 substitution therefor or in lieu thereof and the
regulations for the time being in force thereunder;
(h) reference to the Access Code includes the amendments
to that code for the time being in force and also any
40 code established or made in substitution therefor or in
lieu thereof;
page 11
Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Schedule 1 Iron Ore (FMG Chichester Pty Ltd) Agreement
(i) reference in this Agreement to any other document
includes that document as from time to time added to,
varied or amended and notwithstanding any change in
the identity of the parties to it;
5
(j) reference to a clause, schedule or annexure is a
reference to a clause, schedule or annexure to this
Agreement, and a reference to a subclause or paragraph
is a reference to the subclause of the clause or
10 paragraph of the clause or subclause as the case may be
in, or in relation to, which the reference is made;
(k) "including" means "including, but not limited to"; and
15 (l) reference to a "person" includes a body corporate.
(2) Nothing in this Agreement, including the approval of proposals,
shall be construed to exempt the State or the Company from
compliance with, or to require the State or the Company to do
20 anything contrary to, any laws relating to native title or any
lawful obligation or requirement imposed on the State or the
Company, as the case may be, pursuant to any laws relating to
native title.
25 (3) Nothing in this Agreement, including the approval of proposals,
shall be construed to exempt the Company from compliance
with any requirement in connection with the protection of the
environment, including the clearing of native vegetation (as
defined in section 3 of the EP Act), arising out of or incidental
30 to its activities under this Agreement that may be made by or
under the EP Act.
Ratification and operation
35
3. (1) The State shall introduce and sponsor a Bill in the State
Parliament of Western Australia to ratify this Agreement and
endeavour to secure its passage as an Act prior to 30 June 2006
or such later date as may be agreed between the parties hereto.
40
page 12
Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Iron Ore (FMG Chichester Pty Ltd) Agreement Schedule 1
(2) (a) This clause and clauses 1, 2, 4 and 6 (2) shall come into
operation on the date of this Agreement.
(b) Clause 12(3) shall not come into operation until both
5 the Bill referred to in subclause (1) has been passed by
the Parliament of Western Australia and comes into
operation as an Act and Parts 6 and 10 of the Mining
Amendment Act come into operation.
10 (c) The other provisions of this Agreement shall not come
into operation until the Bill referred to in subclause (1)
has been passed by the Parliament of Western Australia
and comes into operation as an Act.
15 (3) If by 31 December 2006 the said Bill has not commenced to
operate as an Act then unless the parties hereto otherwise agree
this Agreement shall then cease and determine and no party
hereto shall have any claim against any other party hereto with
respect to any matter or thing arising out of, done, performed,
20 or omitted to be done or performed under this Agreement.
(4) Subject to subclauses 2(b) and (5), on the said Bill commencing
to operate as an Act all the provisions of this Agreement shall
operate and take effect despite any enactment or other law.
25
(5) On the later of:
(a) the date on which the said Bill commences to operate as
an Act; and
30
(b) the date on which Parts 6 and 10 of the Mining
Amendment Act come into operation,
the provisions of clause 12(3) shall operate and take effect
35 despite any enactment or other law.
Initial obligations of the Company
40 4. (1) The Company shall continue its field and office engineering,
environmental, heritage, market and finance studies and other
page 13
Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Schedule 1 Iron Ore (FMG Chichester Pty Ltd) Agreement
matters necessary for the purposes of this clause and to enable it
to finalise and to submit to the Minister the detailed proposals
referred to in clause 8. This shall include progressively
exploring and carrying out geological investigations to delineate
5 both the Indicated Mineral Resource and the Measured Mineral
Resource (each as defined in The JORC Code) of iron ore
within those parts of the exploration licences referred to in part
A of schedule 1 which are the subject of the applications for
mining leases set out in schedule 2.
10
(2) The Company shall keep the State fully informed in writing at
quarterly intervals from the date of this Agreement as to the
progress and results of its operations under subclause (1) and
shall supply to the Minister such information in relation thereto
15 as the Minister may request from time to time.
(3) The Company shall co-operate with the State and consult with
the representatives or officers of the State regarding matters
referred to in subclauses (1) and (2) and any other relevant
20 studies in relation to those subclauses that the Minister may
wish the Company to undertake.
(4) Notwithstanding the dedication of Agreement Mining
Tenements to the Project as referred to in clause 6(2), as part of
25 undertaking its obligations under subclause (1) the Company
may mine iron ore on not more than 2 Mining Leases for the
purposes of taking bulk samples and for testing mining
equipment intended to be used in the Project provided that:
30 (a) such mining and associated mining operations shall be
subject to the Mining Act, the EP Act and the other
laws of the State; and
(b) the amount of earth, soil, rock, stone, fluid or mineral
35 bearing substances that is excavated, extracted or
removed from:
(i) those Mining Leases; and
page 14
Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Iron Ore (FMG Chichester Pty Ltd) Agreement Schedule 1
(ii) exploration licences which are Agreement
Mining Tenements and in respect of which the
Minister for Mines has, pursuant to
section 66(c) of the Mining Act, approved a
5 limit greater than the prescribed limit as
referred to in that section,
as part of that bulk sampling and testing does not
exceed 1,000,000 tonnes in aggregate.
10
Aboriginal Heritage Act 1972
5. For the purposes of this Agreement the Aboriginal Heritage Act 1972
15 applies as if it were modified by:
(a) the insertion before the full stop at the end of section 18(1) of
the words:
20 "and the expression "the Company" means the persons from
time to time comprising "the Company" in their capacity as
such under the agreement made on 1 December 2005 between
The Honourable Geoffrey Ian Gallop, Premier of the State of
Western Australia acting for and on behalf of the said State and
25 its instrumentalities from time to time, FMG Chichester Pty Ltd
ACN 109 264 262 and Fortescue Metals Group Ltd
ACN 002 594 872, in relation to the use or proposed use
pursuant to that agreement of land within the Defined Area (as
defined in that agreement) after and in accordance with
30 approved proposals under that agreement and in relation to the
use of that land before any such approval of proposals where
the Company has the requisite authority to enter upon and so
use the land";
35 (b) the insertion in sections 18(2), 18(4), 18(5) and 18(7) of the
words "or the Company as the case may be" after the words
"owner of any land";
(c) the insertion in section 18(3) of the words "or the Company as
40 the case may be" after the words "the owner";
page 15
Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Schedule 1 Iron Ore (FMG Chichester Pty Ltd) Agreement
(d) the insertion of the following sentence at the end of
section 18(3):
"In relation to a notice from the Company pursuant to
5 subsection (2) the conditions that the Minister may specify can
as appropriate include, among other conditions, a condition
restricting the Company's use of the relevant land to after the
approval or deemed approval as the case may be under the
abovementioned agreement of all of the Company's submitted
10 proposals thereunder for the Project (as defined in the
abovementioned agreement), or in the case of additional
proposals submitted or to be submitted by the Company to after
the approval or deemed approval under that agreement of such
additional proposals, and to the extent so approved."; and
15
(e) the insertion in sections 18(2) and 18(5) of the words "or it as
the case may be" after the word "he".
The Company acknowledges that nothing in this clause 5 nor the
20 granting of any consents under section 18 of the Aboriginal Heritage
Act 1972 will constitute or is to be construed as constituting the
approval of any proposals submitted or to be submitted by the Company
under this Agreement or as the grant or promise of land tenure for the
purposes of this Agreement.
25
Land to be the subject of this Agreement
6. (1) The land to be granted pursuant to this Agreement, whether
30 under the LAA, the Mining Act or otherwise, will be drawn
from within:
(a) the Defined Area; and
35 (b) such other area of land in the vicinity of the Defined
Area as the Minister, before the Company submits
proposals in respect thereof, approves as land the
Company may as part of the particular proposals and in
accordance with but subject to this Agreement request
40 the grant to it of leases, licences or other tenures over as
page 16
Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Iron Ore (FMG Chichester Pty Ltd) Agreement Schedule 1
referred to in clause 18 to support the undertaking of
the Project.
(2) Subject to clause 4(4), the Company dedicates to the Project:
5
(a) all Agreement Mining Tenements held by it at the date
of this Agreement; and
(b) all future Agreement Mining Tenements,
10
and agrees that while this Agreement continues they shall
remain so dedicated for their respective terms including as
renewed or extended from time to time.
15
Community development plan
7. (1) In this clause, the term "community and social benefits"
includes:
20
(a) training and guaranteed employment for indigenous and
non-indigenous persons living in the Pilbara region of
the said State;
25 (b) regional development and local procurement of goods
and services;
(c) contribution to community services and facilities; and
30 (d) a regionally based workforce.
(2) The Company acknowledges the need for community and social
benefits flowing from this Agreement.
35 (3) The Company agrees that, prior to the time at which it submits
any proposals pursuant to clause 8 and, if required by the
Minister, prior to the time at which it submits any additional
proposals pursuant to clauses 10 or 11, it shall:
40 (a) consult with the relevant local government or local
governments with respect to the need for community
page 17
Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Schedule 1 Iron Ore (FMG Chichester Pty Ltd) Agreement
and social benefits in relation to the developments
proposed;
(b) following such consultation, prepare a plan which
5 describes the Company's proposed strategies for
achieving community and social benefits in connection
with the developments proposed, and such plan shall
include a process for regular consultation by the
Company with the relevant local government or local
10 governments in respect of the strategies; and
(c) submit to the Minister the plan prepared pursuant to
subclause (3)(b) and confer with the Minister in respect
of the plan.
15
(4) The Minister shall within one month after receipt of a plan
submitted under subclause (3)(c), either notify the Company
that the Minister approves the plan as submitted or notify the
Company of any changes that the Minister requires be made to
20 the plan. If the Company is unwilling to accept the changes
which the Minister requires it shall notify the Minister to that
effect and either party may refer to arbitration hereunder the
question of the reasonableness of the changes required by the
Minister.
