Victorian Current Acts Victorian Current ActsSchedule 2
AMENDMENT AGREEMENT
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Date |
19 October 2011 |
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Parties | |
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1. |
The Honourable Michael O'Brien for and on behalf of the State of Victoria as Minister for Energy and Resources (the State ). |
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2. |
Alcoa of Australia Limited (ACN 004 879 298) of 181‑205 Davy Street, Booragoon, Western Australia (the Company ). |
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Recitals | |
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A |
The State and the Company are parties to an agreement which is set out in the Schedule to the Mines (Aluminium Agreement) Act 1961 (the Principal Agreement ) under which the Company has the exclusive right to search work mine for win carry away and dispose of all coal on or in the leased area on the terms set out in the Principal Agreement. |
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B |
The initial term of the Principal Agreement is due to expire on 1 February 2012 and the parties wish to extend the term and amend the Principal Agreement in the manner set out in this Agreement. |
It is agreed as follows.
1. Definitions and Interpretation
In this Agreement, unless the context requires otherwise:
(a) Effective Date means 1 February 2012.
(b) Words which are defined in the Principal Agreement and which are used in this Agreement have the same meaning in this Agreement as in the Principal Agreement.
2. Condition Precedent
This Agreement has no force or effect until it has been ratified, validated and approved by an Act of the Parliament of Victoria.
3. Amendments
The Principal Agreement is amended as follows:
(a) Recitals
A new Recital IV is added after Recital III:
"IV. On the expiry of its initial term the State and the Company wish to extend, amend and restate this Agreement as provided in the Amendment Agreement."
(b) Clause 1
In the definition of "the Act", " Mines Act 1958 " is deleted and replaced with " Mineral Resources (Sustainable Development) Act 1990 ".
A new defined term is added after "the Act":
"" Amendment Agreement " means the agreement between the State and the Company amending and restating this Agreement in connection with the extension of this Agreement on the expiry of its initial term;"
The definition of "base index number" is amended as follows:
(i) the word "December" is deleted and replaced with "June";
(ii) the words "One thousand nine hundred and sixty‑one" are deleted and replaced with "two thousand and ten"; and
(iii) the word "Commonwealth" is deleted and replaced with "Australian".
The definition of "Chief Mining Inspector" is amended as follows:
(i) the words "Chief Mining Inspector in" are deleted and replaced with "the Chief Inspector appointed under"; and
(ii) the words "Department of Mines" are deleted and replaced with "Act".
In the definition of "Company", the word "Proprietary" is deleted.
The definition of "current index number" is amended as follows:
(i) the word "average" is deleted;
(ii) the words "for the whole" are deleted and replaced with "as at 30 June"; and
(iii) the word "Commonwealth" is deleted and replaced with "Australian".
The definition of "former forest area" is deleted.
Two new defined terms are added after the definition of "date of commencement":
"" Department " means the Department of Primary Industries;
" freehold land " means land coloured blue on the plan annexed hereto being all the land contained in—
(a) certificate of title volume 8230 folio 618 known as Lot 1 on Title Plan 408603H (formerly known as part of Crown Allotment 10 Parish of Angahook); and
(b) certificate of title volume 8489 folio 766 known as Lot 2 on Plan of Subdivision 061660 (formerly known as part of Crown Allotment 10 Parish of Angahook),
which land is the subject of a minerals exemption granted pursuant to section 293 of the Mines Act 1958 on or about 19 August 1985;"
The definition of "leased area" is amended as follows:
(i) the words "the power station site" are deleted;
(ii) the words "within the boundaries shown" are deleted and replaced with "coloured green";
(iii) the words "by a red verge and which together with the power station site" are deleted and replaced with "which"; and
(iv) "10,865 acres" is deleted and replaced with "7,145 hectares".
The definition of "Power station site" is deleted.
In the definition of "prior land", the words "containing (subject to survey) 99 acres more or less" are deleted and replaced with:
"being all the land contained in certificate of title volume 5944 folio 708 known as Crown Allotments 63B1 and 64D in Parish of Jan Juc County of Grant, which land is the subject of a minerals exemption granted pursuant to section 293 of the Mines Act 1958 on or about 19 August 1985;"
In the definition of "purchased land", the words "described in sub-clause (3) of clause 20 hereof" are deleted and replaced with:
"coloured red on the plan annexed hereto being all the land contained in certificate of title volume 8876 folio 425 known as crown allotment 66 in Parish of Jan Juc County of Grant;"
The definition of "reserve area" is deleted.
In the definition of "Secretary", "Secretary for Mines" is deleted and replaced with "Secretary of the Department".
The following new defined terms are added after the definition of "Secretary":
"" significant additional environmental impact " means a significant impact on—
(a) species of fauna or flora or ecological communities or their supporting habitat;
(b) beneficial uses of surface and ground waters; or
(c) the amenity of adjoining areas,
that is in addition to the impacts that already exist by virtue of the Company's existing mining operations at the time the mine extension plan is submitted;
" specified area " means the area designated as such in the plan lodged at the Central Plan Office and assigned plan number LEGL./11-281, being the area in which the Company is authorised to conduct mining operations under the work plan referred to in clause 21A (including the stage 1 area and any area in which the conduct of such mining operations is subject to the approval of a mine extension plan in accordance with the work plan);
" stage 1 area " means the area identified as such in the work plan referred to in clause 21A in which the Company is authorised to conduct mining operations as at the date of the Amendment Agreement without the need to submit a mine extension plan for approval;"
A new defined term is added after the definition of "State":
"" stone " has the same meaning as it has in the Mineral Resources (Sustainable Development) Act 1990 of the Parliament of Victoria;"
A new defined term is added after the definition of "term of this Agreement":
"" water supply infrastructure " means pipelines, ground water extraction bores and any associated assets that support the supply of water;"
(c) Clause 2
In clause 2, " Mines Act 1958 " is deleted and replaced with " Mineral Resources (Sustainable Development) Act 1990 ".
(d) Clause 4
Clause 4 is deleted and a new clause 4 is inserted:
" 4. Effect of assignment by Company
(1) The Company may assign all or some of its rights under this Agreement with the written consent of the Minister.
