Western Mining Corporation Limited (Throssell Range) Agreement Act 1985

The agreement uses several key concepts. "Exploration areas" means the areas bordered green on plan A (clause 1). "Special Exploration Licence" is the licence granted under clause 5, which is to be granted under and subject to the Mining Act 1978 except as otherwise provided, in the form of the First Schedule (clause 5(1)). Its initial term expires at the end of year 5, extendable once for one year, and further extended if proposals are pending (clause 5(2)). "Mining Lease" means the lease granted under clause 13 for all minerals (other than iron ore, as "minerals" is defined to exclude iron ore) over up to 250 square kilometres (clause 1, clause 13(1)). "Approved proposal" means any proposal approved or determined under the agreement (clause 1). The Company must submit detailed proposals under clause 7 covering eleven categories including mining operations, roads, workforce accommodation, water and power supply, port facilities, an airstrip, environmental management, use of local labour and materials, and any required land tenures. "Mine town" means a town to be established within or near the exploration areas as a principal housing area for the mine workforce, which may with the Minister's approval include an existing town (clause 1). "Secondary processing" means processing minerals in Western Australia to substantially enhance their economic value (clause 1). The Company must investigate secondary processing within 10 years of the commencement date and provide a report, then review every 4 years (clause 24). "Force majeure" is defined broadly in clause 32(1) to include acts of God, earthquakes, floods, strikes, lockouts, shortages of labour or essential materials, delays of contractors, factors due to overall world economic conditions, and factors that could not reasonably have been foreseen, but notably does not apply to clause 5 or the Special Exploration Licence (clause 32(2)). The arbitration clause (clause 42) provides for disputes to be referred to two arbitrators with an umpire, but does not apply where the Minister or State has a discretionary power, unless otherwise provided. The agreement also employs concepts of "private road" and "public road" (clause 12), "mining water requirements" (clause 15), and "mine townsite" (clause 17). The State's obligation to zone lands so that operations are not interfered with on zoning grounds is a key protection for the Company (clause 25). The prohibition on discriminatory taxes, rates or charges (clause 27) is a fundamental feature of State agreements.

The primary parties are the State of Western Australia (acting through the Premier and Ministers) and Western Mining Corporation Limited (the Company) and its successors and permitted assigns (clause 30). The Company bears the principal obligations under the agreement: exploring, submitting proposals, constructing and operating mining and processing facilities, building and maintaining towns, roads, water and power infrastructure, and paying royalties. The agreement also binds and benefits any assignee who executes a deed of covenant (clause 30(1)), though the Company remains liable unless the Minister releases it (clause 30(2)). The workforce and associated population of the mine are directly affected because the Company must provide housing, utilities, services and community facilities (clause 17). The Company must ensure housing accommodation and services are readily available to employees, licensees, agents and persons providing services (clause 17(1)(a)(v)). Educational, hospital, medical, police and other services are to be provided by the Company for use free of charge by the State (clause 17(1)(a)(vi)), but the State provides personnel for those services (clause 17(1)(b)). Third parties are affected as users of the Company's private roads (clause 12(1)(b) allows the Company to exclude them), wharf and port facilities (clause 22 allows use subject to by-laws and reasonable charges if it does not unduly prejudice operations), and water sources (clause 15(10) allows third party drawing with conditions including reimbursement of investigation costs). Local authorities are affected by rating provisions: land subject to the agreement (except residences and commercial undertakings not directly related to mining) is to be valued on an unimproved basis and no discriminatory rate may be imposed (clause 26). The State Energy Commission is involved in electricity supply and potential acquisition of the Company's electricity facilities (clause 14). The Commonwealth is indirectly affected because the Company must apply for any necessary Commonwealth licences and the State will make representations (clause 39). The Public Works Act 1902 is used for resumption of land for the purposes of the agreement (clause 28), affecting landowners whose land is resumed. Pastoral leaseholders and other reserve holders within the exploration areas are affected because the State must allow the Company to enter Crown lands (clause 3(b)). The general public is affected by the operation of by-laws made under section 5 of the Act, which may regulate access to and use of the mine town and port facilities.

