Alumina Refinery (Muchea) Agreement Act 1972 (WA)

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WESTERN AUSTRALIA.

ALUMINA REFINERY

(MUCHEA) AGREEMENT.

No. 97 of 1972.

AN ACT to authorize the execution on behalf of the State of an Agreement with Hancock Prospecting Pty. Ltd., Wright Prospecting Pty. Ltd., Metals Miniere Limited and Pacminex (Operations) Pty. Limited relating to the estab. lishment near Muchea of a refining plant to treat bauxite to produce alumina and for other purposes; and to repeal the Alumina Refinery (Upper Swan) Agreement Act, 1971.

[Assented to 6th December, 1972.]

BE it enacted by the Queen's Most ExcellentMajesty, by and with the advice and consent of the Legislative Council and the Legislative Assembly of Western Australia, in this present Parliament assembled, and by the authority of the same, as follows:-

1. This Act may be cited as the Alumina

Short title.

Refinery (Muchea) Agreement Act, 1972.

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Agreement.

Execution of

Agreement

2.

The execution by the Premier of the State of Western Australia acting for and on behalf of the State of an Agreement in or substantially in accordance with the form set out in the Schedule to this Act is authorized.

authorized.

Executed

Agreement

3.

When the Agreement referred to in section 2 thereto, the Agreement shall, subject to its pro- visions, operate and take effect as though those provisions were enacted in this Act.

to operate

and take

of this Act is duly executed by all the parties

effect.

Repeal.

4. The Alumina Refinery (Upper Swan) Agree-

ment Act, 1971, is hereby repealed.

1972.]

Alumina Refinery (Muchea) [No. 97.

Agreement.

SCHEDULE.

ALUMINA REFINERY (MUCHEA) AGREEMENT.

THIS AGREEMENT made the

day of

One Thousand nine hundred

and seventy-two BETWEEN THE HONOURABLE JOHN

TREZISE TONKIN, M.L.A., Premier of the State of Western

Australia, acting for and on behalf of the said State and

Instrumentalities thereof from time to time (hereinafter

called "the State") of the one part and HANCOCK

PROSPECTING PTY. LTD. a company duly incorporated

under the Companies Act of the State of Western Australia

having its principal office at Lombard House, 251 Adelaide

Terrace, Perth in the said State and WRIGHT

PROSPECTING PTY. LTD. a company duly incorporated

under the Companies Act aforesaid having its principal

office at Lombard House, 251 Adelaide Terrace, Perth afore-

said and METALS MINIERE LIMITED a company duly

incorporated under the Companies Act aforesaid having its

principal office at 189 Saint George's Terrace, Perth and

PACMINEX (OPERATIONS) PTY. LIMITED a company

incorporated in the State of New South Wales and having

its principal office at 15-19 Bent Street, Sydney in the State

of New South Wales (hereinafter called "the Joint Ven-

turers") of the other part.

WHEREAS:

(a)

the Joint Venturers and their predecessors in title at the cost to the date hereof exceeding two million dollars ($2,000,000) having established the existence of bauxite reserves within the mining area defined in Clause 1 and having already carried out certain investigations relating to the mining transport and refining of bauxite and the shipment of bauxite and alumina from the mining area wish to develop those bauxite reserves and to establish a bauxite mining operation and an alumina plant all of which is expected to cost an amount exceeding eighty million dollars ($80,000,000);

(b)

the Joint Venturers agree in due course to investigate the feasibility of establishing within the said State an industry for smelting alumina produced from bauxite; and

(c)

a report dated the 12th day of October 1972 has been received from the Environmental Protection Authority to the effect that the site north-west of Muchea proposed for the Joint Venturers' operations

hereunder is acceptable in principle from an

environmental point of view.

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Agreement.

NOW THIS AGREEMENT WITNESSETH:

Definitions.

1. In this Agreement subject to the context

"apply" "approve" "approval" "consent" "certify" "direct" "notify" "require" or "request" means apply, approve, approval, consent, certify, direct, notify, require or request in writing as the case may be;

"associated company" means

(a)

any company having a paid up capital of not less than two million dollars ($2,000,000) notified by the Joint Venturers to the Minis- ter that is incorporated in the United King- dom the United States of America or the Commonwealth of Australia or such other country as the Minister may approve and that

(i)    is promoted by the Joint Venturers or any of them for all or any of the purposes of this Agreement and in which the Joint Venturers or any of them hold not less than twenty per cent (20%) of the issued ordinary share capital; or

(ii)    is related within the meaning of that term as used in Section 6 of the Com- panies Act, 1961, to any company in which the Joint Venturers or any of them hold not less than twenty per cent (20%) of the issued ordinary share capital; or

(b)

any company that is associated directly or indirectly with the Joint Venturers or any of them in their business or operations here- under and that is approved by the Minister for the purposes of this Agreement;

"bauxite" means ore mined by the Joint Venturers under this Agreement which either with or without crush- ing washing and screening is shipped or sold as bauxite or is used for processing into alumina;

"bulk cargo" means a commodity or commodities to be handled and transported without being first pack- aged or placed in specially constructed containers and in particular the term includes alumina, caustic soda and bauxite for the purposes of this Agreement;

"bulk storage area" means the land at Kwinana delineated in red and subject to survey shown on the plan marked "B" and initialled on behalf of the parties hereto for the purposes of identification or

1972.]

Alumina Refinery (Muchea) [No. 97.

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such alternative land as the parties may agree upon, together with such additional land as the parties may agree upon from time to time;

"catchment area" means an area of land within a watershed which contributes to the flow of a stream or watercourse;

"Clause" means a clause of this Agreement;

"Commonwealth" means the Commonwealth of Aus- tralia and includes the Government for the time being thereof;

"Conservator of Forests" and "Conservator" means the Conservator of Forests appointed under the Forests Act, 1918;

"construction" or "upgrading" in relation to a railway includes the provision of signalling and other railway operating appurtenances;

"Crown land" means all land of the Crown, except land granted or agreed to be granted in fee simple and except land held or occupied under the Crown by lease or licence for any purpose other than pastoral or timber purposes, and includes all land reserved for State forests or the purpose of water conserva- tion;

"Environmental Protection Authority" means the

Environmental Protection Authority established

pursuant to the Environmental Protection Act, 1971;

"forest produce" has the same meaning as that expression has in and for the purposes of the Forests Act, 1918;

"Fremantle Port Authority" means the Fremantle Port Authority of Western Australia established pursuant to the Fremantle Port Authority Act, 1902;

"Joint Venturers' wharf" means the wharf referred to in Clause 38 hereof;

"Land Act" means the Land Act, 1933;

"Metropolitan Water Supply Board" means the Metro- politan Water Supply Sewerage and Drainage Board established pursuant to the Metropolitan Water Supply Sewerage, and Drainage Act, 1909;

"mineral lease" means the mineral lease or mineral leases referred to in Clause 8 and includes any renewal thereof;

"Mining Act" means the Mining Act, 1904;

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Agreement.