(2) An assignment shall be conditional on the assignee executing a deed in a form approved by the Minister under which the assignee agrees to be responsible for the performance of each of the obligations and conditions imposed by this Agreement that correspond to the rights assigned to it by the Company.
(3) The Company shall be released from responsibility for the performance of each of the obligations and conditions of this Agreement that are assumed by an assignee by reason of sub-clause (2)."
(e) Clause 6
In clause 6, the word "fifty" is deleted and replaced with "one hundred".
(f) Clause 7
Sub-clauses 7(1) and 7(2) are omitted.
In sub-clause 7(3), the words "of any extension pursuant to sub-clause (1) of this" are deleted and replaced with "specified in the last preceding". The word "further" is deleted.
In sub-clause 7(4), the word "further" is deleted wherever it appears. The word "lease" is deleted and replaced with "licence".
(g) Clause 8
Clause 8 is amended as follows:
(i) the words "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" are deleted;
(ii) the number "15" is deleted and replaced with "19";
(iii) the words "or her" are inserted after "his";
(iv) the word "he" is deleted and replaced with "the Minister"; and
(v) the word "leases" is deleted and replaced with "licences".
(h) Clause 9
In sub-clause 9(2)(b), the words "sand gravel clay or earth" are deleted and replaced with "stone".
Sub-clauses 9(3) and 9(4) are omitted.
(i) Clause 10
Sub-clause 10(1)(a) is amended as follows:
(i) the words "two shillings and sixpence" are deleted and replaced with "62 cents";
(ii) the words "each acre" are deleted and replaced with "each hectare"; and
(iii) the words "an acre" are deleted and replaced with "a hectare".
Sub-clause 10(1)(b) is amended as follows:
(i) the word "ton" is deleted and replaced with "tonne";
(ii) the word "or" is deleted after "electric power";
(iii) the words "or while the Company (whether alone or as part of a partnership or joint venture with others) is operating an aluminium smelting plant at Portland" are inserted after "hereof";
(iv) in paragraph (b)(i), the words "four pence" are deleted and replaced with "38.7203 cents" and the words "one hundred thousand tons" are deleted and replaced with "one hundred and one thousand six hundred tonnes"; and
(v) in paragraph (b)(ii), the words "three pence" are deleted and replaced with "29.0686 cents" and the words "one hundred thousand tons" are deleted and replaced with "one hundred and one thousand six hundred tonnes".
Sub-clause 10(1)(c) is deleted and a new sub-clause 10(1)(c) is inserted:
"(c) in respect of each tonne of coal as aforesaid won from the leased area and used for the generation of electric power otherwise than in connexion with the industries referred to in Recital I hereof or while the Company (whether alone or as part of a partnership or joint venture with others) is operating an aluminium smelting plant at Portland, a royalty at the rate from time to time applicable to lignite under section 12A of the Act;"
A new sub-clause 10(1)(d) is added:
"(d) in respect of each tonne of coal as aforesaid won from the leased area and sold or used by the Company for any purpose other than as specified in paragraph (b) or (c) of this clause, a basic royalty of 38.7203 cents."
In sub-clause 10(2), "Accountant to the Department of Mines" is deleted and replaced with "Department of Primary Industries or its successor".
In sub-clause 10(4), after the words "during that year" insert:
", other than the royalty payable under sub-clause (1)(c),"
Sub-clause 10(5) is amended as follows:
(i) the word "Commonwealth" is deleted and replaced with "Australian"; and
(ii) the words "Government Statist" are deleted and replaced with "Secretary of the Department of Treasury and Finance".
Sub-clause 10(7) is omitted.
Sub-clause 10(8) is amended as follows:
(i) the words "two shillings and sixpence" are deleted and replaced with "62 cents";
(ii) the words "each acre" are deleted and replaced with "each hectare"; and
(iii) the words "an acre" are deleted and replaced with "a hectare".
(j) Clause 11
In sub-clause 11(a), the word "him" is deleted and replaced with "the Minister".
In sub-clause 11(b), the word "him" is deleted and replaced with "the Minister" and the words "as he" are deleted and replaced with "the freehold land the prior land and the purchased land as the Minister".
The following paragraph is added at the end of clause 11:
"This clause does not limit the obligations of the Company with respect to the keeping of proper records under the Act. To the extent that there is an inconsistency between the requirements of this clause and the requirements of the Act with respect to the keeping of records, the requirements of the Act prevail."
(k) Clause 12
Sub-clauses 12(1)(a) to 12(1)(f) are omitted.
Sub-clause 12(1)(g) is amended as follows:
(i) the word "him" is deleted and replaced with "such owner occupier or lessee";
(ii) the word "mining" is inserted after "the Company's"; and
(iii) the words "the freehold land the prior land or the purchased land" are inserted after "leased area".
Sub-clauses 12(1)(h) and 12(1)(i) are omitted.
Sub-clause 12(1)(j) is amended as follows:
(i) the word "mining" is inserted before "operations";
(ii) the words "the freehold land the prior land or the purchased land" are inserted after "leased area"; and
(iii) the words "all statutory provisions" are deleted and replaced with "the Act and all other statutory provisions".
Sub-clause 12(2) is omitted.
(l) Clause 13
The heading to clause 13 is deleted and replaced with " Use of leased area ".
Sub-clauses 13(a), 13(b), 13(d) and 13(e) are omitted.
(m) Clause 14
Clause 14 is omitted.
(n) Clause 15
The heading to Division C and clause 15 are omitted.
(o) Clause 16
Clause 16 is omitted.
(p) Clause 17
In sub-clause 17(2), the word "he'" is deleted and replaced with "the Minister".
(q) Clause 18
Sub-clause 18(1) is amended as follows:
(i) the words "the State Rivers and Water Supply Commission (in this clause called "the Water Commission")" are deleted and replaced with "Barwon Water";
(ii) the words "fifty feet" are deleted and replaced with "fifteen metres";
(iii) the word "pipeline" is deleted wherever it appears and replaced with "water supply infrastructure";
(iv) the words "in the easterly portion of" are deleted and replaced with "within"; and
(v) the words "the Water Commission" are deleted and replaced with "Barwon Water".
Sub-clauses 18(2) and 18(3) are amended as follows:
(i) the words "the Water Commission" are deleted wherever they appear and replaced with "Barwon Water"; and
(ii) the word "pipeline" is deleted wherever it appears and replaced with "water supply infrastructure".
