Western Australian Current Acts Western Australian Current Acts[s. 2]
[Heading inserted: No. 31 of 2015 s. 7.]
2015
THE HONOURABLE COLIN JAMES BARNETT
PREMIER OF THE STATE OF WESTERN AUSTRALIA
AND
MITCHELL PLATEAU BAUXITE CO. PTY. LIMITED
ACN 008 545 499
ALCOA OF AUSTRALIA LIMITED
ACN 004 879 298
|
ALUMINA REFINERY (MITCHELL PLATEAU) AGREEMENT 1971 TERMINATION AGREEMENT |
[Solicitor's details]
THIS AGREEMENT is made this 20 th
day of February
2015
BETWEEN
THE HONOURABLE COLIN JAMES BARNETT , MEc., M.L.A., Premier of the State of
Western Australia, acting for and on behalf of the said State and
instrumentalities thereof from time to time (" the State ") of the one part
AND
MITCHELL PLATEAU BAUXITE CO. PTY. LIMITED ACN 008 545 499 of 123 Albert
Street, Brisbane, Queensland and ALCOA OF AUSTRALIA LIMITED ACN 004 879 298 of
Corner Davy and Marmion Streets, Booragoon, Western Australia (together called
" the Company " in which term shall be included their respective successors
and permitted assigns) of the other part.
WHEREAS:
A. The State and the Company are now the parties
to the agreement dated 17 November 1971 which agreement was ratified by the
Agreement Act and subsequently varied or supplemented by agreements dated 31
August 1972, 15 May 1973, 29 October 1985 and 29 August 2003, and which
agreement as subsequently varied or supplemented is referred to in this
Agreement as " the Principal Agreement ".
B. The State and the Company wish to terminate the
Principal Agreement in the manner and on the terms set out in this Agreement.
NOW THIS AGREEMENT WITNESSES:
1. Definitions
In this Agreement subject to the context:
Agreement Act means the Alumina Refinery (Mitchell Plateau) Agreement Act
1971 (WA).
Cape Bougainville Mining Leases means mining leases 80/47 - 80/60 (both
inclusive).
LAA means the Land Administration Act 1997 (WA).
Mining Act means the Mining Act 1978 (WA).
Operative Date has the meaning given in clause 3(2).
Right of Occupancy means the right of occupancy in respect of the Temporary
Reserve referred to in, and renewed pursuant to, the Principal Agreement.
Temporary Reserve means Temporary Reserve 5610H.
this Agreement , hereof and hereunder refer to this Agreement, whether in its
original form or as from time to time added to, varied or amended.
2. Interpretation
In this Agreement:
(a)
clause headings do not affect interpretation or construction;
(b)
words in the singular shall include the plural and words in the plural shall
include the singular according to the requirements of the context;
(c) one
gender includes the other genders;
(d) a
covenant or agreement by more than one person binds, and is enforceable
against, those persons jointly and each of them severally;
(e) a
reference to a "person" includes a body corporate;
(f) a
reference to an Act includes the amendments to that 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;
(g) a
reference to any document includes that document as from time to time added
to, varied or amended and notwithstanding any change in the identity of the
parties;
(h) a
reference to a clause or schedule is a reference to a clause in or schedule to
this Agreement, and a reference to a subclause or paragraph is a reference to
the subclause of the clause or paragraph of the clause or subclause as the
case may be in, or in relation to, which the reference is made;
(h) a
reference to this Agreement includes all recitals, schedules and annexures;
and
(i)
"including" means "including, but not limited to".
3. Ratification and operation
(1) This Agreement,
other than this clause and clauses 1 and 2, does not come into operation
except in accordance with subclause (2).
(2) This Agreement,
other than this clause and clauses 1 and 2, comes into operation on the day on
which it is ratified by an Act of the Parliament of Western Australia
(Operative Date) unless, before that day, it terminates under subclauses (4)
or (5).
(3) The State must
introduce in the Parliament of Western Australia before 31 March 2015, or a
later date agreed between the parties to this Agreement, a Bill to ratify this
Agreement and must endeavour to secure its passage as an Act.
(4) If by 31 December
2015 this Agreement has not been ratified by an Act of the Parliament of
Western Australia then, unless the parties to this Agreement otherwise agree,
this Agreement terminates on that day and no party hereto will have any claim
against any other party hereto with respect to any matter or thing arising out
of, done, performed, or omitted to be done or performed under this Agreement.
(5) The parties agree
that if the Principal Agreement is otherwise determined in accordance with its
provisions on a day prior to the Operative Date, then this Agreement shall
also terminate on and from that day and no party hereto will have any claim
against any other party hereto with respect to any matter or thing arising out
of, done, performed, or omitted to be done or performed under this Agreement.
4. Termination of Principal Agreement
(1) Subject to the
remainder of this clause, the Principal Agreement is hereby terminated with
effect on and from the Operative Date and, except as otherwise provided in
this Agreement, neither the State nor the Company shall have any claim against
the other with respect to any matter or thing in or arising out of the
Principal Agreement.
(2) Notwithstanding
subclause (1), but subject to subclause (6), the Company shall remain liable
for any antecedent breach or default under the Principal Agreement and in
respect of any indemnity given under the Principal Agreement.