The Company has a number of detailed duties. It must apply for the Special Exploration Licence within three months of the commencement date and surrender all existing mining tenements within the exploration areas (clause 5(1)). It must expend minimum amounts per square kilometre on exploration each year: $600 in year 1, $900 in year 2, $1,200 in years 3 to 6 if extended (clause 5(4)). It cannot extract more than 1,000 tonnes of ore without the Minister for Minerals and Energy's approval (clause 5(3)). The Company must carry out field and office studies to enable it to submit detailed proposals (clause 6) and must keep the State fully informed. The Company must submit proposals by the end of year 5 or 6, covering all eleven matters (clause 7(1)). It must furnish evidence of finance availability and readiness to proceed (clause 7(6)). After proposals are approved, the Company must implement them (clause 8(7)). The Company must carry out continuous environmental investigation and monitoring, submit yearly interim reports and three-yearly detailed reports to the Minister on environmental matters (clause 10). It must use local labour where practicable, give preference to Western Australian suppliers, and ensure contractors undertake similar obligations, reporting monthly to the Minister (clause 11). It must construct and maintain private roads at its own cost and provide protection at crossings (clause 12). The Company must pay royalties at rates prescribed under the Mining Act 1978 or such other rates as agreed (clause 20(1)), and submit monthly returns and payments within 30 days of each month (clause 20(2)). The Company must investigate secondary processing within 10 years, report, and review every 4 years, giving preference to secondary processing if technically and economically feasible (clause 24). It must pay on demand the costs of land resumed at its request (clause 28). The Company has a right to remove fixed or movable plant and equipment at termination, but the State has a three-month option to purchase them at fair valuation (clause 35(3)). The State has duties: to introduce and sponsor the ratifying Bill (clause 3), to grant the Special Exploration Licence and Mining Lease (clauses 5, 13), to ensure zoning protection (clause 25), to ensure no discriminatory rates (clause 26), to not resume the Company's property without consent except as provided (clause 29), and to assist with water and electricity matters. The State may at any time acquire the Company's electricity facilities on 12 months' notice (clause 14(6)) and water supply facilities on 6 months' notice (clause 15(8)). The Minister has broad discretionary powers to extend any period or vary any date (clause 33), even after expiry. The Company has the right to assign, mortgage or charge its rights with the Minister's consent (clause 30). The parties may vary the agreement by written agreement, subject to disallowance by Parliament within 12 sitting days (clause 31).

The Act itself contains limited penalty provisions. By-laws made under section 5 may prescribe penalties not exceeding $100 (section 5(2)(c)). No other monetary penalties or criminal offences are created by the Act or the agreement. The primary enforcement mechanism is the State's right to determine the agreement for material default, abandonment or repudiation, or liquidation of the Company (clause 34(1)). The State must first give notice specifying the nature of the default and allow 180 days for remedy (clause 34(1)(a)(ii), 34(2)). If the Company contests the default, it must refer the matter to arbitration within 60 days (clause 34(3)(a)). If the arbitrator decides against the Company, it must comply within a reasonable time fixed by the award, being not less than 90 days if the dispute was bona fide and the Company not dilatory (clause 34(3)(b)). Instead of determining the agreement, the State may itself remedy the default and recover the costs from the Company (clause 34(4)). On cessation or determination of the agreement, all rights of the Company to the Special Exploration Licence, Mining Lease and other tenures cease, and all buildings, erections and improvements on the land become the absolute property of the State without compensation (clause 35(2)). The Company may remove its fixed and movable plant and equipment but only if it gives notice and the State does not exercise its option to purchase them in situ at a fair valuation (clause 35(3)). There is also a potential for the agreement to cease automatically if the Company does not submit all required proposals during the term of the Special Exploration Licence (clause 5(8)), or if proposals are not all approved or determined by the end of year 6 and the Minister gives three months' notice (clause 8(6)). Arbitration is the prescribed dispute resolution method (clause 42), conducted under the Arbitration Act 1895. The arbitrators or umpire have power to grant interim extensions of time to preserve parties' rights (clause 42(3)). Importantly, the arbitration clause does not apply where the Minister or State has a discretionary power, unless otherwise provided (clause 42(2)). The Company's failure to meet minimum exploration expenditure under clause 5(4) could trigger a default, but the Minister may allow a lesser expenditure if failure was due to abnormally wet weather (clause 5(4) proviso). The State must also give notice to assignees and mortgagees whose names have been notified (clause 34(2)). The agreement also contains an indemnity clause whereby the Company indemnifies the State against third-party claims arising from its work, except where the State's own negligence is involved (clause 38). There are no specific environmental penalties beyond the normal operation of environmental laws (clause 37 preserves the Company's obligation to comply with environmental requirements under other Acts).

