Western Australian Current Acts Western Australian Current Acts[s. 2]
[Heading amended: No. 19 of 2010 s. 4.]
THIS AGREEMENT made the 18th day of April, 1978 BETWEEN THE HONOURABLE SIR
CHARLES WALTER MICHAEL COURT, O.B.E., M.L.A. Premier of the State of Western
Australia acting for and on behalf of the Government of the said State and its
instrumentalities (hereinafter referred to as “the State”) of the
one part and ALCOA OF AUSTRALIA LIMITED the name whereof was formerly Western
Aluminium No Liability, later Alcoa of Australia (W.A.) N.L. and later ALCOA
OF AUSTRALIA (W.A.) LIMITED a company duly incorporated under the Companies
Statutes of the State of Victoria and having its principal office in that
State at 535 Bourke Street, Melbourne and having its registered office in the
State of Western Australia at Hope Valley Road, Kwinana (hereinafter referred
to as “the Company” which term shall include its successors and
permitted assigns) of the other part.
WHEREAS:
(a) The
parties are the parties to —
(i)
the agreement between them defined in section 2 of the
Alumina Refinery Agreement Act 1961-1974 of the State of Western Australia
(which agreement is hereinafter referred to as “the principal
agreement”);
(ii)
the agreement between them defined in section 1A of the
Alumina Refinery (Pinjarra) Agreement Act 1969-1976 of the State of Western
Australia (which agreement is hereinafter referred to as “the Pinjarra
agreement”);
(b) the
Company has pursuant to the principal agreement established at Kwinana a
refinery, a berth and other services and facilities relating thereto;
(c) the
Company has pursuant to the Pinjarra agreement established near Pinjarra a
refinery and related facilities for the production and shipment of alumina and
at Bunbury a berth and other services and facilities relating thereto;
(d) the
Company desires to establish an additional refinery with an ultimate planned
capacity of 4 000 000 tonnes of alumina per annum at or near Wagerup and
related facilities for the production of alumina from bauxite mined from
within mineral leases granted pursuant to the principal agreement and for the
shipment of such alumina;
(e) it
is desired to make provision for the grant of additional rights to and the
undertaking of additional obligations by the Company as hereinafter provided;
(f) it
is desired to amend the principal agreement and the Pinjarra agreement as
hereinafter provided.
NOW THIS AGREEMENT WITNESSETH:
Interpretation 2
1. In this Agreement subject to the context
—
“approve”, “approval”,
“notify”, “request” or “require” means
approve, approval, notify, request or require in writing as the case may be;
“clause” means a clause of this
agreement;
“environmental review and management
programme” means any environmental review and management programme and
any variation thereof referred to in clause 6 hereof;
“State Energy Commission” means the
State Energy Commission of Western Australia established pursuant to the State
Energy Commission Act 1945 ;
“Wagerup refinery” means a refining
plant at or near Wagerup in which bauxite is treated to produce alumina;
“Wagerup refinery site” means the site
on which the Wagerup refinery is to be situated as delineated and coloured red
on the plan marked “A” (initialled by the parties hereto for the
purposes of identification) together with such other land as may be agreed
upon between the parties from time to time;
“the principal agreement” and the
“Pinjarra agreement” refer to those agreements respectively
whether in their original form or as from time to time added to, varied or
amended;
“this Agreement” “hereof”
and “hereunder” refer to this Agreement whether in its original
form or as from time to time added to, varied or amended;
words and phrases to which meanings are given
under clause 2 of the principal agreement (other than words and phrases to
which meanings are given in this Agreement) shall have the same respective
meanings in this Agreement as are given to them under clause 2 of the
principal agreement;
words and phrases to which meanings are given
under clause 1 of the Pinjarra agreement (other than words and phrases to
which meanings are given in this Agreement) shall have the same respective
meanings in this Agreement as are given to them under clause 1 of the Pinjarra
agreement.
