Sch Schedule 2Variation agreement

Schedule 2 — Variation agreement [Heading inserted: No. 17 of 1985 s. 6; amended: No. 19 of 2010 s. 4.] THIS AGREEMENT made the 8th day of March, 1985 BETWEEN THE HONOURABLE BRIAN THOMAS BURKE, M.L.A., Premier of the State of Western Australia, acting for and on behalf of the said State and its instrumentalities from time to time (hereinafter called “the State”) of the one part and WESTERN MINING CORPORATION LIMITED a company incorporated in the State of Victoria and having its registered office in such State at 360 Collins Street, Melbourne (hereinafter with its successors permitted assigns and appointees called “the Company”) of the other part. WHEREAS: (a) Poseidon Limited a company incorporated under the Companies Act of the State of South Australia and registered in the State of Western Australia as a foreign company (hereinafter called “Poseidon”) was a party to the Agreement defined in section 2 of the *Poseidon Nickel Agreement Act 1971*; (b) the said Agreement was varied by agreement dated the 9th day of April, 1973 (the said Agreement as varied being hereinafter referred to as “the principal Agreement”); (c) Poseidon Limited by deed of assignment dated the 9th day of April, 1973 assigned a one half share of its right title interest claim and demand in the principal Agreement to the Company; (d) Poseidon Limited by deed of assignment dated the 4th day of February, 1974 assigned its remaining one half share of its right title interest claim and demand in the principal Agreement to Windarra Nickel Mines Pty. Ltd.; (e) Windarra Nickel Mines Pty. Ltd. by deed of assignment dated the 13th day of July, 1978 assigned all its right title interest claim and demand in the principal Agreement to the Shell Company of Australia Limited; (f) The Shell Company of Australia Limited by deed of assignment dated the 3rd day of April, 1984 assigned all its right title interest claim and demand in the principal Agreement to the Company; (g) the Company and the State are now the parties to the principal Agreement; and (h) the parties desire to vary the provisions of the principal Agreement. NOW THIS AGREEMENT WITNESSETH: 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. 2. The provisions of this Agreement shall not come into operation until a Bill to approve and ratify this Agreement is passed by the Legislature of the said State and comes into operation as an Act. 3. The principal Agreement is hereby varied as follows — (1) Clause 1 — (a) by deleting the definition of “Mining Act” and inserting the following definitions — “ “*Mining Act 1904*” means the *Mining Act 1904* and the amendments thereto and the regulations made thereunder as in force on the 31st day of December, 1981; “*Mining Act 1978*” means the *Mining Act 1978*; ”; (b) by inserting after the definition of “Mining areas” the following definition — “ “Mining Lease” means the mining lease referred to in subclause (1) of Clause 12A and includes any renewal thereof and according to the requirements of the context shall describe the land leased as well as the instrument by which it is leased; ”; (c) by deleting the definition of “Minister for Mines” and inserting the following definition — “ “Minister for Minerals and Energy” means the Minister in the Government of the State for the time being responsible (under whatsoever title) for the administration of the *Mining Act 1904* and the *Mining Act 1978*; ”; (d) by inserting, in the paragraph commencing “Reference in this Agreement to an Act”, after “Act”, where it first occurs, the following — “ other than the *Mining Act 1904* ”. (2) Clause 6 — (a) by inserting after “the said proposals” the following — “ or should the Company desire to mine minerals other than ore ”; (b) by deleting “*mutatis mutandis*.” and substituting the following — “ *mutatis mutandis* PROVIDED that in the event of arbitration the award on arbitration shall be final and shall be accepted and given effect to by the parties and the provisions of Clause 5 dealing with cessation and determination of this Agreement shall not apply. The Company shall implement the decision of the Minister or an award on arbitration as the case may be in accordance with the terms thereof. ”. (3) Clause 11 — (a) in subclause (5) — by inserting after “subclause (4)” the following — “ or subclause (7) ”; (b) in