Victorian Current Acts Victorian Current ActsSchedule 1
AGREEMENT
THIS AGREEMENT is made the twenty-second day of November One thousand nine hundred and sixty-one BETWEEN The Honorable WILFRED JOHN MIBUS in his capacity as Minister of Mines for the time being of the State of Victoria for and on behalf of THE STATE OF VICTORIA of the one part and ALCOA OF AUSTRALIA PROPRIETARY LIMITED a Company incorporated under the provisions of the Companies Act 1958 of the said State the registered office of which is situate at 120 William Street Melbourne in the said State of the other part.
Recitals
WHEREAS:
I. The Company is desirous of establishing in the State of Victoria the industries of reducing the ore of aluminium to its basic metal and of manufacturing alloying and fabricating the metal so produced into articles of commerce.
II. In view of the large capital expenditure involved in the establishment of those industries the Company desires to ensure that certain rights incidental to the establishment and carrying on of those industries will be assured to it.
III. The State is satisfied that a large capital expenditure is necessary to establish the said industries satisfactorily and that it is desirable in the interests of the State that subject to the provisions hereof the Company should be granted the rights hereinafter expressed.
NOW IT IS HEREBY AGREED as follows—
In this Agreement unless inconsistent with the context or subject matter—
"the Act" means the Mines Act 1958 of the Parliament of Victoria;
"base index number" means the index number for Melbourne for the December quarter of the year One thousand nine hundred and sixty-one shown in the Consumer Price Index published by the Commonwealth Statistician;
"Chief Mining Inspector" means the person for the time being holding the office of Chief Mining Inspector in the Department of Mines or performing the duties of that office;
"Company" means the said Alcoa of Australia Proprietary Limited and includes its assigns;
"current index number" in respect of any year means the average index number for Melbourne for the whole of that year as determined by the Commonwealth Statistician on the basis of the said Consumer Price Index;
"date of commencement" means the date upon which this Agreement comes into operation by virtue of the provisions of clause 5 hereof;
"former forest area" means the parts of the leased area and the reserve area which are surrounded by a green verge and marked "A" and "B" respectively on the plan annexed hereto and contain (subject to survey) 1331 acres more or less;
"leased area" means the land (excluding the prior land the power station site and the purchased land) within the boundaries shown on the plan annexed hereto by a red verge and which together with the power station site contains (subject to survey) 10,865 acres more or less;
"Minister" means the responsible Minister of the Crown for the time being administering the Act;
"Power station site" means such part (not exceeding one hundred acres) of the land within the boundaries shown on the plan annexed hereto by a red verge as the Company selects as the site of the power generating station referred to in clause 15 hereof;
"prior land" means the land coloured purple on the plan annexed hereto containing (subject to survey) 99 acres more or less;
"purchased land" means the land described in sub‑clause (3) of clause 20 hereof;
"regulations" means the regulations for the time being in force under the Act;
"reserve area" means the land within the boundaries shown on the plan annexed hereto by a blue verge containing (subject to survey) 7,500 acres more or less;
"Secretary" means the person for the time being holding the office of Secretary for Mines or performing the duties of that office;
"State" means the State of Victoria;
"term of this Agreement" means the period specified in clause 6 hereof as extended from time to time pursuant to clause 7 hereof;
"year" means a period of twelve calendar months commencing on the date of commencement or an anniversary thereof.
(1) In this Agreement unless inconsistent with the context or subject-matter references to any Act (including references to the Mines Act 1958 by use of the expression "the Act") shall include all amendments and re-enactments thereof for the time being in force and all supplemental legislation for the time being in force whether by regulation rule proclamation or order made or continuing under that Act or any amendment or re-enactment thereof.
(2) The headings and sidenotes shall not affect the interpretation of this Agreement.
This Agreement shall not be of any force or effect until it has been ratified validated approved and otherwise given effect by an Act of the Parliament of Victoria.
If the Company assigns all or any of its rights under this Agreement the following provisions shall have effect—
(a) the assignee shall by virtue of the assignment and the Act referred to in the last preceding clause be subject to the relevant obligations and conditions imposed upon the Company by this Agreement so far as they remain in force and capable of taking effect; and
(b) if the Minister so stipulates in giving his consent to the assignment the Company shall remain responsible to the State for the performance of all its obligations under this Agreement as if no assignment had been made.