The existing sub-clause 18(4) becomes sub-clause 18(5) and a new sub-clause 18(4) is inserted:
"(4) Any additional water supply infrastructure installed or proposed to be installed by Barwon Water will be subject to individual agreement with the Company."
In the new sub-clause 18(5)(a), "the Water Commission" is deleted and replaced with "Southern Rural Water".
The new sub-clause 18(5)(b) is amended as follows:
(i) " Water Act 1958 " is deleted and replaced with " Water Act 1989 ";
(ii) the words "the power station site" are deleted; and
(iii) the words "the Water Commission" are deleted and replaced with "Southern Rural Water".
(r) Clause 19
Sub-clauses 19(1) and 19(2) are omitted.
In sub-clause 19(3), the word "aforesaid" is deleted and replaced with "hereinafter mentioned".
In sub-clause 19(3)(a), the words "power station site" are deleted and replaced with "prior land and the purchased land".
In sub-clause 19(3)(b), the words "the power station site" are deleted.
In sub-clause 19(3)(c), the words "provisions of Section 26 of the State Electricity Commission Act 1958 " are deleted and replaced with " Mines (Aluminium Agreement) Act 1961 ". The words "power station site the" are deleted.
Sub-clause 19(3)(d) is omitted.
In sub-clause 19(4), the words "(other than sub-clause (5))" are inserted after "in this Agreement". The words "the Electric Light and Power Act 1958 ", and "(excluding section forty‑five of the Electric Light and Power Act 1958 )" are deleted.
A new sub-clause 19(5) is added after sub-clause 19(4):
"(5) Paragraphs (a) and (b) of sub-clause (3) and sub-clause (4) shall cease to apply on the earlier of:
(a) the date on which the Company permanently ceases to operate an aluminium smelting and fabricating plant on the lands of the Company at Point Henry; and
(b) 1 August 2014,
provided that nothing in this clause shall be taken to prevent the Company from continuing to undertake the activities referred to in paragraphs (a) and (b) of sub-clause (3) to the extent it is permitted to do so without reference to this Agreement."
(s) Clause 20
Clause 20 is omitted.
(t) New Part IIIA
A new Part IIIA is added after Part III, so as to incorporate the text deemed to form part of the Principal Agreement by section 10 of the Mines (Aluminium Agreement) Act 1961 :
" PART IIIA – OBLIGATIONS OF THE STATE
20A. The State shall –
(a) not impose nor take nor (insofar as it is competent to do so) permit nor authorize any of its agencies or instrumentalities or any local or other authority or Minister of the Crown or public statutory corporation of the State to take or cause to occur any action or combination of actions, including without limitation, the imposition of any taxes, rates or charges of any nature whatsoever, which –
(i) has the effect of modifying or subtracting from the Company's rights or adding to any of its obligations under this Agreement or any other agreement relating to the smelter at Point Henry;
(ii) is discriminatory to, or has a discriminatory effect on, or is directed at the smelter at Point Henry or the Company; or
(iii) discriminates adversely between the Company and other industrial or commercial enterprises in the State in respect of the income, titles, property or other assets, products, materials or services used or produced by or through the operation of the smelter at Point Henry and the disposal of aluminium and waste products produced in the smelter or is discriminatory to the aluminium industry or is directed at the aluminium industry;
(b) not, without the consent of the Company, resume nor (insofar as it is competent do so) suffer nor permit to be resumed, other than for the purpose of "public construction" as defined in the Project Development and Construction Management Act 1994 (as amended), any of the works installations plant equipment or other property for the time being belonging to the Company and the subject of or used for the purpose of this Agreement where to do so would unduly prejudice or interfere with the Company's operations hereunder; and
(c) make such representations as may be necessary to the Commonwealth with respect to, and use its good offices in relation to, the remedy or amelioration of or removal by the Commonwealth of any adverse effect on the progress or cost of the construction and operation of the smelter at Point Henry or on that smelter, the Company, this Agreement or any other agreement relating to the smelter resulting from Commonwealth Government policies including, without limiting the generality of the foregoing, the imposition of import duties, as soon as practicable after the occurrence of such effect."
(u) Part IV
The heading to Part IV is deleted and replaced with " PART IV ‑ APPLICATION OF CERTAIN ACTS ".
(v) Clause 21
Sub-clause 21(1) is amended as follows:
(i) the word "mining" is inserted before "operations";
(ii) the words "the freehold land the prior land and the purchased land" are inserted before "as if"; and
(iii) the words "mineral lease" are deleted and replaced with "mining licence".
Sub-clause 21(2)(a) is deleted and replaced with:
"sections 12 and 12A of the Act, and any other provisions of the Act or another law that commence following the execution of the Amendment Agreement which relate to the subject matter of those sections, shall not apply to this Agreement;"
Sub-clause 21(2)(b) is deleted and replaced with:
"section 85 of the Act, and any other provisions of the Act or another law that commence following the execution of the Amendment Agreement which relate to the subject matter of that section, shall not apply to this Agreement."
(w) New clauses 21A to 21D
New clauses 21A to 21D are inserted after clause 21:
" 21A. Deemed approved work plan
The work plan in relation to the leased area the freehold land and the prior land submitted by the Company to the Department and endorsed by the Department is deemed to be an approved work plan under the Act, and the Company is deemed to have a work authority in respect of that work plan. To avoid doubt, any future variation of the work plan will be dealt with in accordance with the Act.
21B. Application of the Aboriginal Heritage Act 2006
(1) For the avoidance of doubt—
(a) the Aboriginal Heritage Act 2006 and any regulations made under it shall, as far as reasonably practicable, apply to this Agreement and the operations of the Company on the leased area the freehold land the prior land and the purchased land;
(b) any variation of the work plan referred to in clause 21A will be dealt with in accordance with the Aboriginal Heritage Act 2006 ; and
(c) Part 4, Division 3 of the Aboriginal Heritage Act 2006 has no effect in respect of the endorsement of the work plan referred to in clause 21A by the Department.