25
(5) The effect of an award made on an arbitration pursuant to
subclause (4) shall be that the plan submitted by the Company
pursuant to subclause (3)(c) shall, with such changes required
by the Minister under subclause (4) as the arbitrator determines
30 to be reasonable (with or without modification by the
arbitrator), be deemed to be the plan approved by the Minister
under this clause.
(6) During the continuance of this Agreement, the Company shall
35 implement the plan approved or deemed to be approved by the
Minister under this clause.
(7) The Company shall report to the Minister about the results of its
periodic ongoing consultation with the relevant local
40 government or local governments in accordance with the plan
approved or deemed to be approved by the Minister under this
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Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Iron Ore (FMG Chichester Pty Ltd) Agreement Schedule 1
clause and as soon as practicable after each such consultation
takes place.
(8) At the request of either of them made at any time and from time
5 to time, the Minister and the Company shall confer as to any
amendments desired to any plan approved or deemed to be
approved by the Minister under this clause and may agree to
amendment of the plan or adoption of a new plan. Any such
amended plan or new plan will be deemed to be the plan
10 approved by the Minister under this clause.
Company to submit proposals
15 8. (1) The Company shall, subject to the EP Act, the provisions of this
Agreement and approval of a plan as referred to in clause 7,
submit to the Minister by 31 December 2006 to the fullest
extent reasonably practicable its detailed proposals (including
plans where practicable and specifications where reasonably
20 required by the Minister and any other details normally required
by a local government in whose area any works are to be
situated) with respect to the production of iron ore from the
Mining Leases then held by the Company and, if the Company
so wishes, also from any mining leases which the Company has
25 then applied for under the Mining Act and which if granted
would be Agreement Mining Tenements (such Mining Leases
and proposed mining leases in this subclause together being
called "the relevant mining leases") in an amount not less than,
in aggregate, 10,000,000 tonnes per annum and not greater than
30 the production limit specified in clause 11(1) or such higher
number of tonnes per annum as may be approved in principle
by the Minister pursuant to clause 11(2), for transportation from
the relevant mining leases and which proposals shall include the
location, area, lay-out, design, quantities, materials and time
35 program for the commencement and completion of construction
or the provision (as the case may be) of each of the following
matters, namely:
(a) the mining and recovery of iron ore including mining,
40 crushing, screening, handling, transport and storage of
iron ore and plant facilities;
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Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Schedule 1 Iron Ore (FMG Chichester Pty Ltd) Agreement
(b) any beneficiation or further processing of iron ore
proposed to be carried out;
(c) transportation of iron ore from the relevant mining
5 leases by road or by rail spur line or conveyor
connecting to the Railway or to any other railway of a
third party at a location within the Defined Area;
(d) roads within the relevant mining leases and roads
10 serving the relevant mining leases;
(e) temporary accommodation and ancillary facilities for
the mine workforce on, or subject to clause 6 in the
vicinity of, the relevant mining leases and housing or
15 other appropriate accommodation and facilities
elsewhere for the Company's workforce;
(f) water supply and disposal;
20 (g) energy supplies;
(h) a mine aerodrome on, or subject to clause 6 in the
vicinity of, the relevant mining leases;
25 (i) any other works, services or facilities desired by the
Company;
(j) residue disposal;
30 (k) subject to clause 6, any ancillary leases (not being
general purpose leases for land within the Defined Area
or mining leases), licences (not being exploration
licences or retention licences) or other tenures of land in
favour of the Company required from the State to
35 support the undertaking of the Project; and
(l) use of local labour, professional services,
manufacturers, suppliers, contractors and materials and
measures to be taken with respect to the engagement
40 and training of employees by the Company, its agents
and contractors.
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Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Iron Ore (FMG Chichester Pty Ltd) Agreement Schedule 1
(2) Proposals submitted pursuant to subclause (1) must not:
(a) include a request for the grant of a lease, licence or
other tenure of land which the Company has already
5 applied for under the Mining Act, the LAA or
otherwise;
(b) in relation to all Agreement Mining Tenements the
subject of the proposals, be inconsistent with the
10 conditions endorsed by the Minister for Mines on the
grants of those mining tenements; and
(c) if they relate to a mining lease or mining leases which
the Company has applied for under the Mining Act and
15 which if granted would be an Agreement Mining
Tenement or Agreement Mining Tenements as the case
may be, be inconsistent with the documentation that
accompanied that application or those applications
under the Mining Act.
20
(3) Each of the proposals submitted pursuant to subclause (1) may
with the approval of the Minister or must if so required by the
Minister be submitted separately and in any order as to the
matter or matters mentioned in one or more of paragraphs (a) to
25 (l) of subclause (1). Until all of its proposals under this clause
have been approved the Company may withdraw and may
resubmit any proposal but the withdrawal of any proposal shall
not affect the obligations of the Company to submit a proposal
under this clause in respect of the subject matter of the
30 withdrawn proposal.
(4) Each of the proposals submitted pursuant to subclause (1) may
with the consent of the Minister and the consents of any other
parties concerned, instead of providing for the construction of
35 new facilities or equipment or the provision of new services of
the kind therein mentioned, provide for the use by the Company
of any existing facilities equipment or services of such kind
belonging to the Company or upon terms and conditions agreed
between the Company and the other parties concerned of any
40 other existing facilities equipment or services of such kind.
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Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Schedule 1 Iron Ore (FMG Chichester Pty Ltd) Agreement
(5) The Company shall, whenever any of the following matters
referred to in this subclause are proposed by the Company
(whether before or during the submission of proposals under
this clause), submit to the Minister details of any services
5 (including any elements of the Project investigations, design
and management) and any works, materials, plant, equipment
and supplies that it proposes to consider obtaining from or
having carried out or permitting to be obtained or carried out
outside Australia, together with its reasons therefor and shall, if
10 required by the Minister consult with the Minister with respect
thereto.
(6) At the time when the Company submits the last of the said
proposals pursuant to this clause, it shall furnish to the
15 Minister's reasonable satisfaction evidence of:
(a) marketing arrangements demonstrating the Company's
ability to sell iron ore produced in accordance with the
said proposals;
20
(b) the financial capacity of the Company to undertake the
operations to which the said proposals refer;
(c) all accreditations under the Rail Safety Act which are
25 required to be held by the Company or any other person
for the construction of any rail spur proposed as
referred to in subclause (1)(c); and
(d) the readiness of the Company to embark upon and
30 proceed to carry out the operations referred to in the
said proposals.
Consideration of proposals
35
9. (1) In respect of each proposal pursuant to clause 8(1) the Minister
shall subject to the EP Act:
(a) approve of the proposal without qualification or
40 reservation; or
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Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Iron Ore (FMG Chichester Pty Ltd) Agreement Schedule 1
(b) defer consideration of or decision upon the same until
such time as the Company submits a further proposal or
proposals in respect of some other of the matters
mentioned in clause 8(1) not covered by the said
5 proposal or until such time as clause 8(6) has been
complied with by the Company; or
(c) require as a condition precedent to the giving of his
approval to the said proposal that the Company make
10 such alteration thereto (including where the proposal
relates to an Agreement Mining Tenement or
Agreement Mining Tenements granted after the
submission of the proposal, to accord with the
conditions endorsed by the Minister for Mines on the
15 grant of that mining tenement or grants of those mining
tenements) or comply with such conditions in respect
thereto as he thinks reasonable, and in such a case the
Minister shall disclose his reasons for such conditions,
20 PROVIDED ALWAYS that where implementation of any
proposals hereunder have been approved pursuant to the EP Act
subject to conditions or procedures, any approval or decision of
the Minister under this clause shall if the case so requires
incorporate a requirement that the Company make such
25 alterations to the proposals as may be necessary to make them
accord with those conditions or procedures.
(2) The Minister shall within 2 months after the later of:
30 (a) receipt of proposals pursuant to clause 8(1);
(b) where the proposals are to be assessed under Part IV of
the EP Act, service on the Minister of an authority
under section 45(7) of the EP Act;
35
(c) where a proposal will or may require the State to do any
act which affects any native title rights and interests,
completion of all processes required by laws relating to
native title to be undertaken by the State before that act
40 may be done by the State; and
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Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Schedule 1 Iron Ore (FMG Chichester Pty Ltd) Agreement
(d) where the proposals relate to a mining tenement or
mining tenements which the Company has applied for
under the Mining Act and which if granted would be an
Agreement Mining Tenement or Agreement Mining
5 Tenements, the grant of that application or of all of
those applications as the case may be,
give notice to the Company of his decision in respect to the
proposals.
10
(3) If the decision of the Minister is as mentioned in either of
paragraphs (b) or (c) of subclause (1) the Minister shall afford
the Company full opportunity to consult with him and should it
so desire to submit new or revised proposals either generally or
15 in respect to some particular matter.
(4) If the decision of the Minister is as mentioned in either of
paragraphs (b) or (c) of subclause (1) and the Company
considers that the decision is unreasonable the Company within
20 2 months after receipt of the notice mentioned in subclause (2)
may elect to refer to arbitration in the manner hereinafter
provided the question of the reasonableness of the decision
provided that any requirement of the Minister pursuant to the
proviso to subclause (1) shall not be referable to arbitration
25 hereunder.
(5) An award made on an arbitration pursuant to subclause (4) shall
have force and effect as follows:
30 (a) if by the award the dispute is decided against the
Company then unless the Company within 3 months
after delivery of the award gives notice to the Minister
of its acceptance of the award this Agreement shall on
the expiration of that period of 3 months cease and
35 determine; or
(b) if by the award the dispute is decided in favour of the
Company the decision shall take effect as a notice by
the Minister that he is so satisfied with and approves the
40 matter or matters the subject of the arbitration.