subclause (6) — by deleting “the licence” and substituting the following — “ a licence ”; (c) in subclause (7) — (i) by deleting “the State”, where it last occurs in the first sentence, and substituting the following — “ the parties hereto ”; (ii) by deleting the last sentence and substituting the following — “ The State shall grant to the Company a licence to develop and draw from such sources sufficient water (subject to continued availability) to meet that portion of the Company’s daily water requirements not obtainable from sources developed pursuant to subclause (4) of this Clause on such terms and conditions as the Minister may approve. ”; (d) by deleting subclause (8). (4) By inserting after Clause 12 the following clause — “ **Mining Lease 1** 12A. (1) The State shall upon the surrender by the Company of its right title and interest in mineral leases numbered 38/27 to 38/89 (both inclusive) granted pursuant to the provisions of Clause 12 (in this clause called “the surrendered mineral leases”) cause to be granted to the Company at rentals specified from time to time in the *Mining Act 1978* a Mining Lease of the land comprised in the surrendered mineral leases (notwithstanding that the survey in respect thereof has not been completed but subject to such corrections to accord with the survey when completed) such Mining Lease to be granted under and, except as otherwise provided in this Agreement, subject to the *Mining Act 1978* but in the form of the Third Schedule hereto and in respect of all minerals and subject to such of the conditions of the surrendered mineral leases as the Minister for Minerals and Energy determines. **Term 1** (2) Subject to the performance by the Company of its obligations under this Agreement and the *Mining Act 1978* and notwithstanding any provisions of the *Mining Act 1978* to the contrary, the term of the Mining Lease shall be for a period of 21 years commencing from the date of the grant thereof with the right during the currency of this Agreement to take successive renewals of the said term each for a period of 21 years upon the same terms and conditions subject to the sooner determination of the said term upon the cessation or determination of this Agreement such right to be exercisable by the Company making written application for any such renewal not later than 1 month before the expiration of the current term of the Mining Lease. **Apportionment of rent 1** (3) The Minister for Minerals and Energy shall make such apportionment of rents as may be necessary in respect of the surrendered mineral leases. **Expenditure 1** (4) The State shall ensure that during the currency of this Agreement and subject to compliance with its obligations hereunder the Company shall not be required to comply with the expenditure conditions imposed by or under the *Mining Act 1978* in regard to the Mining Lease. ”. (5) Clause 16 — (a) subclause (1) — (i) by inserting after “mineral leases” the following — “ or the Mining Lease ”; (ii) by deleting “Mining Act.” and substituting the following — “ *Mining Act 1904* or the *Mining Act 1978* as the case may be. ”; (b) subclause (2) — by deleting “Mining Act” and substituting the following — “ *Mining Act 1904* ”. (6) Clause 18 — by deleting paragraph (a) and the marginal note thereto. (7) Clause 20 — by inserting after “mineral leases” the following — “ or the Mining Lease ”. (8) By deleting Clause 22 and the marginal note thereto. (9) Clause 32 — by inserting after “mineral leases” the following — “ or the Mining Lease ”. (10) Clause 36 subclause (3) — (a) by deleting “section 82 of the Mining Act and of regulations 192 and 193 made thereunder and of ” and substituting the following — “ section 82 of the *Mining Act 1904* and regulations 192 and 193 made thereunder, regulations 77 and 110 made under the *Mining Act 1978* and ”; (b) by deleting “the Mining Act.” and substituting the following — “ the *Mining Act 1904* or the *Mining Act 1978*. ”. (11) By inserting after the Second Schedule the following Schedule — “ THE THIRD SCHEDULE *MINING ACT 1978* *POSEIDON NICKEL AGREEMENT ACT 1971* MINING LEASE Mining Lease No. The Minister for Minerals and Energy a corporation sole established by the *Mining Act 1978* with power to grant leases of land for the purposes of mining in consideration of the rents hereinafter reserved and of