Mines (Aluminium Agreement) Amendment Act
2011
No. 68 of 2011
TABLE OF PROVISIONS
Section
1
2
3
4
5
6
7
8
9
10
11
12
Purpose
Commencement
Principal Act
Act binds the Crown
Interpretation
Ratification etc. and enforcement of Agreement and
modification of Acts etc.
New sections 4A and 4B inserted
4A
Ratification of the Amendment Agreement
4B
Application of Occupational Health and Safety
Act 2004
Enactment of certain provisions of Agreement
New section 7A inserted
7A
Power to authorise compulsory purchase of land
Repeal of the Mines (Aluminium Agreement) (Brown
Coal Royalties) Act 2005
Amendment of Schedule heading
New Schedule 2 inserted
SCHEDULE 2—Amendment Agreement
13
Repeal of amending Act
═══════════════
ENDNOTES
Page
2
2
2
2
3
3
4
4
4
4
5
5
5
6
6
6
50
51
i
Victoria
Mines (Aluminium Agreement)
Amendment Act 2011†
No. 68 of 2011
[Assented to 29 November 2011]
Preamble
The State and Alcoa of Australia Pty Ltd ("Alcoa")
entered into an agreement on 22 November 1961
with respect to the establishment of an industrial
facility to produce aluminium products ("the
agreement").
The agreement was ratified, validated, approved
and otherwise given effect to by the Mines
(Aluminium Agreement) Act 1961.
Under the agreement Alcoa has the exclusive right
to search, work, mine for, win, carry away and
dispose of all coal on or in the leased area
identified in the agreement on the terms set out in
the agreement.
1
Mines (Aluminium Agreement) Amendment Act 2011
No. 68 of 2011
s. 1
The initial term of the agreement is due to expire
on 1 February 2012 and the parties wish to extend
the term and amend the agreement.
It is expedient to amend the Mines (Aluminium
Agreement) Act 1961 to ratify, validate and
approve the extension and amendment of the
agreement.
The Parliament of Victoria therefore enacts:
1 Purpose
The purpose of this Act is to amend the Mines
(Aluminium Agreement) Act 1961 to provide for
amendments to the agreement in the Schedule to
that Act, to repeal the Mines (Aluminium
Agreement) (Brown Coal Royalties) Act 2005
and for other purposes.
2 Commencement
This Act comes into operation on the day after the
day on which this Act receives Royal Assent.
3 Principal Act
See:
Act No.
6829.
Reprint No. 2
as at
14 March
2008.
LawToday:
www.
legislation.
vic.gov.au
In this Act, the Mines (Aluminium Agreement)
Act 1961 is called the Principal Act.
4 Act binds the Crown
This Act binds the Crown in the right of Victoria
and, so far as the legislative power of the
Parliament permits, the Crown in all its other
capacities.
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Mines (Aluminium Agreement) Amendment Act 2011
No. 68 of 2011
s. 5
5 Interpretation
(1) In section 2(a) of the Principal Act—
(a) for "the Schedule to this Act" substitute
"Schedule 1"; and
(b) after "and includes" insert "the amendments
made, ratified, validated and approved by the
Mines (Aluminium Agreement)
Amendment Act 2011 and"; and
(c) for "as executed" substitute "as amended".
(2) After section 2(a) of the Principal Act insert—
"(ab) Amendment Agreement means the
agreement a copy of which is set out in
Schedule 2 and includes the plan which is
annexed to the Amendment Agreement as
executed and which is referred to in the said
Schedule;
(ac) reserve area has the same meaning that it
had immediately before the commencement
of the Mines (Aluminium Agreement)
Amendment Act 2011;".
6 Ratification etc. and enforcement of Agreement and
modification of Acts etc.
In section 4(2)(b) of the Principal Act—
(a) in subparagraph (i), for "Mines Act 1958"
substitute "Mineral Resources
(Sustainable Development) Act 1990";
(b) in subparagraph (iii), for "1958" substitute
"1989";
(c) in subparagraph (v), for "1958" substitute
"1989";
(d) in subparagraph (vi), after "Transport"
insert "(Compliance and Miscellaneous)".
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Mines (Aluminium Agreement) Amendment Act 2011
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s. 7
7 New sections 4A and 4B inserted
After section 4 of the Principal Act insert—
"4A Ratification of the Amendment
Agreement
(1) The Amendment Agreement is ratified,
validated and approved and takes effect.
(2) The Agreement is amended as provided in
the Amendment Agreement.
4B Application of Occupational Health and
Safety Act 2004
Despite section 4(2)(b), the Occupational
Health and Safety Act 2004 and any
regulations made under it apply to all mining
operations carried out under the Agreement
as if the leased area, the freehold land, the
prior land, the purchased land and any other
land acquired under section 7A were a mine
as defined in section 37 of the Occupational
Health and Safety Act 2004.".
8 Enactment of certain provisions of Agreement
In section 7 of the Principal Act—
(a) for "subclause (4)" substitute "subclause
(5)";
(b) omit "subclause (3) of clause 20,";
(c) for "23" substitute "21A, 21B".
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Mines (Aluminium Agreement) Amendment Act 2011
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s. 9
9 New section 7A inserted
After section 7 of the Principal Act insert—
"7A Power to authorise compulsory purchase
of land
(1) The Company may apply to the Minister for
approval to compulsorily acquire an interest
in land for the purposes specified in the
Agreement.
(2) If the Minister approves an application under
subsection (1), the Minister must certify his
or her approval and submit that certificate to
the Governor in Council for approval.
(3) The certificate must specify the interest in
the land proposed to be acquired and the
purpose for which it is required.
(4) If the Governor in Council approves a
certificate referred to in subsection (2), the
Company may compulsorily acquire the
interest in land specified in the certificate for
the purposes specified in the certificate.
(5) The Land Acquisition and Compensation
Act 1986 applies to this section as if—
(a) this section is the special Act; and
(b) the Company is the Authority.".
10 Repeal of the Mines (Aluminium Agreement)
(Brown Coal Royalties) Act 2005
The Mines (Aluminium Agreement) (Brown
Coal Royalties) Act 2005 is repealed.
5
See:
Act No.
9/2005.
Statute Book:
www.
legislation.
vic.gov.au
Mines (Aluminium Agreement) Amendment Act 2011
No. 68 of 2011
s. 11
11 Amendment of Schedule heading
In the heading to the Schedule to the Principal
Act—
(a) for "SCHEDULE" substitute
"SCHEDULES";
(b) immediately below "SCHEDULES" insert
"SCHEDULE 1".
12 New Schedule 2 inserted
After Schedule 1 to the Principal Act insert—
"__________________
SCHEDULE 2
AMENDMENT AGREEMENT
Date
19 October 2011
Parties
1.
The Honourable Michael O'Brien for and on behalf of the
State of Victoria as Minister for Energy and Resources
(the State).
2.
Alcoa of Australia Limited (ACN 004 879 298) of
181-205 Davy Street, Booragoon, Western Australia
(the Company).
Recitals
A
The State and the Company are parties to an agreement which
is set out in the Schedule to the Mines (Aluminium Agreement)
Act 1961 (the Principal Agreement) under which the
Company has the exclusive right to search work mine for win
carry away and dispose of all coal on or in the leased area on
the terms set out in the Principal Agreement.
B
The initial term of the Principal Agreement is due to expire on
1 February 2012 and the parties wish to extend the term and
amend the Principal Agreement in the manner set out in this
Agreement.
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Mines (Aluminium Agreement) Amendment Act 2011
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s. 12
It is agreed as follows.
1.
Definitions and Interpretation
In this Agreement, unless the context requires otherwise:
2.
(a)
Effective Date means 1 February 2012.
(b)
Words which are defined in the Principal Agreement and
which are used in this Agreement have the same meaning in
this Agreement as in the Principal Agreement.
Condition Precedent
This Agreement has no force or effect until it has been ratified,
validated and approved by an Act of the Parliament of Victoria.
3.
Amendments
The Principal Agreement is amended as follows:
(a)
Recitals
A new Recital IV is added after Recital III:
"IV.
(b)
On the expiry of its initial term the State and
the Company wish to extend, amend and
restate this Agreement as provided in the
Amendment Agreement."
Clause 1
In the definition of "the Act", "Mines Act 1958" is deleted
and replaced with "Mineral Resources (Sustainable
Development) Act 1990".
A new defined term is added after "the Act":
""Amendment Agreement" means the agreement between
the State and the Company amending and restating
this Agreement in connection with the extension of
this Agreement on the expiry of its initial term;"
The definition of "base index number" is amended as
follows:
(i)
the word "December" is deleted and replaced with
"June";
(ii)
the words "One thousand nine hundred and
sixty-one" are deleted and replaced with "two
thousand and ten"; and
7
Mines (Aluminium Agreement) Amendment Act 2011
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s. 12
(iii)
the word "Commonwealth" is deleted and replaced
with "Australian".
The definition of "Chief Mining Inspector" is amended as
follows:
(i)
the words "Chief Mining Inspector in" are deleted
and replaced with "the Chief Inspector appointed
under"; and
(ii)
the words "Department of Mines" are deleted and
replaced with "Act".
In the definition of "Company", the word "Proprietary" is
deleted.