(1) This Agreement shall come into operation upon the first day of the calendar month following the date upon which the later of the following events occurs—
(a) the coming into operation of the Act referred to in Clause 3 hereof;
(b) the completion of the surrender of mineral leases numbered 7613, 7614, 7618, 7620, 7626, 7627, 7628 and 7629 in the records of the Department of Mines of the State and the abandonment of mineral lease applications numbered 7615, 7616, 7617, 7619, 7621, 7622, 7625, 7630, 7655, 7656, 7658, 7667 to 7676 (both inclusive), 7686, 7783, 7792, 7889 to 7897 (both inclusive), 7930, 7931, 7932 and 8023 in the said records.
(2) The certificate of the Minister as to the date upon which the surrender and abandonment as aforesaid was completed shall be conclusive.
Subject to the provisions hereof this Agreement shall remain in force for the period of fifty years from the date of commencement.
(1) Subject to compliance by the Company with the terms and conditions of this Agreement the Company shall upon written application made by it to the Minister not later than six months prior to the expiration of the period specified in the last preceding clause be entitled to an extension of that period for such period not exceeding fifty years as is specified in its application.
(2) If the Minister so determines an extension pursuant to the last preceding sub-clause shall be subject to the variation of the terms and conditions of this Agreement (except clauses 9, 10, 18, 19, 22 to 27 (both inclusive) and sub-clause (2) of clause 14 hereof) so as to make them consistent with the covenants (other than labour covenants) conditions and provisos prescribed by the regulations for leases for the purpose of mining for coal on Crown land.
(3) If—
(a) the Company not later than nine months prior to the expiration of the period of any extension pursuant to sub-clause (1) of this clause makes written application to the Minister for the further extension of the term of this Agreement for a period not exceeding fifty years specified in the application; and
(b) at the date of receipt by the Minister of that application there is no existing breach or non-observance by the Company of the terms and conditions of this Agreement
the Minister shall within six months after the last mentioned date notify the Company in writing of the terms and conditions upon which the State is prepared to grant the further extension sought by the Company.
(4) The Company may within three months after notification by the Minister pursuant to the last preceding sub-clause accept by notice in writing given to the Minister the further extension as aforesaid upon the terms and conditions expressed in the notification by the Minister and shall thereupon become entitled to such further extension. In the event of the Company failing so to accept such further extension the State shall not within the period of two years after the expiration of the term of this Agreement grant or offer to any other person a lease for the purpose of mining for coal on or in the leased area on terms and conditions more favourable than those expressed in the said notification by the Minister.
(5) No extension or purported extension pursuant to this clause shall be of any force or effect unless evidenced by an instrument executed by the Minister on behalf of the State specifying the period of extension and any variations of the provisions hereof determined pursuant to this clause.
If on or after the expiration of the first nine years or (if pursuant to clause 15 hereof that period is extended) twelve years of the term of this Agreement the Company has ceased or ceases to use coal from the leased area for the generation of electric power in the power generating station referred to in clause 15 hereof the Minister at any time thereafter may by an instrument under his hand vary the provisions of this Agreement in such manner as he deems expedient in the interests of the State but so that the Company shall not be in a less favourable position than if it held leases for the purpose of mining for coal on the leased area in accordance with the provisions of the Act.
(1) During the term of this Agreement the Company shall subject to the provisions of sub-clauses (2) and (4) of this clause have—
(a) the exclusive right to search work mine for win carry away and dispose of for the use and benefit of the Company all coal on or in the leased area; and
(b) for the purposes aforesaid the rights on the leased area—
(i) to cut and construct races drains dams reservoirs roads and tramways, to divert control and use water and to do any other works incidental to the method of mining or winning coal from time to time adopted by the Company; and
(ii) to erect alter reconstruct remove or destroy offices buildings dwellings and machinery.
(2) The rights specified in the last preceding sub-clause shall be subject to the reservations following—
(a) the reservation to the State and members of the public of the free right at all times of ingress egress and regress (with or without vehicles and animals) over and along the surface of any part of the leased area not being worked or used for the purposes aforesaid; and
(b) the reservation to the State and all persons duly licensed in that behalf of the right to take carry away and use any sand stone gravel clay or earth or timber live or dead on in or under any part of the leased area not being worked or used for the purposes aforesaid.