"mining area" means the area delineated and coloured blue in the plan marked "C" initialled on behalf of the parties hereto for the purpose of identifica- tion, but excluding land therein the subject of both existing mining tenements and applications therefor which are not held or made on behalf of the Joint Venturers and including such land as the Minister for Mines may from time to time approve.

"Minister" means the Minister in the Government of the said State for the time being responsible (under whatsoever title) for the administration of this Agreement;

"Minister for Mines" means the Minister in the Govern- ment of the said State for the time being respons- ible for the administration of the Mining Act;

"Minister for Works" means the Minister in the Gov- ernment of the said State for the time being respon- sible for the administration of the Public Works Act, 1902 or the Country Areas Water Supply Act, 1947 or the Fremantle Port Authority Act, 1902 as the case may require;

"month" means calendar month; "notice" means notice in writing; "person" or "persons" includes a body corporate or bod-

ies corporate;

"potable water" means water containing less than 1,000 parts per 1,000,000 of totally dissolved solids;

"production date" means the date on which the regular

production of alumina commences at the refinery;

"Railways Commission" means the Western Australian Government Railways Commission established pur- suant to the Government Railways Act, 1904;

"railway working area" means the land delineated in blue on the said plan marked "B".

"red mud" means the waste products and tailings

resulting from the refining of bauxite into alumina;

"refinery" means a refining plant established or to be established pursuant to this Agreement at or near Muchea in which bauxite is treated to produce alumina and includes any extension thereof;

"refinery site" means that part of the land delineated green on the plan marked "A" (initialled on behalf of the parties hereto for the purposes of identifica- tion) which is the subject of the lease referred to

in Clause 11 (2);

1972.]

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"Schedule" means a schedule to this Agreement;

"smelter" means an electrolytic reduction plant for the conversion of alumina to aluminium using alumina produced from bauxite;

"special grade bauxite" means ore that is saleable as refractory grade, abrasive grade or chemical grade bauxite;

"State Electricity Commission" means the State Elec- tricity Commission of Western Australia established pursuant to the State Electricity Commission Act, 1945;

"State forest" means land dedicated as a State forest under the Forests Act, 1918;

"the said State" means the State of Western Australia;

"this Agreement" "hereof" "hereto" and "hereunder" includes this Agreement as from time to time added to varied or amended;

"tonne" means a tonne of one thousand kilograms.

2. In this Agreement—

Interpreta-

tion.

(a)

monetary references are (subject to the context) references to Australian currency;

(b)

power given under any Clause other than Clause 55 to extend any period or date shall be without prejudice to the power of the Minister under Clause 55;

(c)

marginal notes do not affect the interpretation or construction; and

(d)

reference to an Act includes the amendments to that Act for the time being in force and also any Act passed in substitution therefor or in lieu thereof and the regulations for the time being in force thereunder.

3. The State will

InitialObligations of the State.

(a)

to the extent reasonably necessary for the purposes of this Agreement allow the Joint Venturers as from the date hereof to enter upon Crown lands and survey possible sites for their operations under this Agreement;

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Agreement.

(b)

permit the Joint Venturers on proper application to the Minister for Mines to be registered as transferrees of the rights of occupancy over Temporary Reserves 375811 and 393611 and to hold such rights until the grant of the mineral lease or the sooner determination of this Agreement according to the tenor of those rights; and

(c)

permit the Joint Venturers on proper application to the Minister for Mines to acquire rights of occupancy over Temporary Reserve 506811 and to hold such rights until the grant of the mineral lease or the sooner determination of this Agreement on the same terms and conditions as are applicable to the rights of occupancy referred to in paragraph (b) of this Clause.

Other Acts.

4. As from the date hereof all the provisions of this Agreement shall operate and take effect notwithstanding the provisions of any other Act or any law to the contrary and for the purposes of this Agreement and notwithstanding the generality of the foregoing

(a)

the Mining Act the Land Act the Transfer of Land Act, 1893 and the Public Works Act shall be deemed modified and amended to the extent necessary to enable full force and effect to be given to this Agreement;

(b)

the Mining Act shall be deemed modified and amended by the deletion of Sections 277 and 282;

(c)

the Transfer of Land Act, 1893 shall be deemed modified and amended by the deletion of Section 81D;

(d)

the Land Act shall be deemed modified and amended by-

(i)    the substitution for subsection (2) of Section 45A of the following subsection:

(2) Upon the Governor signifying approval pursuant to subsection (1) of this section in respect of any such land the same may subject to this section be sold or leased;

(ii)    the deletion of the proviso to Section 116;

(iii)    the deletion of Sections 135 and 143; and

(iv)    the inclusion of a power to offer for sale or grant leases or licenses for terms or periods and on such terms and conditions (including renewal rights) and in forms consistent with the provisions of this Agreement instead of the terms or periods and the terms conditions

1972.]

Alumina Refinery (Muchea) [No. 97.

