Western Australian Current Acts Western Australian Current Acts[s. 2]
[Heading amended: No. 19 of 2010 s. 4.]
THIS AGREEMENT is made the 29th day of October, 1985
BETWEEN:
THE HONOURABLE BRIAN THOMAS BURKE, 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
MITCHELL PLATEAU BAUXITE CO. PTY. LIMITED a company incorporated in the
Australian Capital Territory and having its principal place of business in the
State of Western Australia at 191 St. George’s Terrace Perth ALCOA OF
AUSTRALIA LIMITED a company incorporated in the State of Victoria and having
its principal place of business in the State of Western Australia at Cnr. Davy
and Marmion Streets Booragoon THE SHELL COMPANY OF AUSTRALIA LIMITED a company
incorporated in Victoria and having its principal place of business in Western
Australia at 200 St. George’s Terrace, Perth, SUMITOMO ALUMINIUM
SMELTING COMPANY LIMITED a company incorporated in Japan and having its
registered office at 7-9 Nihonbashi, Chuo-ku, Tokyo SUMITOMO CORPORATION a
company incorporated in Japan and having its registered office at 11-1
Kandanishikicho 3-Chome, Chiyoda-ku, Tokyo and MARUBENI CORPORATION a company
incorporated in Japan and having its registered office at 4-2 Ohtemachi
1-Chome, Chiyoda-ku, Tokyo (hereinafter called “the Company”) of
the other part.
WHEREAS:
(a) on the 17th day of November, 1971 Alumax
Bauxite Corporation (then called Amax Bauxite Corporation) entered into an
agreement with the State (hereinafter called “the 1971 Agreement”)
relating to the mining, beneficiation, transport and refining of bauxite and
alumina from the Kimberley Region of Western Australia and incidental and
other purposes which agreement was ratified by the
Alumina Refinery (Mitchell Plateau) Agreement Act 1971 ;
(b) on the 31st day of August, 1972 Alumax Bauxite
Corporation entered into an agreement with the State (hereinafter called
“the 1972 Agreement”) inter alia amending the 1971 Agreement which
agreement was ratified by the
Alumina Refinery (Mitchell Plateau) Agreement Act Amendment Act 1972 and was
amended by an agreement between the parties thereto bearing date the 15th day
of May, 1973;
(c) by various assignments Alumax Bauxite
Corporation transferred and assigned (with the consent of the State) all its
interest in and to the 1971 Agreement and the 1972 Agreement (each as amended
as hereinbefore recited) to the undermentioned companies as tenants in common
the following shares —
Mitchell Plateau Bauxite Co. Pty. Limited
52.5%
Alcoa of Australia
Limited 17.5%
Billiton
Aluminium Australia B.V. 10%
(formerly called HA Bauxite Australia N.V.)
Sumitomo Chemical Co. Ltd. 10%
Sumitomo
Corporation 5%
(formerly called Sumitomo Shoji Kaisha Ltd.)
Marubeni
Corporation 5%
(d) the said Sumitomo Chemical Co. Ltd. has
transferred and assigned (with the consent of the State) its 10% interest in
and to the 1971 Agreement amended as mentioned above to Sumitomo Aluminium
Smelting Company Limited;
(e) the said Billiton Aluminium Australia B.V. has
transferred and assigned (with the consent of the State) its 10% interest in
and to the 1971 Agreement amended as mentioned above to The Shell Company of
Australia Limited;
(f) the parties hereto desire to amend the 1971
Agreement amended as mentioned above (hereinafter referred to as “the
principal Agreement”).
NOW THIS AGREEMENT WITNESSETH:
1. Subject to the context the words and
expressions used in this Agreement have the same meanings respectively as they
have in and for the purpose of the principal Agreement.
2. (1) The provisions
of this Agreement other than this Clause and Clause 3 hereof shall not come
into operation until a Bill to ratify this Agreement is passed by the
Parliament of Western Australia and comes into operation as an Act.