(2) Before any mining activity authorised by the work plan referred to in clause 21A is undertaken on any part of the leased area the freehold land or the prior land, a cultural heritage management plan in respect of that area must be approved under Part 4 of the Aboriginal Heritage Act 2006 , except where the mining activity is within an area that has been subject to significant ground disturbance.
(3) The expressions 'cultural heritage management plan' and 'significant ground disturbance', as used in sub-clause (2), have the meaning given by the Aboriginal Heritage Act 2006 .
21C. Application of Occupational Health and Safety Act 2004
The Company acknowledges that the Occupational Health and Safety Act 2004 and any regulations made under that Act apply to this Agreement and the mining operations of the Company on the leased area the freehold land the prior land and the purchased land.
21D. Mine extension process
(1) This clause applies if the Company proposes to extend its mining operations:
(a) outside the stage 1 area; or
(b) outside the area in which such operations are being conducted in accordance with a mine extension plan previously approved in accordance with this clause,
but within the specified area. Any such mine extension requires the approval of a mine extension plan by the Secretary or his or her delegate in accordance with the approval process specified in this clause and the work plan referred to in clause 21A.
(2) If this clause applies the Company must, prior to submitting a mine extension plan for approval, consider and analyse the available options for the mine extension. The options analysis prepared by the Company must specifically evaluate any potential significant additional environmental impacts as well as the potential measures to mitigate those impacts.
(3) Following completion of the options analysis described in sub-clause (2), the Company must submit a mine extension plan to the Department in accordance with the work plan, and include –
(a) a summary of the options analysis undertaken in accordance with sub-clause (2);
(b) an outline of the proposed mine extension and related environmental impact mitigation actions that would be implemented as part of the mine extension plan; and
(c) information identifying any potential significant additional environmental impacts likely to result from the mine extension after taking account of the actions proposed by the Company (as described in the submitted documentation) to mitigate the environmental impacts of the mine extension described in the mine extension plan.
(4) The Company may consult with the Department, the Department of Planning and Community Development and any other relevant State or Commonwealth government department concerning the mine extension plan and the coordination of the processes described in sub-clauses (2) and (3) with the process for any other State or Commonwealth approvals or permits required in connection with the mine extension.
(5) On receipt of the mine extension plan by the Department and following the Department's initial assessment of the plan, the Minister will refer the plan to the Minister administering the Environment Effects Act 1978 for advice regarding whether the proposed mine extension is likely to have a significant additional environmental impact, after taking account of the actions proposed by the Company to mitigate the environmental impacts of the mine extension described in the mine extension plan.
(6) The Minister, after considering the advice of the Minister administering the Environment Effects Act 1978 , may advise the Company that he or she is satisfied that:
(a) the proposed mine extension is not likely to have a significant additional environmental impact, in which case the mine extension plan may be approved by the Secretary or his or her delegate in accordance with the process set out in the work plan without further regard to this clause; or
(b) the proposed mine extension is likely to have a significant additional environmental impact, in which case the mine extension plan must not be approved by the Secretary or his or her delegate until an environmental impact and management report ("EIMR") has been prepared to assess the likely significant additional environmental impact of the proposed mine extension described in the mine extension plan, in accordance with this clause and the work plan.
(7) If an EIMR is required, the Minister administering the Environment Effects Act 1978 must promptly specify the scope for the EIMR having regard to:
(a) any relevant Ministerial guidelines made under the Environment Effects Act 1978 (but only insofar as those guidelines relate to the significant additional environmental impacts that have been identified as being likely to result from the proposed mine extension);
(b) the objective of minimising any significant additional environmental impacts of the proposed mine extension in the context of enabling coal extraction;
(c) the objective of limiting consultation on the EIMR to sections of the public that have a material and established interest in the significant additional environmental impacts that have been identified as being likely to result from the proposed mine extension;
(d) the actions proposed by the Company to mitigate the environmental impacts of the mine extension described in the mine extension plan; and
(e) the requirements applicable to the process for obtaining any other concurrent State or Commonwealth approvals or permits required for the proposed mine extension.
(8) If required to do so under sub-clause (6), the Company must prepare an EIMR to assess the likely significant additional environmental impact of the proposed mine extension described in the mine extension plan, in accordance with the requirements of sub-clause (7).
(9) The Minister administering the Environment Effects Act 1978 may appoint one or more persons to advise him or her on the EIMR and the mine extension plan. However, any review by such person or persons must not involve a public hearing and must occur in a timely way.
(10) Following completion of the EIMR and any advice from a person or persons appointed under sub-clause (9), the Minister administering the Environment Effects Act 1978 must, within a reasonable period of time, provide an assessment of the EIMR ("Planning Minister's Assessment") to the Minister to inform the decision by the Secretary or his or her delegate with respect to any conditions to which the mine extension plan may be subject.
(11) In considering the mine extension plan the Secretary or his or her delegate must have regard to the Planning Minister's Assessment, and the geotechnical, practical and financial aspects of the proposed mine extension, and may, subject to sub-clauses (12), (13) and (14), impose on his or her approval of the mine extension plan conditions that achieve a balance between any recommendations made in the Planning Minister's Assessment and the geotechnical, practical and financial aspects of the mine extension plan. Any such conditions will be deemed to be incorporated in the work plan referred to in clause 21A.
(12) Should the Secretary or his or her delegate consider that a deviation from any of the conditions recommended in the Planning Minister's Assessment would be appropriate, the Secretary or his or her delegate will provide any relevant information and seek the agreement of the Minister administering the Environment Effects Act 1978 before imposing any conditions that are not substantially consistent with the conditions recommended in the Planning Minister's Assessment. To avoid doubt, any agreement about conditions is subject always to the restrictions on conditions contained in sub-clause (14) and the requirement for the Secretary or his or her delegate to seek the agreement of the Minister administering the Environment Effects Act 1978 does not affect the responsibility of the Secretary or his or her delegate to exercise his or her discretion to determine the conditions where such agreement is not able to be obtained.
(13) The Secretary or his or her delegate must consult with the Company prior to imposing conditions under sub-clause (11).
(14) The Secretary or his or her delegate may not impose conditions on his or her approval of a mine extension plan which:
(a) have the effect of preventing the Company from conducting mining operations in the specified area;
(b) require the Company to provide native vegetation offsets; or
(c) are otherwise inconsistent with the rights of the Company under this Agreement.
