Western Australian Current Acts Western Australian Current Acts[s. 2]
[Heading amended: No. 19 of 2010 s. 4.]
ALUMINA REFINERY (MITCHELL PLATEAU) AGREEMENT
THIS AGREEMENT made the 17th day of November, One thousand nine hundred and
seventy one, BETWEEN THE HONOURABLE JOHN TREZISE TONKIN M.L.A. Premier and
Treasurer of the State of Western Australia, acting for and on behalf of the
said State and Instrumentalities thereof from time to time (hereinafter called
“the State”) of the one part and AMAX BAUXITE CORPORATION a
Company incorporated in the State of Delaware United States of America and
registered as a foreign company in the State of Western Australia (hereinafter
referred to as “the said State”) under the provisions of the
Companies Act 1961 , and having its registered office situate at Perth in the
said State (hereinafter called “the Company”) of the other part.
WHEREAS:
(a) The
Company (and its predecessors in title) at a cost to 17th day of December,
1968 of over One Million Four Hundred Thousand Dollars ($1.4 Million) having
established the existence of bauxite reserves within the mining areas defined
in Clause 1 hereof and having already carried out certain investigations
relating to the mining beneficiation transport and refining of bauxite and the
shipment of bauxite and alumina from the mining areas desires to develop such
bauxite reserves and to establish a bauxite mining and beneficiation operation
and an alumina plant all of which it is anticipated will cost in excess of One
Hundred Million Dollars ($100,000,000).
(b) The
Company agrees to investigate in due course the feasibility of establishing
within the State an industry for smelting alumina produced from ore from the
mineral lease as hereinafter defined.
NOW THIS AGREEMENT WITNESSETH: —
Interpretation 3
1. In this Agreement subject to the context
—
“apply” “approve”
“approval” “consent” “certify”
“direct” “notify” or “request” means
apply, approve, approval, consent, certify, direct, notify or request in
writing as the case may be;
“associated company” means —
(a)
any company having a paid up capital of not less
than Two Million ($2,000,000) notified by the Company to the Minister which is
incorporated in the United Kingdom the United States America or the
Commonwealth of Australia or such other country as the Minister may approve
and which —
(i)
is a subsidiary of the Company within the meaning
of the term “subsidiary” in Section 6 of the Companies Act 1961 ;
(ii)
holds directly or indirectly not less than twenty
per cent (20%) of the issued ordinary share capital of the Company;
(iii)
is promoted by the Company or by any company that
holds directly or indirectly not less than twenty per cent (20%) of the issued
ordinary share capital of the Company for all or any of the purposes of this
Agreement and in which the Company or such other company holds not less than
twenty per cent (20%) of the issued ordinary share capital; or
(iv)
is related within the meaning of that term in the
aforesaid section to the Company or to any company in which the Company holds
not less than twenty per cent (20%) of the issued ordinary share capital and
(b)
any company approved in writing by the Minister
for the purposes of this Agreement which is associated directly or indirectly
with the Company in its business or operations hereunder;
“bauxite” means ore from the mineral
lease which either with or without crushing washing and screening is shipped
or sold as bauxite or is used for processing into alumina;
“commencement date” means the date
referred to as the commencement date in Clause 7(1) hereof;
“Commonwealth” means the Commonwealth
of Australia and includes the Government for the time being thereof;
“Company” means Amax Bauxite
Corporation and —
(a)
if this Agreement is assigned, means all the
permitted assigns of Amax Bauxite Corporation for the time being entitled to
the benefit of this Agreement; and
(b)
where the rights of the Company under this
Agreement to or as the holder of a lease, license, easement or other title
have been transferred or assigned by the Company, means in relation to the
lease, license, easement or other title, the person or persons for the time
being entitled to, or to the exercise of, those rights;
“Company’s wharf” means the
wharf or wharves constructed by the Company pursuant to this Agreement or
(except for the purposes of the definition of “port”) the
temporary wharf for the time being approved by the Minister as the
Company’s wharf for the purposes hereof during the period to which such
approval relates;
“Land Act” means the Land Act 1933 ;
“mineral lease” means the mineral
lease or mineral leases referred to in Clause 8(1)(a) hereof and includes any
renewal thereof;
“ Mining Act” means the Mining Act
1904 ;
“mining areas” means the mining areas
marked A, B, C, D and E and delineated and coloured red on the plan marked
“X” initialled by or on behalf of the parties hereto for the
purposes of identification;
“Minister” means the Minister in the
Government of the said State for the time being responsible (under whatsoever
title) for the administration of the Ratifying Act and pending the passing of
that Act means the Minister for the time being designated in a notice from the
State to the Company and includes the successors in office of the Minister;
“Minister for Mines” means the
Minister in the Government of the said State for the time being responsible
for the administration of the Mining Act;
“month” means calendar month;
“notice” means notice in writing;
“person” or “persons”
includes bodies corporate;
“port” means the port or harbour in
the general area of Port Warrender or such other area as the Company requests
and the Minister approves and serving the Company’s wharf;
“RDA” means a regional development
authority to which land is leased by the State for the purposes among others
of construction of any regional facilities pursuant to Clause 5(3) hereof;
“Ratifying Act” means the Act to
ratify this Agreement and referred to in Clause 3 hereof;
“refinery” means a refining plant at
or near the port in which bauxite is treated to produce alumina;
“refinery site” means the site on
which the refinery is or is to be situated;
“regional facilities” means the town
facilities and the provision of utilities including electrical generating
plants and transmission lines, sewage disposal and drawing, storing,
reticulating and supplying water for the Company’s operations under this
Agreement;
“said State” means the State of
Western Australia;
“smelter” means an electrolytic
reduction plant for the conversion of alumina to aluminium using alumina
produced from bauxite;
“special grade bauxite” means ore
which is sold as refractory grade abrasive grade or chemical grade bauxite;
“special lease” means a special lease
or license to be granted in terms of this Agreement under the Ratifying Act
the Mining Act the Land Act or the Jetties Act 1926 and includes any renewal
thereof;
“this Agreement” “hereof”
and “hereunder” includes this Agreement as from time to time added
to varied or amended;
“ton” means a ton of two thousand two
hundred and forty (2,240) lbs. net dry weight;
“town facilities” means in relation to
the townsite all housing and business premises, all health, educational,
social, recreational, security and welfare services, amenities, benefits and
facilities, all communications and transportation facilities (including
aerodrome) and all other works or facilities necessary or desirable for the
purpose of the town and the anticipated population thereof;
“townsite” means the townsite to be
established pursuant to this Agreement whether or not constituted and defined
under Section 10 of the Land Act;
“wharf” includes any jetty structure;
“year 1” means the year next following
the commencement date, and
“year” followed immediately by any
other numeral has a corresponding meaning;
monetary references in this Agreement are to
Australian currency;
reference in this Agreement to an Act shall
include the amendments to such Act for the time being in force and also any
Act passed in substitution therefor or in lieu thereof and the regulations for
the time being in force thereunder;
power given under any clause of this Agreement
other than Clause 18 hereof to extend any period or date shall be without
prejudice to the power of the Minister under the said Clause 18;
marginal notes shall not affect the interpretation
or construction hereof 3 ;
the phases in which it is contemplated that this
Agreement will operate are as follows: —
(a) Phase 1 — the
period from the execution hereof by the parties hereto until the commencement
date;
(b) Phase 2 — the
period thereafter.
Obligations of the State during Phase 1 3
2. (1) The State shall
—
(a) upon
application by the Company at any time prior to the 30th day of June, 1972
(and surrender of the then existing rights of occupancy already granted in
respect of any portions of the mining areas) cause to be granted to the
Company rights of occupancy for a period of twelve months for the purposes of
this Agreement (including the sole right to search and prospect for bauxite)
over each of the mining areas under Section 276 of the Mining Act at a rental
of Fifty Dollars ($50) per annum in respect of each mining area payable in
advance and shall then and thereafter subject to the continuance of this
Agreement cause to be granted to the Company as may be necessary successive
renewals of such last mentioned rights of occupancy (each renewal for a period
of twelve (12) months at the same rental and on the same terms) in respect of
each mining area the last of which renewals notwithstanding its currency shall
in relation to the mining area concerned expire —
(i) on
the date of grant of a mineral lease of that mining area to the Company under
Clause 8(1)(a) hereof;
(ii) on
the expiration of six years from the commencement date; or
(iii) on
the determination of this Agreement pursuant to its terms
whichever shall first
happen;
(b)
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 the 31st
day of December, 1971, which Bill shall include a provision that
notwithstanding any other Act or law this Agreement shall be carried out and
take effect as though its provisions had been expressly enacted;
(c) to
the extent reasonably necessary for the purposes of Clauses 4 and 5 hereof
allow the Company to enter upon Crown lands (including land the subject of a
pastoral lease) and survey possible sites for its operations under this
Agreement; and
(d) at
the request and cost of the Company co-operate with the Company in the
discharge of the Company’s obligations under Clause 4(1) hereof.
