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240


MlNING (GOVE PENINSULA NABALOO AGREEMENT) ORDINANOE 1968

No. 15 of 1968



An Ordinance to approve an Agreement

between the Commonwealth of Australia and N abalco

Pty Limited and for purposes connected with

that Agreement

[Reserved 1 May, 1968]

[Assented to 16 May, 1968]*

by the Legislative Council for the Northern

B E it ordained

Territory of Australia, in pursuance of the powers

conferred by the Northern Territory (A dministration)· Act

1910- 1967, as follows:Short title



Commencement



Definitions



Approval of



Agreement



Minister and

Administrator to

exercise powers

consistently with



Asreement



1. This Ordinance may be cited as the Mining (Gove Peninsula Nabalco Agreement) Ordinance 1968.

2. This Ordinance shall come into operation on a date to be

fixed by the Administrator by notice in the Gazette. t

3. In this Ordinance, unless the contrary intention

appears."statute" means an Ordinance or State Act of the State of

South Australia in force ·as a law of the Territory and

includes regulations, rules and by-laws made under an

Ordinance or such a State Act;

"the Agreement" means the Agreement made on the

twenty-second day of February, 1968, between the Commonwealth and the Company, being the agreement set

out in the Schedule to this Ordinance;

"the Company" has the· meaning defined in the definition

of "the Company" in clause 1 of the Agreement.

.4. The Agreement is approved.

5.-( 1.) The Minister and the Administrator shall exercise

their powers under the laws of the Territory in relation to the

Company consistently with the provisions of the Agreement.

(2.) Without limiting the generality of the last preceding

sub-section, the Minister and the Administrator shall exercise

their powers under the laws of the Territory in relation to(a) the special mineral lease as defined in clause 1 of the

Agreement; and

• Notified in the Northern Territory Government Gazette dated 22 May, ·1968.

t The date fixed was 29 May, 1968 (see Northern Territory Government Gazette No. 24 of 29 May

1968, page 133).

'



Mining (Gove Peninsula Nabalco

Agreement) Ordinance 1968



[1968, No. 15



241



(b) all leases, licences, easements and other titles to be



granted to the Company pursuant to sub-clause

(2.) to (6.) inclusive of clause 4 of the Agreement,

consistently with the provisions of the Agreement.

6.-( 1.) The Minister may grant to the Company such

leases and the Commonwealth may grant to the Company such

licences, easements and other titles as are required to be granted

to the Company for the purpose of giving effect to clause 4 of the

Agreement.

(2.) Any lease (including any special mineral lease),

licence, easement or other title granted pursuant to this section

has effect according to its terms.

(3.) If the Minister grants a special mineral lease pursuant

to this section he may(a) vary it for the purpose of giving effect to clause 4 or

6 of the Agreement; or

(b) renew it for the purpose of fulfilling the covenant in

clause 2 of the form of lease in the First Schedule

to the Agreement.

( 4.) If the Minister grants a special purposes lease pursuant

to this section, he may renew it for the purpose of giving effect

to clause 4 of the Agreement.

(5.) If the Commonwealth grants a licence, easement or

other title pursuant to this seotion it may renew it for the purpose

of giving effect to clause 4 of the Agreement.

(6.) Where(a) a special mineral lease is varied or renewed pursuant

to this section; or

(b) a special purposes lease, licence, easement or other

title is renewed pursuant to this section,

it has effect according to its terms as so varied or renewed.



Powers of

Minister and

Commonwealth in

relation to

leases, &c.



7.-(1.) Neither a mortgage or charge, being a mortgage

or charge(a) in a form commonly known as a floating charge;

(b) consented to by the Minister pursuant to clause 16

of the Agreement; and

(c) given by the Company over a lease, licence, easement or other title granted under or pursuant to

the Agreement,

nor a transfer or assignment in exercise of any power of sale contained in such a mortgage or charge shall require any approval

or consent other than such consent as may be necessary under

clause 16 of the Agreement.

(2.) A mortgage or charge of a kind referred to in the last

preceding sub-section shall not be rendered ineffectual as an

equitable charge-



Provisions

concerning

mortgages and

charges under

clause 16 of

Agreement



242



1968, No. 15]



Mining (Gove Peninsula Nabalco

Agreement) Ordinance 1968



(a) hy the absence of any approval or consent otherwise



than as required by clause 16 of the Agreement;

or

(b) because the mortgage or charge is not registered

under any provision of the Ordinance under

whioh the lease, licence, easement or other title

over which it is given is granted.

Leases, &c.,

under Agreement

not to be subject

to or capable of

partition, &c.



8. No lease, sub-lease, licence, easement or other title

granted or assigned under or pursuant to the Agreement shall

be(a) subject to or capable of partition, whether by agreement or by decree or order of any court of competent jurisdiction or otherwise; or

(b) subject Ita the making of an order for sale under the

Partition Act, 1881, of the State of SOli th Australia in its application to the Territory.



Necessary power

conferred on

Commonwealth

Minister and

Administrator



9.-( 1.) A specified person has, by reason of this section,

such power as is necessary to be conferred on him in order to

enable him to do an act or thing which(a) he is, under the Agreement or a lease, required or

permitted to do; and

(b) it is necessary for him to do in order to give effect to

the Agreement or a lease according to its terms.

(2.) In this section"lease" means a special mineral lease or special purposes

lease granted pursuant to the Agreement;

"specified person" means, in relation to the doing of an

act or thing, a person, being the Commonwealth, the

Minister or the Administrator, specified in the Agreement

or a lease as the person who shall or will or may do that

act or thing.



Enforcement'

of bond



10.-(1.) If the Company, having been granted a special

mineral lease such as is provided for in sub-clause (1.) of clause

4 of the Agreement and having entered into a bond does not observe and carry out the provisions on its part to be observed and

carried out of sub-clauses (4.) and (5.) of clause 5 of the 'Agreement, the Company shall, whether or not the special mineral

lease has been forfeited or surrendered, be liable to pay to the

Commonwealth the sum in which the Company acknowledges

itself in the bond to be bound, and that sum is a debt due to the

Commonwealth and may be recovered by action in any court of

competent jurisdiction.

(2.) H(a) the Company has entered into a bond and, in



accordance with the Agreement, has assigned the

whole or any part of its rights under the Agree-



Mining (Gave Peninsula Nabalca

Agreement) Ordinance 1968



[1968, No. 15



243



ment (including its right to or as the holder of

any lease, licence, easement or other title) ;

(b) the assignee has entered into a bond in substitution

for the bond entered into by the Company, conditioned however to be void in case the assignee

shall observe and carry out the provisions on the

part of the Company to be observed and carried

out of sub-clauses (4.) and (5.) of clause 5 of

the Agreement; and

(c) the assignee does not observe and carry out those

provisions,

the assignee shall, whether or not the special mineral lease has

been forfeited or surrendered, be liable to pay to the Commonwealth the sum in which the .assignee acknowledges itself in the

bond to be bound, and that sum is a debt due to the Commonwealth and may be recovered by action in any court of competent

jurisdiction.

(3. ) In and for the purposes of any proceeding to recover

the sum referred to in sub-section 0.) or (2.) of this section(a) that sum shall be deemed to be a genuine preestimate of the damage suffered and recoverable

by the Commonwealth in respect of any failure or

omission on the 'Part of the Company or the

assignee such as is referred to in sub-section (1.)

or (2.) of this section;

Cb) it shall not be competent for the defence to plead(i) that the damage so suffered and recoverable

was less than that sum; or

(ii) that the sum or any amount of it is a penalty

or penal damages; and

(c) evidence proving or tending to prove any of the matters set out in sub-paragraphs (i) and (ii) of the

last preceding paragraph shall not be led or

'

admitted.

( 4.) In this section, "bond" means a bond such as is set out

in the Third Schedule to the Agreement.

11. Subject to this Ordinance and the provl·sion" of the

Agreement(a) the provisions of the Mining Ordinance 1939-1967

and regulations made under that Ordinance apply

to and in relation to a special mineral lease

granted pursuant to the Agreement as if it were

a special mineral lease granted under that Ordinance;

(b) the provisions of the Special Purposes Leases Ordinance 1953-1965 and regulations made under that

Ordinance apply to and in relation to a special

purposes lease granted pursuant to the Agreement

u



r .

or~~~':{gD



1\



Ordinances and

regulations



244



1968, No. 15]



Mining (Gove Peninsula Nabalco

Agreement) Ordinance 1968



as if it were a special purposes lease granted

under that Ordinance; and

(c) the provisions of any applicable law other than this

Ordinance apply to and in relation to any other

lease or any licence, easement or other title

granted pursuant to the Agreement as if that other

lease or that licence, easement or other title were

granted under that applicable law.

This Ordinance

to prevail over

inconsistent

statute, &c.



12. This Ordinance prevails over any inconsistent statute or

rule or practice of law or equity.

