Irrigation (Dunham River) Agreement Act Amendment Act 1976 (WA)

WESTERN AUSTRALIA.

IRRIGATION (DUNHAM

RIVER) AGREEMENT.

No. 80 of 1976.

AN ACT to amend the Irrigation (Dunham River)

Agreement Act, 1968.

[Assented to 18th October, 1976.]

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. (1) This Act may be cited as the Irrigation	Short title
and

(Dunham River) Agreement Act Amendment Act,

citation.

1976.

Act No. 60

(2) In this Act the Irrigation (Dunham River)

Agreement Act, 1968 is referred to as the principal

Act.

of 1968.

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Agreement.

(3) The principal Act as amended by this Act may be cited as the Irrigation (Dunham River) Agreement Act, 1968-1976.

Section 2

amended. 2. Section 2 of the principal Act is amended

(a)	by adding before the word "Schedule", in line two of the interpretation "the Agree- ment", the word "First";
(b)	by deleting the passage "time.", in line seven of the interpretation "the Agreement" and substituting the passage "time, and, except in section three of this Act, also includes the Agreement as altered by the Variation Agreement; "; and
(c)	by adding at the end thereof the following interpretation

"the Variation Agreement" means the Variation Agreement a copy of which is set out in the Second Schedule to this Act. .

Section 3A

added.	3. The principal Act is amended by adding after section 3 the following section-
Approval

and	3A. The Variation Agreement is approved
ratification

of the

and ratified. .

Variation

Agreement.

Schedule

amended. 4. The Schedule to the principal Act is amended by deleting the heading "SCHEDULE." and substituting the following headings

THE SCHEDULES.

FIRST SCHEDULE. .

Second

Schedule 5. The principal Act is amended by adding at

added. the end thereof the following Schedule

SECOND SCHEDULE.

THIS AGREEMENT is made the twenty-fifth day of August One thousand nine hundred and seventy six BETWEEN the HONOURABLE SIR CHARLES WALTER MICHAEL COURT, O.B.E., M.L.A., Premier of the State of Western Australia

1976.] Irrigation (Dunham River) [No. 80.

Agreement.

acting for and on behalf of the said State and its instrumentalities (hereinafter referred to as "the State") of the one part and GODDARD OF AUSTRALIA PTY. LTD. a company incorporated under the provisions of the Companies Ordinance Act, 1962 of the Australian Capital Territory the registered office of which in the State of Western Australia is at Law Chambers Cathedral Avenue Perth (hereinafter called "the Developer" which expression shall include the successors and assigns of the Developer including where the context so admits the transferees and assignees of the Developer).

WHEREAS:

(a)	The parties are the parties to an agreement between them defined in section 2 of the Irrigation (Dunham River) Agreement Act, 1968 of the State of Western Australia (which agreement is hereinafter referred to as "the principal agreement").
(b)	The Developer has carried out certain works under the provisions of the principal agreement to the satisfaction of the State.
(c)	The Developer has as a result of its experience in connection with the works carried out pursuant to the principal agreement in the pilot area concluded that the catchment area of Arthur Creek is incapable of providing sufficient water for irrigation of all farms as envisaged under the principal agreement.

(d) The parties have therefore agreed:

(i)    That the Developer's obligations in respect of Phase I of the principal agreement shall

be varied as provided in this Agreement

and that Phase 2 of the principal agreement being considered impracticable shall not be proceeded with.

(ii)    That Crown Grants will issue to holdings known as "farm 7" and "farm 8" subject to certain restrictions referred to hereunder.

(iii)    That provision be made for the future utilisation of the Arthur Creek Dam and the distribution system during Phase I for the benefit of certain farms which have already been improved and developed by the Developer pursuant to the principal agreement.

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Agreement.

(iv)    That provision be made for the issue of new special leases in respect of the dry land holdings (as hereinafter defined) known as "farm 2", "farm 9" and "farm 10" respectively to the Developer.

(v)  That the Developer may transfer those holdings known as "farm 1", "farm 3", "farm 4", "farm 5" and "farm 6" to WEE COUNTRY DEVELOPMENT CORP a corporation incorporated in the United States of America the registered office of which in the State of Western Australia is at Law Chambers, Cathedral Square, Perth.

(vi)    That provision be made for the Developer to assign part of its interest in the principal agreement to Arthur Creek Irrigation Company Pty. Ltd. a company incorporated under the Companies Act of the State of Western Australia and having its registered office situate at care of Messrs. Parker & Parker of 162-164 Saint George's Terrace Perth.

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 purposes of the principal agreement.

2. The provisions of this Agreement shall not come into operation unless and until a Bill to approve and ratify this Agreement is passed by the legislature of the State and comes into operation as an Act.