Agreement.

and forms ref erred to in the Land Act and upon application by the Joint Venturers in forms so consistent instead of in the forms referred to in the Act;

(e)

the State and the Minister respectively shall have all the powers discretions and authorities necessary or requisite to enable them to carry out and perform the powers discretions authorities and obligations conferred or imposed upon them respectively hereunder;

(1) the State may close or vary the alignments of or the boundaries of any public road;

(g)

the State may as and for a public work under the Public Works Act, 1902, resume any land or any estate right or interest in land required for the purposes of this Agreement and notwithstanding any other provisions of that Act may sell lease or otherwise dispose of any of the foregoing to the Joint Venturers and the provisions of subsections (2) to (7) inclusive of Section 17 and the provi- sions of Section 17A of that Act shall not apply to or in respect thereof or the resumption thereof;

(h)

notwithstanding the provisions of Section 82 of the Mining Act and of regulations 192 and 193 made thereunder and of Section 81D of the Transfer of Land Act, 1893, insofar as the same or any of them may apply no mortgage or charge in a form com- monly known as a floating charge made or given pursuant to Clause 50 hereof over any lease licence reserve or tenement granted hereunder or pursuant hereto by the Joint Venturers or any of them or any assignee or appointee who has executed and is for the time being bound by deed of covenant made pursuant to Clause 50 hereof and no transfer or assignment in exercise of any power of sale contained in such mortgage or charge shall require any approval or consent other than such consent as may be necessary under Clause 50 hereof and no such mortgage or charge shall be rendered in- effectual as an equitable charge by the absence of any approval or consent otherwise than as re- quired by Clause 50 hereof or because it is not reg- istered under the provisions of the Mining Act; and

(i) no lease sublease licence or other title or right granted or assigned under or pursuant to this Agreement shall be subject to or capable of parti- tion and the provisions of Part XIV of the Property Law Act, 1969 shall not apply thereto.

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Agreement.

obligations. 5. (1) The Joint Venturers jointly and severally covenant with the State that they and each of them will perform and observe the respective covenants and obligations falling to be performed and observed by them under the terms hereof as hereinafter provided.

(2) The State covenants with the Joint Venturers and each of them that it will perform and observe the respec- tive covenants and obligations falling to be performed and observed by it under the terms hereof as hereinafter pro- vided.

Joint

Venturers

6. (1) The Joint Venturers will on or before the 31st day

to Submit

of December, 1973 or within such extended time after that

Proposals.

date as the Minister may as hereinafter provided allow

submit to the Minister

(a)

to the fullest extent reasonably practicable their detailed proposals (including where practicable plans and where reasonably required by the Min- ister specifications) for the development of land in the mining area and of certain privately owned land adjacent to that area, for the mining and transport of bauxite and for the production, trans- port and shipment of alumina including the location, area, lay-out, design, materials and time programme for the commencement and completion of construc- tion or the provision (as the case may be) of each of the following, namely-

(i)   mine development and operation;

(ii)    ore treatment and handling at the mine;

(iii)    transportation of ore, alumina and operating supplies;

(iv)    port site storage, handling and loading facil- ities;

(v)    construction and operation of the refinery including buffer zones;

(vi)    power, fuel and water supplies;

(vii)    environmental protection, including the dis- posal of red mud and mine lands restoration;

(viii)    regional development, including any projects likely to make an impact on adjacent com- munities; and

(ix)    construction of the Joint Venturers' wharf; and

1972.]

Alumina Refinery (Muchea) [No. 97.

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(b) reasonable evidence of marketing arrangements demonstrating the Joint Venturers' ability to sell or use alumina and other products and reasonable evidence of the availability of finance necessary for the fulfilment of the Joint Venturers' proposals under this Clause.

Marketing

and Finance.

(2)

The Joint Venturers will not proceed to give effect to any proposal or plan required to be submitted pursuant to subclause (1) of this Clause and whether supplied pur- suant to that subclause or not unless or until the proposal or plan has been approved or determined under this Clause.

their detailed proposals in regard to the matter or matters of Proposals.

(3) The Joint Venturers may submit to the Minister 21111on

the subject of any of subparagraphs (i) to (ix) inclusive of paragraph (a) of subclause (1) of this Clause as and when the detailed proposals become finalised by the Joint Ven- turers but where any such matter is the subject of a sub- paragraph that refers to more than one matter the detailed proposals will unless otherwise agreed relate to and cover each of the matters mentioned in the subparagraphs.

(4)

(a) Where the Joint Venturers require an extension of time beyond the 31st day of December, 1973 within which to comply with the requirements of subelause (1) of this Clause and make a re- quest therefor to the Minister not earlier than the first day of October, 1973 or later than the 31st day of November, 1973, the Minister may if he is satisfied that it is reasonable in the circumstances so to do and that the Joint Ven- turers have otherwise duly complied with their obligations hereunder, grant an extension of time until the 30th day of June, 1974.

Extension of

time.

(b)

Where the Joint Venturers after having been granted an extension of time pursuant to a request made under paragraph (a) of this subclause require a further extension of time and make a request therefor to the Minister, the Minister may, if he is satisfied that it is reasonable in the circumstances so to do and that the Joint Venturers have otherwise duly complied with their obligations hereunder, grant the Joint Venturers a further extension of time until the 31st day of December, 1975.

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Agreement.

(c)

If any request by the Joint Venturers for an extension of time made pursuant to this sub- clause is refused by the Minister the Joint Ven- turers may refer the question to arbitration provided always that the Minister shall not be required to grant any extension of time beyond the 31st day of December, 1975.

Considers-

(5) The Minister will within two (2) months after his

ted by the Joint Venturers pursuant to this Clause give to

the Joint Venturers notice of

tin of

o

Pr

oposals. receipt of the detailed proposals or new proposals submit-

(a) his approval of the proposals; or

(b)

any alteration to the proposals or new proposals or any conditions that he may properly require or impose;

and in the latter event the Minister will afford the Joint Venturers an opportunity of consulting with and of submitt- ing new proposals to him.

The Minister may require such reasonable alterations to or impose such reasonable conditions on the Joint Venturers' proposals or (as the case may be) new proposals as he thinks fit having regard to the circumstances including the overall development and the use by others as well as the Joint Venturers of some or other of the facilities to be provided by them but the Minister shall in any notice to the Joint Venturers disclose his reason for any such altera- tions or conditions and the Minister will not require any alterations to or impose any conditions on the proposals or new proposals insofar as they relate to the technical aspects of the Joint Venturers' plant for the crushing washing and screening of ore or of the refinery.

Require-

(6)

ments by

Minister.

Reference of

(7) The Joint Venturers may within two (2) months Clause and requiring alterations or imposing conditions by notice to the State elect to refer to arbitration as provided by Clause 56 the question as to the reasonableness of any such alteration or condition and

Require-

ments to

after the receipt of a notice given under subclause (5) of this

Arbitration.