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Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Iron Ore (FMG Chichester Pty Ltd) Agreement Schedule 1
(6) Notwithstanding any provision of this Agreement (other than
clause 29) or that the plan required to be approved pursuant to
clause 7 has not been approved, or that under this clause any
proposals of the Company are approved by the Minister or
5 determined by arbitration award, unless each and every
proposal and matter required pursuant to clause 8 is so
approved or determined by 31 December 2007 then the Minister
may give to the Company 12 months notice of intention to
determine this Agreement and unless before the expiration of
10 the said 12 months period all the detailed proposals and matters
are so approved or determined this Agreement shall cease and
determine subject however to the provisions of clause 31.
(7) Subject to and in accordance with the EP Act and any approvals
15 and licences required under that Act the Company shall
implement the approved proposals in accordance with the terms
thereof.
(8) Notwithstanding clause 27, the Minister may during the
20 implementation of approved proposals approve variations to
those proposals.
(9) The Minister may extend the periods set forth in clause 8(1) and
subclause (6) of this clause (in addition to any extension
25 granted under clauses 28 and 29) upon request of either the
Company or the State for such reasonable period or periods as
the Minister considers appropriate to enable either of them to
comply with laws relating to native title.
30
Expansion of the Project
10. (1) Subject to clause 11, if the Company at any time during the
continuance of this Agreement desires to significantly modify,
35 expand or otherwise vary its activities that are the subject of this
Agreement and that may be carried on by it pursuant to this
Agreement beyond those activities specified in any approved
proposals it shall give notice of such desire to the Minister and
within 2 months thereafter shall submit to the Minister detailed
40 proposals in respect of all matters covered by such notice and
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Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Schedule 1 Iron Ore (FMG Chichester Pty Ltd) Agreement
such of the other matters mentioned in clause 8(1) as the
Minister may require.
(2) The provisions of clauses 8 and 9 (other than subclauses (5)(a)
5 and 6) shall mutatis mutandis apply to detailed proposals
submitted pursuant to this clause with the proviso that the
Company may withdraw such proposals at any time before
approval thereof or, where any decision of the Minister in
respect thereof is referred to arbitration, within 3 months after
10 the award by notice to the Minister that it shall not be
proceeding with the same. Subject to and in accordance with
the EP Act and any approvals or licences required under that
Act, the Company shall implement approved proposals pursuant
to this clause in accordance with the terms thereof.
15
Limits on mining
11. (1) The Company shall not produce, in aggregate, more than
20 45,000,000 tonnes of iron ore per annum from the Mining
Leases without the prior in-principle approval of the Minister
under, and approval of detailed proposals in regard thereto in
accordance with, this clause.
25 (2) (a) If the Company desires to increase the annual tonnage
beyond that specified in subclause (1) it shall, subject to
sub-clause (3), give notice thereof to the Minister and
furnish to the Minister with that notice an outline of its
proposals in respect thereto (including the matters
30 mentioned in clause 8(1) or as the Minister otherwise
requires).
(b) The Minister shall within one month of receipt of a
notice under paragraph (a) of this subclause advise the
35 Company whether or not he approves in principle the
proposed increase. An in-principle approval by the
Minister under this subclause may be given subject to
conditions including a condition requiring variations of
or additions to this Agreement provided that any such
40 condition shall not without the consent of the Company
require variations of:
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Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Iron Ore (FMG Chichester Pty Ltd) Agreement Schedule 1
(i) the term of any Agreement Mining Tenement;
or
(ii) the rentals payable under any Agreement
5 Mining Tenement; or
(iii) the rates or method of calculating royalty; or
(iv) the provisions of clause 20.
10
The Minister shall afford the Company full opportunity
to consult with him in respect of the decision of the
Minister under this subclause.
15 (3) The Company may not give a notice under subclause (2)(a) in
regard to the production, in aggregate, of more than 45,000,000
tonnes of iron ore per annum from the Mining Leases unless the
Minister:
20 (a) acting in accordance with clause 20(4) has approved or
is deemed to have approved proposals submitted under
clause 20(2) for the establishment within the said State
of plant for the production of metallised agglomerates
or under clause 20(6) for an alternative project in lieu of
25 the Company's obligations under clause 20 in respect of
the establishment of such plant; or
(b) agrees for the purpose of this subclause (3) to receive a
notice under subclause (2)(a). If at the time the
30 Minister is considering whether or not to so agree for
the purpose of this subclause the Company has pursuant
to clause 20(3) applied for or been granted a
postponement of its obligations to submit proposals
under clause 20(2) or such an application made by it is
35 subject to clause 20(3)(d), the Minister shall in
considering whether or not to so agree for the purpose
of this subclause take into account the estimated
quantity of iron ore then still available to be produced
from the Mining Leases.
40
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Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Schedule 1 Iron Ore (FMG Chichester Pty Ltd) Agreement
(4) (a) If the Minister approves in principle a proposed
increase the Company:
(i) if it has not already submitted pursuant to
5 clause 8 all of its proposals for its initial mining
project, shall submit to the Minister pursuant to
clause 8 detailed proposals in respect of the
proposed increase as part of the Company's
proposals for its initial mining project and in
10 accordance with any condition of the Minister's
in-principle approval which may include the
amendment of the plan approved under clause 7
as a prerequisite to the submission by the
Company of proposals under clause 8; or
15
(ii) if it has already submitted pursuant to clause 8
all of its proposals for its initial mining project,
may after compliance with clause 7 (if required
by the Minister) and within 18 months or such
20 longer period as the Minister may from time to
time allow of the Minister's in-principle
approval, submit to the Minister detailed
proposals in respect of the proposed increase in
accordance with any conditions of that
25 in-principle approval otherwise that in-principle
approval shall lapse.
(b) The provisions of clauses 8 and 9 shall mutatis
mutandis apply to detailed proposals regarding a
30 proposed increase referred to in paragraph (a)(i) of this
subclause. The provisions of clause 10(2) shall apply to
detailed proposals submitted pursuant to
paragraph (a)(ii) of this subclause.
35 (5) Any proposal to increase the annual tonnage to be produced
from the Mining Leases shall specify the proposed increase and
on and after approval or determination of any such proposal in
accordance with subclause (4)(b):
40 (a) a reference to the amount referred to in subclause (1)
shall be deemed to be a reference to the increased
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Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Iron Ore (FMG Chichester Pty Ltd) Agreement Schedule 1
tonnage and the provisions of this clause shall apply
mutatis mutandis to the increased tonnage and also to
any subsequent desires of the Company for an increase
in the tonnage; and
5
(b) a reference to the amount referred to in subclause (3)
shall be deemed to be a reference to the increased
tonnage if that increased tonnage is higher than
45,000,000 tonnes of iron ore per annum.
10
Agreement Mining Tenements
12. (1) The Company shall be responsible for obtaining the grant to it
15 under the Mining Act of mining leases and general purpose
leases, by way of conversion of all or part of exploration
licences now or hereafter held by it and which are Agreement
Mining Tenements, required for the purposes of the Project and
the grant of such leases and any other mining leases will not be
20 sought or granted pursuant to this Agreement.
(2) For the purposes of this Agreement and without limiting the
operation of other subclauses, the application of the Mining Act
and regulations made thereunder are specifically modified
25 during the continuance of this Agreement as follows:
(a) in relation to an application that the Company may after
the commencement date make under the Mining Act:
30 (i) to convert all or part of an exploration licence
referred to in part A of schedule 1 or granted to
the Company pursuant to an application
referred to in part B of schedule 1 to a mining
lease or general purpose lease; or
35
(ii) otherwise for the grant to it of a mining
tenement solely over land within the Defined
Area where the grant is provided for in
approved proposals,
40
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Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Schedule 1 Iron Ore (FMG Chichester Pty Ltd) Agreement
the provisions of the Mining Act which, but for this
paragraph, entitle or would entitle a person to object
with or without the leave of the warden to the grant of
such a mining tenement to the Company, shall not
5 apply to the extent only that those provisions entitle or
would entitle a person to so object;
(b) by inserting in section 65(1a) the words "or otherwise
by the terms of the licence" after the words
10 "section 111";
(c) the Company shall not be entitled to apply for and be
granted any retention licences in respect of the whole or
any part of the land the subject of a Mining Lease or an
15 exploration licence which is an Agreement Mining
Tenement; and
(d) in respect of any exploration licence that is an
Agreement Mining Tenement by inserting in
20 regulation 23AB the following new ground for
extension of the term of such exploration licence:
"the holder of the exploration licence is a person
authorised by the Minister under section 111 or
25 otherwise by the terms of the licence to explore for iron
on that land".
(3) For the purposes of this Agreement and without limiting the
operation of other subclauses, the application of the Mining Act
30 and regulations made thereunder are also specifically modified
during the continuance of this Agreement as follows:
(a) in respect of the applications for mining leases referred
to in schedule 2 and any other applications by Company
35 for mining leases under the Mining Act which if
granted would be Agreement Mining Tenements, by
deleting section 120AA;
(b) section 6(1a), including as applying pursuant to
40 section 90(1), shall not apply to the extent it may
prevent the Minister from referring for assessment
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Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Iron Ore (FMG Chichester Pty Ltd) Agreement Schedule 1
under Part IV of the EP Act, a proposal or proposals
submitted pursuant to clauses 8, 10 or 11 as the case
may be;
5 (c) in section 6(1d), including as applying pursuant to
section 90(1), by deleting the full stop at the end of
paragraph (b) and substituting "; or" and inserting the
following new paragraph:
10 "(c) a proposal or proposals submitted pursuant to a
Government agreement as defined in the
Government Agreements Act 1979 for approval
under that agreement";
15 (d) a "relevant mining proposal" as defined in
section 82(1a) shall include an approved proposal;
(e) in section 82A(2), including as applying pursuant to
section 90(4), by deleting the full stop at the end of
20 paragraph (b) and substituting a comma and inserting as
a qualification to paragraphs (a) and (b) the words
"unless such mining operations are dealt with in a
proposal or proposals approved or deemed to be
approved pursuant to a Government agreement as
25 defined in the Government Agreements Act 1979."; and
(f) by deleting section 118A.