The agreement operates and takes effect notwithstanding any other Act or law, by virtue of section 4(3) of the Act and clause 4(3) of the agreement. This is a standard State agreement supremacy clause, subject to the Government Agreements Act 1979 which is not limited or affected (section 4(3)). The Mining Act 1978 applies to the Special Exploration Licence and Mining Lease except where the agreement provides otherwise (clauses 5(1), 5(6), 13(1)). For the Special Exploration Licence, sections 68 and 70 and regulation 22 of the Mining Act 1978 are expressly saved (clause 5(6)). Section 65 of the Mining Act 1978 (which deals with surrender) does not apply (clause 5(5)). The expenditure conditions under the Mining Act 1978 do not apply to the Mining Lease during the currency of the agreement (clause 13(3)). The Land Act 1933 is deemed modified for the purposes of land grants under the agreement: a substituted subsection 45A(2), deletion of proviso to section 116, deletion of sections 135 and 143, and inclusion of powers to grant occupancy rights, offer land before townsite is constituted, and grant terms and conditions consistent with the agreement (clause 19(3)). The Sale of Land Act 1970 does not prevent the Company from entering into conditional sale agreements for townsite lots with the Minister's consent (clause 19(4)). The Rights in Water and Irrigation Act 1914 applies to water licences granted under clause 15 except where inconsistent with the agreement (clause 15(15)). The Electricity Act 1945 applies to the Company's generation and transmission of electricity, subject to the State Energy Commission's approval (clause 14(2)). The State Energy Commission Act 1979 is overridden to the extent that the State may acquire electricity facilities (clause 14(6)). The Local Government Act 1960 governs rating, but lands subject to the agreement (except residences and non-mining commercial undertakings) are deemed valued on unimproved value and no discriminatory rate may be imposed (clause 26). The Country Towns Sewerage Act 1948 applies to sewerage rates after the State acquires the Company's sewerage facilities (clause 18(2)). The Public Works Act 1902 is used for resumption of land, but sections 17(2)-(7) and 17A do not apply (clause 28). The Government Agreements Act 1979 is preserved but the agreement's operation is not limited by it (section 4(3)). The Stamp Act 1921 (or equivalent) is overridden by a stamp duty exemption for the agreement and related instruments, but only if executed within 7 years of the date of the agreement (clause 41). The Arbitration Act 1895 governs arbitrations under the agreement (clause 42(1)). Commonwealth laws are not overridden; the Company must apply for any necessary Commonwealth licences and the State will make representations (clause 39). The Interpretation Act 1984, section 42, does not apply to by-laws made under section 5 (section 5(2)(d)).

The Act was passed as Act No. 93 of 1985 and received assent on 4 December 1985. It commenced on the same day, being the day of assent (section 2). The only amendment recorded in the compilation table is the Standardisation of Formatting Act 2010 (No. 19 of 2010), section 4, which came into operation on 11 September 2010. That amendment was limited to altering the heading of the Schedule as printed in the Act: the compilation notes state the Schedule heading was amended by No. 19 of 2010 s. 4. The amendment did not alter any substantive provision of the agreement or the Act. There is no evidence of any other amendment to the Act or to the text of the agreement in the Schedule. The agreement itself contains a variation clause (clause 31) which permits the parties to add to, substitute for, cancel or vary any provision by agreement in writing, for the purpose of more efficiently or satisfactorily implementing the objects of the agreement. Any such variation must be laid before each House of Parliament within 12 sitting days, and either House may disallow the variation by resolution within 12 sitting days (clause 31(2),(3)). However, no such variations are recorded in the compilation table or notes. The Act has been reprinted once, as at 6 January 2006 (Reprint 1). The compilation table does not show any amendments between 1985 and 2010, suggesting the agreement and Act operated without legislative amendment for over 24 years. The only change was a formatting standardisation to the Schedule heading, which does not affect the substance of the agreement. The agreement itself refers to the Mining Act 1978, Land Act 1933, Local Government Act 1960, State Energy Commission Act 1979, Electricity Act 1945, Rights in Water and Irrigation Act 1914, Country Areas Water Supply Act 1947, Country Towns Sewerage Act 1948, Water Boards Act 1904, Public Works Act 1902, Transfer of Land Act 1893, Sale of Land Act 1970, Road Traffic Act 1974 and Petroleum Act 1967, all as in force at the time. The definition of "this Agreement" includes the agreement as altered from time to time in accordance with its provisions (clause 1). The Act's definition of "the Agreement" also includes the agreement as altered from time to time in accordance with its provisions (section 3). Therefore any variations made under clause 31 would be automatically incorporated without further amendment of the Act, provided the parliamentary disallowance procedure is followed.