(a)

if by the award on arbitration the question is decided against the Joint Venturers then unless the Joint Venturers within three (3) months after the delivery of the award give notice to the Minister of their acceptance of the award this Agreement shall (except to the extent otherwise provided by Clause 51) cease and determine;

1972.]

Alumina Refinery (Muchea) [No. 97.

Agreement.

(b)

if by the award on arbitration the question is decided in favour of the Joint Venturers that decision shall have effect as though it were a notice of the Minister's approval of the matter or matters that were the subject of the arbitration.

Termination

(8) Notwithstanding that any of the detailed proposals submitted by the Joint Venturers are approved by the

of Agreement

where allProposals not

Minister or are determined by arbitration unless each and

Approved.

every proposal so submitted is so approved or determined by the 28th day of February, 1974 or within such extended period as may be granted pursuant to this Agreement then at any time after that date or at the conclusion of the extended period the Minister may give to the Joint Venturers twelve (12) months notice of the State's intention to determine this Agreement and unless all the detailed proposals are so approved or determined within that period of twelve (12) months this Agreement shall (except to the extent otherwise provided by Clause 51) at the expiration of that period cease and determine.

Determina-

(9) date upon which the last of the proposals referred to in

The Joint Venturers may at any time prior to the this Clause has been approved or determined give notice

tion of

Agreementby Joint

Venturers.

to the Minister that they do not wish to proceed with this Agreement and this Agreement shall thereupon cease and determine.

7. (1) The Joint Venturers will before the expiration of

of Refinery.

Construction

three (3) years from the date on which the last of their proposals is finally approved or determined under Clause 6 on a site to be approved or determined in accordance with that Clause complete the construction of and bring into operation the first stage of a refinery having a capacity to produce not less than three hundred thousand (300,000) tonnes of alumina per annum and thereafter progressively extend the refinery to reach a capacity to produce not less than eight hundred thousand (800,000) tonnes of alumina per annum before the expiration of ten (10) years after the last of their proposals is finally approved or determined.

(2) Notwithstanding the provisions of subclause (1) of Extension of

this Clause if the Joint Venturers by particulars in writing time.

demonstrate to the reasonable satisfaction of the Minister

that they have used their best endeavours to negotiate the

finance required for the construction of the refinery and to

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Agreement.

complete the sales contracts necessary for the sale of alumina to be produced at the refinery to make the project econo- mically practicable but that by reason of prevailing finance or market conditions they have been unsuccessful the Minister will grant to the Joint Venturers such extension of any time or times limited by that subclause as is reasonable in all the circumstances of the case.

Additional

Proposals.

(3) If the Joint Venturers at any time during the continuance of this Agreement desire to materially modify expand or otherwise vary their activities beyond those specified in any approved proposals they shall give notice of such desire to the Minister and within two (2) months thereafter shall submit to the Minister detailed proposals in respect of all matters covered by such notice and such of the other matters mentioned in paragraphs (i) to (ix) of subclause (1) of Clause 6 as the Minister may require. The provisions of Clause 6 shall mutatis mutandis apply to detailed proposals submitted pursuant to this subclause.

Mineral

8. (1) The State will on the application of the Joint

Lease.

Venturers made after, but within two (2) years after, the date on which the last of their proposals is finally approved or determined under Clause 6 cause a mineral lease of such of the Crown land and land reserved under Section 276 of the Mining Act in respect of which the Joint Venturers are then the holders of rights of occupancy and privately owned land in respect of which the mineral rights are reserved to the Crown within the mining area as may be applied for to be granted to the Joint Venturers (in such shares as the Joint Venturers may agree) notwithstanding that the survey of any of the lands applied for has not been completed (but subject to corrections to accord with the survey when completed) for the mining of bauxite; and the lease shall be so granted under and (except to the extent that the provisions of the Mining Act are not incon- sistent with this Agreement) subject to that Act but in the form set out in the Second Schedule.

(2) The Joint Venturers will pay to the State in advance a rental for the mineral lease calculated subject to subclause (3) of this Clause at the rate of one dollar and ninety three cents ($1.93) per annum for every square kilometre or residual part of a square kilometre contained within the leased area.

1972.

]

Alumina Refinery (Muchea) [No. 97.

Agreement.

(3) At the expiration of seven (7) years after the com- mencement date of the mineral lease and of every seven (7) years thereafter the rental payable during the next succeeding seven (7) years shall be adjusted proportionately to the increase or decrease of the mean quarterly world selling price of aluminium above or below five hundred and sixteen dollars and seventy cents ($516.70) per tonne but in no case shall the adjusted rental be less than one dollar and ninety three cents ($1.93) per square kilometre or residual part of a square kilometre.

(4) For the purposes of subclause (3) of this Clause the mean quarterly world selling price per tonne of aluminium for any quarter is the average expressed in Australian dollars of the four prices first quoted in the London "Metal Bulletin" in respect of Canadian primary aluminium of 99.5 per cent purity f.o.b. Toronto in each of the four completed quarters commencing on the first days of January, April, July and October which immediately precede that quarter and for the purpose of this subclause the conversion rate for Canadian dollars to Australian dollars shall be the mean between the buying and selling rate to telegraphic transfers as quoted by a trading bank acceptable to the Minister for Mines.

(5) Subject to the performance by the Joint Venturers of their obligations under this Clause the term of the mineral lease will, except as hereinafter provided, be for a term of twenty-one (21) years after the commencement of the lease with rights of renewal for two (2) consecutive further periods of twenty-one (21) years upon the terms and conditions contained in the lease except that

(a)

the rental may be varied as provided by sub- clause (3) of this Clause;

(b)

royalty rates may be varied as provided by sub- clause (2) of Clause 43; and

(c)

the right of renewal shall be excluded from the mineral lease when renewed for the second period of twenty-one (21) years.