3. The principal agreement is hereby varied as follows:

(1)

by substituting for the definition of "Phase I" in

clause 1, the following definition:

"the period from the commencement date until the tenure of the lessee for the time being under both the Arthur Creek dam site lease and the special lease or special leases of the dry land holdings (as hereinafter defined) and any renewals thereof has terminated;"

(2)

by deleting sub-clauses (4), (5) and (6) of clause 5;

(3)

by adding after clause 6 two new clauses 6A and

6B as follows:

Amendment

of 6A. Notwithstanding anything contained

boundaries	in this Agreement Special Lease No. 3116/4529
of
f,Warin 8"	issued pursuant to clause 6 hereof in respect of

1976. ] Irrigation (Dunham River) [No. 80.

Agreement.

the holding known as "farm 8" shall be deemed to include the area hachured green on the plan marked "E" (initialled by or on behalf of the parties hereto for the purposes of identification) and the provisions of section 18 of the Land Act shall be deemed to apply.

6B. (1) The Developer shall, not later than the 31st day of December, 1976:	Dry land
Holdings.

(a)

surrender to the State all its right title and interest in Special Leases Nos. 3116/4523, 3116/4530 and 3116/4531 respectively being special leases in respect of holdings known as "farm 2", "farm 9", and "farm 10" respectively (hereinafter collectively referred to as "the dry land holdings"),

(b)

enter into a special lease or special leases of the dry land holdings in the form mutatis nzutandis of the Twenty-First Schedule to the Land Act at a peppercorn rental for a term co-terminous with the term of the Arthur Creek dam site lease and containing rights to renew the term corresponding to such rights in the Arthur Creek dam site lease and such special lease or special leases may contain all or any of the modifications amendments or variations set out in sub-clause (2) of clause 6 of this Agreement.

(2) The Developer shall in a proper and workmanlike manner and with the most appropriate materials therefor construct or cause to be constructed to the satisfaction of the Minister, cattle-proof fencing on the boundaries of the dry land holdings in the manner following namely—.

(a)	construction of such fencing shall be completed in respect of one half of the said boundaries not later than the 31st day of December, 1981,
(b)	notwithstanding the contents of paragraph (a) of this sub-clause, construction of such fencing shall be completed in respect of all the said boundaries not later than the 31st day of December, 1986 or at

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Agreement.

such date as stock is placed on the dry land holdings whichever date is the earlier.;

(4) as to clause 7-

(a)	by substituting for the passage "the pilot area (including any part thereof the subject of a special lease)" in lines 6 and 7 of sub-paragraph (i) of paragraph (a), the words "the Arthur Creek dam site and that part of the pilot area comprising the dry land holdings";
(b)	by deleting sub-paragraph (ii) of paragraph (a);
(c)	by deleting paragraph (b); and
(d)	by deleting the words "the pilot area and" in lines 4 and 5 of paragraph (c).;

(5) by substituting for sub-clause (3) of clause 8 the

following sub-clause-

(3) The Developer may transfer to Wee Country Development Corp. the holdings known as "farm 1", "farm 3", "farm 4", "farm 5" and "farm 6".;

(6) by adding after clause 8 a new clause 8A as follows:

Issue of	8A. (1) The Developer shall with respect
Crown

Grants to	to the holdings known as "farm '7" and "farm
"farm 7"
and "farm	8" being all those pieces of land respectively
8".	described in Special Lease No. 3116/4528 and Special Lease No. 3116/4529 (as amended by clause 6A hereof) be deemed to have complied with the provisions of subclause (1) of clause 8 of this Agreement and subject to complying with the provisions of paragraph (ii) of sub-clause (2) of clause 8 shall be deemed to have complied with the Developer's obligations pursuant to that sub-clause and shall be entitled to apply for and obtain from the State Crown Grants in respect of "farm 7" and "farm 8" subject to the condition that the said holdings or any part thereof shall not without the consent of the Governor first had and obtained be used for an industry for or incidental to the processing of any crops which from time to time are or may be grown on the holdings or any industry allied thereto.

1976.1 Irrigation (Dunham River) [No. 80.

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(2) Notwithstanding the issue to the Developer of Crown Grants in respect of "farm 7" and "farm 8" pursuant to sub-clause (1) of this clause the Developer shall not sell transfer assign lease or otherwise part with the possession of "farm 7" or "farm 8" until the Minister has issued to the Developer the certificate referred to in clause 14 hereof, PROVIDED HOWEVER that the Developer may, prior to the issue of the said certificate, lease "farm 7" and "farm 8" or either of them for any term not exceeding three (3) years and shall within twenty one (21) days of the date upon which any such lease is entered into, notify the State of the name and address of the lessee thereunder. ;

(7) as to clause 9-

(a)	by deleting the passage "(subject however to the provisions of clause 12 of this Agreement)" in lines 6 and 7 of sub-clause (1);
(b)	by inserting after the word "clause" in line 2 of sub-clause (2) the words "without the consent of the Minister";
(c)	by substituting for paragraphs (i), (ii) and (iii) of sub-clause (2) the following three paragraphs:

(i)  irrigating "farm 1", "farm 3", "farm 4", "farm 5", "farm 6", "farm 7" and "farm 8" for agricultural purposes,

(ii)  watering stock depasturing on those holdings and the dry land holdings, and