THE SCHEDULB



Definitions



THIS AGREEMENT is made the Twenty-second day of February, One thousand

nine hundred and sixty-eight, BETWEEN THE COMMONWEALTH OF AUSTRALIA (in this agreement called "the Commonwealth") of the one part and

NABALCO PTY. LIMITED, a company incorporated in the State of New South

Wales whose registered office is situated at Goldfields House, 1 Alfred Street, Sydney

in that State, (in this agreement called ''the Company") of the other part.

WHEREAS(1) deposits of bauxite are known to exist in the Gove Peninsula of the

Northern Territory;

(2) The Company desires(a) to test the exter.t of the said deposits;

(b) to develop the mining property 'and to bring the said deposits into

production;

(c) to produce bauxite and alumina within the Territory;

(d) ,to eJqlort alumina; and

(e) if found economically feasible, te produce aluminium within the

Territory and to have the right to export the same;

(3) the Company is prepared to provide and expend the large capital amount

required for these and associated purposes;

(4) the Commonwealth is satisfied that a large capital eJqlenditure is necessary

to ensure that the said bauxite deposits are efficiently and economically

developed for a long period and that it is in the interests of the COI"Jmonwealth that those bauxite deposits should be developed and that the

Company is technically and financially capable of so developing those

deposits; 'and

(5) it is desirlible that in consideration of the Company entering into the

obligations on its part contained in this agreement, the Company should

be granted the rights, titles and privileges set out in this agreement to

enable the Company to develop the mining property:

NOW THIS AGREEMENT WITNESSETH as follows:1.-(1.) In this agreement, unless the contrary intention appears"Australian company" means(1) it member company of the group of companies referred to .in sub
(1.) of clause 9 of this agreement;

(2) 'a company which is incorporated in Australia and which is, or which the

parties agree may reasonlibly be deemed to be, beneficially owned to the

extent of seventy-five per centum (75 %) of its equity capital by(a) persons who are residents of Australia; or

(b) companies each of which is beneficially owned to the extent of

seventy-five per centum (75 %) of its equity capital by persons

who are residents of Australia; or

(c) a combination of such persons and companies; or

(3) a company which has, in the opinion of the Minister, whose opinion shall

be binding on the Company, Australian characteristics of identification

such 'as Australian management, Australian share-holding or the like.

"equity capital" means (for the purposes of the definition of "Australian company") the sh'are capital subscribed by sh'areholders in the relevant company;



Mining (Cove Peninsula Nabalco

Agreement) Ordinance 1968



245



[1968, No. 15



"red mud" means the residue from the chemical treatment process used in the

production of alumina;

"Swiss Aluminium Australia" means Swiss Aluminium Australia Pty. Limited,

a company incorporated in the State of New South Wales that is a

wholly owned subsidiary company of Swiss Aluminium Limited, and has

its registered office at Go'ldfields House, 1 Alfred Street, Sydney in the

said State;

"Swiss Aluminium Limited", means Swiss Aluminium Limited,a company incorporated in Switzerland that has its registered office at Chippis Oanton

of Valais ~nd its adfftini~trative head office at Zurich 8, Feldeggstrasse 4,

Switzerland;

"the Administrator" means the Administrator of the Territory appointed under

the Northern Territory (Administration) Act 1910-1967, or the person

for the time being duly 'appointed pursuant to that Act to act in the

office of Administrator or the holder for the time being of, or the person for the time being performing the duties of, 'any office in subi>titution for the office of Administrator;

"the bauxite treatment plant" means the plant to be erected by the Company

pursuant to sub-clause (5.) of clause 5 ill this agreement;

"the Company" means Nabalco Pty. Limited and(a) if this 'agreement is assigned, means ail the permitted assigns of

Nabalco Pty. Limited 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, licence, easement or other title have been transferred, assigned or charged by the Company. includes in relation

to the lease, licence, easement or other title, the person or persons

for the time being entitled to, or to the exercise of, those rights;

"the feasibility study" means the study to be made by the Company pursuant

to sub-clause (1.) of clause 5 of this agreement;

"the Minister" means the Minister of State for Territories of the Commonwealth or such other Minister of State as may for the time being

be charged with the administration of the Northern Territory (Administration) Act 1910-1967 and includes 'any member of the Federal Executive Council who may for the time being be acting for that Minister;

"the Ordinance" means the Mining Ordinance 1939-1967 of the Territory;

"the perimeter areas" means the 13nd described in the Second Schedule to this

agreement;

"the Special Mineral Lease" means the Special Mineral Lease provided for by

sub-clause (1.) of clause 4 of this agreement as varied at any time in

'accordance with this agreement and includes an extension or renewal of

that lease;

"the Territory" means the Northern Territory of Australia; and

'~this agreement" means this agreement as the same may be added to, varied or

amended from time to time.

(2.) In this agreement any reference to an Act means that Act as 'amended from

time to time or any Act in substitution for that Act.

(3.) In this agreement any reference to an Ordinance or the regulations thereunder means that OrdiTlance or those regulations as ,amended from time to time or

any Ordinance Of regulations in substitution for that Ordinance or those regulations.

(4.) In this agreement, unless the contrary intention appears, words in the singular shall include the plural and words in the plural shall include the singular.

(5.) Marginal notes shall not affect the interpretation or construction of this

agreement.

)

2.-(1.) This 'agreement, other than clause 3 and sub-clause (1.) of clause 11,

shall have no force or effect and shall not be binding on either party unless and until

it is approved by an Ordinance of the Territory assented to by the Governor-General

of Australia or the person for the time being administering the Government of the

Commonwealth.

(2.) Acts or things which have been done or carried out by or on behalf of a

party to ,this agreement prior to the coming into force of this agreement but which

were done or carried out in contemplation of this agreement and in accordance with

its provisions shall, so far as is appropriate and practicable, be deemed to bave been

done or carried out under and for the purposes of this agreement.

3.-(1.) The Commonwealth will take the necessary action to have submitted to

the Legislative Council for ,the Territory at the earliest practical date a Bill for an

Ordinance to approve this agreement.

'(2.) The Bill referred to in ,the last preceding sub-clause shall also contain, inter

alia, provisions for the purpose of-



Operation of

Agreement



Approval of

Agreement



246



1968, No. 15]



Mining (Gove Peninsula Nabalco

Agreement) Ordinance 1968



(a) enabling this agreement, the Special Mineral Lease 'and alI leases, licences,



Special

Mineral

Lease and

Other Rights



easements and other titles to be granted to the Company pursuant to

sub-clauses (2.) to (6.) inclusive of clause 4 of this agreement to take

effect according to their terms notwithstanding anything to the contrary

in, or any inconsistency with, the Ordinance or the regulations. thereunder or any other Ordinance or regulations under such other Ordmance;

(b) enabling the Commonwealth to enforce the bond ifeferred to in clause 11

of this agreement against the Company according to its terms notwithstanding any rule of law relating to penalties and penal damages or any

other rule or practice of law or equity whatsoever to the contrary;

(c) providing that no mortgage or charge in a form commonly known as a

floating ch'arge consented to pursuant to clause 16 of this agreement by

the Company or any assignee thereof over ,any lease, licence, easement

or other title granted under or pursuant to this agreement and no transfer or assignment in exercise of any power of slille contained in such

mortgage or charge shalI require any approval or consent other than

such consent as may be necessary under clause 16 of this agreement and

no such mortgage Of charge shaH be rendered ineffectual as an equitable

charge by the absence of any ,approval or consent otherwise than as

required by clause 16 of this agreement or because the same is not

registered under any provision of the relevant Ordinance under which

the lease, licence, easement or other title is granted; and

(d) providing that no lease, licence, easement or other title granted or assigned

under or pursuant to this agreement shall be subject to or capable of

partition including partition under The Partition Act, 1881, of the State

of South Australia in its application to the Territory or under any order

of any Court of competent jurisdiction under th'at Act or otherwise or

be subject to the making of an order for sale under that Act.

4.~(1.) The Minister shall grant on behalf of the Commonwealth to the Company, and the Company will accept, a Special Mineral Lease in the terms set out in

the First Schedule to this agreement fora term which, subject to the payment of

rents and royalties therein mentioned and to there being no default by the Company

in respect of which the Commonwealth has given notice under clause 18 of this agreement, shall be for a period of 42 years commencing on the date of this agreement

with a right of renewal 'as therein provided for 'a further 42 years on the same terms

and conditions (except the right of renewal) but subject to earlier determination upon

cessation or determination of this agreement.

(2.) Notwithstanding the provisions of clause 6 of this agreement, the Minister

shall grant to the Company on behalf of the Commonwealth a lease or leases of such

land within the area coloured pink on the plan designated 'NABALCO/PLAN I'

annexed to this agreement ,as is not included in the Special Mineral Lease and is

reasonably required by the Company for the provision of services and for purposes

ancillary to its operations under this agreement.

(3.) A lease under the last preceding sub-clause shall be granted, at the discretion

of the Minister, by the variation of the Special Mineral Lease or by the grant of a

Special PUI'j)oses Lease or Leases and shall be granted upon and subject to appropriate terms and conditions and, in the case of a Special Purposes Lease, for a term

terminating on the termination of the Special Mineral Lease.

