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Western Australia



Alumina Refinery (Worsley) Agreement Act

1973



As at 11 Sep 2010



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Western Australia



Alumina Refinery (Worsley) Agreement Act

1973

Contents

1.

2.

3.

4.

5.

6.

6A.

6B.

6C.

7.

8.

9.

10.

11.



Short title

Commencement

Execution of Agreement authorised

Executed Agreement to operate and take effect

Repeal

First Supplementary Agreement approved and

ratified

Second Supplementary Agreement approved and

ratified

Third Supplementary Agreement approved and

ratified

Fourth Supplementary Agreement approved and

ratified

Effect of Supplementary Agreement

Effect of Second Supplementary Agreement

Effect of Third Supplementary Agreement

Effect of Fourth Supplementary Agreement

Minister to seek advice from Minister for the

Environment in certain circumstances



1

1

1

2

2

2

2

2

2

3

3

3

4

4



First Schedule — Alumina Refinery

(Worsley) Agreement

Second Schedule — First

Supplementary Agreement



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Alumina Refinery (Worsley) Agreement Act 1973



Contents



Third Schedule — Second

Supplementary Agreement

Fourth Schedule — Third

Supplementary Agreement

Fifth Schedule — Fourth

Supplementary Agreement

Notes

Compilation table



122



Defined terms



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Western Australia



Alumina Refinery (Worsley) Agreement

Act 1973

An Act to authorise the execution on behalf of the State of an

Agreement with Alwest Pty. Limited and Dampier Mining Company

Limited relating to the establishment at or near Worsley of a

refinery to produce alumina and for incidental and other purposes.

1.



Short title

This Act may be cited as the Alumina Refinery (Worsley)

Agreement Act 1973 1.



2.



3.



Commencement

(1)



Subject to subsection (2), this Act shall come into operation on

the day on which it receives the Royal Assent 1.



(2)



Section 5 shall come into operation on a date to be fixed by

proclamation, being a date not earlier than the date on which the

Agreement referred to in section 3 is duly executed by all the

parties thereto 1.

Execution of Agreement authorised

The execution by the Premier of the State of Western Australia

acting for and on behalf of the State of an Agreement in or

substantially in accordance with the form set out in the First

Schedule is authorised.

[Section 3 amended: No. 10 of 1978 s. 2.]



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Alumina Refinery (Worsley) Agreement Act 1973



s. 4



4.



Executed Agreement to operate and take effect

When the Agreement referred to in section 3 is duly executed by

all the parties thereto, the Agreement shall, subject to its

provisions, operate and take effect as though those provisions

were enacted in this Act.



5.



Repeal

The Alumina Refinery (Bunbury) Agreement Act 1970, is hereby

repealed.



6.



First Supplementary Agreement approved and ratified

The Agreement a copy of which is set forth in the Second

Schedule, in this Act referred to as the First Supplementary

Agreement, is approved and ratified.

[Section 6 inserted: No. 10 of 1978 s. 3; amended: No. 95 of

1982 s. 2.]



6A.



Second Supplementary Agreement approved and ratified

The Agreement a copy of which is set in the Third Schedule, in

this Act referred to as the Second Supplementary Agreement, is

approved and ratified.

[Section 6A inserted: No. 95 of 1982 s. 3.]



6B.



Third Supplementary Agreement approved and ratified

The Agreement a copy of which is set forth in the Fourth

Schedule, in this Act referred to as the Third Supplementary

Agreement, is approved and ratified.

[Section 6B inserted: No. 63 of 1992 s. 4.]



6C.



Fourth Supplementary Agreement approved and ratified

The Agreement, a copy of which is set forth in the Fifth

Schedule, in this Act referred to as the Fourth Supplementary

Agreement, is approved and ratified.

[Section 6C inserted: No. 15 of 1995 s. 4.]



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Alumina Refinery (Worsley) Agreement Act 1973



s. 7



7.



Effect of Supplementary Agreement

Notwithstanding the provisions of section 4, on and after the

coming into operation of the Alumina Refinery (Worsley)

Agreement Act Amendment Act 1978 1, the Agreement which is

referred to in section 3 and which was executed pursuant to that

section shall operate and take effect subject to its provisions as

those provisions are amended by the First Supplementary

Agreement.

[Section 7 inserted: No. 10 of 1978 s. 4; amended: No. 95 of

1982 s. 4.]



8.



Effect of Second Supplementary Agreement

Notwithstanding section 4 but without affecting any agreement

made pursuant to clause 24(1) of the Agreement referred to in

section 3, that Agreement shall, on and after the coming into

operation of the Alumina Refinery (Worsley) Agreement

Amendment Act 1982 1, operate and take effect subject to its

provisions as those provisions are amended by the First and

Second Supplementary Agreements.

[Section 8 inserted: No. 95 of 1982 s. 5.]



9.



Effect of Third Supplementary Agreement

Notwithstanding section 4 but without affecting any agreement

made pursuant to clause 24(1) of the Agreement referred to in

section 3, that Agreement shall, on and after the coming into

operation of the Alumina Refinery (Worsley) Agreement

Amendment Act 1992 1, operate and take effect subject to its

provisions as those provisions are amended by the First, Second

and Third Supplementary Agreements.

[Section 9 inserted as section 8: No. 63 of 1992 s. 5;

renumbered as section 9: No. 15 of 1995 s. 5.]



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Alumina Refinery (Worsley) Agreement Act 1973



s. 10



10.



Effect of Fourth Supplementary Agreement

Notwithstanding section 4 but without affecting any agreement

made pursuant to clause 24(1) of the Agreement referred to in

section 3, that Agreement shall, on and after the coming into

operation of the Alumina Refinery (Worsley) Agreement

Amendment Act 1995 1, operate and take effect subject to its

provisions as those provisions are amended by the First, Second,

Third and Fourth Supplementary Agreements.

[Section 10 inserted: No. 15 of 1995 s. 6.]



11.



Minister to seek advice from Minister for the Environment

in certain circumstances

(1)



Before —

(a) making an agreement under clause 12C(2) of the

Agreement; or

(b) approving amendments to Plan Z under clause 12C(7)(b)

of the Agreement,

the Minister is to seek advice from the Minister for the

Environment as to whether, if not for this Act, any matter to be

included in the agreement or in the amendments would be in

breach of the Environmental Protection Act 1986.



(2)



The Minister is to cause —

(a) the text of any advice received by the Minister from the

Minister for the Environment as a result of seeking

advice under subsection (1);

(b) the text of any agreement made by the Minister under

clause 12C(2) of the Agreement; and

(c) a copy of any amendments to Plan Z approved by the

Minister under clause 12C(7)(b) of the Agreement,

to be laid before each House of Parliament within 12 sitting

days of that House after the advice is received, the agreement is

made or the amendments are approved by the Minister.



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Alumina Refinery (Worsley) Agreement Act 1973



s. 11



(3)



In this section —

the Agreement means the Agreement referred to in section 3, as

amended by the Fourth Supplementary Agreement;

Minister for the Environment means the Minister to whom the

administration of the Environmental Protection Act 1986 is for

the time being committed by the Governor;

Plan Z means the plan marked Z referred to in clause 12C(1) of

the Agreement.

[Section 11 inserted: No. 15 of 1995 s. 6.]



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Alumina Refinery (Worsley) Agreement Act 1973

First Schedule

Alumina Refinery (Worsley) Agreement



First Schedule — Alumina Refinery (Worsley) Agreement

[s. 3]

[Heading amended: No. 19 of 2010 s. 4.]

THIS AGREEMENT is made the

day of

197

BETWEEN THE HONOURABLE JOHN TREZISE TONKIN, M.L.A.,

Premier and Treasurer of the State of Western Australia, acting for and on

behalf of the said State and its instrumentalities from time to time (hereinafter

called “the State”) of the one part and ALWEST PTY. LIMITED (hereinafter

called “Alwest”) a Company incorporated under the Companies Act 1961, of

Western Australia and having its registered office at 34-36 Stirling Street, Perth,

in the said State and DAMPIER MINING COMPANY LIMITED (hereinafter

called “Dampier”) a Company also incorporated under the said Act and having

its registered office at 37 Saint George’s Terrace, Perth (hereinafter collectively

called “the Joint Venturers” in which term shall be included their respective

successors and permitted assigns and appointees) of the other part.

WHEREAS:

A.



By an agreement made between the State and Alwest dated the

10th day of November, 1970 which was ratified by the Alumina

Refinery (Bunbury) Agreement Act 1970 the State agreed to grant

to Alwest certain rights to mine bauxite and Alwest undertook,

subject to the provisions of the said agreement, to erect an alumina

refinery at or near Bunbury in the said State.



B.



By an agreement dated the 28th day of July, 1971 made between

the State, Alwest and Dampier Alwest assigned to Dampier an

undivided one half share or moiety in and to all the right title

interest claim and demand of Alwest in and under the said

Agreement to the intent that the Joint Venturers should thereafter

hold the said rights as tenants in common in equal shares.



C.



Since the date of the said Agreement extensive investigations have

been made by Alwest and by the Joint Venturers as to the

suitability of an area near Worsley as a refinery site and of the use

in the refinery of coal from the Collie coalfield and extensive

geological investigations of the bauxite reserves on both Crown

and private land within the areas the subject of the said Agreement

have been carried out the cost of which exceeds four million

dollars ($4,000,000).



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Alumina Refinery (Worsley) Agreement Act 1973

First Schedule

Alumina Refinery (Worsley) Agreement



D.



The parties hereto have agreed to enter into this Agreement in

substitution for the said Agreement and that on the execution

hereof the said Agreement shall be terminated.



NOW THIS AGREEMENT WITNESSETH —

Interpretation 2

1.



In this Agreement subject to the context —

“access channel” means the channel to be dredged to provide

access for shipping to the new inner harbour at the port of

Bunbury;

“apply” “approve” “approval” “consent” “certify” “direct” “notify”

or “request” mean apply, approve, approval, consent, certify,

direct, notify or request in writing as the case may be and the

same rule shall apply with regard to derivatives, inflexions

and variants of the quoted words;

“associated company” means —

(a)



As at 11 Sep 2010



any company providing for the purposes of this

Agreement capital of not less than Two Million

Dollars ($2,000,000) which is incorporated or

formed within the United Kingdom the United

States of America or Australia or such other

country as the Minister may approve and

which —

(i)



is promoted by the Joint Venturers

or any of them for all or any of the

purposes of this Agreement and in

which the Joint Venturers or any of

them or some other company,

acceptable to the Minister hold not

less than a twenty five per cent

(25%) interest or some lesser

interest acceptable to the Minister;

or



(ii)



being a corporation is related

within the meaning of that term as

used in section 6 of the Companies



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Alumina Refinery (Worsley) Agreement Act 1973

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Alumina Refinery (Worsley) Agreement



Act 1961, to any company in

which the Joint Venturers or any of

them or some other company

acceptable to the Minister hold not

less than twenty five per cent

(25%) of the issued ordinary share

capital; and

(iii)



(b)



is notified to the Minister by the

Joint Venturers or any of them as

being such a company;



any company approved in writing by the

Minister;



“bauxite” means ore which either with or without crushing

washing and screening is sold as bauxite or is used for

processing into alumina;

“Bunbury Port Authority” and “the Authority” means the body

corporate established pursuant to the Bunbury Port Authority

Act 1909;

“commencement date” means the date on which the Joint

Venturers give to the Minister the notice mentioned in

Clause 2 hereof;

“Commonwealth” means the Commonwealth of Australia and

includes the Government thereof for the time being;

“Conservator of Forests” and “Conservator” means the

Conservator of Forests appointed under the Forests

Act 1918;

“Crown land” means all land of the Crown including —



page 8



(a)



all land dedicated as a State forest under the

Forests Act 1918, other than land reserved as

State Forest No. 51 as it existed on the

14th May, 1973;



(b)



all land reserved for the purpose of water

conservation;



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Alumina Refinery (Worsley) Agreement Act 1973

First Schedule

Alumina Refinery (Worsley) Agreement



(c)



land reserved under the Land Act and numbered

15410, 18534, 19738, 19739, 19740, 19741,

19958, 20063, 20182, 21287, 24791, 26363,

26666, 30394 and 31890; and



(d)



land reserved under the Forests Act as Timber

Reserves and numbered 66/25, 69/25, 131/25,

144/25, 145/25, 146/25, 147/25, 148/25,

151/25, 160/25, 171/25, 172/25 and 189/25,



but excluding —

(e)



land granted or agreed to be granted in fee

simple;



(f)



land held or occupied under the Crown by lease

or licence for any purpose other than pastoral or

timber purposes; and



(g)



all other laid reserved under the Land Act or the

Forests Act unless the Minister, after

consultation with the Environmental Protection

Authority established under the Environmental

Protection Act 1971, otherwise determines;



“inner harbour” means the harbour to be dredged at Bunbury;

“Land Act” means the Land Act 1933;

“mineral lease” means the mineral lease referred to in Clause 7(1)

hereof and includes any renewal thereof;

“Mining Act” means the Mining Act 1904;

“Minister” means the Minister in the Government of the State for

the time being responsible for the administration of this

Agreement;

“Minister for Mines” means the Minister in the Government of the

State for the time being responsible for the administration of

the Mining Act;

“month” means calendar month;

“notice” means notice in writing;

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Alumina Refinery (Worsley) Agreement Act 1973

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Alumina Refinery (Worsley) Agreement



“person” or “persons” includes bodies corporate;

“production date” means the date on which the regular production

of alumina commences at the refinery;

“Railways Commission” means the Western Australian

Government Railways Commission established pursuant to

the Government Railways Act 1904;

“refinery” means a refining plant established pursuant to this

Agreement in which bauxite is treated to produce alumina;

“smelter” means an electrolytic reduction plant for the conversion of

alumina to aluminium using alumina produced from bauxite;

“special grade bauxite” means ore which is saleable as refractory

grade abrasive grade or chemical grade bauxite;

“State Electricity Commission” means the State Electricity

Commission of Western Australia established pursuant to

the State Electricity Commission Act 1945;

“stockpile area” means the land to be made available to the Joint

Venturers in the Port of Bunbury, in accordance with the

terms of this Agreement, for use as a stockpile area;

“this Agreement” “hereof” “hereto” and “hereunder” includes this

Agreement as from time to time added to varied or amended;

“ton” means a ton of two thousand two hundred and forty (2,240)

lbs net dry weight unless otherwise specified;

“turning basin” means the dredged waters of the inner harbour as

developed by the State for the turning and navigation of

vessels in the inner harbour;

reference in this Agreement to a company includes any joint

venture, partnership or other association of companies;

monetary references in this Agreement are to Australian currency;

power given under any clauses of this Agreement other than

Clause 25 hereof to extend or alter any period or date shall

be without prejudice to the power of the Minister under the

said Clause 25;

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Alumina Refinery (Worsley) Agreement Act 1973

First Schedule

Alumina Refinery (Worsley) Agreement



Reference in this Agreement to an Act shall include the

amendments to such Act for the time being in force and also

any Act passed in substitution therefor or in lieu thereof and

the regulations for the time being in force thereunder;

Marginal notes shall not affect the interpretation or construction

hereof 2;

any covenant or agreement on the part of the Joint Venturers

hereunder shall be deemed to be a joint and several covenant

or agreement as the case may be.

Commencement and Operation 2

2.

(1) The provisions of this Agreement other than Clause 3 hereof shall

not come into operation until the Joint Venturers have given the Minister notice

that they desire to proceed with the objects of this Agreement.

(2) If before the 30th of June 1974 the notice referred to in

subclause (1) of this Clause is not given this Agreement will then cease and

determine and neither of the parties hereto will have any claim against the other

of them with respect to any matter or thing arising out of, done, performed or

omitted to be done or performed under this Agreement.

Right to Enter on Crown Land 2

3.

(1) The State shall to the extent reasonably necessary for the purposes

of this Agreement allow the Joint Venturers to enter upon Crown land and

survey possible sites for their operations under this Agreement.

Creation of Temporary Reserve 2

(2) The State shall on the execution of this Agreement create a

temporary reserve over all the Crown land within the area delineated in blue on

this plan marked “X” referred to in Clause 7(1) hereof.

Rights of Occupancy 2

(3) As soon as the temporary reserve referred to under subclause (2) of

this Clause has been created the Joint Venturers shall apply for and the State

shall grant to them for a period terminating with the granting of the mineral

lease referred to in Clause 7(1) hereof, or the sooner determination of this

Agreement, rights of occupancy for the purposes of this Agreement (including

the sole right to search and prospect for bauxite) in respect of such land on such

terms and conditions as the Minister for Mines may determine.

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Alumina Refinery (Worsley) Agreement Act 1973

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Alumina Refinery (Worsley) Agreement



(4) The provisions of the Mining Act shall be deemed to be modified

to permit the creation of the temporary reserve under subclause (2) of this

Clause and the grant of the rights of occupancy under subclause (3) of this

Clause.

Resumptions 2

4.

The State may as and for a public work under the Public Works Act 1902,

resume any land required for the purposes of this Agreement and

notwithstanding any other provisions of that Act may sell lease or otherwise

dispose of the same to the Joint Venturers and the provisions of subsections (2)

to (7) inclusive of Section 17 and Section 17A of that Act shall not apply to or

in respect of that land or the resumption thereof.

Obligations of the Joint Venturers 2

5.



The Joint Venturers shall —

(1)



as soon as reasonably possible after the coming into operation

of this Agreement commence the construction of a refinery on a

site at or near Worsley as may be agreed by the Minister or at

such other place as the parties may agree and thereafter

continue such construction and within four years from the

commencement date complete and have in operation the first

stage of the refinery with a capacity to produce not less than

two hundred thousand (200,000) tons of alumina per annum

(which refinery the Joint Venturers may expand from time to

time as they deem appropriate) PROVIDED THAT if the Joint

Venturers shall in writing reasonably demonstrate to the

Minister that they have used their best endeavours to negotiate

the finance required to construct the refinery and to complete

the sales contracts necessary for the sale of alumina produced at

the refinery to make the Joint Venturers’ project economically

practicable, but they have been unsuccessful in either of these

endeavours, the Minister shall grant the Joint Venturers such

extensions of time as are appropriate to the situation

PROVIDED FURTHER that nothing in this subclause shall

limit the effect of Clause 19 or Clause 25 hereof;



Facilities for Transport of Bauxite and Coal 2

(2) transport all bauxite mined within the mineral lease to the

refinery and all alumina produced at the refinery to the port

of Bunbury and to facilitate such transport and the transport



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Alumina Refinery (Worsley) Agreement Act 1973

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Alumina Refinery (Worsley) Agreement



of coal fuel oil caustic soda lime and limestone required by

the Joint Venturers for use within the site of the refinery —



As at 11 Sep 2010



(a)



shall at their expense construct along a route

approved by the Minister and in accordance with

recognised standards an appropriate conveyor or

pipeline between the mineral lease and the

refinery and a pipeline between the refinery and

the Port of Bunbury with all proper ancillary

equipment and without unduly interfering with

any existing means of communication (including

roads and railways), and/or



(b)



shall request the Railways Commission, at the

expense of and in consultation with the Joint

Venturers, to —

(i)



construct along a route approved

by the Commission an appropriate

railway having a gauge of 3′ 6″

between the mineral lease via the

refinery to a point on the

Commission’s existing railway

system (the precise location of

such point to be decided by the

Commission) together with all

necessary signalling switch and

other gear, all proper and usual

works and all crossing places as

the Commission may reasonably

require;



(ii)



upgrade the Commission’s existing

railway as may be necessary from

the point of connection with the

railway referred to in

subparagraph (i) above to the port

of Bunbury so as to make it

adequate for the Joint Venturers’

requirements as to the transport of

alumina and other products and

goods and materials required for

the construction operation repair



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Alumina Refinery (Worsley) Agreement Act 1973

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Alumina Refinery (Worsley) Agreement



and maintenance of the refinery

and ancillary facilities;

(c)



shall request the Railways Commission at the

expense of and in consultation with the Joint

Venturers to upgrade the Commission’s

existing railway so as to make it adequate for

the Joint Venturers’ requirements as to the

transport of coal from the point of connection

referred to in paragraph (b) to an agreed point

in the Collie coalfield;



PROVIDED THAT —



page 14



(i)



in the event of the State or the Railways

Commission within five years of the date

of this Agreement or within three years

of the completion of the upgrading

referred to in paragraph (b)(ii) and

paragraph (c) of this subclause,

whichever period is the longer, receiving

contributions towards the cost of those

upgradings from other users of the

railways involved, then the State or the

Commission shall return to the Joint

Venturers such part of the moneys

advanced by the Joint Venturers for those

upgradings as is equitable;



(ii)



in the event of any other person making

use of the railway referred to in

paragraph (b)(i) of this subclause within

15 years of the date of this Agreement

and moving over that railway in any one

year within that period 500,000 tons or

more of bulk products the State shall

require such other user to make a fair

contribution to the cost of the

establishment of the railway and from the

proceeds of any such contribution or

contributions shall return to the Joint

Venturers such part of the moneys

advanced by the Joint Venturers for the



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Alumina Refinery (Worsley) Agreement Act 1973

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Alumina Refinery (Worsley) Agreement



establishment of the railway as shall be

equitable;

and, in the event of the Joint Venturers electing to

have a railway constructed as aforesaid the Joint

Venturers shall —

Joint Venturers to Notify Requirements 2

(d)



provide to the satisfaction of the Railways

Commission not less than twelve months in

advance of their first requiring the use of rail

transport such details of their requirements

(including anticipated or provisional annual

tonnages) as to the use of the railways as will

enable the Commission to make arrangements

to meet those requirements and shall thereafter

give adequate notice of any change in those

requirements;



Ancillary Facilities 2

(e)



at their cost provide and maintain such sidings,

shunting loops, spurs and other connections as

they require for their operations under this

Agreement and provide and maintain loading

and unloading facilities sufficient to meet train

operating requirements and terminal equipment

(including weighing devices), together with a

staff adequate to ensure the proper operation of

all such loading and unloading facilities and

terminal equipment;



(f)



ensure that all wagons are properly trimmed

and loaded to prescribed tonnages;



Rolling Stock 2

(g)



As at 11 Sep 2010



provide sufficient wagons (to a design and

specification approved by the Railways

Commission) to carry all bauxite coal fuel oil

caustic soda lime and limestone to the refinery

and alumina to the port of Bunbury and

necessary replacements therefor except

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Alumina Refinery (Worsley) Agreement Act 1973

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Alumina Refinery (Worsley) Agreement



replacements made necessary solely by the

negligence of the Commission;

Freight Rates 2

(h)



pay in respect of all commodities carried in

trains operated by the Railways Commission

the appropriate freight rates set out or referred

to in the First Schedule hereto by monthly

payments on the basis of the anticipated or

provisional annual tonnage indicated in the

forward pattern of working referred to in

Clause 5(2)(d) hereof subject to annual

adjustment after the expiration of each year

with regard to tonnages actually carried and in

ascertaining the number of tons actually carried

railway weighbridge weights or such alternative

method of measuring as is mutually agreed

shall be used but in no event shall any

allowance be made for moisture contained in

the material transported;



Costs of dredging 2

(3)



page 16



(a)



(i)



advance to the State a sum of one million five

hundred thousand dollars ($1,500,000) towards

the cost of the dredging in progress in the port

of Bunbury for an access channel and turning

basin, and for the dredging of a berth for the

Joint Venturers in that port and also for the

reclamation of adequate areas of land for the

establishment of the stockpile area;



(ii)



advance to the State a sum of four hundred

thousand dollars ($400,000) towards the cost of

dredging the access channel and turning basin

from 36 feet to 40 feet PROVIDED THAT in

the event of the State or the Bunbury Port

Authority receiving contributions towards the

cost of such dredging from other users of the

port (other than Alcoa of Australia (W.A.)