The definition of "current index number" is amended as
follows:
(i)
the word "average" is deleted;
(ii)
the words "for the whole" are deleted and replaced
with "as at 30 June"; and
(iii)
the word "Commonwealth" is deleted and replaced
with "Australian".
The definition of "former forest area" is deleted.
Two new defined terms are added after the definition of
"date of commencement":
""Department" means the Department of Primary
Industries;
"freehold land" means land coloured blue on the plan
annexed hereto being all the land contained in—
(a)
certificate of title volume 8230 folio 618
known as Lot 1 on Title Plan 408603H
(formerly known as part of Crown
Allotment 10 Parish of Angahook); and
(b)
certificate of title volume 8489 folio 766
known as Lot 2 on Plan of Subdivision
061660 (formerly known as part of Crown
Allotment 10 Parish of Angahook),
which land is the subject of a minerals exemption
granted pursuant to section 293 of the Mines Act
1958 on or about 19 August 1985;"
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Mines (Aluminium Agreement) Amendment Act 2011
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s. 12
The definition of "leased area" is amended as follows:
(i)
the words "the power station site" are deleted;
(ii)
the words "within the boundaries shown" are
deleted and replaced with "coloured green";
(iii)
the words "by a red verge and which together with
the power station site" are deleted and replaced
with "which"; and
(iv)
"10,865 acres" is deleted and replaced with
"7,145 hectares".
The definition of "Power station site" is deleted.
In the definition of "prior land", the words "containing
(subject to survey) 99 acres more or less" are deleted and
replaced with:
"being all the land contained in certificate of title volume 5944
folio 708 known as Crown Allotments 63B1 and 64D in Parish
of Jan Juc County of Grant, which land is the subject of a
minerals exemption granted pursuant to section 293 of the
Mines Act 1958 on or about 19 August 1985;"
In the definition of "purchased land", the words "described
in sub-clause (3) of clause 20 hereof" are deleted and
replaced with:
"coloured red on the plan annexed hereto being all
the land contained in certificate of title volume
8876 folio 425 known as crown allotment 66 in
Parish of Jan Juc County of Grant;"
The definition of "reserve area" is deleted.
In the definition of "Secretary", "Secretary for Mines" is
deleted and replaced with "Secretary of the Department".
The following new defined terms are added after the
definition of "Secretary":
""significant additional environmental impact" means a
significant impact on—
(a)
species of fauna or flora or ecological
communities or their supporting habitat;
(b)
beneficial uses of surface and ground
waters; or
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Mines (Aluminium Agreement) Amendment Act 2011
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s. 12
(c)
the amenity of adjoining areas,
that is in addition to the impacts that already exist
by virtue of the Company's existing mining
operations at the time the mine extension plan is
submitted;
"specified area" means the area designated as such in the
plan lodged at the Central Plan Office and assigned
plan number LEGL./11-281, being the area in which
the Company is authorised to conduct mining
operations under the work plan referred to in clause
21A (including the stage 1 area and any area in
which the conduct of such mining operations is
subject to the approval of a mine extension plan in
accordance with the work plan);
"stage 1 area" means the area identified as such in the work
plan referred to in clause 21A in which the Company
is authorised to conduct mining operations as at the
date of the Amendment Agreement without the need
to submit a mine extension plan for approval;"
A new defined term is added after the definition of "State":
""stone" has the same meaning as it has in the Mineral
Resources (Sustainable Development) Act 1990 of
the Parliament of Victoria;"
A new defined term is added after the definition of "term of
this Agreement":
""water supply infrastructure" means pipelines, ground
water extraction bores and any associated assets that
support the supply of water;"
(c)
Clause 2
In clause 2, "Mines Act 1958" is deleted and replaced with
"Mineral Resources (Sustainable Development) Act
1990".
(d)
Clause 4
Clause 4 is deleted and a new clause 4 is inserted:
"4.
Effect of assignment by Company
(1)
The Company may assign all or some of its rights
under this Agreement with the written consent of
the Minister.
(2)
An assignment shall be conditional on the assignee
executing a deed in a form approved by the
Minister under which the assignee agrees to be
10
Mines (Aluminium Agreement) Amendment Act 2011
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s. 12
responsible for the performance of each of the
obligations and conditions imposed by this
Agreement that correspond to the rights assigned
to it by the Company.
(3)
(e)
The Company shall be released from responsibility
for the performance of each of the obligations and
conditions of this Agreement that are assumed by
an assignee by reason of sub-clause (2)."
Clause 6
In clause 6, the word "fifty" is deleted and replaced with
"one hundred".
(f)
Clause 7
Sub-clauses 7(1) and 7(2) are omitted.
In sub-clause 7(3), the words "of any extension pursuant to
sub-clause (1) of this" are deleted and replaced with
"specified in the last preceding". The word "further" is
deleted.
In sub-clause 7(4), the word "further" is deleted wherever it
appears. The word "lease" is deleted and replaced with
"licence".
(g)
Clause 8
Clause 8 is amended as follows:
(h)
(i)
the words "on or after the expiration of the first
nine years or (if pursuant to clause 15 hereof that
period is extended) twelve years of the term of this
Agreement" are deleted;
(ii)
the number "15" is deleted and replaced with "19";
(iii)
the words "or her" are inserted after "his";
(iv)
the word "he" is deleted and replaced with "the
Minister"; and
(v)
the word "leases" is deleted and replaced with
"licences".
Clause 9
In sub-clause 9(2)(b), the words "sand gravel clay or earth"
are deleted and replaced with "stone".
Sub-clauses 9(3) and 9(4) are omitted.
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s. 12
(i)
Clause 10
Sub-clause 10(1)(a) is amended as follows:
(i)
the words "two shillings and sixpence" are deleted
and replaced with "62 cents";
(ii)
the words "each acre" are deleted and replaced
with "each hectare"; and
(iii)
the words "an acre" are deleted and replaced with
"a hectare".
Sub-clause 10(1)(b) is amended as follows:
(i)
the word "ton" is deleted and replaced with
"tonne";
(ii)
the word "or" is deleted after "electric power";
(iii)
the words "or while the Company (whether alone
or as part of a partnership or joint venture with
others) is operating an aluminium smelting plant at
Portland" are inserted after "hereof";
(iv)
in paragraph (b)(i), the words "four pence" are
deleted and replaced with "38.7203 cents" and the
words "one hundred thousand tons" are deleted
and replaced with "one hundred and one thousand
six hundred tonnes"; and
(v)
in paragraph (b)(ii), the words "three pence" are
deleted and replaced with "29.0686 cents" and the
words "one hundred thousand tons" are deleted
and replaced with "one hundred and one thousand
six hundred tonnes".
Sub-clause 10(1)(c) is deleted and a new sub-clause
10(1)(c) is inserted:
"(c)
in respect of each tonne of coal as aforesaid won
from the leased area and used for the generation of
electric power otherwise than in connexion with the
industries referred to in Recital I hereof or while the
Company (whether alone or as part of a partnership
or joint venture with others) is operating an
aluminium smelting plant at Portland, a royalty at
the rate from time to time applicable to lignite under
section 12A of the Act;"
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Mines (Aluminium Agreement) Amendment Act 2011
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s. 12
A new sub-clause 10(1)(d) is added:
"(d)
in respect of each tonne of coal as aforesaid won
from the leased area and sold or used by the
Company for any purpose other than as specified in
paragraph (b) or (c) of this clause, a basic royalty of
38.7203 cents."
In sub-clause 10(2), "Accountant to the Department of
Mines" is deleted and replaced with "Department of
Primary Industries or its successor".
In sub-clause 10(4), after the words "during that year"
insert:
", other than the royalty payable under sub-clause (1)(c),"
Sub-clause 10(5) is amended as follows:
(i)
the word "Commonwealth" is deleted and replaced
with "Australian"; and
(ii)
the words "Government Statist" are deleted and
replaced with "Secretary of the Department of
Treasury and Finance".
Sub-clause 10(7) is omitted.
Sub-clause 10(8) is amended as follows:
(j)
(i)
the words "two shillings and sixpence" are deleted
and replaced with "62 cents";
(ii)
the words "each acre" are deleted and replaced
with "each hectare"; and
(iii)
the words "an acre" are deleted and replaced with
"a hectare".
Clause 11
In sub-clause 11(a), the word "him" is deleted and replaced
with "the Minister".
In sub-clause 11(b), the word "him" is deleted and replaced
with "the Minister" and the words "as he" are deleted and
replaced with "the freehold land the prior land and the
purchased land as the Minister".
The following paragraph is added at the end of clause 11:
"This clause does not limit the obligations of the
Company with respect to the keeping of proper
records under the Act. To the extent that there is
an inconsistency between the requirements of this
clause and the requirements of the Act with respect
13
Mines (Aluminium Agreement) Amendment Act 2011
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s. 12
to the keeping of records, the requirements of the
Act prevail."
(k)
Clause 12
Sub-clauses 12(1)(a) to 12(1)(f) are omitted.
Sub-clause 12(1)(g) is amended as follows:
(i)
the word "him" is deleted and replaced with "such
owner occupier or lessee";
(ii)
the word "mining" is inserted after "the
Company's"; and
(iii)
the words "the freehold land the prior land or the
purchased land" are inserted after "leased area".