(6) Within the first six (6) months of the twelve (12) months immediately preceding the expiration of the second renewed period of twenty-one (21) years of the mineral lease the Joint Venturers if then operating the refinery pursuant to this Agreement may give notice to the State that they require a further mineral lease for bauxite of

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Agreement.

the leased area or of part or parts thereof including any area leased pursuant to subclause (7) of this Clause for a term of twenty-one (21) years and the State will within six (6) months after the receipt of the notice determine and notify the Joint Venturers of the terms and conditions upon which it is prepared to grant such a further mineral lease and the Joint Venturers shall for a period of three (3) months thereafter have the right to accept such a further mineral lease on those terms and conditions and the State will not for a period of two (2) years after notifying those terms and conditions grant or offer to grant a mineral lease of the leased area or of any part thereof for bauxite to any person other than the Joint Venturers on more favourable terms and conditions than those offered to the Joint Ven- turers.

The State will on the application of the Joint Ven- turers made at any time and from time to time after the granting of the mineral lease pursuant to subclause (1) of this Clause cause a mineral lease or mineral leases of such lands as may be applied for being lands comprised within any mineral claims or mineral leases under the Mining Act for bauxite that are held by or on behalf of the Joint Ven- turers for the purposes of their operations hereunder to be granted to the Joint Venturers (in such shares as they may agree) on the same conditions (except as herein otherwise provided as to the term thereof) that apply to the mineral lease granted pursuant to subclause (1) of this Clause and the lease or leases shall be so granted under and (to the extent that the Mining Act is not inconsistent with this Agreement) subject to that Act and may be renewed so as to be co-terminous with the mineral lease granted as aforesaid.

(7)

The Joint Venturers may from time to time sur- render to the State all or any portion or portions (of reas- onable size and shape) of the mineral lease or of any min- eral claim or mineral lease held by or on behalf of the Joint Venturers for the purposes of their operations hereunder subject to the Joint Venturers having complied with their obligations under Clauses 18, 20 and 21 in respect of that portion or those portions and upon the surrender of any

(8)

portion or portions of the mineral lease the rental there-

under shall abate in proportion to every square kilometre or residual part of a square kilometre of the mineral lease so surrendered, but there shall be no refund of rental cov- ering any part of a yearly rental already paid after becom- ing due.

1972.]

Alumina Refinery (Muchea) [No. 97.

Agreement.

(9)

The Joint Venturers shall not be required during the currency of this Agreement to comply with labour con- ditions imposed by or under the Mining Act with respect to the mineral lease or to any mineral claim or mineral lease held by or, with the consent of the Minister for Mines on behalf, of the Joint Venturers for the purposes of their operations hereunder but this subclause shall not apply to a mineral claim or mineral lease of privately owned land unless the owner has been advised by the Joint Venturers as to the effect of the terms of this Agreement insofar as they relate to mineral claims or mineral leases of pri- vately owned land and has expressly agreed in writing to the Joint Venturers exercising with respect to his land the right of noncompliance with those labour conditions.

(10) Where the Joint Venturers enter or have entered into an agreement with the owner of privately owned land for compensation arising out of their operations or pro- posed operations on the land, the Joint Venturers will within fourteen (14) days after the date thereof or (in the case of an agreement entered into before the date hereof) after the execution of this Agreement lodge a true copy of the agreement with the Minister for Mines provided that nothing contained in this subclause shall limit the operation of Section 157 of the Mining Act.

9. In the event of the Joint Venturers requiring to secure additional bauxite or bauxite reserves to satisfy their re-

Other Ore

Sources.

finery requirements the Joint Venturers may negotiate with persons holding bauxite reserves within the said State and may if agreement is reached with such persons purchase additional bauxite, bauxite reserves or both and refine bauxite obtained from those persons or those bauxite reserves under terms and conditions approved by the State.

10. (1) Notwithstanding anything contained or implied in this Agreement or in the mineral lease or in any other lease

Right to

Grant

Mining

Tenements

or any licence granted hereunder or pursuant hereto but

for Other

subject to subclause (2) of this Clause the State may grant

Minerals.

or register in favour of persons other than the Joint Ven- turers leases and other mining tenements in respect of minerals other than those the subject of the mineral lease and in respect of clay stone soil or gravel.

No. 97.] Alumina Refinery (Muchea)

[1972.

Agreement.

(2) Except to such persons who are the holders of an existing mining tenement or of rights of occupancy of a temporary reserve granted at the date hereof the State will not grant to or register in favour of persons other than the Joint Venturers any lease or mining tenement if the Minister for Mines determines that the grant or registration would or would be likely unduly to prejudice or interfere with the operations of the Joint Venturers in circumstances where the Joint Venturers would take all reasonable steps to avoid or minimise the prejudice or interference.

Lease of

bulk storage

11. (1) Except where the parties hereto, having regard to

railway

area and

the requirements of the Fremantle Port Authority and the

working

developments of the area generally, agree that some alterna-

area.

tive land be made available to the Joint Venturers on terms to be agreed by the parties, the State will lease to them at a rental and on terms to be agreed for a period or renewed period coterminous with the period or renewed period of the mineral lease all or part of the bulk storage area as the Joint Venturers may require together with such part of the railway working area as the Minister considers practicable.

Refinery Site.

Lease of

(2) The State shall on application by the Joint Ven- turers cause to be granted to them a lease of such area not being less than eight hundred and ten (810) hectares of Crown land within the area delineated green on the said plan marked "A" as may be reasonable having regard to the Joint Venturers' proposals as finally approved or deter- mined for the purposes of the construction and operation of the refinery together with a buffer zone therefor. Such lease shall contain such terms and conditions as are reason- able having regard to the Joint Venturers' requirements hereunder and in particular shall contain the following provisions

(a)

the term thereof (unless sooner determined) shall expire on the same date as that on which the term of the mineral lease or any renewal thereof terminates or is determined; and

(b)

the rental payable thereunder shall be one peppercorn per annum payable if and when demanded.

Easements

for Conveyor

12. The State will grant or cause to be granted to the

Systems or

Joint Venturers such easements or licences under over or

Pipeline.

through Crown land and land owned by the Fremantle Port Authority or any instrumentality of the State or of any municipality as may be necessary to give effect to the

1972.]

Alumina Refinery (Muchea) [No. 97.

Agreement.

proposals approved or determined under Clause 6 and enable the Joint Venturers to install maintain and operate conveyor systems and pipelines but only to the extent that any such easement or licence does not conflict or unreasonably inter- fere with existing or planned public works such as water supplies, sewerage, drainage, electricity supplies, roads, rail- ways or port works and operations.