(2) Notwithstanding
anything contained or implied in this Agreement or in the rights of occupancy
granted pursuant to subclause (1) of this clause the State may grant to or
register in favour or persons other than the Company rights of occupancy
leases and other mining tenements in respect of minerals other than those
which would be the subject of the mineral lease unless the Minister for Mines
reasonably determines that such grant would be likely to unduly prejudice or
interfere with the operations or possible operations of the Company assuming
the taking by the Company of all reasonable steps to avoid the prejudice or
interference and any mineral lease granted pursuant to Clause 8(1) hereof
shall be subject to any such rights of occupancy leases or other mining
tenements granted pursuant to this subclause.
Ratification and operation 3
3. (1) Clauses 8 and 9
and Clause 10 (other than paragraphs (m) and (n) thereof) and Clause 11 of
this Agreement shall not operate unless and until the Bill to ratify this
Agreement as referred to in Clause 2(b) hereof is passed as an Act before the
31st day of December, 1971, or such later date if any as the parties hereto
may mutually agree upon.
(2) If the Bill is not
so passed before that date or later date (as the case may be) this Agreement
will then cease and determine and neither of the parties hereto will 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
except as hereinafter provided in Clause 10(n) hereof.
(3) On the Bill
referred to in subclause (1) of this clause 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 and for the purposes of this
Agreement and notwithstanding the generality of the foregoing: —
(a) The
Mining Act the Land Act the Transfer of Land Act 1893 and the Public Works
Act shall be deemed modified and amended to the extent necessary to enable
full force and effect to be given to this Agreement;
(b)
Without prejudice to the generality of the foregoing the Mining Act shall be
deemed modified and amended by the deletion of subsections (3) and (5) of
Section 277 and Section 282;
(c)
Without prejudice to the generality of the foregoing the Transfer of Land Act
1893 shall be deemed modified and amended by the deletion of Section 81D;
(d)
Without prejudice to the generality of the foregoing the Land Act shall be
deemed modified and amended by —
(i) The
substitution for subsection (2) of Section 45A of the following subsection:
—
(2)
Upon the Governor signifying approval pursuant to
subsection (1) of this section in respect of any such land the same may
subject to this section be sold or leased;
(ii) The
deletion of the proviso to Section 116;
(iii)
The deletion of Section 135;
(iv) The
deletion of Section 143;
(v) The
inclusion of a power to offer for sale or leasing land within or in the
vicinity of the townsite notwithstanding that the townsite has not been
constituted a townsite under Section 10; and
(vi) The
inclusion of a power to offer for sale or grant leases or licenses for terms
or periods and on such terms and conditions (including renewal rights) and in
forms consistent with the provisions of this Agreement in lieu of the terms or
periods and the terms conditions and forms referred to in the Act and upon
application by the Company in forms consistent as aforesaid in lieu of in the
forms referred to in the Act;
(e) The
State and the Minister respectively shall have all the powers discretions and
authorities necessary or requisite to enable them to carry out and perform the
powers discretions authorities and obligations conferred or imposed upon them
respectively hereunder;
(f) No
future Act of the said State will operate to increase the Company’s
liabilities or obligations hereunder;
(g) The
State may as for a public work under the Public Works Act 1902 , resume any
land or any estate right or interest to in over or in respect of land required
for the purposes of this Agreement and may lease or otherwise dispose of the
same to the Company;
(h)
Notwithstanding the provisions of Section 82 of the Mining Act and of
regulations 192 and 193 made thereunder and of Section 81D of the
Transfer of Land Act 1893 insofar as the same or any of them may apply no
mortgage or charge in a form commonly known as a floating charge made or given
pursuant to Clause 14 hereof over any lease license reserve or tenement
granted hereunder or pursuant hereto by the Company or any assignee or
appointee who has executed and is for the time being bound by deed of covenant
made pursuant to Clause 14 hereof and no transfer or assignment in exercise of
any power of sale contained in such mortgage or charge shall require any
approval or consent other than such consent as may be necessary under Clause
14 hereof and no such mortgage or charge shall be rendered ineffectual as an
equitable charge by the absence of any approval or consent otherwise than as
required by Clause 14 hereof or because the same is not registered under the
provisions of the Mining Act; and
(i)
No lease sub-lease license or other title or right
granted or assigned under or pursuant to this Agreement shall be subject to or
capable of partition including partition under the Property Law Act 1969 or
under any order of any Court of competent jurisdiction under that Act or
otherwise or be subject to the making of an order for sale under the said Act.
Obligations of the Company during Phase 1 3
4. (1) The Company
shall continue its field and office engineering studies and market and finance
studies and other matters necessary to enable it to finalise and to submit to
the Minister the detailed proposals and other matters referred to in Clause
5(1) hereof.
(2) The Company shall
keep the State fully informed in writing at least quarterly commencing within
three months after the execution hereof as to the progress and results of the
Company’s operations under subclause (1) of this clause.
(3) The Company shall
co-operate with the State and consult with the representatives or officers of
the State regarding matters referred to in subclause (1) of this clause.
(4) The Company will
employ and retain expert consultant engineers to investigate report upon and
make recommendations in regard to the sites for and design of the
Company’s wharf (including areas for installations stockpiling and other
purposes in the port area) reasonably required by the Company under this
Agreement but in such regard the Company will require the consultant engineers
to have full regard for the general development of the port area and the
dredging thereof and of approaches thereto with a view to the reasonable use
by others of the port area and approaches and the Company will furnish to the
State copies of such report and recommendations.
Company to submit proposals 3
5. (1) By the 31st day
of December 1971 or if the Company requests an extension to the 30th day of
June 1972 then by that date (or such further extended date if any as the
Minister may approve) the Company will where not already done submit to the
Minister —
Works 3
(a) to
the fullest extent reasonably practicable its detailed proposals (including
plans where practicable and specifications where reasonably required by the
Minister) with respect so far as relevant to the development of the mining
areas (or so much thereof as shall be comprised in the mineral lease) for the
mining transport and shipment of bauxite and the production and shipment of
alumina and including the location area layout design number materials and
time programme for the commencement and completion of construction or the
provision (as the case may be) of each of the following matters namely —
(i) the
port and port development including dredging and depositing of spoil the
provision of navigational aids the Company’s wharf (the plans and
specifications for which wharf shall be submitted to and be subject to the
approval of the State) the berth and swinging basin for the Company’s
use and port installations facilities and services all of which shall permit
the use of the bauxite and alumina loading wharf by vessels having a capacity
of not less than thirty thousand (30,000) tons deadweight tonnage (including
but not as part of such proposals a preliminary design for and cost estimate
of expanding such facilities to enable the use of the bauxite and alumina
loading wharf by vessels having a capacity of not less than sixty thousand
(60,000) tons deadweight tonnage);
(ii)
bauxite and alumina transport facilities;
(iii)
the townsite and town facilities;
(iv)
regional facilities other than town facilities;
(v) the
refinery;
(vi) any
other works services or facilities desired by the Company; and
Marketing and Finance 3
(b)
subject to the provisions of subclause (5) of this clause reasonable evidence
of marketing arrangements demonstrating the Company’s ability to sell or
use alumina produced from the refinery and reasonable evidence of the
availability of finance necessary for the fulfilment of the Company’s
proposals under this clause.
Order of submission of proposals 3
(2) The Company shall
have the right to submit to the Minister its detailed proposals aforesaid in
regard to a matter or matters the subject of any of the sub-paragraphs
numbered (i) to (vi) inclusive of paragraph (a) of subclause (1) of this
clause as and when the detailed proposals become finalised by the Company
PROVIDED THAT where any such matter is the subject of a sub-paragraph which
refers to more than one subject matter the detailed proposals will relate to
and cover each of the matters mentioned in the sub-paragraph PROVIDED FURTHER
that the first detailed proposals submitted to the Minister relate to and
cover the matters mentioned in sub-paragraph (i) of the said paragraph (a) of
the said subclause (1).