Initial obligations of the State 2
2. The State shall —
(a)
introduce and sponsor a Bill in the Parliament of Western Australia to ratify
this Agreement and endeavour to secure its passage as an Act prior to 31st
December, 1978; and
(b) to
the extent reasonably necessary for the purposes of this Agreement but subject
to the provisions of clause 13 (2) of the principal agreement where applicable
allow the Company to enter upon Crown lands.
Ratification and operation 2
3. (1) The provisions
of this Agreement other than this clause and clauses 1 and 2 shall not come
into operation until the Bill referred to in clause 2 has been passed by the
Parliament of Western Australia and comes into operation as an Act.
(2) If before 31st
December, 1978 the said Bill is not passed then unless the parties hereto
otherwise agree this Agreement shall then cease and determine and neither of
the parties hereto shall have any claim against the other of them with respect
to any matter or thing arising out of, done, performed or omitted to be done
or performed under this Agreement.
(3) On the said Bill
commencing to operate as an Act all the provisions of this Agreement shall
operate and take effect notwithstanding the provisions of any Act or law.
Refinery 2
4. The Company shall, subject to the approval by
the State of the environmental review and management programme, commence to
construct the Wagerup refinery at the Wagerup refinery site and thereafter
continue such construction and —
(a)
within 3 years of the date upon which the environmental review and management
programme is approved, complete and have in operation the first stage of the
Wagerup refinery with a capacity to produce not less than 200 000 tonnes of
alumina per annum, and
(b)
within 15 years of the date upon which the first stage of the Wagerup refinery
is completed and in operation pursuant to paragraph (a) of this clause, expand
the Wagerup refinery to have a capacity to produce approximately 2 000 000
tonnes of alumina per annum.
PROVIDED THAT if the Company shall in writing reasonably demonstrate to the
Minister that it has used its best endeavours to negotiate, on terms
reasonably acceptable to the Company, the finance required to construct or, as
the case may be, expand the Wagerup refinery and to complete, on terms
reasonably acceptable to the Company, the sales contracts necessary for the
sale of alumina produced at the Wagerup refinery to make the Company’s
project economically practicable, but because of prevailing finance and/or
market conditions it has been unsuccessful, the Minister shall grant the
Company such extensions of time as are appropriate to the situation PROVIDED
FURTHER that nothing in this clause shall limit the effect of clause 29 of the
principal agreement or clause 11 of the Pinjarra Agreement.
Mining Plan 2
5. The Company after consultation with the
Conservator of Forests will prepare and submit to the State not later than two
years after the 30th day of June, 1978 a plan in reasonable detail of its
proposed mining operations upon areas of State Forest and Crown land during
the succeeding ten years and such plan after like consultation shall be
reviewed and resubmitted thereafter at yearly intervals.
Environment, Environmental Review and Management Programme 2
6. (1) On or before
30th June, 1978 the Company shall submit to the Minister for approval by the
State a detailed environmental review and management programme as to measures
to be taken in respect of the Company’s undertakings pursuant to clause
4 and the mining operations associated therewith for the protection and
management of the environment including rehabilitation and/or restoration of
the mined areas and areas used for the disposal of red mud, the prevention of
the discharge of tailings, slimes, pollutants or overburden and the
minimization of salt release into the surrounding country, water courses,
lakes or underground water supplies and the prevention of soil erosion.
Continuous programme of investigation and research 2
(2) The Company shall
implement the environmental review and management programme approved under
subclause (1) of this clause and any variation thereof that the State may
approve from time to time and shall carry out continuous investigations and
research (including monitoring and the study of sample areas to ascertain the
effectiveness of the measures it is taking pursuant to the approved
environmental review and management programme for the protection and
management of the environment.
Reports 2
(3) The Company shall,
during the currency of this Agreement, at yearly intervals commencing twelve
months after the environmental review and management programme is approved
submit an interim report to the State concerning investigations and research
carried out pursuant to subclause (2) of this clause and at 3 yearly intervals
commencing from such date submit a detailed report to the State on the result
of the investigations and research during the previous 3 years.