(3) Notwithstanding
subclause (1):
(a) on
and from the Operative Date the Cape Bougainville Mining Leases shall continue
in force only under and, except as provided in this subclause, subject to the
provisions of the Mining Act and, for the avoidance of doubt, shall cease to
have the benefit of the rights and privileges conferred by the Principal
Agreement;
(b) in
relation to each of the Cape Bougainville Mining Leases, for the period from
and including the Operative Date up to and including the earlier of:
(i)
the date of expiry of the current term of that mining
lease; and
(ii)
the date on which the companies comprising the Company at
the date of this Agreement cease to hold greater than a 30% interest in that
mining lease (where such interest may be held individually by one of those
companies or by both of them in the aggregate),
the holder of that mining lease shall not be
required:
(iii)
to comply with the expenditure conditions prescribed
under the Mining Act that are applicable to that mining lease; or
(iv)
to lodge a Form 5 (operations report–expenditure on
mining tenement) in relation to that mining lease in compliance with the
requirements of the Mining Act; and
(c) in
relation to each of the Cape Bougainville Mining Leases, if exploration or
mining expenditure has been incurred in the relevant reporting period in
relation to that mining lease, the holder of that mining lease must
notwithstanding the reporting exemption contained in paragraph (b)(iv) file,
or cause to be filed, as the case may be, the mineral exploration report
required by section 115A of the Mining Act in relation to that mining lease at
the times that would otherwise have been applicable (including whenever
required under section 115A(2)(b)) if such exemption had not been granted,
and on application under section 103G of the
Mining Act made within 3 months after the Operative Date, the State shall
cause an endorsement to be made in the register maintained under section 103F
of the Mining Act that the provisions of this subclause apply to the Cape
Bougainville Mining Leases.
(4) Within 14 days
after the Operative Date the Company shall pay to the State an amount of
$760,000 to fund rehabilitation and other proposed on-ground activities of the
State within the area of land comprised within the Temporary Reserve
immediately before the Operative Date.
(5) Subject to
subclause (6), on and from the Operative Date the Company will indemnify and
keep indemnified the State and the State's employees, 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 the Principal Agreement or relating to its operations under the
Principal Agreement or arising out of or in connection with the construction,
maintenance or use by the Company or its employees, agents, contractors,
assignees or sublessees of the Company's works or services the subject of the
Principal Agreement or the plant, apparatus or equipment installed in
connection with the Principal Agreement.
This indemnity shall remain in force for a period
ending on the date which is 20 years after the Operative Date.
(6) The Company is not
liable to indemnify the State and the State's employees, agents and
contractors under subclause (5) or under the Principal Agreement (as the case
may be):
(a) to
the extent that the relevant action, suit, claim, demand or cost relates to
activities or works carried out before the Operative Date by the State or the
State's employees, agents or contractors (including activities or works funded
by the Company);
(b) to
the extent that the relevant action, suit, claim, demand or cost relates to
rehabilitation or other on-ground activities of the State undertaken after the
Operative Date as contemplated by subclause (4);
(c) to
the extent that the relevant action, suit, claim, demand or cost relates to
earthworks or ground disturbances, within the area of land comprised within
the Temporary Reserve immediately before the Operative Date, relating to
exploration activities conducted pursuant to the Principal Agreement; or
(d) to
the extent that the relevant action, suit, claim, demand or cost relates to
third party use after the Operative Date of works, services, plant, apparatus
or equipment constructed, operated or maintained by the Company within the
area of land comprised within the Temporary Reserve immediately before the
Operative Date, including the airstrip and the access road.
(7) For the avoidance
of doubt a reference to matters or things in, under, pursuant to, conferred by
or arising out of or in connection with the Principal Agreement for the
purposes of this clause includes matters or things deemed to be so attributed
to the Principal Agreement by section 6 of the Agreement Act.
5. Termination of Right of Occupancy
(1) The Right of
Occupancy shall be deemed to have been surrendered with effect on and from the
Operative Date.
(2) The Company shall
remain liable for any antecedent breach or default of the conditions of the
Right of Occupancy.
6. Applicable law
This Agreement is to be interpreted according to
the law for the time being in force in the State of Western Australia.
EXECUTED as a deed.
SIGNED by THE HONOURABLE )
COLIN JAMES BARNETT )
[Signature]
in the presence of: )
[ Signature]
Signature of
witness
NICOLE JANE HENDERSON
Name of witness
EXECUTED by MITCHELL PLATEAU )
BAUXITE CO. PTY.
LIMITED )
ACN 008 545 499 in accordance with
)
section 127(1) of the Corporations Act 2001
(Cth) )
[ Signature]
[Signature]
Signature of Director Signature of Secretary
PAUL
GERARD ARNOLD ALFRED
PATRICK GRIGG
Full Name
Full Name
EXECUTED by ALCOA OF AUSTRALIA )
LIMITED ACN 004 879 298 in accordance )
with
section 127(1) of the Corporations Act )
2001
(Cth) )
[ Signature]
[Signature]
Signature of Director Signature of Secretary
SIMON
NICOLAS BUTTERWORTH MELANIE KATHERINE BROWN
Full Name Full Name
[Fourth Schedule inserted: No. 31 of 2015 s. 7.]