N.L.) requiring a greater depth than 36 feet the



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State, having regard to the amount of the

contributions of such other users as aforesaid

and to the State’s existing obligations to refund

to Alcoa of Australia (W.A.) N.L. part of any

contribution that the Joint Venturers may have

made to the cost of such dredging, shall return

to the Joint Venturers such part of the said sum

of four hundred thousand dollars ($400,000) as

is equitable;

Additional Dredging 2

(iii)



in the event of the Joint Venturers desiring to

use vessels requiring a greater depth of water

than forty (40) feet and/or a greater width of

access channel than four hundred and fifty

(450) feet advance to the State a sum to be

agreed towards the additional dredging

necessary PROVIDED THAT in the event or

any such additional dredging being carried out

in accordance with this provision the State will

to such extent and for such period as is

reasonable having regard to the cost of that

dredging charge for the use of the additional

depth so provided all persons (including the

Joint Venturers) having industrial or trading

establishments at Bunbury and who in any one

year move cargo of 300,000 tons or more

(whether inward or outward) through the port of

Bunbury in vessels drawing more than forty

(40) feet AND the State shall from the proceeds

of such charges return to the Joint Venturers the

agreed sum;



(iv)



in the event of their electing to construct a

wharf in the port of Bunbury, construct such

wharf in accordance with plans and

specifications approved by the State;



Use of Wharf by Others 2



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(v)



provided that such use shall not interfere with

the Joint Venturers’ own requirements in regard

thereto, permit any wharf constructed by them

to be used by any other person for the handling

of inward and outward cargo belonging to that

person; the Joint Venturers and the Bunbury

Port Authority shall from time to time mutually

agree upon terms and conditions (including

charges) for such handling and if required by

the Authority the Joint Venturers shall act as its

agent for and in relation to the collection of

such charges and shall remit to the Authority

the portion thereof which shall be payable to the

Authority; the Joint Venturers may in addition

to allowing any other person to use that part of

the wharf as aforesaid, permit, in their sole

discretion, such other person to use the Joint

Venturers’ bulk loading and other facilities at

the berth on reasonable terms and conditions;



Construction of Ship Loader and Conveyor System 2

(b)



page 18



(i)



whether or not the Joint Venturers construct a

wharf as aforesaid, if required by the Authority,

at a place within the port of Bunbury and in

accordance with plans and specifications first

approved by the Authority, construct a

shiploader and conveyor system at the Joint

Venturers’ expense capable of loading alumina

into ships at a rate of not less than 1,200 tons

per hour;



(ii)



at the sole discretion of the Joint Venturers

permit any shiploader and conveyor system

constructed at their expense to be used by third

parties on reasonable terms and conditions;



(iii)



in the event of the Bunbury Port Authority’s

electing to construct the shiploader and

conveyor system at the Authority’s expense,

pay such handling charges for the use of the



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shiploader and conveyor system as the

Authority may from time to time determine;

Wharfage 2

(c)



(i)



throughout the continuance of this Agreement

pay to the Bunbury Port Authority a wharfage

charge for cargo passing over the wharf at the

rate of 15 cents per ton or such other rate as

may be agreed in respect of alumina and

associated chemicals and by-products loaded

through the shiploader and conveyor system

and at rates to be negotiated for all other

cargoes;

PROVIDED THAT in each calendar year in

which the total tonnage of bulk materials

passing through the inner harbour exceeds two

million (2,000,000) tons the wharfage charge

payable by the Joint Venturers on all alumina

and associated chemicals and by-products

loaded through the shiploader and conveyor

system in excess of eight hundred thousand

(800,000) tons shipped in that year shall be

reduced by three cents per ton;



Handling Charges 2

(ii)



pay to the Bunbury Port Authority standard

handling charges on all the Joint Venturers

cargo other than alumina and associated

chemicals and by-products loaded through the

shiploader and conveyor system handled by the

Authority but no charge shall be made in

respect of liquid caustic and fuel oil if and when

a pipeline and related facilities are constructed

at the expense of the Joint Venturers to convey

these substances from the point of import at

Bunbury to the stockpile area or refinery;



PROVIDED THAT the wharfage and handling

charges (if any) payable pursuant to this Agreement

shall be adjusted from time to time in proportion to

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any increase or decrease in the scale of wharfage and

handling charges of the Bunbury Port Authority in

respect of locally manufactured goods AND

PROVIDED FURTHER that nothing in this Clause

shall be taken to imply any exemption from the

payment of tonnage rates, conservancy dues or any

other charges that would normally be payable by ships

using the port of Bunbury;

(d)



throughout the continuance of this Agreement pay to

the Bunbury Port Authority an annual rental to be

agreed between the parties for land leased to the Joint

Venturers at the port of Bunbury;



Red mud 2

(4)



page 20



not less than two years prior to the estimated production date

have submitted to and have had approved by the Minister

proposals for the ponding of the red mud that is to be

anticipated from 63 years production of alumina at the

refinery and such proposals must provide —

(a)



for the progressive acquisition or leasing of

land suitably situated and sufficient in area for

residue storage;



(b)



for the formation of the ponds by constructing

raised earth embankments to standards similar

to those of an earth dam;



(c)



for the location, construction and maintenance of

the ponds so as to avoid interference to or

pollution of underground water, groundwater or

the land drainage system and for the establishment

of an adequate system of observation wells for

testing for such pollution, for the taking of

samples from these wells every three months, the

submission of such samples to chemical analysis

and for producing to the Minister in writing the

results of all such analyses;



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(d)



an alternative and satisfactory method of

disposal should the particular ponding prove

inadequate to prevent pollution;



(e)



for the progressive and adequate covering of

filled ponds with soil and for the landscaping of

such covered areas and the planting of trees and

shrubs thereon;



AND PROVIDED THAT —

the Joint Venturers shall not sell or dispose of any

land which, pursuant to the requirements of this

subclause, has been acquired or leased by the Joint

Venturers for the purpose of the disposal of red mud

and which has been used for the ponding of red mud

and subsequently covered with soil in accordance with

the requirements of paragraph (e) of this subclause

without having first offered to sell it to the State nor

(other than to the State) within twenty-eight (28) days

of any such offer having been made PROVIDED

FURTHER THAT should the State notify the Joint

Venturers that it desires to acquire any part of such

land the Joint Venturers shall sell to the State at fair

market value such part of the land as they do not

reasonably require for their own industrial purposes;

Disposal of Other Waste Materials 2

(5)



dispose of all waste materials other than red mud generated

within the refinery site in such manner as to prevent the

pollution of rivers, groundwater and underground water and

comply with any reasonable direction which the Minister

may give with regard to such disposal;



Drainage 2

(6)



adequately drain the refinery site and related facilities and

dispose of such drainage in accordance with plans and

specifications to be submitted by the Joint Venturers and

approved by the Minister;



Housing 2



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(7)



page 22



(a)



provide (at such prices rentals or charges as are fair

and reasonable under the circumstances) such services

and facilities including housing assistance as may be

necessary for the proper and reasonable

accommodation health and recreation of workers

employed by the Joint Venturers and of contractors

engaged in carrying out the Joint Venturers’

operations under this Agreement;



(b)



bear the capital cost involved to the State in the

State’s establishing on the mineral lease or adjacent

areas any education, hospital, police or other services

to the extent to which such services have been made

necessary by the Joint Venturers’ operations under

this Agreement;



(c)



share with the State or the appropriate authority on a

fair and reasonable basis the capital cost of

establishing additional services and works, including

sewerage treatments works, water supply works, main

drains, education and hospital services to the extent to

which such additional services and works have been

made necessary in existing towns by the establishment

of the refinery;



(d)



in the event of a material expansion of the designed

capacity of the refinery which results in the refinery

having a designed capacity to produce more than 1.2

million tons of alumina per year share with the State

or the appropriate authority on a fair and reasonable

basis the capital cost of establishing such further

services and works of the kind referred to in

paragraph (c) of this subclause as may be necessary in

such existing towns by reason of such expansion. In

determining the extend of the Joint Venturers’

contribution the parties shall have regard inter alia to

the current and anticipated composition of the town

involved and the extent to which the ordinary

responsibilities of the State with respect to the

provision of the capital cost of such services and

works are to be assumed by the State in the light of its

then current capital resources;

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Use of local professional services labour and materials 2

(8)



as far as it is reasonable and economically practicable —

(a)



use the services of engineers, surveyors,

architects and other processional consultants

resident and available within the said State;



(b)



use labour available within the said State;



(c)



when calling for tenders and letting contracts for

works materials plant equipment and supplies

ensure that Western Australian suppliers

manufacturers and contractors are given

reasonable opportunity to tender or quote; and



(d)



give proper consideration and where possible

preference to Western Australian suppliers

manufacturers and contractors when letting

contracts or placing orders for works materials

plant equipment and supplies where price

quality delivery and service are equal to or

better than that obtainable elsewhere;



Commonwealth Consent 2

(9)



make all necessary applications from time to time to the

Commonwealth or Commonwealth constituted agency,

authority or instrumentality which may be concerned for the

grant to the Joint Venturers of all licence or consent under

Commonwealth law required to permit the Joint Venturers to

enter into this Agreement and perform their obligations

hereunder;



Royalties on Alumina and Bauxite During First Seven Year

Period 2

(10) (a)



As at 11 Sep 2010



(i)



subject to any increase or decrease provided for

in the proviso to this paragraph pay to the State

a royalty of 26.25 cents per ton on all alumina

produced at the refinery from bauxite the

property of the Crown during the period

expiring at the end of seven years from the

production date PROVIDED THAT the royalty

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payable under this paragraph shall be reviewed

quarterly and shall be calculated separately for

each of the quarterly periods mentioned in

paragraph (d) of this subclause in accordance

with the following formula

BX



M



R



52 ,500



Where



B = the royalty mentioned in this

paragraph (expressed in cents)

M = the mean quarterly world

selling price per ton of

aluminium as defined below

(expressed in cents)

R = the royalty rate per ton

(expressed in cents) which will

become payable in respect of

alumina as a result of the

application of this formula;



the mean quarterly world selling price per ton

of aluminium for any quarter is deemed to be

the average (expressed in cents) of the four

prices first quoted in the London Metal Bulletin

in respect of one pound of Canadian primary

aluminium of 99.5 per cent purity F.O.B.

Toronto in each of the four quarters which

immediately precede that quarter multiplied by

2,240 and for the purpose of this proviso the

conversion rate for Canadian dollars to

Australian dollars shall be the mean between

the buying and selling rate for telegraphic

transfers as quoted by a trading bank acceptable

to the Minister for Mines;

(ii)



page 24



during the period referred to in

sub-paragraph (i) of paragraph (a) of this

subclause pay to the State a royalty of 50 cents

per ton on all special grade bauxite the property



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of the Crown mined by the Joint Venturers

within the mineral lease;

(iii)



In the event that the Joint Venturers produce

associated chemicals and by-products at the

refinery, if the Minister so requires, pay to the

State such royalty as may be agreed on between

the parties hereto;



Royalty on Alumina and Bauxite After First Seven Year

Period 2

(b)



after the expiration of the period referred to in

sub-paragraph (i) of paragraph (a) of this subclause

pay to the State on all special grade bauxite mined by

the Joint Venturers pursuant to this Agreement and on

all alumina produced by them at the refinery from

bauxite the property of the Crown royalties at the

relevant rates specified in the regulations under the

Mining Act PROVIDED THAT the amount payable

by way of royalty on each ton of alumina shall not be

greater than that payable by any other producer of

alumina in the South West Division of the State of

Western Australia as defined in the Land Act AND

PROVIDED ALWAYS that subject to the proviso to

sub-paragraph (i) of paragraph (a) of this subclause in

no case shall the rate of royalty on alumina be less

than 26.25 cents per ton;



(c)



except with the consent of the Minister not use bauxite

(other than special grade bauxite) mined by the Joint

Venturers pursuant to this Agreement in any other

way than for the production of alumina and associated

chemicals and by-products at the refinery;



Return and Payment of Royalties 2

(d)



As at 11 Sep 2010



after the production date, before the fifteenth day in

each of the months of January, April, July and

October in each year furnish to the Minister for Mines

a return of all bauxite and alumina and associated

chemicals and by-products produced during the

quarterly period ending on the last day of the

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preceding December, March, June and September as

the case may be together with all other particulars

necessary to enable the calculation of the royalty

payable thereon and within thirty (30) days after the

expiration of each such quarterly period pay the State

the amount of royalty due and payable in respect of

that quarter;

Inspection 2

(e)



permit the Minister for Mines or his nominee to

inspect at all reasonable times the records of the Joint

Venturers relative to the quantities of special grade

bauxite or alumina and associated chemicals and

by-products produced hereunder and to take copies or

extracts therefrom for the purpose of determining the

royalty payable and take reasonable steps to satisfy

the Minister for Mines either by certificate of a

competent independent party acceptable to the State or

otherwise to the reasonable satisfaction of the Minister

for Mines as to all relevant weights and analyses and

will give due regard to any objection or representation

made by the Minister for Mines or his nominee as to

any particular weight or assay of special grade bauxite

or alumina and associated chemicals and by-products

which may affect the amount of royalty payable

hereunder;



(11) take reasonable measures to purchase or lease land required

by the Joint Venturers for the purposes of this Agreement.

Smelter 2

6.

(1) The Joint Venturers undertake to investigate the technical and

economic feasibility of establishing a smelter in the State of Western Australia

and from time to time review the matter and when requested by the Minister but

not more than every twelve (12) months to inform the State fully in writing as to

the progress and results of such investigations.

The State may if it so desires also undertake studies and for this purpose

the Joint Venturers shall provide the State with such information as it may

reasonably require but the Joint Venturers shall not be obliged to supply

technical information of a confidential nature in respect of processes which

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have been developed by the Joint Venturers or an associated company or

acquired from other sources and which is not generally available to the

aluminium industry, or financial and economic information of a confidential

nature which, if disclosed, could unduly prejudice the contractual or commercial

arrangements between the Joint Venturers or any of them and third parties.

(2) If the studies undertaken under subclause (1) of this Clause show

that in the circumstances then applying to the Joint Venturers a smelter is

technically and economically viable and competitive on world markets then the

Joint Venturers shall establish a smelter and have it operating at a capacity and

within a time to be agreed.

(3) If the Joint Venturers are unwilling or fail to establish the smelter

as provided in subclause (2) of this Clause the State may negotiate with a third

party to establish a smelter on terms and conditions not more favourable on the

whole to the third party than any terms it has offered to the Joint Venturers. In

such circumstances the Joint Venturers will if required supply alumina for a

reasonable period to the third party at a reasonable price (which shall have

regard to prevailing world prices and shall take into account the cost of any

additional capacity that has to be constructed by the Joint Venturers) and in

sufficient quantities to meet the requirements of the third party from time to

time PROVIDED THAT the Joint Venturers shall not be liable to supply the

third party with a greater annual quantity of alumina than 100,000 tons in the

first year after the smelter is established and thereafter at a progressively

increasing annual tonnage until a maximum of 200,000 tons is reached in the

fifth year.

Mineral Lease 2

7.

(1) The State shall on application made by the Joint Venturers at any

time before the expiration of two (2) years from the commencement date cause

to be granted to the Joint Venturers a mineral lease of such Crown land as is

then held by the Joint Venturers pursuant to Clause 3(3) hereof and privately

owned land in respect of which the mineral rights are reserved to the Crown as

is applied for within the area delineated in blue on the plan marked “X” and

initialled by or on behalf of the parties hereto for identification (notwithstanding

that the survey of any of the lands applied for has not been completed but

subject to corrections to accord with the survey when completed) for the mining

of bauxite; and the lease shall be so granted under and (except to the extent that

the provisions of the Mining Act are not inconsistent with this Agreement)

subject to that Act but in the form set out in the Second Schedule.



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Exemption from Labour Conditions 2

(2) The Joint Venturers shall not be required during the currency of

this Agreement to comply with labour conditions imposed by or under the

Mining Act with respect to the mineral lease but this subclause shall not apply

to privately owned land within the mineral lease unless the owner and occupier

have been advised by the Joint Venturers as to the effect of the terms of this

Agreement insofar as they relate to privately owned land within the mineral

lease and have expressly agreed in writing to the Joint Venturers exercising with

respect to his land the right of noncompliance with those labour conditions.

Catchment Areas 2

(3) If the mineral lease granted pursuant to subclause (1) of this Clause

includes all or any part of the land coloured in red on the plan marked “X”, such

land being part of the Helena River and Collie River catchment areas the Joint

Venturers notwithstanding the existence of the mineral lease, shall not mine or

make any use whatsoever of such land until the State has notified the Joint

Venturers that it approves of the Joint Venturers mining or otherwise making

use of the land and then only to the extent and subject to any conditions

indicated in that approval.

Rental 2

(4) Rental under the mineral lease shall be paid to the State yearly in

advance and for the first seven years of the lease shall be calculated at the rate of

five dollars ($5) per annum for every square mile contained in the leased area.

Review of Rental 2

(5) After the expiration of the first seven years from the granting of the

mineral lease and at the expiration of every seven year period of the lease

thereafter the rental for the lease shall be reviewed. The rental for each such

period after the first seven years shall be calculated separately in accordance

with the following formula —

B x



M



 R



$525



Where



B = the rental mentioned in subclause (4) of this Clause.

M = the mean quarterly world selling price per ton of

aluminium as defined in Clause 5(10)(a)(i) of this

Agreement, but here expressed in dollars and cents;

R = the new rental;



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PROVIDED THAT in no case shall the adjusted rental be less than five dollars

($5) per square mile.

Term of Mineral Lease 2

(6) Subject to the performance by the Joint Venturers of their

obligations under this Clause and notwithstanding any provision of the Mining

Act to the contrary the term of the mineral lease will, subject as hereinafter

provided, be for twenty-one (21) years from the date of receipt of the

application referred to in subclause (1) of this Clause with rights of renewal for

two (2) consecutive further periods of twenty-one (21) years upon the terms and

conditions contained in the mineral lease except that: —

(i)



the rental rate may be varied as provided in subclause (5) of

this Clause;



(ii)



royalty rates may be varied as provided in subclause (10) of

Clause 5 hereof;



(iii)



the right of renewal shall be excluded after the second

renewal.



Further Mineral Lease 2

(7) Within the first six (6) months of the twelve (12) months

immediately preceding the expiration of the second renewed period of

twenty-one (21) years of the mineral lease the Joint Venturers, if the refinery is

then being operated pursuant to this Agreement, may give notice to the State

that they desire a further mineral lease under the Mining Act for bauxite of the

leased area or of a part or parts thereof for a term of twenty-one (21) years and

the State shall within six (6) months from its receipt of that notice notify the

Joint Venturers of the terms and conditions upon which it is prepared to grant

such a further mineral lease of the leased area or of a part or parts thereof (as the

case may be) and the Joint Venturers for a period of three (3) months thereafter

will have the right to accept such further mineral lease on those terms and

conditions and for a period of two (2) years the State shall not offer to grant a

mineral lease of the leased area or any part thereof for bauxite to any person

other than the Joint Venturers on more favourable terms and conditions than

have been offered to the Joint Venturers.

Surrender of part of Mineral Lease 2

(8) The Joint Venturers may from time to time surrender to the State

all or any portion or portions (of reasonable size and shape) of the mineral lease

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subject to the Joint Venturers having complied with their obligations under

subclauses (10) (11) (12) (13) and (14) of this Clause in respect of that portion

or those portions and upon the surrender of any portion or portions of the

mineral lease the rental thereunder shall abate in proportion to every square mile

or residual part of a square mile of the mineral lease so surrendered, but there

shall be no refund of rental covering any part of a yearly rental already paid

after becoming due.