(15) The Company must comply with any conditions on the approval of a mine extension plan that are deemed to be incorporated in the work plan in accordance with sub-clause (11).
(16) The Company and the State must cooperate and consult regularly concerning the operation of this clause.
(17) To avoid doubt:
(a) the process specified in this clause applies to the approval of a mine extension within the specified area and as such does not require a variation to the work plan which could trigger the application of the Environment Effects Act 1978 ; and
(b) any mine extension which requires a variation to the work plan referred to in clause 21A will be dealt with in accordance with the Act and accordingly will be subject to all applicable legislative and regulatory requirements at the time (including the Environment Effects Act 1978 )."
(x) Clauses 22 and 23
The heading to Division A of Part V and clauses 22 and 23 are omitted.
(y) Clause 25
The words "power station site" are deleted and replaced with "freehold land".
The word "is" is deleted after "proving that" and replaced with "it".
(z) Clause 26
In sub-clause 26(2)(a), the words "(other than clause 15)" are deleted.
(aa) Clause 27
The existing clause 27 is renumbered sub-clause 27(1).
In the renumbered sub-clause 27(1), " Arbitration Act 1958 " is replaced with " Commercial Arbitration Act 1984 ".
A new sub-clause 27(2) is added after sub-clause 27(1):
"(2) For the avoidance of doubt, Part II of the Act shall apply in relation to any "dispute" (as that term is defined in the Act) between the parties hereto."
(bb) Clause 28
The word " Notices " is inserted as a heading to clause 28.
Sub-clause 28(1) is deleted and replaced with:
"(1) Section 122 of the Act applies to any notice order demand or other writing authorized or required by this Agreement."
Sub-clause 28(2) is omitted.
(cc) Annexure
The annexure to the Principal Agreement is removed and replaced with the annexure to this Agreement.
The Principal Agreement as amended by this Agreement is set out in the Schedule.
5. Effective Date
This Agreement takes effect, and the parties agree to be bound by the Principal Agreement as amended by this Agreement, from the Effective Date.
6. Remaining Provisions Unaffected
Except as specifically amended by this Agreement, all terms and conditions of the Principal Agreement remain in full force and effect. With effect from the Effective Date, the Principal Agreement as amended by this Agreement is to be read as a single integrated document incorporating the amendments effected by this Agreement.
7. Governing Law
This Agreement is governed by the laws of Victoria.
8. Counterparts
This Agreement may be executed in any number of counterparts. All counterparts together will be taken to constitute one instrument.
Executed in Melbourne
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Signed by the Honourable Michael O'Brien for and on behalf of the State of Victoria as Minister for Energy and Resources in the presence of: |
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Witness Signature | | |
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JEFF ROSEWARNE | | |
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Print Name | |
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Executed in accordance with section 127 of the Corporations Act 2001 by Alcoa of Australia Limited : |
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Director Signature | |
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ALAN CRANSBERG |
MELANIE K BROWN | |
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Print Name |
Print Name |
A map is annexed to the Agreement and endorsed as follows:
"The plan lodged at the Central Plan Office and assigned plan number LEGL./11-019, a copy of which is attached to this Annexure, is the annexed plan referred to in the Agreement dated 22 November 1961 between the Honourable Wilfred John Mibus for and on behalf of the State of Victoria and Alcoa of Australia Limited (formerly Alcoa of Australia Proprietary Limited) as amended by an Amendment Agreement dated 19 October 2011 between the Honourable Michael O'Brien for and on behalf of the State of Victoria as Minister for Energy and Resources and Alcoa of Australia Limited."
SCHEDULE
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.
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.
IV. On the expiry of its initial term the State and the Company wish to extend, amend and restate this Agreement as provided in the Amendment Agreement.
NOW IT IS HEREBY AGREED as follows—
In this Agreement unless inconsistent with the context or subject matter—
"the Act" means the Mineral Resources (Sustainable Development) Act 1990 of the Parliament of Victoria;
"Amendment Agreement" means the agreement between the State and the Company amending and restating this Agreement in connection with the extension of this Agreement on the expiry of its initial term;
"base index number" means the index number for Melbourne for the June quarter of the year two thousand and ten shown in the Consumer Price Index published by the Australian Statistician;
"Chief Mining Inspector" means the person for the time being holding the office of the Chief Inspector appointed under the Act or performing the duties of that office;
"Company" means the said Alcoa of Australia Limited and includes its assigns;
"current index number" in respect of any year means the index number for Melbourne as at 30 June of that year as determined by the Australian 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;
"Department" means the Department of Primary Industries;
"freehold land" means land coloured blue on the plan annexed hereto being all the land contained in—
(a) certificate of title volume 8230 folio 618 known as Lot 1 on Title Plan 408603H (formerly known as part of Crown Allotment 10 Parish of Angahook); and
(b) certificate of title volume 8489 folio 766 known as Lot 2 on Plan of Subdivision 061660 (formerly known as part of Crown Allotment 10 Parish of Angahook),
which land is the subject of a minerals exemption granted pursuant to section 293 of the Mines Act 1958 on or about 19 August 1985;
"leased area" means the land (excluding the prior land and the purchased land) coloured green on the plan annexed hereto which contains (subject to survey) 7,145 hectares more or less;
"Minister" means the responsible Minister of the Crown for the time being administering the Act;
"prior land" means the land coloured purple on the plan annexed hereto being all the land contained in certificate of title volume 5944 folio 708 known as Crown Allotments 63B1 and 64D in Parish of Jan Juc County of Grant, which land is the subject of a minerals exemption granted pursuant to section 293 of the Mines Act 1958 on or about 19 August 1985;
"purchased land" means the land coloured red on the plan annexed hereto being all the land contained in certificate of title volume 8876 folio 425 known as crown allotment 66 in Parish of Jan Juc County of Grant;
"regulations" means the regulations for the time being in force under the Act;
"Secretary" means the person for the time being holding the office of Secretary of the Department or performing the duties of that office;
"significant additional environmental impact" means a significant impact on—
(a) species of fauna or flora or ecological communities or their supporting habitat;
(b) beneficial uses of surface and ground waters; or
(c) the amenity of adjoining areas,
that is in addition to the impacts that already exist by virtue of the Company's existing mining operations at the time the mine extension plan is submitted;
"specified area" means the area designated as such in the plan lodged at the Central Plan Office and assigned plan number LEGL./11-281, being the area in which the Company is authorised to conduct mining operations under the work plan referred to in clause 21A (including the stage 1 area and any area in which the conduct of such mining operations is subject to the approval of a mine extension plan in accordance with the work plan);
"stage 1 area" means the area identified as such in the work plan referred to in clause 21A in which the Company is authorised to conduct mining operations as at the date of the Amendment Agreement without the need to submit a mine extension plan for approval;
"State" means the State of Victoria;
"stone" has the same meaning as it has in the Mineral Resources (Sustainable Development) Act 1990 of the Parliament 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;
"water supply infrastructure" means pipelines, ground water extraction bores and any associated assets that support the supply of water;
"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 Mineral Resources (Sustainable Development) Act 1990 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.