(3) In regard to
regional facilities the Company shall submit proposals in respect of
arrangements with the RDA (including details of proposed borrowings by the
RDA) on the basis —
(a) of
the RDA being constituted by an Act of the Parliament of Western Australia as
a body corporate;
(b) of
the RDA undertaking to construct the regional facilities and to grant to the
State a head sub-lease of an area for the townsite within the area to be
granted to the RDA pursuant to Clause 8(1)(d) hereof and of all regional
facilities thereon or on some part thereof for a term of forty-two (42) years
and one day at
(i) a yearly rent which with
interest at a rate agreed on between the Company the RDA and the State will
amortise the total cost to the RDA of constructing the regional facilities and
such interest thereon over a period of forty-two (42) years provided that if
the RDA is required to repay moneys borrowed for the construction of the
regional facilities over a shorter period than forty-two years the State will
prepay the rent in such instalments (not exceeding in total the amount payable
by the RDA) as will enable the RDA to meet its obligations as to payment of
principal and interest; and
(ii) at such additional yearly rent
which with interest at a rate agreed and approved as aforesaid will amortise
the total cost to the RDA of any subsequent improvements or additions to the
regional facilities carried out by the RDA at the request of the Company and
such interest thereon over such period (not exceeding the then balance of the
term of the head sub-lease) as may be agreed between the Company, the RDA and
the State;
(c)
subject to paragraphs (e), (f), (g), (h) and (i) below of such head sub-lease
containing such other terms and conditions (including renewal for the same
period as any renewal of the mineral lease under Clause 8(1)(a) hereof) as may
be agreed upon between the Company, the RDA and the State;
(d) of
the State granting to the Company a sub-lease (to which sub-lease the RDA
would be a party) of the regional facilities for the same term as the head
sub-lease less one day and at the same rent (including the obligation to
prepay rent) and on the same terms and conditions as are contained in the head
sub-lease including in particular the terms and conditions set out in
paragraphs (e), (f), (g), (h) and (i) below;
(e) of
the RDA agreeing in the head sub-lease and in the sub-lease from the State to
the Company that the RDA will, subject to the obtaining of finance on terms
satisfactory to itself the Company and the State, make such improvements or
additions to the regional facilities as may be requested by the Company and
will not, subject to paragraph (g) below, make any improvements or additions
which would unduly prejudice the Company in relation to its operations under
this Agreement or such sub-lease or prejudicially interfere with those
operations or which would increase the Company’s commitments under this
Agreement or such sub-lease or prejudicially interfere with the
Company’s control over the land or any part thereof the subject of such
sub-lease;
(f) of
the RDA agreeing that it will pay to the Company in respect of the use of any
of the town facilities by the RDA or any lessee or sub-lessee of the RDA
(permission for which use the Company shall not unreasonably withhold) a
reasonable licence fee having regard to the proportions of use by the Company
and the RDA or such lessee or sub-lessee;
(g) of
the RDA agreeing with the Company that any improvements or additions to the
regional facilities (other than the town facilities) which the RDA may wish to
make on any area the subject of a sub-lease to the Company for the benefit of
any person other than the Company (consent to the making of which the Company
shall not unreasonably withhold) shall be made without cost to the Company;
(h) of
the RDA agreeing that the Company shall be entitled to operate and maintain
any improvements or additions made pursuant to paragraph (g) at the cost of
the RDA and to supply power or water (as the case may be) on behalf of and at
the cost of the RDA on reasonable terms including a fair charge for the rental
cost to the Company of the regional facilities to which such improvements or
additions have been made;
(i)
of the Company accepting the obligation (subject to
paragraph (h) of this subclause) to maintain and operate the regional
facilities at its own expense and indemnify the State in regard thereto; and
(j) of
the Company procuring in favour of the State a covenant in a form and by a
third party or third parties approved by the State assuring the completion of
all works (including regional facilities) the subject of and in accordance
with the proposals of the Company as approved or determined under Clause 6
hereof and assuring that in the event of the sub-lease being terminated
pursuant to its terms or pursuant to this Agreement the amounts which would
thereafter have been payable by way of rental (including any rental
prepayable) by the Company if such sub-lease had not been terminated will be
paid as and when they would have become due and payable.
Recognising that the concept of the RDA is only at this time in the
exploratory stage and that neither the State nor the Company have yet had an
opportunity of considering in detail its practicability the State and the
Company will consult from time to time as may be necessary with regard to the
feasibility of the establishment of the RDA in order that the State may, if at
any time prior to the Company’s proposals being approved or determined
it considers the promotion and development of the RDA to be impracticable,
request the Company to submit its proposals in accordance with subclause (4)
of this clause in lieu of this subclause.
(4) If the Company
considers that the foregoing arrangements for the RDA are impracticable it may
at any time before or after submitting the proposals referred to in the
foregoing provisions of subclause (3) of this clause or after such proposals
have been disapproved under Clause 6(1)(b) hereof submit proposals or
alternative proposals for the provision and financing of regional facilities
either by means of one or more corporations or by the Company or any
associated company, and also including such provisions as may be considered
necessary or desirable for the granting of any lease or leases by the State to
any one or more of such corporations of the townsite and any other areas
required for regional facilities either through a head sub-lease to the State
or otherwise.
Extensions of time as to finance 3
(5) If the Company
should in writing and within the time later in this subclause mentioned
request the Minister to grant an extension or any further extension of time
beyond the 30th day of June, 1972 (or such later date if any previously
granted or approved by the Minister) within which to arrange finance and
demonstrates to the satisfaction of the Minister that the Company has duly
complied with its other obligations hereunder then —
(a) the
Minister will grant an extension for a period to the 31st day of December,
1972 provided the Company applies for such extension not earlier than the 31st
day of March, 1972 and not later than the 31st day of May, 1972 and provided
the Company supplies to the Minister reasonably full details of the
Company’s best but unsuccessful endeavours to arrange such finance; and
(b) if
an extension is granted under paragraph (a) of this subclause then provided
the Company demonstrates to the satisfaction of the Minister that it has again
used its best but unsuccessful endeavours to arrange such finance the Minister
will grant a further extension for such period as may be warranted in the
circumstances and as may be mutually agreed or fixed by arbitration as
hereinafter provided but not in any case exceeding
(i)
three years on request made within one month before the 31st day of December,
1972; and
(ii) if
an extension is granted under sub-paragraph (i) of this paragraph then for not
exceeding a further period of two years on request made before the expiration
of period of extension granted under the said sub-paragraph (i)
subject always and in
every case to the condition that the Company duly complies (or complies to the
satisfaction of the Minister) with its other obligations hereunder.
Consideration of proposals under clause 5(1) 3
6. (1)
(a) Within two (2) months after receipt of the
detailed proposals of the Company in regard to any of the matters mentioned in
Clauses 5(1)(a) and 5(3) hereof the Minister shall except as to any of the
matters mentioned in Clause 5(3) hereof give to the Company notice either of
his approval of the proposals or of alterations desired thereto and in the
latter case shall afford to the Company opportunity to consult with and to
submit new proposals to the Minister. The Minister may make such reasonable
alterations to or impose such reasonable conditions on the proposals or new
proposals (as the case may be) as he shall think fit having regard to the
circumstances including the overall development and use by others as well as
the Company but the Minister shall in any notice to the Company disclose his
reasons for any such alterations or conditions PROVIDED THAT the Minister
shall not (except on the grounds of conflict with the Mines Regulation Act
1946 ) make any alterations to or impose conditions upon the proposals or new
proposals insofar as they relate to the site of the mining operations or the
mining methods selected by the Company or to the technical aspects of the
Company’s plant for the crushing washing and screening of ore from the
mineral lease or of the refinery.
Consideration of proposals under clause 5(3) 3
(b)
Within two (2) months after receipt by the Minister of the detailed proposals
of the Company in regard to any of the matters mentioned in clause 5(3) hereof
the State shall give to the Company notice either of its approval of the
proposals or of alterations desired thereto and in the latter case shall
afford to the Company opportunity to consult with and to submit new proposals
to the State or give notice of its disapproval of the proposals on the grounds
that the State is not satisfied that appropriate financial arrangements can be
made with respect to the RDA’s borrowing. The State may make such
alterations to or impose such conditions on the proposals or new proposals (as
the case may be) as it shall think fit having regard to the circumstances but
the State shall in any notice to the Company disclose its reasons for any such
alterations or conditions. If the Company does not within one month thereafter
notify the State that it accepts such alterations or conditions the State
shall be deemed to have given notice of is disapproval of the proposals.
If the State gives notice of disapproval as
aforesaid such disapproval shall not be arbitrable under this Agreement.
Arbitration as to proposals 3
(2) Except as provided
in Clause 6(1)(b) hereof within two (2) months of the receipt of any notice
under Clause 6(1) hereof the Company may elect by notice to the State to refer
to arbitration and within two (2) months thereafter shall refer to arbitration
as hereinafter provided any dispute as to the reasonableness of any such
alteration or condition. If by the award on arbitration the dispute is decided
against the Company then unless the Company within three (3) months after
delivery of the award gives notice to the Minister of its acceptance of the
award this Agreement shall on the expiration of that period of three (3)
months cease and determine (save as provided in Clause 10(n) hereof) but if
the question is decided in favour of the Company the decision will take effect
as a notice by the Minister or the State (as the case may be) that he or it is
so satisfied with and approves the matter or matters the subject of the
arbitration.
Effect of non approval of proposals 3
(3) Notwithstanding
that under subclause (1) of this clause any detailed proposals of the Company
are approved by the State or the Minister or determined by arbitration award
unless each and every such proposal and matter is so approved or determined by
the 28th day of February, 1972 or by such extended date if any as the Company
shall be entitled to or shall be granted pursuant to the provisions hereof
then at any time after the said 28th day of February, 1972, or if any
extension or extensions should be granted under Clause 5(5) hereof or any
other provision of this Agreement then on or after the expiration of the last
of such extensions the Minister may give to the Company twelve (12) months
notice of intention to determine this Agreement and unless before the
expiration of the said twelve (12) months period all the detailed proposals
and matters are so approved or determined this Agreement shall cease and
determine subject however to the provisions of Clause 10(n) hereof.
Effect of termination on contract with any other party 3
(4) If under any
arbitration under Clause 6 hereof the dispute is decided against the Company
and subsequently but before the commencement date this Agreement ceases and
determines the State will not for a period of three (3) years after such
determination enter into a contract with any other party for operations in
respect of bauxite from any part of the mining areas on terms more favourable
on the whole to the other party than those which would have applied to the
Company hereunder if the Company had given notice to the Minister of its
acceptance of the award.