Mining on Privately Owned Land 2

(9) The Joint Venturers will not commence any mining or related

operations for the purposes of this Agreement on any privately owned land

within the mineral lease unless and until —

(a)



they have entered into a written agreement with the owner

and occupier of such land for the purpose of providing for

adequate restoration of the land after mining and that

agreement has been approved by the Minister; and



(b)



they have entered into a written agreement with the owner

and occupier of such land for compensation arising out of

their operations or proposed operations on the land, and

within fourteen (14) days after the date thereof or (in the

case of an agreement entered into before the date hereof)

after the execution of this Agreement lodge a true copy of

the agreement with the Minister for Mines.



(10) The Joint Venturers will by means of contour ploughing, concrete

or earth sills, diversion channels, settling ponds and drainage or other approved

method as the case may require take all reasonable steps to prevent damage

being caused to privately owned land by water runoff and will by every

reasonable means prevent soil erosion on such land.

(11) The Joint Venturers will within thirty (30) days after ceasing

mining operations on any area of privately owned land commence to restore the

mined area and continue to restore it until the restoration is completed to the

satisfaction of the Minister who in considering any matter relating to such

restoration shall have regard to the reasonable requirements of the relevant local

authority.

(12) Notwithstanding any rule of law or provision of any agreement

referred to in subclause (9)(a) of this Clause to the contrary a reference to

mining or mining operations in any such agreement shall be read and construed

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as including the restoration of any mined area and for that purpose and for the

purposes of subclause (11) of this Clause the term “restoration” means the

battering and smoothing of pit walls, the spreading of previously removed

topsoil, the ground ripping and planting of vegetation of or in a mined area and

the verb “to restore” has a corresponding meaning.

(13) Notwithstanding the provisions of subclause (11) of this Clause

where the owner of the privately owned land satisfies the Minister that the

excavation of any mined area is capable (with or without modification) of being

used and should be used for the purpose of water storage or other approved

purpose the Minister will by notice to the Joint Venturers relieve them of the

obligation imposed by that subclause with respect to that particular mined area.

(14) For the purposes of subclauses (10) (11) and (13) of this Clause, a

reference to privately owned land shall be construed as including land owned by

the Joint Venturers.

Construction of Railway 2

8.

(1) The State shall at the request of the Joint Venturers and with all

reasonable expedition but at the Joint Venturers’ expense in all things execute

the railway construction and upgradings referred to in Clause 5(2)(b) and (c) of

this Agreement but shall not be required to complete such construction or

upgradings within a period of less than two years from the date of the Joint

Venturers’ particular request.

(2) The construction and upgradings referred to in subclause (1) of this

Clause shall be carried out to the specifications of the Railways Commission but

in deciding on any such specifications the Commission shall have due regard to

the requirements of the Joint Venturers and shall consult them as to those

requirements.

(3) The provisions of section 96 of the Public Works Act 1902, shall

not apply to any railway constructed pursuant to this Agreement.

Maintenance of Railway 2

(4) The State shall maintain the railway constructed in accordance

with Clause 5(2)(b)(i) of this Agreement.

Operation of Trains 2

(5) During the currency of this Agreement, subject to the Joint

Venturers complying with their obligations hereunder in relation to their use of

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rail transport and, in particular, subject to the number of wagons provided by

the Joint Venturers being sufficient for the purpose, the State shall operate such

trains as is required and shall transport over its railways from time to time

existing all bauxite alumina coal fuel oil caustic soda lime limestone and other

commodities required by the Joint Venturers.

Maintenance and Service of Locomotives, Brakevans and Rolling Stock 2

(6) The State, at is own expense, shall provide all locomotives and

brakevans and maintain and service all locomotives brakevans and wagons

necessary for the purposes of this Agreement.

Construction of Roads 2

9.

(1) If so required by the Joint Venturers the State shall at the expense

of the Joint Venturers acquire or resume such land as may be required and

construct or cause to be constructed any road reasonably required by them to

gain access to any land in order to carry out their operations under this

Agreement and the alignment and general standard of any such road shall be

such as is acceptable to the State.

(2) The Joint Venturers may construct and use private roads within the

area of the mineral lease but —

(a)



the plans and specifications for any such road shall be

approved in advance by the State and shall where required

by the State provide for grade separation at all intersections

with public roads and railways;



(b)



the Joint Venturers shall —

(i)



minimise the extent of forest clearing required

for road alignments and give to the Conservator

of Forests six (6) months prior notice of their

intention to build any road;



(ii)



take full responsibility for and take precautions

to prevent the public from using their private

roads; and



(iii)



provide fences and stock barrier wherever

necessary.



(3) The Joint Venturers shall in respect of every road constructed

pursuant to subclause (2) of this Clause that is open to or used by the public for

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passage with vehicle comply with the provisions of the Road Maintenance

(Contribution) Act 1965.

Use of Public Roads 2

10. (1) Subject to any restriction that the State may reasonably impose by

way of limitation of speeds or loads or the use of railway crossings the Joint

Venturers may use any public roads that may from time to time exist in the area

of their operations under this Agreement for the purpose of transporting goods

and materials in connection with those operations, but where the Joint

Venturers’ operations require the use of a public road that is inadequate for the

purpose, or results in excessive damage or deterioration of any public road

(other than fair wear and tear) the Joint Venturers shall pay to the State or local

authority concerned (except where and to the extent that the Commissioner of

Main Roads or local authority agrees to bear the whole or part of the cost

involved) the total cost of any upgrading required or of making good the

damage or deterioration.

(2) Where the operations of the Joint Venturers bring about an increase

in the conflict of trains and road vehicles at level crossings to such an extent

that an improvement in the level of protection requiring the provision of either

flashing lights, boom gates or grade separation is considered by the Minister to

be warranted following all investigation, the Joint Venturers shall pay to the

State (except where and to the extent that the Minister agrees to bear the whole

or part of the cost involved) the total cost of providing the increased level of

protection.

Transport of Construction Materials by Road 2

11. If during the construction of the refinery or any substantial extension

thereof the Joint Venturers demonstrate to the satisfaction of the Commissioner

of Transport that the services provided by the Railways Commission do not

meet the reasonable requirements of the Joint Venturers, the Commissioner of

Transport shall, subject to the payment of the appropriate fee, issue a licence to

transport goods by road for such construction or extension under the terms of

the Transport Commission Act 1966.

State’s Obligations 2

12.



The State covenants with the Joint Venturers that the State shall —

(1)



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if so required by the Joint Venturers acquire for them any

land required for the refinery; the price at which such land



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will be made available to the Joint Venturers shall be the

actual cost of acquisition by the State;

(2)



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on application grant, or make arrangements to have the

Authority, or other interested instrumentality of the State,

grant to the Joint Venturers, or obtain for them at such prices

and on such terms as are prescribed by law or are otherwise

reasonable any land, lease, easement or any licence or other

right (whether statutory or otherwise) which the parties

hereto agree are reasonably necessary to enable the Joint

Venturers, subject to the terms of this Agreement to

construct, install, establish, operate or maintain, as the case

may be —

(a)



a pipeline or conveyor for the transport of

bauxite from the mineral lease to the refinery

site;



(b)



any pipeline for the transport of fresh water, sea

water, fuel oil, liquid caustic, red mud or other

effluent, or natural gas as is reasonably required

for the purposes of this Agreement;



(c)



a wharf in the port of Bunbury, an adjacent

stockpile area adequate for the purposes of the

Joint Venturers together with associated

shiploader, conveyors, storage bins, railway

sidings and ancillary facilities for the storage

handling and shipment of alumina and

associated chemicals and by-products and, a

ship unloader and other facilities for the

discharge and storage of liquid caustic fuel oil

soda ash lime and limestone and such other

commodities as the Bunbury Port Authority

may in its discretion approve from time to time;



(d)



housing recreational and other facilities,

amenities and services required for the

employees of the Joint Venturers their

contractors and their families;



(e)



any other facility contemplated by this

Agreement or which the Joint Venturers and the

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Minister agree is desirable for the purposes of

the Agreement;

PROVIDED THAT the State shall be reimbursed by the

Joint Venturers for all expenses involved, whether because

of resumption or otherwise in its making or causing to be

made available to the Joint Venturers any such land lease

easement or other right as aforesaid, and that the Joint

Venturers shall pay all fees and other charges normally

payable in connection with the granting of any statutory

right or licence.

AND PROVIDED THAT wherever the grant of any such

land, lease, easement, licence or other right is provided for

by statute the particular grant shall be made under and the

resulting right exercised subject to the terms of the relevant

statute except to the extent that this Agreement provides

otherwise.

AND PROVIDED THAT any easement licence or other

right required for the purposes specified in paragraphs (a)

and (b) of this subclause shall only be granted to the extent

that such grant does not unreasonably interfere with public

works (such as water supplies, sewerage, drainage,

electricity supplies roads or railways) then existing or under

immediate contemplation

Modification of Land Act 2

BUT PROVIDED FURTHER THAT in respect of any land

sold or leased to the Joint Venturers by the State for any of

the purposes of this Agreement the Land Act shall be

deemed to be modified by: —

(a)



the substitution for subsection (2) of

section 45A of the following subsection: —

“(2) Upon the Governor signifying

approval pursuant to subsection (1)

of this section in respect of any

such land the same may subject to

this section be sold or leased;”



(b)

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the deletion of the proviso to section 116;

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(c)



the deletion of section 135;



(d)



the deletion of section 143;



(e)



the inclusion of a power to offer for sale or

leasing land within or in the vicinity of any

townsite notwithstanding that the townsite has

not been constituted a townsite under

section 10; and



(f)



the inclusion of a power to offer for sale or

grant leases or licences for terms or periods and

on such terms and conditions (including

renewal rights) and in forms consistent with the

provisions of this Agreement in lieu of the

terms or periods, the terms and conditions and

the forms referred to in the Act;



The provisions of the last proviso above shall not operate so

as to prejudice the rights of the State to determine any lease

licence or other right or title in accordance with the other

provisions of this Agreement;

(3)



should the Joint Venturers desire to establish a second

refinery for the processing of bauxite within the State

entertain and sympathetically consider any proposals which

the Joint Venturers may make with regard thereto including

port, railway and other associated facilities;



Zoning 2

(4)



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ensure that no land the subject of any mineral lease or other

lease, licence or easement granted under or pursuant to

statute or this Agreement and no land of any other tenure

(including freehold) used or occupied by the Joint Venturers

for any of the purposes contemplated by the Agreement shall

be made subject to any restriction as to its use such as would

prevent or unreasonably hinder the Joint Venturers carrying

out the operations contemplated by this Agreement, whether

such restriction be by way of zoning, regulation, by-law or

other exercise of statutory power and whether by the State or

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No Discrimination by Rates or Otherwise 2

(5)



except as provided in this Agreement not impose nor permit

nor authorise any of its agencies or instrumentalities or any

local or other authority of the State to impose discriminatory

taxes rates or charges of any nature whatsoever on or in

respect of the titles property or other assets products

materials or services used or produced by or through the

operations of the Joint Venturers in the conduct of their

business hereunder nor will the State take or permit to be

taken by any such State authority any other discriminatory

action which would deprive the Joint Venturers of full

enjoyment of the rights granted under this Agreement;



Rating 2

(6)



ensure that notwithstanding the provisions of any Act or

anything done or purported to be done under any Act the

valuation of all lands (whether of a freehold or leasehold

nature) the subject of this Agreement (except as to any part

upon which a permanent residence shall be erected or which

is occupied in connection therewith) shall for rating

purposes be the unimproved value thereof and no such lands

shall be subject to any discriminatory rate as against the

Joint Venturers as a party to this Agreement PROVIDED

THAT nothing in this subclause shall prevent the Joint

Venturers making the election provided for by section 533B

of the Local Government Act 1960;



Resumption of Land 2

(7)



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having regard to the particular nature of the industry

proposed to be established by the Joint Venturers under this

Agreement and during the currency hereof not resume or

suffer or permit to be resumed by any State instrumentality

or by any local or other authority of the said State any estate,

right, title or interest in land or improvements thereon held

by or acquired by or on behalf of the Joint Venturers for the

purpose of their operations under this Agreement the

resumption of any of which would unreasonably impede the

existing or projected activities of the Joint Venturers nor will

the State create or grant or permit or suffer to be created or



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granted by any instrumentality or authority of the said State

as aforesaid any road right of way or easement of any nature

or kind whatsoever over or in respect thereof without the

consent of the Joint Venturers first having been obtained

which consent shall not be arbitrarily or unreasonably

withheld;

Water 2

13. (1) The Joint Venturers estimate that for a refinery with a designed

capacity of 1.2 million tons of alumina per annum they will require up to

3 million gallons of potable water per day and that if the capacity of such

refinery is increased to 2 million tons per annum the water requirements will

approximate 5 million gallons per day.

The Joint Venturers’ initial requirements of up to 3 million gallons a day

will be supplied to the Joint Venturers from the Wellington Dam and the State

(so far as is then reasonably practicable) will meet the additional requirements

of the Joint Venturers from that source.

(2) The Joint Venturers will advance to the State a sum sufficient to

enable the State to design and construct a pipeline together with ancillary works

of appropriate size to supply 3 million gallons per day to the refinery.

Such water shall be paid for at the following rates —

(a)



During the first ten years from the production date the sum

of one hundred and twenty thousand dollars ($120,000) per

annum plus the prices prescribed under the provisions of the

Country Areas Water Supply Act 1947, less 10 cents per

1,000 gallons; and



(b)



thereafter during the continuance of this Agreement at the

said prescribed prices less 10 cents per 1,000 gallons.



In addition to the rates prescribed by paragraphs (a) and (b) of this subclause the

Joint Venturers will pay an annual rate in respect of the lot or lots on which the

refinery is constructed pursuant to the provisions of the said Act except that the

rate shall be based on the unimproved value of the land.

(3) The Joint Venturers will contribute a fair and reasonable

proportion of the cost of any works involved in meeting the Joint Venturers’

additional requirements of water under subclause (1) of this Clause.



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(4) The State as soon as possible after this Agreement comes into

operation shall with all reasonable expedition construct the pipeline and

ancillary works referred to in subclause (1) of this Clause and may construct

such pipeline and ancillary works to a greater capacity than that indicated in

subclause (1), but in that event the cost of the enlarged supply system will be

shared on a basis to be negotiated between the State and the Joint Venturers.

(5) If at any time the reasonable water requirements of the Joint

Venturers either as to quality or quantity cannot be met from the Wellington

Dam or other sources then available, the State, in so far as it is reasonably

possible will act promptly to meet those requirements. The Joint Venturers will

contribute a fair and reasonable proportion of the cost of any works involved.

(6) The State at the request and at the expense of the Joint Venturers

will provide water sufficient for the needs of the Joint Venturers’ mining

operations and of their work force at such point or points as shall be chosen by

the Joint Venturers within the mineral lease. Such water shall be paid for by the

Joint Venturers at the prices prescribed from time to time for water supplied for

mining purposes under the provisions of the Country Areas Water Supply

Act 1947.

(7) In the event of the Joint Venturers desiring to develop a local

source of water for the needs of their mining operations and of their work force

within the mineral lease the Joint Venturers will at their expense construct local

storage and ancillary works in accordance with proposals approved by the

Minister.

Coal 2

14. The parties acknowledge that it is proposed (subject to coal being

available at a price competitive with other available sources of energy) to use

coal in the refinery. To this end it is essential that the Joint Venturers be assured

of a continuity of supply of coal of sufficient amount to meet the requirements

of a refinery with an initial capacity of 1.2 million tons and a maximum

capacity of 2 million tons per year for a contemplated period of 63 years.

The Joint Venturers shall confer with the Minister from time to time to

establish their annual coal requirements. The Joint Venturers shall use their best

endeavours to enter into long term contracts for their requirements of coal

having first agreed with the State on an equitable apportionment between open

cut coal and deep mined coal to be used both by the State and the Joint

Venturer’s from available resources.



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The State shall, having regard to the coal requirements of the State

Electricity Commission for its power stations from time to time, take such

reasonable measures as may be practicable (including where appropriate the

making of representations to the Commonwealth) to ensure the availability of

supplies of coal required for the purposes of the Joint Venturers’ operations

under this Agreement.

Electricity 2

15. (1) The Joint Venturers are authorised to generate electricity for their

own use at the area from time to time being mined within the mineral lease, at

the refinery for their own use on the site of the refinery and for ancillary

operations beyond that site, PROVIDED THAT the Joint Venturers shall

comply in all respects with the reasonable requirements of the State Electricity

Commission and shall not take transmission lines beyond the site of the

refinery without the prior approval of the Commission which approval shall not

be withheld in respect of transmission lines for the purpose of providing power

to a conveyor between the area from time to time being mined within the

mineral lease and the refinery, and between the refinery and the residue area for

the purpose of providing power to pump red mud. Any approval given by the

Commission pursuant to this subclause may be subject to conditions requiring

that the route and type of line shall meet the reasonable requirements of the

Commission.

(2) The State will within twelve (12) months of the receipt of a request

from the Joint Venturers supply power to the site of the refinery sufficient for

construction purposes and to the area from time to time being mined within the

mineral lease sufficient for normal operating requirements.

(3) The supply of power to the Joint Venturers pursuant to this Clause

shall be on the State Electricity Commission’s usual conditions and practice and

at the appropriate tariffs prescribed from time to time.

Access to Forests 2

16. (1) The State acknowledges that the Joint Venturers for the purpose of

their operations under this Agreement will need to enter upon and remove

overburden from areas of State forests and Crown land within the mineral lease.

(2) The Joint Venturers will subject as is hereinafter provided, from

time to time in accordance with their plan submitted pursuant to subclause (10)

of this Clause give to the Conservator of Forests on behalf of the State at least

six (6) months prior notice of their intention to enter upon any area of State

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forest or Crown land to be specified in the notice and to cut and remove from

the area forest produce and overburden for the purposes of their operations

under this Agreement and the Conservator unless he has good and sufficient

reason to the contrary shall grant to the Joint Venturers any permit or licence

necessary for those purposes subject to usual or proper conditions. In the case

of bauxite to be mined for test purposes, the period of notice required under this

subclause shall be reduced to thirty (30) days:

PROVIDED HOWEVER that —

(a)



before the Joint Venturers commence mining operations on

the area the Conservator may cut and remove therefrom any

merchantable timber or other forest produce; and



(b)



the Joint Venturers in accordance with the directions of the

Conservator, will dispose of all forest produce and

overburden removed from the area in such places and in

such manner as will not threaten or destroy the health or

safety of any forest or forest produce on adjoining or other

areas of State forest.



(3) As from the commencement of mining operations or from the first

day of January, 1975, whichever shall first occur, the Joint Venturers will pay to

the Conservator compensation at the rate of two hundred and fifty dollars

($250) per acre for the area of forest destroyed by or in connection with the

Joint Venturers’ mining activities. Such payments will be made in advance in

the month of January of each year on the area of forest proposed to be destroyed

in that year and payments by way of any necessary adjustment shall be made in

the month of January next following. The rate of compensation aforesaid has

been determined having regard to the current cost to the Conservator of

acquiring one acre of suitable land and planting it with trees together with the

estimated loss of royalty subsidy or grant and increased costs of management in

respect of each acre of growing timber so destroyed and shall accordingly be

increased or decreased as from the termination of each period of five (5) years

calculated from the date of commencement of mining operations or from the

1st day of January, 1975 whichever shall first occur having regard to any

increase or decrease in the Conservator’s costs and the loss of royalty subsidy or

grant aforesaid which has occurred since the date of this Agreement or the date

of the last review as the case may be.

(4) The Forest Officer for the time being in charge of State forest

within the area of the mineral lease may on reasonable grounds prohibit the use



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thereon of any roads or tracks and may from time to time give directions

regarding the routes by which the ore or produce obtained may be removed or

taken through any part of the State forest and the Joint Venturers shall comply

with and observe such directions PROVIDED THAT those directions shall not

apply to roads built by the Joint Venturers the Commissioner of Main Roads or

any other statutory body with the exception of the Forests Department. Subject

thereto and provided that the use of any road under the control of the

Conservator does not result in undue damage to the forest or forest produce the

Joint Venturers may use such road or roads as they desire. Any damage to

Forests Department roads or tracks resulting from operations by the Joint

Venturers shall be repaired by the Joint Venturers at their expense to the

satisfaction of the Forest Officer.

(5) All debris resulting from clearing operations in areas of State

forests and Crown land by the Joint Venturers shall be disposed of by the Joint

Venturers to the satisfaction of the Conservator.

(6) The Joint Venturers in their operations hereunder will comply with

and observe the provisions of the Bush Fires Act 1954.

(7) The Joint Venturers will take all such necessary precautions as may

be indicated by the Forest Officer to prevent the occurrence or spread of any fire

within or adjacent to the area of the mineral lease.

(8) As may reasonably be required by the Conservator, the Joint

Venturers shall from time to time and at their expense take adequate

measures —

(i)



for the progressive restoration and re-afforestation of the

forest destroyed;



(ii)



for the prevention of soil erosion;



(iii)



for the prevention of the formation of deep water pools and

other dangers to persons who may use the forest areas.



PROVIDED THAT the Joint Venturers shall not be obliged to restore to its

original contour land on which forest has been destroyed.

(9) The Joint Venturers shall as soon as practical after the date of this

Agreement and at their expense and in consultation with the Conservator

establish a trial area or areas not exceeding in the aggregate five acres for the

purpose of investigating the most practical and effective methods of

re-afforesting mined areas.

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(10) The Joint Venturers after consulation with the Conservator of

Forests will prepare and submit to the State not later than two years after the

commencement date a plan in reasonable detail of their proposed mining

operations upon areas of State Forest and Crown land during the succeeding

ten years and such plan after like consultation shall be reviewed and resubmitted

thereafter at yearly intervals.