(4) For the purposes of this Agreement and without limiting the
30 operation of other subclauses, during the continuance of this
Agreement and notwithstanding any provisions of the Mining
Act and regulations made thereunder to the contrary:
(a) any assignment, mortgaging, charging, subletting,
35 parting with possession or disposal of an Agreement
Mining Tenement shall be subject to clause 26;
(b) subject to compliance with its obligations hereunder,
the Company shall not be required to comply with the
40 expenditure obligations imposed by or under the
Mining Act in regard to Agreement Mining Tenements;
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Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Schedule 1 Iron Ore (FMG Chichester Pty Ltd) Agreement
(c) in considering an application by the Company for the
extension of the term of an Agreement Mining
Tenement or for an exemption from the requirement of
section 65 of the Mining Act in respect of an
5 exploration licence which is an Agreement Mining
Tenement, the Minister for Mines shall consult with the
Minister and if applicable have regard to the
Company's compliance with clause 12(11) in respect of
that Agreement Mining Tenement and the results of the
10 geological investigations carried out on it; and
(d) an Agreement Mining Tenement shall not be forfeited
(except if it is an exploration licence, in regard to
failure to surrender land the subject of the licence in
15 accordance with the Mining Act) or determined
otherwise than in accordance with this Agreement.
(5) Except as required by section 65 of the Mining Act the
Company shall not surrender all or any part of an Agreement
20 Mining Tenement without the prior consent of the Minister.
(6) The Company shall lodge with the Department at Perth:
(a) in respect of each Agreement Mining Tenement such
25 periodical reports and returns as may be prescribed
from time to time in respect of such type of mining
tenement under or pursuant to the Mining Act or the
regulations made thereunder;
30 (b) if requested by the Department but not more frequently
than annually, a report on identified mineral resources
and/or iron ore reserves within the Agreement Mining
Tenements (prepared in accordance with The JORC
Code) together with a list of any geological,
35 geochemical, geophysical, geotechnical and
metallurgical activities carried out during the year and,
if requested by the Department, the Company will
provide details and results of any of those activities in a
mineral exploration report, or other technical report, in
40 accordance with the statutory guidelines on reporting as
specified in the Mining Act; and
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Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Iron Ore (FMG Chichester Pty Ltd) Agreement Schedule 1
(c) reports on drilling operations and drill holes where the
main purposes of the drilling was to discover or define
future mineral resources and ore reserves within the
Agreement Mining Tenements and, if requested by the
5 Department, reports on drilling done within blocks of
proven ore for the purpose of mine planning.
(7) The Company shall at all times permit the State and third
parties with the consent of the State (with or without stock,
10 vehicles and rolling stock) to have access to and to pass over
Agreement Mining Tenements and any other lease, licence of
other title granted pursuant to or under this Agreement (by
separate route, road or railway) so long as that access and
passage does not in the Minister's opinion unduly prejudice or
15 interfere with the activities of the Company under this
Agreement.
(8) Notwithstanding the Mining Act, the Company may with the
prior consent of the Minister and from time to time (with
20 abatement of future rent in respect to the area surrendered but
without any abatement of rent already paid or any rent which
has become due and has been paid in advance) surrender to the
State all or any portion or portions of the Mining Leases.
25 (9) The Company in accordance with approved proposals may for
the construction of works (and the maintenance thereof) within
the Mining Leases for the purposes of this Agreement and
without payment of royalty, obtain stone sand clay an gravel
from the Mining Leases.
30
(10) The Minister, after consulting the Minister for Mines, may
approve any mining tenement held by the Company the land the
subject of which is wholly or partly within the Defined Area or
in the vicinity of the Defined Area, and which is not then an
35 Agreement Mining Tenement, as an Agreement Mining
Tenement for the purposes of this Agreement and subject to
such of the existing conditions of that mining tenement as the
Minister for Mines determines but otherwise as from the date of
the Minister's approval subject to the provisions of this
40 Agreement.
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Schedule 1 Iron Ore (FMG Chichester Pty Ltd) Agreement
(11) The Company shall to the extent permitted by the Mining Act
progressively explore and carry out geological investigations to
delineate the Inferred Mineral Resource (as defined in The
JORC Code) of iron ore within the Mining Leases and
5 exploration licences which are Agreement Mining Tenements.
Royalties
10 13. Except as otherwise provided in clause 12(9) the Company shall pay to
the State royalties on all minerals obtained from Agreement Mining
Tenements as may from time to time be prescribed under or pursuant to
the Mining Act or the regulations made thereunder.
15
Transportation by rail
14. (1) Subject to and in accordance with approved proposals, the Rail
Safety Act and the State having assured to the Company all
20 necessary rights in or over Crown lands (as defined in the LAA)
available for the purpose the Company shall in a proper and
workmanlike manner and in accordance with recognised
standards for railways of a similar nature operating under
similar conditions construct along the route specified in the
25 approved proposals the rail spur line or lines specified in the
approved proposals and shall also construct inter alia any
necessary loops, sidings, crossings, points, bridges signalling
switches and other works and appurtenances and provide for
crossing places and (where required by the Minister) grade
30 separation or other protective devices including flashing lights
and boom gates (all of which together with the specified rail
spur line or lines being hereinafter referred to as "the said
railway spur line") at places where the said rail spur line crosses
or intersects with major roads or existing railways and unless
35 the Minister otherwise allows shall operate the said railway spur
line with sufficient and adequate locomotives freight cars and
other railway stock and equipment for the purposes of the
Company's activities under this Agreement.
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(2) The Company shall during the continuance of this Agreement:
(a) keep the said railway spur line constructed under this
Agreement in operation;
5
(b) ensure that the said railway spur line is operated in a
safe and proper manner in compliance with all
applicable laws from time to time; and
10 (c) without limiting subclause 2(b), ensure that the
obligations imposed under the Rail Safety Act on an
owner and an operator (as those terms are therein
defined) are complied with in connection with the said
railway spur line,
15
and nothing in this Agreement shall be construed to exempt the
Company or any other person from compliance with the Rail
Safety Act, or limit their application to the Company's
operations generally.
20
(3) The Company shall provide crossings for livestock and also for
any roads, other railways, conveyors, pipelines and other
utilities which now exist and where in the Minister's opinion it
can do so without unduly prejudicing or interfering with its
25 activities hereunder the Company shall allow such crossings for
roads, railways, conveyors, pipelines and other utilities which
may be constructed for future needs and which may be required
to cross the said railway spur line.
30 (4) Where in the Minister's opinion the Company can do so
without materially prejudicing or interfering with its operations
hereunder and subject to the payment to it of the charges
prescribed by and for the time being payable under any by-laws
made by the Company in respect of the transporting of
35 passengers and the carriage of freight (including the iron ore
and iron ore products of third parties) over the said railway spur
line and subject to the due compliance with the other
requirements and conditions prescribed by such by-laws (or
should there be no such by-laws for the time being in force then
40 subject to the payment of such charges and the due compliance
with such requirements and conditions as in either case shall be
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Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Schedule 1 Iron Ore (FMG Chichester Pty Ltd) Agreement
reasonable having regard to the cost to the Company of the
construction and operation of the said railway spur line) the
Company shall if and when reasonably required so to do
transport passengers and carry the freight of the State and third
5 parties (including the iron ore and iron ore products of third
parties) over the said railway spur line but in relation to its use
of the said railway spur line the Company shall not be deemed
to be a common carrier at law or otherwise.
10 (5) (a) The Company shall, during the continuance of this
Agreement and until the Access Act and the Access
Code are applied to and in respect of the said railway
spur line and associated access roads of the Company,
notify the Minister of all written requests made by third
15 parties to the Company for access to the said railway
spur line and associated access roads of the Company
and as soon as practicable after such requests are made.
(b) The Minister shall provide to the Access Minister a
20 copy of each notification from the Company as soon as
practicable after such notification is received for
consideration by the Access Minister as to whether or
not in the Access Minister's discretion the Access Act
and the Access Code should be applied to and in respect
25 of the said railway spur line and associated access roads
of the Company.
(c) The Company acknowledges that the Access Act and
the Access Code may during the continuance of this
30 Agreement be applied to and in respect of the said
railway spur line and associated access roads of the
Company (but not to the Company's rolling stock,
rolling stock maintenance facilities, office buildings,
housing, freight centres, terminal yards and depots and
35 any other facilities which are not railway infrastructure
(as that term is defined in the Access Act)). The
Company:
(i) acknowledges that the State shall from time to
40 time be entitled to make such legislative
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Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Iron Ore (FMG Chichester Pty Ltd) Agreement Schedule 1
changes as are necessary to achieve that
application; and
(ii) in the event the Access Minister decides in
5 exercise of the Access Minister's discretion as
referred to in paragraph (b) that such
application should occur, shall do all such
things as the Minister reasonably requests for
the purposes of the Access Act and the Access
10 Code applying and continuing to apply to and
in respect of the said railway spur line and
associated access roads of the Company which
are not inconsistent with this Agreement.
15 (6) Throughout the continuance of this Agreement the Company
shall all times keep and maintain the said railway spur line in
good repair and working order and condition (which obligation
includes, where necessary, replacing or renewing all parts
which are worn out or in need of replacement or renewal due to
20 their age or condition).
(7) The Company shall not at any time without the prior consent of
the Minister dismantle, sell or otherwise dispose of any part or
parts of the said railway spur line constructed under this
25 Agreement or permit this to occur, other then for the purpose of
maintenance, repair, upgrade or renewal.