(3) The following provisions shall apply to and in respect of the reserve area—
(a) during the first five years of the term of this Agreement the Company shall carry out on the reserve area a program of exploratory drilling;
(b) the Company may from time to time within the first five and one-half years of the said term by written notice given to the State elect to have the terms and conditions of this Agreement applied to the reserve area or portion thereof specified in the notice;
(c) if the Company so elects then as from the commencement of the next following half-yearly period of the term of this Agreement the expression "leased area" herein shall unless inconsistent with the context or subject-matter include (as the case requires) the reserve area or portion thereof specified in the Company's notice of election but so that—
(i) coal won from the reserve area may be sold or used by the Company for the generation of electric power or in connexion with the industries referred to in Recital I hereof but for no other purpose;
(ii) if coal so won is used for any purpose other than as specified in the last preceding sub‑paragraph the Minister may at any time thereafter by an instrument under his hand vary the provisions of this Agreement so far as it affects the reserve area in the manner provided in clause 8 hereof.
(4) The boundaries of the former forest area the leased area the prior land the purchased land the reserve area and the power station site shall be as determined by survey to be made as soon as practicable at the expense of the Company by a licensed surveyor within the meaning of the Land Surveyors Act 1958 and the Company shall as soon as possible deliver to the Secretary a copy of the plan or plans of survey and field notes thereof. The copy plan or plans so delivered shall subject to the provisions of clauses 19 and 20 hereof be conclusive evidence of the said boundaries.
(1) Subject to the succeeding provisions of this clause the Company shall during the term of this Agreement pay to the State in each year—
(a) a rent calculated at the rate of two shillings and sixpence for each acre (and proportionately for part of an acre) of the leased area;
(b) in respect of each ton of coal (not being unusable or unsaleable waste coal or rubbish) won from the leased area and used for the generation of electric power or in connexion with the industries referred to in Recital I hereof, a basic royalty at the rate of—
(i) four pence when the total quantity of such coal won in any year does not exceed one hundred thousand tons;
(ii) three pence when such total quantity exceeds one hundred thousand tons;
(c) in respect of each ton of coal as aforesaid won from the leased area and sold or used by the Company for any purpose other than as specified in the last preceding paragraph, a basic royalty of four pence.
(2) The said rent and basic royalties shall be paid by the Company clear of all deductions whatsoever to the Accountant to the Department of Mines at Melbourne on behalf of the State as follows—
(a) as to the rent, by equal half-yearly payments in advance the first payment to be made on the date of commencement and succeeding payments on the first day of each half-yearly period thereafter;
(b) as to the basic royalties within thirty days after written demand therefor by or on behalf of the State in respect of each half-yearly period during the term of this Agreement.
(3) If the total royalty payable under this clause in respect of coal won in any year exceeds the amount of the rent paid by the Company in that year the rent so paid shall be accepted by the State as part payment of that royalty.
(4) If the current index number for any year exceeds the base index number then the royalty payable in respect of coal won during that year shall be calculated at a rate bearing the same proportion to the appropriate rate of royalty specified in sub-clause (1) of this clause as the current index number bears to the base index number.
(5) In the event of the Commonwealth Statistician ceasing to publish the Consumer Price Index the last preceding sub-clause shall be modified from time to time by substituting for the method therein specified of determining increases in royalty rates such other method as the Government Statist of the State certifies in writing to be appropriate for determining those increases in similar manner to the method so specified.
(6) The difference between the amount of basic royalty paid or payable in respect of coal won in any year and the amount of royalty payable by virtue of the provisions of sub-clause (4) of this clause in respect of that coal shall be paid by the Company within thirty days after a written demand therefor by or on behalf of the State has been rendered to the Company.
(7) Until the survey mentioned in sub-clause (4) of the last preceding clause has been completed the rent payable under this clause shall be calculated and paid on the basis of the areas specified in clause 1 hereof. When the said survey has been completed any necessary adjustment of rent so paid shall be made on the next following day fixed for payment of rent hereunder.
(8) The Company may at any time by instrument under its common seal surrender to the State its rights under this Agreement as to the whole or part of the leased area and in the event of a partial surrender as aforesaid the said rent shall from the next following day fixed for payment of rent hereunder be reduced by a sum calculated at the rate of two shillings and sixpence for each acre (and proportionately for part of an acre) of land comprised in the partial surrender.