Environmental Protection 2

17. Nothing in this Agreement shall be construed to exempt the Joint

Venturers from compliance with any requirement in connection with the

protection of the environment arising out of or incidental to the operations of

the Joint Venturers hereunder that may be made by the State or any State

agency or instrumentality or any local or other authority or statutory body of the

State pursuant to any Act for the time being in force.

Right to Grant Mining Tenements for Other Minerals 2

18. Notwithstanding anything contained or implied in this Agreement or in

the mineral lease the State may grant to or register in favour of persons other

than the Joint Venturers leases and other mining tenements in respect of the area

subject to the mineral lease for minerals other than those the subject of the

mineral lease and for stone sand or gravel unless the Minister for Mines

determines that such grant or registration is likely unduly to prejudice or

interfere with the operations of the Joint Venturers hereunder assuming the

taking by the Joint Venturers of reasonable steps to avoid the prejudice or

interference.

Delays 2

19. (1) This Agreement shall be deemed to be made subject to any delays

in the performance of obligations under this Agreement and to the temporary

suspension of continuing obligations hereunder which may be occasioned by or

arise from circumstances beyond the power and control of the party responsible

for the performance of such obligations including delays or any such temporary

suspension as aforesaid caused by or arising from Act of God force majeure

floods storms tempests washaways fire (unless caused by the actual fault or

privity of the Joint Venturers) act of war act of public enemies riots civil

commotions strikes lockouts stoppages restraint of labour or other similar acts

(whether partial or general) shortages of labour or essential materials reasonable

failure to secure contractors delays of contractors and delays due to overall

Australian economic conditions or factors which could not reasonably have

been foreseen and delays due to overall economic conditions in Australia or any

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other country from which the finance or a substantial portion of the finance

required to enable the Joint Venturers to discharge their obligations under this

Agreement is to be provided or to which a substantial portion of the products of

the Joint Venturers or any subsidiary or associated company of any of them is

intended by the Joint Venturers or any of them to be sold inability to sell or

otherwise dispose of alumina profitably or to prices for the products of the Joint

Venturers or any of them or any subsidiary or associated company of any of

them falling below profitable levels, PROVIDED ALWAYS that the party

whose performance of obligations is affected by any of the said causes shall

minimise the effect of the said causes as soon as possible after their occurrence.

(2) On the happening of any event specified in this Clause which in

the opinion of the Joint Venturers may delay the performance by the Joint

Venturers of an obligation which under this Agreement is to be performed by

the Joint Venturers within a specified time the Joint Venturers shall promptly

give notice to the Minister of such event and likely delay in which case the

Minister shall grant such extension of time for the performance of the obligation

as shall in all the circumstances be fair and reasonable. In case the Joint

Venturers object to the decision of the Minister as to what is a fair and

reasonable extension the same shall be referred to arbitration hereunder.

Assignment 2

20. (1) Subject to the provisions of this Clause the Joint Venturers or any

of them may at any time —

(a)



assign mortgage charge sublet or dispose of to an associated

company as of right and to any other company or person with the

consent of the Minister the whole or any part of the rights of the

Joint Venturers hereunder (including their rights to or as the holder

of any lease licence easement grant or other title) and of the

obligations of the Joint Venturers hereunder; and



(b)



appoint as of right an associated company or with the consent of

the Minister any other company or person to exercise all or any of

the powers functions and authorities which are or may be conferred

on the Joint Venturers hereunder;



subject however to the assignee or (as the case may be) the appointee executing

in favour of the State a deed of covenant in a form to be approved by the

Minister to comply with observe and perform the provisions hereof on the part

of the Joint Venturers to be complied with observed or performed in regard to

the matter or matters so assigned or (as the case may be) the subject of the

appointment.

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(2) Notwithstanding anything contained in or anything done under or

pursuant to subclause (1) of this Clause but subject to the provisions of

subclause (3) of this Clause the Joint Venturers shall at all times during the

currency of this Agreement be and remain liable for the due and punctual

performance and observance of all the covenants and agreements on their part

contained herein and in any lease licence easement grant or other title the

subject of an assignment under the said subclause (1) PROVIDED THAT the

Minister may agree to release the Joint Venturers or any of them from such

liability where he considers such release will not be contrary to the interests of

the State.

(3) When any agreement entered into by the Joint Venturers in

accordance with the terms of this Agreement with some other company or

person results in that other company or person discharging all or any of the

obligations undertaken by the Joint Venturers under this Agreement (including,

without prejudice to the generality of this provision, the obligation to construct

and operate a refinery as imposed by Clause 5(1) hereof) or renders it

unnecessary for the Joint Venturers to discharge any obligation undertaken by

them hereunder the Minister will discharge or temporarily relieve the Joint

Venturers from such part of their said obligations as is reasonable having regard

to the extent of and period for which the other company or person actually

effects the discharge of those obligations.

Determination of Agreement 2

21. (1) In any of the following events namely if the Joint Venturers make

default which the State considers material in the due performance or observance

of any of the covenants or obligations to the State herein or in any lease

sublease licence or other title or document granted or assigned under this

Agreement on their part to be performed or observed or if the Joint Venturers

abandon or repudiate their operations under this Agreement and such default is

not remedied or such operations resumed within a period of one hundred and

eighty (180) days after notice as provided in subclause (2) of this clause is given

by the State (or — if the alleged default abandonment or repudiation is

contested by the Joint Venturers and within sixty (60) days after such notice is

submitted by the Joint Venturers to arbitration — within a reasonable time fixed

by the arbitration award but not less than ninety (90) days after the making of

the arbitration award where the question is decided against the Joint Venturers

the arbitrator finding that there was a bona fide dispute and that the Joint

Venturers had not been dilatory in pursuing the arbitration) or if the Joint

Venturers go into liquidation (other than a voluntary liquidation for the purpose

of reconstruction) the State may by notice to the Joint Venturers determine this

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Agreement and the rights of the Joint Venturers hereunder and under any lease

licence easement or right granted hereunder or pursuant hereto shall thereupon

determine.

(2) The notice to be given by the State in terms of subclause (1) of this

Clause shall specify the nature of the default or other ground so entitling the

State to exercise such right of determination and where appropriate and known

to the State the party or parties responsible therefor and shall be given to the

Joint Venturers and all such assignees mortgagees chargees and disponees for

the time being of the Joint Venturers’ said rights to or in favour of whom or by

whom an assignment mortgage charge or disposition has been effected in terms

of Clause 20 whose name and address for service of notice has previously been

notified to the State by the Joint Venturers or any such assignee mortgagee

chargee or disponee.

(3) The abandonment or repudiation by or liquidation of the Joint

Venturers referred to in subclause (1) of this Clause means the abandonment or

repudiation by or the liquidation of all of them the Joint Venturers and all

assignees and appointees who have executed and are for the time being bound

by a deed of covenant in favour of the State as provided in Clause 20.

(4) If the default referred to in subclause (1) of this Clause shall not

have been remedied after such notice or within the time fixed by the arbitration

award as aforesaid the State instead of determining this Agreement as aforesaid

because of such default may itself remedy such default or cause the same to be

remedied (for which purpose the State by agents workmen or otherwise shall

have full power to enter upon lands occupied by the Joint Venturers and to

make use of all plant machinery equipment and installations thereon) and the

costs and expenses incurred by the State in remedying or causing to be

remedied such default shall be a debt payable by the Joint Venturers to the State

on demand.

Effect of Cessation of Determination of Agreement 2

22.



On the cessation or determination of this Agreement —

(i)



page 46



except as otherwise agreed by the Minister the rights of the

Joint Venturers to in or under this Agreement and the rights

of the Joint Venturers or of any assignee of the Joint

Venturers or any mortgagees to in or under the mineral lease

and any other lease licence easement or right granted

hereunder or pursuant hereto shall thereupon cease and

determine but without prejudice to the liability of either of

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the parties hereto in respect of any antecedent breach or

default under this Agreement or in respect of any indemnity

given hereunder;

(ii)



the Joint Venturers shall forthwith pay to the State all

moneys which may then have become payable or accrued

due;



(iii)



the right title and interest of the Joint Venturers in the

railway wagons provided by them pursuant to Clause 5(2)(g)

of this Agreement shall cease and determine and the same

shall become the property of the State;



(iv)



save as aforesaid and as otherwise provided in this

Agreement neither of the parties hereto shall have any claim

against the other of them with respect to any matter or thing

in or arising out of this Agreement.



Indemnity 2

23. The Joint Venturers will indemnify and keep indemnified the State and its

servants agents and contractors in respect of all actions suits claims demands or

costs of third parties arising out of or in connection with any work carried out

by or on behalf of the Joint Venturers pursuant to this Agreement or relating to

their operations or arising out of or in connection with the construction

maintenance or use by the Joint Venturers or their servants agents contractors or

assignees of the Joint Venturers’ works or services the subject of this

Agreement or the plant apparatus or equipment installed in connection

therewith.

Variation 2

24. (1) The parties may from time to time by agreement in writing add to

substitute for cancel or vary all or any of the provisions of this Agreement or of

any lease licence easement or right granted hereunder or pursuant hereto for the

purpose of more efficiently or satisfactorily implementing or facilitating any of

the objects of this Agreement.

(2) Where in the opinion of the Minister an agreement made pursuant

to subclause (1) of this Clause constitutes a material or substantial alteration of

the rights or obligations of either party, the agreement shall contain a

declaration to that effect and the Minister shall cause that agreement to be laid

upon the Table of each House of Parliament within the twelve sitting days next

following its execution.

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(3) Either House may, within twelve (12) sitting days of that House

after the agreement has been laid before it, pass a resolution disallowing the

agreement, but if, after the last day on which the agreement might have been

disallowed neither House has passed such a resolution the agreement shall have

effect from and after that last day.

Power to Extend Periods 2

25. The Minister may at the request of the Joint Venturers from time to time

extend or further extend any period or vary or further vary any date referred to

in this Agreement for such period or to such later date as the Minister thinks fit

whether or not the period to be extended has expired or the date to be varied has

passed.

New Processes 2

26. Nothing in this Agreement shall in any way prevent or limit the Joint

Venturers at their sole discretion from adopting for the discharge of their

obligations hereunder new processes or equipment incorporating the latest

technical developments from time to time available whether or not used by the

Joint Venturers elsewhere in their operations.

Processing of Bauxite from Other Sources 2

27. Subject to the approval of the Minister the Joint Venturers may process at

the refinery bauxite obtained otherwise than pursuant to this Agreement.

Arbitration 2

28. Except where otherwise specifically provided in this Agreement any

dispute or difference between the parties arising out of or in connection with

this Agreement or any agreed amendment or variation thereof or agreed

addition thereto or as to the construction of this Agreement or any such

amendment variation or addition or as to the rights duties or liabilities of either

party thereunder or as to any matter to be agreed upon between the parties under

this Agreement shall in default of agreement between the parties and in the

absence of any provision in this Agreement to the contrary be referred to and

settled by arbitration under the provisions of the Arbitration Act 1895,

PROVIDED THAT this Clause shall not apply to any case where the State or

the Minister is by this Agreement expressly given a discretionary power.

Notices 2

29. Any notice consent or other writing authorised or required by this

Agreement to be given or sent shall be deemed to have been duly given or sent

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by the State if signed by the Minister or by any senior officer of the Civil

Service of the said State acting by the direction of the Minister and forwarded

by pre-paid post to the Joint Venturers at their respective nominated offices for

the time being in the said State and by the Joint Venturers if signed on their

behalf by any person or persons authorised by the Joint Venturers or by their

solicitors as notified to the State from time to time and forwarded by pre-paid

post to the Minister and any such notice consent or writing shall be deemed to

have been duly given or sent on the day on which it would be delivered in the

ordinary course of post.

Exemption From Stamp Duty 2

30. (1) The State shall exempt from any stamp duty which but for the

operation of this Clause would or might be chargeable —

(a)



this Agreement;



(b)



any instrument executed by the State pursuant to this

Agreement granting to or in favour of the Joint Venturers or

any permitted assignee of the Joint Venturers any tenement

lease easement licence or other right or interest;



(c)



any assignment sublease or disposition (other than by way of

mortgage or charge) or any appointment made in conformity

with the provisions of subclause (1) of Clause 20 hereof; and



(d)



any assignment sublease or disposition (other than by way of

mortgage or charge) or any appointment to or in favour of

the Joint Venturers or an associated company of any interest

right obligation power function or authority which has

already been the subject of an assignment sublease

disposition or appointment executed pursuant to

subclause (1) of Clause 20 hereof;



PROVIDED THAT this Clause shall not apply to any instrument or other

document executed or made more than seven years from the date hereof.

(2) If prior to the date on which this Agreement comes into operation

stamp duty has been assessed and paid on any instrument or other document

referred to in subclause (1) of this Clause the State shall on demand after the

commencement date refund any stamp duty paid on any such instrument or

other document to the person who paid the same.



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Relevant law 2

31. This Agreement shall be interpreted according to the law for the time

being in force in the State of Western Australia.

Determination of Previous Agreement 2

32. The Agreement of which a copy is set out in the Schedule to the Alumina

Refinery (Bunbury) Agreement Act 1970 shall on the date of execution of this

Agreement be terminated.



FIRST SCHEDULE.

1.

Rates per ton mile for bauxite carried on trains operating between

agreed loading sites and the refinery and coal on trains between the Collie

coalfield and the refinery and alumina on trains between the refinery and port of

Bunbury back loading with any of caustic soda and fuel oil from Monday to

Saturday of each week. Should Sunday working be required the Joint Venturers

shall meet the additional costs involved.

BAUXITE:

(i)



agreed loading sites to the refinery:

cents per

net ton mile



page 50



Over .50 and up to 1.00 million tons per

annum . . . . . . . . . . . . . . . . . . . . . . . . . .



1.10



Over 1.00 and up to 2.00 million tons per

annum . . . . . . . . . . . . . . . . . . . . . . . . . .



1.00



Over 2.00 and up to 3.00 million tons per

annum . . . . . . . . . . . . . . . . . . . . . . . . . .



.90



Over 3.00 and up to 4.00 million tons per

annum . . . . . . . . . . . . . . . . . . . . . . . . . .



.85



Over 4.00 and up to 5.00 million tons per

annum . . . . . . . . . . . . . . . . . . . . . . . . . .



.80



Over 5.00 and up to 6.00 million tons per

annum . . . . . . . . . . . . . . . . . . . . . . . . . .



.75



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Over 6.00 and up to 7.00 million tons per

annum . . . . . . . . . . . . . . . . . . . . . . . . . .



.725



Over 7.00 million tons per annum . . . . . . . .



.70



When bauxite loading sites are more than 52 miles from the refinery

the above rates shall be reduced by .025 cents per net ton mile.

ALUMINA, CAUSTIC SODA, FUEL OIL, LIME AND LIMESTONE:

(ii) alumina from the refinery to the port of Bunbury and backloading

with caustic soda fuel oil lime and limestone:

cents per

net ton mile

Over .50 and up to .75 million tons per annum



1.50



Over .75 and up to 1.00 million tons per

annum . . . . . . . . . . . . . . . . . . . . . . . . . .



1.40



Over 1.00 and up to 1.25 million tons per

annum . . . . . . . . . . . . . . . . . . . . . . . . . .



1.30



Over 1.25 and up to 1.50 million tons per

annum . . . . . . . . . . . . . . . . . . . . . . . . . .



1.25



Over 1.50 and up to 1.75 million tons per

annum . . . . . . . . . . . . . . . . . . . . . . . . . .



1.20



Over 1.75 and up to 2.00 million tons per

annum . . . . . . . . . . . . . . . . . . . . . . . . . .



1.15



Over 2.00 and up to 2.50 million tons per

annum . . . . . . . . . . . . . . . . . . . . . . . . . .



1.10



Over 2.50 million tons per annum . . . . . . . .



1.07



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COAL:

(iii)



from an agreed point on the Collie coalfield to the refinery:

cents per

net ton mile

Over .50 and up to .75 million tons per annum



1.90



Over .75 and up to 1.00 million tons per

annum . . . . . . . . . . . . . . . . . . . . . . . . . .



1.80



Over 1.00 and up to 1.25 million tons per

annum . . . . . . . . . . . . . . . . . . . . . . . . . .



1.70



Over 1.25 and up to 1.50 million tons per

annum . . . . . . . . . . . . . . . . . . . . . . . . . .



1.60



Over 1.50 million tons per annum . . . . . . . .



1.50



2.

The rates for freight set out in this schedule have been calculated on

the basis of the total turn round time at terminals not exceeding the following: —

Bauxite:

mine site . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

refinery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .



2 hours

2½ hours



Alumina, Caustic Soda, Fuel Oil, Lime and Limestone:

port of Bunbury . . . . . . . . . . . . . . . . . . . . . . . 4 hours

refinery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 hours

Coal:

Collie coalfield . . . . . . . . . . . . . . . . . . . . . . . .

refinery . . . . . . . . . . . . . . . . . . . . . . . . . . . . .



1½ hours

1½ hours



If such times are not regularly adhered to by the Joint Venturers the

Railways Commission reserves the right to review the freight rates.

3.

The rates for freight are based on wagons being loaded to capacity

and shall be subject to the minimum load per train being not less than: —

Bauxite . . . . . . . . . . . . . . . . . . .

63 tons per wagon

Alumina . . . . . . . . . . . . . . . . . .

62 tons per wagon

Caustic Soda . . . . . . . . . . . . . . .

54½ tons per wagon

Fuel Oil . . . . . . . . . . . . . . . . . . .

61½ tons per wagon

Coal . . . . . . . . . . . . . . . . . . . . . .

45 tons per wagon

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Lime and Limestone . . . . . . . . .



as stipulated by the

Railways Commission



4.

The rates for freight set out in this schedule are based on costs

prevailing at the 19th January 1972 and shall be adjusted half yearly on the first

days of January and July with the new rates becoming effective on and from

those dates in accordance with the following formula: —









F1  F  . 45 F

























 HR 1  HR 

 D1  D 

 SR 1  SR   

. 80 

  . 05 

  . 15 



HR

SR





 D 









 







WHERE:

(i)



F1



=



the new freight rate.



(ii)



F



=



the freight rate which was payable as at

19th January 1972.



(iii)



HR



=



the average hourly rate payable as at

19th January 1972.



(iv)



HR1 =



the average hourly rate payable as at the date of

adjustment.



(v)



D



=



the wholesale price (duty free) of distillate in

Perth as at 19th January 1972.



(vi)



D1



=



the wholesale price (duty free) of distillate in

Perth as at the date of adjustment.



(vii) SR



=



the price of heavy steel rails per ton c.i.f. port

of Fremantle as ascertained from price

schedule covering despatches from the Broken

Hill Proprietary Company Limited and

Australian Iron and Steel Proprietary Limited

as at 19th January 1972.



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(viii) SR1 =



the price of heavy steel rails per ton c.i.f.

Fremantle ascertained as aforementioned as at

the date of adjustment.



The rates applicable at the 19th January 1972 are: —

1st class driver . . . . . . . . . . .

1st class guard . . . . . . . . . . . .

trackman . . . . . . . . . . . . . . . .

Average hourly rate . . . . . . . .



$2.2475 per hour

$1.8338 per hour

$1.4588 per hour

________

$1.8467



Price of distillate per gallon — 21.4 cents.

Price of heavy steel rails per ton, c.i.f. port of Fremantle — $113.00

The escalation formula referred to above shall be subject to review by the

Railways Commission after consultation with the Joint Venturers on the

1st January 1977 and thereafter at five yearly intervals.

5.



All traffic shall be carried at the risk of the Joint Venturers.



6.

Bauxite, alumina, caustic soda, fuel oil, coal, lime and limestone

carried on other than unit trains and all other commodities shall, unless

otherwise determined by the Railways Commission, be carried at gazetted rates.



SECOND SCHEDULE.

WESTERN AUSTRALIA.

MINING ACT 1904.

Lease No.



Minerals Fields



ELIZABETH THE SECOND by the Grace of God of the United Kingdom,

Australia and Her other Realms and Territories, Queen, Head of the

Commonwealth, Defender of the Faith: TO ALL TO WHOM THESE

PRESENTS shall come GREETINGS: KNOW YE that WHEREAS by

Section 48 of the Mining Act 1904, power is given to the Governor of our State

of Western Australia, in the Commonwealth of Australia, to grant leases of land

for the purposes of mining thereon for any mineral other than gold upon the

terms and conditions set forth in the said Act AND WHEREAS by an

Agreement made between the State of Western Australia of the one part and

Alwest Pty. Limited and Dampier Mining Company Limited (hereinafter called

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“the Joint Venturers” which expression includes the successors and permitted

assigns of each of them) of the other part which Agreement (hereinafter referred

to as “the Agreement”) was executed pursuant to the Alumina Refinery

(Worsley) Agreement Act 1973 the State agreed to grant to the Joint Venturers

on application made by the Joint Venturers a mineral lease under and, except as

otherwise provided by the Agreement, subject to the Mining Act 1904, AND

WHEREAS the Joint Venturers have now made application for a lease of the

land hereinafter described for the purpose of mining thereon for bauxite

(including “special grade bauxite” as defined in the Agreement) NOW WE in

consideration of the rents and royalties reserved by the Agreement and in

consideration of the covenants in this lease and in the Agreement to be observed

by the Joint Venturers DO BY THESE PRESENTS GRANT AND DEMISE

UNTO THE JOINT VENTURERS but subject to the provisions of the

Agreement all that Crown land comprising the areas coloured yellow in the plan

in the Schedule hereto together with all those privately owned lands coloured

green in the said plan and all those mines, veins, seams, lodes, or deposits of

bauxite within the weathered profile of the said lands (and for the purposes

hereof “weathered profile” means the zone within which any or all of the

original chemical elements of the rocks have been distributed or concentrated

by atmospheric or ground agencies) in, on, or under the said lands (hereinafter

called “the said mine”) together with the rights, liberties, easements, advantages

and appurtenances thereto belonging or appertaining to a lessee of a mineral

lease under the Mining Act 1904, including all amendments thereof for the time

being in force and all regulations made thereunder for the time being in force

(which Act and regulations are hereinafter referred to as “the Mining Act”) or to

which the Joint Venturers are entitled under the Agreement and for all purposes

necessary effectually to carry on the Joint Venturers’ mining operations under

the Agreement excepting and reserving out of this demise all such portions of

the said lands as are now used for any public buildings works or other

improvements whatsoever TO HOLD the said lands and mine and all and

singular the premises hereby demised for the term

of twenty-one (21) years from the

day of

19

with rights of renewal for two (2) consecutive further periods of twenty-one

(21) years but upon and subject to the terms, covenants and conditions set out in

the Agreement and the Mining Act (as modified by the Agreement) YIELDING

and paying therefor the rents and royalties as provided for in the Agreement

AND WE do hereby declare that this lease is subject to the condition that the

Joint Venturers shall observe perform and carry out the provisions of the Mines

Regulation Act 1946, and all amendments thereof for the time being in force and

the regulations for the time being in force made thereunder and the provisions



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of the Mining Act (as modified by the Agreement) in so far as the same affect or

have application to this lease.