3. Agreement to be ratified by Act of Parliament
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.
4. Effect of assignment by Company
(1) The Company may assign all or some of its rights under this Agreement with the written consent of the Minister.
(2) An assignment shall be conditional on the assignee executing a deed in a form approved by the Minister under which the assignee agrees to be responsible for the performance of each of the obligations and conditions imposed by this Agreement that correspond to the rights assigned to it by the Company.
(3) The Company shall be released from responsibility for the performance of each of the obligations and conditions of this Agreement that are assumed by an assignee by reason of sub-clause (2).
PART II—COMMENCEMENT, DURATION, EXTENSION AND VARIATION OF AGREEMENT
(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.
6. Duration of Agreement
Subject to the provisions hereof this Agreement shall remain in force for the period of one hundred years from the date of commencement.
(a) the Company not later than nine months prior to the expiration of the period specified in the last preceding clause makes written application to the Minister for the 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 extension as aforesaid upon the terms and conditions expressed in the notification by the Minister and shall thereupon become entitled to such extension. In the event of the Company failing so to accept such 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 licence 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.
8. Variation of Agreement by Minister in certain event
If 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 19 hereof the Minister at any time thereafter may by an instrument under his or her hand vary the provisions of this Agreement in such manner as the Minister 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 licences for the purpose of mining for coal on the leased area in accordance with the provisions of the Act.
PART III—RIGHTS AND OBLIGATIONS OF COMPANY
Division A—Coal Rights and Related Matters
9. Exclusive right of Company to coal
(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 stone or timber live or dead on in or under any part of the leased area not being worked or used for the purposes aforesaid.
(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 62 cents for each hectare (and proportionately for part of a hectare) of the leased area;
(b) in respect of each tonne of coal (not being unusable or unsaleable waste coal or rubbish) won from the leased area and used for the generation of electric power in connexion with the industries referred to in Recital I hereof or while the Company (whether alone or as part of a partnership or joint venture with others) is operating an aluminium smelting plant at Portland, a basic royalty at the rate of—
(i) 38.7203 cents when the total quantity of such coal won in any year does not exceed one hundred and one thousand six hundred tonnes;
(ii) 29.0686 cents when such total quantity exceeds one hundred and one thousand six hundred tonnes;
(c) in respect of each tonne of coal as aforesaid won from the leased area and used for the generation of electric power otherwise than in connexion with the industries referred to in Recital I hereof or while the Company (whether alone or as part of a partnership or joint venture with others) is operating an aluminium smelting plant at Portland, a royalty at the rate from time to time applicable to lignite under section 12A of the Act;
(d) in respect of each tonne of coal as aforesaid won from the leased area and sold or used by the Company for any purpose other than as specified in paragraph (b) or (c) of this clause, a basic royalty of 38.7203 cents.
(2) The said rent and basic royalties shall be paid by the Company clear of all deductions whatsoever to the Department of Primary Industries or its successor 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, other than the royalty payable under sub-clause (1)(c), 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 Australian 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 Secretary of the Department of Treasury and Finance 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.
(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 62 cents for each hectare (and proportionately for part of a hectare) of land comprised in the partial surrender.
(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 the Minister 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 the Minister with such information relating to the mining operations of the Company in or on the leased area the freehold land the prior land and the purchased land as the Minister 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.
This clause does not limit the obligations of the Company with respect to the keeping of proper records under the Act. To the extent that there is an inconsistency between the requirements of this clause and the requirements of the Act with respect to the keeping of records, the requirements of the Act prevail.
Division B—Mining Operations and Related Matters
(b) [omitted];
(c) [omitted];
(d) [omitted];
(e) [omitted];
(f) [omitted];
(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 such owner occupier or lessee by reason of the Company's mining operations on in or under the leased area the freehold land the prior land or the purchased land 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) [omitted];
(i) [omitted];
(j) in carrying out its mining operations on the leased area the freehold land the prior land or the purchased land, comply with the Act and all other 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.
(b) [omitted];
(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;
Division D—Other Obligations and Rights
(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 the Minister 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 Barwon Water the Company shall not carry out within fifteen metres of the water supply infrastructure lying within the leased area and which is vested in Barwon Water any mining operations or other operations likely to cause damage to that water supply infrastructure.
(2) Barwon Water 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 water supply infrastructure or portion thereof to another location approved by Barwon Water.
(3) The Company shall pay to Barwon Water the cost of—
(a) removal of the said water supply infrastructure or portion thereof upon request of the Company as aforesaid;
(b) removal of the said water supply infrastructure or portion thereof where such removal is effected by Barwon Water in consequence of operations of the Company which although not requiring the consent of Barwon Water under sub-clause (1) of this clause endanger or are in the opinion of Barwon Water likely to endanger the said water supply infrastructure.
(4) Any additional water supply infrastructure installed or proposed to be installed by Barwon Water will be subject to individual agreement with the Company.
(5) 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 Southern Rural Water 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 1989 situate within the leased area the prior land and the purchased land as may be approved by Southern Rural Water.
19. Electricity Commission Works
(3) In respect of the generation and distribution of electricity by the Company from the power generating station hereinafter mentioned 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 prior land and the purchased land the said electric power generating station and ancillary services;
(b) to erect construct and maintain on in or over the leased area 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 Mines (Aluminium Agreement) Act 1961 , 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 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;
(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 (other than sub-clause (5)) or in 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 of the said Acts and regulations as are prescribed by Order of the Governor in Council.