13. The State will ensure that land the subject of the

Zoning.

mineral or any other lease or of any licence or easement granted under or pursuant to statute or this Agreement and land of any other tenure (including freehold) used or occupied by the Joint Venturers for any purpose contem- plated by this Agreement shall during the currency of this Agreement be and remain zoned so that the operations of the Joint Venturers hereunder may be undertaken and car- ried out thereon and shall not except as provided by this Agreement be made subject to any such restriction as to its use as would prevent or unreasonably hinder the Joint Venturers in carrying out the operations contemplated by this Agreement whether the restriction be by way of zoning regulation by-law or other exercise of statutory power by the State or any local or other authority.

No dis-

14. Except as provided by this Agreement the State will

crimination

not impose nor permit nor authorise any of its agencies

as to Ratesor Otherwise.

or instrumentalities or any local or other authority to impose any discriminatory taxes rates or charges of any nature on or in respect of the titles property or other assets products materials or services used or produced by or through the Joint Venturers in the conduct of their operations under this Agreement and the State will not take or permit any Dther authority of the State to take any other discriminatory action whether of a like nature to the foregoing or not that would deprive the Joint Venturers of the full enjoyment of ;he rights conferred by this Agreement.

15. (1) Subject to subclause (2) of this Clause the State

Rating.

will ensure that notwithstanding the provisions of any Act of the said State or anything done or purported to be done under any such Act the valuation of all lands (whether of a freehold or leasehold nature) held for the purposes of this Agreement shall for rating purposes be the unimproved value of those lands.

No. 97.] Alumina Refinery (Muchea)

[1972.

Agreement.

The provisions of subclause (1) of this clause do not apply to the land appurtenant to a permanent dwelling house occupied for the purposes of a permanent dwelling house nor land upon which there exist any improvements that are used in connection with a commercial undertaking not directly related to the production of bauxite or alumina.

(2)

Nothing in subelause (1) of this Clause affects the Joint Venturers' right of election pursuant to Section 533B of the Local Government Act, 1960.

(3)

Resumption

of Land.

16. The State agrees that having regard to the particular nature of the industry proposed to be established by the Joint Venturers under this Agreement and subject to the performance by the Joint Venturers of their obligations hereunder the State will not resume or suffer or permit to be resumed by any State instrumentality or by any local or other authority of the said State any estate, right, title or interest in land or improvements thereon held by or acquired by or on behalf of the Joint Venturers for the purpose of their operations under this Agreement the resumption of any of which would unreasonably impede the Joint Venturers' activities nor will the State create or grant or permit or suffer to be created or granted by an instrumentality or authority of the said State as aforesaid any road right of way or easement of any nature or kind whatsoever over or in respect thereof without the consent of the Joint Venturers first having been obtained which consent shall not be arbitrarily or unreasonably withheld.

and Improve-

Other Leases 17. The State will

ment of

Leases. (a) on application of the Joint Venturers made at any

time and from time to time grant or cause to be granted to the Joint Venturers such machinery and tailings leases and other leases rights mining tene- ments easements reserves and licences (including those for clay limestone stone gravel son timber and other minerals or materials) under the provisions of the Mining Act or the Land Act modified and amended as provided by Clause 4 as may be reason- able having regard to the requirements of the Joint Venturers under this Agreement;

1972.]

Alumina Refinery (Muchea) [No. 97.

Agreement.

(b)

18. (1) The Joint Venturers will not cut and remove from Conditions

any Crown land or State forest any forest produce in excess oginnia:d.

of those or that reasonably necessary to permit them to

conduct their operations under this Agreement and will by

means of contour ploughing, concrete or earth sills, diver-

sion channels, settling ponds, drainage or other approved

method as the case may require take all reasonable steps

to prevent damage by water runoff and for the purposes of

this subclause any such Crown land shall be deemed State

forest and the Conservator shall have jurisdiction over it

accordingly.

as and when required by the Joint Venturers (but without prejudice to the provisions hereof relating to the proposals referred to in Clause 6) consent where and to the extent that the Minister considers to. be reasonably justified to the Joint Venturers making improvements for the purposes of their operations hereunder on the land comprised in any lease granted by the State to the Joint Venturers pursuant to this Agreement but the Joint Venturers will except as otherwise provided herein also obtain any other consents legally required in relation to any such improvements.

(2) The Joint Venturers will from time to time as the occasion may require give to the Conservator of Forests on behalf of the State at least six (6) months prior notice of their intention to enter upon any area of State forest or Crown land and to cut and remove forest produce to displace overburden or otherwise affect the nature of the terrain and every such notice shall be accompanied by a map of the area setting out particulars and details of the proposed operation and the Conservator, unless he has good and sufficient reason to the contrary shall grant to the Joint Venturers any permit or licence for those purposes subject to the usual conditions but where the entry is for test purposes only the period of the notice required by this subclause is reduced to thirty (30) days.

(3) The Conservator of Forests may

(a)

before the Joint Venturers commence opera- tions in any area in respect of which notice has been given pursuant to subclause (2) of this Clause cut and remove therefrom any merchantable timber or other forest produce; and

No. 97.] Alumina Refinery (Muchea)

[1972.

Agreement.

(b)

direct the manner of and places for the disposal of forest produce and storing of overburden removed from or displaced in the area as may be reasonable in the circumstances and the Joint Venturers will give effect to every such direction.

The Forest Officer for the time being in charge of State forest within the area of the mineral lease may on reasonable grounds prohibit the use of roads or tracks thereon and may from time to time give directions regarding the routes by which ore or produce may be removed or taken through any part of the State forest and the Joint Venturers will give effect to every such direction but those directions shall not be given in respect of roads built by the Joint Venturers the Commissioner of Main Roads or any other statutory body other than the Forests Department.

(4)

Subject to any prohibition or direction given pursuant to subclause (4) of this Clause and so long as the use of any road under the control of the Conservator of Forests does not result in undue damage to the forest or forest produce the Joint Venturers may use such roads as they may require and any resulting damage to Forests Department roads and tracks will be made good by the Joint Venturers to the satisfaction of the Conservator of Forests.

(5)

The Joint Venturers will in their operations under this Agreement comply with and observe the provisions of the Bush Fires Act, 1954, and will take all such necessary precautions as may be required by the Forest Officer to prevent the occurrence or spread of fire within or adjacent to the area of the mineral lease.

