Mineral Sands (Eneabba) Agreement Amendment Act 2008 (WA)

Western Australia

Mineral Sands (Eneabba) Agreement

Amendment Act 2008

Western Australia

Mineral Sands (Eneabba) Agreement

Amendment Act 2008

CONTENTS

1.	Short title	2
2.	Commencement	2
3.	Act amended	2
4.	Section 2 amended	2
5.	Section 5 inserted	2

2008 Variation Agreement

6.	Schedule 3 inserted	3
Schedule 3 — The 2008 Variation Agreement

Western Australia

Mineral Sands (Eneabba) Agreement

Amendment Act 2008

No. 45 of 2008

An Act to amend the Mineral Sands (Eneabba) Agreement Act 1975.

[Assented to 10 December 2008]

The Parliament of Western Australia enacts as follows:

Mineral Sands (Eneabba) Agreement Amendment Act 2008

s. 1

1. Short title

This is the Mineral Sands (Eneabba) Agreement Amendment

Act 2008.

2. Commencement

This Act comes into operation as follows —

(a)	sections 1 and 2 — on the day on which this Act receives the Royal Assent;
(b)	the rest of the Act — on the day after that day.

3. Act amended

This Act amends the Mineral Sands (Eneabba) Agreement

Act 1975.

4. Section 2 amended

In section 2 before the definition of the Agreement insert:

the 2008 Variation Agreement means the agreement a

copy of which is set out in Schedule 3;

5. Section 5 inserted

After section 4 insert:

5. 2008 Variation Agreement

(1)

The 2008 Variation Agreement is ratified and its

implementation is authorised.

(2)

Without limiting or otherwise affecting the application

of the Government Agreements Act 1979, the 2008

Variation Agreement operates and takes effect despite

any other Act or law.

Mineral Sands (Eneabba) Agreement Amendment Act 2008

s. 6

6. Schedule 3 inserted

After Schedule 2 insert:

Schedule 3 — The 2008 Variation Agreement

[s. 2]

THIS AGREEMENT is made this 28th day of July 2008

BETWEEN

THE HONOURABLE ALAN JOHN CARPENTER MLA., of the said State and its instrumentalities from time to time (State)

AND

ILUKA RESOURCES LIMITED ACN 008 675 018 of Level 23,

140 St Georges Terrace, Perth, Western Australia (Company).

RECITALS

A.	The State and the Company are now the parties to the agreement dated 27 June 1975 which was ratified by and is scheduled to the Mineral Sands (Eneabba) Agreement Act 1975 and which as subsequently varied is referred to in this Agreement as the “*Principal Agreement*”.
B.	In order to prolong the economic life of its Narngulu mineral processing facilities as the quantities of heavy mineral concentrates produced from the Mining Lease diminish, the Company wishes, as part of its operations under the Principal Agreement, to handle at such facilities the separation into heavy minerals of heavy mineral concentrates produced from its Jacinth-Ambrosia Project in South Australia and, with the Minister’s consent, of heavy mineral concentrates produced by itself or third parties from other projects within Australia or overseas.
C.	The State for the purpose of promoting the development of the heavy minerals sands industry generally in Western Australia and employment opportunities generally in the Mid-West region

Mineral Sands (Eneabba) Agreement Amendment Act 2008

s. 6

of Western Australia has agreed to vary the Principal Agreement

upon the terms and conditions set out in this Agreement to

enable the Company to undertake such new activities as part of

its operations under the Principal Agreement.

THE PARTIES AGREE AS FOLLOWS:

1. Subject to the context, the words and expressions used in this Agreement have the same meanings respectively as they have in and for the purpose of the Principal Agreement.

The State shall introduce and sponsor a Bill in the Parliament of secure its passage as an Act prior to 31 December 2008 or such later date as the parties may agree.

3. (1) Clause 4 does not come into operation unless or until an Act passed in accordance with clause 2 ratifies this Agreement.

(2)

If by 31 December 2008, or such later date as may be

agreed pursuant to clause 2, clause 4 has not come into

operation then unless the parties hereto otherwise

agree this Agreement shall cease and determine and

neither party hereto shall have any claim against the other

party with respect to any matter or thing arising out of

done performed or omitted to be done or performed under

this Agreement.

(3)

On clause 4 coming into operation all the provisions of this Agreement will operate and take effect despite any enactment or other law.