Additional information 2
(4) The State may
require the Company to submit such additional information as may be reasonably
required in respect of all or any of the matters the subject of the detailed
report.
Environment. Further expansion of refinery 2
7. If the Company proposes to expand the refinery
beyond a capacity of 2 000 000 tonnes per annum to any capacity not exceeding
4 000 000 tonnes per annum the provisions of clause 6 shall apply mutatis
mutandis in respect of the Company’s proposed expansion and the mining
operations associated therewith.
State Energy Commission. Establishment of facilities 2
8. The Company and the State Energy Commission are
empowered to enter into arrangements for —
(1) the establishment
of combined electricity generating and steam generating facilities by the
Company and the State Energy Commission upon terms and conditions to be agreed
between them; and
Sale of energy 2
(2) the sale of energy
by the Company to the State Energy Commission.
Additional areas of leased land at Bunbury 2
9. Where in the opinion of the Minister, the
Company, by reason of the expansion of its operations pursuant to this
Agreement and/or the Pinjarra agreement, requires land in the vicinity of the
port at Bunbury, in addition to land leased to the Company pursuant to the
provisions of paragraph (d) of subclause (4) of clause 5 of the Pinjarra
agreement, the State shall lease to the Company such additional area or areas
of land as the Minister may determine (at such rentals as may be agreed upon)
having regard to the requirements of the Bunbury Port Authority, the State
Energy Commission and to the requirements of other users of the port.
Rail transport 2
10. (1) Subject to the
provisions of subclauses (2) and (3) of this clause the Company shall
transport by rail —
(a) to
Bunbury and/or Kwinana all alumina for shipment by sea produced from the
Wagerup refinery;
(b) from
Bunbury and/or Kwinana to the Wagerup refinery all the Company’s
requirements of bulk materials required for the operations of the refinery
including caustic soda and fuel oil; and
(c) the
Company’s requirements of lime, limestone and starch if the parties
agree that the tonneages distances and economics warrant the use of rail.
(2) The provisions of
subclause (1) of this clause shall not apply during any period in which the
State for any reason shall be unable to transport the Company’s daily
requirements by rail.
(3) The Company may,
subject to clause 14 —
(a)
transport bauxite to the Wagerup refinery by conveyor; and
(b)
transport caustic soda, and gaseous and liquid fuels by pipeline.
Upgrading and rolling stock 2
(4) The Company shall,
if required by the State, advance to the State a sum or sums to be agreed
between the parties towards the cost of the State providing locomotives,
brakevans and wagons for the purposes of this Agreement and of upgrading the
existing railway from Wagerup to Bunbury and/or Kwinana according to a
mutually acceptable programme. Any advances made pursuant to this paragraph
shall be repaid on terms and conditions (including the rates of interest) to
be agreed between the parties at the time.
Freight rates 2
(5) The Company and
the Railways Commission shall enter into a freight agreement embodying the
terms and conditions under which commodities are to be carried by the Railways
Commission pursuant to this Agreement.
Additional facilities 2
(6) The Company shall
in accordance with plans and specifications agreed upon between the Company
and the Railways Commission at its own cost provide, maintain, and renew as
necessary loading and unloading facilities sufficient at all times to meet
train operating requirements and terminal equipment (including weighing
devices, communication systems and fixed site radio equipment, sidings,
shunting loops, spurs and other connections) together with a staff adequate to
ensure the proper operation of all such loading and unloading facilities and
terminal equipment.
Provision and maintenance of rolling stock 2
(7) Subject to
subclauses (4) (5) and (6) of this clause the Railways Commission shall at its
own cost provide maintain and service all railways, locomotives, brakevans and
wagons necessary and suitable for the purposes of this Agreement.
Notice of requirements 2
(8) The Company shall
provide to the satisfaction of the Railways Commission adequate notice in
advance of its requirements (including anticipated tonneages in each year) as
to the use of the railways to enable the Railways Commission to make
arrangements to meet those requirements and shall thereafter give not less
than 18 months prior notice of any significant change in those requirements.