Private and public roads
30
15. (1) The Company shall:
(a) be responsible for the cost of the construction and
maintenance of all private roads which shall be used in
35 its activities hereunder;
(b) at its own cost erect signposts and take other steps that
may be reasonable in the circumstances to prevent any
persons and vehicles (other than those engaged upon
40 the Company's activities and its invitees and licensees)
from using the private roads; and
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Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Schedule 1 Iron Ore (FMG Chichester Pty Ltd) Agreement
(c) at any place where any private roads are constructed by
the Company so as to cross any public roads or private
railways provide at its cost such reasonable protection
and signposting as may be required by the
5 Commissioner of Main Roads or the owner of the
private railway as the case may be.
(2) The State shall maintain or cause to be maintained those public
roads under the control of the Commissioner of Main Roads or
10 a local government which may be used by the Company for the
purposes of this Agreement to a standard similar to comparable
(in the Minister's opinion) public roads maintained by the
Commissioner of Main Roads or a local government as the case
may be.
15
(3) In the event that for or in connection with the Company's
activities hereunder the Company or any person engaged by the
Company uses or wishes to use a public road (whether referred
to in subclause (2) or otherwise) which is inadequate for the
20 purpose, or any use by the Company or any person engaged by
the Company of any public road results in excessive damage to
or deterioration thereof (other than fair wear and tear) the
Company shall pay to the State or the local government as the
case may require the whole or an equitable part of the total cost
25 of any upgrading required or of making good the damage or
deterioration as may be reasonably required by the
Commissioner of Main Roads having regard to the use of such
public road by others.
30 (4) Where a road constructed by the Company for its own use is
subsequently required for public use, the State may, after
consultation with the Company and so long as resumption
thereof shall not in the Minister's opinion unduly prejudice or
interfere with the activities of the Company under this
35 Agreement, resume and dedicate such road as a public road.
Upon any such resumption the State shall pay to the Company
such amount as is reasonable for such resumption.
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Iron Ore (FMG Chichester Pty Ltd) Agreement Schedule 1
Electricity
16. The Company may in accordance with its approved proposals hereunder
and subject to the provisions of the Electricity Act 1945 and any other
5 relevant Act:
(a) install and operate without cost to the State at an appropriate
location or locations on the Mining Leases equipment of
sufficient capacity to generate electricity for its activities on the
10 Mining Leases and other areas provided for the facilities of the
Company in the vicinity of the Mining Leases; and
(b) transmit power within and between the Mining Leases and other
areas provided for the facilities of the Company in the vicinity
15 of the Mining Leases and for other elements of the Company's
operations hereunder as the Minister may approve for the
purposes of this clause.
20 Water
17. (1) (a) To the fullest extent reasonably practicable the
Company shall use water obtained from dewatering on
Mining Leases for its purposes under this Agreement.
25
(b) Nothing in this Agreement shall be construed so as to
exempt the Company from any liability to the State or
to third parties arising out of or caused by the extraction
of water from the Agreement Mining Tenements by
30 dewatering or any discharge or escape from the
Agreement Mining Tenements of water obtained by
dewatering.
(2) Except as otherwise specifically provided for under this clause
35 the water requirements for the Project shall be obtained in
accordance with laws applicable from time to time in Western
Australia in respect of rights in water and the supply and
discharge of water and the supply of water services.
40 (3) The Company shall to the extent that it is practical and
economical design, construct and operate all plant and
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Schedule 1 Iron Ore (FMG Chichester Pty Ltd) Agreement
equipment used in its activities under this Agreement so as to
minimise water consumption and shall at all times use its best
endeavours to minimise the consumption of water in its
activities under this Agreement and ensure the most efficient
5 use of the available water resources.
Ancillary titles
10 18. On application made by the Company not later than 3 months after
proposals submitted pursuant to clause 8(1) have been approved or
determined or not later than 3 months after proposals submitted pursuant
to clause 10 or 11 have been approved or determined (as applicable), the
State shall in accordance with the Company's approved proposals grant
15 to the Company, or arrange to have the appropriate authority or other
interested instrumentality of the State grant to the Company, for such
periods and on such terms and conditions including rentals and renewal
rights as shall be reasonable having regard to the requirements of the
Company and as are consistent with the terms of this Agreement and
20 approved proposals, leases and where applicable licences, easements and
rights of way for all or any of the purposes of the Company's activities
hereunder including any of the following namely - accommodation area,
mine aerodrome, rail spur line, conveyor, private roads, water pipelines,
pumping installations and reservoirs, power transmission lines, radio and
25 communication sites and plant site areas.
Use of local labour professional services and materials
30 19. (1) Except as otherwise agreed by the Minister the Company shall,
for the purposes of this Agreement:
(a) except in those cases where the Company can
demonstrate it is not reasonable and economically
35 practicable so to do, use labour available within the said
State (using all reasonable endeavours to ensure that as
many as possible of the workforce be recruited from the
Pilbara region) or if such labour is not available then,
except as aforesaid, use labour otherwise available
40 within Australia;
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Iron Ore (FMG Chichester Pty Ltd) Agreement Schedule 1
(b) as far as it is reasonable and economically practicable
so to do, use the services of engineers, surveyors,
architects and other professional consultants experts
and specialists, project managers, manufacturers,
5 suppliers and contractors resident and available within
the said State, or if such services are not available
within the said State, then, as far as practicable as
aforesaid, use the services of such persons otherwise
available within Australia;
10
(c) during design and when preparing specifications,
calling for tenders and letting contracts for works,
materials, plant, equipment and supplies (which shall at
all times, except where it is impracticable so to do, use
15 or be based upon Australian Standards and Codes)
ensure that suitably qualified Western Australian and
Australian suppliers, manufacturers and contractors are
given fair and reasonable opportunity to tender or
quote;
20
(d) give proper consideration and, where possible,
preference to Western Australian suppliers,
manufacturers and contractors when letting contracts or
placing orders for works, materials, plant, equipment
25 and supplies where price, quality, delivery and service
are equal to or better than that obtainable elsewhere or,
subject to the foregoing, give that consideration and,
where possible, preference to other Australian
suppliers, manufacturers and contracts; and
30
(e) if, notwithstanding the foregoing provisions of this
subclause, a contract is to be let or an order is to be
placed with other than a Western Australian or
Australian supplier, manufacturer or contractor, give
35 proper consideration and, where possible, preference to
tenders, arrangements or proposals that include
Australian participation where price, delivery and
service are otherwise equal or better.
40 (2) Except as otherwise agreed by the Minister, the Company shall,
in every contract entered into with a third party for the supply
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Schedule 1 Iron Ore (FMG Chichester Pty Ltd) Agreement
of services, labour, works, materials, plant, equipment or
supplies for the purposes of this Agreement require as a
condition thereof that such third party shall undertake the same
obligations as are referred to in subclause (1) and shall report to
5 the Company concerning such third party's implementation of
that condition.
(3) The Company shall:
10 (a) in respect of developments the subject or to be the
subject (as the case may be) of proposals submitted
pursuant to clause 8, submit a report to the Minister at
quarterly intervals from the commencement date to the
date of the first submission of proposals pursuant to
15 clause 8 and thereafter at monthly intervals until the
date on which iron ore from the Mining Leases (other
than iron ore transported solely for testing purposes and
iron ore produced as part of the testing of mining
equipment referred to in clause 4(4)) is first transported
20 from the Mining Leases and thereafter as requested by
the Minister from time to time; and
(b) in respect of developments the subject or to be the
subject (as the case may be) of proposals submitted
25 pursuant to clauses 10 or 11, submit a report to the
Minister at quarterly intervals from the date on which it
gives notice under clauses 10 or 11, to the date of the
first submission of proposals in connection with that
notice pursuant to clause 10 or 11 as the case may be
30 and thereafter at monthly intervals until commissioning
of the developments the subject of the proposals
approved in accordance with to clause 10 or 11 as the
case may be and thereafter as requested by the Minister
from time to time,
35
concerning its implementation of the provisions of this clause,
together with a copy of any report received by the Company
pursuant to subclause (2) during that month or longer period as
the case may be provided that the Minister may agree that any
40 such reports need not be provided in respect of contracts of such
kind or value as the Minister may from time to time determine.
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Iron Ore (FMG Chichester Pty Ltd) Agreement Schedule 1
(4) The Company shall keep the Minister informed on a regular
basis as determined by the Minister from time to time or
otherwise as reasonably required by the Minister during the
currency of this Agreement of any services (including any
5 elements of the project investigations, design and management)
and any works, materials, plant, equipment and supplies that it
may be proposing to obtain from or have carried out or permit
to be obtained from or carried out outside Australia, together
with its reasons therefor and shall, as and when required by the
10 Minister, consult with the Minister with respect thereto.
Further processing
15 20. (1) During the term of this Agreement, the Company shall
undertake ongoing investigations into the technical and
economic feasibility of establishing within the said State plant
for the production of metallised agglomerates and shall on or
before the earlier of:
20
(a) the date 7 years after the date on which iron ore
produced as part of the Project (other than iron ore
transported solely for testing purposes and in respect of
which no purchase price or other consideration is
25 payable or due) is first transported from the Mining
Leases; and
(b) the date on which the 100 millionth tonne of the
aggregate of such iron ore and iron ore produced from
30 Mining Leases as part of the testing of mining
equipment as referred to in clause 4(4) is transported
from the Mining Leases,
submit to the Minister detailed reports of such investigations
35 carried out up to the date of the report and its program, budget
and timetable for the preparation of the proposals referred to in
subclause (2).