Commencement date 3
7. (1) Subject to the
approval or determination by arbitration as herein provided of each and every
of the detailed proposals and matters referred to in Clause 5 hereof the date
upon which the last of those proposals of the Company shall have been so
approved or determined shall be the commencement date for the purposes of this
Agreement.
Right of termination 3
(2) The Company may at
any time prior to the commencement date give notice to the Minister that it
does not wish to proceed with this Agreement whereupon this Agreement shall
cease and determine.
Phase 2 — obligations of State 3
8. (1) As soon as
conveniently may be after the commencement date the State shall —
Mineral lease after commencement date 3
(a) On
application made by the Company at any time or from time to time before the
expiration of six years from the commencement date for a mineral lease of any
one or more of the mining areas or parts thereof (where practicable in the
shape of a parallelogram or parallelograms) cause any necessary survey to be
made of the land so applied for (the cost of which survey to the State will be
recouped or repaid to the State by the Company on demand after completion of
the survey) and shall cause to be granted to the Company a mineral lease of
the land so applied for (notwithstanding the survey in respect thereof has not
been completed but subject to such corrections to accord with the survey when
completed) in the form of the Schedule hereto for a term which subject to the
payment of rents and royalties hereinafter mentioned and to the performance
and observance by the Company of its obligations under the mineral lease and
otherwise under this Agreement shall be for a period expiring on the
expiration of twenty-one (21) years from the commencement date with the option
for the Company to renew the same for a further period of twenty-one (21)
years upon the same terms and conditions (except the option for further
renewal) but subject to earlier determination upon the cessation or
determination of this Agreement PROVIDED HOWEVER that the Company may from
time to time (without abatement of any rent then paid or payable in advance)
surrender to the State all or any portion or portions (of reasonable size and
shape) of the mineral lease PROVIDED FURTHER and it is hereby agreed that if
required by the Company by notice to the Minister given not earlier than the
end of the tenth year and not later than the end of the nineteenth year of the
renewed term the State will enter into negotiations with the Company for a
further renewal of the mineral lease for a further period of twenty-one (21)
years at such rent and on such terms and conditions (including further
renewal) as may be mutually agreed (which agreement shall not be subject to
arbitration) and if the parties fail to reach such agreement before the end of
the twentieth year of the renewed term the State undertakes that it will not
for a period of three (3) years after the expiration of the renewed term grant
a mineral lease for bauxite of the same area or any part thereof to any other
party at a rent and on terms and conditions more favourable on the whole than
those which the State had offered to the Company;
(b) In
accordance with the Company’s proposals as finally approved or
determined under Clause 6(1)(a) or 6(2) hereof grant to the Company for a term
expiring on the same date and renewable for the same periods as the mineral
lease and on such other terms and conditions as shall be reasonable having
regard to the requirements of the Company hereunder and to the overall
development of the port and access to and use by others of lands the subject
of any grant to the Company and of services and facilities provided by the
Company —
(i) At
peppercorn rental — special leases of Crown lands within the port area
and the townsite; and
(ii) At
rentals as prescribed by law or are otherwise reasonable — special
leases rights mining tenements easements reserves and licences in or under
Crown lands for its works and operations hereunder including the construction
or provision of roads or tramways or other appropriate form of transport wharf
airstrip and water supplies;
(c) In
accordance with the Company’s proposals as finally approved under Clause
6(1)(b) hereof introduce and sponsor a Bill in the Parliament of Western
Australia to constitute the RDA;
(d) In
accordance with the Company’s proposals as finally approved under Clause
6(1)(b) hereof —
(i)
grant to the RDA for a term of ninety-nine (99) years (subject to earlier
determination at the State’s option on the termination of this
Agreement) at a peppercorn rental a special lease of Crown lands of such area
as the State and the RDA may agree not being less than the area required by
the Company for the provision of the regional facilities, and in particular on
terms that the RDA in accordance with such proposals will undertake to
construct the regional facilities and grant a head sub-lease of the regional
facilities to the State; and
(ii)
grant a sub-lease of the regional facilities to the Company;
(e) On
application by the Company at any time and from time to time cause to be
granted to it such machinery and tailings leases (including leases for the
dumping of over-burden) and such other leases licenses reserves and tenements
easements reserves and licenses (including those for limestone stone sand soil
timber and other minerals or materials) under the provisions of the Mining Act
or the Land Act modified as in Clause 3(3) hereof as the Company may
reasonably require for construction and operating or other purposes under this
Agreement; and
Services and facilities 3
(f)
Provide any services or facilities in accordance with the Company’s
proposals as finally approved or determined under Clause 6 hereof and also
provide any expanded services or facilities which from time to time are
reasonably considered necessary by the Minister subject in either case to the
Company bearing and paying the capital cost involved if reasonably
attributable to or resulting from the Company’s operations hereunder and
bearing and paying reasonable charges for maintenance and operation except
operation charges in respect of education hospital and police services and
except where and to the extent that the State otherwise agrees.
(2) The State further
covenants with the Company that the State —
No resumption 3
(a)
shall not during the currency hereof without the consent of the Company resume
nor suffer nor permit to be resumed by any State instrumentality or by any
local or authority of the said State any of the works installations plant
equipment or other property for the time being the subject of or used for the
purposes of this Agreement nor any of the lands the subject of any lease or
license granted under or pursuant to this Agreement AND the State will not
create or grant or permit or suffer to be created or granted by any
instrumentality or authority of the said State as aforesaid any road
right-of-way or easement of any nature or kind whatsoever over or in respect
of any such lands without the consent of the Company which consent shall not
be withheld unless such road right-of-way or easement as aforesaid would
—
(i)
unduly prejudice the Company or prejudicially interfere with the operations of
the Company under this Agreement; or
(ii)
increase the Company’s commitments or prejudicially interefere with the
Company’s control over any such lands;
Labour requirements 3
(b)
shall if so requested by the Company and so far as its powers and
administrative arrangements permit use reasonable endeavours to assist the
Company to obtain adequate and suitable labour for the construction and the
carrying out of the works and operations referred to in this Agreement
including suitable immigrants for that purpose;
No discriminatory rates 3
(c)
except provided in this Agreement shall not impose nor permit nor authorise
any of its agencies or instrumentalities or any local or other authority of
the said State to impose discriminatory taxes rates or charges of any nature
whatsoever on or in respect of the titles property or other assets products
materials or services used or produced by or through the operations of the
Company in the conduct of the Company’s business hereunder nor will the
State take or permit to be taken by any such State authority any other
discriminatory action which would deprive the Company of full enjoyment of the
rights granted and intended to be granted under this Agreement; and
Consents to improvements on leases 3
(d)
shall as and when required by the Company (but without prejudice to the
foregoing provisions of this Agreement relating to the detailed proposals and
matters referred to in Clause 5(1) hereof) consent where and to the extent
that the Minister considers to be reasonably justified to the Company or the
RDA making improvements for the purposes of this Agreement on the land
(including seabed) comprised in any lease granted by the State to the Company
or the RDA pursuant to this Agreement PROVIDED THAT the Company or the RDA
shall also obtain any other consents legally required in relation to such
improvements.
(3) The Company shall
not have any tenant rights in improvements made by the Company on the land
comprised in any lease granted by the State to the Company pursuant to this
Agreement in any case where pursuant to Clause 10(o) hereof such improvements
will remain or become the absolute property of the State.
Phase 2 Obligation of the Company to construct 3
9. (1) The Company
covenants with the State —
(a) the
Company will in accordance with its proposals as finally approved or
determined under Clause 6 hereof promptly after the commencement date commence
to construct a refinery and will thereafter continue such construction and
shall by the end of year 3 complete and have in operation the first stage of
the refinery having a capacity to produce not less than 200,000 tons of
alumina per annum and by the end of year 10 complete and have in operation the
refinery having a capacity to produce not less than 600,000 tons of alumina
per annum and from time to time during such construction period the Company
will if required by the Minister demonstrate to his satisfaction that such
progress is being made as will ensure completion of such stages within the
times aforesaid;
(b) the
Company will in accordance with its proposals as finally approved or
determined under Clause 6 hereof —
(i)
construct the Company’s wharf;
(ii)
dredge if required the berth at the Company’s wharf and any necessary
channel and approaches thereto including a swinging basin;
(iii)
develop or cause to be developed the townsite and construct or cause to be
constructed the regional facilities; and
(iv)
construct and provide other works (if any); and
(c) the
Company shall not ship or sell bauxite without the prior approval of the
Minister except that the Company may ship or sell the following quantities of
bauxite without such approval —
(i)
during the period from the commencement date to the end of year 3 — a
quantity up to but not exceeding 3,000,000 tons;
(ii)
during the period from the beginning of year 4 to the end of year 10 — a
quantity equal to two and one half tons of bauxite for each one ton of bauxite
fed to the refinery; and
(iii)
thereafter in each year in which the refinery operates at a rate which is not
below 200,000 tons less than its rated capacity a quantity of alumina which is
equal to two tons of bauxite for every one ton of bauxite fed to the refinery
PROVIDED THAT nothing in this paragraph shall prohibit the fulfilment of a
contract for the shipment or sale of bauxite which has received the approval
of the Minister.