In particular the Company shall agree with the Railways Commission the pattern
of working including weekly and monthly despatches.
Road licenses 2
11. The State shall —
(a)
ensure that subject to the provisions of subclause (1) of clause 10 and
subject to the payment by the Company of appropriate fees, the Commissioner of
Transport under the Transport Commission Act 1966 , will not refuse to grant
and issue to the Company (or suppliers to or contractors with the Company and
subcontractors of such contractors approved by the State) a license to
transport by road goods and materials required for the construction repair
operation and maintenance of the Wagerup refinery and associated mining or
shipping facilities within the area bounded by a circle having a radius of 110
kilometres from the Wagerup refinery site;
(b)
permit all goods and materials of the Company other than those referred to in
paragraph (a) of this clause to move by road subject to the provisions of the
Transport Commission Act; and
(c)
ensure that the appropriate fees charged to the Company for licenses under the
Transport Commission Act will not be such as to discriminate against the
Company its suppliers contractors and subcontractors.
Use of local professional services, labour and materials 2
12. (1) The Company
shall for the purposes of this Agreement as far as it is reasonable and
economically practicable —
(a) use
the services of engineers, surveyors, architects and other professional
consultants resident and available within the said State;
(b) use
labour available within the said State;
(c) when
calling for tenders and letting contracts for works materials plant equipment
and supplies ensure that Western Australian suppliers manufacturers and
contractors are given reasonable opportunity to tender or quote; and
(d) give
proper consideration and where possible preference to Western Australian
suppliers manufacturers and contractors when letting contracts or placing
orders for works materials plant equipment and supplies where price quality
delivery and service are equal to or better than that obtainable elsewhere.
(2) The Company shall
from time to time during the currency of this Agreement when requested by the
Minister submit a report concerning its implementation of the provisions of
subclause (1) of this clause.
Town development 2
13. (1) The Company
shall cause to be provided and where applicable maintained in the Wagerup
region and made available at such prices, rentals or charges and upon such
terms and conditions as are fair and reasonable under the circumstances,
housing accommodation to the extent necessary to provide for the needs of its
staff and employees and contractors engaged in the Company’s operations
hereunder.
(2) The parties
recognise that as a consequence in part of the progressive development of the
Company’s operations hereunder the need will progressively develop in
the Wagerup region for additional sewerage treatment works water supply
headworks main drainage educational hospital and police services. The Company
accepts the principle of fair and reasonable sharing by it whether by way of
capital contribution or otherwise of the costs of establishing and extending
such works and services having regard to the benefits flowing to the State,
the community, the Company and others therefrom.
(3) For the purposes
of this clause the “Wagerup region” refers to established
townships in the vicinity of the Wagerup refinery and the immediate
neighbourhoods of those towns, and such other areas as the Minister and the
Company may from time to time agree.
Proposals for transportation systems 2
14. (1) If the Company
desires to construct or cause to be constructed any railway, road, conveyor or
pipeline (including any necessary underpass or overpass of a public road or
railway) for the transport of —
(i)
bauxite, or any other substance required for the
operation of the Wagerup refinery, or
(ii)
alumina or any other substance produced as the result of
the operations of the Wagerup refinery,
the Company shall first submit proposals in respect of such construction for
the approval of the Minister.
(2) The provisions of
subclause (1) of this clause shall not apply in respect of the construction of
any road, conveyor or pipeline, on land owned by the Company, but nothing in
this subclause shall exempt the Company from compliance with the provisions of
any Act from time to time in force relating thereto.
Railways Commission to construct railway 2
(3) Any railway to be
constructed pursuant to subclause (1) of this clause shall subject to the
approved proposal be constructed by the Railways Commission at the cost of the
Company and the provisions of section 96 of the Public Works Act 1902 shall
not apply to such construction. Any such railway shall for all purposes, be
deemed to be constructed under the authority of a special Act passed on the
date of the said approved proposal and in accordance with section 96(1) of the
Public Works Act.