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Schedule 1 Iron Ore (FMG Chichester Pty Ltd) Agreement
(2) The Company shall:
(a) on or before the earlier of:
5 (i) the date 10 years after the date on which iron
ore produced as part of the Project (other than
iron ore transported solely for testing purposes
and in respect of which no purchase price or
other consideration is payable or due) is first
10 transported from the Mining Leases; and
(ii) the date on which the 150 millionth tonne of the
aggregate of such iron ore and iron ore
produced from Mining Leases as part of the
15 testing of mining equipment as referred to in
clause 4(4) is transported from the Mining
Leases (which date is hereinafter called "the
m.a. date"); or
20 (b) if proposals under this subclause are postponed for a
3 year period pursuant to subclause (3), on or before the
third or subsequent third anniversary as the case may
require of the m.a. date,
25 submit to the Minister detailed proposals for the establishment
within the said State of plant for the production of metallised
agglomerates containing provisions that such plant will within
3 years of the date on which the proposals are submitted have
the capacity to produce not less than 2 million tonnes of
30 metallised agglomerates per annum and will within 8 years of
the date on which the proposals are submitted have the capacity
to produce not less than 3 million tonnes of metallised
agglomerates per annum.
35 (3) (a) If the Company believes that the submission of
proposals pursuant to subclause (2) on the m.a. date or a
third anniversary of the m.a. date where a 3 year
postponement has been allowed pursuant to this
subclause should be postponed because the
40 establishment of the said plant is not then economically
feasible, the Company may apply to the Minister not
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more than 6 months nor less than 3 months before the
date for submission of those proposals for
postponement for a period of 3 years of the date for
submission of proposals under subclause (2) and shall
5 provide to the Minister with such application all
relevant information and supporting data available to
the Company relating to such application.
(b) The Company shall supply to the Minister such other
10 information and data as the Minister may reasonably
require in relation to its application.
(c) If the Minister is satisfied that there are reasonable
grounds for the postponement applied for the
15 requirement on the Company to submit proposals under
this subclause shall be postponed for a period of
3 years.
(d) If the Minister notifies the Company that he does not
20 agree with its submission then at the request of the
Company made within 2 months after receipt by the
Company of the notification from the Minister, the
Minister will appoint a tribunal (hereinafter called "the
Tribunal") consisting of one person if the Company and
25 the State agree on that person or, failing such agreement
consisting of 3 persons (one of whom shall be a Judge
of the Supreme Court of Western Australia or failing
him or her a Commissioner appointed pursuant to
section 49 of the Supreme Court Act 1935 or a State
30 Counsel and the others of whom shall have appropriate
technical or economic qualifications) to decide in
accordance with clause 34 whether or not the
metallising operation is economically feasible and the
Tribunal in reaching its decision shall take into account
35 (inter alia) the Company's submission, the amount of
capital required for the metallising operation, the
availability of that capital at that time on reasonable
terms and conditions, the likelihood of the Company
being able to sell metallised agglomerates at sufficient
40 prices and in sufficient quantities and for a sufficient
period to justify the metallising operation having regard
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Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Schedule 1 Iron Ore (FMG Chichester Pty Ltd) Agreement
to the amount and rate of return on total funds that
would be involved in or in connection with the
production and sale of metallised agglomerates and the
weighted average cost of capital to the Company.
5
(4) The Minister shall within 2 months of receipt of proposals
under subclause (2) give to the Company notice of his approval
of those proposals (which approval shall not be unreasonably
withheld) or of any objections raised or alterations desired
10 thereto, and in the latter case shall afford the Company an
opportunity to consult with and to submit new proposals to the
Minister. If within 2 months of receipt by the Company of such
notice agreement is not reached as to the proposals, the
Company may within a further period of 2 months elect by
15 notice to the State to refer to arbitration as provided in clause 34
any dispute as to the reasonableness of the Minister's decision.
If by the award on arbitration the question is decided in favour
of the Company the Minister shall be deemed to have approved
the proposals of the Company.
20
(5) The Company shall (except to the extent otherwise agreed with
the Minister) before the end of the respective times specified in
subclause (2) complete the construction of plant in accordance
with the Company's proposals as finally approved or
25 determined under this clause and shall thereafter continue to
produce metallised agglomerates from such plant at not less
than the rates provided for in subclause (2) for so long as the
Company continues to transport iron ore from the Mining
Leases.
30
(6) (a) The Company may at any time before the time for
submission of proposals pursuant to subclause (2) apply
to the Minister for approval that an alternative project
be accepted by the State in lieu of all or some part of
35 the Company's obligations in respect of the
establishment of plant for the production of metallised
agglomerates pursuant to this clause.
(b) Where the Minister approves an application under
40 paragraph (a) of this subclause the Company shall
implement the alternative project in accordance with
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Iron Ore (FMG Chichester Pty Ltd) Agreement Schedule 1
that approval and upon completion thereof, or earlier
with the agreement of the Minister, the provisions of
subclause (2) or that part of those provisions which
pursuant to the said approval are to be satisfied by the
5 alternative project shall cease to apply PROVIDED
FURTHER that the provisions of subclause (2) shall
cease to apply upon completion of an alternative project
which represents, or alternative projects which together
represent, economic development in the said State
10 (either alone or in the aggregate with other alternative
projects) of value approximately equivalent to a plant
for the production of 2 million tonnes of metallised
agglomerates per annum.
15 (7) (a) In subclauses (1) and (2) references to "Mining Leases"
include, for the avoidance of doubt, all of the mining
leases granted to the Company by way of conversion of
all or part of exploration licences which at the time of
conversion are Agreement Mining Tenements and all of
20 the mining leases (if any) approved by the Minister as
Agreement Mining Tenements pursuant to
clause 12(10) considered together, and whether or not
such mining leases are still in force at the relevant dates
referred to in those subclauses.
25
(b) Iron ore produced from Mining Leases as part of the
Company undertaking the testing of mining equipment
as referred to in clause 4(4) shall be included in the
amounts referred to in subclauses (1) and (2).
30
(c) Iron ore produced from mining leases approved by the
Minister as Agreement Mining Tenements pursuant to
clause 12(10) but before the date of the Minister's
approval, shall not be included in the amounts referred
35 to in subclauses (1) and (2).
(d) For the purposes of subclause (6) "alternative project"
means a project under which the Company or a related
body corporate (within the meaning of the Corporations
40 Act 2001 (Commonwealth)) of the Company or another
party first approved of by the Minister undertakes to
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Schedule 1 Iron Ore (FMG Chichester Pty Ltd) Agreement
establish and operate plant in the said State which
processes and adds to the value of minerals mined in
the said State.
5
No discriminatory charges
21. Except as provided in this Agreement the State shall not impose, nor
shall it permit or authorise any of its agencies or instrumentalities or
10 any local or other authority of the State to impose discriminatory taxes,
rates or charges of any nature whatsoever on or in respect of the titles,
property or other assets, products, materials or services used or
produced by or through the activities of the Company in the conduct of
its business hereunder nor will the State take or permit to be taken by
15 any such State authority any other discriminatory action which would
deprive the Company of full enjoyment of the rights granted and
intended to be granted under this Agreement. In the application of this
clause the conferral of rights upon parties to Government agreements
(or the Railway and Port Agreement if it is not a Government
20 agreement) shall be disregarded.
Taking of land for the purposes of this Agreement
25 22. (1) The State is hereby empowered, as and for a public work under
Parts 9 and 10 of the LAA and the Public Works Act 1902, to
take for the purposes of this Agreement any land which in the
opinion of the Company is necessary for the Project and which
the Minister determines is appropriate to be taken for the
30 Project (except any land the taking of which would be contrary
to the provisions of a Government agreement entered into
before the submission of the proposals relating to the proposed
taking or to the provisions of the Railway and Port Agreement
if it is not a Government agreement) and notwithstanding any
35 other provisions of those Acts may lease or license that land to
the Company.
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(2) In applying Parts 9 and 10 of the LAA and the Public Works
Act 1902 for the purposes of this clause -
(a) "land" in those Acts includes a legal or equitable estate
5 or interest in land;
(b) sections 170, 171, 172, 173, 174, 175 and 184 of the
LAA do not apply; and
10 (c) the LAA applies as if it were modified in section 177(2)
by inserting:
(i) after "railway" the following
15 "or land is being taken pursuant to a
Government agreement as defined in section 2
of the Government Agreements Act 1979"; and
(ii) after "that Act" the following
20
"or that Agreement as the case may be".
(3) The Company shall pay to the State on demand the costs of or
incidental to any land taken at the request of and on behalf of
25 the Company including but not limited to any compensation
payable to any holder of native title or of native title rights and
interests in the land.
30 No taking of land
23. Subject to the performance by the Company of its obligations under this
Agreement the State shall not during the term of this Agreement
without the consent of the Company resume nor suffer nor permit to be
35 resumed by any State instrumentality or by any local or other authority
of the State any of the works, installations, plant, equipment or other
property for the time being belonging to the Company and the subject
of or used for the purpose of this Agreement or any of the works on any
Agreement Mining Tenement or other lease, licence or other title
40 granted to the Company under or pursuant to this Agreement and
without such consent (which shall not be unreasonably withheld) the
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Schedule 1 Iron Ore (FMG Chichester Pty Ltd) Agreement
State shall not create or grant or permit or suffer to be created or granted
by any instrumentality or authority of the State as aforesaid any road,
right-of-way, water right or easement of any nature or kind whatsoever
over or in respect of any such lands which may in the Minister's
5 opinion unduly prejudice or interfere with the Company's activities
under this Agreement.
Commonwealth licences and consents
10 24. (1) The Company shall from time to time make application to the
Commonwealth or to the Commonwealth constituted agency,
authority or instrumentality concerned for the grant to it of any
licence or consent under the laws of the Commonwealth
necessary to enable or permit the Company to enter into this
15 Agreement and to perform any of its obligations hereunder.
(2) On request by the Company the State shall make
representations to the Commonwealth or to the Commonwealth
constituted agency, authority or instrumentality concerned for
20 the grant to the Company of any licence or consent mentioned
in subclause (1).