(2) Throughout the
continuance of this Agreement the Company shall —
Operation of Tramway 3
(a)
operate any tramway it may construct in a safe and proper manner and where
necessary and to the extent that it can do so without unduly prejudicing or
interfering with its operations hereunder allow crossing places for roads and
stock;
Use of roads by others 3
(b)
except to the extent that the Company’s proposals as finally approved or
determined under Clause 6 hereof otherwise provide allow the public to use
free of charge any roads (to the extent that it is reasonable and practicable
so to do) constructed by the Company hereunder PROVIDED THAT such use shall
not unduly prejudice or interfere with the Company’s operations
hereunder;
Compliance with laws 3
(c) in
the construction operation maintenance and use of any work installation plant
machinery equipment service or facility provided or controlled by the Company
comply with and observe the provisions hereof and subject thereto the laws for
the time being in force in the said State;
Maintenance 3
(d) at
all times keep and maintain in good repair and working order and condition all
works installations plant machinery and equipment provided by the Company and
for the time being the subject of this Agreement;
Use of wharf and facilities 3
(e)
subject to and in accordance with by-laws (which shall include provision for
reasonable charges) from time to time to be made and altered as provided in
subclause (3) of this clause and subject thereto or if no such by-laws are
made or in force then upon reasonable terms and at reasonable charges (having
regard to the cost thereof to the Company) allow the State and third parties
to use the Company’s wharf and port installations and port equipment
PROVIDED THAT such use shall not unduly prejudice or interfere with the
Company’s operations hereunder and that the entire control and all
personnel for or in respect of such use shall be provided by or with the
approval of the Company;
Access through mining areas 3
(f)
allow the State and third parties to have access (with or without stock and
vehicles) over the mineral lease except for those parts of the mineral lease
which the Company may from time to time reasonably designate as restricted
areas for reasons of security or safety PROVIDED THAT such access over shall
not unduly prejudice or interfere with the Company’s operations
hereunder;
Protection for Inhabitants 3
(g)
subject to and in accordance with by-laws (which shall include provision for
reasonable charges) from time to time to be made and altered as provided in
subclause (3) of this clause and subject thereto or if no such by-laws are
made or in force then upon reasonable terms and at reasonable charges (having
regard to the cost thereof to the Company) allow the inhabitants for the time
being of the townsite being employees licensees or agents of the Company or
persons engaged in providing a legitimate and normal service to or for the
Company or their employees licensees or agents to make use of the water power
recreational health and other services or facilities provided or controlled by
the Company;
Use of local labour and materials 3
(h) so
far as reasonably and economically practicable use labour available within the
said State and give preference to bona fide Western Australian manufacturers
and contractors in the placement of orders for works materials plant equipment
and supplies where price quality delivery and service are equal to or better
than that obtainable elsewhere. In calling tenders and or letting contracts
for works materials plant equipment and supplies required by the Company the
Company will ensure that bona fide Western Australian manufacturers and
contractors are given reasonable opportunity to tender quote or otherwise be
properly considered for such works materials plant equipment and supplies;
Rent for mineral lease 3
(i)
by way of rent for the mineral lease pay to the State
annually in advance during the period expiring at the end of twenty-one (21)
years from the commencement date a sum equal to five dollars ($5) per square
mile of the area for the time being the subject of the mineral lease and
thereafter the amount from time to time prescribed by the Mining Act but not
exceeding ten dollars ($10) per square mile;
Royalties on bauxite during first 21 year period
3
(j) pay
to the State royalty on all bauxite shipped or used (other than bauxite
shipped solely for testing purposes) during the period expiring at the end of
twenty-one years from the commencement date as follows —
(i) on
bauxite shipped — twelve and one half (12.5) cents per ton;
(ii) on
bauxite used in the refinery — seven and one half (7.5) cents per ton;
(iii) on
special grade bauxite produced for refractory or special purposes (other than
for processing into alumina) and shipped to points within the Commonwealth
— twenty-five (25) cents per ton;
(iv) on
special grade bauxite produced for refractory or special purposes (other than
for processing into alumina) and shipped to points outside the Commonwealth
— forty (40) cents per ton.
The royalty payable
under this paragraph shall increase or decrease proportionately to the
increase or decrease in the mean quarterly world selling price of aluminium
above or below five hundred Australian dollars (A$500) per ton. The mean
quarterly world selling price of aluminium is deemed to be the average
expressed in Australian dollars of the four prices first quoted in the London
Metal Bulletin in respect of Canadian primary aluminium 99.5 per cent. purity
F.O.B. Toronto in each of the four quarters immediately preceding the quarter
referred to in subclause (1) of this clause in respect of which the royalty
return is required:
Royalties on bauxite after first 21 year period 3
(k)
After the expiration of the period referred to in paragraph (j) of this
subclause pay to the State on bauxite shipped (other than bauxite shipped
solely for testing purposes) royalty at such rate or rates as are prescribed
from time to time by the Mining Act and on bauxite used in the refinery at a
rate determined as follows —
(i) the
rate of royalty shall be reviewed by the State prior to the commencement of
year 22 and prior to the commencement of each seven yearly period thereafter;
(ii) the
rate of royalty for the seven yearly period immediately succeeding a review
shall subject to subparagraph (iii) of this paragraph be the rate determined
by the State on the review, or if not so determined within six (6) months
after the date for a review, shall be the rate existing immediately prior to
the date for the review;
(iii)
the royalty per ton for any seven yearly period shall not exceed the average
royalty per ton which during the three year period expiring on the 30th day of
June immediately preceding the respective date for the review was payable in
respect of bauxite (not from the mineral lease) used in the production of
alumina in the Commonwealth by other parties who or whose associates are
engaged in the combined operation of mining bauxite (not from the mineral
lease) and producing alumina in the Commonwealth in comparable projects with
comparable commitments in comparable areas;
Returns and payment of royalties of bauxite 3
(l) in
each of the months of January April July and October in each year the Company
will furnish to the Minister for Mines a return of all bauxite shipped or used
during the quarterly period ending on the preceding last day of December March
June and September as the case may be together with all other particulars
necessary to enable the calculation of the royalty payable thereon and shall
within thirty days after the expiration of each such quarterly period pay the
State the amount of royalty due and payable in respect of that quarter;
Royalties and returns for other minerals 3
(m) in
relation to clay and other minerals (except bauxite and minerals contained in
bauxite) mined by the Company from the mineral lease pay the royalties and
make the returns and allow access to books and accounts as required from time
to time by the Mining Act; and
Inspection 3
(n)
permit the Minister for Mines or his nominee to inspect at all reasonable
times the records of the Company relative to any shipment or use of bauxite
hereunder and to take copies or extracts therefrom for the purpose of
determining the royalty payable in respect of bauxite hereunder and the
Company will take reasonable steps to satisfy the State either by certificate
of a competent independent party acceptable to the State or otherwise to the
reasonable satisfaction of the Minister for Mines as to all relevant weights
and analyses and will give due regard to any objection or representation made
by the Minister for Mines or his nominee as to any particular weight or assay
of bauxite which may affect the amount of royalty payable hereunder.
By-laws 3
(3) The Governor in
Executive Council may upon recommendations by the Company make alter and
repeal by-laws for the purpose of enabling the Company to fulfil its
obligations under paragraph (e) of subclause (2) of this clause and (unless
and until the townsite is declared a townsite pursuant to section 10 of the
Land Act) under paragraph (g) of subclause (2) of this clause and under
paragraph (a) of clause 10 hereof upon terms and subject to conditions
(including terms and conditions as to user charging and limitation of the
liability of the Company) as set out in such by-laws consistent with the
provisions hereof. Should the State at any time consider that any by-law made
hereunder has as a result of altered circumstances become unreasonable or
inapplicable then the Company shall recommend such alteration or repeal
thereof as the State may reasonably require or (in the event of there being
any dispute as to the reasonableness of such requirement) then as may be
decided by arbitration hereunder.
Restoration of Mined Areas and Regeneration of Vegetation 3
(4) The Company will
agree from time to time with the Minister for Mines as to the progressive
restoration of the surface of the worked and mined areas and the regeneration
of vegetation thereon at the cost of the Company, having regard to good mining
and industrial practice, the remoteness of the area and its probable future
use, the state of any area before being worked or mined, the cost to the
Company, the risk of pollution or undue interference with any drainage system,
the risk of erosion and the risk of injury to the public PROVIDED THAT if the
Company and the Minister for Mines are unable to agree as to such restoration
or regeneration from time to time the same shall be decided by a firm of
consultants of international repute versed in such matters nominated by the
Minister for Mines and acceptable to the Company which firm shall have regard
to such criteria as aforesaid and in giving a decision such firm shall be
deemed to be acting as an expert and not as an arbitrator.
Disposal of red mud 3
(5) The Company will
agree from time to time with the Minister for Mines as to the disposal of red
mud and other effluent from the refinery at the cost of the Company having
regard to good mining and industrial practice, the remoteness of the area and
its probable future use, the cost to the Company, the risk of pollution or
undue interference with any drainage system the risk of erosion and the risk
of injury to public health PROVIDED THAT if the Company and the Minister for
Mines are unable to agree as to such disposal from time to time the same shall
be decided by a firm of industrial consultants of international repute versed
in such matters nominated by the Minister for Mines and acceptable to the
Company which firm shall have regard to such criteria as aforesaid and in
giving a decision such firm shall be acting as an expert and not as an
arbitrator.