(4.) The Minister shall grant to the Company, upon and subject to appropriate

terms and conditions, Special Purposes Leases of such land as is reasonably required

by tlw Company to establish a township and to dispose of red mud on the Gave

Peninsula in connexion with its mining operations under this agreement.

(5.) A lease, including the v'ariation of a lease, under sub-clause (2.), (3.) or

(4.) of this clause(a) shall not impose on the Company obligations that are not reasonable in

the circumstances of the use of the land leased and of the operations

proposed to be carried out thereon;

(b) shalI not contain reservations other than those that are contained in the

Special Mineral Lease, except that a Special Purposes 'Lease may contain

a reservation of minerals;

(c) shall contain provisions to the same effect as those that are contained in

paragraphs (k), (1), (m), (n), (0) and (p) of clause 3 of the Special

MineI'al Lease, except that in a Special Purposes Lease the provision to

the effect of paragraph (k) shaH refer to the Special Purposes Leases

Ordin'ance and to Special Purposes Leases.

.(~.) In ad~ition to the grant of the leases in accordance with the preceding

proVISIOns of thIS clau~e, the Commonwealth will grant or cause to be granted to the

Company on appropnate tenures and upon and subject to appropriate conditions

including conditions for the payment of rent and royalties, under applicable laws ~



Mining (Gove Peninsula Nabalco

Agreement) Ordinance 1968



247



[1968, No. 15



locatiens to be agreed upon and, except when otherwise agreed, during such time as

the Special Mineral Lease remains in force(a) reasonable rights of passage ever other areas of Gove Peninsula te enable

the Cempany to carry out its obligatiens under this agreement;

(b) such reasenable rights te take water, timber, stene, sand, lime, and other

materials (except those that can be readily supplied en reasenable terms

and cenditiens by the Yirrkala Missien er the Aborigines) as the Minister or the Administrater is satisfied are reasonably required to be granted

to the Company fer its purpeses under this agreement; and

(c) the right to win and use, in such quantities as may reasonably be required

by the Cempany for its purpeses under this agreement, shel1grit, coral

and ether calcium-bearing minerals from such parts of the sea and

estuaries in the vicinity of the land leased to the Company as from time

to time may be specified by the Administrator, but on condition that

any shell taken is taken in cenformity with the Pearl Fisheries Act 19521953 and the Pearling and Pearl Culture Ordinance 1964.

5.-(1.) The Company will undertake a feasibility study to obtain the necessary

physical and cost data on which to proceed subsequently with the detailed design and

erection of a baUlmte treatment plant with a capacity of not less than 500,000 tens 'Of

alumina per annum at Gove Peninsula 'and at such other location or locations within

the Territory as the Company may wish to consider.

(2.) The Company will complete the feasibility study by the 31st day of December, 1967, and will spend on that study not less than One million dollars ($1,000,000).

(3.) The Cempany will furnish to the Minister prier to the 31st day of March,

1968, a comprehensive report on the results of the feasibility study.

(4.) The Cempany will, prior to the 31st day of December, 1969, cemplete the

detailed engineering design for a bauxite treatment plant with a capacity of net less

than 500,000 tons of alumina per annum to be established at Gove Peninsula or at

another location within the Territory proposed by the Company and accepted by the

Minister.

(5.) The Company will undertake and cemplete befere .the 31st day 'Of December, 1971, the censtruction 'Of a bauxite treatment plant 'Of the capacity and at the

place referred to in the last preceding sub-clause or, in lieu thereef, 'Of a bauxite

treatment plant at that place that is in accordance with paragraph (b) 'Of sub-clause

(2.) of the next succeeding clause.

(6.) The Company will maintain the bauxite treatment plant in 'Operable condition.

(7.) The Cempany will, in consult,ation with and to the satisfaction 'Of the

Administrater, dispose 'Of the red mud and other effluent from the bauxite treatment

plant in accordance with goed mining and industrial practice.

6.-(1.) In additien to the operations provided for by the last preceding clause,

the Cempany will at no cost to the Cemmonwealth carry out, by the 31st day of

March, 1968, or such later date as is agreed upon by the Minister and the Company,

a drilling, sampling and analysing programme of the perimeter areas and will make

the results thereof available to the Commonwealth.

(2.) If(a) the results of the sarid drilling, sampling and analysing are such that the

Minister is sati~fied that the perimeter areas contain 50 million tens er

less than 50 million tens of practicably extractaible bauxite having !l

percentage of available alumina of over 44 per centum and having under

five per centum of silica; and

(b) the Company commits itself to erect, in lieu of a bauxite treatment plant

of the minimum capacity provided by sub-cLause (4.) of the last preceding clause, a bauxite treatment plant with a capacity of 750,000 tens of

alumina per annum and designed fer expansion to 'a capacity 'Of one

million tens of alumina per annum,

then the perimeter areas shall, subject to the next succeeding sub-clause, be included

in and form part 'Of the land demised by the Special Mineral Lease and the Schedule

to that lease shall be varied accordingly.

(3.) If the results of the said drilling, sampling and analysing are such that the

Minister is s·atisfied that the perimeter areas centain appreciably more than 50 million

tens of practicably extractable bauxite having a percentage of available alumina of

ever 44 per centum and having under five per centum of silica, the Commenwealth

shall have the right to reconsider the inclusion 'Of the perimeter areas in the Special

Mineral Lease and whether it shall be bound by the provisiens of the last preceding

sub-clause and any decision 'Of the Cemmonwealth shall be notified forthwith te the

Company.

(4.) In the event that by virtue of the decision of the Commonwealth under the

las't preceding sub-clause the perimeter areas are net included in .the Special Mineral



The Bauxite

Treatment

Areaa



The Perimeter



Areas



248



Aluminium

Smelter



Reports



Share holdings

in the Company



1968, No. 15]



Mining (Gove Peninsula Nabalco

Agreement) Ordinance 1968



Lease, ·the Commonwealth will pay to the Company the proper costs incurred by the

Company in carrying out the said drilling, sampling and analysing.

(5.) For the purposes of this clause"percentage of available alumina" means that percent'age of alumina arrived at

by subtracting the percentage figure of total silica content from the percentage figure of total alum in a; and

"practicably extractable bauxite" means bauxite having a minimum thickness

of six fect or a minimum thickness of four feet with a maximum overburden ratio of 1.5 of overburden to one of bauxite.

7.-(1.) Prior to the 31st day of December, 1971, or, if the Minister so approves,

within a further period of twelve months after that date, the Company will(a) make a complete study of the economic feasibility of aluminium smelting

at such location or locations within the Territory as the Company may

wish to consider;

(b) furnish the Minister with a comprehensive report of that study; and

(c) forward to the Minister for discussion a firm proposal for the erection

and establishment of an aluminium smelter within the Territory subject

only to any conditions revealed by that study as to the supply and price

of continuous power.

(2.) If aluminium ~melting does not eventuate from this first proposal, the

Company shall make further studies and furnish reports at such time or times as the

Minister shall reasonably request in the light of any significant change having occurred

in the prospects for supply and price of continuous power since the making of the

previous proposal. Each such report shall be accompanied by a further proposal

based on such further study for discussion with the Minister for the establishment of

a smelter within the Territory subject only to any conditions revealed by such further

study as to the supply and price of continuous power.

8.-(1.) The Company will supply to the Minister and to the Administrator as

at the last days of June and December in each year repons setting out the progress

on the study referred to in sub-clause (1.) of clause 5 of this agreement and on the

expenditures incurred by the Company up to the date of the completion of the bauxite

treatment plant on the overall project, each report to be lodged within two months

of the end of the period being reported on.

(2.) The Company will supply to the Minister such statistics of quantities of

production, shipments and stocks of bauxite and alumina and of employment as are

from time to time reasonably required by the Minister.

9.-(1.) The Company will use its best endeavours to ensure that, until the 31st

day of March, 1968, and thereafter unless and until it is demonstrated by the Company to the satisfaction of the Minister in the feasibility study that the cost of alumina

produced in the bauxite treatment plant will exceed the world market price of alumina

(that cost for th(! purposes only of this clause being deemed to include a profit available for dividend distribution of seven and a half per centum (71%) per annum on

the whole of the equity capital of the Company), fifty per centum (50%) of the Company's issued shares will be held by Swiss Aluminium Australia and/or by Swiss

Aluminium Limited in such proportions as Swiss Aluminium Limited may from time

to time determine and the remaining fifty per centum (50%) will be held by the

undermentioned group of Australian companies, either in the undermentioned proportions or in such other proportions in substitution thereof as may be mutually agreed

to by members of the said group, namelyThe Colonial Sugar Refining Co. Ltd.

271-%

Australian Mutual Provident Society

5 %

Bank of New South Wales

21%

Elder Smith Goldsbrough Mort Ltd.

2l%

Mount Morgan Limited

2;"%

The Commercial Banking Company of Sydney Ltd.

21%

Peko-Wallsend Investments Ltd. ..

3i%

The Mutual Life and Citizens Assurance Co. Ltd. ..