Sub-clauses 12(1)(h) and 12(1)(i) are omitted.
Sub-clause 12(1)(j) is amended as follows:
(i)
the word "mining" is inserted before "operations";
(ii)
the words "the freehold land the prior land or the
purchased land" are inserted after "leased area";
and
(iii)
the words "all statutory provisions" are deleted and
replaced with "the Act and all other statutory
provisions".
Sub-clause 12(2) is omitted.
(l)
Clause 13
The heading to clause 13 is deleted and replaced with "Use
of leased area".
Sub-clauses 13(a), 13(b), 13(d) and 13(e) are omitted.
(m)
Clause 14
Clause 14 is omitted.
(n)
Clause 15
The heading to Division C and clause 15 are omitted.
(o)
Clause 16
Clause 16 is omitted.
(p)
Clause 17
In sub-clause 17(2), the word "he'" is deleted and replaced
with "the Minister".
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s. 12
(q)
Clause 18
Sub-clause 18(1) is amended as follows:
(i)
the words "the State Rivers and Water Supply
Commission (in this clause called "the Water
Commission")" are deleted and replaced with
"Barwon Water";
(ii)
the words "fifty feet" are deleted and replaced with
"fifteen metres";
(iii)
the word "pipeline" is deleted wherever it appears
and replaced with "water supply infrastructure";
(iv)
the words "in the easterly portion of" are deleted
and replaced with "within"; and
(v)
the words "the Water Commission" are deleted and
replaced with "Barwon Water".
Sub-clauses 18(2) and 18(3) are amended as follows:
(i)
the words "the Water Commission" are deleted
wherever they appear and replaced with "Barwon
Water"; and
(ii)
the word "pipeline" is deleted wherever it appears
and replaced with "water supply infrastructure".
The existing sub-clause 18(4) becomes sub-clause 18(5)
and a new sub-clause 18(4) is inserted:
"(4)
Any additional water supply infrastructure installed or proposed
to be installed by Barwon Water will be subject to individual
agreement with the Company."
In the new sub-clause 18(5)(a), "the Water Commission" is
deleted and replaced with "Southern Rural Water".
The new sub-clause 18(5)(b) is amended as follows:
(i)
"Water Act 1958" is deleted and replaced with
"Water Act 1989";
(ii)
the words "the power station site" are deleted; and
(iii)
the words "the Water Commission" are deleted and
replaced with "Southern Rural Water".
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s. 12
(r)
Clause 19
Sub-clauses 19(1) and 19(2) are omitted.
In sub-clause 19(3), the word "aforesaid" is deleted and
replaced with "hereinafter mentioned".
In sub-clause 19(3)(a), the words "power station site" are
deleted and replaced with "prior land and the purchased
land".
In sub-clause 19(3)(b), the words "the power station site"
are deleted.
In sub-clause 19(3)(c), the words "provisions of Section 26
of the State Electricity Commission Act 1958" are deleted
and replaced with "Mines (Aluminium Agreement) Act
1961". The words "power station site the" are deleted.
Sub-clause 19(3)(d) is omitted.
In sub-clause 19(4), the words "(other than sub-clause (5))"
are inserted after "in this Agreement". The words "the
Electric Light and Power Act 1958", and "(excluding
section forty-five of the Electric Light and Power Act
1958)" are deleted.
A new sub-clause 19(5) is added after sub-clause 19(4):
"(5)
Paragraphs (a) and (b) of sub-clause (3) and subclause (4) shall cease to apply on the earlier of:
(a)
the date on which the Company
permanently ceases to operate an
aluminium smelting and fabricating plant
on the lands of the Company at Point
Henry; and
(b)
1 August 2014,
provided that nothing in this clause shall be taken
to prevent the Company from continuing to
undertake the activities referred to in paragraphs
(a) and (b) of sub-clause (3) to the extent it is
permitted to do so without reference to this
Agreement."
(s)
Clause 20
Clause 20 is omitted.
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s. 12
(t)
New Part IIIA
A new Part IIIA is added after Part III, so as to incorporate
the text deemed to form part of the Principal Agreement by
section 10 of the Mines (Aluminium Agreement) Act 1961:
"PART IIIA – OBLIGATIONS OF THE STATE
20A.
The State shall –
(a)
not impose nor take nor (insofar as it is
competent to do so) permit nor authorize
any of its agencies or instrumentalities or
any local or other authority or Minister of
the Crown or public statutory corporation
of the State to take or cause to occur any
action or combination of actions,
including without limitation, the
imposition of any taxes, rates or charges
of any nature whatsoever, which –
(i)
has the effect of modifying or
subtracting from the Company's
rights or adding to any of its
obligations under this Agreement
or any other agreement relating
to the smelter at Point Henry;
(ii)
is discriminatory to, or has a
discriminatory effect on, or is
directed at the smelter at Point
Henry or the Company; or
(iii)
discriminates adversely between
the Company and other industrial
or commercial enterprises in the
State in respect of the income,
titles, property or other assets,
products, materials or services
used or produced by or through
the operation of the smelter at
Point Henry and the disposal of
aluminium and waste products
produced in the smelter or is
discriminatory to the aluminium
industry or is directed at the
aluminium industry;
17
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s. 12
(u)
(b)
not, without the consent of the Company,
resume nor (insofar as it is competent do
so) suffer nor permit to be resumed, other
than for the purpose of "public
construction" as defined in the Project
Development and Construction
Management Act 1994 (as amended),
any of the works installations plant
equipment or other property for the time
being belonging to the Company and the
subject of or used for the purpose of this
Agreement where to do so would unduly
prejudice or interfere with the Company's
operations hereunder; and
(c)
make such representations as may be
necessary to the Commonwealth with
respect to, and use its good offices in
relation to, the remedy or amelioration of
or removal by the Commonwealth of any
adverse effect on the progress or cost of
the construction and operation of the
smelter at Point Henry or on that smelter,
the Company, this Agreement or any
other agreement relating to the smelter
resulting from Commonwealth
Government policies including, without
limiting the generality of the foregoing,
the imposition of import duties, as soon as
practicable after the occurrence of such
effect."
Part IV
The heading to Part IV is deleted and replaced with
"PART IV - APPLICATION OF CERTAIN ACTS".
(v)
Clause 21
Sub-clause 21(1) is amended as follows:
(i)
the word "mining" is inserted before "operations";
(ii)
the words "the freehold land the prior land and the
purchased land" are inserted before "as if"; and
(iii)
the words "mineral lease" are deleted and replaced
with "mining licence".
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s. 12
Sub-clause 21(2)(a) is deleted and replaced with:
"sections 12 and 12A of the Act, and any other provisions of
the Act or another law that commence following the execution
of the Amendment Agreement which relate to the subject
matter of those sections, shall not apply to this Agreement;"
Sub-clause 21(2)(b) is deleted and replaced with:
"section 85 of the Act, and any other provisions of the Act or
another law that commence following the execution of the
Amendment Agreement which relate to the subject matter of
that section, shall not apply to this Agreement."
(w)
New clauses 21A to 21D
New clauses 21A to 21D are inserted after clause 21:
"21A.
Deemed approved work plan
The work plan in relation to the leased area the freehold land
and the prior land submitted by the Company to the Department
and endorsed by the Department is deemed to be an approved
work plan under the Act, and the Company is deemed to have a
work authority in respect of that work plan. To avoid doubt,
any future variation of the work plan will be dealt with in
accordance with the Act.
21B.
Application of the Aboriginal Heritage Act 2006
(1)
(2)
For the avoidance of doubt—
(a)
the Aboriginal Heritage Act 2006 and
any regulations made under it shall, as far
as reasonably practicable, apply to this
Agreement and the operations of the
Company on the leased area the freehold
land the prior land and the purchased
land;
(b)
any variation of the work plan referred to
in clause 21A will be dealt with in
accordance with the Aboriginal Heritage
Act 2006; and
(c)
Part 4, Division 3 of the Aboriginal
Heritage Act 2006 has no effect in
respect of the endorsement of the work
plan referred to in clause 21A by the
Department.
Before any mining activity authorised by the work
plan referred to in clause 21A is undertaken on any
part of the leased area the freehold land or the prior
land, a cultural heritage management plan in respect
of that area must be approved under Part 4 of the
Aboriginal Heritage Act 2006, except where the
mining activity is within an area that has been
subject to significant ground disturbance.
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(3)
21C.
The expressions 'cultural heritage management plan'
and 'significant ground disturbance', as used in subclause (2), have the meaning given by the
Aboriginal Heritage Act 2006.
Application of Occupational Health and Safety Act 2004
The Company acknowledges that the Occupational Health and
Safety Act 2004 and any regulations made under that Act apply
to this Agreement and the mining operations of the Company
on the leased area the freehold land the prior land and the
purchased land.
21D.
Mine extension process
(1)
This clause applies if the Company proposes to
extend its mining operations:
(a)
outside the stage 1 area; or
(b)
outside the area in which such operations
are being conducted in accordance with a
mine extension plan previously approved
in accordance with this clause,
but within the specified area. Any such mine
extension requires the approval of a mine extension
plan by the Secretary or his or her delegate in
accordance with the approval process specified in
this clause and the work plan referred to in
clause 21A.