(6)

(7) The Joint Venturers will from time to time at their own expense take such adequate measures as may reasonably be required by the Conservator of Forests for

(a)

the progressive restoration and reafforestation of the area disturbed to be carried out in a manner which would fit its inclusion in a National Park;

(b) the prevention of soil erosion;

(c)

the prevention of the formation of deep water pools and other hazards on the area that has been disturbed,

1972.]

Alumina Refinery (Muchea) [No. 97.

Agreement.

and in meeting those obligations the Joint Venturers will comply with the reasonable requirements of any relevant local authority but the Joint Venturers shall not be required to restore any land to its original contour.

(8) The Joint Venturers will as soon as practical after the date hereof and at their own expense and in consulta- tion with the Conservator establish a trial area or areas not exceeding in the aggregate two (2) hectares for the purpose of investigating the most practical and effective methods of the revegetation of mined areas.

(9) The provisions of this Clause shall not apply to the refinery site, the bulk storage area or the red mud disposal area referred to in Clause 30 (1).

19. (1) The Joint Venturers will as from the commence- gooTit)gnsa-

ment of mining operations or from the first day of January, Conservator.

1977, whichever first occurs pay to the Conservator of Forests

on behalf of the State compensation at the rate (subject to

the succeeding provisions of this Clause) of six hundred and

seventeen dollars ($617) per hectare for the area of Crown

land of which the vegetation has been destroyed by or in

the course of the Joint Venturers' mining operations.

(2) The Joint Venturers will make payments pursuant to subclause (1) of this Clause in advance in the month of January of each year on the basis of the area of Crown land on which it is proposed to destroy the vegetation during the ensuing year and any necessary adjustments in respect of that payment and the area on which the vegetation was in fact destroyed will be made in the month of January next following.

(3) The rate of compensation mentioned in subclause (1) of this Clause is determined having regard to the cost as at the first day of January, 1972, to the Conservator of Forests of the acquisition of one (1) hectare of suitable land and of planting it with trees together with the estimated loss of royalty subsidy or grant and the increased costs of management in respect of each hectare of growing timber so destroyed and the rate shall accordingly be increased or decreased as from the termination of each period of five (5) years calculated from the date of commencement of mining or from the first day of January, 1977, whichever

No. 97.] Alumina Refinery (Muehea)

[1972.

Agreement.

first occurs having regard to any increase or decrease in the Conservator of Forests' cost and the loss of royalty subsidy or grant aforesaid that has occurred since the date of this Agreement or the date of the immediately previous review as the case may be.

Mining on

Private

20. (1) The Joint Venturers will not commence any mining

Lands.

or related operations for the purposes of this Agreement on privately owned land unless and until they have entered into a written agreement with the proprietor of the land for the purpose of providing for adequate restoration of the land after mining and that agreement has been approved by the Minister.

(2) The Joint Venturers will by means of contour ploughing, concrete or earth sills, diversion channels, settling ponds and drainage or other approved method as the case may require take all reasonable steps to prevent damage being caused to privately owned land by water runoff and will by every reasonable means prevent soil erosion on those lands.

(3) The Joint Venturers will within thirty (30) days after ceasing to mine any area of privately owned land commence to restore the mined area in accordance with this Clause and continue to restore it until the restoration is completed to the satisfaction of the Minister who in con- sidering any matter relating to such restoration shall have regard to the reasonable requirements of the relevant local authority.

(4)

Notwithstanding any rule of law or provision of any agreement referred to in subclause (1) of this Clause to the contrary a reference to mining or mining operations in any such agreement shall be read and construed as including the restoration of any mined area and for that purpose and for the purposes of subclause (3) of this Clause the term "restoration" means the battering and smoothing of pit walls, the spreading of previously removed topsoil, the ground ripping and planting of vegetation of or in a mined area and the verb "to restore" has a corresponding meaning.

(5) Notwithstanding the provisions of subclause (3) of this Clause where the owner of the privately owned land satisfies the Minister that the excavation of any mined area is capable (with or without modification) of being

1972.         Alumina Refinery (Muchea) [No. 97.

Agreement.

used and should be used for the purpose of water storage or other approved purpose the Minister will by notice to the Joint Venturers relieve them of the obligation imposed by that subclause with respect to that particular mined area.

(6) For the purposes of subclauses (2), (3) and (5) of

this Clause, a reference to privately owned land shall be

construed as including land owned by the Joint Venturers.

21. (1) The Joint Venturers recognise the necessity of

Restrictions

on the Use

avoiding any deleterious effect on catchment areas and

of Catch-

ment Areas.

water emanating from catchment areas that are subject to mining or other operations by them and will collaborate with the State in conducting and the State will conduct an experimental programme to study the effect of mining operations and restoration procedures on the quantity and quality of surface and underground water in such areas.

(2)

The State will prepare detailed plans for the con- duct of the experimental programme mentioned in sub- clause (1) of this Clause and effect shall not be given to those plans or any of them until they have been mutually agreed upon by the parties.

(3) The experimental programme provided by this Clause shall be commenced after agreement to the plans for its conduct as provided by subclause (2) of this Clause and shall be continued over a period of ten (10) years and the Joint Venturers will pay the cost not exceeding thirty thousand dollars ($30,000) of establishing the programme and a proportion not exceeding one half of the annual operating costs of the programme to be agreed by the parties and the State may on terms to be then agreed by the parties extend the conduct of the experimental programme for such further period or periods as it considers necessary to complete the study.

(4)

The Joint Venturers may prior to the completion of the experimental programme provided by this Clause mine such of the areas outside, but adjacent to, the min- ing area in respect of which they have secured private min- eral rights but not exceeding in any one year of the first ten (10) years of the programme such area in the aggregate as the parties may from time to time agree.

No. 97.] Alumina Refinery (Muchea)

[1972.

Agreement.

The State having regard to the results of the experi- mental programme provided by this Clause or such other relevant information as may from time to time be avail- able to it or both may in its discretion determine reason- able measures to be taken by the Joint Venturers at their expense in the conduct of any mining operations or restor- ation procedures and the Joint Venturers will give effect to every such determination.