4. The Principal Agreement is hereby varied as follows:

(1)	in clause 1:

(a)

by inserting the following new definitions in their appropriate alphabetical position:

“Jacinth-Ambrosia Project” means the project,

currently being undertaken by the Company, in the

Eucla Basin of South Australia for the mining and

concentration of rock soil or sand bearing heavy

minerals;

Mineral Sands (Eneabba) Agreement Amendment Act 2008

s. 6

“Narngulu mineral processing facilities” means the

Meru separation plant, the Narngulu synthetic

rutile plant and associated facilities constructed

under this Agreement at Narngulu;

“Non-Mining Lease ore” means any rock soil or

sand bearing heavy minerals mined from areas

other than within the Mining Lease and whether

within or outside Australia;

(b)	by deleting the definition of “heavy mineral concentrates” and substituting the following new definition:

“heavy mineral concentrates” means:

(a)	ore;
(b)	Non-Mining Lease ore,

concentrated prior to separation into component

heavy minerals;”

(2)

in clause 6C(2) by deleting “section 40(1)(b)” and

substituting “Part IV”;

(3)

by deleting “If ” at the beginning of clause 7 and

substituting “Subject to Clause 7A, if ”;

(4)

by inserting after clause 7 the following new clause:

“Non-Mining Lease heavy mineral concentrates

7A.

(1)

During the continuance of this Agreement and while the Company is still mining ore from the Mining Lease the Company may, subject to the EP Act and the other

provisions of this Agreement, submit to the

Minister its fully detailed proposals

(including, in connection with any proposed

new works or modifications to existing

works, plans where practicable and

specifications where reasonably required by

the Minister and any other details normally

required by a local government in whose

Mineral Sands (Eneabba) Agreement Amendment Act 2008

s. 6

area any such new or modified works are to

be situated) with respect to the separation

into heavy minerals at the Narngulu mineral

processing facilities of heavy mineral

concentrates produced from the

Jacinth-Ambrosia Project, and subject to

subclause (5) from other Non-Mining Lease

ore, and if the Company so wishes the

production at the Narngulu mineral

processing facilities of heavy mineral

products from such heavy minerals, and the

transport and shipment of such heavy

minerals and heavy mineral products

produced which proposals shall include the

location, area, lay-out, design, quantities,

materials and time programme for the

commencement and completion of

construction or the provision (as the case

may be) of each of the following matters:

(a)	the unloading and storage at the port of heavy mineral concentrates to be used in such operations;
(b)	the transport by road of such heavy mineral concentrates from the port to the Narngulu mineral processing

facilities;

(c)	the modification or expansion of the Narngulu mineral processing facilities including, without limitation,
by the construction of new works as part of those facilities;
(d)	the separation of such heavy minerals concentrates into heavy minerals;
(e)

the production (if the Company so products from such heavy minerals

Mineral Sands (Eneabba) Agreement Amendment Act 2008

s. 6

including, without limitation,

synthetic rutile from ilmenite;

(f)

water supplies;

(g)

gas and electricity supplies;

(h)

minerals and heavy mineral products

from the Narngulu mineral

the transport by road of such heavy export;

(i) storage and ship loading facilities at the port for such export;

(j)	Lease during the continuance of this Agreement of monazite and

the storage upon the Mining from the heavy mineral concentrates;

(k)	disposal of waste rock and tailings;
(l)	any other works, services or facilities desired by the Company in connection with the proposed operations; and
(m)	subject to subclause (5)(c), any leases, licences or other tenure of land required from the State;
(n)	protection and management of the environment including rehabilitation

measures to be taken for the upon the Mining Lease.

(2)	Any of the proposals pursuant to subclause (1) may with the approval of the Minister, be submitted separately and in any order as to the matters mentioned in one or more of paragraphs (a) to (n) of subclause (1). Until all of its proposals under

Mineral Sands (Eneabba) Agreement Amendment Act 2008

s. 6

this Clause have been approved the 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 withdrawn proposal.

(3)

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 (including

any elements of the project investigations,

design and management) and any works,

materials, plant, equipment and supplies that

it proposes to consider obtaining from or

having carried out or permitting to be

obtained from or carried out outside

Australia, together with its reasons therefore

and shall, if required by the Minister, consult

with the Minister with respect thereto.

(4)

The provisions of subclauses (5) and (6) of Clause 6B and the provisions of Clause 6C shall mutatis mutandis apply to detailed

including pursuant to subclause (6) of this

proposals submitted pursuant to this Clause reference in subclause (1)(b) of Clause 6C to “subclause (3) of Clause 6B” is to be read as a reference to subclause (1) of this Clause.