Mutual Covenants 3
10. The parties hereto covenant and agree with
each other as follows:
Water and power supplies 3
(a) that
subject to and in accordance with proposals approved or determined under
Clause 6 hereof the Company for its purposes hereunder and for the purposes of
the RDA and other purposes approved by the Minister may to the extent
determined by the Minister but notwithstanding any Act bore for water
construct catchment areas store (by dams or otherwise) take and charge for
water from any Crown lands available for the purpose and generate transmit
supply and charge for electrical energy and the Company shall have all such
powers and authorities with respect to water and electrical energy as are
determined by the Minister for the purposes hereof which may include the
powers of a water board under the Water Boards Act 1904 and of a supply
authority under the Electricity Act 1945 ;
Use of sea water 3
(b) the
Company may without charge draw water from the sea for any of its operations
under this Agreement and for this purpose may construct such works and use
such portion of the sea bed as may be mutually agreed by the Company and the
State;
Use of public roads 3
(c) that
the Company may use any public roads which may from time to time exist in the
areas of its operations hereunder for the purpose of transportation of goods
and materials in connection with such operations;
Damage to public roads 3
(d) the
Company shall on demand pay to the State or the Shire Council concerned the
cost of making good any damage to public roads occasioned by use by the
Company for the transportation of ore won from the mineral lease;
No charge for the handling of cargoes 3
(e) that
subject to the Company at its own expense providing all works buildings
dredging and things of a capital nature reasonably required for its operations
hereunder at or in the vicinity of the port no charge or levy shall be made by
the State or by any State authority in relation to the loading of outward or
the unloading of inward cargoes from the Company’s wharf whether such
cargoes shall be the property of the Company or of any other person or
corporation but the State accepts no obligation to undertake such loading or
unloading and may make the usual charges from time to time prevailing in
respect of services rendered by the State or by any State agency or
instrumentality or other local or other authority of the State and may charge
vessels using the Company’s wharf ordinary light conservancy and tonnage
dues;
Zoning 3
(f) that
the mineral lease and the lands the subject of any Crown Grant lease license
or easement granted under or pursuant to this Agreement shall be and remain
zoned for use or otherwise protected during the currency of this Agreement so
that the operations of the Company hereunder may be undertaken and carried out
thereon without any interference or interruption by the State by any State
agency or instrumentality or by any local or other authority of the said State
on the ground that such operations are contrary to any zoning by-law or
regulation;
Rentals and evictions 3
(g) that
any State legislation for the time being in force in the said State relating
to the fixation of rentals shall not apply to any houses let by the Company in
the townsite and that in relation to each such house the Company shall have
the right to include as a condition of its letting thereof that the Company
may take proceedings for eviction of the occupant if the latter shall fail to
abide by and observe the terms and conditions of occupancy or if the occupant
shall cease to be employed by the Company;
Labour conditions 3
(h) that
during the currency of this Agreement and subject to compliance with its
obligations hereunder the company shall not be required to comply with the
labour conditions imposed by or under the Mining Act in regard to the mineral
lease;
Sub-contracting 3
(i)
that without affecting the liabilities of the parties
under this Agreement either party shall have the right from time to time to
entrust to third parties the carrying out of any portions of the operations
which it is authorised or obliged to carry out hereunder;
Rating 3
(j) that
notwithstanding the provisions of any Act or anything done or purported to be
done under any Act the valuation of all lands (whether of a freehold or
leasehold nature) the subject of this Agreement except as to any part upon
which a permanent residence shall be erected (or which is occupied in
connection therewith) shall for rating purposes be deemed to be on the
unimproved value thereof and no such lands shall be subject to any
discriminatory rate. Provided that nothing in this subclause shall prevent the
Company making the election provided for by section 533B of the Local
Government Act 1960 ;
Company deemed a municipality for certain purposes
3
(k) that
—
(i) for
the purposes of determining whether and the extent to which —
(A)
The Company is liable to any person or body corporate
(other than the State); or
(B)
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;
(ii) for
the purposes of this paragraph the terms “municipality”
“street” and “care control and management” shall have
the meanings which they respectively have in the Local Government Act 1960 ;
State has right to grant mining tenements for
other minerals 3
(l)
notwithstanding anything contained or implied in this Agreement or in the
mineral lease or other lease or license granted hereunder or pursuant hereto
the State may grant to or register in favour of persons other than the Company
leases and other mining tenements in respect of minerals other than those the
subject of the mineral lease and for stone sand or gravel unless the Minister
for Mines reasonably determines that such grant or registration is likely to
unduly prejudice or interfere with the operations of the Company hereunder
assuming the taking by the Company of all reasonable steps to avoid the
prejudice or interference.
Determination of Agreement 3
(m)
(i) that in any of the
following events namely if the Company shall make default in the due
performance or observance of any of the covenants or obligations to the State
herein or in any lease sub-lease license or other title or document granted or
assigned under this Agreement on its part to be performed or observed or shall
abandon or repudiate its operations under this Agreement and such default
shall not have been remedied or such operations resumed within a period of one
hundred and eighty (180) days after notice as provided in sub-paragraph (ii)
of this paragraph is given by the State (or if the alleged default abandonment
or repudiation is contested by the Company and within sixty (60) days after
such notice is submitted by the Company to arbitration then within a
reasonable time fixed by the arbitration award but not less than ninety (90)
days after the making of the arbitration award where the question is decided
against the Company the arbitrator finding that there was a bona fide dispute
and that the Company had not been dilatory in pursuing the arbitration) or if
the Company shall go into liquidation (other than a voluntary liquidation for
the purpose of reconstruction) then and in any of such events the State may by
notice to the Company determine this Agreement and the rights of the Company
hereunder and under any lease license easement or right granted hereunder or
pursuant hereto or if the Company shall surrender the entire mineral lease as
permitted under Clause 8(1)(a) of this Agreement then this Agreement and the
rights of the Company hereunder and under any lease license easement or right
granted hereunder or pursuant hereto shall thereupon determine; PROVIDED
HOWEVER that if the default shall not have been remedied after such notice or
within the time fixed by the arbitration award as aforesaid the State instead
of determining this Agreement as aforesaid because of such default may itself
remedy such default or cause the same to be remedied (for which purpose the
State by agents workmen or otherwise shall have full power to enter upon lands
occupied by the Company and to make use of all plant machinery equipment and
installations thereon) and the costs and expenses incurred by the State in
remedying or causing to be remedied such default shall be a debt payable by
the Company to the State on demand;
(ii)
the notice to be given by the State in terms of sub-paragraph
(i) of this paragraph shall specify the nature of the default or other ground
so entitling the State to exercise such right of determination and where
appropriate or known to the State the party or parties responsible therefor
and shall be given to the Company and all such assignees mortgagees chargees
and disponees for the time being of the Company’s said rights to or in
favour of whom or by whom an assignment mortgage charge or disposition has
been effected in terms of Clause 14(1)(a) hereof whose name and address for
service of notice has previously been notified to the State by the Company or
any such assignee mortgagee chargee or disponee to be an assignee mortgagee
chargee or disponee as the case may be; and
(iii) the abandonment or repudiation
by or liquidation of the Company referred to in sub-paragraph (i) of this
paragraph means the abandonment or repudiation by or the liquidation of all of
them the Company and all assignees and appointees who have executed and are
for the time being bound by a deed of covenant in favour of the State as
provided in Clause 14 hereof;
Effect of cessation or determination of Agreement
3
(n) that
on the cessation or determination of this Agreement —
(i) except as otherwise agreed by
the Minister the rights of the Company to in or under this Agreement and the
rights of the Company or of any assignee of the Company or any mortgagee to in
or under the mineral lease and any other lease license easement or right
granted hereunder or pursuant hereto shall thereupon cease and determine but
without prejudice to the liability of either of the parties hereto in respect
of any antecedent breach or default under this Agreement or in respect of any
indemnity given hereunder;
(ii) the Company shall forthwith pay
to the State all moneys which may then have become payable or accrued due;
(iii) the Company shall forthwith
furnish to the State complete factual statements of the field and office
engineering studies carried out pursuant to Clause 4(1) hereof if and insofar
as the statements may not have been so furnished; and
(iv) save as aforesaid and as
provided in Clauses 6(4) and 8(1)(a) hereof and in the next following
paragraph neither of the parties hereto shall have any claim against the other
of them with respect to any matter or thing in or arising out of this
Agreement;
Effect of cessation or determination of Agreement
on leases 3
(o) that
on the cessation or determination of any lease license or easement granted
hereunder by the State to the Company or (except as otherwise agreed by the
Minister) to an associated company or other assignee of the Company under
Clause 14 hereof all improvements and things (other than plant and equipment
and the refinery and ancillary buildings and facilities relating to the
refinery) erected on the relevant land shall become and remain the absolute
property of the State without compensation and freed and discharged from all
mortgages and encumbrances and the Company will do and execute such documents
and things (including surrenders) as the State may reasonably require to give
effect to this provision. In the event of the Company immediately prior to
such expiration or determination or subsequent thereto deciding to remove its
plant and equipment and its refinery and ancillary buildings and facilities
relating to the refinery or any of them from any land it shall not do so
without first notifying the State in writing of its decision and thereby
granting to the State the right or option exercisable within three months
thereafter to purchase at valuation in situ the said plant and equipment and
refinery and ancillary buildings and facilities or any of them. Such valuation
shall be mutually agreed or in default of agreement shall be made by such
competent valuer as the parties may appoint or failing agreement as to such
appointment then by two competent valuers one to be appointed by each party or
by an umpire appointed by such valuers should they fail to agree. The Company
may within one year from the date of such cessation or determination remove
its plant and equipment or so much thereof as has not been purchased by the
State and may within two years from the date of such cessation or
determination remove its refinery and ancillary buildings and facilities
relating to the refinery or so much thereof as has not been purchased by the
State and on such removal shall leave the relevant site clean and free of
structures and debris.