(2) On the said Bill
commencing to operate as an Act all the provisions of this Agreement shall
operate and take effect notwithstanding the provisions of any Act or law.
3. The State shall 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, 1985, or such
later date if any as the parties hereto may mutually agree upon.
4. The principal Agreement is hereby varied as
follows —
(1) Clause 1 —
(a) by
deleting the definition of “Mining Act” and inserting the
following definitions —
“ “Mining Act 1904” means the Mining
Act 1904 and the amendments thereto and the regulations made thereunder as in
force on the 31st day of December, 1981;
“ Mining Act 1978 ” means the
Mining Act 1978 ; ”;
(b) in
the definition of “mining areas”, by inserting after
“identification” the following —
“
less any part or parts thereof surrendered by the Company
pursuant to Clause 4(6) hereof ”;
(c) in
the definition of “Minister for Mines”, by deleting “
Mining Act” and substituting the following —
“
Mining Act 1904 and the Mining Act 1978
”;
(d) by
inserting after the definition of “port” the following definition
—
“
“project” means the project contemplated by this
Agreement; ”;
(e) in
the paragraph commencing “Reference in this Agreement to an Act”,
by inserting after “Act”, where it first occurs, the following
—
“ other than the Mining Act 1904 ”.
(2) Clause 2 —
(a)
subclause (1) paragraph (a) by deleting “five thousand dollars
thereafter” and substituting the following —
“
five thousand dollars ($5,000) during the period from the 1st
day of July 1982 until the 31st day of December 1985;
thereafter an amount equal to the rentals which would be payable under
the Mining Act 1978 in respect of exploration licences over areas equivalent
to the mining areas ”;
(b) by
inserting after subclause (2) the following subclause —
“
(3) The rights of occupancy referred
to in this Clause shall, subject to this Agreement, continue to be granted and
in force under the Mining Act 1904 as though that Act had not been repealed.
”.
(3) Clause 4 —
by inserting after subclause (4) the following subclauses —
“ (5)
Whether or not the Company is undertaking the studies and
other matters mentioned in subclause (1) of this Clause the Company shall
except during any period the Company’s rights and obligations are
suspended under Clause 4A(3) hereof or during the periods known in the region
in which the mining areas are situated as the “wet season”
normally running from approximately December in one year to March in the next
year) maintain or cause to be maintained in operational condition the airstrip
within the mining areas and the Mitchell Plateau access road from its junction
with the Gibb River/Kalumburu Road to the airstrip.
(6)
The Company shall on or before the 31st day of December, 1985
surrender to the State out of the rights of occupancy granted pursuant to
Clause 2(1) hereof areas equal to not less than one half of the aggregate area
of the mining areas but so that after such surrender the area of land that
remains subject to the said rights of occupancy consists of not more than 5
discrete areas each of which constitutes a single area the shape of which is
rectangular (without any restriction as to the ratio of length to breadth) or
as near thereto as is practicable.
(7)
(a)
The Company shall submit to the Minister during December 1987 a
detailed programme for the development of the project.
(b)
The Minister shall within one (1) month of receipt of the programme
submitted pursuant to paragraph (a) of this subclause give to the Company
notice either of —
(i)
his approval (subject to paragraph (d) of this subclause)
thereof; or
(ii)
any objections or alterations desired thereto with his
reasons therefor and in such case shall afford the Company an opportunity to
consult with and submit a revised programme to the Minister.
(c)
If within three months of a notice pursuant to paragraph (b)(ii) of
this subclause agreement is not reached as to the said programme the Minister
may —
(i)
allow a further period for the submission by the Company
of a further programme for the development of the project and the provisions
of paragraphs (a) and (b) of this subclause shall apply thereto with the
substitution for “during December 1987” of such later time as the
Minister may specify; or
(ii)
advise the Company of his intention to invite third
parties to submit a detailed programme for the development of the project
whereupon the provisions of Clause 4A hereof shall apply,
PROVIDED THAT if the Minister does not do either
of those things by the 31st day of December, 1988 the provisions of this
Agreement (other than Clause 4A hereof) shall continue to apply without
modification.