(2)
If this clause applies the Company must, prior to
submitting a mine extension plan for approval,
consider and analyse the available options for the
mine extension. The options analysis prepared by the
Company must specifically evaluate any potential
significant additional environmental impacts as well
as the potential measures to mitigate those impacts.
(3)
Following completion of the options analysis
described in sub-clause (2), the Company must
submit a mine extension plan to the Department in
accordance with the work plan, and include –
(a)
a summary of the options analysis
undertaken in accordance with sub-clause
(2);
(b)
an outline of the proposed mine extension
and related environmental impact
mitigation actions that would be
implemented as part of the mine
extension plan; and
(c)
information identifying any potential
significant additional environmental
impacts likely to result from the mine
extension after taking account of the
actions proposed by the Company (as
described in the submitted
documentation) to mitigate the
environmental impacts of the mine
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extension described in the mine extension
plan.
(4)
The Company may consult with the Department, the
Department of Planning and Community
Development and any other relevant State or
Commonwealth government department concerning
the mine extension plan and the coordination of the
processes described in sub-clauses (2) and (3) with
the process for any other State or Commonwealth
approvals or permits required in connection with the
mine extension.
(5)
On receipt of the mine extension plan by the
Department and following the Department's initial
assessment of the plan, the Minister will refer the
plan to the Minister administering the Environment
Effects Act 1978 for advice regarding whether the
proposed mine extension is likely to have a
significant additional environmental impact, after
taking account of the actions proposed by the
Company to mitigate the environmental impacts of
the mine extension described in the mine extension
plan.
(6)
The Minister, after considering the advice of the
Minister administering the Environment Effects
Act 1978, may advise the Company that he or she is
satisfied that:
(7)
(a)
the proposed mine extension is not likely
to have a significant additional
environmental impact, in which case the
mine extension plan may be approved by
the Secretary or his or her delegate in
accordance with the process set out in the
work plan without further regard to this
clause; or
(b)
the proposed mine extension is likely to
have a significant additional
environmental impact, in which case the
mine extension plan must not be
approved by the Secretary or his or her
delegate until an environmental impact
and management report ("EIMR") has
been prepared to assess the likely
significant additional environmental
impact of the proposed mine extension
described in the mine extension plan, in
accordance with this clause and the work
plan.
If an EIMR is required, the Minister administering
the Environment Effects Act 1978 must promptly
specify the scope for the EIMR having regard to:
(a)
21
any relevant Ministerial guidelines made
under the Environment Effects Act 1978
(but only insofar as those guidelines
relate to the significant additional
environmental impacts that have been
Mines (Aluminium Agreement) Amendment Act 2011
No. 68 of 2011
s. 12
identified as being likely to result from
the proposed mine extension);
(b)
the objective of minimising any
significant additional environmental
impacts of the proposed mine extension
in the context of enabling coal extraction;
(c)
the objective of limiting consultation on
the EIMR to sections of the public that
have a material and established interest in
the significant additional environmental
impacts that have been identified as being
likely to result from the proposed mine
extension;
(d)
the actions proposed by the Company to
mitigate the environmental impacts of the
mine extension described in the mine
extension plan; and
(e)
the requirements applicable to the process
for obtaining any other concurrent State
or Commonwealth approvals or permits
required for the proposed mine extension.
(8)
If required to do so under sub-clause (6), the
Company must prepare an EIMR to assess the likely
significant additional environmental impact of the
proposed mine extension described in the mine
extension plan, in accordance with the requirements
of sub-clause (7).
(9)
The Minister administering the Environment
Effects Act 1978 may appoint one or more persons
to advise him or her on the EIMR and the mine
extension plan. However, any review by such
person or persons must not involve a public hearing
and must occur in a timely way.
(10)
Following completion of the EIMR and any advice
from a person or persons appointed under sub-clause
(9), the Minister administering the Environment
Effects Act 1978 must, within a reasonable period
of time, provide an assessment of the EIMR
("Planning Minister's Assessment") to the Minister
to inform the decision by the Secretary or his or her
delegate with respect to any conditions to which the
mine extension plan may be subject.
(11)
In considering the mine extension plan the Secretary
or his or her delegate must have regard to the
Planning Minister's Assessment, and the
geotechnical, practical and financial aspects of the
proposed mine extension, and may, subject to subclauses (12), (13) and (14), impose on his or her
approval of the mine extension plan conditions that
achieve a balance between any recommendations
made in the Planning Minister's Assessment and the
geotechnical, practical and financial aspects of the
mine extension plan. Any such conditions will be
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deemed to be incorporated in the work plan referred
to in clause 21A.
(12)
Should the Secretary or his or her delegate consider
that a deviation from any of the conditions
recommended in the Planning Minister's Assessment
would be appropriate, the Secretary or his or her
delegate will provide any relevant information and
seek the agreement of the Minister administering the
Environment Effects Act 1978 before imposing
any conditions that are not substantially consistent
with the conditions recommended in the Planning
Minister's Assessment. To avoid doubt, any
agreement about conditions is subject always to the
restrictions on conditions contained in sub-clause
(14) and the requirement for the Secretary or his or
her delegate to seek the agreement of the Minister
administering the Environment Effects Act 1978
does not affect the responsibility of the Secretary or
his or her delegate to exercise his or her discretion to
determine the conditions where such agreement is
not able to be obtained.
(13)
The Secretary or his or her delegate must consult
with the Company prior to imposing conditions
under sub-clause (11).
(14)
The Secretary or his or her delegate may not impose
conditions on his or her approval of a mine
extension plan which:
(a)
have the effect of preventing the
Company from conducting mining
operations in the specified area;
(b)
require the Company to provide native
vegetation offsets; or
(c)
are otherwise inconsistent with the rights
of the Company under this Agreement.
(15)
The Company must comply with any conditions on
the approval of a mine extension plan that are
deemed to be incorporated in the work plan in
accordance with sub-clause (11).
(16)
The Company and the State must cooperate and
consult regularly concerning the operation of this
clause.
(17)
To avoid doubt:
(a)
23
the process specified in this clause
applies to the approval of a mine
extension within the specified area and as
such does not require a variation to the
work plan which could trigger the
application of the Environment Effects
Act 1978; and
Mines (Aluminium Agreement) Amendment Act 2011
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(b)
(x)
any mine extension which requires a
variation to the work plan referred to in
clause 21A will be dealt with in
accordance with the Act and accordingly
will be subject to all applicable legislative
and regulatory requirements at the time
(including the Environment Effects Act
1978)."
Clauses 22 and 23
The heading to Division A of Part V and clauses 22 and 23
are omitted.
(y)
Clause 25
The words "power station site" are deleted and replaced
with "freehold land".
The word "is" is deleted after "proving that" and replaced
with "it".
(z)
Clause 26
In sub-clause 26(2)(a), the words "(other than clause 15)"
are deleted.
(aa)
Clause 27
The existing clause 27 is renumbered sub-clause 27(1).
In the renumbered sub-clause 27(1), "Arbitration Act
1958" is replaced with "Commercial Arbitration Act
1984".
A new sub-clause 27(2) is added after sub-clause 27(1):
"(2)
(bb)
For the avoidance of doubt, Part II of the Act shall
apply in relation to any "dispute" (as that term is
defined in the Act) between the parties hereto."
Clause 28
The word "Notices" is inserted as a heading to clause 28.
Sub-clause 28(1) is deleted and replaced with:
"(1)
Section 122 of the Act applies to any notice order
demand or other writing authorized or required by
this Agreement."
Sub-clause 28(2) is omitted.
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(cc)
Annexure
The annexure to the Principal Agreement is removed and
replaced with the annexure to this Agreement.
4.
Restatement
The Principal Agreement as amended by this Agreement is set out in
the Schedule.
5.
Effective Date
This Agreement takes effect, and the parties agree to be bound by
the Principal Agreement as amended by this Agreement, from the
Effective Date.
6.
Remaining Provisions Unaffected
Except as specifically amended by this Agreement, all terms and
conditions of the Principal Agreement remain in full force and
effect. With effect from the Effective Date, the Principal Agreement
as amended by this Agreement is to be read as a single integrated
document incorporating the amendments effected by this
Agreement.
7.
Governing Law
This Agreement is governed by the laws of Victoria.
8.
Counterparts
This Agreement may be executed in any number of counterparts.
All counterparts together will be taken to constitute one instrument.
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Executed in Melbourne
Signed by the Honourable Michael
O'Brien for and on behalf of the
State of Victoria as Minister for
Energy and Resources in the
presence of:
Witness Signature
JEFF ROSEWARNE
Print Name
Executed in accordance with
section 127 of the Corporations Act
2001 by Alcoa of Australia
Limited:
Director Signature
Director/Secretary Signature
ALAN CRANSBERG
MELANIE K BROWN
Print Name
Print Name
A map is annexed to the Agreement and endorsed as follows:
"The plan lodged at the Central Plan Office and assigned plan number
LEGL./11-019, a copy of which is attached to this Annexure, is the annexed
plan referred to in the Agreement dated 22 November 1961 between the
Honourable Wilfred John Mibus for and on behalf of the State of Victoria
and Alcoa of Australia Limited (formerly Alcoa of Australia Proprietary
Limited) as amended by an Amendment Agreement dated 19 October 2011
between the Honourable Michael O'Brien for and on behalf of the State of
Victoria as Minister for Energy and Resources and Alcoa of Australia
Limited."