Aluminium Smelter 3
11. (1) The Company
undertakes in due course to investigate the feasibility of establishing within
the said State a smelter for the conversion of alumina to aluminium using
alumina produced from bauxite from the mineral lease and from time to time to
review the matter and to keep the Minister fully informed in writing as to the
progress and results of such investigations from time to time.
Minister may request proposals 3
(2) At any time after
the end of year 13 the Minister may give notice to the Company requesting it
to consider the submission of proposals to the State for construction of a
smelter in the vicinity of the refinery site having a capacity to produce not
less than fifty thousand (50,000) tons of aluminium per annum.
Submission of proposals 3
(3) If within two
years after the giving of the notice referred to in subclause (2) of this
clause the Company submits proposals for a smelter as referred to in subclause
(2) of this clause the Minister within two months of the receipt thereof will
give the Company notice either of his approval of the proposals (which
approval shall not be unreasonably withheld) or of any objections raised or
alterations desired thereto and in the latter case will afford to the Company
an opportunity to consult with and submit new proposals to the Minister.
If within thirty days of receipt of such notice
agreement is not reached as to the proposals the Company may within a further
period of thirty days elect by notice to the State to refer to arbitration as
hereinafter provided any dispute as to the reasonableness of the
Minister’s decision. If by the award on arbitration the question is
decided in favour of the Company the Minister shall be deemed to have approved
the proposals of the Company.
Third party 3
(4) If such proposals
are not submitted by the Company to the Minister within two years after the
giving of the notice referred to in subclause (2) of this clause or if such
proposals are submitted but are not approved or deemed approved by the
Minister in accordance with subclause (3) of this clause the Minister may at
any time thereafter give the Company notice that some other party (hereinafter
referred to as “the Third Party”) has agreed to establish a
smelter as referred to in subclause (2) of this clause on terms and conditions
not more favourable on the whole to the Third Party than those available to
the Company hereunder.
Company to supply Third Party with alumina 3
(5) The Company
covenants and agrees with the State with effect from the date when the Third
Party is operating or ready to operate a smelter as referred to in subclause
(2) of this clause the Company will supply the Third Party with a quantity of
alumina per annum from the refinery which unless otherwise agreed shall not
exceed one third of the production of the refinery but shall not be less than
two hundred thousand (200,000) tons or such lesser quantity as the Third Party
shall require from time to time and such alumina shall be supplied by the
Company to the Third Party —
(i)
in such quantities (subject as aforesaid) evenly spaced
over each year as such Third Party may require and
(ii)
at such price and on such terms and conditions as may be
mutually agreed between the Company and the State and failing agreement as
decided by arbitration the arbitrator taking into account the world free
market prices for sales between parties at arm’s length but not
including prices for alumina sold or offered for sale at distressed prices or
at prices resulting from dumping or subsidising.
Alteration of Works 3
12. If at any time the State finds it necessary to
request the Company to alter the situation of any of the installations or
other works (other than the Company’s wharf) erected constructed or
provided hereunder and gives to the Company notice of the request the Company
shall within a reasonable time after its receipt of the notice but at the
expense in all things (including increased running costs) of the State (unless
the alteration is rendered necessary by reason of a breach by the Company of
any of its obligations hereunder) alter the situation thereof accordingly.
Indemnity 3
13. The Company will indemnify and keep
indemnified the State and its servants agents and contractors in respect of
all actions suits claims demands or costs of third parties arising out of or
in connection with any work carried out by the Company pursuant to this
Agreement or relating to its operations hereunder or arising out of or in
connection with the construction maintenance or use by the Company or its
servants agents contractors or assignees of the Company’s wharf railway
or other works or services the subject of this Agreement or the plant
apparatus or equipment installed in connection therewith.
Assignment 3
14. (1) Subject to the
provisions of this clause the Company may at any time —
(a)
assign mortgage charge sublet or dispose of to an associated company as of
right and to any other company or person with the consent in writing of the
Minister the whole or any part of the rights of the Company hereunder
(including its rights to or as the holder of any lease license easement grant
or other title) and of the obligations of the Company hereunder; and
(b)
appoint as of right an associated company or with the consent in writing of
the Minister any other company or person to exercise all or any of the powers
functions and authorities which are or may be conferred on the Company
hereunder;
subject however to the assignee or (as the case may be) the appointee
executing in favour of the State a deed of covenant in a form to be approved
by the Minister to comply with observe and perform the provisions hereof on
the part of the Company to be complied with observed or performed in regard to
the matter or matters so assigned or (as the case may be) the subject of the
appointment.
Company to remain liable unless released by Minister 3
(2) Notwithstanding
anything contained in or anything done under or pursuant to sub-clause (1) of
this clause the Company shall at all times during the currency of this
Agreement be and remain liable for the due and punctual performance and
observance of all the covenants and agreements on its part contained herein
and in any lease license easement grant or other title the subject of an
assignment under the said sub-clause (1) PROVIDED THAT the Minister may agree
to release the Company from such liability where he considers such release
will not be contrary to the interests of the State.
Company may sublet to employees etc. 3
(3) The Company may at
any time without the consent of the minister as aforesaid sublet any of the
houses buildings and facilities situated in the townsite to employees of the
Company and other persons engaged in or associated with the operations or
activities of the Company under this Agreement.
Variation of Agreement 3
15. (1) The parties
hereto may from time to time by mutual agreement in writing add to cancel or
vary all or any of the provisions of this Agreement or of any lease license
easement or right granted hereunder or pursuant hereto for the purpose of
implementing or facilitating the carrying out of such provisions or for the
purpose of facilitating the carrying out of some separate part or parts of the
Company’s operations hereunder by an associated company as a separate
and distinct operation or for the establishment or development of any industry
making use of the minerals within the mineral lease or such of the
Company’s works installations services or facilities the subject of this
Agreement as shall have been provided by the Company in the course of work
done hereunder.
Variation in respect of works 3
(2) Notwithstanding
the provisions of sub-clause (1) of this clause the Minister may with the
consent of the Company from time to time add to cancel or vary any right or
obligation relating to works for the transport and/or export of bauxite or
alumina to the extent that the addition cancellation or variation implements
or facilitates the method of achieving any of the purposes of export of
alumina or bauxite.
Variations in respect of proposals 3
(3) Notwithstanding
the foregoing provisions of this clause the Minister may from time to time
approve variations or require reasonable variations in the detailed proposals
relating to any tramway or port site and/or port facilities or dredging
programme or townsite or town planning or any other facilities or services or
other plans specifications or proposals which may have been approved pursuant
to this Agreement and in considering such variations shall have regard to any
changes consequent upon joint user proposals of any such works facilities or
services and other relevant factors arising after the date hereof and may
approve variations in any area the subject of any lease (other than the
mineral lease) license or easement to the Company.
Joint User 3
(4) The Company shall
be entitled at any time and from time to time with the prior approval in
writing of the Minister to enter into an agreement with any third party for
the joint construction maintenance or use of any work constructed or agreed to
be constructed by the Company pursuant to the terms of this Agreement.
(5) When any agreement
entered into by the Company with some other company or person results in that
other company or person discharging all or any of the obligations undertaken
by the Company under this Agreement or renders it unnecessary for the Company
to discharge any obligation undertaken by it hereunder the Minister will
discharge or temporarily relieve the Company from such part of its said
obligations as is reasonable having regard to the extent of any period for
which the other company or person actually effects the discharge of those
obligations.
Export License 3
16. The Company shall make all necessary
applications from time to time to the Commonwealth for the grant to the
Company of a license or licenses under Commonwealth law for the export of
alumina or bauxite.
Delays 3
17. (1) This Agreement
shall be deemed to be made subject to any delays in the performance of
obligations under this Agreement and to the temporary suspension of continuing
obligations hereunder which may be occasioned by or arise from circumstances
beyond the power and control of the party responsible for the performance of
such obligations including delays or any such temporary suspension as
aforesaid caused by or arising from Act of God force majeure floods storms
tempests washaways fire (unless caused by the actual fault or privity of the
Company) act of war act of public enemies riots civil commotions strikes
lockouts stoppages restraint of labour or other similar acts (whether partial
or general) shortages of labour or essential materials reasonable failure to
secure contractors delays of contractors and inability (common in the alumina
export industry) to profitably sell alumina or factors due to overall world
economic conditions or factors which could not reasonably have been foreseen
PROVIDED ALWAYS that the party whose performance of obligations is affected by
any of the said causes shall minimise the effect of the said causes as soon as
possible after their occurrence.