The Company shall—
(a) keep proper records of the quantities of coal won from the leased area and of—
(i) the quantities of coal sold by it;
(ii) the quantities of coal used for the purpose of generating electricity;
(iii) the quantities of coal used for other purposes—
and shall permit the Minister or any person authorized by him in writing to inspect those records at all reasonable times and to take copies thereof or extracts therefrom;
(b) from time to time when requested so to do by the Minister supply him with such information relating to the mining operations of the Company in or on the leased area as he may reasonably require;
(c) furnish to the Secretary within fourteen days after the end of each period of three months during the term of this Agreement a return verified by a director or the secretary of the Company showing in respect of that period particulars of the matters specified in paragraph (a) of this clause.
(1) The Company shall—
(a) carry out its operations on the leased area in a safe skilful and workmanlike manner;
(b) permit an Inspector of Mines or any other person authorized by the Minister free access at all reasonable times to the place where coal won from the leased area is kept or stored and to inspect examine measure or weigh the coal and to determine what quantity or proportion thereof is usable or marketable coal;
(c) before commencing to sink any shaft on the leased area or to use any shaft already sunk thereon deposit with the Secretary such sum as the Minister may fix by way of guarantee that before any such shaft is abandoned it will be securely covered to the satisfaction of the Chief Mining Inspector;
(d) securely cover as aforesaid any such shaft before abandoning it;
(e) during the term of this Agreement effectually drain the parts of the leased area from time to time being worked by the Company and pump out all water likely to cause injury thereto or which would prevent or interfere with the working thereof;
(f) make such provision for the disposal of the silt sludge detritus dirt waste or refuse of or from the Company's works on the leased area so that the same will not flow or find its way into any water channel leading into or from the storage works of any public body or so as to injure or interfere with any land set apart for water supply purposes or become an actionable nuisance or obstruction to any roads ways rivers creeks or private or Crown lands;
(g) during the term of this Agreement but subject to the provisions of clause 25 hereof pay to the owner occupier or lessee from the Crown of any adjoining land such compensation in respect of any damage sustained by him by reason of the Company's operations on in or under the leased area as may be agreed upon by the Company with such owner occupier or lessee or with the Minister or failing any such agreement as may be determined by arbitration under the provisions hereof;
(h) at all times during the operation of this Agreement keep and preserve the Company's works as aforesaid in good repair and condition and at the expiration or sooner determination of the term of this Agreement deliver up peaceable possession of the leased area to some person authorized to receive possession thereof on behalf of the State;
(i) permit any person authorized by the Minister with all proper assistants at all reasonable times during the term of this Agreement to enter into and upon every part of the Company's works as aforesaid and to survey and examine the state and condition thereof and for the purpose aforesaid to descend all pits and shafts and to use all roads equipment labour and other things in or on the works or in or on any adjacent land held in connexion therewith which shall be deemed necessary by the person so authorized without making any compensation therefor but so that in so doing no unnecessary interference with the Company's operations shall be caused;
(j) in carrying out its operations on the leased area, comply with all statutory provisions applicable thereto except to the extent those provisions may be modified or excluded by this Agreement or the Act referred to in clause 3 hereof.
(2) If the Company fails to carry out any work necessary to comply with the provisions of paragraph (d) of the last preceding sub-clause the Minister may cause that work to be done and the cost thereof paid out of the sum referred to in paragraph (c) of that sub-clause.
The Company shall not—
(a) except in accordance with conditions fixed by the Minister (not being more onerous than the conditions prescribed by the regulations for leases for the purpose of mining for minerals by means of hydraulic sluicing or of any method of dredging) and with the approval of the Sludge Abatement Board appointed pursuant to the Act, work any portion of the leased area by means of hydraulic mining;
(b) in working the leased area do or permit to be done any wilful negligent or improper act whereby an undue proportion of unusable or unsaleable waste coal may be produced therefrom;
(c) use or occupy or permit the leased area to be used or occupied for any purpose other than the exercise of the rights herein granted or for the pasturage of stock of or as garden ground for employees of the Company;
(d) close or obstruct any adit to or from any mine contiguous to the leased area whereby fresh air is admitted or ventilation promoted;
(e) without the prior written consent of the Minister assign mortgage charge or encumber its rights under this Agreement in respect of the leased area or sublet or part with possession of the leased area or any part thereof.