PROVIDED THAT this lease and any renewal thereof shall not be determined

or forfeited otherwise than under and in accordance with the Agreement.

AND PROVIDED FURTHER that all petroleum and other minerals (apart from

bauxite) on or below the surface of the demised lands are reserved to Her

Majesty or any person claiming under her and that subject to the terms of the

Agreement any person lawfully authorised in that behalf may have access to the

demised lands or the purpose of searching for and obtaining petroleum or other

minerals in any part of the lands under the provisions of the Petroleum

Act 1967, or the Mining Act.

IN WITNESS WHEREOF we have caused our Minister for Mines to affix his

seal and set his hand hereto at Perth in our said State of Western Australia and

the common seals of the Joint Venturers were hereunto affixed this

day of



19 .



THE SCHEDULE ABOVE REFERRED TO (plan of lease)

In WITNESS whereof the parties hereto have executed this Agreement

the day and year first hereinbefore mentioned.



SIGNED by the said THE

HONOURABLE JOHN TREZISE

TONKIN, M.L.A., in the presence of —



MINISTER FOR DEVELOPMENT

AND DECENTRALISATION.



MINISTER FOR MINES.



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The common seal of ALWEST PTY.

LIMITED was hereunto affixed with the

authority of the Directors and in the

presence of —



DIRECTOR.



DIRECTOR.



The common Seal of DAMPIER

MINING COMPANY LIMITED was

hereunto affixed by authority of the

Board of Directors



DIRECTOR.



SECRETARY.

[First Schedule amended: No. 10 of 1978 s. 5.]



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Second Schedule — First Supplementary Agreement

[s. 6]

[Heading amended: No. 19 of 2010 s. 4.]

THIS AGREEMENT made the 18th day of April 1978 BETWEEN THE

HONOURABLE SIR CHARLES WALTER MICHAEL COURT, O.B.E.,

M.L.A., Premier of the State of Western Australia acting for and on behalf of

the Government of the said State and its instrumentalities (hereinafter referred

to as “the State”) of the one part and ALWEST PTY. LIMITED (hereinafter

called “Alwest”) a Company incorporated under the Companies Act 1961, of

Western Australia and having its registered office at 44 Stirling Street, Perth, in

the said State and DAMPIER MINING COMPANY LIMITED (hereinafter

called “Dampier”) a Company also incorporated under the said Act and having

its registered office at 37 Saint George’s Terrace, Perth (hereinafter collectively

called “the Joint Venturers” in which term shall be included their respective

successors and permitted assigns and appointees) of the other part.

WHEREAS:

A.



The parties are the parties to the agreement between them dated the

22nd day of August, 1974, the execution of which by the State was

authorized pursuant to section 3 of the Alumina Refinery (Worsley)

Agreement Act 1973 (which agreement is hereinafter referred to as

“the principal agreement”).



B.



The Joint Venturers have given notice of their desire to proceed

with the objects of the principal agreement in accordance with the

provisions of Clause 2 thereof.



C.



The Minister has at the request of the Joint Venturers pursuant to

the provisions of Clause 25 of the principal agreement extended the

time for performance by the Joint Venturers of their obligations

under the principal agreement to the 31st day of October 1978.



D.



The State pursuant to subclause (2) of Clause 3 of the principal

agreement created a temporary reserve over all the Crown land

referred to therein and granted to the Joint Venturers rights of

occupancy over such temporary reserve.



E.



The parties desire to amend the principal agreement.



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First Supplementary Agreement



NOW THIS AGREEMENT WITNESSETH —

1.

Subject to the context the words and expressions used in this Agreement

have the same meanings respectively as they have in and for the purpose of the

principal agreement.

2.

The provisions of this Agreement shall not come into operation unless

and until a Bill to approve and ratify this Agreement is passed by the

Legislature of the said State and comes into operation as an Act.

3.



The principal agreement is hereby varied as follows:

(1)



as to Clause 1 —

(a)



by adding after the definition “access channel” the

following definition —

“Alcoa” means Alcoa of Australia Limited;



(b)



by adding after the definition “bauxite” the following

definitions —

“Berth A” means the land known as Berth A at

Bunbury and the wharf and alumina

handling facilities constructed thereon by

Alcoa pursuant to paragraph (a) of

subclause (2) of Clause 4 of the

Agreement set out in the Schedule to the

Alumina Refinery (Pinjarra) Agreement

Act 1969;

“Berth B” means the land for the wharf and

storage area immediately east of Berth A

to be leased to the Joint Venturers at

Bunbury pursuant to paragraph (c) of

subclause (2) of Clause 12 of this

Agreement;



(c)



by adding after the definition “Crown Land” the

following definition —

“environmental review and management

programme” means any environmental

review and management programme and



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any variation thereof referred to in

Clause 5A hereof; and

(d)



by deleting the definition of “State Electricity

Commission” and adding the following definition —

“State Energy Commission” means the State

Energy Commission of Western

Australia established pursuant to the

State Energy Commission Act 1945; ;



(2)



as to Clause 5 —

(a)



(b)



subclause (1) —

(i)



by substituting for the words “coming into

operation of this Agreement” in lines 1 and 2,

the passage “31st of October 1978 or the date of

the approval of the environmental review and

management programme whichever is the

later,”;



(ii)



by substituting for the words “the

commencement date” in line 7; the words “such

later date”; and



(iii)



by substituting for the passage “appropriate)” in

line 13, the passage “appropriate to a capacity

not exceeding two million (2 000 000) tons per

annum subject to the provisions of Clause 5B

hereof)”;



subclause (2) —

by substituting for the words “date of this Agreement”

in lines 3 and 4 of subparagraph (i) of the proviso to

subclause (2) and in lines 5 and 6 of subparagraph (ii)

of that proviso, the passage “31st of October 1978”;



(c)



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subclause (3) —

(i)



by deleting subparagraphs (i) and (ii) of

paragraph (a);



(ii)



by substituting for subparagraph (iv) of

paragraph (a) the following subparagraph —



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(iv)



(d)



in the event of their electing to

construct a wharf and associated

facilities at Berth B, construct such

wharf and associated facilities in

accordance with plans and

specifications approved by the

State;



subclause (7) paragraph (d) —

by substituting for the passage “1.2” in line 4, the

figure “1”; and



(e)



subclause (10) —

(i)



paragraph (a) —

by substituting for the passage in lines 32 to 48

inclusive of subparagraph (i), the following

passage —

“For the purposes of this formula the mean

quarterly world selling price per ton of

aluminium for any quarter is deemed to

be the average (expressed in cents) of the

first four prices in each of the four

quarters which immediately precede that

quarter as quoted in the London “Metal

Bulletin” in respect of one pound of

aluminium virgin ingots under the

description “Canadian CIF all main ports

excl. USA, Canada, UK and Latin

America” multiplied by 2,240 and

converted to Australian currency.

For the purpose of this formula the

conversion rate from another currency to

Australian dollars shall be the mean

between the buying and selling rate for

telegraphic transfers quoted by a trading

bank acceptable to the Minister for Mines.

The formula referred to in in this

subparagraph shall be subject to review by

the parties —



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(I)



as at the last day of the period of

7 years from the production date and

thereafter as at the last day of each

succeeding period of 7 years; or



(II)



if the formula becomes inoperative

by reason of the London “Metal

Bulletin” ceasing to publish the

information required to determine

factor “M” in the said formula.



In the event of any dispute between the

parties arising from any review under this

subparagraph the matter shall be referred

to arbitration hereunder;”; and

(ii)



paragraph (b) —

by substituting for paragraph (b) the following

paragraph —

(b)



page 62



(i)



upon the expiration of the period

referred to in subparagraph (i) of

paragraph (a) of this subclause pay

to the State on all special grade

bauxite the property of the Crown

mined by the Joint Venturers

pursuant to this Agreement, a

royalty at the relevant rate

specified in the regulations under

the Mining Act;



(ii)



permit the State to review the rate of

royalty of 26.25 cents per ton

mentioned in subparagraph (i) of

paragraph (a) of this subclause seven

years after the production date and

thereafter as at the last day of each

succeeding period of seven years

PROVIDED HOWEVER THAT

the rate of royalty fixed by the State

in any review pursuant to this

subparagraph shall be the royalty



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rate for alumina specified in the

regulations under the Mining Act at

the date of review and PROVIDED

FURTHER THAT such rate shall

not be greater than the assessed rate

of the average of the rates of royalty

in respect of bauxite (mined within

the Commonwealth of Australia)

paid to the Commonwealth of

Australia and to all States thereof for

the 12 months immediately

preceding the date of review having

regard to such matters as the

respective tonnages mined, the

degree of processing required, the

alumina content and other

characteristics of the bauxite and

PROVIDED FURTHER THAT in

the event of the rate specified in the

regulations under the Mining Act

being greater than the said assessed

rate, then the assessed rate shall

apply PROVIDED ALWAYS that

subject to the proviso to

subparagraph (i) of paragraph (a) of

this subclause in no case shall the

rate of royalty on alumina be less

than 26.25 cents per ton; ;

(3)



by adding after Clause 5 a new Clause 5A as follows —

Environment, Environmental Review and Management

Programme 2

5A. (1) The Joint Venturers shall not later than the 31st of

October 1978 submit to the Minister for approval by the State a

detailed environmental review and management programme as to

measures to be taken in respect of the Joint Venturers’ undertakings

pursuant to Clause 5, and the mining operations associated therewith

for the protection and management of the environment including

rehabilitation and/or restoration of the mined areas and areas used for

the disposal of red mud, the prevention of the discharge of tailings,



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slimes, pollutants or overburden and the minimization of salt release

into the surrounding country, water courses, lakes or underground

water supplies and the prevention of soil erosion.

Continuous programme of investigation and research 2

(2) The Joint Venturers shall implement the environmental

review and management programme approved under subclause (1) of

this Clause and any variation thereof that the State may approve from

time to time and shall carry out continuous investigations and research

(including monitoring and the study of sample areas) to ascertain the

effectiveness of the measures they are taking pursuant to the approved

environmental review and management programme for the protection

and management of the environment.

Reports 2

(3) The Joint Venturers shall, during the currency of this

Agreement, at yearly intervals commencing twelve months after

the environmental review and management programme is

approved, submit an interim report to the State concerning

investigations and research carried out pursuant to subclause (2) of

this Clause and at 3 yearly intervals commencing from such date

submit a detailed report to the State on the result of the

investigations and research during the previous 3 years.

Additional Information 2

(4) The State may require the Joint Venturers to submit

additional information in respect of all or any of the matters the

subject of the detailed report.;

(4)



by adding after Clause 5A a new Clause 5B as follows —

Environment, further expansion of refinery 2

5B. If the Joint Venturers proposed to expand the refinery

beyond a capacity of two million (2 000 000) tons per annum the

provisions of Clause 5A shall apply mutatis mutandis in respect of

the Joint Venturers’ proposed expansion and the mining operations

associated therewith.;



(5)



by adding after Clause 5B a new Clause 5C as follows —

Joint Venturers’ advances 2



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5C. Notwithstanding anything to the contrary contained in

this Agreement, the Joint Venturers shall —



(6)



(a)



advance to the State the sum of two million

dollars ($2 000 000) when the Joint Venturers

commence to ship alumina through the Port of

Bunbury; and



(b)



in the event of their electing to construct a

wharf and associated shipping facilities at Berth

B, if required by the State, advance to the State

the total cost of any additional harbour works

required from time to time to enable the Joint

Venturers to use Berth B. ;



as to Clause 6 —

(a)



subclause (2) —

by substituting for subclause (2) a new subclause as

follows —

(2)



(b)



If as a result of the studies undertaken

under subclause (1) of this Clause the

Joint Venturers and the State are satisfied

that a smelter is technically and

economically viable and competitive on

world markets then the Joint Venturers

shall establish a smelter and have it

operating at a capacity and within a time

to be agreed.;



subclause (3) —

by adding after the word “will” in line 7 of

subclause (3), the passage “subject to subclause (4) of

this Clause”; and



(c)



by adding after subclause (3) a new subclause (4) as

follows —

(4)



As at 11 Sep 2010



Where a request is made to the Joint

Venturers to supply alumina to a third party

pursuant to subclause (3) of this Clause,

and the Joint Venturers demonstrate to the



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satisfaction of the Minister that compliance

with this request would require substantial

capital outlay by the Joint Venturers or

would deplete the proven reserves of

bauxite available to the Joint Venturers to

the extent that such reserves remaining

would not be sufficient to permit the

continued operation of the refinery to a

level consistent with that permitted under

the provisions of subclause (1) of Clause 5

hereof and any expansions necessary to

meet the requirements of such third party

for the remainder of the term of the mineral

lease as renewed from time to time, the

Minister shall at the request of the Joint

Venturers release the Joint Venturers from

any obligation to supply alumina pursuant

to the said subclause (3).;

(7)



as to Clause 7 —

(a)



subclause (1) —

by substituting for the words “commencement date” in

line 3, the passage “31st October 1978”;



(b)



subclause (2) —

by substituting for the passage “lease but this

subclause shall not apply to privately owned land

within the mineral lease, unless the owner and

occupier have been advised by the Joint Venturers as

to the effect of the terms of this Agreement insofar as

they relate to privately owned land within the mineral

lease and have expressly agreed in writing to the Joint

Venturers exercising with respect to his land the right

of noncompliance with those labour conditions.” in

lines 4 to 11 inclusive, the passage “lease.”; and



(c)



subclause (9) —

by substituting for subclause (9) the following

subclause —



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Mining on Privately Owned Land 2

(9)



(a)



The Joint Venturers shall not commence

any mining or related operations

(including prospecting, other than that

which would be permitted by a permit to

enter by virtue of section 151 of the

Mining Act) for the purposes of this

Agreement on any privately owned land

within the mineral lease unless and

until —

Consent 2

(i)



the Joint Venturers have first

obtained the consent of the owner

and occupier of such land; and



Compensation Agreement 2

(ii)



the Joint Venturers have entered

into a written agreement with the

owner and occupier of such land

for compensation arising out of

their operations or proposed

operations on the land, and lodged

a true copy of the agreement with

the Minister for Mines; and



Restoration Agreement 2

(iii)



the Joint Venturers have entered

into a written agreement with the

owner and occupier of such land

for the purpose of providing for

adequate restoration of the land

after mining and that agreement

has been approved by the Minister.



Procedure for disputes — consent to mine 2

(b)



As at 11 Sep 2010



(i)



Where an owner and/or occupier

unreasonably withholds or refuses

consent as provided in



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subparagraph (i) of paragraph (a)

of this subclause, the Joint

Venturers may apply to the

Warden to dispense with such

consent.

The Warden shall have jurisdiction

to hear such application and his

decision shall be binding on the

parties.

Compensation 2

(ii)



Where the Joint Venturers and an

owner and/or occupier are unable

to reach agreement as provided in

subparagraph (ii) of paragraph (a)

of this subclause, then where a

reasonable time has elapsed after

the commencement of negotiations

either party may apply to the

Warden to determine the amount

of such compensation and the

provisions of sections 169 to 172

inclusive of the Mining Act shall

apply. The Joint Venturers shall

lodge a copy of the Warden’s

determination with the Minister for

Mines.



Restoration 2

(iii)



page 68



Where the Joint Venturers and the

owner and/or occupier are unable

to reach agreement as provided in

subparagraph (iii) of paragraph (a)

of this subclause, then where a

reasonable time has elapsed after

the commencement of negotiations

either party may apply to the

Minister to determine the

restoration to be carried out by the



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Joint Venturers and the

determination of the Minister shall

be binding on the parties.

(c)



The Warden shall have power to adjudicate

on matters arising pursuant to

subparagraphs (i) and (ii) of paragraph (b)

of this subclause, concurrently.



Caveatable Interest 2



(8)



If pursuant to this subclause the Joint

Venturers become entitled to commence

mining or related operations on privately

owned land the Joint Venturers shall be

deemed under this Agreement to have an

estate or interest in such land sufficient to

support a caveat under Part V of the

Transfer of Land Act 1893.



(e)



On the first occasion that the Joint

Venturers or their agent enter upon

private land in the mineral lease the Joint

Venturers shall ensure that a notice to the

effect that entry is being made pursuant

to this Agreement is handed to the owner

and occupier of such land.

;



as to Clause 8 —

(a)



by substituting for subclause (3) the following subclause —

(3)



(9)



(d)



The provisions of section 96 of the Public

Works Act 1902, shall not apply to any railway

to be constructed pursuant to this Agreement

but any such railway shall, for all purposes, be

deemed to be constructed under the authority

of a special Act passed on the date of the

request of the Joint Venturers under

subclause (1) of this Clause and in accordance

with section 96(1) of the Public Works Act.;



by adding after Clause 8 a new Clause 8A as follows —



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Liability of Joint Venturers for repayment of moneys to the

State 2

8A. Where the State and the Joint Venturers enter into any

arrangement for the repayment to the State of moneys borrowed by

the State for the purposes of fulfilling any obligation of the State

incurred pursuant to this Agreement, the liability of the Joint

Venturers for such repayment shall not be subject to Clause 19

hereof.;

(10) as to Clause 12 —

(a)



by substituting for subclause (1) the following

subclause —

(1)



(b)



if so required by the Joint Venturers

acquire for them any land other than

Crown land as may be reasonably

required for the refinery; the price at

which such land will be made available

to the Joint Venturers to be the actual

cost of acquisition by the State;;



by adding after subclause (1) a new subclause (1A) as

follows —

(1A) If so required by the Joint Venturers

cause to be granted to them

notwithstanding the provisions of any

Act —



page 70



(a)



a lease of such Crown land as may

be reasonable for the purposes of

the construction and operation of

the refinery and the water storage

therefor together with an adequate

buffer zone therefor; and



(b)



a lease of such Crown land as may

be reasonable having regard to the

Joint Venturers’ proposals as

approved by the Minister under

subclause (4) of Clause 5 for the



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purposes of construction of red

mud ponds and red mud disposal,

such leases shall contain such terms and

conditions as are reasonable having

regard to the Joint Venturers’

requirements hereunder and in particular

shall contain the following provisions —

(i)



the term thereof (unless sooner

determined) shall expire on the

same date as that on which the

term of the mineral lease or any

renewal thereof terminates or is

determined;



(ii)



the rental payable thereunder shall

be one peppercorn per annum

payable if and when demanded;

and



(iii)



the Joint Venturers shall pay to the

Conservator compensation in

accordance with subclause (3) of

Clause 16 hereof; ;



(11) by adding after Clause 12 a new Clause 12A as follows —

Joint use of Berth B 2

12A. Notwithstanding the provisions of subparagraph (v) of

paragraph (a) of subclause (3) of Clause 5, and subparagraph (ii) of

paragraph (b) of subclause (3) of Clause 5, in the event of Alcoa

desiring to have the use of the wharf and alumina shiploading and

associated facilities on Berth B jointly with the Joint Venturers, the

Joint Venturers will negotiate in good faith with Alcoa with a view

to entering into an agreement as to such joint use including the

construction or expansion of any such wharf and such facilities

which may be necessary. Unless such agreement is entered into

before the expiration of 6 months from the date upon which Alcoa

shall have given notice in writing of such desire to the Joint

Venturers, the Joint Venturers will consent to submit any disputes

or differences as to the terms and conditions under which such

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joint use shall take place to the arbitration of two arbitrators and an

umpire in accordance with the Arbitration Act 1895. In any such

arbitration the arbitrators shall appoint their umpire before

proceeding in the reference, or in default of appointment in

accordance with the provisions of the said Act.;

(12) by adding after Clause 12A a new Clause 12B as follows —

Modifications to Bunbury Port Authority Act 2

12B For the purpose of this Agreement in respect of any

land leased to the Joint Venturers pursuant to the Bunbury Port

Authority Act 1909 that Act shall be deemed to be modified by —

(a)



the deletion of the proviso to section 25; and



(b)



the inclusion of a power to grant leases or

licences for terms or periods (including renewal

rights) and for such purposes as are consistent

with the provisions of this Agreement, in lieu of

the terms or periods and purposes referred to in

section 25.;



(13) As to Clause 13 —

(a)



(b)



subclause (1) —

(i)



by substituting for the passage “1.2” in line 2,

the figure “1”; and



(ii)



by substituting for the figure “5” in line 6, the

figure “6”;



subclause (2) —

by substituting for subclause (2) the following

subclause —

(2)



page 72



The Joint Venturers shall if required by

the State advance a sum or sums to be

agreed between the parties to enable the

State to design and construct a pipeline

together with ancillary works of

appropriate size to supply 3 million

gallons of water per day to the refinery;



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First Supplementary Agreement



(c)



subclause (6) —

by deleting the last sentence; and



(d)



by adding a new subclause (8) as follows —

(8)



The Joint Venturers shall pay to the State for

water supplied by the State pursuant to the

provisions of subclauses (2) and (6) of this

Clause a fair price to be negotiated between the

parties having regard to the actual cost of

providing, operating and maintaining such

water supply.;



(14) as to Clause 14 —

by substituting for the passage “1.2” in line 7, the

passage “1”;

(15) as to Clause 15 —

(a)



subclause (1) —

by substituting for the word “Electricity” in line 7, the

word “Energy”;



(b)



subclause (3) —

by substituting for the word “Electricity” in line 2, the

word “Energy”; and



(c)



by adding a new subclause (4) as follows —

(4)



The Joint Venturers and the State Energy

Commission are empowered to enter into

arrangements for the sale or exchange of

energy by the Joint Venturers to or with

the State Energy Commission.;



(16) by adding after Clause 15 a new Clause 15A as follows —

Alternative sources of energy 2

15A (1) The State acknowledges the importance to the

Joint Venturers of an assured source of energy at competitive

prices and that at the present time coal is the only such Western

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Australian source. However, it is contemplated that supplies of

natural gas may become available. In addition, the discovery or

development of other sources of energy or advances in technology

may result in other sources of energy becoming available and their

use being practicable and economically advantageous to the Joint

Venturers.