Easements 2
(4) The State shall
grant to the Company on such terms as the parties hereto shall agree such,
easements over Crown land as may be necessary to enable the Company to proceed
with construction pursuant to this clause.
Protection of works and prevention of injury 2
(5) The Company shall
in respect of works constructed on easements granted pursuant to subclause (4)
of this clause, take such measures as may be necessary to protect such works
and to prevent injury or damage to the public.
Water 2
15. (1) On or before
31st day of December, 1978, and from time to time thereafter as the Company
may require, the Company shall submit to the Minister for his approval its
proposals for the provision of water for the operation of the Wagerup refinery
and associated mining operations including details of proposed bores, dams,
supply channels or pipelines, and diversions of existing drainage or
irrigation works within the Wagerup refinery site.
(2) Subject to
subclause (1) the State shall grant to the Company pursuant to the provisions
of the Rights in Water and Irrigation Act 1914 , a licence or licences to
permit the Company to obtain water from above and/or below the surface of the
Wagerup refinery site up to a specified maximum annual quantity in respect of
each such source Provided However that the State may after consultation with
the Company, having regard to the water requirements of the Company, amend
such licence from time to time.
(3) The parties
recognise that as development of the Company’s water resources pursuant
to subclause (1) of this clause will be at the expense of the Company, the
Company will at all times be entitled to a first call on surface water from
sources situate within the Wagerup refinery site. Subject to the foregoing,
should at any time there not be available for any cause (including an
amendment of any licence granted under subclause (2) of this clause) an
adequate supply of water for the Company’s requirements, the State will
promptly use reasonable endeavours to establish an alternative or
supplementary supply and the Company will contribute a fair and reasonable
proportion of the costs involved.
Roads 2
Private roads 2
16. (1) The Company
shall —
(a) be
responsible for the cost of the construction and maintenance of all private
roads which shall be used in its operations hereunder;
(b) at
its own cost make such provision as shall ensure that all persons and vehicles
(other than those engaged upon the Company’s operations and its invitees
and licensees) are excluded from use of any such private roads; and
(c) at
any place where such private roads are constructed by the Company so as to
cross any railways or public roads provide such reasonable protection as may
be required by the Commissioner of Main Roads or the Railways Commission as
the case may be.
Public roads 2
(2) The State shall
maintain or cause to be maintained public roads over which it has control (and
which may be used by the Company) to a standard similar to comparable public
roads maintained by the State.
Upgrading 2
(3) In the event that
the Company’s operations require the use of a public road which is
inadequate for the purpose, or result in excessive damage or deterioration of
any public road (other than fair wear and tear) the Company shall pay to the
State the whole or an equitable part of the total cost of any upgrading
required or of making good the damage or deterioration as may be reasonably
required by the Commissioner of Main Roads having regard to the use of such
road by others.
Closure of roads 2
(4) The Minister may,
notwithstanding the provisions of the Local Government Act 1960 and the
Land Act 1933 , for the purpose of the Company’s operations under this
Agreement after consultation with the relevant local authority and the
Minister for Lands close and dispose of to the Company on such terms and
conditions as the Minister considers appropriate —
(a)
those portions of the roads on the plan marked “A” referred to in
clause 1 as are coloured blue; and
(b)
those portions of other roads bounded on either side by land owned by the
Company as the Company may from time to time require to be closed.
Replacement roads 2
(5) If the Minister is
of the opinion that the closure of portions of any road referred to in
subclause (4) of this clause prevents or impedes —
(a)
reasonable public access —
(i)
from the Armadale-Bunbury Road (also known as the South
Western Highway) to the Bunbury Highway (also known as the Old Coast Road); or
(ii)
from the Armadale-Bunbury Road to the Darling escarpment;
or
(iii)
between areas north and south of the Wagerup refinery
site;
(b) any
owner or occupier of land abutting or contiguous to such road from having
reasonable access to a public road, the Minister may require the Company to
construct or, where applicable upgrade, at its own expense to a standard
similar to comparable public roads constructed by the State or local authority
as the case may be, a road or roads to provide such access.