(d) If a
programme approved or agreed pursuant to this subclause contains provision for
the development of the project otherwise than as contemplated by this
Agreement any such approval or agreement shall be subject to —
(i)
the Company entering into an agreement with the State in
a form satisfactory to the Minister to amend this Agreement to allow such
programme to proceed; and
(ii)
the passing of a Bill to ratify that agreement by the
Parliament of Western Australia and the coming into operation of that Bill as
an Act.
(8)
If the Company shall fail to submit a detailed programme
pursuant to subclause (7) of this Clause that failure shall not be an event of
default under Clause 10(m) hereof but the Minister may advise the Company of
his intention to invite third parties to submit a detailed programme for the
development of the project whereupon the provisions of Clause 4A hereof shall
apply. ”.
(4) By inserting after
Clause 4 the following Clause —
“ 4A.
(1) This Clause shall apply
only if the Minister has given the advice to the Company referred to in Clause
4(7)(c)(ii) or Clause 4(8) hereof.
(2)
(a) From the time of giving such advice up
to and including the 31st day of December, 1988 the Minister may invite third
parties to undertake appraisals with a view to submitting a detailed programme
for the development of the project and for the purpose of facilitating such
appraisals the State shall be at liberty to provide those third parties with
such information concerning the project as the State has in its possession or
control (other than written information submitted by the Company for the
purposes of this Agreement and not being in the public domain unless the
Company gives its prior approval).
(b) Up to and including the 31st day of December
1988, the Minister may nominate in writing to the Company a party (comprising
one or more of the third parties mentioned in paragraph (a) of this subclause)
to proceed with the submission of a programme for the development of the
project (hereinafter called “the nominated party”) and the Company
shall, subject to the nominated party first executing a confidentiality
agreement in favour of the Company upon terms previously agreed between the
Company and the Minister whereby the nominated party agrees to keep
confidential the information hereinafter mentioned, without undue delay make
available to the nominated party such of the following information in the
possession or control of the Company concerning the project as the nominated
party may require —
(i)
written information submitted by the Company for the
purposes of this Agreement;
(ii)
information on all work done in connection with
exploration in the mining areas since the date of this Agreement including the
matters required to be reported on annually to the Department of Mines by a
holder of an exploration licence pursuant to section 68(2) of the Mining Act
1978 ;
(iii)
information relating to the investigations into and work
carried out with respect to sites for and designs of the refinery, the port
and the Company’s wharf and other refineries, ports and wharves within
the said State for the purposes of this agreement,
together with such
other information in the possession or control of the Company as the nominated
party may reasonably require for the purpose of evaluating the project and the
preparation and submission of a programme and detailed proposals for the
development of the project but the Company shall not be obliged to divulge
—
(A) technology of a proprietary nature (not
including standard tests used in industry to determine the suitability of a
resource for beneficiation and processing to alumina) relating to bauxite
beneficiation and alumina production;
(B) bauxite and alumina market and
marketing information;
and
(C) project cost information and financial
analyses.
Provided that if the release of any information
requested pursuant to this paragraph comprises data, records, processes and
other documents or things would be contrary to an agreement or agreements
relating to confidentiality between the Company and third parties entered into
before 1st September 1985 or after that date with the consent of the Minister,
the release of that information pursuant to this paragraph shall be subject to
the Company obtaining the consent of such other parties to that release and
the Company shall use its best endeavours to obtain such consent without undue
delay.