(1) The Chief Mining Inspector or any other officer authorized by the Minister may order that any of the galleries drives air-ways passages water-ways or adits used in connexion with the working of the leased area shall be stowed and may from time to time by order in writing direct that such engineering or other works whether of masonry or otherwise be constructed and erected as in his opinion are required for the support of the surface of the leased area or any land adjacent thereto or as a precaution against any contingent damage to any road specified in the order formed on the leased area or immediately adjacent thereto and the Company shall upon receipt of the order forthwith execute at its cost to the satisfaction of the Chief Mining Inspector or such other officer all works so specified.
(2) The Company shall from time to time carry out on the leased area such works for the purpose of rehabilitating any part thereof as may be agreed upon by the Company and the Minister or failing agreement as may be determined as reasonable by arbitration pursuant to clause 27 hereof, but so that the Company shall not be obliged to rehabilitate a part of the leased area until it has fully exercised its rights under this Agreement in respect of that part.
(1) During the first nine years of the term of this Agreement the Company shall expend—
(a) in each of those years in improvements on the leased area and in carrying on exploratory and mining operations on the leased area a sum which having regard to the total sum expended in previous years will produce an average annual expenditure from time to time of not less than fifty thousand pounds;
(b) a total sum not less than six million pounds in the development of and purchase of equipment for the leased area and in the construction and equipment of an electric power generating station and other improvements on the power station site.
(2) The Company shall within sixty days after the expiration of each of the said nine years deliver to the Secretary a balance-sheet or statement certified as correct by the Company's auditors and showing in respect of the last preceding year of the term of this Agreement the sums expended for the purposes specified in the last preceding sub-clause.
(3) If in the event of the Company failing to expend the sum specified in paragraph (b) of sub-clause (1) of this clause for the purposes and within the period specified in that sub‑clause the Company establishes to the satisfaction of the Minister that there is reasonable expectation that the said sum will have been expended for those purposes on or before the expiration of the first twelve years of the said term the period so specified shall be extended accordingly.
(4) If the Company fails to expend the sum specified in paragraph (b) of sub-clause (1) of this clause for the purposes therein specified within the first nine years or (if the case so requires) twelve years of the said term the Minister may at any time thereafter determine this Agreement subject to his having given to the Company at least six months' written notice in that behalf.
(5) If this Agreement is determined pursuant to the last preceding sub-clause the Company shall during the period of six months after the date of determination have the first right to apply in accordance with the Act for leases for the purpose of mining for coal on the leased area.
(1) The Company shall from time to time (until the expiration of twenty-five years from the date of commencement or until the Forests Commission has given to it written notice that the rights conferred by the next succeeding sub-clause are no longer required, whichever first occurs) give to the State at least twelve months' prior written notice of its intention to commence operations upon any part of the former forest area (other than the part thereof marked "A" on the plan annexed hereto) and of the sites comprising approximately thirty-five acres and twenty acres respectively of two sample plots of pine trees within the leased area which sites have been indicated to the Company by the said Commission, which part shall be specified in the notice.
(2) The Forests Commission or any person authorized by it in writing may at any time while the Company is bound by the provisions of the last preceding sub-clause but in any event before the Company commences operations upon any part of the former forest area or of the sites of the said sample plots cut and remove therefrom any timber or other forest produce.
(1) If any work proposed by the Company is likely to result in the severance or injury of any road (whether a public highway or not) or part thereof formed or constructed on the leased area the Company shall give notice to that effect to the municipal or other authority responsible for the care and management of the road or if there is no such authority to the Minister.
(2) Such authority or the Minister (as the case may be) shall within two months after receipt of the said notice notify the Company whether or not it or he requires the Company to construct an alternative road in lieu of the road or part thereof likely to be severed or injured and if so required the Company at its expense shall construct the alternative road to a standard equivalent to that of the road or part thereof it is intended to replace and in such location as such authority or the Minister may reasonably require.
(3) The Company shall not commence the work proposed as aforesaid until it has complied with the provisions of the last preceding sub-clause.