(5) Paragraphs (a) and (b) of sub-clause (3) and sub-clause (4) shall cease to apply on the earlier of:
(a) the date on which the Company permanently ceases to operate an aluminium smelting and fabricating plant on the lands of the Company at Point Henry; and
(b) 1 August 2014,
provided that nothing in this clause shall be taken to prevent the Company from continuing to undertake the activities referred to in paragraphs (a) and (b) of sub-clause (3) to the extent it is permitted to do so without reference to this Agreement.
PART IIIA – OBLIGATIONS OF THE STATE
(a) not impose nor take nor (insofar as it is competent to do so) permit nor authorize any of its agencies or instrumentalities or any local or other authority or Minister of the Crown or public statutory corporation of the State to take or cause to occur any action or combination of actions, including without limitation, the imposition of any taxes, rates or charges of any nature whatsoever, which –
(i) has the effect of modifying or subtracting from the Company's rights or adding to any of its obligations under this Agreement or any other agreement relating to the smelter at Point Henry;
(ii) is discriminatory to, or has a discriminatory effect on, or is directed at the smelter at Point Henry or the Company; or
(iii) discriminates adversely between the Company and other industrial or commercial enterprises in the State in respect of the income, titles, property or other assets, products, materials or services used or produced by or through the operation of the smelter at Point Henry and the disposal of aluminium and waste products produced in the smelter or is discriminatory to the aluminium industry or is directed at the aluminium industry;
(b) not, without the consent of the Company, resume nor (insofar as it is competent do so) suffer nor permit to be resumed, other than for the purpose of "public construction" as defined in the Project Development and Construction Management Act 1994 (as amended), any of the works installations plant equipment or other property for the time being belonging to the Company and the subject of or used for the purpose of this Agreement where to do so would unduly prejudice or interfere with the Company's operations hereunder; and
(c) make such representations as may be necessary to the Commonwealth with respect to, and use its good offices in relation to, the remedy or amelioration of or removal by the Commonwealth of any adverse effect on the progress or cost of the construction and operation of the smelter at Point Henry or on that smelter, the Company, this Agreement or any other agreement relating to the smelter resulting from Commonwealth Government policies including, without limiting the generality of the foregoing, the imposition of import duties, as soon as practicable after the occurrence of such effect.
PART IV—APPLICATION OF CERTAIN ACTS
(1) The Act so far as it is not inconsistent herewith shall with such adaptations as are necessary apply to this Agreement and the mining operations of the Company on the leased area the freehold land the prior land and the purchased land as if this Agreement were a mining licence 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) sections 12 and 12A of the Act, and any other provisions of the Act or another law that commence following the execution of the Amendment Agreement which relate to the subject matter of those sections, shall not apply to this Agreement;
(b) section 85 of the Act, and any other provisions of the Act or another law that commence following the execution of the Amendment Agreement which relate to the subject matter of that section, shall not apply to this Agreement.
21A. Deemed approved work plan
The work plan in relation to the leased area the freehold land and the prior land submitted by the Company to the Department and endorsed by the Department is deemed to be an approved work plan under the Act, and the Company is deemed to have a work authority in respect of that work plan. To avoid doubt, any future variation of the work plan will be dealt with in accordance with the Act.
21B. Application of the Aboriginal Heritage Act 2006
(1) For the avoidance of doubt—
(a) the Aboriginal Heritage Act 2006 and any regulations made under it shall, as far as reasonably practicable, apply to this Agreement and the operations of the Company on the leased area the freehold land the prior land and the purchased land;
(b) any variation of the work plan referred to in clause 21A will be dealt with in accordance with the Aboriginal Heritage Act 2006 ; and
(c) Part 4, Division 3 of the Aboriginal Heritage Act 2006 has no effect in respect of the endorsement of the work plan referred to in clause 21A by the Department.
(2) Before any mining activity authorised by the work plan referred to in clause 21A is undertaken on any part of the leased area the freehold land or the prior land, a cultural heritage management plan in respect of that area must be approved under Part 4 of the Aboriginal Heritage Act 2006 , except where the mining activity is within an area that has been subject to significant ground disturbance.
(3) The expressions 'cultural heritage management plan' and 'significant ground disturbance', as used in sub-clause (2), have the meaning given by the Aboriginal Heritage Act 2006 .
21C. Application of Occupational Health and Safety Act 2004
The Company acknowledges that the Occupational Health and Safety Act 2004 and any regulations made under that Act apply to this Agreement and the mining operations of the Company on the leased area the freehold land the prior land and the purchased land.
21D. Mine extension process
(1) This clause applies if the Company proposes to extend its mining operations:
(a) outside the stage 1 area; or
(b) outside the area in which such operations are being conducted in accordance with a mine extension plan previously approved in accordance with this clause,
but within the specified area. Any such mine extension requires the approval of a mine extension plan by the Secretary or his or her delegate in accordance with the approval process specified in this clause and the work plan referred to in clause 21A.
(2) If this clause applies the Company must, prior to submitting a mine extension plan for approval, consider and analyse the available options for the mine extension. The options analysis prepared by the Company must specifically evaluate any potential significant additional environmental impacts as well as the potential measures to mitigate those impacts.
(3) Following completion of the options analysis described in sub-clause (2), the Company must submit a mine extension plan to the Department in accordance with the work plan, and include –
(a) a summary of the options analysis undertaken in accordance with sub-clause (2);
(b) an outline of the proposed mine extension and related environmental impact mitigation actions that would be implemented as part of the mine extension plan; and
(c) information identifying any potential significant additional environmental impacts likely to result from the mine extension after taking account of the actions proposed by the Company (as described in the submitted documentation) to mitigate the environmental impacts of the mine extension described in the mine extension plan.
(4) The Company may consult with the Department, the Department of Planning and Community Development and any other relevant State or Commonwealth government department concerning the mine extension plan and the coordination of the processes described in sub-clauses (2) and (3) with the process for any other State or Commonwealth approvals or permits required in connection with the mine extension.