The source material does not mention any litigation concerning this Act or the agreement. The agreement itself contains a comprehensive arbitration clause (clause 42) which is the primary dispute resolution mechanism. Clause 42(1) provides that any dispute or difference between the parties arising out of or in connection with the agreement, its construction, or the rights, duties or liabilities of a party, or any matter to be agreed, shall be referred to two arbitrators (one appointed by each party) who appoint an umpire before proceeding. The arbitration is conducted under the Arbitration Act 1895. Clause 42(2) excludes from arbitration any case where the State, the Minister or another Minister is given a discretionary power, either expressly or impliedly. This means many ministerial decisions (approval of proposals, extension of time, determination of default) are not arbitrable unless the agreement specifically provides otherwise. Certain matters are expressly made subject to arbitration: for example, the reasonableness of the Minister's decision to require alterations to proposals or to defer consideration (clause 8(4)), and the reasonableness of the Minister's requirement to alter or repeal by-laws (clause 23). The arbitration provision also empowers the arbitrators or umpire to grant interim extensions of time in the Minister's name to preserve rights (clause 42(3)). The Arbitration Act 1895 is a 19th-century statute that provides a limited court supervisory role. It is possible that disputes have been resolved through arbitration without public court records, or that the parties have negotiated variations under clause 31 without litigation. No case law referencing this specific Act or the Throssell Range Agreement appears in the text. The absence of litigation is consistent with the structure of State agreements, which are designed to avoid court intervention by providing for negotiation and arbitration. The indemnity clause (clause 38) might give rise to third-party claims, but those would be against the Company rather than under the Act. The agreement also contains a clause requiring the Company to keep the State fully informed on a confidential basis about any action with third parties that might significantly affect the State's overall interest (clause 43), which is intended to prevent disputes. The Government Agreements Act 1979 provides a statutory framework for State agreements, but no litigation on that Act is mentioned either.

Several provisions in the agreement contain traps for the unwary. The definition of "minerals" in clause 1 excludes iron ore, so any iron ore deposits within the exploration areas are not covered. The Company is not entitled to a Mining Lease for iron ore under this agreement. The Special Exploration Licence is subject to a minimum expenditure requirement per square kilometre that is relatively high for the time (up to $1,200 per square kilometre per year in years 3-6) and the force majeure clause does not apply to clause 5 or the Special Exploration Licence (clause 32(2)), so if wet weather delays exploration the Company must seek the Minister's allowance for lesser expenditure under clause 5(4) proviso, which only covers abnormally wet conditions, not other force majeure events. The Company cannot extract more than 1,000 tonnes of ore without approval (clause 5(3)), a limit that could be inadvertently exceeded during bulk sampling. The Company must surrender all existing mining tenements and withdraw all applications within the exploration areas before the Special Exploration Licence is granted (clause 5(1)). If the Company does not submit all required proposals during the term of the Special Exploration Licence, the agreement ceases automatically without any notice from the State (clause 5(8)). The Minister may require the Company to surrender areas within the exploration licence if the Minister is not satisfied with the proposed spread of exploration work (clause 5(4)(b)(ii)). Surrendered areas must generally be rectangular, at least 100 square kilometres, and information about them can be made public (clause 5(5),(7)). The Company's obligation to provide a mine town may, with the Minister's approval, be substituted by alternative accommodation arrangements (clause 7(2)), but if the Minister does not agree the Company must establish a new town, which carries very extensive obligations including housing, utilities, social and cultural facilities, and buildings for education, health and police services at the Company's cost (clause 17). The Company is not required to provide personnel for those services (clause 17(1)(b)), but must provide and pay for buildings and equipment. The Company may have to pay the cost of upgrading public roads if its use causes excessive damage (clause 12(4)). The Mining Lease term is 21 years renewable twice for 21 years, but the renewals are subject to the Company making written application not later than one month before expiry (clause 13(2)); missing that deadline could forfeit the renewal right. The Company is exempt from Mining Act 1978 expenditure conditions during the currency of the agreement (clause 13(3)), but this exemption is conditional on compliance with its obligations under the agreement. Royalties are payable at rates prescribed under the Mining Act 1978 or such other rates as the State may agree (clause 20(1)). The State could change royalty rates by regulation without the Company's consent unless the parties have agreed otherwise. The secondary processing obligation (clause 24) is ongoing: every 4 years after the initial report the Company must review and report, and must use reasonable endeavours to initiate or facilitate secondary processing if technically and economically feasible. This is a continuing obligation that cannot be satisfied once and forgotten. The stamp duty exemption under clause 41 only applies to instruments executed within 7 years of the date of the agreement (29 October 1985), so any instruments after 29 October 1992 would be subject to stamp duty. The arbitration clause (clause 42(2)) excludes ministerial discretionary decisions from arbitration, so if the Minister unreasonably refuses to extend a period under clause 33 (which is purely discretionary), there may be no recourse. The Company remains liable for all obligations even after assigning its rights, unless the Minister expressly releases it (clause 30(2)). On termination, all improvements vest in the State without compensation, and the Company's right to remove plant and equipment is subject to the State's option to purchase (clause 35(2),(3)). The Company must notify the State promptly of force majeure events and use best endeavours to minimise effects (clause 32(1) proviso).