3t%

50 %

(2.) For the purposes of the last preceding sub-clause, the profit available for

dividend distribution will be deemed to be the profit remaining after(a) deducting all costs, charges and outgoings of and incidental to the mining

of bauxite, to the production of alumina and to the sales of products,

including royalties, rents, rates, interest on loan moneys, maintenance and

year-by-year replacements;

(b) making provision for taxes and other matters for which it is proper. and

reasonable according to usual commercial and mining practices to make

provision; and



Mining (Gove Peninsula Nabalco

Agreement) Ordinance 1968



249



[1968, No. 15



(c) amortising all assets over twenty years from the date of commencement



of the production of alumina.

(3.) If as a result of it having been demonstrated by the Company to the satis-



faction of the Minister in the feasibility study that the cost of alumina as defined in

sub-clause (1.) of this clause read with sub-clause (2.) of this clause produced in the

bauxite treatment plant will exceed the world market price of alumi'1a an Australian

company referred to in sUb-clause (1.) desires, after the 31st day of March, 1968, to

dispose of the whole or a part of its shares in the Company, the Company will use its

best endeavours to persuade one or more of the remaining Australian companies

referred to in sub-clause (1.) of this clause to acquire the shares which the firstmentioned Australian Company desires to dispose of.

(4.) If the Company i'i unsuccessful in the endeavours referred to in the last

preceding sub-clause, it will confer with the Minister and will, within a reasonable

time, use its best endeavours to persuade another or other suitable Australian company

or companies, not being a company or companies within the aluminium industry but

being a company or companies approved by Swiss Aluminium Australia, to acquire

those shares, it being agreed, so far as the Comp~ny is in any position to prevent the

same, that Swiss Aluminium Australia and Swiss Aluminium Limited shall not increase

their total share-holding in the Company beyond fifty per centum (50%) of the equity

capital unless the Company, having used its best endeavours as aforesaid, has been

unable within a reasonable time to persuade another or other suitable Australian

company or companies to acquire the said shares.

(5.) Nothing contained in sub-clauses (1.), (3.) and (4.) of this clause shall be

deemed to prevent individual members of the said group of Australian companies

from disposing of their shares, after the said 31st day of March, 1968, to other Australian companies, not being companies within the aluminium industry but being

approved by Swiss Aluminium Australia.

10.-(1.) The Company will negotiate and enter into a contract with Swiss

Aluminium Limited on terms whereby(a) Swiss Aluminium Limited will contract to purchase for export firm for a

period of 20 years the whole output of the bauxite treatment plant;

(b) the price as determined under the price formula in the contract for that

output will be subject to the Minister being satisfied that it is reasonable having regard to evidence to be advanced by the Company that the

proposed price adjusted to a delivered basis(i) is not below the cost of production and freight; and

(ii) is reasonably comparable with the delivered prices for alumina that

would be applicable to like quantities, quality and duration supplied under arms-length contracts from other world sources, not

being contracts for alumina sold or offered for sale at distressed

prices or at prices resulting from dumping or subsidising.

(2.) The Company will take all practicable steps necessary to ensure that the

contract is continued in force and performed subject to the force majeure provisions

(if any) in such contract.

(3.) The Company will not negotiate downwards the original price specified in

the contract referred to in sub-clause (I.) of this clause during the life of that contract except with the approval of the Minister.

(4.) In the absence of an agreement between the Australian companies holding

shares in the Company and Swiss Aluminium Limited to the contrary, the contract

referred to in sub-clause (I.) of this clause will give to the Australian companies

holding shares in the Company an option at any time and from time to time on giving

reasonable notice to purchase at comparable prices, terms and conditions to those

applying under the said contract up to fifty per centum (50%) of the total production of alumina for their own unrestricted use or sale.

11.-( 1.) On the signing of this agreement, the Company will execute and deliver

to the Minister a bond substantially in accordance with the form in the Third Schedule

to this agreement bind the Company in the sum of Two million dollars ($2,000,000)

as security for compliance by the Company with certain conditions of this agreement,

compliance with which is expressed in the said bond to make the bond void.

(2.) As soon as practicable after the date on which this agreement comes into

force and in any event not later than one month after that date, the Company shall

deliver to the Minister a guarantee or guarantees, in a form or forms approved by the

Minister, by a guarantor or guarantors approved by the Minister guaranteeing the

payment of any judgment, together with costs, obtained by the Commonwealth against

the Company on the bond referred to in sub-clause (1.) of this clause and in respect

of interest payable on any such judgment.

12.-(1.) The Commonwealth will use its best endeavours to ensure that no Act

or Ordinance is nassed that will impose, and that the Administration of the Territory

and the agencies- or instrumentalities of the Commonwealth and of the Territory and



S,le of



Alumina



B,md and

Guarantee



Discriminatory



Taxes, &c.



250



1968, No. 15]



Mining (Gove Peninsula Nabalco

Agreement) Ordinance 1968



any local or other authority are not permitted or authorized to' impose, discriminatory

taxes, discriminatory rates or discriminatory charges of any nature whatsoever on or

in respect of the titles, property or other assets, products, material or services used or

produced by or through the operations of the Companv or of any subsidiary or

associated company of the Company in the conduct of bus-mess iDcidental to the

Company's business under this agreement.

(2.) The Commonwealth will not take or permit to be taken any other discriminatory. action that would deprive the Company or any subsidiary or associated

company of full enjoyment of the rights granted or to be granted to the Company

under this agreement.

Grants of Mining

13.-0.) The Commonwealth wiIl ensure: that during the curreccy of the Special

Rights to Other

Mineral Lease no claim, lease or other minin,g tenement is registered or granted under

Persons

the Ordinance or otherwise by which any person other than the Company would

obtain under the laws relatmg to mining or otherwise any rights to mine or take the

natural substances (other than petroleum) within the land comprised in the Special

Mineral Lease or any other lease granted pursuant to this agreement if such claim,

lease or other mining tenment would unduly prejudice the Company in relation to Its

operations under this agreement or under the relevant lease or would prejudicially

interfere with such operations, assuming the taking by the Company of all reasonable

steps to avoid the interference.

(2.) Authority under the Ordinance to occupy or mine any part of the land

ooloured blue on the plan designated 'NABALCOjPLAN 11' annexed to this agreement shall not be granted by the Administrator where the occupation or mining would

unduly prejudice the Company in its reasonable requirements in relation to its expected

operations under this agreement and before any such authority is granted reasonable

written notice will be given to the Company of the intention to grant the authority.

14. The Commonwealth and the Company agree with each other that the land

Zoning

for the time being comprised in the Special Mineral Lease and the lands the subject

of any lease, licence, easement or other title granted to the Company pursuant to this

agreement shall be and remain zoned for use or otherwise protected during the currency of this agreement so that theopel'ations of the Company hereunder may be

undertaken and carried out thereon without any interference or interruption by the

Commonwealth, the Administration of the Territory or any agency or instrumt''ltality

of either of !!hem or any local or other authority of the Territory on the ground thoat

such operations are contrary to any zoning by-law or regulation.

Third Parties

15. Without affecting the liability of the Company under this agreement, the

Company shall have the right from time to time to entrust to third parties the carrying out of any portions of the operations which the Company is authorised or obliged

to carry out hereunder.

16. Subject to the provisions of this clause the Company may not transfer, assign

Transfers, &c.

or charge the whole or any part of the rights of the Company under this agreement

(including its rights to or as the holder of any lease, licence, easement or other title)

or part with possession of any land the subject of any such lease, licence, easement

or other title (other than to a wholly owned subsidiary or to wholly owned subsidiaries

of the Company) without the consent in writing of the Minister, which consent shall

not be unreasonably withheld in the case of a mortgage or charge bona fide for

financing the operations of the Company under this agreement.

17.-(1.) If the Company incurs delay in the performance of any of its obligaPermissible

Delays

tions under this agreeme:nt(a) from any cause arising without default or negligence on the part of and

beyond the reasonable control of the Company; or

(b) without prejudice to the generality of the foregoing, by reason of fire,

explosion, storm, flood, lightning, earthquake or other natural cause or

accident, riot or civil commotion, strikes or lockouts, war (whether

declared or not) or military or usurped power, act of government by

way of restriction, embargo or prohibition arising without default or

negligence on the part of the Company,

and if the Company furnishes evidence to the satisiaction of the Minister of the

existence of the cause and of the fact that it was without default or negligence on

the part of and beyond the reasonable control of the Company, then such obligation

shall be suspended so far as it is so affected by such cause as aforesaid, but only

during the continuance thereof.

(2.) Where an obligation that has been suspended under sub-clause (1.) of this

clause requires the Company to undertake or complete any act, matter or thing by

any date or by the end of any period, the Minister shall, by notice in writing to the

Company, extend the date or the period, as the case may be, by the addition of a

period equal to the period during which the Company was delayed in the performance of the obligation.

(3.) Notwithstanding any provision of this agreement the Minister may, at his

discretion, at the request of the Company from time to time extend any period or



Mining (Gove Peninsula Nabalco

Agreement) Ordinance 1968



[1968, No. 15



251



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 of this agreement

to be substituted for the period or date so referred to.