(3) If the State nominates a third party as
mentioned in subclause (2) of this Clause, the rights and obligations of the
Company under this Agreement (other than under this Clause) shall be suspended
until such time as they are revived under subclause (4) of this Clause or are
assigned under subclause (5) of this Clause. Any suspension under this
subclause shall not affect the Company’s rights of occupancy or other
mining tenements in respect of the mining areas save that the nominated party,
subject to it first executing a deed of covenant in favour of the Company
containing terms previously agreed between the Company and the Minister in
respect of the nominated party’s observance and performance of all the
obligations of the Company under this Agreement (other than this Clause 4A)
and related matters during the period of suspension and subject to it paying
the rentals payable in respect of the rights of occupancy and any other
government charges imposed upon the Company in respect of the mining areas
during the period of the suspension, may have unrestricted access to the
mining areas (and to the facilities established by the Company in connection
with the project in the Kimberley region on reasonable terms and conditions)
for purposes related to the preparation and submission of a programme and
detailed proposals for the development of the project and may construct such
facilities thereon and carry out such tests and take and remove such samples
as the nominated party may require for such purposes.
(4) On the occurrence
of any of the following events the rights and obligations of the Company under
this Agreement shall revive and be of full force and effect —
(a) the
nominated party fails to submit to the Minister by the 30th day of June, 1990
detailed proposals and evidence of the nature set out in paragraphs (a) and
(b) respectively of Clause 5(1) hereof;
(b) the
Minister fails to approve or agree (whether voluntarily or by virtue of an
arbitration award) with the nominated party by the 30th day of June, 1991 all
detailed proposals covering the matters set out in paragraph (a) or Clause
5(1) hereof; or
(c) the
Minister notifies the Company that the nominated party has withdrawn from the
project or that the Minister has withdrawn nomination from that party.
(5) (a)
If the rights and obligations of the Company shall
not have revived under subclause (4) of this Clause and the Minister approves
or agrees the detailed proposals of the nominated party as mentioned in
paragraph (b) of that subclause (4), the Company shall on the expiration of
three months’ notice from the Minister requiring the same assign to the
nominated party free of all encumbrances all the Company’s right title
and interest in —
(i)
this Agreement;
(ii)
rights of occupancy and mining tenements in respect of
the mining areas;
(iii)
leases sub-leases licences or other title or right
granted under this Agreement; and
(iv)
improvements constructed on any of the foregoing for the
purposes of this Agreement
on reasonable terms and conditions and for the consideration mentioned
in paragraph (b) of this subclause.
(b)
As consideration for the said assignment the
Company shall be entitled to be paid by the nominated party (except to the
extent that the nominated party may have already made payment therefore to the
Company) the fair values of —
(i)
the right title and interest of the Company in the
improvements to be assigned under paragraph (a) of this subclause as at the
date that the Minister gives notice to the Company under paragraph (a) of this
subclause;
and
(ii)
the information made available by the Company under
subclause (2) of this Clause (but excluding any such information which was
either in the public domain or already known to the nominated party or not
taken by the nominated party) as at the time when that information was made
available together with interest at fair and reasonable rates on the value
thereof from the time the information was made available in each case up to
the date on which payment takes place.
(c)
If within one month after the Minister gives
notice to the Company under paragraph (a) of this subclause the Company and
the nominated party have not agreed on the reasonable terms and conditions
mentioned in that paragraph or on the fair values and interest rates mentioned
in paragraph (b) of this subclause, as the case may be, the same shall be
determined by two independent experts, one nominated by the Company and other
nominated by the nominated party (and if the experts cannot agree by a third
expert selected by them). The decision of the experts (or their umpire) shall
be final and binding on the parties. If a party shall fail to nominate an
expert within one month of the other party giving notice specifying the
matters of disagreement which are to be referred to the experts hereunder then
the matters of disagreement the subject of the notice shall be determined by
the expert nominated by the party giving the notice. The costs of the experts
shall be borne equally by the Company and the nominated party.
(6) Notwithstanding
the provisions of Clause 14(2) hereof, on an assignment of the rights of the
Company hereunder pursuant to subclause (5) of this Clause, the Minister shall
agree to release the Company from all liability under the covenants and
agreements on its part contained herein and in any lease licence easement
grant or other title the subject of an assignment under the said subclause
(5). ”.