Liability 2
(6) The parties hereto
further covenant and agree with each other that —
(a) for
the purposes of determining whether and the extent to which —
(i)
the Company is liable to any person or body corporate
(other than the State); or
(ii)
an action is maintainable by any such person or body
corporate
in respect of the
death or injury of any person or damage to any property arising out of the use
of any of the roads for the maintenance of which the company is responsible
hereunder and for no other purpose the Company shall be deemed to be a
municipality and the said roads shall be deemed to be streets under the care
control and management of the Company; and
(b) for
the purposes of this clause the terms “municipality”
“street” and “care control and management” shall have
the meaning which they respectively have in the Local Government Act 1960 .
Environmental Protection 2
17. Nothing in this Agreement shall be construed
to exempt the Company from compliance with any requirement in connection with
the protection of the environment arising out of or incidental to the
operations of the Company hereunder that may be made by the State or any State
agency or instrumentality or any local or other authority or statutory body of
the State pursuant to any Act for the time being in force.
Amendments to principal agreement 2
18. The principal agreement is hereby amended by
substituting for clause 28 the following —
Variation 2
28. (1) The parties
hereto may from time to time by agreement in writing add to substitute for
cancel or vary all or any of the provisions of this Agreement or of any lease
licence easement or right granted hereunder or pursuant hereto for the purpose
of more efficiently or satisfactorily implementing or facilitating any of the
objects of this Agreement.
(2) The Minister shall
cause any agreement made pursuant to subclause (1) of this clause in respect
of any addition substitution cancellation or variation of the provisions of
this Agreement to be laid on the Table of each House of Parliament within 12
sitting days next following its execution.
(3) Either House may,
within 12 sitting days of that House after the agreement has been laid before
it pass a resolution disallowing the agreement, but if after the last day on
which the agreement might have been disallowed neither House has passed such a
resolution the agreement shall have effect from and after that last day.
Construction — principal agreement 2
19. The provisions of the principal agreement
shall mutatis mutandis apply to this Agreement except that where any
provision in the principal agreement is inconsistent with any provision in
this Agreement the provisions of this Agreement shall prevail.
Amendments to Pinjarra agreement 2
20. The Pinjarra agreement is hereby amended by
adding after clause 5 a new clause 5A as follows —
Modifications to Bunbury Port Authority Act 2
5A For the purpose of this Agreement in respect of
any land leased to the Company pursuant to the Bunbury Port Authority Act 1909
that Act shall be deemed to be modified by: —
(a) the
deletion of the proviso to section 25; and
(b) the
inclusion of a power to grant leases or licences for terms or periods
(including renewal rights) and for such purposes as are consistent with the
provisions of this Agreement, in lieu of the terms or periods and purposes
referred to in section 25.
Construction — Pinjarra agreement 2
21. The provisions of the Pinjarra agreement
(other than —
(a)
clause 4, subclause (2), paragraphs (c), (cc), (d), (e) and (hh);
(b)
clause 4, subclause (9), paragraphs (e), (f), (g) and (i);
(c)
clause 5, subclause (2);
(d)
clause 5, subclause (4), paragraphs (a), (b), (c), (d), (e) and (f);
(e)
clause 6;
(f)
clause 13; and
(g)
clause 15
thereof) shall mutatis mutandis apply to this Agreement except that where any
provision of the Pinjarra agreement is inconsistent with any provision in this
Agreement the provisions of this Agreement shall prevail.
In WITNESS whereof the parties hereto have executed this Agreement the day and
year first hereinbefore mentioned.
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SIGNED by the said THE |
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ANDREW MENSAROS
MINISTER FOR INDUSTRIAL DEVELOPMENT
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The COMMON SEAL of ALCOA |
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DIRECTOR
J. C. BATES
DIRECTOR
WALDO PORTER, Jr.