18.~(1.) In the event that the Company makes default in the due performance Determination

or observance of any of the covenants or obligations in this agreement or in any lease,

licence, easement or other title granted, or assigned hereunder or pursuant hereto on

its part to be performed or observed and such default shall not have been remedied

within a period of one hundred and eighty (180) days after notice as provided in

sub-clause (4.) of this clause is given by the Commonwealth then and in any of

such events the Commonwealth may by notice to the Company determine this agreement and the rights of the Company litereunder and under any lease, licence, easement or other title granted hereunder or pursuant hereto.

(2.) If the Company surrenders the entireSpeoial Mineral Lease as permitted

under paragraph (p) of clause 3 of the Special Mineral Lease then this agreement

and the rights of the Company hereunder and under any lease, licence, easement or

other title granted hereunder or pursuant hereto shall thereupon determine.

(3.) If a default by the Company referred to in sub-clause. (1.) of this clause

shall not have been remedied after notice as therein providep, the Commonwealth

instead of determining this agreement because of the default, may itself remedy the

default or cause the same to be remedied (for which purpose the Commonwealth

by agents, workmen or otherwise shall have full power to enter upon lands occupied

by the Company and to make use of al1 plant, machinery, equipment and instal1ations

thereon) and the costs and expenses incurred by the Commonwealth in remedying

or causing to be remedied such default shall be a debt payable by the Company to

the Commonwealth on demand. Any action taken by the Commonwealth under this

sub-clause shal1 not affect the operation of this clause or prejudice the rights of the

Commonwealth under this clause in relation to any default other than. that in respect

of which the action is taken by the Commonwealth.

(4.) The notice to be given by the Commonwealth in terms of sub-clause (1.)

of this clause shall specify the nature of the default entitling the Commonwealth to

exercise the right of determination and, where appropriate or known to the Commonwealth, the party or parties responsible therefor and shall be given to the Company

and to each assignee, mortgagee, chargee and disponee for the time being of the

Company's said rights to or in favour of whom an assignment, mortgage, charge or

disposition has been effected in terms of clause 16 of this agreement and the 'name

and address for service of notice of whom as an assignee, mortgagee, chargee or

disponee have previously been notified in writing to the Commonwealth by the Company or any such assignee, mortgagee, chargee or disponee.

19. The provisions of this agreement or of any lease, licence, easement or right Variation

granted pursuant thereto may from time to time be cancelled, added to, varied or

amended by agreement in writing between the parties thereto provided that the cancellation, addition, variation or amendment shall not be inconsistent with or constitute

a material alteration of the essential provisions of this agreement.

20. Any notice, consent or other communciation to be given to or served upon Notices, &c.

the Company under this agreement shal1 be deemed to have been duly given or

served if it is in writing signed by or on behalf of the Minister and posted in a prepaid

letter addressed to the Company at its registered office and any notice or other communication to be given to or' served upon the Commonwealth or the Minister under

this agreement shall be deemed to have been duly given or served if it is in writing

signed on behalf of the Company and posted in a prepaid letter addressed to the

Minister at his usual office or to the Secretary to the Department of Territories at

Canberra. Any notice, consent or other communication sent by post shall be deemed

to be given or served at the time when in due course of post it would be delivered

to the address to which it is sent.

21. This agreement is governed by and is to be I:onstrued according to the law Applicable

Law

for the time being in force in the Territory.

THE SCHEDULES.

First Schedule

Clause 4.

THE NORTHERN TERRITORY OF AUSTRALIA



Mining (Gove Peninsula Nabalco Agreement) Ordinance 1968

Mining Ordinance 1939-1967

SPECIAL MINERAL LEASE.

Lease No.

LEASE granted on the

One thousand nine hundred and sixtyof an Agreement made the



day of

in accordance with clause 4

day of



252



1968, No. IS]



Mining (Gove Peninsula Nabalco

Agreement) Ordinance 1968



1968 between THE COMMONWEALTH OF AUSTRALIA (in this lease called ''the

Commonwealth") of the one part and NABALCO PTY. LIMITED, a company incorporated in the State of New South Wales and having its registered office at Goldfields

House, 1 Alfred Street, Sydney in the said State (in this lease called "the lessee") of

the other part which Agreement was approvd by the Mining (Gove Peninsula Nabalco

Agreement) Ordinance 1968 WHEREBY the Commonwealth DEMISES to the lessee

in consideration of the rent, rOYlllties and covenants hereinafter reserved and provided

and on the part od' the lessee to be paid and observed ALL THAT piece or parcel of

land (in this lease called "the leased land") containing by admeasurement 13,496

acres or thereabouts and particularly described and delineated in the Schedule to this

lease AND ALL those mines, veins, seams, lodes ,and deposits of bauxite and other

ores of aluminium, ores of calcium and ores of fluorine, together with any other

minerals found in combination or association in the leased land with them so that the

last-mentioned minerals must necessarily be mined in the mining of the bauxite or

the said other ores, in or under the leased land TOGETHER WITH the rights,

liberties, casements, advantages and appurtenances thereto belonging or appertaining

EXCEPTING and RESERVING out of this lease(a, the right of the Commonwealth, its servants, officers and agents, at any

time to enter and maintain and do work upon or in relation to the

air-strip and any public roads for the time being subsisting over or

upon the leased land;

(b) the rights of ingress, egress, and regress hereinafter provided;

(c) the right of the Commonwealth, subject to the provisions of the Agreement, to require the lessee(i) to grant or consent to the granting of such easements or rights in

or over the leased land; or

(ii) to permit such use of the leased land,

in each case as is or are reasonably necessary (taking into consideration

the present and future use or development of the leased land by the

lessee) in connection with the overall development or use of lands

adjacent to the leased land,

provided always that no such grant, consent or permis!lion to use shall

be required to be given by the lessee if such grant, consent or permission to use would(A) unduly prejudice the lessee in relation to its operations under the

Agreement or this lease or prejudicially interfere with those

operations; or

(B) increase the lessee's commitments or prejudicially interfere with the

lessee's control over the leased land or any part thereof;

TO HOLD the same UNTO THE LESSEE for the full term of forty-two years

commencing on the date of this lease with the right hereinafter provided to renew

the same for a further period of forty-two years for the purpose of mining on and

in the leased land for bauxite and the other ores and minerals previously referred to

in this lease and for all purposes necessary effectually to carry on the lessee's overall

mining operations under the Agreement on or in the leased land inc1uding(i) cutting and constructing thereon water-races, drains, channels, dams,

pathways, roads, tramways, railways, conveyors, pipe-lines, power-lines

-and other engineering services to be used in connexion with that mining;

(ii) quarrying stone and gravel and taking sand for the lessee's operations

under the Agreement;

(iii) erecting on the leased land bui1dings,installa~ions, facilities and machinery

to be used in connexion with the mining, the treatment and the export

of products, including the erection of a bauxite treatment plant;

(iv) erecting residences and other buildings and facilities on the leased land

in connexion with all or any of the above purposes; and

(v) subject to paragraph (b) of clause 1 hereof, drilling bores and wells for

water,

but upon and subject to the Agreement and to the Ordinance except in so far as the

provisions of the Ordinance are inconsistent with the Agreement YIELDING AND

PAYING therefor the yearly rent hereinafter provided AND FURTHER YIELDING

AND PAYING therefor royalties at the rates and in the manner hereinafter provided:

AND WHEREBY IT IS WITNESSED as follows:

1. The lessee for itself and for its suocessors and permitted assigns covenants

with the Commonwealth(a) to pay, during the period of this lease, the rent and royalties reserved

by the lease clear of all deductions at the respective rates and times

-and in the manner from time to time provided in this lease and, except

in so far as is otherwise so provided, by the Ordinance and the

Regulations;



Mining (Gove Peninsula Nabalco

Agreement) Ordinance )968



[1968, No. 15



(b) unless authorised to do so by the Administrator under the Control of

Waters Ordillance 1938-1965, not to bore or sink for, pump or raise

water, nor to erect any dam or other facility on existing rivers or water

ways for the purpose of the supply of waters;

(c) to operate in accordance with good mining practice and, subsequent to

mining operations on any part of the leased land, to take all steps

necessary to restore and leave the surface of the mined area in a

condition satisfactory to the Administrator so that(i) there shall be no abnormal batters or contours;

(ii) the surface soil (if any) existing prior to the mmmg operations

shall, where possible, be preserved and subsequently spread to

maximum advantage over the mined area;

(iii) there shall be a minimum interference with the natural drainage

system except where it is found expedient to use any mined area

for the storage of water;

(iv) there shall not arise any pollution of any drainage system that is

dangerous or injuriolls to public health; and

(v) the provisions of sub-paragraphs (i), (ii) and (iii) of this paragraph shall be carried out progressively and, in respect of a

mined part, within two years of the cessation of mining on that

mined part in order to allow of regeneration of vegetation;

(d) not to use or work the leased land nor permi, it to be used or worked

except for the purposes for which it is leased;

(e) to observe, perform and carry out the provisions of the Ordinance and

the Regulations and of the Mines Regulation Ordinance 1939-1962 and

the Regulations for the time being in force under that Ordinance so

far as those provisions affect or have reference to special mineral

leases granted under the Ordinance and are not inconsistent with the

Agreement and/or this lease;