Zoning
25
25. The State shall ensure after consultation with the relevant local
government that any Agreement Mining Tenement or any other lease,
licence or other title granted to the Company under or pursuant to this
Agreement shall be and remain zoned for use or otherwise protected
30 during the currency of this Agreement so that the activities of the
Company hereunder may be undertaken and carried out thereon without
any interference or interruption by the State or by any State agency or
instrumentality or by any local or other authority of the State on the
ground that such activities are contrary to any zoning by-law, regulation
35 or order.
Assignment
40 26. (1) Subject to the provisions of this clause the Company may at any
time assign, mortgage, charge, sublet or dispose of to any
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Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Iron Ore (FMG Chichester Pty Ltd) Agreement Schedule 1
person with the consent of the Minister the whole or any part of
the rights of the Company hereunder (including its rights to or
as the holder of any Agreement Mining Tenement or any other
lease, licence, easement or other title granted under or pursuant
5 to this Agreement) and of the obligations of the Company
hereunder subject however in the case of an assignment,
subletting or disposition, to the assignee, sublessee or disponee
(as the case may be) executing in favour of the State (unless the
Minister otherwise determines) a deed of covenant in a form to
10 be approved by the Minister to comply with, observe and
perform the provisions hereof on the part of the Company to be
complied with, observed or performed in regard to the matter or
matters the subject of such assignment, subletting or
disposition.
15
(2) Notwithstanding anything contained in or anything done under
or pursuant to subclause (1) the Company shall at all times
during the currency of this Agreement be and remain liable for
the due and punctual performance and observance of all the
20 covenants and agreements on its part contained in this
Agreement and in the Agreement Mining Tenements and in all
other leases, licences, easements or other titles the subject of an
assignment, mortgage, subletting or disposition under
subclause (1) provided that the Minister may agree to release
25 the Company from such liability where the Minister considers
such release will not be contrary to the interests of the State.
(3) Notwithstanding the provisions of the Mining Act, the LAA and
the Transfer of Land Act 1893, insofar as the same or any of
30 them may apply:
(a) no assignment, mortgage, charge, sublease or
disposition made or given pursuant to this clause of or
over an Agreement Mining Tenement or other lease,
35 licence, easement or other title granted under or
pursuant to this Agreement by the Company or any
assignee, sublessee or disponee who has executed and is
for the time being bound by deed of covenant made
pursuant to this clause; and
40
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Schedule 1 Iron Ore (FMG Chichester Pty Ltd) Agreement
(b) no transfer, assignment, mortgage or sublease made or
given in exercise of any power contained in any such
mortgage or charge,
5 shall require any approval or consent other than such consent as
may be necessary under this clause 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 because the same is not registered under the provisions of the
10 Mining Act, the LAA or the Transfer of Land Act 1893 as the
case may be.
Variation
15
27. (1) The parties to this Agreement may from time to time by
agreement in writing add to, substitute for, cancel or vary all or
any of the provisions of this Agreement or of any Agreement
Mining Tenement or any other lease, licence, easement or other
20 title granted under or pursuant to this Agreement for the
purpose of more efficiently or satisfactorily implementing or
facilitating any of the objects of this Agreement.
(2) The Minister shall cause any agreement made pursuant to
25 subclause (1) in respect of any addition, substitution,
cancellation or variation of the provisions of this Agreement to
be laid on the Table of each House of Parliament within 12
sitting days next following its execution.
30 (3) Either House may, within 12 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
35 last day.
Force majeure
40 28. This Agreement shall be deemed to be made subject to any delays in the
performance of the obligations under this Agreement and to the
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Iron Ore (FMG Chichester Pty Ltd) Agreement Schedule 1
temporary suspension of continuing obligations under this Agreement
that may be caused by or arise from circumstances beyond the power
and control of the party responsible for the performance of those
obligations including without limiting the generality of the foregoing
5 delays or any such temporary suspension as aforesaid caused by or
arising from act of God, force majeure, earthquakes, floods, storms,
tempest, washaways, fire (unless caused by the actual fault or privity of
the party responsible for such performance), act of war, act of public
enemies, riots, civil commotions, strikes, lockouts, stoppages, restraint
10 of labour or other similar acts (whether partial or general), acts or
omissions of the Commonwealth, shortages of labour or essential
materials, reasonable failure to secure contractors, delays of contractors,
inability to sell iron ore or metallised agglomerates profitably, factors
due to overall world economic conditions, factors due to action taken by
15 or on behalf of any government or governmental authority (other than
the State or any authority of the State) or factors that could not
reasonably have been foreseen provided that that the party whose
performance of obligations is affected by any of the said causes shall
promptly give notice to the other party of the event or events and shall
20 use its best endeavours to minimise the effects of such causes as soon as
possible after the occurrence.
Power to extend periods
25
29. Notwithstanding any provision of this Agreement the Minister may at
the request of the Company from time to time extend or further extend
any period or vary or further vary any date referred to in this Agreement
or in any approved proposal for such period or to such later date as the
30 Minister thinks fit whether or not the period to be extended has expired
or the date to be varied has passed.
Determination of this Agreement
35
30. (1) If:
(a) (i) the Company makes default which the State
considers material in the due performance or
40 observance of any of the covenants or
obligations of the Company in this Agreement
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or in any Agreement Mining Tenement or any
other lease, licence, easement or other title
granted under or pursuant to this Agreement on
its part to be performed or observed; or
5
(ii) the Company abandons or repudiates this
Agreement or its activities under this
Agreement,
10 and such matter is not remedied within a period of
180 days after notice is given by the State as provided
in subclause (2) or, if the matter is referred to
arbitration, then within the period mentioned in
subclause (3); or
15
(b) the Company goes into liquidation (other than a
voluntary liquidation for the purpose of reconstruction)
and unless within 3 months from the date of such
liquidation the interest of the Company is assigned to an
20 assignee approved by the Minister under clause 26,
the State may by notice to the Company determine this
Agreement.
25 (2) The notice to be given by the State in terms of paragraph (a) of
subclause (1) shall specify the nature of the default,
abandonment or repudiation so entitling the State to exercise
such right of determination and where appropriate and known to
the State the party or parties responsible therefor and shall be
30 given to the Company and all such assignees, mortgagees,
chargees and disponees for the time being of the Company's
said rights to or in favour of whom or by whom an assignment,
mortgage, charge or disposition has been effected in terms of
clause 26 whose name and address for service of notice has
35 previously been notified to the State by the Company or any
such assignee, mortgagee, chargee or disponee.
(3) (a) If the Company contests the alleged default
abandonment or repudiation referred to in paragraph (a)
40 of subclause (1) the Company shall within 60 days after
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Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Iron Ore (FMG Chichester Pty Ltd) Agreement Schedule 1
notice given by the State as provided in subclause (2)
refer the matter in dispute to arbitration.
(b) If the question is decided against the Company, the
5 Company shall comply with the arbitration award
within a reasonable time to be fixed by that award
provided that if the arbitrator finds that there was a
bona fide dispute and that the Company was not
dilatory in pursuing the arbitration, the time for
10 compliance with the arbitration award shall not be less
than 90 days from the date of such award.
(4) If the default referred to in paragraph (a) of subclause (1) shall
not have been remedied within a period of 180 days after
15 receipt of the notice referred to in that subclause or within the
time fixed by the arbitration award as aforesaid the State instead
of determining this Agreement as aforesaid because of such
default may itself remedy such default or cause the same to be
remedied (for which purpose the State by agents, workmen or
20 otherwise shall have full power to enter upon lands occupied by
the Company and to make use of all plant, machinery,
equipment and installations thereon) and the actual costs and
expenses incurred by the State in remedying or causing to be
remedied such default shall be a debt payable by the Company
25 to the State on demand.
(5) The parties may at any time by mutual agreement determine
this Agreement, provided that no matter in connection with a
failure by the parties to agree under this subclause (5) shall be
30 referable to arbitration hereunder.
Effect of cessation or determination of this Agreement
35 31. (1) On the cessation or determination of this Agreement:
(a) (i) except as otherwise agreed by the Minister the
rights of the Company to, in or under this
Agreement and the rights of the Company or
40 any mortgagee or chargee to, in or under
Agreement Mining Tenements (other than any
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Schedule 1 Iron Ore (FMG Chichester Pty Ltd) Agreement
exploration licences then held by the Company
which are Agreement Mining Tenements) and
any other lease, licence, easement or other title
or right granted hereunder or pursuant hereto
5 shall thereupon cease and determine but without
prejudice to the liability of any of the parties
hereto in respect of any antecedent breach or
default under this Agreement or in respect of
any guarantee or indemnity given under this
10 Agreement;
(ii) the Company shall forthwith pay to the State all
moneys which may then have become payable
or accrued due;
15
(iii) save as aforesaid and as otherwise provided in
this Agreement neither the State nor the
Company shall have any claim against the other
of them with respect to any matter or thing in or
20 arising out of this Agreement; and
(b) The benefit of the rights and privileges conferred by
this Agreement, and any modification by this
Agreement of any Act or law shall cease to apply, but
25 otherwise any Agreement Mining Tenements that the
Company may pursuant to paragraph (a) continue to
hold after the cessation or determination of this
Agreement shall continue in force under and subject to
the Mining Act for the balance of their respective terms
30 and any renewals thereof or extensions thereto that may
be granted pursuant to the Mining Act.