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SCHEDULE
AGREEMENT
THIS AGREEMENT is made the twenty-second day of November One
thousand nine hundred and sixty-one BETWEEN The Honorable WILFRED
JOHN MIBUS in his capacity as Minister of Mines for the time being of the
State of Victoria for and on behalf of THE STATE OF VICTORIA of the one
part and ALCOA OF AUSTRALIA PROPRIETARY LIMITED a Company
incorporated under the provisions of the Companies Act 1958 of the said
State the registered office of which is situate at 120 William Street
Melbourne in the said State of the other part.
Recitals
WHEREAS:
I.
The Company is desirous of establishing in the State of Victoria
the industries of reducing the ore of aluminium to its basic metal
and of manufacturing alloying and fabricating the metal so
produced into articles of commerce.
II.
In view of the large capital expenditure involved in the
establishment of those industries the Company desires to ensure
that certain rights incidental to the establishment and carrying on
of those industries will be assured to it.
III.
The State is satisfied that a large capital expenditure is necessary
to establish the said industries satisfactorily and that it is
desirable in the interests of the State that subject to the provisions
hereof the Company should be granted the rights hereinafter
expressed.
IV.
On the expiry of its initial term the State and the Company wish
to extend, amend and restate this Agreement as provided in the
Amendment Agreement.
NOW IT IS HEREBY AGREED as follows—
PART I—PRELIMINARY
1. Definitions
In this Agreement unless inconsistent with the context or
subject matter—
"the Act" means the Mineral Resources (Sustainable
Development) Act 1990 of the Parliament of
Victoria;
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"Amendment Agreement" means the agreement between
the State and the Company amending and restating
this Agreement in connection with the extension of
this Agreement on the expiry of its initial term;
"base index number" means the index number for
Melbourne for the June quarter of the year two
thousand and ten shown in the Consumer Price Index
published by the Australian Statistician;
"Chief Mining Inspector" means the person for the time
being holding the office of the Chief Inspector
appointed under the Act or performing the duties of
that office;
"Company" means the said Alcoa of Australia Limited and
includes its assigns;
"current index number" in respect of any year means the
index number for Melbourne as at 30 June of that year
as determined by the Australian Statistician on the
basis of the said Consumer Price Index;
"date of commencement" means the date upon which this
Agreement comes into operation by virtue of the
provisions of clause 5 hereof;
"Department" means the Department of Primary
Industries;
"freehold land" means land coloured blue on the plan
annexed hereto being all the land contained in—
(a)
certificate of title volume 8230 folio 618 known
as Lot 1 on Title Plan 408603H (formerly known
as part of Crown Allotment 10 Parish of
Angahook); and
(b) certificate of title volume 8489 folio 766 known
as Lot 2 on Plan of Subdivision 061660
(formerly known as part of Crown Allotment 10
Parish of Angahook),
which land is the subject of a minerals exemption
granted pursuant to section 293 of the Mines Act
1958 on or about 19 August 1985;
"leased area" means the land (excluding the prior land and
the purchased land) coloured green on the plan
annexed hereto which contains (subject to survey)
7,145 hectares more or less;
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"Minister" means the responsible Minister of the Crown
for the time being administering the Act;
"prior land" means the land coloured purple on the plan
annexed hereto being all the land contained in
certificate of title volume 5944 folio 708 known as
Crown Allotments 63B1 and 64D in Parish of Jan Juc
County of Grant, which land is the subject of a
minerals exemption granted pursuant to section 293 of
the Mines Act 1958 on or about 19 August 1985;
"purchased land" means the land coloured red on the plan
annexed hereto being all the land contained in
certificate of title volume 8876 folio 425 known as
crown allotment 66 in Parish of Jan Juc County of
Grant;
"regulations" means the regulations for the time being in
force under the Act;
"Secretary" means the person for the time being holding
the office of Secretary of the Department or
performing the duties of that office;
"significant additional environmental impact" means a
significant impact on—
(a)
species of fauna or flora or ecological
communities or their supporting habitat;
(b) beneficial uses of surface and ground waters; or
(c)
the amenity of adjoining areas,
that is in addition to the impacts that already exist by
virtue of the Company's existing mining operations at
the time the mine extension plan is submitted;
"specified area" means the area designated as such in the
plan lodged at the Central Plan Office and assigned
plan number LEGL./11-281, being the area in which
the Company is authorised to conduct mining
operations under the work plan referred to in clause
21A (including the stage 1 area and any area in which
the conduct of such mining operations is subject to the
approval of a mine extension plan in accordance with
the work plan);
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"stage 1 area" means the area identified as such in the
work plan referred to in clause 21A in which the
Company is authorised to conduct mining operations
as at the date of the Amendment Agreement without
the need to submit a mine extension plan for approval;
"State" means the State of Victoria;
"stone" has the same meaning as it has in the Mineral
Resources (Sustainable Development) Act 1990 of
the Parliament of Victoria;
"term of this Agreement" means the period specified in
clause 6 hereof as extended from time to time
pursuant to clause 7 hereof;
"water supply infrastructure" means pipelines, ground
water extraction bores and any associated assets that
support the supply of water;
"year" means a period of twelve calendar months
commencing on the date of commencement or an
anniversary thereof.
2. Interpretation
(1) In this Agreement unless inconsistent with the context or
subject-matter references to any Act (including references to
the Mineral Resources (Sustainable Development) Act
1990 by use of the expression "the Act") shall include all
amendments and re-enactments thereof for the time being in
force and all supplemental legislation for the time being in
force whether by regulation rule proclamation or order made
or continuing under that Act or any amendment or reenactment thereof.
(2) The headings and sidenotes shall not affect the interpretation
of this Agreement.
3. Agreement to be ratified by Act of Parliament
This Agreement shall not be of any force or effect until it
has been ratified validated approved and otherwise given
effect by an Act of the Parliament of Victoria.
4. Effect of assignment by Company
(1) The Company may assign all or some of its rights under this
Agreement with the written consent of the Minister.
(2) An assignment shall be conditional on the assignee
executing a deed in a form approved by the Minister under
which the assignee agrees to be responsible for the
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Mines (Aluminium Agreement) Amendment Act 2011
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performance of each of the obligations and conditions
imposed by this Agreement that correspond to the rights
assigned to it by the Company.
(3) The Company shall be released from responsibility for the
performance of each of the obligations and conditions of this
Agreement that are assumed by an assignee by reason of
sub-clause (2).
PART II—COMMENCEMENT, DURATION, EXTENSION
AND VARIATION OF AGREEMENT
5. Commencement of Agreement
(1) This Agreement shall come into operation upon the first day
of the calendar month following the date upon which the
later of the following events occurs—
(a) the coming into operation of the Act referred to in
Clause 3 hereof;
(b) the completion of the surrender of mineral leases
numbered 7613, 7614, 7618, 7620, 7626, 7627, 7628
and 7629 in the records of the Department of Mines of
the State and the abandonment of mineral lease
applications numbered 7615, 7616, 7617, 7619, 7621,
7622, 7625, 7630, 7655, 7656, 7658, 7667 to 7676
(both inclusive), 7686, 7783, 7792, 7889 to 7897
(both inclusive), 7930, 7931, 7932 and 8023 in the
said records.
(2) The certificate of the Minister as to the date upon which the
surrender and abandonment as aforesaid was completed
shall be conclusive.
6. Duration of Agreement
Subject to the provisions hereof this Agreement shall remain
in force for the period of one hundred years from the date of
commencement.
7. Extension of Agreement
(1) [Omitted]
(2) [Omitted]
(3) If—
(a) the Company not later than nine months prior to the
expiration of the period specified in the last preceding
clause makes written application to the Minister for
the extension of the term of this Agreement for a
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period not exceeding fifty years specified in the
application; and
(b) at the date of receipt by the Minister of that
application there is no existing breach or nonobservance by the Company of the terms and
conditions of this Agreement
the Minister shall within six months after the last mentioned
date notify the Company in writing of the terms and
conditions upon which the State is prepared to grant the
further extension sought by the Company.
(4) The Company may within three months after notification by
the Minister pursuant to the last preceding sub-clause accept
by notice in writing given to the Minister the extension as
aforesaid upon the terms and conditions expressed in the
notification by the Minister and shall thereupon become
entitled to such extension. In the event of the Company
failing so to accept such extension the State shall not within
the period of two years after the expiration of the term of
this Agreement grant or offer to any other person a licence
for the purpose of mining for coal on or in the leased area on
terms and conditions more favourable than those expressed
in the said notification by the Minister.
(5) No extension or purported extension pursuant to this clause
shall be of any force or effect unless evidenced by an
instrument executed by the Minister on behalf of the State
specifying the period of extension and any variations of the
provisions hereof determined pursuant to this clause.
8. Variation of Agreement by Minister in certain event
If the Company has ceased or ceases to use coal from the
leased area for the generation of electric power in the power
generating station referred to in clause 19 hereof the
Minister at any time thereafter may by an instrument under
his or her hand vary the provisions of this Agreement in
such manner as the Minister deems expedient in the interests
of the State but so that the Company shall not be in a less
favourable position than if it held licences for the purpose of
mining for coal on the leased area in accordance with the
provisions of the Act.