(iii)  for domestic purposes within the holdings referred to in paragraph (ii) of this sub-clause, and; and

(d) by substituting for the passage "area or the Dunham Area." in line 4 of paragraph (iv) of sub-clause (2) the passage "area.";

(8) by substituting for clause 10 a new clause 10 as

follows:

10. The Developer shall, subject to the obligation

provisions of this Agreement, during the term de veloper

of the Arthur Creek dam site lease and anynnuy

renewals thereof make available to the owner	e
or occupier of any holding (or owners or

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occupiers of any holdings as the case may be) within the pilot area, a supply of water for the purposes referred to in sub-clause (2) of clause 9 hereof in such reasonable quantities and at such reasonable times and at such reasonable charges as are determined by the Developer. ;

(9)

by deleting clauses 11, 12, 13, 15, 16, 17, 18, 19, 20,

21 and 22 of the principal agreement;

(10) by substituting for clause 14 a new clause 14 as

follows:

Developer to	14. The Developer shall manage or cause
Prove

economic	to be managed "farm 7" and "farm 8" in a
capacity of
holdings in	proper and skilful manner and according to
pilot area.	the most approved methods and when the Developer demonstrates and proves to the satisfaction of the Minister the practicability of all holdings within the pilot area (other than the dry land holdings) being farmed for the fattening and marketing of cattle and for the growing of grain sorghum and other crops with results that are economically sound to the respective proprietors of the holdings then the Minister will so certify to the Developer. ;

(11) by adding after clause 14 a new clause 14A as

follows:

Phase 2

not	14A. The Developer having given notice to the State of its intention not to proceed with Phase 2 of this Agreement it is hereby agreed and declared by the parties hereto that Phase 2 of this Agreement will not proceed and any rights or obligations to which the Developer would have been entitled or subject in respect of Phase 2 are hereby extinguished. ;
Proceeding.

(12) by deleting the words "Dunham dam site and Dunham Area" in line three of paragraph (a) of clause 23;

(13) by deleting the words "Dunham Area and Dunham

dam site" in line 29 of clause 24;

(14) as to clause 25-

(a) by deleting the passage in lines 2 to 7 inclusive of paragraph (a) of sub-clause (1) "and the rights of the Developer or any transferee or assignee of the Developer or of any mortgagee to in or under any lease

1976. ] Irrigation (Dunham River) [No. 80.

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licence or right granted hereunder or pursuant hereto (subject however to the provisions of sub-clause (3) of this clause)";

(b)	by deleting paragraph (c) of sub-clause (1);
(c)	by deleting the words "and Dunham dam site" in lines 2 and 3 of paragraph (i) of sub-clause (2); and

(d) by deleting sub-clause (3);

(15) by adding after clause 25 a new clause 25A as

follows:

25A. If the Developer assigns its right title and interest in any part of this Agreement	Effect of
default
after
pursuant to the provisions of clause 26 hereof,	assignment.
the provisions of clauses 24 and 25 hereof shall:

(a) (where the assignee does any act or thing which would entitle the State to determine this Agreement under clause 24 hereof) mutatis

mutandis, apply to the assignee in

respect of that part of this Agreement so assigned to the assignee, but shall not apply to the Developer in respect of that part of this Agreement (if any) not so assigned by the Developer (the Developer not being in default thereunder);

(b) (where the Developer does any act or thing which would entitle the State to determine this Agreement under clause 24 hereof) mutatis

mutandis, apply to the Developer

in respect of that part of this Agreement not so assigned by the Developer, but shall not apply to the assignee in respect of that part of this Agreement so assigned to the assignee (the assignee not being in default thereunder). ;

(16) by substituting for clause 26 a new clause 26 as

follows:

26. (1) The Developer shall not, without Assignment.

the consent of the Minister first had and obtained, transfer or assign to any person its right title and interest in any part of this Agreement.

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(2) Any consent given by the Minister pursuant to this clause may be on such conditions as the Minister thinks fit. ;

and

(17) by substituting for sub-clause (1) of clause 27 the

following new sub-clause:

(1) The Developer will indemnify and keep indemnified the State and its servants agents and contractors in respect of all actions suits claims demands or costs of third parties arising out of or in connection with any work carried out by the Developer in connection with the maintenance or use by the Developer or its servants agents or contractors of the Developer's improvements works or services the subject of this Agreement or the plant or equipment used in connection therewith.

IN WITNESS whereof these presents have been executed by or on behalf of the parties hereto the day and year first hereinbefore written.

SIGNED by THE HONOUR-

ABLE SIR CHARLES WALTER

MICHAEL COURT, O.B.E.

CHARLES COURT

M.L.A. in the presence of:

K. A. RIDGE,

MINISTER FOR LANDS.

THE COMMON SEAL of

GODDARD OF AUSTRALIA

PTY. LTD. was hereunto affixed

by the Authority of the

(C.S.)

Directors and in the presence

of:

H. E. PETERSON,

Director.

J. G. ORR, Secretary.