(2) On the happening
of any event specified in this clause which in the opinion of the Company may
delay the performance by the Company of an obligation which under this
Agreement is to be performed by the Company within a specified time the
Company may give notice to the Minister of such event and likely delay in
which case the Minister shall grant such extension of time for the performance
of the obligation as shall in all the circumstances be fair and reasonable. In
case the Company objects to the decision of the Minister as to what is a fair
and reasonable extension the same shall be referred to arbitration in manner
herein provided.
Power to extend periods 3
18. Notwithstanding any provision hereof the
Minister may at the request of the Company from time to time extend any period
or date referred to in this Agreement for such period or to such later date as
the Minister thinks fit and the extended period or later date when advised to
the Company by notice from the Minister shall be deemed for all purposes
hereof substituted for the period or date so intended.
Arbitration 3
19. (1) Except where
otherwise specifically provided in this Agreement any dispute or difference
between the parties arising out of or in connection with this Agreement or any
agreed amendment or variation thereof or agreed addition thereto or as to the
construction of this Agreement or any such amendment variation or addition or
as to the rights duties or liabilities of either party thereunder or as to any
matter to be agreed upon between the parties under this Agreement shall in
default of agreement between the parties and in the absence of any provision
in this Agreement to the contrary be referred to and settled by arbitration
under the provisions of the Arbitration Act 1895 . PROVIDED THAT this clause
shall not apply to any case where the State or the Minister is by this
Agreement given either expressly or impliedly a discretionary power.
Extension of time by Arbitrator 3
(2) The arbitrator,
arbitrators or umpire (as the case may be) of any submission to arbitration
hereunder is hereby empowered upon application by either party hereto to grant
any interim extension of time or date referred to herein which having regard
to the circumstances may reasonably be required in order to preserve the
rights of either or both parties hereunder and an award in favour of the
Company may in the name of the Minister grant any further extension or time
for that purpose.
Notices 3
20. Any notice consent or other writing authorised
or required by this Agreement to be given or sent shall be deemed to have been
duly given or sent by the State if signed by the Minister or by any senior
officer of the Civil Service of the said State acting by the direction of the
Minister and forwarded by pre-paid post to the company at its registered
office for the time being in the said State and by the Company if signed on
its behalf by any officer of the Company or by any person or persons
authorised by the Company in that behalf or by its solicitors as notified to
the State from time to time and forwarded by pre-paid post to the Minister and
any such notice consent or writing shall be deemed to have been duly given or
sent on the day on which it would be delivered in the ordinary course of post.
Exemption from Stamp Duty 3
21. (1) The State
shall exempt from any stamp duty which but for the operation of this clause
would or might be chargeable on —
(a) this
Agreement;
(b) any
instrument executed by the State pursuant to this Agreement granting to or in
favour of the Company or any permitted assignee of the Company any tenement
lease sublease easement license or other right or interest;
(c) any
assignment sub-lease or disposition (other than by way of mortgage or charge)
or any appointment made in conformity with the provisions of subclause (1) of
Clause 14 hereof;
(d) any
assignment sub-lease or disposition (other than by way of mortgage or charge)
or any appointment to or in favour of the Company or an associated company of
any interest right obligation power function or authority which has already
been the subject of an assignment sub-lease disposition or appointment
executed pursuant to subclause (1) of Clause 14 hereof; and
(e) any
lease sub-lease or covenant executed pursuant to Clause 5(3) hereof
PROVIDED THAT this clause shall not apply to any instrument or other document
executed or made more than seven years from the date hereof.
(2) If prior to the
date on which the Bill referred to in Clause 2(b) hereof to ratify this
Agreement is passed as an Act stamp duty has been assessed and paid on any
instrument or other document referred to in subclause (1) of this clause the
State when such Bill is passed as an Act shall on demand refund any stamp duty
paid on any such instrument or other document to the person who paid the same.
Interpretation 3
22. This Agreement shall be interpreted according
to the law for the time being in force in the said State.
23. Upon ratification of this Agreement the
Agreement dated seventeenth day of December One thousand nine hundred and
sixty eight between the State and the Company be and it hereby is declared
terminated and of no further force and effect.
SCHEDULE
WESTERN AUSTRALIA
ALUMINA REFINERY (MITCHELL PLATEAU)
AGREEMENT ACT 1971
MINERAL LEASE
Lease No. Goldfield (s)
ELIZABETH THE SECOND by the Grace of God of the United Kingdom Australia and
Her other Realms and Territories Queen, Head of the Commonwealth, Defender of
the Faith:
TO ALL TO WHOM THESE PRESENTS shall come GREETINGS:
KNOW YE that WHEREAS by an Agreement made the
day of 19 BETWEEN the State of
Western Australia of the one part and Amax Bauxite Corporation (hereinafter
called “the Company”) of the other part the said State agreed to
grant to the Company a mineral lease of portion or portions of the lands
referred to in the said Agreement as the mining areas AND WHEREAS the said
Agreement was ratified by the Alumina Refinery (Mitchell Plateau) Agreement
Act 1971 which said Act ( inter alia ) authorised the grant of a mineral lease
or leases to the Company NOW WE in consideration of the rents and royalties
reserved by and of the provisions of the said Agreement and in pursuance of
the said Act DO BY THESE PRESENTS GRANT AND DEMISE unto the Company subject to
the said provisions ALL THAT piece or parcel of land situated in
the Goldfield(s)
containing approximately acres
and (subject to such corrections as may be necessary to accord with the survey
when made) being the land delineated on the plan in the Schedule hereto and
all those mines, veins, seams, lodes and deposits of bauxite and all
associated minerals and clay within the weathered profile of the said land
(and for the purposes hereof “weathered profile” means the zone
within which any or all of the original chemical elements of the rocks have
been redistributed or concentrated by atmospheric or ground agencies),
(hereinafter called “the said mine”) together with all rights,
liberties, easements, advantages and appurtenances thereto belonging or
appertaining to a lessee of a mineral lease under the Mining Act 1904
including all amendments thereof for the time being in force and all
regulations made thereunder for the time being in force (which Act and
regulations are hereinafter referred to as “the Mining Act”) or to
which the Company is entitled under the said Agreement and for all purposes
necessary effectually to carry on the Company’s overall mining
operations under the Agreement on or in the land including —
(i)
cutting and constructing thereon water-races, drains,
channels, dams, pathways, roads, tramways, conveyors, pipelines, power-lines
and other engineering services to be used in connection with that mining;
(ii)
quarrying stone and gravel and taking sand for the
Company’s operations under the Agreement;
(iii)
erecting on the land buildings, installations, facilities
and machinery to be used in connection with the mining, the treatment and
shipment of bauxite and the shipment of alumina, including the erection of the
refinery;
(iv)
erecting houses and other buildings and facilities on the
land in connection with all or any of the above purposes; and
(v)
drilling bores and wells for water.
TO HOLD the said land and mine and all and singular the premises hereby
demised for a term commencing on the
day of
19
and expiring on the
day of 19
with the right to renew the same as provided in but subject to the said
Agreement for the purposes but upon and subject to the terms covenants and
conditions set out in the said Agreement and to the Mining Act (as modified by
the said Agreement) YIELDING and paying therefor the rent and royalties as set
out in the said Agreement, AND WE do hereby declare that this lease is subject
to the observance and performance by the Company of the following covenants
and conditions, that is to say:
(1) The Company shall
and will use the land bona fide exclusively for the purposes of the said
Agreement.
(2) Subject to the
provisions of the said Agreement the Company shall and will observe perform
and carry out the provisions of the Mines Regulation Act 1946 , and all
amendments thereof for the time being in force, and the regulations for the
time being in force made thereunder and subject to and also as modified by the
said Agreement the Mining Act so far as the same effect or have reference to
this lease.
PROVIDED THAT this lease and any renewal thereof shall not be determined or
forfeited otherwise than under and in accordance with the provisions of the
said Agreement.
PROVIDED FURTHER that all petroleum on or below the surface of the demised
land is reserved to Her Majesty with the right of access to the demised land
subject to and in accordance with the provisions of the Petroleum Act 1967 for
the purpose of searching for and for the operations of obtaining petroleum in
any part of the land.
IN WITNESS whereof we have caused our Minister for Mines to affix his seal and
set his hand hereto at Perth in our said State of Western Australia and the
common seal of the Company has been affixed hereto this
day of
19
THE SCHEDULE ABOVE REFERRED TO:
IN WITNESS whereof this Agreement has been executed by or on behalf of the
parties hereto the day and year first hereinbefore mentioned.
THOMAS D. EVANS M.L.A.
AMAX BAUXITE CORPORATION
by
ANTHONY CHANDLER,
Vice President.
Attested by —
MALCOLM B. BAYLISS,
Assistant Secretary.
[C.S.]