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PART III—RIGHTS AND OBLIGATIONS OF COMPANY
Division A—Coal Rights and Related Matters
9. Exclusive right of Company to coal
(1) During the term of this Agreement the Company shall
subject to the provisions of sub-clauses (2) and (4) of this
clause have—
(a) the exclusive right to search work mine for win carry
away and dispose of for the use and benefit of the
Company all coal on or in the leased area; and
(b) for the purposes aforesaid the rights on the leased
area—
(i) to cut and construct races drains dams
reservoirs roads and tramways, to divert control
and use water and to do any other works
incidental to the method of mining or winning
coal from time to time adopted by the
Company; and
(ii) to erect alter reconstruct remove or destroy
offices buildings dwellings and machinery.
(2) The rights specified in the last preceding sub-clause shall be
subject to the reservations following—
(a) the reservation to the State and members of the public
of the free right at all times of ingress egress and
regress (with or without vehicles and animals) over
and along the surface of any part of the leased area
not being worked or used for the purposes aforesaid;
and
(b) the reservation to the State and all persons duly
licensed in that behalf of the right to take carry away
and use any stone or timber live or dead on in or
under any part of the leased area not being worked or
used for the purposes aforesaid.
(3) [Omitted]
(4) [Omitted]
10. Rent and royalty
(1) Subject to the succeeding provisions of this clause the
Company shall during the term of this Agreement pay to the
State in each year—
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(a) a rent calculated at the rate of 62 cents for each
hectare (and proportionately for part of a hectare) of
the leased area;
(b) in respect of each tonne of coal (not being unusable or
unsaleable waste coal or rubbish) won from the leased
area and used for the generation of electric power in
connexion with the industries referred to in Recital I
hereof or while the Company (whether alone or as
part of a partnership or joint venture with others) is
operating an aluminium smelting plant at Portland, a
basic royalty at the rate of—
(i) 38.7203 cents when the total quantity of such
coal won in any year does not exceed one
hundred and one thousand six hundred tonnes;
(ii) 29.0686 cents when such total quantity exceeds
one hundred and one thousand six hundred
tonnes;
(c) in respect of each tonne of coal as aforesaid won from
the leased area and used for the generation of electric
power otherwise than in connexion with the industries
referred to in Recital I hereof or while the Company
(whether alone or as part of a partnership or joint
venture with others) is operating an aluminium
smelting plant at Portland, a royalty at the rate from
time to time applicable to lignite under section 12A of
the Act;
(d) in respect of each tonne of coal as aforesaid won from
the leased area and sold or used by the Company for
any purpose other than as specified in paragraph (b)
or (c) of this clause, a basic royalty of 38.7203 cents.
(2) The said rent and basic royalties shall be paid by the
Company clear of all deductions whatsoever to the
Department of Primary Industries or its successor at
Melbourne on behalf of the State as follows—
(a) as to the rent, by equal half-yearly payments in
advance the first payment to be made on the date of
commencement and succeeding payments on the first
day of each half-yearly period thereafter;
(b) as to the basic royalties within thirty days after written
demand therefor by or on behalf of the State in respect
of each half-yearly period during the term of this
Agreement.
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(3) If the total royalty payable under this clause in respect of
coal won in any year exceeds the amount of the rent paid by
the Company in that year the rent so paid shall be accepted
by the State as part payment of that royalty.
(4) If the current index number for any year exceeds the base
index number then the royalty payable in respect of coal
won during that year, other than the royalty payable under
sub-clause (1)(c), shall be calculated at a rate bearing the
same proportion to the appropriate rate of royalty specified
in sub-clause (1) of this clause as the current index number
bears to the base index number.
(5) In the event of the Australian Statistician ceasing to publish
the Consumer Price Index the last preceding sub-clause shall
be modified from time to time by substituting for the
method therein specified of determining increases in royalty
rates such other method as the Secretary of the Department
of Treasury and Finance of the State certifies in writing to
be appropriate for determining those increases in similar
manner to the method so specified.
(6) The difference between the amount of basic royalty paid or
payable in respect of coal won in any year and the amount of
royalty payable by virtue of the provisions of sub-clause (4)
of this clause in respect of that coal shall be paid by the
Company within thirty days after a written demand therefor
by or on behalf of the State has been rendered to the
Company.
(7) [Omitted]
(8) The Company may at any time by instrument under its
common seal surrender to the State its rights under this
Agreement as to the whole or part of the leased area and in
the event of a partial surrender as aforesaid the said rent
shall from the next following day fixed for payment of rent
hereunder be reduced by a sum calculated at the rate of 62
cents for each hectare (and proportionately for part of a
hectare) of land comprised in the partial surrender.
11. Records and information
The Company shall—
(a) keep proper records of the quantities of coal won from
the leased area and of—
(i) the quantities of coal sold by it;
(ii) the quantities of coal used for the purpose of
generating electricity;
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(iii) the quantities of coal used for other purposes—
and shall permit the Minister or any person authorized
by the Minister in writing to inspect those records at
all reasonable times and to take copies thereof or
extracts therefrom;
(b) from time to time when requested so to do by the
Minister supply the Minister with such information
relating to the mining operations of the Company in
or on the leased area the freehold land the prior land
and the purchased land as the Minister may
reasonably require;
(c) furnish to the Secretary within fourteen days after the
end of each period of three months during the term of
this Agreement a return verified by a director or the
secretary of the Company showing in respect of that
period particulars of the matters specified in
paragraph (a) of this clause.
This clause does not limit the obligations of the Company
with respect to the keeping of proper records under the Act.
To the extent that there is an inconsistency between the
requirements of this clause and the requirements of the Act
with respect to the keeping of records, the requirements of
the Act prevail.
Division B—Mining Operations and Related Matters
12. Manner of operations
(1) The Company shall—
(a) [omitted];
(b) [omitted];
(c) [omitted];
(d) [omitted];
(e) [omitted];
(f) [omitted];
(g) during the term of this Agreement but subject to the
provisions of clause 25 hereof pay to the owner
occupier or lessee from the Crown of any adjoining
land such compensation in respect of any damage
sustained by such owner occupier or lessee by reason
of the Company's mining operations on in or under
the leased area the freehold land the prior land or the
purchased land as may be agreed upon by the
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Company with such owner occupier or lessee or with
the Minister or failing any such agreement as may be
determined by arbitration under the provisions hereof;
(h) [omitted];
(i) [omitted];
(j) in carrying out its mining operations on the leased
area the freehold land the prior land or the purchased
land, comply with the Act and all other statutory
provisions applicable thereto except to the extent
those provisions may be modified or excluded by this
Agreement or the Act referred to in clause 3 hereof.
13. Use of leased area
The Company shall not—
(a) [omitted];
(b) [omitted];
(c) use or occupy or permit the leased area to be used or
occupied for any purpose other than the exercise of
the rights herein granted or for the pasturage of stock
of or as garden ground for employees of the
Company;
(d) [omitted];
(e) [omitted].
14. [Omitted]
Division C—[Omitted]
15. [Omitted]
Division D—Other Obligations and Rights
16. [Omitted]
17. Roads
(1) If any work proposed by the Company is likely to result in
the severance or injury of any road (whether a public
highway or not) or part thereof formed or constructed on the
leased area the Company shall give notice to that effect to
the municipal or other authority responsible for the care and
management of the road or if there is no such authority to
the Minister.
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(2) Such authority or the Minister (as the case may be) shall
within two months after receipt of the said notice notify the
Company whether or not it or the Minister requires the
Company to construct an alternative road in lieu of the road
or part thereof likely to be severed or injured and if so
required the Company at its expense shall construct the
alternative road to a standard equivalent to that of the road
or part thereof it is intended to replace and in such location
as such authority or the Minister may reasonably require.
(3) The Company shall not commence the work proposed as
aforesaid until it has complied with the provisions of the last
preceding sub-clause.
18. Water supply works
(1) Except with the prior written consent of Barwon Water the
Company shall not carry out within fifteen metres of the
water supply infrastructure lying within the leased area and
which is vested in Barwon Water any mining operations or
other operations likely to cause damage to that water supply
infrastructure.
(2) Barwon Water in order to facilitate the Company's
operations shall as soon as practicable after being requested
by the Company in writing so to do remove the said water
supply infrastructure or portion thereof to another location
approved by Barwon Water.
(3) The Company shall pay to Barwon Water the cost of—
(a) removal of the said water supply infrastructure or
portion thereof upon request of the Company as
aforesaid;
(b) removal of the said water supply infrastructure or
portion thereof where such removal is effected by
Barwon Water in consequence of operations of the
Company which although not requiring the consent of
Barwon Water under sub-clause (1) of this clause
endanger or are in the opinion of Barwon Water likely
to endanger the said water supply infrastructure.
(4) Any additional water supply infrastructure installed or
proposed to be installed by Barwon Water will be subject to
individual agreement with the Company.
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(5) The Company shall have the rights for the purposes of this
Agreement—
(a) to construct maintain and operate such works as may
be approved by Southern Rural Water in or on the bed
or banks or both bed and banks of the Anglesea River;
(b) to carry out such diversions of any river stream creek
or watercourse or of any lake lagoon swamp or marsh
within the meaning of the Water Act 1989 situate
within the leased area the prior land and the purchased
land as may be approved by Southern Rural Water.