(f) to treat the bauxite in accordance with good industrial practice and to

make the best use of the bauxite reserves;

(g) to take competent advice in association with experts nominated by the

Administrator as to what steps are reasonably possible to encourage and

promote regeneration and development of vegetation on mined areas

progressively;

(h) to grant to all aboriginal residents of the Mission and to other persons

specified in sub-section (3.) of section 17 of the Social Welfare Ordinance 1964-1967 of the Territory, the right to enter, leave and move

across the leased land at will, except across such areas as the lessee may

for security or safety reasons designate as restricted areas;

(i) to erect such fences or to take such other steps as may be reasonably

necessary for security or safety purposes;

(j) to permit access to any part of the leased land, not being a part or parts

designated a restricted area as aforesaid, by the following persons for

the performance of their duties(i) members of the staff of the Mission who have first obtained the

approval of the lessee; and

(ii) officers, employees and agents of the Administration or the

Commonwealth,

and not to unreasonably withhold approval sought for the purposes of

sub-paragraph (i) of this paragraph;

(k) not to interfere with or mine on any public road on the leased land

unless the lessee has provided an alternative road or taxiway, as the

case may be, approved by the Administrator;

(/) not to interfere with or mine in an area constituting the airstrip unless

and until the lessee has first constructed an alternative comparable airstrip on other land specified for that purpose by the Administrator and

the alternative airstrip is licensed for the same purpose as the existing

airstrip;

(m) to allow free public access to and along any public road and the airstrip

or the alternative airstrip constructed in accordance with paragraph (I)

of this clause;

(n) for so long as the Mission is maintained at Yirrkala, to conduct its

operations under this lease in such a way that it does not pollute,

divert or otherwise interfere with the source of supply of water to the

Mission from Yirrkl:la Creek unless it has first provided an alternative

source of supply to the satisfaction of the Administrator;



253



254



1968, No. 15]



Mining (Gove Peninsula Nabalco

Agreement) Ordinance 1968



(0) not to export bauxite from the Territory, except for purposes of testing in



laboratories or pilot plants, without me prior approval of the Minister;

and

(p) to observe, perform and carry out the covenants on the part of the

lessee to be observed, performed or carried out under the Agreement.

2. The Commonwealth covenants with the lessee that· the Minister will at the

written request of the lessee made 12 months before the expir.ation of the term hereby

created and .if there shall not at the time of the request be any existing breach or nonobservance of any of the covenants or obligations on the part O!f the lessee in respect

of which the Commonwealth has given notice under sub-clause (1.) of clause 18 of

the Agreement, which has not been remedied or subsequently waived, at the expense

of 'llhe lessee renew this lease for the further term of forty.Jtwo years from the

expiration of the said term upon and subject to the like covenants and conditions as

are contained in this lease with the exception of the present covenant for renewal.

3. It is mutually agreed and declared(a) that the rate of yearly rent payable by the lessee during each successive

period of twenty-one years during the term of this lease and any extension of it shall be that rate of yearly rent that would be applicable in

the case of a mineral lease of Crown land granted under the Ordinance

at the commencement of that twenty-one year period;

(b) that the initial rate of royalty payable by the lessee shall be Twenty cents

(20c) per ton on bauxite mined and treated in Australia, and Thirty

cents (30c) per ton on bauxite mined and exported as untreated

bauxite, but the royalty payable on bauxite mined and treated in Australia shall be reduced(i) to Fifteen cents (t5c) per ton in any year in which the lessee's net

profit (as hereinafter defined) is less than the equivalent of

Twelve dollars ($12) per ton of alumina produced but not les,"

than Eight dollars ($8) per ton of alumina produced; or

(ii) to Ten cents (tOc) per ton in any year in which the lessee's net

profit (as hereinafter defined) is less than the ,equivalent of Eight

dollars ($8) per ton of alumina produced;

(c) that if the Minister is s·atisfied that the capital investment necessary for

the establishment of a bauxite treatment plant with a capacity of 500,000

tons per annum is above One hundred million dollars ($100,000,000),

the figures of Twelve dollars ($12) and Eight dollars ($8) respectively

referred to in sub-paragraphs (i) and (ii) of the last preceding paragraph shall be deemed to be increased in the same proportion as the

new capital investment bears to One hundred million dollars

($100,000,000) ;

(d) that for the purposes of paragraph (b) of this clause"the lessee's net profit" in a year shall be the profit of the lessee in the

year after tax; and

''profit'' shall, subject to the provisions of paragraph (e) of this clause,

be the amount that is certified by the lessee's auditor to be the

surplus remaining after deduction from the gross proceeds during

the year from sales of bauxite and alumina produced from this

lease of(i) all costs, charges, outgoings and overheads of and incidental

to the mining, treatment, storage, handling, transport and

sales of bauxite and alumina, including rents, rates, interest

on loan moneys, maintenance and year-to-year replacements;

(ii) proV'isions on a basis that is consistent from year to year

for replacement of assets; and

(iii) other appropriate provisions on a basis that is consistent

from year to year, but not induding provisions for royalties and tax;

(e) that the following provisions shall apply in relation to the calculation of

the profit of the lessee referred to in the last preceding paragraph(i) the system of accounts, any charges to the lessee by any related

company (as defined by the Companies Ordinance) of the lessee

and the provisions to be made in the calculation of the profit

shall be subject to acceptance by the Administrator as. being in

accordance with usual commercial and mining practice and,

when the system of, accounts and the basis on which the provi.

sions are to be made have been accepted for the purposes of the

first royalty return, neither shall be changed except with the

approval of the Administrator;

(ii) the Administrator shall be entitled to examine the books and

records of the lessee for the purpose of verifying the calculation



Mining (Gave Peninsula Nabalca

Agreement) Ordinance 1968



[1968. No. 15



made on behalf of the lessee and the royalty payable in respect"

of the year;

(iii) if the Administrator is not satisfied with the calculation made on

behalf of the lessee he shall make the calculation that he considers is correct and notify the lessee of the calculation he has

made;

(iv) as soon as pract·icable after a notification by the Administrator,

the lessee and the Administrator shall consult together in an

endeavour to agree upon the ·calculation of the profit concerned;

(v) the profit of the lessee for the purposes of the calculation of royalty

in respect of a year sha:l1 be the profit calculated in accordance

with paragraph (d) and sub-paragraiph (i) of paragraph (e) of

this clause as agreed upon by the lessee and the Administrator

or, if agreement is not reached within a period of three months

after the notification to the lessee by the Administrator, as certified by the Auditor-General for the Commonwealth as calculated

inacco'rdance with paragraph (d) and sub-paragraph (i) of

paragraph (e) of this clause;

(vi) the lessee shall permit the Auditor-General or an officer authorized

by him to examine the books and records of the lessee for the

pUrPose of enabling a certificate provided for by the last preceding sub-paragraph to be given;

(vii) a cert·ificate by the Auditor-General as provided for by subparagraph (v) of this paragraph shall be accepted as a conclusive

determination of the profit of the lessee in the relevant year;

tf) that the rate of royalty may be reviewed by the Commonwealth at sevenyearly intervals computed from the 31st day of December, 1971, or

from the date on which alumina is first produced in commercial quantities, whichever is the earlier, tbe Commonwealth having regard to such

matters as the· profitability of the project at Gove Peninsula and the

movement in royalties generally in the Commonwealth of Australia for

bauxite and other minerals since the last review, the right being reseTved

to the Commonwealth when reviewing royalty, having regard to such

matters as aforesaid, to introduce new bases for assessment;

(g) that the rate of royalty payable by the lessee for the seven-yearly period

immediately succeeding a review shall, subject to paragraph (h) of this

clause, be the rate determined by the Commonwealth on the review or,

if not so determined within six months after the date for the review,

shall be the rate exist·ing immediately prior to the date for the review;

(h) that the rate of royalty payable under the preceding paragraphs of this

clause during the first three seven-yearly royalty periods shall in no case

be less than Ten cents (lOc) or more than Forty cents (40c) per ton

on bauxite mined and treated in Australia, or more than Fifty cents

(50c) per ton on bauxite mined and exported as untreated bauxite;

(i) that in relation to the payment of the royalty payable in accordance with

the preceding paragraphs of this clause the following provisions shall

apply(i) the Jessee shall within 28 days after the end of each quarter make

a payment of Ten cents (lOc) per ton on the tonnage input of

bauxite to the bauxite treatment plant;

(ii) the lessee shaH submit to the Administrator a royalty return for

each year within 28 days after receipt of the taxation assessment

of the lessee by the Commissioner for Taxation for the year

accompanied by the certificate of the lessee's auditor stating the

net profit after tax of ·that year and that the provisions referred

to in paragraph (d) of this clause are on a basis consistent with

those of the previous year;

(iii) any amount in addition to the total amount of the quarterly payments found to be payable after final calculation in respect of a

year on the basis set out above shall be paid by the lessee within

28 days after notification to the lessee by the Administrator that

the additional amount is payable;