(1) Except with the prior written consent of the State Rivers and Water Supply Commission (in this clause called "the Water Commission") the Company shall not carry out within fifty feet of the pipeline lying in the easterly portion of the leased area and which is vested in the Water Commission any mining operations or other operations likely to cause damage to that pipeline.
(2) The Water Commission in order to facilitate the Company's operations shall as soon as practicable after being requested by the Company in writing so to do remove the said pipeline or portion thereof to another location approved by the Water Commission.
(3) The Company shall pay to the Water Commission the cost of—
(a) removal of the said pipeline or portion thereof upon request of the Company as aforesaid;
(b) removal of the said pipeline or portion thereof where such removal is effected by the Water Commission in consequence of operations of the Company which although not requiring the consent of the Water Commission under sub-clause (1) of this clause endanger or are in the opinion of the Water Commission likely to endanger the said pipeline.
(4) The Company shall have the rights for the purposes of this Agreement—
(a) to construct maintain and operate such works as may be approved by the Water Commission in or on the bed or banks or both bed and banks of the Anglesea River;
(b) to carry out such diversions of any river stream creek or watercourse or of any lake lagoon swamp or marsh within the meaning of the Water Act 1958 situate within the leased area the power station site the prior land and the purchased land as may be approved by the Water Commission.
(1) Nothing contained in this Agreement shall entitle the Company to do anything which may cause damage to any works of the State Electricity Commission of Victoria (in this clause called "the Electricity Commission") existing on or over the leased area or to exercise any of its rights hereunder on or under the site of those works but the Electricity Commission may upon such terms as it deems fit agree with the Company to remove those works from the leased area or to another site within the leased area.
(2) Nothing contained in this Agreement shall preclude an agreement between the Electricity Commission and the Company with the approval of the Minister in respect of—
(a) exploratory boring (in addition to that specified herein) of the leased area and the reserve area with a view to providing coal for the power generation requirements of the State;
(b) the development jointly or otherwise by the Electricity Commission and the Company of open cuts on the leased area necessary to meet those requirements;
(c) co-operation generally between the Electricity Commission and the Company in the generation of power from the coal reserves in the leased area.
(3) In respect of the generation and distribution of electricity by the Company from the power generating station aforesaid and of the smelting and fabrication of aluminium and the operation of ancillary services by the Company the Company shall have the rights—
(a) to erect construct operate and maintain on the power station site the said electric power generating station and ancillary services;
(b) to erect construct and maintain on in or over the leased area the power station site the prior land and the purchased land all such equipment as may be necessary for the distribution of electricity from the said power station;
(c) subject to the provisions of Section 26 of the State Electricity Commission Act 1958 , to compulsorily purchase take or use such land easement right or privilege in over or affecting any land as may be necessary for the erection ownership operation and maintenance of the electricity transmission line from the leased area the power station site the prior land and the purchased land or any one or more of them to the aluminium smelting and fabricating plant of the Company at Point Henry hereinafter mentioned;
(d) subject to the provisions of the Land Act 1958 and to the approval by the Surveyor-General of the State of the plan of survey of the power station site, to a grant in fee simple of the power station site upon payment of such sum as may be agreed upon by the Company and the State;
(e) to erect construct maintain and operate on the lands of the Company at Point Henry an aluminium smelting and fabricating plant and ancillary services.
(4) Notwithstanding anything contained in this Agreement or in the Electric Light and Power Act 1958 the State Electricity Commission Act 1958 the Land Act 1958 or any other Act of the Parliament of Victoria or regulations thereunder the rights conferred by paragraphs (a) and (b) of the last preceding sub-clause hereof shall continue for such period (not being less than the term of this Agreement) and upon such terms and conditions and subject to such provisions (excluding section forty-five of the Electric Light and Power Act 1958 ) of the said Acts and regulations as are prescribed by Order of the Governor in Council.
(1) The rights and powers of the Company under this Agreement shall be subject to the subsisting rights of any person or body occupying any part of the former forest area under licence issued by the Forests Commission.
(2) In respect of each of the camps conducted on the former forest area by the National Fitness Council of Victoria and the Presbyterian Fellowship of Australia the Company shall bear the cost of—
(a) establishing the improvements on the site of the camp or improvements equivalent thereto upon an alternative site approved by the body conducting the camp and (in the case of the camp conducted by the National Fitness Council of Victoria) by the Forests Commission;
(b) placing such alternative site in equivalent condition to the existing site of the camp and (unless already existing thereon) providing it with facilities and services equivalent to those available at the existing site.