19. Electricity Commission Works
(1) [Omitted]
(2) [Omitted]
(3) In respect of the generation and distribution of electricity by
the Company from the power generating station hereinafter
mentioned and of the smelting and fabrication of aluminium
and the operation of ancillary services by the Company the
Company shall have the rights—
(a) to erect construct operate and maintain on the prior
land and the purchased land the said electric power
generating station and ancillary services;
(b) to erect construct and maintain on in or over the
leased area the prior land and the purchased land all
such equipment as may be necessary for the
distribution of electricity from the said power station;
(c) subject to the Mines (Aluminium Agreement) Act
1961, to compulsorily purchase take or use such land
easement right or privilege in over or affecting any
land as may be necessary for the erection ownership
operation and maintenance of the electricity
transmission line from the leased area the prior land
and the purchased land or any one or more of them to
the aluminium smelting and fabricating plant of the
Company at Point Henry hereinafter mentioned;
(d) [omitted];
(e) to erect construct maintain and operate on the lands of
the Company at Point Henry an aluminium smelting
and fabricating plant and ancillary services.
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(4) Notwithstanding anything contained in this Agreement
(other than sub-clause (5)) or in the State Electricity
Commission Act 1958 the Land Act 1958 or any other Act
of the Parliament of Victoria or regulations thereunder the
rights conferred by paragraphs (a) and (b) of the last
preceding sub-clause hereof shall continue for such period
(not being less than the term of this Agreement) and upon
such terms and conditions and subject to such provisions of
the said Acts and regulations as are prescribed by Order of
the Governor in Council.
(5) Paragraphs (a) and (b) of sub-clause (3) and sub-clause (4)
shall cease to apply on the earlier of:
(a) the date on which the Company permanently ceases to
operate an aluminium smelting and fabricating plant
on the lands of the Company at Point Henry; and
(b) 1 August 2014,
provided that nothing in this clause shall be taken to
prevent the Company from continuing to undertake the
activities referred to in paragraphs (a) and (b) of sub-clause
(3) to the extent it is permitted to do so without reference to
this Agreement.
20. [Omitted]
PART IIIA – OBLIGATIONS OF THE STATE
20A. The State shall –
(a) not impose nor take nor (insofar as it is competent to
do so) permit nor authorize any of its agencies or
instrumentalities or any local or other authority or
Minister of the Crown or public statutory corporation
of the State to take or cause to occur any action or
combination of actions, including without limitation,
the imposition of any taxes, rates or charges of any
nature whatsoever, which –
(i) has the effect of modifying or subtracting from
the Company's rights or adding to any of its
obligations under this Agreement or any other
agreement relating to the smelter at Point
Henry;
(ii) is discriminatory to, or has a discriminatory
effect on, or is directed at the smelter at Point
Henry or the Company; or
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(iii) discriminates adversely between the Company
and other industrial or commercial enterprises
in the State in respect of the income, titles,
property or other assets, products, materials or
services used or produced by or through the
operation of the smelter at Point Henry and the
disposal of aluminium and waste products
produced in the smelter or is discriminatory to
the aluminium industry or is directed at the
aluminium industry;
(b) not, without the consent of the Company, resume nor
(insofar as it is competent do so) suffer nor permit to
be resumed, other than for the purpose of "public
construction" as defined in the Project Development
and Construction Management Act 1994 (as
amended), any of the works installations plant
equipment or other property for the time being
belonging to the Company and the subject of or used
for the purpose of this Agreement where to do so
would unduly prejudice or interfere with the
Company's operations hereunder; and
(c) make such representations as may be necessary to the
Commonwealth with respect to, and use its good
offices in relation to, the remedy or amelioration of or
removal by the Commonwealth of any adverse effect
on the progress or cost of the construction and
operation of the smelter at Point Henry or on that
smelter, the Company, this Agreement or any other
agreement relating to the smelter resulting from
Commonwealth Government policies including,
without limiting the generality of the foregoing, the
imposition of import duties, as soon as practicable
after the occurrence of such effect.
PART IV—APPLICATION OF CERTAIN ACTS
21. Application of Act
(1) The Act so far as it is not inconsistent herewith shall with
such adaptations as are necessary apply to this Agreement
and the mining operations of the Company on the leased
area the freehold land the prior land and the purchased land
as if this Agreement were a mining licence granted under the
provisions of the Act and the Company were the registered
proprietor thereof.
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(2) Without affecting the generality of the last preceding subclause—
(a) sections 12 and 12A of the Act, and any other
provisions of the Act or another law that commence
following the execution of the Amendment
Agreement which relate to the subject matter of those
sections, shall not apply to this Agreement;
(b) section 85 of the Act, and any other provisions of the
Act or another law that commence following the
execution of the Amendment Agreement which relate
to the subject matter of that section, shall not apply to
this Agreement.
21A. Deemed approved work plan
The work plan in relation to the leased area the freehold land
and the prior land submitted by the Company to the
Department and endorsed by the Department is deemed to
be an approved work plan under the Act, and the Company
is deemed to have a work authority in respect of that work
plan. To avoid doubt, any future variation of the work plan
will be dealt with in accordance with the Act.
21B. Application of the Aboriginal Heritage Act 2006
(1) For the avoidance of doubt—
(a) the Aboriginal Heritage Act 2006 and any
regulations made under it shall, as far as reasonably
practicable, apply to this Agreement and the
operations of the Company on the leased area the
freehold land the prior land and the purchased land;
(b) any variation of the work plan referred to in clause
21A will be dealt with in accordance with the
Aboriginal Heritage Act 2006; and
(c) Part 4, Division 3 of the Aboriginal Heritage Act
2006 has no effect in respect of the endorsement of
the work plan referred to in clause 21A by the
Department.
(2) Before any mining activity authorised by the work plan
referred to in clause 21A is undertaken on any part of the
leased area the freehold land or the prior land, a cultural
heritage management plan in respect of that area must be
approved under Part 4 of the Aboriginal Heritage Act
2006, except where the mining activity is within an area that
has been subject to significant ground disturbance.
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(3) The expressions 'cultural heritage management plan' and
'significant ground disturbance', as used in sub-clause (2),
have the meaning given by the Aboriginal Heritage Act
2006.
21C. Application of Occupational Health and Safety Act 2004
The Company acknowledges that the Occupational Health
and Safety Act 2004 and any regulations made under that
Act apply to this Agreement and the mining operations of
the Company on the leased area the freehold land the prior
land and the purchased land.
21D. Mine extension process
(1) This clause applies if the Company proposes to extend its
mining operations:
(a) outside the stage 1 area; or
(b) outside the area in which such operations are being
conducted in accordance with a mine extension plan
previously approved in accordance with this clause,
but within the specified area. Any such mine extension
requires the approval of a mine extension plan by the
Secretary or his or her delegate in accordance with the
approval process specified in this clause and the work plan
referred to in clause 21A.
(2) If this clause applies the Company must, prior to submitting
a mine extension plan for approval, consider and analyse the
available options for the mine extension. The options
analysis prepared by the Company must specifically
evaluate any potential significant additional environmental
impacts as well as the potential measures to mitigate those
impacts.
(3) Following completion of the options analysis described in
sub-clause (2), the Company must submit a mine extension
plan to the Department in accordance with the work plan,
and include –
(a) a summary of the options analysis undertaken in
accordance with sub-clause (2);
(b) an outline of the proposed mine extension and related
environmental impact mitigation actions that would
be implemented as part of the mine extension plan;
and
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(c) information identifying any potential significant
additional environmental impacts likely to result from
the mine extension after taking account of the actions
proposed by the Company (as described in the
submitted documentation) to mitigate the
environmental impacts of the mine extension
described in the mine extension plan.
(4) The Company may consult with the Department, the
Department of Planning and Community Development and
any other relevant State or Commonwealth government
department concerning the mine extension plan and the
coordination of the processes described in sub-clauses (2)
and (3) with the process for any other State or
Commonwealth approvals or permits required in
connection with the mine extension.
(5) On receipt of the mine extension plan by the Department
and following the Department's initial assessment of the
plan, the Minister will refer the plan to the Minister
administering the Environment Effects Act 1978 for
advice regarding whether the proposed mine extension is
likely to have a significant additional environmental
impact, after taking account of the actions proposed by the
Company to mitigate the environmental impacts of the
mine extension described in the mine extension plan.
(6) The Minister, after considering the advice of the Minister
administering the Environment Effects Act 1978, may
advise the Company that he or she is satisfied that:
(a) the proposed mine extension is not likely to have a
significant additional environmental impact, in which
case the mine extension plan may be approved by the
Secretary or his or her delegate in accordance with the
process set out in the work plan without further regard
to this clause; or
(b) the proposed mine extension is likely to have a
significant additional environmental impact, in which
case the mine extension plan must not be approved by
the Secretary or his or her delegate until an
environmental impact and management report
("EIMR") has been prepared to assess the likely
significant additional environmental impact of the
proposed mine extension described in the mine
extension plan, in accordance with this clause and the
work plan.