(j) that the lessee shall during the term of this 'lease pay royalty on the

minerals other than bauxite mined by the lessee at the respective rates

and ·at the respective times that would be applicable in the case of a

mineral lease of the leased land provided for those minerals in the

Ordinance at the time of their sale;

(k) that the provisions of the Ordinance and of the Regulations so far ~.s they

relate to special! mineral leases granted under the Ordinance and are

not inconsistent with the Agreement and! or this lease shall apply to this

lease as if those provisions were incorPorated in this lease;



255



256



1968, No. 15]



Mining (Gove Peninsula Nabalco

Agreement) Ordinance 1968



Cl) that the Commonwealth will have the right to resume any portion of the

leased land for a public purpose, on payment to the lessee of compensation calculated as provided in paragraphs (m) and (n) of this clause;

(m) that in the event of any part of the leased Jand being resumed by the

Commonwealth under the last preceding paragraph, the lessee shall be

entitled to compensation on just terms for the loss of bauxite 'and other

minerals designated in this lease in, and improvements on or to, the

land resumed and for any loss in value to the lessee of any improvements on or to the leased land (other than the resumed part) or on or

to any other land the subject of a lease to the lessee or any assignee of

the lessee and for any other losses necessarily incurred by the lessee or

such assignee by reason of the resumption;

(n) that for the purposes of paragraph (m) of this clause the value of bauxite

and/or other minerals shall be their value as at the date of resumption,

taking into account all costs which would be associated with the mining,

transport, treatment and, if applicable, washing of those minerals;

(0) that the lessee may, upon payment of all royalties 'and rent then due to

the Commonwealth and having complied with the provisions of subparagraph (v) of paragraph (c) of clause 1 of this lease, surrender

the whole or part of the lease; and

(p) that this lease shall be subject to determination as provided in clause 18

of the Agreement.

4.-(1.) In this lease, unless the contrary intention appears"public road", for the purposes only of paragraphs (k) and (m) of clause 1

of this lease and of this sub-clause, means(a) each of the three existing formed and constructed gravel roads

connecting the airstrip with Dundas Point, the airstrip with the

Mission and the airstrip with the European Launcher Development Organization (ELDO) campsite respectively; and

(b) every bitumen surface road and taxiway in the vicinity of the airstrip as identified on Road Plan C and L 464/D, a copy of

which is held by the office of the Lands Branch, Darwin,

and includes an alternative road or taxiway provided in accordance with the

said paragraph (k);

"the Administrator" means the Administrator of tbe Territory appointed under

the Northern Territory (Administration) Act 1910-1967, or the person

for the time being duly appointed pursuant to that Act to act in the

office of Administrator or the holder for the time being of any office ID

substitution for the office of Administrator;

"the Agreement" means the agreement dated the

1968, between the Commonwealth

day of

'and the lessee for the mining of bauxite at Gave Peninsula aforesaid

and for other purposes to which the form of this lease was scheduled;

"the bauxite treatment plant" means the bauxite treatment plant that is erected

pursuant to the Agreement;

"the leased land" includes public roads as defined in this sub-clause;

"the lessee" means Nabalco Pty. Limited and, if this lease is assigned, means

all the assigns of Nabalco Pty. Limited for the time being entitled to

the benefit of this lease;

"the Minister" means the Minister of State for Territories of the Commonwealth, or such other Minister of State for the Commonwealth as may

for the time being be charged with the administration of the Northern

Territory (Administration) Act 1910-1967 or any member of the Federal Executive Council who may for the time being be acting for that

Minister;

"the Miss'ion" means the Mission establishment that is for the time being

conducted at Yirrkala by the Department of Overseas Missions of the

Methodist Church of Australia or by any successor of that Department

or Church;

"the Ordinance" means the Mining Ordinance 1939-1967 of the Territory;

"the RegUlations" means the Regulations made under the Ordinance as those

Regulations are amended from time to time; and

"the Territory" means the Northern Terdtory of Australia.

(2.) Any reference to an Act means that Act as amended from time to time or

any Act ,in substitution for that Act.

(3.) Any reference to an Ordinance means that Ordinance as amended from

time to time or any Ordinance in substitution for that Ordinance.

(4.) In this lease, unless the contrary intention appears words in the singular

include the ,plural ·and words in the plural inolude the singular.



Mining (Gove Peninsula Nabalco

Agreement) Ordinance 1968



[1968, No. 15



The Schedule.

.

ALL THAT piece or parcel of land ·in the Northern Territory containing an

area of 13,496 acres more or less: commencing at the datum peg on the northwestern

boundary of that land and numbered 6 on the plan annexed and which datum peg

bears 291 degrees 17 minutes 50 seconds 655.6 links 305 degrees 46 minutes 30

seconds 3747.5 links 330 degrees 16 minutes 40 seconds 1430.2 links 7 degrees 46

minutes 30 seconds 794.9 links and 354 degrees 10 minutes 10 seconds 1989.9 links

from Astrofix FNI at latitude 12 degrees 16 minutes 34 seconds south and longitude

136 degrees 49 minutes 24 seconds east and bounded thence by lines bearing 84

degrees 4 minutes 11225 links 4 degrees 31 minutes 30 seconds 15147.8 links 94

degrees 31 minutes 10 seconds 6063.2 links 166 degrees 5 minutes 40 seconds 18725.4

links 184 degrees 31 minutes 40 seconds 6183.7 links 94 degrees 32 minutes 20 seconds

18586.1 links 184 degrees 32 minutes 20 seconds 15084.2 links 229 degrees 32 minutes

40 seconds 4524.9 links 274 degrees 32 minutes 10 seconds 45772 links 309 degrees

15 minutes 10840.2 links 4 degrees 32 minutes 5816.9 links 94 degrees 32 minutes

9086.8 links 350 degrees 5 minutes 20 seconds 11567.1 links and 84 degrees 4 minutes

10239.4 links to the datum peg at the point of commencement.

IN WITNESS whereof the Minister has for and on behaU of the Commonwealth

hereunto set his hand and seal and the lessee has hereunto affixed its common seal

the day and year first above written.

SIGNED SEALED AND DELIVERED }

by the Minister of State for Territories

of the Commonwealth of Australia for

and on behalf of the Commonwealth in

the presence of-



THE COMMON SEAL of NABALCO }

PTY. LIMITED was here,mto affixed by

the authority of a resolution of the Board

of Directors in the presence of'DIrector

Secretary

Second Schedule. ,



Clause 6.

The Perimeter Areas.

ALL THAT piece or parcel of land at Gove Peninsula in the Northern Territory

of Australia, containing an area of 35,970 acres more or less and being the land

described as follows, other than the land described in the Schedule to the form of

lease that is set out in the First Schedule to the Agreement to which this Schedule is

.

the Second ScheduleCommencing at a point bearing 291 degrees 17 minutes 50 seconds 655.6 links,

305 degrees 46 minutes 30 seconds 3747.5 ~inks, 330 degrees 16 minutes 40 seconds

1430.2 links, 7 degrees 46 minutes 30 seconds 794.9 links, 354 degrees 10 minutes 10

seconds 1989.9 links, 84 degrees 4 minutes 11225 links, 4 degrees 31 minutes 30

seconds 15147.8 links, 94 degrees 31 minutes 10 seconds 6063.2 links, 4 degrees 31

minutes 10 seconds 238.5 links, 94 degrees 31 minutes 10 seconds 10979.2 links from

Astrofix FNl, parallel of south latitude 12 degrees 16 minutes 34 seconds, meridian

of east longitude 136 degrees 49 minutes 24 seconds and situated near the windsock

at Gove Airstrip: thence bounded by lines bearing 180 degrees 1 minute 9263.2 links,

126 degrees 39 minutes 5807 links, 90 degrees 1 minute 13273.9 links, 179 degrees 22

minutes 40 seconds 1709.8 links, 202 degrees 17 minutes 40 seconds 1681.3 links,

201 degrees 41 minutes 1274.3 links, 177 degrees 10 minutes 1252.2 links, 184 degrees

1 minute SO seconds 1757.7 links, 216 degrees 5 minutes 30 seconds 768.1 links, 192

degrees 59 minutes 50 seconds 347.4 links, 165 degrees 19 minutes 50 seconds 502.4

links, 153 degrees 41 minutes 20 seconds 285.9 links, 200 degrees 37 minutes 20

seconds 558.1 links, 173 degrees 14 minutes 50 seconds 1237 links, 156 degrees 29

minutes 20 seconds 1485.7 links, 137 degrees 27 minutes 2052.5 links, 112 degrees 59

minutes 30 seconds 2006.9 links, 78 degrees 17 minutes 50 seconds 2751.2 links, 32

degrees 17 minutes 20 seconds 761 links, 14 degrees 49 minutes 30 seconds 483.4 links,

23 degrees 26 minutes 20 seconds 269.7 links, 3 degrees 56 minutes 40 seconds 557.5

links, 39 degrees 37 minutes 40 seconds 194.5 links, 48 degrees 18 minutes 20 seconds

434.9 links, 11 degrees 16 minutes 220 links, 44 degrees 38 minutes 30 seconds 756.3

links, 22 degrees 43 minutes 30 seconds 550.4 links, 153 degrees 26 minutes 30 seconds