(3) Subject to the provisions of the Land Act 1958 and to approval by the Surveyor-General aforesaid of the plan of survey of the land described in this sub-clause the Company shall upon payment of the sum of £25,000 to the State within ninety days after the Forests Commission has given notice to the Company that it has vacated the land so described (which it shall do during the first year of the term of this Agreement) be entitled to a grant in fee simple of those pieces of land in the parish of Jan Juc county of Grant containing thirty-six acres and twenty-five perches more or less the boundaries of which are (subject to survey) as follow—
(a) commencing at the north-western angle of Allotment 4 section 1 township of Anglesea bounded thence by a road bearing 24 degrees 38 minutes 1075 links thence by a line bearing 90 degrees 2742·9 links thence by the Great Ocean-road bearing 193 degrees 8 minutes 1003·4 links and thence by a road and the northern boundary of the said Allotment 4 bearing 270 degrees 2963 links to the point of commencement;
(b) commencing at a point bearing 45 degrees 10 minutes 82 links and 24 degrees 38 minutes 262·5 links from the south-eastern angle of Allotment 64C parish of Jan Juc bounded thence by lines bearing 270 degrees 599·5 links 0 degrees 1367 links and 126 degrees 57 minutes 1141·1 links and thence by a road bearing 204 degrees 38 minutes 749·5 links to the point of commencement.
(1) The Act so far as it is not inconsistent herewith shall with such adaptations as are necessary apply to this Agreement and the operations of the Company on the leased area as if this Agreement were a mineral lease granted under the provisions of the Act and the Company were the registered proprietor thereof.
(2) Without affecting the generality of the last preceding sub‑clause—
(a) section fifty of the Act shall so far as applicable bind the Company and its officers but shall be read and construed as if the expression "half-year" therein meant the appropriate half of any period of one year commencing on the date of commencement or an anniversary thereof and the provisions of that section had been modified accordingly;
(b) sections twenty-three, forty-seven, forty-eight, forty‑nine, fifty-one to fifty-eight (both inclusive), sixty, sixty-one, sixty-two, seventy-nine, eighty, three hundred and twelve, three hundred and twenty-one, three hundred and twenty-four, three hundred and thirty-one, four hundred and fifty-two and four hundred and fifty-three of the Act shall not apply to this Agreement.
(1) If the Company—
(a) at any time after the date of commencement gives to the Minister written notice of its intention to carry out mining operations on or in the power station site and the purchased land or any part thereof; and
(b) has then obtained or is entitled under the provisions hereof to a grant in fee simple of the land specified in the notice—
then as from the commencement of the next following half‑yearly period of the term of this Agreement the expression "leased area" herein shall unless inconsistent with the context or subject-matter (but subject always to the provisions of the two next succeeding sub-clauses) include the land specified in the notice.
(2) For the purposes of the last preceding sub-clause the following provisions of this Agreement shall not apply to any land specified in a notice given pursuant to that sub‑clause, that is to say—
(a) sub-clause (2) of clause 9;
(b) insofar as the land so specified lies above a depth of fifty feet below the surface, paragraph (h) of sub‑clause (1) of clause 12;
(c) sub-clause (2) of clause 14;
(d) clause 15.
(3) Nothing in this clause shall derogate from the rights of the Company as owner of any land or shall affect any operations (other than mining operations) of the Company thereon.
The Company may with the approval of and subject to such conditions as may be fixed by the responsible Minister of the Crown for the time being administering the Marine Act 1958 —
(a) without charge draw water from the sea in the vicinity of the Anglesea River for any of its operations on the power station site or the leased area;
(b) return to the sea any water so drawn which has been used for cooling purposes only; and
(c) construct such works and use such portion of the sea bed as may reasonably be required for the purposes mentioned in the two last preceding paragraphs.
Notwithstanding anything herein contained the Company shall not be entitled—
(a) to fence or otherwise enclose any part of the boundary of the leased area which coincides with or abuts on the left bank of the Anglesea River;
(b) to obtain a grant in fee simple of or to exercise any rights (other than under clause 18 hereof) hereunder on or in any part of—
(i) the bed or banks of the Anglesea River; or
(ii) any land abutting on the Anglesea River which is now reserved for public purposes under the provisions of the Land Act 1958 .