(2) The State undertakes that it will have regard to the

Joint Venturer’s energy requirements in planning future energy

supply, and will where practicable keep the Joint Venturers

informed of natural gas, oil and other sources of energy which

become available in the south west of Western Australia. The State

will use its best endeavours to ensure that the Joint Venturers have

reasonable access to energy supplies on terms and conditions to be

commercially negotiated.;

(17) as to Clause 16 —

(a)



subclause (1) —

by substituting for the passage “land within the

mineral lease.” in line 4, the passage “land.”;



(b)



subclause (2) —

by adding after the word “mining” in line 17, the

words “or other”;



(c)



subclause (3) —

by substituting for the passage “mining activities.” in

line 6, the passage “operations hereunder.”;



(d)



subclause (4) —

by adding after the word “lease” in line 2, the words

“and the Joint Venturers’ operations hereunder”;



(e)



subclause (7) —

by substituting for the passage “lease.” in line 4, the

passage “lease and the Joint Venturers’ operations

hereunder.”; and



(f)

page 74



subclause (10) —

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by substituting for the words “commencement date” in

line 3, the passage “31st of October, 1978”;

(18) as to Clause 18 —

by adding the following passage to the end of the Clause —

“Upon the grant of any such lease or other mining

tenement the land contained therein shall be deemed

to be automatically excised from the mineral lease

(with abatement of future rent in respect to the area

excised).”;

(19) As to Clause 20 —

(a)



by adding after the word “to” in line 3 the words

“each other or to”; and



(b)



by adding after the word “however” in line 18 the

passage “(except in the case of an assignment to any

Joint Venturer)”;



(20) as to Clause 30 —

by substituting for the passage “the date hereof.” in the last

line of subclause (1), the passage “the 31st of

October 1978.”;

(21) as to the First Schedule —

by substituting for the First Schedule a new schedule as

follows —

FIRST SCHEDULE.

1.

Rates per ton mile for bauxite carried on trains

operating between agreed loading sites and the refinery and

coal on trains between the Collie coalfield and the refinery

and alumina on trains between the refinery and port of

Bunbury back loading with any of caustic soda and fuel oil,

lime and limestone.



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BAUXITE:

(i)



agreed loading sites to the refinery:

Up to 492,104 tons per

annum . . . . . . . . . . . . . . . . . . .



Gazetted

By-law

Rates less

10 per cent

Cents per

net ton

mile



Over 492,104 tons and up to

984,207 tons per annum . . . . . .



1.10



Over 984,207 tons and up to

1,968,414 tons per annum . . . .



1.00



Over 1,968,414 tons and up to

2,952,621 tons per annum . . . .



.90



Over 2,952,621 tons and up to

3,936,828 tons per annum . . . .



.85



Over 3,936,828 tons and up to

4,921,035 tons per annum . . . .



.80



Over 4,921,035 tons and up to

5,905,242 tons per annum . . . .



.75



Over 5,905,242 tons and up to

6,889,449 tons per annum . . . .



.725



Over 6,889,449 tons per annum



.70



When bauxite loading sites are more than

52 miles from the refinery the above rates shall

be reduced by .025 cents per net ton mile.



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First Supplementary Agreement



ALUMINA, CAUSTIC SODA, FUEL OIL, LIME AND

LIMESTONE:

(ii) alumina from the refinery to the port of

Bunbury and backloading with caustic soda fuel oil lime and

limestone:

Up to 246,052 tons per annum .



Gazetted

By-law

Rates less

10 per cent

Cents per

net ton

mile



As at 11 Sep 2010



Over 246,052 tons and up to

492,104 tons per annum . . . . . .



1.70



Over 492,104 tons and up to

738,155 tons per annum . . . . . .



1.50



Over 738,155 tons and up to

984,207 tons per annum . . . . . .



1.40



Over 984,207 tons and up to

1,230,259 tons per annum . . . .



1.30



Over 1,230,259 tons and up to

1,476,311 tons per annum . . . .



1.25



Over 1,476,311 tons and up to

1,722,362 tons per annum . . . .



1.20



Over 1,722,362 tons and up to

1,968,414 tons per annum . . . .



1.15



Over 1,968,414 tons and up to

2,460,518 tons per annum . . . .



1.10



Over 2,460,518 tons per annum



1.07



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COAL:

(iii) from an agreed point on the Collie coalfield to

the refinery:

Up to 196,841 tons per annum .



Gazetted

By-law

Rates less

10 per cent

Cents per

net ton

mile



Over 196,841 tons and up to

492,104 tons per annum . . . . . .



2.10



Over 492,104 tons and up to

787,365 tons per annum . . . . . .



1.90



Over 787,365 tons and up to

984,207 tons per annum . . . . . .



1.80



Over 984,207 tons and up to

1,230,259 tons per annum . . . .



1.70



Over 1,230,259 tons and up to

1,476,311 tons per annum . . . .



1.60



Over 1,476,311 tons per annum



1.50



2.

The freight rates set out in paragraph 1 of this

schedule are subject to the following additional conditions:

(i)



page 78



Trains shall operate up to a maximum of 6 days

per week, commencing 12.01 a.m. Monday and

ceasing 12.00 midnight on Saturday. The

Railways Commission shall arrange a train

operating pattern between Monday and

Saturday consistent with the requirements of the

Joint Venturers as advised from time to time

under Clause 5(2)(d). The train operating

pattern shall be based as far as is practicable on

the utilisation of the maximum number of

wagons possible per train and the least number

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First Supplementary Agreement



of trains per week required to meet the haulage

programme of the Joint Venturers and such

trains shall be tabled at times convenient to the

operational requirements of the Railways

Commission. In particular the Joint Venturers

shall agree with the Railways Commission the

pattern of working including weekly and

monthly despatches. The Railways Commission

will not guarantee the departure and arrival of

trains at stated times nor shall it be liable to the

Joint Venturers for delay however caused or

any consequences arising therefrom.

(ii)



Should Sunday working be required and the

Railways Commission approves, the Joint

Venturers shall meet the additional costs

involved. Should industrial conditions preclude

regular operations on Saturdays the Railways

Commission reserves the right to review the

freight rates.



(iii)



The Joint Venturers shall ensure that all wagons

are loaded within the authorised axle load

capacity and shall be subject to such minimum

load per wagon and per train as may be defined

by the Railways Commission.



(iv)



The rates for freight set out in this schedule

have been calculated on the basis of:

(a)



The total turnaround time at terminals

being —

Bauxite:

mine site

refinery



120 minutes

100 minutes



Alumina, Caustic Soda, Fuel Oil,

Lime and Limestone:

port of

Bunbury

refinery

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120 minutes

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Alumina Refinery (Worsley) Agreement Act 1973

First Supplementary Agreement Second Schedule



Coal:

Collie coalfield 90 minutes

refinery

90 minutes

If such times are not regularly

adhered to by the Joint Venturers

the Railways Commission reserves

the right to review the freight rates.

If the Joint Venturers request a change in

the turnaround times the Railways

Commission shall advise the Joint

Venturers of the effect the requested

changes would have on the freight rates.

If the Joint Venturers elect to accept the

new freight rates the new turnaround

times shall thereupon become effective.

(b)



(v)



page 80



52 working weeks (each of six days and

excluding Sundays) per annum less two

weeks for contingencies (including all

gazetted public holidays) for bauxite,

alumina, caustic soda, fuel oil, lime and

limestone, and 45 working weeks (each

of 5 days) per annum for coal and if

through no fault of the Railways

Commission these yearly working

programmes cannot be adhered to the

Railways Commission reserves the right

to review the freight rates.



The rates for freight are based on wagons being

loaded to capacity and shall be subject to the

minimum load per wagon being not less than:

Bauxite, 72.83 tons per wagon.

Alumina, 60.53 tons per wagon.

Caustic Soda, 52.66 tons per wagon.

Fuel Oil, 55.61 tons per wagon.

Coal, 48.72 tons per wagon.

Lime and Limestone, as stipulated by the

Railways Commission.



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First Supplementary Agreement



and where less is carried in any wagon freight

shall be charged as though the minimum load

was carried.

3.

The rates for freight set out in the schedule are

based on costs prevailing at the 19th January, 1972, and

shall be adjusted half-yearly on the first days of January and

July with the new rates becoming effective on and from

those dates in accordance with the following formula:









F1  F  . 9 F

























 HR 1  HR 

 D1  D 

 SR 1  SR   

.

80



.

05



.

15















HR

D

SR

















 







WHERE

(i)



F1 =



the new freight rate.



(ii)



F



=



the freight rate which was payable as

at 19th January 1972.



(iii)



HR =



the average hourly rate payable as at

19th January 1972.



(iv)



HR1 =



the average hourly rate payable as at

the date of adjustment.



(v)



D



the wholesale price (duty free) of

distillate in Perth as at 19th January

1972.



(vi)



D1 =



=



(vii) SR =



As at 11 Sep 2010



the wholesale price (duty free) of

distillate in Perth as at the date of

adjustment.

the price of heavy steel rails per ton

c.i.f. port of Fremantle as ascertained

from price schedule covering

despatches from the Broken Hill



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Alumina Refinery (Worsley) Agreement Act 1973

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Proprietary Company Limited and

Australian Iron and Steel Proprietary

Limited as at 19th January 1972.

(viii) SR1 =



the price of heavy steel rails per ton

c.i.f. Fremantle ascertained as

aforementioned as at the date of

adjustment.



The rates applicable at the 19th January 1972 are:

1st class driver

$2.2475 per hour

1st class guard

$1.8338 per hour

trackman

$1.4588 per hour

_______

Average hourly rate

$1.8467

Price of distillate per gallon — 21.4 cents

Price of heavy steel rails per ton c.i.f. port of

Fremantle — $113.00

PROVIDED ALWAYS that if at any time there is a change

in —

(a)



the average hourly rate by the operation of any

award or other wage determination; or



(b)



the list price (duty free) of distillate in Perth; or



(c)



the price of heavy steel rails per ton c.i.f. port of

Fremantle (as ascertained aforesaid),



and such change is effective from a date prior to the last date

of adjustment a new freight rate or freight rates as the case

may be shall be calculated and shall apply from the date of

adjustment next following the date from which any such

change as aforesaid is effective and such new freight rate or

freight rates shall be substituted for the freight rate that

would have applied but for the application of the provisions

of this paragraph.

Adjustments made in accordance with this formula shall be

expressed in a figure of dollars per ton and calculated to 4

decimal places of a dollar and in doing so the fifth decimal

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Alumina Refinery (Worsley) Agreement Act 1973

Second Schedule

First Supplementary Agreement



place shall also be calculated so that if the fifth decimal

place is .5 or above, the fourth decimal place shall be

increased by 1.

The escalation formula referred to above shall be subject to

review by the Railways Commission after consultation with

the Joint Venturers on the 1st January 1987 and thereafter at

five yearly intervals.

4.

All traffic transported by the Railways

Commission for the Joint Venturers under this Agreement

shall be carried as though accepted by the Railways

Commission at Owner’s risk pursuant to general condition

2(b) contained in the schedule to By-law 55 as in force at the

date hereof and made under the Government Railways

Act 1904 and shall be subject to the other By-laws made

under the same Act.

5.

Bauxite, alumina, caustic soda, fuel oil, coal,

lime and limestone carried on other than unit trains in

accordance with this Agreement and all other commodities

shall, unless otherwise determined by the Railways

Commission, be carried at gazetted rates.

6.

If the Joint Venturers do not transport or

discontinue the transport by rail of their requirements of

bauxite for the purposes of this Agreement, the Railways

Commission may in consultation with the Joint Venturers

review the freight rates.

In WITNESS whereof the parties hereto have executed this Agreement the day

and year first hereinbefore mentioned.

SIGNED by the said THE

HONOURABLE SIR CHARLES

WALTER MICHAEL COURT, O.B.E.,

M.L.A., in the presence of —



CHARLES COURT



ANDREW MENSAROS

MINISTER FOR INDUSTRIAL DEVELOPMENT



As at 11 Sep 2010



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Alumina Refinery (Worsley) Agreement Act 1973

First Supplementary Agreement Second Schedule



THE COMMON SEAL of ALWEST

PTY. LIMITED was hereunto affixed

with the authority of the Directors and

in the presence of —



(C.S.)



DIRECTOR

W. I. KOMMER

SECRETARY

LINDSAY E. GROOM



Executed by DAMPIER MINING

COMPANY LIMITED by being signed

in Western Australia by its Attorney

Ronald Murray Williams under Power

of Attorney dated the 18 April, 1978 in

the presence of —



R. M. WILLIAMS



W. I. KOMMER

[Second Schedule inserted: No. 10 of 1978 s. 6.]



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Alumina Refinery (Worsley) Agreement Act 1973

Third Schedule

Second Supplementary Agreement



Third Schedule — Second Supplementary Agreement

[s. 6A]

[Heading amended: No. 19 of 2010 s. 4.]

THIS AGREEMENT made the 21st day of October, 1982 BETWEEN THE

HONOURABLE RAYMOND JAMES O’CONNOR, M.L.A., Premier of the

State of Western Australia, acting for and on behalf of the Government of the

said State and its instrumentalities (hereinafter called “the State”) of the one part

and BHP MINERALS LIMITED the name whereof was formerly Dampier

Mining Company Limited a company incorporated under the Companies

Act 1961 of Western Australia and having its registered office at 37 St.

George’s Terrace, Perth in the said State, REYNOLDS AUSTRALIA

ALUMINA, LTD. a company incorporated under the laws in force in the State

of Delaware in the United States of America and having its registered office in

the State of Western Australia at 77 St. George’s Terrace, Perth, THE SHELL

COMPANY OF AUSTRALIA LIMITED a company incorporated in the State

of Victoria and having its principal office in the State of Western Australia at

200 St. George’s Terrace, Perth and KOBE ALUMINA ASSOCIATES

(AUSTRALIA) PTY. LIMITED a company incorporated in the State of

Western Australia and having its registered office at 5 Mill Street, Perth

(hereinafter collectively called “the Joint Venturers” in which term shall be

included their respective successors and permitted assigns and appointees) of

the other part.

WHEREAS:

A.



The State and the Joint Venturers (pursuant to a certain deed of

assignment dated the 7th day of February, 1980) are now the

parties to the agreement dated the 22nd day of August, 1974 (the

execution of which by the State was authorised pursuant to

section 3 of the Alumina Refinery (Worsley) Agreement Act 1973)

as varied by agreement dated the 18th day of April, 1978 approved

and ratified by the Alumina Refinery (Worsley) Agreement Act

Amendment Act 1978 and as further varied by agreement dated the

28th day of May, 1981 (which agreement as so varied is hereinafter

referred to as “the principal agreement”).



B.



The parties desire to vary the principal agreement.



NOW THIS AGREEMENT WITNESSETH —



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Alumina Refinery (Worsley) Agreement Act 1973

Third Schedule

Second Supplementary Agreement



1.

Subject to the context the words and expressions used in this Agreement

have the same meanings respectively as they have in and for the purpose of the

principal agreement.

2.

The provisions of this Agreement shall not come into operation until a

Bill to approve and ratify this Agreement is passed by the Legislature of the said

State and comes into operation as an Act.

3.



The principal agreement is hereby varied as follows:

(1)



Clause 1 —

(a)



by inserting in paragraph (f) of the definition of

“Crown land” after “land” the following —





(other than Wellington Locations 5336, 5337,

5338 and 5339, Murray Locations 1715, 1716

and 1717 and Williams Locations 15702 and

15703) ” ;



(b)



by deleting the definition of “mineral lease”;



(c)



by deleting the definition of “Mining Act”;



(d)



by inserting after the definition of “Land Act” the

following definitions —

“ “Mining Act 1904” means the Mining Act 1904 and

the amendments thereto and the regulations

made thereunder as in force on 31st

December, 1981;

“Mining Act 1978” means the Mining

Act 1978; ” ;



(e)



by deleting, in the definition of “Minister for Mines”,

“Mining Act” and substituting “Mining Act 1904 and

the Mining Act 1978”;



(f)



by inserting after the definition of “stockpile area” the

following definition —

“ “the Mining Lease” means the mining lease

referred to in Clause 7(1) hereof and includes

any renewal thereof and according to the



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Second Supplementary Agreement



requirements of the context shall describe the

land leased as well as the instrument by which

it is leased; ” ;

(g)



(2)



by inserting, in the paragraph commencing “Reference

in this Agreement to an Act”, after “Act”, where it

first occurs, the following — “other than the Mining

Act 1904”.



Clause 3 —

(a)



subclause (4) —

by deleting “Mining Act” and substituting “Mining

Act 1904”;



(b)



by inserting the following subclause —





(3)



(5)



The temporary reserve and the rights of

occupancy in respect thereof referred to

in this Clause shall, subject to this

Agreement, continue in force under the

Mining Act 1904 as though that Act had

not been repealed. ” .



Clause 5 —

subclause 10 paragraph (b) —

by deleting “Mining Act” wherever it occurs and substituting

“Mining Act 1978”.



(4)



Clause 7 —

(a)



subclause (1) —

by deleting subclause (1) and the marginal note

thereto and substituting the following —





The Mining Lease 2

(1)



As at 11 Sep 2010



The Joint Venturers having made

application to the State for a mineral lease

of certain land within the area delineated in

blue on the plan marked “X” and initialled

by or on behalf of the parties hereto for



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Alumina Refinery (Worsley) Agreement Act 1973

Third Schedule

Second Supplementary Agreement



identification, the State shall cause to be

granted to the Joint Venturers a mining

lease of such of the land shown coloured

yellow on the Department of Mines

Original Plan 854 (recorded in the

Department of Mines, Perth) as is Crown

land and such of the land within the blue

boundary shown on the said Original

Plan 854 as is left uncoloured and

comprises privately owned land in respect

of which the mineral rights are reserved to

the Crown or Crown land (notwithstanding

that the surveys of the said lands have not

been completed but subject to corrections

to accord with survey when completed) for

the mining of bauxite and the Mining

Lease shall be so granted under and (except

to the extent that the provisions of the

Mining Act 1978 are inconsistent with this

Agreement) subject to the Mining Act 1978

but in the form set out in the Second

Schedule hereto. ” ;

(b)



subclause (2) —

by deleting subclause (2) and the marginal note

thereto and substituting the following —





Expenditure conditions 2

(2)



(c)



subclause (6) —

(i)



page 88



During the currency of this Agreement

and subject to compliance with their

obligations hereunder the Joint Venturers

shall not be required to comply with the

expenditure conditions imposed by or

under the Mining Act 1978 in regard to

the Mining Lease. ” ;

by deleting “Mining Act” and

substituting “Mining Act 1978”;



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Third Schedule

Second Supplementary Agreement



(ii)



(d)



by deleting “the date of receipt of the

application referred to in subclause (1) of

this Clause” and substituting “the date of

the grant thereof ”;



subclause (7) —

by deleting subclause (7) and the marginal note

thereto and substituting the following —





Further mining lease 2

(7)



As at 11 Sep 2010



Within the first six (6) months of the

twelve (12) months immediately

preceding the expiration of the second

renewed period of twenty-one (21) years

of the Mining Lease the Joint Venturers,

if the refinery is then being operated

pursuant to this Agreement, may give

notice to the State that they desire a

further mining lease under the Mining

Act 1978 for bauxite of the leased area or

of a part or parts thereof for a term of

twenty-one (21) years and the State shall

within six (6) months from its receipt of

that notice notify the Joint Venturers of

the terms and conditions upon which it is

prepared to grant notwithstanding the

provisions of the Mining Act 1978 such a

further mining lease of the leased area or

of a part or parts thereof (as the case may

be) and the Joint Venturers for a period

of three (3) months thereafter will have

the right to accept such further mining

lease on those terms and conditions and

for a period of two (2) years the State

shall not offer to grant a mining lease of

the leased area or any part thereof to any

person other than the Joint Venturers

which permits the mining of bauxite on

more favourable terms and conditions



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Alumina Refinery (Worsley) Agreement Act 1973

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Second Supplementary Agreement



than have been offered to the Joint

Venturers. ” ;

(e)



subclause (8) —

by deleting “The” and substituting “Subject to

Clause 7D hereof, the”;



(f)



subclause (9) —

(i)



paragraph (a) —

by deleting “section 151 of the Mining

Act” and substituting “section 32 of the

Mining Act 1978”;



(ii)



paragraph (b) subparagraph (ii) —

by deleting “sections 169 to 172

inclusive of the Mining Act” and

substituting “subsections (3), (5) and (6)

of section 123 and paragraph (b) of

subsection (1) of section 124 of the

Mining Act 1978”.