Compliance with this Act and agreement requires careful attention to timelines, expenditure commitments and reporting obligations. The Company's first step within three months of the commencement date is to apply for the Special Exploration Licence and simultaneously surrender all existing mining tenements and withdraw all applications within the exploration areas (clause 5(1)). The Company must then maintain minimum exploration expenditure per square kilometre as set out in clause 5(4), and submit annual exploration programmes to the Minister at the commencement of each year (clause 5(4)(b)(ii)). If exploration is delayed by abnormally wet weather, the Company should promptly seek the Minister's allowance for lesser expenditure. The Company must not extract more than 1,000 tonnes of ore without prior approval from the Minister for Minerals and Energy (clause 5(3)). Throughout the exploration period, the Company must keep the State fully informed of the progress and results of its investigations, studies and other works (clause 6(1)), and co-operate and consult with the State's representatives (clause 6(2)). The most critical compliance milestone is the submission of detailed proposals under clause 7(1) by the end of year 5, or year 6 if the exploration licence is extended. The proposals must be as detailed as reasonably practicable and cover all eleven matters listed in clause 7(1)(a) to (k), including a comprehensive environmental management programme. The Company must also furnish evidence of finance availability and readiness to proceed (clause 7(6)). Once the Minister approves or determines the proposals (or they are determined by arbitration), the Company must implement them in accordance with their terms (clause 8(7)). The Company must immediately commence environmental monitoring and research as required by clause 10, submit yearly interim reports and three-yearly detailed reports, and respond to any Ministerial request for additional environmental proposals within two months (clause 10(4)). The Company must implement any approved additional proposals. Ongoing obligations under the agreement include: using local labour, professionals and suppliers as far as practicable and giving preference to Western Australian businesses where price, quality, delivery and service are equal or better, and requiring contractors to do the same (clause 11); reporting monthly to the Minister on implementation of those provisions (clause 11(3)); paying royalties monthly within 30 days of each month and furnishing returns (clause 20(2)); permitting inspection of books and records by the Minister for Minerals and Energy (clause 20(3)); and investigating secondary processing within 10 years and reporting, then reviewing every 4 years (clause 24). The Company must also consult with and keep the State confidentially informed about any action with third parties that might significantly affect the State's overall interest (clause 43). If the Company wishes to significantly modify or expand its activities, it must give notice and submit additional proposals under clause 9, which follow a similar approval process. The Company should maintain a register of all assignees, mortgagees, chargees and disponees who have notified their names and addresses to the State, as the State must serve notices on them (clause 34(2)). If the Company receives a default notice from the State, it has 180 days to remedy the default or, if it contests the default, must refer the matter to arbitration within 60 days (clause 34(3)(a)). The Company should also ensure it applies for renewal of the Mining Lease not later than one month before the current term expires (clause 13(2)). The Company must pay the costs of any land resumed at its request (clause 28) and must not allow any unauthorised third parties to use its private roads without taking steps to exclude them (clause 12(1)(b)). Finally, the Company should be aware that the force majeure clause does not protect it from the exploration expenditure requirements under clause 5, so it should plan accordingly and maintain adequate financial reserves.