(5)

Notwithstanding any other provisions of this

Agreement the Company shall not without

the Minister’s prior consent submit

proposals under this Clause:

(a)

in respect of more than 600,000 minerals concentrates; or

Mineral Sands (Eneabba) Agreement Amendment Act 2008

s. 6

(b)

in respect of heavy mineral the Jacinth-Ambrosia Project; or

(c)

for the grant of any leases, licences or other tenure to support the undertaking of operations pursuant to such proposals; or

(d)

into Western Australia otherwise than

through the port or to export heavy

minerals or heavy mineral products

to bring heavy mineral concentrates otherwise than through the port.

(6)

Subject to subclause (5) if the Company at

any time during the continuance of this

Agreement desires to significantly modify

expand or otherwise vary its activities in

relation to Non-Mining Lease ore 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 proposals submitted and approved

pursuant to this Clause it shall give notice of

such desire to the Minister and shall within

2 months thereafter submit to the Minister

detailed proposals in respect of all matters

covered by such notice and such of the other

matters mentioned in subclause (1) as the

Minister may require.

(7)

To avoid doubt the parties acknowledge that

the provisions of this Agreement do not

apply to the mining of Non-Mining Lease

ore, the production of heavy mineral

concentrates from such ore or to the

transport of such heavy mineral concentrates

to Western Australia.”;

Mineral Sands (Eneabba) Agreement Amendment Act 2008

s. 6

(5)	in clause 12 by inserting the following new subclause:
“(17) This Clause does not apply to the transport of

heavy mineral concentrates produced from heavy mineral products produced from such heavy mineral concentrates.”;

(7)

by inserting in clause 20 the following new subclause:

“(4)

(a)

In this subclause :

“Mining Lease heavy mineral concentrates”

means ore concentrated prior to separation

into component heavy minerals; and

“Non-Mining Lease heavy mineral

concentrates” means Non-Mining Lease ore

concentrated prior to separation into

component heavy minerals.

(b)	The Company may with the approval from time to time of the Minister blend a heavy mineral resulting from the separation of

Mining Lease heavy mineral concentrates with the same type of heavy mineral resulting from the separation of Non-Mining Lease heavy mineral concentrates.

(c)

The authority given under paragraph (b) is subject to the Minister being reasonably satisfied that there is in place adequate systems and controls for the correct apportionment between the Mining Lease and the areas from within which Non-Mining Lease ore is being mined of the quantities of the relevant heavy mineral being blended and which systems and controls monitor production, concentration, processing, transportation, stockpiling and shipping activities in respect of all such blended heavy minerals. If at any time the Minister ceases to be so satisfied he may,

Mineral Sands (Eneabba) Agreement Amendment Act 2008

s. 6

after consulting the Company and provided

that Company has not within three (3)

months after the commencement of such

consultation addressed the matters of

concern to the Minister to his satisfaction,

by notice in writing to the Company suspend

the above authority in respect of the relevant

blending arrangements until he is again

satisfied in terms of this paragraph (c).

(d)	this subclause then for the purposes of calculating royalty as provided in

If any blending occurs as contemplated by mineral resulting from the separation of Mining Lease heavy mineral concentrates and used in the admixture, the gross sale price of the blended heavy mineral product as set out in the invoices relating to the sale (and converted if necessary to Australian currency in accordance with the Mining Regulations 1981) shall be apportioned to the abovementioned quantity of heavy mineral (as its gross invoice value) in the same proportion as that quantity of heavy mineral bears to the total quantity of the blended heavy mineral product.” ;

(8)

by deleting clause 23; and

(9)

by inserting after clause 39 the following new clause:

“Term of Agreement

39A.	Subject to the provisions of Clauses 32 and 33, this Agreement shall expire on the earlier of:

(a)	the date occurring 5 years (or with the Minister’s approval such longer time not exceeding 7 years) after the Company ceases to mine ore from the Mining Lease; and

Mineral Sands (Eneabba) Agreement Amendment Act 2008

s. 6

(b)	the expiration or sooner determination of the Mining Lease.”

EXECUTED as a deed.

SIGNED by THE HONOURABLE

)

ALAN JOHN CARPENTER

)

in the presence of:

)

A J Carpenter

Name

Kent Frederick Alott

Kent Alott

THE COMMON SEAL of

)

ILUKA RESOURCES LIMITED

)

ACN 008 675 018 was hereto affixed

)

[C.S.]

in accordance with its constitution

)

in the presence of:

)

David Robb

Director

C. Wilson

Director/Secretary