(5)

The Joint Venturers will not mine or make any use whatever of any Hart of the land coloured red in the plan marked "C" referred to in the interpretation "mining area" being part of the land in the Helena River catchment area until such time as the State notifies the Joint Venturers that it approves of their mining or otherwise making use of that land or part of it and then only to the extent and subject to any conditions stipulated in the notice.

(6)

Products to

be Trans-

22. Subject to the by-laws made under the Government

ported by

Railways Act, 1904, insofar as those by-laws are not incon-

Rail.

sistent with this Agreement, the Joint Venturers will con- sign at their own risk, and the State will cause the Rail- ways Commission to transport, by rail

(a)

all the Joint Venturers' requirements of bauxite to the refinery from sites within the mining area that the Commission is prepared to serve;

(b)

all alumina produced from the refinery to the bulk storage area;

(c)

all the Joint Venturers' requirements of caustic soda and fuel oil from the bulk storage area to the refinery; and

(d)

such of the Joint Venturers' requirements of lime which the parties agree are practicable to transport by rail.

Construction

23. (1) The Joint Venturers will by notice to the State

of Railways.

given within two (2) years after the date on which the last of the proposals referred to in Clause 6 is approved or determined require the State to cause the Railways Commis- sion at the expense of the Joint Venturers to

(a)

provide either by construction of a separate railway or by conversion to dual gauge and upgrading of the existing Midland Railway, a standard gauge railway extending from and including Millendon Junction to the refinery site;

1972.]

Alumina Refinery (Muchea) [No. 97.

Agreement.

(b)

construct a standard gauge railway from about mileage 20 on the double dual gauge line of the Millendon Junction to Avon yard section of the Western Australian Government Railways to connect to the Midland Railway at about mileage 20; and

(c)

construct a standard gauge railway from about mileage 29 on the double dual gauge railway of the said Millendon Junction to Avon yard section to a crushing plant site or sites to be agreed by the parties and/or to a suitable loading siding or sidings;

and the Joint Venturers may by further notice to the State given at any time after that hereinbef ore referred to in this subclause require that the Railways Commission at the expense of the Joint Venturers construct to any site at which a loading siding is proposed to be located an extension or further extension of the railway referred to in paragraph (c) of this subclause or of any previous extension of that railway and a suitable loading siding or sidings.

The State will on receipt of any notice given pursuant to subclause (1) of this Clause and with all reasonable expedition and in any event within two (2) years after the receipt of the notice cause the Railways Commission to execute the railway construction and or upgrading or both required by the notice.

(2)

The construction and upgrading required under this Clause shall be carried out to the specifications of the Railways Commission but in deciding on any such specifica- tions the Railways Commission shall have due regard to the requirements of the Joint Venturers and consult them as to those requirements.

(3)

The State will maintain any railway upgraded or constructed pursuant to this Clause (other than for sidings) and at its own expense maintain and service all locomotives brakevans and wagons necessary and used for the purposes of this Agreement and the Joint Venturers will at their expense maintain all sidings.

(4)

(5) The provisions of Section 96 of the Public Works Act, 1902, do not apply to any railway constructed pursuant to this Agreement.

No. 97.] Alumina Refinery (Muchea)

[1972.

Agreement.

Require-

ment in

24.

The Joint Venturers will not less than eighteen (18)

Rail Trans-

months before their first requiring the use of rail transport

port to be

Notified.

notify the Railways Commission of their requirements in that regard (including expected or provisional annual tonne- ages to be hauled) in sufficient detail to the satisfaction of the Railways Commission to enable it to make arrangements to meet those requirements and the Joint Venturers shall give such prior notice of any change in their requirements as is reasonable in the circumstances.

Ancillary

25.

Except as otherwise provided in Clause 23 the Joint Venturers will at their own expense provide and main- tain all such sidings shunting loops spurs and other connections as may be required solely for their own opera- tions under this Agreement and will provide and maintain loading and unloading facilities sufficient to meet train operating requirements of the Railways Commission and terminal equipment (including weighing devices) together with personnel sufficient to ensure the proper operation and rate of operation of the loading and unloading facilities and terminal equipment.

Rail

Facilities.

Provision

of Wagons. including spare wagons (of a design and to a specification

26. (1) The Joint Venturers will provide sufficient wagons

approved by the Railways Commission) to carry their require- ments of bauxite caustic soda fuel oil and lime (if any) to the refinery and alumina to the bulk storage area and will if so required by the Railways Commission provide the necessary replacements therefor other than such as have been made necessary by the wilful misconduct of the Rail- ways Commission. The Railways Commission shall not (except in the case of emergency and then only to the extent that the Joint Venturers' operations are not thereby affected) use for any purpose other than the foregoing wagons provided pursuant to this subclause and shall clean and render suitable for use by the Joint Venturers any wagons so used.

(2) The Joint Venturers will ensure that all wagons are properly trimmed and are loaded to the prescribed tonneages.

Freight

27. The Joint Venturers will pay freight in respect of all

Rates.

bauxite caustic soda fuel oil lime and alumina carried in trains operated by the Railways Commission pursuant to this Agreement at the appropriate freight rate set out in

9. The Environmental Protection Authority considers it appropriate that the bauxite from areas south of the Avon Valley will be transported by rail under Clause 22 of the Agreement and that the main high- ways will thereby be largely relieved of the competitive use by heavy transport.

10. Wherever in the Agreement the terms "environ- ment" and "pollution" occur, they shall be interpreted as in the Environmental Protection Act, 1971.

No. 97.] Alumina Refinery (Muchea)

[1972.

Agreement.

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 said THE HONOURABLE JOHN TRE- ZISE TONKIN, M.L.A., in the presence of

The Common Seal of HAN- COCK PROSPECTING PTY. LTD. was hereto affixed by the Governing Director LANGLEY GEORGE HAN- COCK in accordance with the Articles of Association

The Common Seal of WRIGHT PROSPECTING PTY. LTD. was hereto affixed by the Governing Director ERNEST ARCHIBALD MAY- NARD WRIGHT in accord- ance with the Articles of As- sociation

The Common Seal of METALS MINIERE LIMITED was hereunto affixed by the Authority of the Directors in the presence of

The Common Seal of PAC- MINEX (OPERATIONS) PTY. LIMITED was hereunto affixed in the presence of-

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