The Company in constructing equipping and operating its works on the leased area the power station site the prior land the purchased land and its land at Point Henry shall—
(a) comply with accepted modern practice for the construction equipment and operation of works of a like nature;
(b) comply with any Act applicable to the construction equipment or operation of those works; and
(c) endeavour to avoid so far as is reasonable and practicable the creation of any nuisance—
and if the Company does so it shall not be liable for any nuisance which is not due to negligence on its part—
Provided that the Company shall have the onus of proving that is has complied with paragraphs (a), (b) and (c) of this clause and that it has not been negligent.
(1) If at any time the Company enters into liquidation (other than a voluntary liquidation for the purpose of reconstruction and assignment of rights under this Agreement) the Minister may determine this Agreement.
(2) If—
(a) the Company at any time fails to comply with the terms and conditions (other than clause 15) of this Agreement; and
(b) the Minister having given to the Company at least six months' written notice requiring it to remedy that failure either wholly or so far as it is possible to do so within the period of the notice, the Company does not comply with the notice—
the Minister may apply to a judge of the Court in chambers for a summons calling upon the Company to show cause why this Agreement should not be determined.
(3) Upon the hearing of any summons issued under the last preceding sub-clause the following provisions shall apply—
(a) unless the Court considers that the failure aforesaid was due to mistake or to circumstances beyond the control of the Company or that there was otherwise a reasonable cause therefor and that the State has not been and will not be materially prejudiced by that failure, the Court may by order authorize the Minister to determine this Agreement and thereupon the Minister may determine it accordingly;
(b) evidence may be given by affidavit or if the Court so directs may be given orally or partly by affidavit and partly orally;
(c) subject to the last preceding paragraph the procedure shall be as the Court may direct;
(d) the Court may make such order as to costs as it deems just.
(4) In the last preceding sub-clause "Court" means the Supreme Court of the State of Victoria or a Judge thereof.
(5) The provisions of sub-clause (2) of this clause shall not affect any other right or remedy which the State may have in respect of any breach or non-observance by the Company of the terms and conditions of this Agreement.
In the event of any dispute between the parties hereto in relation to or in respect of any matter arising under or out of this Agreement (other than a dispute as to any matter referred to in the last preceding clause) either party may give to the other written notice requiring the dispute to be submitted to arbitration within the period of thirty days thereafter unless meanwhile the dispute shall have been settled. In the event of the dispute not being settled within that period it shall forthwith be referred to arbitration in accordance with the Arbitration Act 1958 .
(a) the State if signed by the Minister or the Secretary or an officer of the Department of Mines acting by direction of the Minister and forwarded by prepaid post to the Company at its registered office in Victoria or at the leased area;
(b) the Company if signed by a director or the secretary of the Company and forwarded by prepaid post to the Minister at the principal office of the Department of Mines.
(2) Any such notice order demand or writing so forwarded shall be deemed to have been given or sent on the day on which it would be delivered in the ordinary course of post.
IN WITNESS whereof the parties hereto have executed this Agreement the day and year first before written.
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Signed Sealed and Delivered by the said WILFRED JOHN MIBUS in the presence of (Sgd.) R. W. TERRY |
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(Sgd.) W. J. MIBUS (Seal). | ||
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The Common Seal of ALCOA OF AUSTRALIA PROPRIETARY LIMITED was hereto affixed by authority of the Directors in the presence of (Sgd.) J. CHESTER GUEST, Director. (Sgd.) B. G. BRETT, Secretary. |
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A map is annexed to the Agreement and endorsed as follows:
"This is the plan referred to in the annexed Agreement made the twenty-second day of November, 1961, between the Honorable Wilfred John Mibus for and on behalf of the State of Victoria of the one part and Alcoa of Australia Proprietary Limited of the other part.
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Signed by the said WILFRED JOHN MIBUS (Sgd.) R. W. TERRY |
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The Common Seal of ALCOA OF AUSTRALIA PROPRIETARY LIMITED was hereto affixed by authority of the Directors in the presence of: (Sgd.) J. CHESTER GUEST, Director. (Sgd.) B. G. BRETT, Secretary." |
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Sch. 2 inserted by No. 68/2011 s. 12.