the covenants on the part of the Lessee described in the First Schedule to this lease and of the conditions hereinafter contained and pursuant to the *Mining Act 1978* (except as otherwise provided by the Agreement (hereinafter called “the Agreement”) described in the Second Schedule to this lease) hereby leases to the Lessee the land more particularly delineated and described in the Third Schedule to this lease for all minerals subject however to the exceptions and reservations set out in the Fourth Schedule to this lease and to any other exceptions and reservations which subject to the Agreement are by the *Mining Act 1978* and by any Act for the time being in force deemed to be contained herein to hold to the Lessee this lease for a term of twenty-one years commencing on the date set out in the Fifth Schedule to this lease upon and subject to such of the provisions of the *Mining Act 1978* except as otherwise provided by the Agreement as are applicable to mining leases granted thereunder and to the covenants and conditions herein contained or implied and any further conditions or stipulations set out in the Sixth Schedule to this lease the Lessee paying therefor the rents and royalties as provided in the Agreement with the right during the currency of the Agreement and in accordance with the provisions of the Agreement to take successive renewals of the term each for a further period of twenty-one years upon the same terms and conditions subject to the sooner determination of the said term upon cessation or determination of the Agreement PROVIDED ALWAYS that this lease and any renewal thereof shall not be determined or forfeited otherwise than in accordance with the Agreement. In this lease — — “Lessee” includes the successors and permitted assigns of the Lessee and if the Lessee be more than one the respective successors and permitted assigns of each Lessee. — If the Lessee be more than one the liability of the Lessee hereunder shall be joint and several. — Reference to an Act includes all amendments to that Act and to any Act passed in substitution therefor or in lieu thereof and to the regulations and by-laws for the time being in force thereunder. FIRST SCHEDULE WESTERN MINING CORPORATION LIMITED a company incorporated in the State of Victoria and having its registered office in such State at 360 Collins Street, Melbourne. SECOND SCHEDULE The Agreement ratified by the *Poseidon Nickel Agreement Act 1971* including any amendments to that Agreement. THIRD SCHEDULE (Description of land) Section 1 : Section 2 : Locality : Mineral Field: Area, etc.: Being the land delineated on Original Plan No. and recorded in the Department of Mines, Perth. FOURTH SCHEDULE All petroleum as defined in the *Petroleum Act 1967* on or below the surface of the land the subject of this lease is reserved to the Crown in right of the State of Western Australia with the right of the Crown in right of the State of Western Australia and any person lawfully claiming thereunder or otherwise authorised to do so to have access to the land the subject of this lease for the purpose of searching for and for the operations of obtaining petroleum (as so defined) in any part of the land. FIFTH SCHEDULE (Date of commencement of the lease) SIXTH SCHEDULE (Any further conditions or stipulations) In witness whereof the Minister for Minerals and Energy has affixed his seal and set his hand hereto this day of 19 . ”. 4. Notwithstanding anything contained in the principal Agreement, Mineral Lease numbered 38/84 shall be deemed to have been at all material times held under and pursuant to the provisions of the principal Agreement. 5. Any reference in the principal Agreement (as amended by this Agreement) to the “Minister for Mines” shall be read and construed as a reference to the “Minister for Minerals and Energy”. IN WITNESS WHEREOF this Agreement has been executed by or on behalf of the parties hereto the day and year first hereinbefore written. | SIGNED BY THE HONOURABLE BRIAN THOMAS BURKE, M.L.A., in the presence of —<br>DAVID PARKER.<br>MINISTER FOR MINERALS AND ENERGY | ![]() | BRIAN BURKE. | | --- | --- | --- | | THE COMMON SEAL of WESTERN MINING CORPORATION LIMITED was hereto affixed in the presence of —<br>DIRECTOR H. S. AMOS<br>J. W. WINTERBOTTOM, ASST. SECRETARY | ![]() | [C.S.] | [Schedule 2 inserted: No. 17 of 1985 s. 6.]