497.6 links, 112 degrees 12 minutes. 40 seconds 998.8 links. 108 degrees 48 minutes

50 seconds 856.9 links, 99 degrees 12 minutes SO seconds 753.7 links, 83 degrees 41

minutes 619 links. 69 degrees 27 minutes 333.3 links, 103 degrees 17 minutes 50

22752/69-10



257



258



1968, No. 15]



Mining (Gove Peninsula Nabalco

Agreement) Ordinance 1968



seconds 447.8 links, 126 degrees 1 minute 30 seconds 623.1 links, 129 degrees 20

minutes 30 seconds 970.8 links, 115 degrees 43 minutes 30 seconds 553.8 links, 135

degrees 47 minutes 30 seconds 297.6 links, 162 degrees 27 minutes 30 seconds 449.4

ImKs, 142 degrees 37 minutes 50 seconds 1295.9 links, 211 degrees 24 minutes 30

seconds 579.8 links, 142 degrees 54 minutes 30 seconds 616.2 links, 192 degrees 33

minutes 30 seconds 1342.7 links, 220 degrees 2 minutes 20 seconds 472.3 links, 212

degrees 32 minutes 50 seconds 1245.7 links, 173 degrees 40 seconds 1454.7 links, 183

degrees 55 minutes 1046.3 links, 150 degrees 32 minutes 20 seconds 1085.3 links, 152

degrees 6 minutes 40 seconds 1716.5 links, 127 degrees 2 minutes 30 seconds 1100.9

links,· 199 degrees 20 minutes 30 seconds 582.4 links, 259 degrees 11 minutes 40

seconds 664.4 links, 192 degrees 33 minutes 40 seconds 1446.5 links, 89 degrees 52

minutes 50 seconds 558.5 links, 127 degrees 44 minutes 30 seconds 962.9 links, 175

degrees 39 minutes 30 seconds 2585.6 links, 160 degrees 40 minutes 30 seconds 738.8

links, 242 degrees 31 minutes 350.3 links, 164 degrees 4 minutes 440.7 links, 165

degrees 35 minutes 40 seconds 312.9 Jinks, 176 degrees 30 minutes 10 seconds 408.5

links, 164 degrees 31 minutes 50 seconds 452.3 links, 128 degrees 26 minutes 40

seconds 532.6 links, 106 degrees 3 minutes 509.3 links, 173 degrees 57 minutes 30

seconds 837.4 links, 148 degrees 13 minutes 50 seconds 1715.2 links, 170 degrees 36

minutes 50 seconds 956.2 links, 114 degrees 54 minutes 50 seconds 1317.8 links, 172

degrees 48 minutes 30 seconds 416.6 links, 245 degrees 2 minutes 50 seconds 574.9

links, 234 degrees 23 minutes 50 seconds 361.1 links, 212 degrees 59 minutes 30

seconds 595.7 links, 242 degrees 16 minutes 40 seconds 425.4 links, 197 degrees 23

minutes 20 seconds 448.4 links, 210 degrees 5 minutes 50 seconds 876.6 links, 203

degrees 4 minutes 20 seconds 523.9 links, 175 degrees 54 minutes 1360.6 links, 128

degrees 47 minutes 50 seconds 789.8 links, 185 degrees 53 minutes 10 seconds 792.5

links, 206 degrees 14 minutes 1220.2 links, 297 degrees 45 minutes 20 seconds 777.6

links. 294 degrees 50 seconds 1218.5 links, 215 degrees 30 minutes 50 seconds 860.4

links, 188 degrees 15 minutes 40 seconds 500.8 links, 175 degrees 43 minutes 20

seconds 1147.5 links, 171 degrees 29 minutes 10 seconds 419.9 links, 251 degrees 6

minutes 10 seconds 189.8 links. 260 degrees 24 minutes 20 seconds 1031.9 links. 197

degrees 55 minutes 30 seconds 1150.7 links. 174 degrees 52 minutes 20 seconds 649.2

links. 241 degrees 5 minutes 50 seconds 247.5 links, 269 degrees 33 minutes 50 seconds

800.3 links. 292 degrees 34 minutes 20 seconds 367.8 links, 323 degrees 49 minutes

20 seconds 583 links. 276 degrees 47 minutes 20 seconds 1090.7 links, 237 degrees

49 minutes 20 seconds 630.3 links. 255 degrees 52 minutes 10 seconds 600.9 links.

263 degrees 16 minutes 445.4 links, 290 degrees 12 minutes 40 seconds 827.6 links.

273 degrees 4 minutes 50 seconds 1270.7 links, 228 degrees 48 minutes ~O seconds

726.7 links, 204 degrees 55 minutes 20 seconds 1225.4 links, 181 degrees 56 minutes

30 seconds 719.7 links. 184 degrees 34 minutes 30 seconds 532.4 links. 166 degrees

25 minutes 497 links. 170 degrees 58 minutes 40 seconds 451.5 links, 194 degrees

36 minutes 30 seconds 491.2 links, 220 degrees 21 minutes 20 seconds 471.7 links,

232 degrees 33 minutes 453.6 links. 218 degrees 1 minute 20 seconds 542.7 links.

:!OO degrees 20 minutes 578.4 links. 221 degrees 6 minutes 40 seconds 1327.1 links.

207 degrees 58 minutes 50 seconds 1132.3 links. 250 degrees 6 minutes 30 seconds

1248.9 links. 220 degrees 36 minutes 20 seconds 975.7 links. 230 degrees 18 minutes

30 seconds 681 links. 243 degrees 53 minutes 10 seconds 1114.3 links. 266 degrees

35 minutes 40 seconds 1108.5 links. 286 degrees 6 minutes 10 seconds 922.6 links,

267 degrees 29 minutes 30 seconds 1243.1 links. 250 degrees 31 minutes 30 seconds

1692.7 l·inks. 305 degrees 50 minutes 10 seconds 1341.1 links. 228 degrees 30 minutes

10 seconds 641.6 links. 246 degrees 47 minutes 30 seconds 1233.1 links. 255 degrees

42 minutes 20 seconds 853.6 links. 134 degrees 18 minutes 40 seconds 713.3 links.

218 degrees 24 minutes 20 seconds 851.3 links. 270 degrees 1 minute 10 seconds

40449.3 links. 360 degrees 10670 links, 270 degrees 15616.2 ].inks, 360 degrees 16331.8

links, 270 degrees 8000 links, 360 degrees 23420.8 links, 90 degrees 3 minutes 40

seconds 9581.4 links, 0 degrees 3 minutes 40 seconds 12000 links, 90 degrees 3

minutes 40 seconds 17162 links. 0 degrees 3 minutes 40 seoonds 16053.4 links, 90

degrees.3 minutes 40 seconds 281'56.6 links. 180 degrees 1 minute 7742.9 links to the

point of commencement. All bearings are grid.

ThIrd Schedule.

Clause 11.

Bond.

BY TIIIS BOND Nabalco Pty. Limited, a company incorporated under the laws

of the State of New South Wales and having its registered office at Goldfields House,

1 Mfred Street, Sydney in that State, ACKNOWLEDGES ITSELF BOUND to the

Commonwealth of Australia in the sum of Two million dollars ($2,000,000) to be

paid to the said Commonwealth of Austraiia.

SEALED this

day of

196 •

NOW THE ABOVE WRIITEN BOND is conditioned to be void in case the

said Nabalco Pty. Limited shall observe and carry out the provisions on its part 10



Mining (Gol'e Peninsula Nabalco

Agreement) Ordinance 1968



[1968, No. 15



be observed and carried out of sub·<:lauses (4.) and (5.) of clause 5 of the Agreement made the

day of

1968, between the said

Commonwealth of Australia and the said Nabalco Pty. Limited in relation to the

mining of bauxite and the production of alumina at Gove Peninsula in the Northern

Territory of Australia as those provis·ions may be at any time affected, varied or

amended under or by virtue of clause 17 or clause 19 of the said Agreement.

AND IT IS HEREBY DECLARED that this Bond shall be governed by, and

have effect in accordance with, the law for the time being in force in the Northern

Territory of Australia.

THE COMMON SEAL of NABALCO }

PTY. LIMITED was hereunto affixed by

authority of a resolution of the Board

of Directors in the presence ofDirector

Secretary



IN WITNESS whereof the Minister has for and on behaJf of the Commonwealth

hereunto set his hand and seal and the Company has hereunto affixed its common

seal the day and year first above written.

SIGNED SEALED AND DELIVERED

by CHARLES EDWARD BARNES, the }

Minister of State for Territories of the

Commonwealth of Australia, for and on

(Sgd.) C. E. Barnes

behalf of the Commonwealth in the

L.S.

presence of(Sgd.) W. L. Perry



THE COMMON SEAL of NABALCO }

L.S.

PTY. LIMITED was hereunto affixed by

the authority of a resolution of the

Board of Directors in the presence of(Sgd.) David Griffin

(Sgd.) J. Vemon

Directors

(Sgd.) C. Joehr

Secretary



259