(5) Clause 5(1)
—
by deleting “By
the 30th day of June 1980 or if the Company submits a detailed report to the
Minister that in the opinion of the Company development of the bauxite
reserves within the mining areas is not then economically feasible or is not
feasible due to an insufficient number of participants for the project, and
the Company requests a deferral of its obligations up to the 30th day of June,
1984 then by that date” and substituting the following —
“ By the 30th
day of June, 1990 (or, if the Company’s rights and obligations revive
under —
(A)
Clause 4A(4)(a) hereof, then by the 30th day of June,
1991;
(B)
Clause 4A(4)(b) hereof, then by the 30th day of June,
1992; or
(C)
Clause 4A(4)(c) hereof after the 30th day of June 1989,
then by the anniversary of the date on which the Minister notifies the Company
under Clause 4A(4)(c) hereof) ”.
(6) Clause 6(3)
—
(a) by deleting “30th
day of June 1985” and substituting the following —
“ the first
anniversary of the final date for submission of detailed proposals under
Clause 5(1) hereof ”;
(b) by inserting at the end
thereof the following —
“ The provisions
of Clause 17 hereof shall not apply to this subclause. ”.
(7) Clause 18 —
(a) by deleting
“Notwithstanding” and substituting the following —
“ (1)
Subject to subclause (2) of this Clause but otherwise
notwithstanding ”;
(b) by inserting the
following subclause —
“ (2)
The Minister may at the request of the nominated party
from time to time extend either or both of the dates referred to in paragraphs
(a) and (b) of Clause 4A(4) hereof for a single period of three months and on
any such extension taking effect the dates of the 30th day of June 1990 and/or
the 30th day of June 1991 mentioned in Clause 5(1) hereof as the case may be
shall be extended accordingly. ”.
5. Any reference in the Principal Agreement to the
Mining Act without any reference to a year shall be read and construed as a
reference to the “ Mining Act 1904 ” as defined in the Principal
Agreement as amended by this Agreement.
IN WITNESS WHEREOF this Agreement has been executed the day and year first
hereinbefore written.
SIGNED by the HONOURABLE
BRIAN THOMAS BURKE, M.L.A.
BRIAN BURKE.
in the presence of:
D. PARKER
MINISTER FOR MINERALS
AND ENERGY:
THE COMMON SEAL of MITCHELL
PLATEAU BAUXITE CO. PTY.
LIMITED was hereto
affixed (C.S.)
in the
presence of:
D. E. FITZGERALD
Director
I. R. NANKIVELL
Secretary
THE COMMON SEAL of
ALCOA OF AUSTRALIA LIMITED
(C.S.)
was hereunto affixed in
the presence of:
P. SPRY-BAILEY
Director
M. GUILMARTIN
Secretary
THE COMMON SEAL of THE
SHELL COMPANY OF AUSTRALIA
(C.S.)
LIMITED was hereunto affixed
in accordance with its
Articles of
Association in
the presence of:
P. H. CHEW Director
V. M. JOHNSON
Authorised
Signatory
SIGNED, SEALED and DELIVERED
on behalf of SUMITOMO
E. TANIGUCHI
Authorised
ALUMINIUM SMELTING COMPANY
Representative
LIMITED by its
duly
authorised representative
in the presence of:
N. ITONAGA Witness
SIGNED, SEALED and DELIVERED
on behalf of SUMITOMO
T. UMEMOTO Authorised
CORPORATION by its duly
Representative
authorised representative
in the presence of:
Y. EGUCHI Witness
SIGNED, SEALED and DELIVERED
on behalf of MARUBENI
M. HARA Authorised
CORPORATION by its duly
Representative
authorised
representative
in the presence of:
M. KAJITANI Witness
[Third Schedule inserted: No. 90 of 1985 s. 6.]