(5)



By inserting after Clause 7 the following clauses —

“ Minerals contained within bauxite 2

7A. (1) Without limiting the provisions of this

Agreement with respect to the production of associated

chemicals and by-products the Joint Venturers shall, subject to

the provisions of this Clause, have the right to extract from

bauxite mined hereunder, either prior to or at the same time as it

is processed into alumina, minerals (other than alumina)

contained within that bauxite.

(2) (a) The Joint Venturers shall not extract any

minerals pursuant to this Clause otherwise than in accordance

with a mode or modes of operations first approved by the

Minister.

(b) Any approval given by the Minister pursuant to this

subclause may be given subject to such conditions as the

Minister may reasonably determine.



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Alumina Refinery (Worsley) Agreement Act 1973

Third Schedule

Second Supplementary Agreement



(c) The Minister may before giving any approval pursuant

to this subclause require that the Joint Venturers first obtain the

approval of the State to a variation of the environmental review

and management programme.

(3) The Joint Venturers in respect of minerals extracted

pursuant to this Clause, shall pay to the State royalties at the

rates from time to time prescribed under the Mining Act 1978

and shall comply with the provisions of the Mining Act 1978

and regulations made thereunder with respect to the filing of

production reports and payment of royalties.

Leases for all minerals 2

7B. (1) Notwithstanding the existence of the Mining

Lease the Joint Venturers may mark out and apply for a mining

lease or mining leases in respect of any part of the Mining

Lease for all minerals subject to the provisions of the Mining

Act 1978 and, subject to subclause (2) of this Clause, the

Minister for Mines may grant such mining lease or mining

leases.

(2) No mining lease shall be granted pursuant to this

Clause without the prior approval of the Minister.

(3) In the event of the grant of a mining lease pursuant to

this Clause the land the subject thereof shall thereupon be

deemed to be excised from the Mining Lease.

Special conditions of mining lease 2

(4) A mining lease granted pursuant to this Clause shall in

addition to any covenants and conditions that may be prescribed

or imposed pursuant to the Mining Act 1978 be subject to the

following special conditions —



As at 11 Sep 2010



(a)



any mining of bauxite must be carried on by or

on behalf of the Joint Venturers subject to and

in accordance with this Agreement;



(b)



a breach by the Joint Venturers under the

mining lease shall be deemed to be a breach of

this Agreement;



(c)



the provisions of section 82(1)(d) of the Mining

Act 1978 shall be modified so that in respect of

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Alumina Refinery (Worsley) Agreement Act 1973

Third Schedule

Second Supplementary Agreement



bauxite but not other minerals the mining lease

may only be assigned or underlet in accordance

with Clause 20 of this Agreement;

(d)



the provisions of the Mining Act 1978 shall be

modified so that the Joint Venturers shall not be

obliged to pay royalties on bauxite mined from

the mining lease, where the Joint Venturers are

also liable for royalties on alumina produced

therefrom pursuant to subclause (10) of

Clause 5 of this Agreement.



Effect of termination of mining lease 2

7C. On the expiration or sooner determination of any

mining lease granted pursuant to Clause 7B hereof the land the

subject of that mining lease shall thereupon be deemed to be

part of the land in the Mining Lease and shall be subject to the

terms and conditions of the Mining Lease and this Agreement

(other than Clause 7B hereof ).

Modification of Mining Act 1978 2

7D. For the purpose of this Agreement in respect of any

land surrendered by the Joint Venturers to the State pursuant to

subclause (8) of Clause 7 hereof the Mining Act 1978 shall be

deemed to be modified by the substitution for paragraph (c) of

section 111 of the following paragraph —





page 92



(c)



a mining lease does not authorize the holder

thereof to work and mine —

(i)



the land in respect of which the

lease was granted for iron; or



(ii)



any portion of the land in respect

of which the lease was granted,

which portion has been

surrendered to the State pursuant

to subclause (8) of Clause 7 of the

agreement dated the 22nd day of

August, 1974 (the execution of

which was authorized pursuant to

section 3 of the Alumina Refinery

(Worsley Agreement Act 1973) as



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Second Supplementary Agreement



amended from time to time, for

bauxite, ” .

(6)



Clause 12 —

(a)



subclause (2) —

(i)



by inserting after “lease”, where it first

occurs, the following —





(ii)



by inserting after the paragraph

commencing “AND PROVIDED THAT

any easement licence or other right” the

following paragraph —





(b)



(over Crown land or other land as

the case may be) ” ;



AND PROVIDED THAT any

lease of Crown land required for

the purpose specified in

paragraph (a) of this subclause

may be granted, notwithstanding

the provisions of any Act, under

the Land Act but subject to the

rights of the lessee under Mineral

Lease 1.SA ” ;



subclause (4) —

by deleting “mineral lease” and substituting “mining

lease”;



(c)



subclause (6) —

by inserting after “therewith” the following —





(7)



and except as to any part the subject of a mining

lease granted pursuant to Clause 7B hereof ” .



Clause 18 —

(a)



by inserting after “implied in” the following —





As at 11 Sep 2010



the Mining Act 1978 or ” ;



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Third Schedule

Second Supplementary Agreement



(b)



by inserting after “hereunder” the following —





(8)



with respect to bauxite ” .



The Second Schedule is deleted and the following Schedule

substituted —





SECOND SCHEDULE

Western Australia

Mining Act 1978

Alumina Refinery (Worsley) Agreement Act 1973

Mining Lease

Mining Lease No.

The Minister for Mines a corporation sole established by the

Mining Act 1978 with power to grant leases of land for the

purposes of mining in consideration of the rents hereinafter

reserved and of the covenants on the part of the Lessee

described in the First Schedule to this lease and of the

conditions hereinafter contained and pursuant to the Mining

Act 1978 (except as otherwise provided by the Agreement

(hereinafter called “the Agreement”) described in the Second

Schedule to this lease) hereby leases to the Lessee the land

more particularly delineated and described in the Third

Schedule to this lease for bauxite (including special grade

bauxite as defined in the Agreement) subject however to the

exceptions and reservations set out in the Fourth Schedule to

this lease and to any other exceptions and reservations which

subject to the Agreement are by the Mining Act 1978 and by

any Act for the time being in force deemed to be contained

herein to hold to the Lessee for a term of 21 years

commencing on the date set out in the Fifth Schedule to this

lease with rights of renewal for two consecutive further

periods of 21 years (subject to sooner determination of the

said term upon cessation or determination of the Agreement)

upon and subject to such of the provisions of the Mining

Act 1978 except as otherwise provided by the Agreement as

are applicable to mining leases granted thereunder and to the

terms covenants and conditions set out in the Agreement and

to the covenants and conditions herein contained or implied



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Second Supplementary Agreement



and any further conditions or stipulations set out in the Sixth

Schedule to this lease the Lessee paying therefor the rents

and royalties as provided in the Agreement PROVIDED

ALWAYS that this lease and any renewal thereof shall not

be determined or forfeited otherwise than in accordance with

the Agreement.

In this lease —





“Lessee” includes the respective successors and

permitted assigns of each Lessee.







If the Lessee be more than one the liability of

the Lessee hereunder shall be joint and several.







Reference to an Act includes all amendments to

that Act and to any Act passed in substitution

therefor or in lieu thereof and to the regulations

and by-laws for the time being in force

thereunder.

FIRST SCHEDULE.



(name address and description of the Lessee)

BHP MINERALS LIMITED a company incorporated under

the Companies Act 1961 of Western Australia and having its

registered office at 37 St. George’s Terrace, Perth in the said

State, REYNOLDS AUSTRALIA ALUMINA, LTD. a

company incorporated under the laws in force in the State of

Delaware in the United States of America and having its

registered office in the State of Western Australia at

77 St. George’s Terrace, Perth, THE SHELL COMPANY

OF AUSTRALIA LIMITED a company incorporated in the

State of Victoria and having its principal office in the State

of Western Australia at 200 St. George’s Terrace, Perth and

KOBE ALUMINA ASSOCIATES (AUSTRALIA) PTY.

LIMITED a company incorporated in the State of Western

Australia and having its registered office at 5 Mill Street,

Perth.



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Alumina Refinery (Worsley) Agreement Act 1973

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Second Supplementary Agreement



SECOND SCHEDULE.

(the agreement)

The Agreement dated the 22nd day of August, 1974, (the

execution of which by the State was authorised pursuant to

section 3 of the Alumina Refinery (Worsley) Agreement

Act 1973) and any amendments to that Agreement.

THIRD SCHEDULE.

Description of land (subject to the provisions of the

Agreement as to survey):

1.



So much of the land shown coloured yellow on

the Department of Mines Original Plan 854

(recorded in the Department of Mines, Perth) as

is Crown land (as defined in the Agreement).



2.



So much of the land within the blue boundary

shown on the said Original Plan 854 as is left

uncoloured and comprises —

(a)



privately owned land in respect of

which the mineral rights are

reserved to the Crown; or



(b)



Crown land (as defined in the

Agreement).



Locality:

Mineral Field:



Area, etc.:

FOURTH SCHEDULE.



All petroleum as defined in the Petroleum Act 1967 on or

below the surface of the land the subject of this lease is

reserved to the Crown in right of the State of Western

Australia with the right of the Crown in right of the State of

Western Australia and any person lawfully claiming

thereunder or otherwise authorised to do so to have access to

the land the subject of this lease for the purpose of searching

for and for the operations of obtaining petroleum (as so

defined) in any part of the land.

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Second Supplementary Agreement



FIFTH SCHEDULE.

(Date of commencement of the lease).

SIXTH SCHEDULE.

(Any further conditions or stipulations).

In witness whereof the Minister for Mines has affixed

his seal and set his hand hereto this

day of

19 . ” .

4.

Any reference in the principal agreement (as amended by this

Agreement) to “mineral lease” shall, with the exception of the reference in

Clause 7(1), be read and construed as a reference to “the Mining Lease”.

IN WITNESS WHEREOF this Agreement has been executed by or on behalf of

the parties hereto the day and year first hereinbefore mentioned.



SIGNED by the said THE

HONOURABLE RAYMOND JAMES

O’CONNOR, M.L.A., in the presence

of —



R. O’CONNOR.



PETER JONES.

MINISTER FOR RESOURCES DEVELOPMENT



THE COMMON SEAL of BHP

MINERALS LIMITED was hereunto

affixed by authority of the Board of

Directors



[C.S.]



DIRECTOR D. S. ADAM.

SECRETARY G. D. STEPHENSON.



As at 11 Sep 2010



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Alumina Refinery (Worsley) Agreement Act 1973

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EXECUTED by REYNOLDS

AUSTRALIA ALUMINA, LTD. by its

duly appointed Attorney BERNARD

FLYNN ARMBRUST in the presence

of —

M. EL-ANSARY.

Project Manager

Reynolds Australia Mines.



THE COMMON SEAL of THE SHELL

COMPANY OF AUSTRALIA

LIMITED was hereto affixed in

accordance with its Articles of

Association in the presence of —



REYNOLDS AUSTRALIA

ALUMINA, LTD.

By its Attorney

BERNARD FLYNN

ARMBRUST.

Countersigned:

W. M. SHIELDS.



[C.S.]



DOCUMENT No.

287

DIRECTOR B. L. KELLY.

AUTHORISED SIGNATORY PHILIP HISLOP.



THE COMMON SEAL of KOBE

ALUMINA ASSOCIATES

(AUSTRALIA) PTY. LIMITED

was hereto affixed by authority of the

Directors in the presence of —



[C.S.]



DIRECTOR SHINTARO KAHARU.

SECRETARY T. UJI-IE.

[Third Schedule inserted: No. 95 of 1982 s. 6.]



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Fourth Schedule — Third Supplementary Agreement

[s. 6B]

[Heading amended: No. 19 of 2010 s. 4.]

THIS AGREEMENT is made the 24th day of September 1992

BETWEEN:

THE HONOURABLE CARMEN MARY LAWRENCE, B.Psych., Ph.D.,

M.L.A., Premier of the State of Western Australia, acting for and on behalf of

the Government of the said State and its instrumentalities (hereinafter called

“the State”) of the one part

AND

REYNOLDS AUSTRALIA ALUMINA, LTD. A.R.B.N. 009 473 492 a

corporation incorporated under the laws in force in the State of Delaware in the

United States of America and having its registered office in the State of Western

Australia at 30th Floor, 77 St George’s Terrace, Perth, THE SHELL

COMPANY OF AUSTRALIA LIMITED A.C.N. 004 610 459 a company

incorporated in the State of Victoria and having its registered office at Level 18,

1 Spring Street, Melbourne, KOBE ALUMINA ASSOCIATES

(AUSTRALIA) PTY. LIMITED A.C.N. 008 907 524 a company incorporated

in the State of Western Australia and having its registered office at 7th Floor,

26 St. George’s Terrace, Perth and NISSHO IWAI ALUMINA PTY.

LIMITED A.C.N. 009 309 344 a company incorporated in the State of Western

Australia and having its registered office at Level 5, Capita Building, 5 Mill

Street, Perth (hereinafter collectively called “the Joint Venturers” in which term

shall be included their respective successors and permitted assigns and

appointees) of the other part.

WHEREAS:

A.



The State and the Joint Venturers (pursuant to certain deeds of

assignment dated the 7th day of February, 1980 and the 31st day of May,

1988) are now the parties to the agreement dated the 22nd day of August,

1974 (the execution of which by the State was authorised pursuant to

section 3 of the Alumina Refinery (Worsley) Agreement Act 1973) as

varied by an agreement dated the 18th day of April, 1978 approved and

ratified by the Alumina Refinery (Worsley) Agreement Act Amendment

Act 1978 and as further varied by an agreement dated the 28th day of

May, 1981 and as further varied by an agreement dated the 21st day of



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October, 1982 approved and ratified by the Alumina Refinery (Worsley)

Agreement Amendment Act 1982 and as further varied by an agreement

dated the 25th day of July, 1983 (which agreement as so varied is

hereinafter referred to as “the Principal Agreement”).

B.



The parties desire to vary the Principal Agreement.



NOW THIS AGREEMENT WITNESSES —

1.



Unless the context otherwise requires the words and expressions used in

this Agreement have the same meanings respectively as they have in and

for the purpose of the Principal Agreement.



2.



The provisions of this Agreement shall not come into operation until a

Bill to approve and ratify this Agreement is passed by the Legislature of

the State of Western Australia and comes into operation as an Act.



3.



The Principal Agreement is hereby varied as follows :

(1)



Clause 5(2) —

by inserting after “refinery”, in the second place where it occurs,

the following —





(2)



and to be exported from the State of Western Australia



”.



Clause 5(3)(c) —

by deleting paragraph (c) and substituting the following

paragraph —





(c)



from and including 1 July 1991 pay to the

Bunbury Port Authority for or in connection

with the Joint Venturers’ use of the port of

Bunbury such port charges fees dues levies

and other imposts as are payable pursuant to

legislation applicable to the port or

regulations made thereunder PROVIDED

THAT —

(i)



page 100



except as specified in

subparagraph (ii) of this paragraph, no

charges other than Port Infrastructure

Charges as set out in Table 3 in Part 1

of Schedule 2 to the Bunbury Port

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Third Supplementary Agreement



Authority Regulations 1962 as

amended from time to time or other

charges payable pursuant to the said

regulations in lieu of or in substitution

for such Port Infrastructure Charges

shall be payable in respect of cargoes

passing over the wharf at Berth A or,

if the Joint Venturers construct a

wharf at Berth B, over that wharf; and

(ii)



(3)



nothing herein shall be taken to imply

any exemption from the payment of

any port charges fees dues levies or

other imposts that would normally be

payable by ships using the port

of Bunbury;



”.



Clause 5(10)(a) —

(a)



by deleting the marginal note thereto and substituting the

following —





(b)



Royalties on Alumina and Bauxite after

1 January 1989



”;



by deleting subparagraph (i) and substituting the

following —





(i)



pay to the State a royalty on all

alumina produced at the refinery from

bauxite the property of the Crown

during each quarterly period ending

on the last day of March June

September and December in each year

commencing from and including the

quarter beginning 1 January 1989

calculated in accordance with the

following formula —

R = RF x AP x TS

Where:



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R=



amount of royalty payable to

the State for the quarter;



RF =



1.06



/100 for the period

commencing on 1 January 1989

and ending on 31 July 1991,

and 1.65/100 thereafter;



AP = the average alumina export

price per tonne from Australia

for the preceding four quarters

as released by the Australian

Bureau of Statistics in

Harmonised Trade Access

System Reports (HTRACCS

Reports) under Australian

Harmonised Export Commodity

Classification Number

28182000 (or future

equivalent);

TS = the number of tonnes of

alumina shipped sold or

otherwise disposed of by the

Joint Venturers during the

quarter.

The above formula shall be subject to

review by the parties if the Australian

Bureau of Statistics ceases to release

the export alumina price required to

determine the factor “AP” or makes a

material change in the method of

calculating the said export alumina

price from the method used in respect

of the month of March 1990. The

purpose of any such review will be to

produce as far as possible a royalty

level similar to that that would have

applied if an export alumina price had

continued to be released using the

method of calculation used by the

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Australian Bureau of Statistics in

respect of the month of March 1990.

In the event of any dispute between

the parties arising from any review

under this subparagraph the matter

shall be referred to arbitration hereunder;

(c)



in subparagraph (ii) by deleting “referred to in

subparagraph (i) of paragraph (a) of this subclause” and

substituting the following —





(4)



”;



ending on 31 July 1991 ”.



Clause 5(10)(b) —

by deleting paragraph (b) and the marginal note thereto and

substituting the following —





(5)



(b)



from and including 1 August 1991 pay to

the State on all special grade bauxite the

property of the Crown mined by the Joint

Venturers pursuant to this Agreement, a

royalty at the relevant rate specified in the

regulations under the Mining Act 1978;



”.



By inserting after Clause 5C the following clause —





As at 11 Sep 2010



5D.



The royalty payable under this Agreement in

respect of alumina shall be subject to review

by the parties hereto as at 31 July 1998 and

thereafter as at the last day of each succeeding

period of seven years PROVIDED THAT in

any review the parties shall have regard to the

average of the rates of royalty in respect of

bauxite and alumina paid in Australia for the

preceding twelve months having regard also to

such matters as the respective tonneages mined,

the degree of processing required, the alumina

content and other characteristics of the bauxite.



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Third Supplementary Agreement



(6)



Clause 7 —

(a)



by deleting subclauses (4) and (5) and substituting the

following —





(4)



Rental under the Mining Lease shall

be paid to the State yearly in advance

and for the first seven years of the

lease shall be calculated at the rate of

one dollar ninety-three cents ($1.93)

per annum for every square kilometre

contained in the leased area.



(5)



After the expiration of the first seven

years from the granting of the Mining

Lease and at the expiration of every

seven year period of the lease

thereafter the rental for the lease shall

be reviewed. The rental for each such

period after the first seven years shall

be calculated separately in accordance

with the following formula —

B x AP/$61 = R

Where:

B=



the rental mentioned in

subclause (4) of this Clause;



AP = the average alumina export price

per tonne from Australia for the

four quarters in the year to and

including the 31st day of March

immediately preceding the date

of review as released by the

Australian Bureau of Statistics in

Harmonised Trade Access

System Reports (HTRACCS

Reports) under Australian

Harmonised Export Commodity

Classification Number 28182000

(or future equivalent);

R=

page 104



the new rental;



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PROVIDED THAT —



(b)



(ii)



in no case shall the adjusted

rental be less than one dollar

ninety-three cents ($1.93) per

square kilometre.



”;



kilometre or residual part of a square kilometre



”;



by inserting after subclause (14) the following subclause —





As at 11 Sep 2010



the provisions of

clause 5(10)(a)(i) of this

Agreement relating to review of

the formula therein contained

shall apply mutatis mutandis to

the above formula;



in subclause (8), by deleting “mile or residual part of a

square mile” and substituting the following —





(c)



(i)



(15) Notwithstanding the provisions of the

Mining Act 1978 the Joint Venturers

may from time to time during the

currency of this Agreement apply to

the Minister for areas held by the

Joint Venturers under an exploration

licence or mining lease granted under

the Mining Act 1978 to be included in

the Mining Lease. The Minister shall

confer with the Minister for Mines in

regard to any such application and if

they approve the application the

Minister for Mines shall upon the

surrender of the relevant mining

tenement include the area the subject

thereof in the Mining Lease subject to

such of the conditions of the

surrendered mining tenement as

the Minister for Mines determines. In

respect of any such land:



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Third Supplementary Agreement



(7)



(a)



the land shall in addition to any

conditions so determined by the

Minister for Mines be subject to

the same terms covenants and

conditions as apply to the

Mining Lease;



(b)



the Minister for Mines may

make such apportionment of

rents as may be necessary in

connection therewith;



(c)



the land may be included

notwithstanding that the survey

of the land has not been

completed but subject to

correction to accord with the

survey when completed at the

Joint Venturers’ expense.



”.



Clause 7B —

by inserting after subclause (1a) the following subclause —





(1b) (a)



(b)



page 106



If any of the Joint Venturers assigns

the whole or any part of its rights

under this Agreement in accordance

with Clause 20 hereof and such

assignment takes effect before the

date of grant of a mining lease or

mining leases applied for pursuant to

this Clause then the interest of the

assigning Joint Venturer in any

application for such mining lease shall

be held on trust for the assignee

pending the grant of such mining

lease.

Upon a grant of a mining lease referred

to in paragraph (a) of this subclause the

assigning Joint Venturer shall forthwith

transfer its title to and interest in the

mining lease to the assignee and such

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mining lease shall be deemed to be

granted pursuant to this Clause.

(8)



”.



Clause 7C —

by deleting “hereof)” and substituting the following —





(9)



”.



hereof unless the Minister otherwise agrees)



Clause 7D —

by deleting Clause 7D and substituting the following clause —





7D.