(2) Except as otherwise determined by the Minister and subject to
the provisions of subclause (3), upon the cessation or
35 determination of this Agreement all buildings, erections and
other improvements erected on any land then occupied by the
Company under the Agreement Mining Tenements (other than
any Agreement Mining Tenements that the Company may
pursuant to subclause (1) continue to hold after the cessation or
40 determination of this Agreement) or any other lease, licence,
easement or other title granted under or pursuant to this
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Agreement shall become and remain the absolute property of
the State without the payment of any compensation or
consideration to the Company or any other party and freed and
discharged from all mortgages and other encumbrances and the
5 Company shall do and execute all such deeds, documents and
other acts, matters and things (including surrenders) as the State
may reasonably require to give effect to the provisions of this
subclause.
10 (3) (a) In the event of the Company immediately prior to the
cessation or determination of this Agreement or within
3 months therefrom desiring to remove any of its fixed
or movable plant and equipment or any part thereof
from any part of the land occupied by it at the date of
15 such cessation or determination (other than any
Agreement Mining Tenements that the Company may
pursuant to subclause (1) continue to hold after such
cessation or determination) it shall give to the State
notice of such desire and thereby shall grant to the State
20 the right or option exercisable within 3 months
thereafter to purchase in situ such fixed or moveable
plant and equipment at a fair valuation to be agreed
between the State and the Company or failing
agreement determined by arbitration under this
25 Agreement.
(b) If the State does not exercise the right or option referred
to in paragraph (a) the Company may on the expiry of
the 3 month period referred to, or sooner with the
30 consent of the Minister, remove the fixed or movable
plant and equipment to which the right or option refers.
Indemnity
35
32. The Company shall indemnify and keep indemnified the State and its
servants, agents and contractors in respect of all actions, suits, claims,
demands or costs of third parties arising out of or in connection with
any work carried out by or on behalf of the Company pursuant to this
40 Agreement or relating to its activities hereunder or arising out of or in
connection with the construction maintenance or use by the Company
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Schedule 1 Iron Ore (FMG Chichester Pty Ltd) Agreement
or its servants, agents, contractors or assignees of the Company's works
or services the subject of this Agreement or the plant, apparatus or
equipment installed in connection therewith provided that subject to the
provisions of any other relevant Act such indemnity shall not apply to
5 the extent the State or its servants, agents, or contractors are negligent in
carrying out work for the Company pursuant to this Agreement.
Subcontracting
10
33. Without affecting the liabilities of the parties under this Agreement each
of the State and the Company will have the right from time to time to
entrust to third parties the carrying out of any portions of the activities
which it is authorised or obliged to carry out hereunder.
15
Arbitration
34. (1) Any dispute or difference between the State and the Company
20 arising out of or in connection with this Agreement, the
construction of this Agreement or as to the rights, duties or
liabilities of either of them under this Agreement or as to any
matter to be agreed upon between them under this Agreement
shall in default of agreement between them and in the absence
25 of any provision in this Agreement to the contrary be referred to
and settled by arbitration under the provisions of the
Commercial Arbitration Act 1985 and notwithstanding
section 20(1) of that Act each party may be represented before
the arbitrator by a duly qualified legal practitioner or other
30 representative.
(2) Except where otherwise provided in this Agreement, the
provisions of this clause shall not apply to any case where the
State, the Minister or any other Minister in the Government of
35 the said State is by this Agreement given either expressly or
impliedly a discretionary power.
(3) The arbitrator of any submission to arbitration under this
Agreement is hereby empowered upon the application of either
40 of the parties to the arbitration to grant in the name of the
Minister any interim extension of any period or variation of any
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Iron Ore (FMG Chichester Pty Ltd) Agreement Schedule 1
date referred to herein which having regard to the circumstances
may reasonably be required in order to preserve the rights of
that party or of the parties to the arbitration and an award may
in the name of the Minister grant any further extension or
5 variation for that purpose.
Consultation
10 35. The Company shall during the currency of this Agreement consult with
and keep the State fully informed on a confidential basis concerning any
action that the Company proposes to take with any third party
(including the Commonwealth or any Commonwealth constituted
agency authority instrumentality or other body) which might
15 significantly affect the overall interest of the State under this
Agreement.
Notices
20
36. Any notice, consent or other writing authorised or required by this
Agreement to be given or sent by the State to the Company or to the
Guarantor will be deemed to have been duly given or sent if signed by
the Minister or by any senior officer of the Public Service of the State
25 acting by the direction of the Minister and forwarded by prepaid post or
handed to the Company or to the Guarantor as the case may be at its
address hereinbefore set forth or other address in the said State
nominated by the Company, or by the Guarantor as the case may be, to
the Minister and by the Company or by the Guarantor to the State if
30 signed on its behalf by any person or persons authorised by the
Company or by its solicitors, or by the Guarantor or by its solicitors as
the case may be, as notified to the State from time to time, and
forwarded by prepaid post or handed to the Minister and except in the
case of personal service any such notice, consent or writing shall be
35 deemed to have been duly given or sent on the day on which it would be
delivered in the ordinary course of post.
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Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Schedule 1 Iron Ore (FMG Chichester Pty Ltd) Agreement
Guarantee of Company's performance
37. Notwithstanding any addition to or deletion or variation of the
provisions of this Agreement or any time or other indulgence granted by
5 the State or by the Minister to the Company whether or not notice
thereof is given to the Guarantor by the State, the Guarantor hereby
guarantees to the State the due performance by the Company of all of
the Company's obligations to be performed hereunder. The Minister
may agree to release the Guarantor from this guarantee where the
10 Minister is reasonably satisfied that the Company has the financial
capacity to perform its obligations under this Agreement. Except as
provided in a release given under this clause, the guarantee given under
this clause 37 shall continue notwithstanding the cessation or
determination of this Agreement.
15
Stamp Duty
38. (1) The State shall exempt the following instruments from any
20 stamp duty which, but for the operation of this clause, would or
might be assessed as chargeable on them:
(a) this Agreement;
25 (b) any instrument executed by the State pursuant to this
Agreement granting to or in favour of the Company any
licence, lease, easement or other title; and
(c) any assignment, sublease or disposition (other than by
30 way of mortgage or charge) made by the Company
arising from a request for the Minister's consent
submitted to the Minister and consented to by the
Minister under clause 26 (1),
35 provided that this clause shall not apply to any instrument or
other document executed or made more than 2 years after the
commencement date.
(2) If prior to the commencement date stamp duty has been
40 assessed and paid on any instrument or other document or
transaction referred to in subclause (1) the State shall on
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Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
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demand after the commencement date refund any stamp duty
paid on any such instrument or other document or transaction to
the person who paid the same.
5
Term of this Agreement
39. Subject to the provisions of clauses 9(6), 30 and 31 this Agreement
shall expire on the date occurring 50 years after the commencement
10 date.
Applicable law
15 40. This Agreement is to be interpreted according to the law for the time
being in force in the State of Western Australia.
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Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Schedule 1 Iron Ore (FMG Chichester Pty Ltd) Agreement
SCHEDULE 1
PART A
5 EXPLORATION LICENCES
White Knight
Exploration licences 45/2497, 45/2499, 45/2593, 45/2651 and 47/1434
Cloud Break
Exploration licences 45/2498, 45/2652 and 46/590
10 Christmas Creek
Exploration licences 46/566, 46/610 - 46/612
Mt Lewin
Exploration licences 46/567 and 46/600
Clayton's Hammer
15 Exploration licences 46/518, 46/568 and 46/601
Mt Nicholas
Exploration licences 46/467, 46/595, and 46/623
Springo Bore
Exploration licences 46/519
20 Tongololo
Exploration licences 46/413, 46/516 and 46/569
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Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Iron Ore (FMG Chichester Pty Ltd) Agreement Schedule 1
PART B
EXPLORATION LICENCE APPLICATIONS
5 Christmas Creek
Application for exploration licence 46/664
Tongololo
Applications for exploration licences 46/666 and 46/675
10
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Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Schedule 1 Iron Ore (FMG Chichester Pty Ltd) Agreement
SCHEDULE 2
MINING LEASE APPLICATIONS
5
Christmas Creek
Applications for mining leases 46/320 - 46/355 and 46/412 - 46/424
Cloud Break
Applications for mining leases 45/1102 - 45/1107, 45/1082 - 45/1085, 45/1124 -
10 45/1128, 45/1138- 45/1140, 45/1143, 46/356, 46/357, 46/407 - 46/411 and
46/449 46/455
White Knight
Applications for mining leases 45/1086 - 45/1094 and 45/1147 - 45/1150
Mt Lewin/Clayton's Hammer
15 Applications for mining leases 46/292, 46/293 and 46/314 - 46/319
Sandy Creek
Applications for mining leases 46/401 - 46/406
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Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Iron Ore (FMG Chichester Pty Ltd) Agreement Schedule 1
IN WITNESS WHEREOF this Agreement has been executed by or on behalf
of the parties hereto the day and year first hereinbefore mentioned.
SIGNED by the HONOURABLE GEOFFREY IAN ) [Signature]
GALLOP in the presence of: )
)
5
Witness: [Signature]
Name: NEIL ROBERTS
10
THE COMMON SEAL of FMG CHICHESTER PTY ) [C.S]
LTD ACN 109 264 262 was hereunto affixed in )
accordance with its constitution in the presence of: )
Director: [Signature]
Name: WILLIAM GRAEME ROWLEY
15
Director/Secretary: [Signature]
Name: ROD CAMPBELL
20
THE COMMON SEAL of FORTESCUE METALS ) [C.S.]
GROUP LTD ACN 002 594 872 was hereunto affixed in )
accordance with its constitution in the presence of: )
Director: [Signature]
25 Name: WILLIAM GRAEME ROWLEY
Director/Secretary: [Signature]
Name: ROD CAMPBELL
30
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Iron Ore (FMG Chichester Pty Ltd) Agreement Bill 2006
Schedule 1 Iron Ore (FMG Chichester Pty Ltd) Agreement
page 66
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