(5) On receipt of the mine extension plan by the Department and following the Department's initial assessment of the plan, the Minister will refer the plan to the Minister administering the Environment Effects Act 1978 for advice regarding whether the proposed mine extension is likely to have a significant additional environmental impact, after taking account of the actions proposed by the Company to mitigate the environmental impacts of the mine extension described in the mine extension plan.
(6) The Minister, after considering the advice of the Minister administering the Environment Effects Act 1978 , may advise the Company that he or she is satisfied that:
(a) the proposed mine extension is not likely to have a significant additional environmental impact, in which case the mine extension plan may be approved by the Secretary or his or her delegate in accordance with the process set out in the work plan without further regard to this clause; or
(b) the proposed mine extension is likely to have a significant additional environmental impact, in which case the mine extension plan must not be approved by the Secretary or his or her delegate until an environmental impact and management report ("EIMR") has been prepared to assess the likely significant additional environmental impact of the proposed mine extension described in the mine extension plan, in accordance with this clause and the work plan.
(7) If an EIMR is required, the Minister administering the Environment Effects Act 1978 must promptly specify the scope for the EIMR having regard to:
(a) any relevant Ministerial guidelines made under the Environment Effects Act 1978 (but only insofar as those guidelines relate to the significant additional environmental impacts that have been identified as being likely to result from the proposed mine extension);
(b) the objective of minimising any significant additional environmental impacts of the proposed mine extension in the context of enabling coal extraction;
(c) the objective of limiting consultation on the EIMR to sections of the public that have a material and established interest in the significant additional environmental impacts that have been identified as being likely to result from the proposed mine extension;
(d) the actions proposed by the Company to mitigate the environmental impacts of the mine extension described in the mine extension plan; and
(e) the requirements applicable to the process for obtaining any other concurrent State or Commonwealth approvals or permits required for the proposed mine extension.
(8) If required to do so under sub-clause (6), the Company must prepare an EIMR to assess the likely significant additional environmental impact of the proposed mine extension described in the mine extension plan, in accordance with the requirements of sub-clause (7).
(9) The Minister administering the Environment Effects Act 1978 may appoint one or more persons to advise him or her on the EIMR and the mine extension plan. However, any review by such person or persons must not involve a public hearing and must occur in a timely way.
(10) Following completion of the EIMR and any advice from a person or persons appointed under sub-clause (9), the Minister administering the Environment Effects Act 1978 must, within a reasonable period of time, provide an assessment of the EIMR ("Planning Minister's Assessment") to the Minister to inform the decision by the Secretary or his or her delegate with respect to any conditions to which the mine extension plan may be subject.
(11) In considering the mine extension plan the Secretary or his or her delegate must have regard to the Planning Minister's Assessment, and the geotechnical, practical and financial aspects of the proposed mine extension, and may, subject to sub-clauses (12), (13) and (14), impose on his or her approval of the mine extension plan conditions that achieve a balance between any recommendations made in the Planning Minister's Assessment and the geotechnical, practical and financial aspects of the mine extension plan. Any such conditions will be deemed to be incorporated in the work plan referred to in clause 21A.
(12) Should the Secretary or his or her delegate consider that a deviation from any of the conditions recommended in the Planning Minister's Assessment would be appropriate, the Secretary or his or her delegate will provide any relevant information and seek the agreement of the Minister administering the Environment Effects Act 1978 before imposing any conditions that are not substantially consistent with the conditions recommended in the Planning Minister's Assessment. To avoid doubt, any agreement about conditions is subject always to the restrictions on conditions contained in sub-clause (14) and the requirement for the Secretary or his or her delegate to seek the agreement of the Minister administering the Environment Effects Act 1978 does not affect the responsibility of the Secretary or his or her delegate to exercise his or her discretion to determine the conditions where such agreement is not able to be obtained.
(13) The Secretary or his or her delegate must consult with the Company prior to imposing conditions under sub-clause (11).
(14) The Secretary or his or her delegate may not impose conditions on his or her approval of a mine extension plan which:
(a) have the effect of preventing the Company from conducting mining operations in the specified area;
(b) require the Company to provide native vegetation offsets; or
(c) are otherwise inconsistent with the rights of the Company under this Agreement.
(15) The Company must comply with any conditions on the approval of a mine extension plan that are deemed to be incorporated in the work plan in accordance with sub‑clause (11).
(16) The Company and the State must cooperate and consult regularly concerning the operation of this clause.
(17) To avoid doubt:
(a) the process specified in this clause applies to the approval of a mine extension within the specified area and as such does not require a variation to the work plan which could trigger the application of the Environment Effects Act 1978 ; and
(b) any mine extension which requires a variation to the work plan referred to in clause 21A will be dealt with in accordance with the Act and accordingly will be subject to all applicable legislative and regulatory requirements at the time (including the Environment Effects Act 1978 ).
PART V—OTHER PROVISIONS AS TO COMPANY'S RIGHTS AND OPERATIONS
Division B—Restriction of Rights
24. Restriction of rights in respect of Anglesea River etc.
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 .
Division C—Further Provision as to Operations of the Company
25. Obligations of Company as to operation etc. of works
The Company in constructing equipping and operating its works on the leased area the freehold land 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 it has complied with paragraphs (a), (b) and (c) of this clause and that it has not been negligent.
PART VI—OTHER PROVISIONS AFFECTING OPERATION OF AGREEMENT
Division A—Determination of Company's Rights
26. Determination of Agreement
(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.
(a) the Company at any time fails to comply with the terms and conditions 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.
(1) 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 Commercial Arbitration Act 1984 .
(2) For the avoidance of doubt, Part II of the Act shall apply in relation to any "dispute" (as that term is defined in the Act) between the parties hereto.
(1) Section 122 of the Act applies to any notice order demand or other writing authorized or required by this Agreement.
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:
"The plan lodged at the Central Plan Office and assigned plan number LEGL./11-019, a copy of which is attached to this Annexure, is the annexed plan referred to in the Agreement dated 22 November 1961 between the Honourable Wilfred John Mibus for and on behalf of the State of Victoria and Alcoa of Australia Limited (formerly Alcoa of Australia Proprietary Limited) as amended by an Amendment Agreement dated 19 October 2011 between the Honourable Michael O'Brien for and on behalf of the State of Victoria as Minister for Energy and Resources and Alcoa of Australia Limited.
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