(1)



Nothing in this Agreement shall

prohibit the Joint Venturers from

marking out and applying for a

mining lease or mining leases for all

minerals including bauxite subject to

the provisions of the Mining Act 1978

in respect of:

(a)



land surrendered by the Joint

Venturers to the State pursuant

to subclause (8) of Clause 7

hereof; and



(b)



land which has been excised

from the Mining Lease pursuant

to Clause 18 hereof



and subject to subclause (2) of this

Clause the Minister for Mines may

grant such mining leases.



As at 11 Sep 2010



(2)



No mining lease shall be granted

pursuant to this Clause without the

prior approval of the Minister.



(3)



A mining lease granted pursuant to

this Clause shall, in addition to any

covenants or conditions that may be

prescribed or imposed pursuant to the

Mining Act 1978, be subject to the

following special conditions:



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(a)



any mining of bauxite must be

carried on by or on behalf of

the Joint Venturers subject to

and in accordance with this

Agreement;



(b)



the provisions of

section 82(1)(d) of the

Mining Act 1978 shall be

modified so that in respect of

bauxite but not other minerals

the mining lease may only be

assigned or underlet in

accordance with Clause 20

hereof; and



(c)



the Joint Venturers shall be liable

to pay royalties to the State in

accordance with subclause (10)

of Clause 5 hereof on alumina

produced from bauxite mined from

the mining lease and the provisions

of the Mining Act 1978 shall be

modified accordingly so that the

Joint Venturers shall not be obliged

to pay royalties on bauxite mined

from the mining lease where that

bauxite is so processed into alumina

at the refinery.



”.



(10) Clause 9(2) —

(a)



paragraph (a) —

(i)



by inserting after “such road” the following —





page 108



intersecting with roads used or

capable of use by the public or which

the public are authorised or permitted

to use by law or intersecting with

railways



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Alumina Refinery (Worsley) Agreement Act 1973

Fourth Schedule

Third Supplementary Agreement



(ii)



by deleting the following —





(b)



at all intersections with public roads

and railways



”;



paragraph (b) —

by inserting after “alignments” and also after “any road” the

following —





on Crown land



”.



(11) Clause 12A —

by deleting “Arbitration Act 1895” and substituting the

following —





Commercial Arbitration Act 1985 and

notwithstanding section 20(1) of that Act each party

may be represented before the arbitrators by

a duly qualified legal practitioner or other

representative



”.



(12) Clause 12B —

by deleting paragraph (a) and substituting the following —





(a)



the deletion of subsections (2), (3) and (4)

of section 25; and



”.



(13) By deleting Clause 18 and substituting the clause set forth in the

Schedule to this Agreement.

(14) Clause 28 —

by deleting “Arbitration Act 1895” and substituting the

following —





As at 11 Sep 2010



Commercial Arbitration Act 1985 and

notwithstanding section 20(1) of that Act each

party may be represented before the arbitrators by

a duly qualified legal practitioner or other

representative



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Alumina Refinery (Worsley) Agreement Act 1973

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THE SCHEDULE

18.



(1)



Notwithstanding anything contained or implied in this Agreement

or in the Mining Lease or the Mining Act 1978 mining tenements

may subject to the provisions of this Clause be granted to or

registered in favour of persons other than the Joint Venturers under

the Mining Act 1978 or pursuant to the Second Schedule to that Act

in respect of the area subject to the Mining Lease (including lands

deemed to be part of the land in the Mining Lease pursuant to

Clause 7C or subclause (5) or (6) of this Clause) except that part

shown coloured red on the plan marked “Y” initialled by or on

behalf of the parties hereto for the purposes of identification and

except any part of the land shown coloured yellow on that plan

which becomes deemed to be part of the land in the Mining Lease,

unless the Minister for Mines determines that such grant or

registration is likely unduly to prejudice or interfere with the

current or prospective operations of the Joint Venturers hereunder

with respect to bauxite assuming the taking by the Joint Venturers

of reasonable steps to avoid the prejudice or interference or that

there is a reasonable probability that such a grant or registration

would materially reduce the quantity of economically extractable

bauxite available to the Joint Venturers.



(2)



A mining tenement granted or registered pursuant to this Clause

shall not confer any right to mine or otherwise obtain rights to

bauxite on the tenement.



(3)



(a)



In respect of any application for a mining tenement whether

made under the Mining Act 1904 or the Mining Act 1978 in

respect of an area the subject of the Mining Lease the

Minister for Mines shall consult with the Minister and the

Joint Venturers with respect to the significance of bauxite

deposits in, on or under the land the subject of the

application and any effect the grant of a mining tenement

pursuant to such application might have on the current or

prospective bauxite operations of the Joint Venturers under

this Agreement.



(b)



Where the Minister for Mines, after taking into account any

matters raised by the Minister or the Joint Venturers

determines that the grant or registration of the application is

likely to have the effect on the operations of the Joint



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Venturers or the bauxite referred to in subclause (1) of this

Clause, he shall, by notice served on the Warden to whom

the application was made, refuse the application.



(4)



(c)



Before making a determination pursuant to paragraph (b) of

this subclause the Minister for Mines may request the

Warden to hear the application and any objections thereto

and as soon as practicable after the hearing of the application

to report to the Minister for Mines on the application and the

objections and the effect on the current or prospective

operations of the Joint Venturers or the quantity of

economically extractable bauxite that a grant of the

application might have.



(a)



Except as provided in subclause (3) of this Clause a Warden

shall not hear or otherwise deal with an application for a

mining tenement in respect of an area the subject of the

Mining Lease unless and until the Minister for Mines has

notified him that it is not intended to refuse the application

pursuant to subclause (3) of this Clause. Following such

advice to the Warden the application shall be disposed of

under and in accordance with the Mining Act 1978 or

pursuant to the Second Schedule to that Act as the case may

require save that where the Warden has heard the application

and objections thereto pursuant to subclause (3) of this

Clause, the application may be dealt with by the Warden

without further hearing.



(b)



The Joint Venturers may exercise in respect of any

application heard by the Warden any right that they may

have under the Mining Act 1978 to object to the granting of

the application.



(c)



Any mining tenement granted pursuant to such application

shall, in addition to any covenants and conditions that may

be prescribed or imposed, be granted subject to such

conditions as the Minister for Mines may determine having

regard to the matters the subject of the consultations with the

Minister and the Joint Venturers pursuant to subclause (3)(a)

of this Clause and any matters raised by the Joint Venturers

before the Warden.



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(5)



(a)



On the grant of any mining tenement over land the subject of

the Mining Lease on or after the date of the agreement

ratified by the Alumina Refinery (Worsley) Agreement

Amendment Act 1992 (whether the application for the

mining tenement was made before or after that date) the land

the subject of the mining tenement shall thereupon be

deemed excised from the Mining Lease (with abatement of

future rent in respect of the area excised but without any

abatement of rent already paid or of rent which has become

due and has not been paid in advance).



(b)



If the Joint Venturers apply —

(i)



during the period of application for or during the term

of any mining tenement referred to in paragraph (a) of

this subclause; or



(ii)



if that tenement is —

(A)



a prospecting licence or exploration licence and

a substitute tenement is granted in respect

thereof pursuant to an application made under

section 49 or section 67 of the Mining Act 1978;

or



(B)



a mining tenement granted pursuant to the

Second Schedule to the Mining Act 1978 and a

substitute title is granted pursuant to that

Schedule,



during the term of the substitute title

to the Minister to have the land the subject of such mining

tenement or substitute title as the case may be revert to the

Mining Lease on the termination of the mining lease or

substitute title then notwithstanding anything contained in

the Mining Act 1978 on such termination the land the subject

of such lease or title shall thereupon be deemed to be part of

the land in the Mining Lease (with appropriate adjustment of

rental) and shall be subject to the terms and conditions of the

Mining Lease and this Agreement.

(6)



page 112



If a mining lease granted over land that was at any time

subject to the Mining Lease is transferred to the Joint

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Venturers pursuant to the provisions of the Mining Act 1978

and the Minister approves that the provisions of this

subclause shall apply to that mining lease then, from the date

of such approval, that mining lease shall be deemed to be a

mining lease granted pursuant to Clause 7B hereof in respect

of all minerals including bauxite and, without limitation,

Clause 7C hereof shall apply to such mining lease upon the

expiration or sooner determination thereof.

IN WITNESS WHEREOF this Agreement has been executed by or on behalf of

the parties hereto the day and year first hereinbefore mentioned.



SIGNED by the said THE

HONOURABLE CARMEN

MARY LAWRENCE in the

presence of:



)

)

)

)



Carmen Lawrence



MINISTER FOR

STATE DEVELOPMENT



Ian Taylor



EXECUTED by REYNOLDS

AUSTRALIA ALUMINA, LTD.

by its duly appointed attorney John

David Cooper McLean and

countersigned by Richard Dennis

Gee, both in the presence of:



)

)

)

)

)

)



J Fornero

..........................................

Signature of Witness

Name of Witness



Judith Fornero



Address of Witness



Lot 82 Goslin Street

Sawyers Valley



As at 11 Sep 2010



REYNOLDS AUSTRALIA

ALUMINA, LTD.

By its attorney

J McLean

.....................................................

Signature

R Gee

....................................................

Countersigned



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Alumina Refinery (Worsley) Agreement Act 1973

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THE COMMON SEAL of THE SHELL

COMPANY OF AUSTRALIA LIMITED

was hereunto affixed by authority of the

Directors in the presence of:

Director



B Kelly



Secretary



B Pascoe



THE COMMON SEAL of KOBE

ALUMINA ASSOCIATES

(AUSTRALIA) PTY. LIMITED was

hereunto affixed by authority of the

Directors in the presence of:

Director



P Fromson



Secretary



T Ueno



)

)

)

)



)

)

)

)

)



EXECUTED by NISSHO IWAI

ALUMINA PTY. LIMITED by

its duly appointed attorney

KOBE ALUMINA ASSOCIATES

(AUSTRALIA) PTY. LIMITED

which affixed its common

seal by the authority of the

Directors in the presence of:

Director



P Fromson



Secretary



T Ueno



[C.S.]



[C.S.]



NISSHO IWAI

ALUMINA LIMITED

By its attorney

[C.S.]



[Fourth Schedule inserted: No. 63 of 1992 s. 6.]



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Fifth Schedule — Fourth Supplementary Agreement

[s. 6C]

[Heading amended: No. 19 of 2010 s. 4.]

THIS AGREEMENT is made the 26 day of February 1994

BETWEEN:

THE HONOURABLE RICHARD FAIRFAX COURT, B.Com., M.L.A.,

Premier of the State of Western Australia, acting for and on behalf of the

Government of the said State and its instrumentalities (hereinafter called “the

State”) of the one part

AND

REYNOLDS AUSTRALIA ALUMINA, LTD. A.R.B.N. 009 473 492 a

corporation incorporated under the laws in force in the State of Delaware in the

United States of America and having its registered office in the State of Western

Australia at 8th Floor, Griffin Centre, 28 The Esplanade, Perth, THE SHELL

COMPANY OF AUSTRALIA LIMITED A.C.N. 004 610 459 a company

incorporated in the State of Victoria and having its registered office at

Level 18, 1 Spring Street, Melbourne, KOBE ALUMINA ASSOCIATES

(AUSTRALIA) PTY. LIMITED A.C.N. 008 907 524 a company incorporated

in the State of Western Australia and having its registered office at 7th Floor,

26 St. George’s Terrace, Perth and NISSHO IWAI ALUMINA PTY.

LIMITED A.C.N. 009 309 344 a company incorporated in the State of Western

Australia and having its registered office at Level 5, Capita Centre, 5 Mill

Street, Perth (hereinafter collectively called “the Joint Venturers” in which term

shall be included their respective successors and permitted assigns and

appointees) of the other part.

WHEREAS:

A.



The State and the Joint Venturers (pursuant to certain deeds of

assignment dated the 7th day of February, 1980 and the 31st day of May,

1988) are now the parties to the agreement dated the 22nd day of August,

1974 (the execution of which by the State was authorised pursuant to

section 3 of the Alumina Refinery (Worsley) Agreement Act 1973) as

varied by an agreement dated the 18th day of April, 1978 approved and

ratified by the Alumina Refinery (Worsley) Agreement Act Amendment

Act 1978 and as further varied by an agreement dated the 28th day of

May, 1981 and as further varied by an agreement dated the 21st day of



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Alumina Refinery (Worsley) Agreement Act 1973

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Fourth Supplementary Agreement



October, 1982 approved and ratified by the Alumina Refinery (Worsley)

Agreement Amendment Act 1982 and as further varied by an agreement

dated the 25th day of July, 1983 and as further varied by an agreement

dated the 24th day of September, 1992 approved and ratified by the

Alumina Refinery (Worsley) Agreement Amendment Act 1992 (which

agreement as so varied is hereinafter referred to as “the Principal

Agreement”).

B.



The parties desire to vary the Principal Agreement.



NOW THIS AGREEMENT WITNESSES —

1.



Unless the context otherwise requires the words and expressions used in

this Agreement have the same meanings respectively as they have in and

for the purpose of the Principal Agreement.



2.



The provisions of this Agreement shall not come into operation until a

Bill to approve and ratify this Agreement is passed by the Legislature of

the State of Western Australia and comes into operation as an Act.



3.



The Principal Agreement is hereby varied by inserting after Clause 12B

the following clause —

“12C. (1) The Joint Venturers may in accordance with the provisions

of this Clause operate the conveyor constructed by them

pursuant to Clause 5(2)(a) hereof for the transport of bauxite

to the refinery between the points marked A and B on the

plan marked Z (“Plan Z”), initialled by or on behalf of the

parties hereto for the purposes of identification, at all times

notwithstanding any provisions of the Environmental

Protection Act 1986 or any other Act or law or any

regulation, by-law or other exercise of statutory power

(whether by the State or any local or other authority) relating

to noise.

(2) The Joint Venturers shall operate the said conveyor so as to

ensure that the level of noise received at each of the

measurement points marked R, S, T and U on Plan Z as a

result of operation of the said conveyor for more than 90%

of any 15 minute period of operation is less than 60 dB LA

Slow (or such other level and/or measurement points and/or

measurement method as may be agreed between the Minister

and the Joint Venturers from time to time).



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Fourth Supplementary Agreement



(3) The Joint Venturers shall provide for the purposes of this

Clause appropriate measuring equipment approved by the

Minister and shall operate this equipment in accordance with

arrangements to be agreed between the Minister and the

Joint Venturers from time to time and shall report the results

thereof to the Minister at such times and in such format as

may be required by the Minister.

(4) If and whenever the level of noise received from the said

conveyor measured in accordance with subclause (2) of this

Clause exceeds or has exceeded the level referred to in that

subclause, the Minister may require the Joint Venturers to

take, or may take at the expense of the Joint Venturers such

steps as are appropriate to reduce the level of noise from the

said conveyor to the said level and/or to prevent any further

such occurrences (which may, in appropriate circumstances,

include the temporary suspension of operation of the said

conveyor).

(5) Notwithstanding the foregoing provisions of this Clause, the

Joint Venturers shall at all times take such steps as may be

reasonable to maintain and service the said conveyor or any

extension thereof so as to limit the noise caused by the

operation of the said conveyor and any extension thereof.

(6) Notwithstanding any right or cause of action vested in or

available to or which might otherwise be vested in or

available to any person, no right or claim (including, without

limitation, any right of abatement or any claim for damages

or an injunction) shall lie against the Joint Venturers or their

agents employees officers or contractors by reason of any

loss of enjoyment or amenity value, or by reason of any

change in the aesthetic environment, alleged to be

occasioned by noise caused by the operation of the said

conveyor entering any land nor shall the Joint Venturers be

liable to pay compensation for, or in respect of any damage

attributable to, such noise.

(7) (a)



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If the Joint Venturers at any time during the currency

of this Agreement desire to extend the conveyor

beyond the point marked B on Plan Z and to have the

foregoing provisions of this Clause apply to the

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Alumina Refinery (Worsley) Agreement Act 1973

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Fourth Supplementary Agreement



extension, they shall submit their proposals for the

extension to the Minister and provide the Minister

with such information as to the nature and operation

of the proposed extension to the conveyor as the

Minister may reasonably require.

(b)



Within two months of the Minister receiving all

information reasonably required by him or her under

paragraph (a) of this subclause, subject to:

(i)



the implementation of the proposals being

approved under Part IV of the Environmental

Protection Act 1986 by the Minister responsible

for the administration of that Act in accordance

with paragraph (d) of this subclause; and



(ii)



the equipment to be used in the proposed

extension to the conveyor being of a standard

which will emit noise at a level less than or

equal to the existing conveyor,



the Minister shall approve amendments to Plan Z in

accordance with the proposals to show the route of the

extension to the conveyor, subject to such conditions

as the Minister may reasonably require, provided that

the Minister may not impose any conditions which are

unrelated to the mitigation of noise from the proposed

extension to the conveyor or which are more onerous

than the conditions applying to the existing conveyor.



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(c)



Where the Minister approves an amendment of Plan Z

pursuant to paragraph (b) of this subclause, the

provisions of subclauses (1) to (6) of this Clause shall

thenceforth apply to the conveyor as shown on the

amended Plan Z.



(d)



In relation to any proposals referred to in

paragraph (b)(i) of this subclause the Minister

responsible for the administration of the

Environmental Protection Act 1986 shall not refuse

approval for the implementation of the said proposals

based in whole or in part on any ground which relates

to noise emissions from the proposed extension to the

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Alumina Refinery (Worsley) Agreement Act 1973

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Fourth Supplementary Agreement



conveyor or grant that approval subject to any

condition which relates to such noise emissions.”.

4.



Clause 17 of the Principal Agreement is hereby varied by deleting

“Nothing” and substituting the following —

“Subject to Clause 12C hereof, nothing”.



IN WITNESS WHEREOF this Agreement has been executed by or on behalf of

the parties hereto the day and year first hereinbefore mentioned.



SIGNED by the said THE

HONOURABLE RICHARD

FAIRFAX COURT in the presence of:



)

)

)



R F Court



MINISTER FOR RESOURCES DEVELOPMENT

Colin Barnett



EXECUTED by REYNOLDS

AUSTRALIA ALUMINA, LTD. by

its duly appointed attorney John David

Cooper McLean and countersigned by

Richard Dennis Gee, both in the

presence of:

G Faliti

___________________

Signature of Witness



)

)

)

)

)

)



REYNOLDS AUSTRALIA

ALUMINA, LTD.

By its attorney

J McLean

_________________

Signature

R Gee

_________________

Countersigned



Name of Witness

GIUSEPPINA FALITI

Address of Witness

3/9 THE ESPLANADE

S. PERTH WA 6151



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Alumina Refinery (Worsley) Agreement Act 1973

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Fourth Supplementary Agreement



THE COMMON SEAL of THE

SHELL COMPANY OF

AUSTRALIA LIMITED was hereunto

affixed by authority of the Directors in

the presence of:

Director



I R Freer



Secretary



B H Pascoe



THE COMMON SEAL of KOBE

ALUMINA ASSOCIATES

(AUSTRALIA) PTY. LIMITED was

hereunto affixed by authority of the

Directors in the presence of:

Director



T Ueno



Secretary



J A Jansen



EXECUTED by NISSHO IWAI

ALUMINA PTY. LIMITED by its

duly appointed attorney KOBE

ALUMINA ASSOCIATES

(AUSTRALIA) PTY. LIMITED which

affixed its common seal by the

authority of the Directors in

the presence of:

Director



T Ueno



Secretary



J A Jansen



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)

)

)

)

)



[C.S.]



)

)

)

)

)



NISSHO IWAI

ALUMINA LIMITED

By its attorney



[C.S.]



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Fifth Schedule

Fourth Supplementary Agreement



[Fifth Schedule inserted: No. 15 of 1995 s. 7.]



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Alumina Refinery (Worsley) Agreement Act 1973



Notes

1



This is a compilation of the Alumina Refinery (Worsley) Agreement Act 1973 and

includes the amendments made by the other written laws referred to in the

following table. The table also contains information about any reprint.



Compilation table

Short title



Number

and year



Assent



Commencement



Alumina Refinery

(Worsley) Agreement

Act 1973



67 of 1973



28 Nov 1973 s. 5: 16 May 1975 (see s. 2(2)

and Gazette 16 May 1975

p. 1345);

balance: 28 Nov 1973 (see

s. 2(1))



Alumina Refinery

(Worsley) Agreement Act

Amendment Act 1978



10 of 1978



15 May 1978 15 May 1978



Alumina Refinery

(Worsley) Agreement

Amendment Act 1982



95 of 1982



1 Dec 1982



Alumina Refinery

(Worsley) Agreement

Amendment Act 1992



63 of 1992



11 Dec 1992 11 Dec 1992 (see s. 2)



Alumina Refinery

(Worsley) Agreement

Amendment Act 1995



15 of 1995



4 Jul 1995



1 Dec 1982



4 Jul 1995 (see s. 2)



Reprint of the Alumina Refinery (Worsley) Agreement Act 1973 as at 1 Feb 2002

(includes amendments listed above)

Standardisation of

19 of 2010

28 Jun 2010 11 Sep 2010 (see s. 2(b) and

Formatting Act 2010 s. 4

Gazette 10 Sep 2010 p. 4341)

2



Marginal notes in the agreement have been represented as bold headnotes in this

reprint but that does not change their status as marginal notes.



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Alumina Refinery (Worsley) Agreement Act 1973



Defined terms



Defined terms

[This is a list of terms defined and the provisions where they are defined.

The list is not part of the law.]



Defined term

Provision(s)

Minister for the Environment ......................................................................... 11(3)

Plan Z ............................................................................................................. 11(3)

the Agreement ................................................................................................ 11(3)



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