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(7) If an EIMR is required, the Minister administering the
Environment Effects Act 1978 must promptly specify the
scope for the EIMR having regard to:
(a) any relevant Ministerial guidelines made under the
Environment Effects Act 1978 (but only insofar as
those guidelines relate to the significant additional
environmental impacts that have been identified as
being likely to result from the proposed mine
extension);
(b) the objective of minimising any significant additional
environmental impacts of the proposed mine
extension in the context of enabling coal extraction;
(c) the objective of limiting consultation on the EIMR to
sections of the public that have a material and
established interest in the significant additional
environmental impacts that have been identified as
being likely to result from the proposed mine
extension;
(d) the actions proposed by the Company to mitigate the
environmental impacts of the mine extension
described in the mine extension plan; and
(e) the requirements applicable to the process for
obtaining any other concurrent State or
Commonwealth approvals or permits required for the
proposed mine extension.
(8) If required to do so under sub-clause (6), the Company
must prepare an EIMR to assess the likely significant
additional environmental impact of the proposed mine
extension described in the mine extension plan, in
accordance with the requirements of sub-clause (7).
(9) The Minister administering the Environment Effects Act
1978 may appoint one or more persons to advise him or her
on the EIMR and the mine extension plan. However, any
review by such person or persons must not involve a public
hearing and must occur in a timely way.
(10) Following completion of the EIMR and any advice from a
person or persons appointed under sub-clause (9), the
Minister administering the Environment Effects Act 1978
must, within a reasonable period of time, provide an
assessment of the EIMR ("Planning Minister's
Assessment") to the Minister to inform the decision by the
Secretary or his or her delegate with respect to any
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conditions to which the mine extension plan may be
subject.
(11) In considering the mine extension plan the Secretary or his
or her delegate must have regard to the Planning Minister's
Assessment, and the geotechnical, practical and financial
aspects of the proposed mine extension, and may, subject to
sub-clauses (12), (13) and (14), impose on his or her
approval of the mine extension plan conditions that achieve
a balance between any recommendations made in the
Planning Minister's Assessment and the geotechnical,
practical and financial aspects of the mine extension plan.
Any such conditions will be deemed to be incorporated in
the work plan referred to in clause 21A.
(12) Should the Secretary or his or her delegate consider that a
deviation from any of the conditions recommended in the
Planning Minister's Assessment would be appropriate, the
Secretary or his or her delegate will provide any relevant
information and seek the agreement of the Minister
administering the Environment Effects Act 1978 before
imposing any conditions that are not substantially
consistent with the conditions recommended in the
Planning Minister's Assessment. To avoid doubt, any
agreement about conditions is subject always to the
restrictions on conditions contained in sub-clause (14) and
the requirement for the Secretary or his or her delegate to
seek the agreement of the Minister administering the
Environment Effects Act 1978 does not affect the
responsibility of the Secretary or his or her delegate to
exercise his or her discretion to determine the conditions
where such agreement is not able to be obtained.
(13) The Secretary or his or her delegate must consult with the
Company prior to imposing conditions under sub-clause
(11).
(14) The Secretary or his or her delegate may not impose
conditions on his or her approval of a mine extension plan
which:
(a) have the effect of preventing the Company from
conducting mining operations in the specified area;
(b) require the Company to provide native vegetation
offsets; or
(c) are otherwise inconsistent with the rights of the
Company under this Agreement.
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(15) The Company must comply with any conditions on the
approval of a mine extension plan that are deemed to be
incorporated in the work plan in accordance with subclause (11).
(16) The Company and the State must cooperate and consult
regularly concerning the operation of this clause.
(17) To avoid doubt:
(a) the process specified in this clause applies to the
approval of a mine extension within the specified area
and as such does not require a variation to the work
plan which could trigger the application of the
Environment Effects Act 1978; and
(b) any mine extension which requires a variation to the
work plan referred to in clause 21A will be dealt with
in accordance with the Act and accordingly will be
subject to all applicable legislative and regulatory
requirements at the time (including the Environment
Effects Act 1978).
PART V—OTHER PROVISIONS AS TO COMPANY'S
RIGHTS AND OPERATIONS
Division A—[Omitted]
22. [Omitted]
23. [Omitted]
Division B—Restriction of Rights
24. Restriction of rights in respect of Anglesea River etc.
Notwithstanding anything herein contained the Company
shall not be entitled—
(a) to fence or otherwise enclose any part of the boundary
of the leased area which coincides with or abuts on
the left bank of the Anglesea River;
(b) to obtain a grant in fee simple of or to exercise any
rights (other than under clause 18 hereof) hereunder
on or in any part of—
(i) the bed or banks of the Anglesea River; or
(ii) any land abutting on the Anglesea River which
is now reserved for public purposes under the
provisions of the Land Act 1958.
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Division C—Further Provision as to Operations of the Company
25. Obligations of Company as to operation etc. of works
The Company in constructing equipping and operating its
works on the leased area the freehold land the prior land the
purchased land and its land at Point Henry shall—
(a) comply with accepted modern practice for the
construction equipment and operation of works of a
like nature;
(b) comply with any Act applicable to the construction
equipment or operation of those works; and
(c) endeavour to avoid so far as is reasonable and
practicable the creation of any nuisance—
and if the Company does so it shall not be liable for any
nuisance which is not due to negligence on its part—
Provided that the Company shall have the onus of proving
that it has complied with paragraphs (a), (b) and (c) of this
clause and that it has not been negligent.
PART VI—OTHER PROVISIONS AFFECTING OPERATION
OF AGREEMENT
Division A—Determination of Company's Rights
26. Determination of Agreement
(1) If at any time the Company enters into liquidation (other
than a voluntary liquidation for the purpose of
reconstruction and assignment of rights under this
Agreement) the Minister may determine this Agreement.
(2) If—
(a) the Company at any time fails to comply with the
terms and conditions of this Agreement; and
(b) the Minister having given to the Company at least six
months' written notice requiring it to remedy that
failure either wholly or so far as it is possible to do so
within the period of the notice, the Company does not
comply with the notice—
the Minister may apply to a judge of the Court in chambers
for a summons calling upon the Company to show cause
why this Agreement should not be determined.
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(3) Upon the hearing of any summons issued under the last
preceding sub-clause the following provisions shall apply—
(a) unless the Court considers that the failure aforesaid
was due to mistake or to circumstances beyond the
control of the Company or that there was otherwise a
reasonable cause therefor and that the State has not
been and will not be materially prejudiced by that
failure, the Court may by order authorize the Minister
to determine this Agreement and thereupon the
Minister may determine it accordingly;
(b) evidence may be given by affidavit or if the Court so
directs may be given orally or partly by affidavit and
partly orally;
(c) subject to the last preceding paragraph the procedure
shall be as the Court may direct;
(d) the Court may make such order as to costs as it deems
just.
(4) In the last preceding sub-clause "Court" means the
Supreme Court of the State of Victoria or a Judge thereof.
(5) The provisions of sub-clause (2) of this clause shall not
affect any other right or remedy which the State may have in
respect of any breach or non-observance by the Company of
the terms and conditions of this Agreement.
Division B—Supplemental
27. Disputes
(1) In the event of any dispute between the parties hereto in
relation to or in respect of any matter arising under or out of
this Agreement (other than a dispute as to any matter
referred to in the last preceding clause) either party may give
to the other written notice requiring the dispute to be
submitted to arbitration within the period of thirty days
thereafter unless meanwhile the dispute shall have been
settled. In the event of the dispute not being settled within
that period it shall forthwith be referred to arbitration in
accordance with the Commercial Arbitration Act 1984.
(2) For the avoidance of doubt, Part II of the Act shall apply in
relation to any "dispute" (as that term is defined in the Act)
between the parties hereto.
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28.
Notices
(1) Section 122 of the Act applies to any notice order demand or
other writing authorized or required by this Agreement.
(2) [Omitted]
IN WITNESS whereof the parties hereto have executed this Agreement the
day and year first before written.
Signed Sealed and Delivered by the said
WILFRED JOHN MIBUS in the presence of
(Sgd.) R. W. TERRY
The Common Seal of ALCOA OF AUSTRALIA
PROPRIETARY LIMITED was hereto
affixed by authority of the Directors in the
presence of
(Sgd.) J. CHESTER GUEST, Director.
(Sgd.) B. G. BRETT, Secretary.




(Sgd.) W. J. MIBUS
(Seal).








(Seal.)
A map is annexed to the Agreement and endorsed as follows:
"The plan lodged at the Central Plan Office and assigned plan
number LEGL./11-019, a copy of which is attached to this
Annexure, is the annexed plan referred to in the Agreement dated
22 November 1961 between the Honourable Wilfred John Mibus for
and on behalf of the State of Victoria and Alcoa of Australia Limited
(formerly Alcoa of Australia Proprietary Limited) as amended by an
Amendment Agreement dated 19 October 2011 between the
Honourable Michael O'Brien for and on behalf of the State of
Victoria as Minister for Energy and Resources and Alcoa of
Australia Limited."
13 Repeal of amending Act
This Act is repealed on 1 January 2013.
Note
The repeal of this Act does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
═══════════════
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Endnotes
ENDNOTES
†
Minister's second reading speech—
Legislative Assembly: 26 October 2011
Legislative Council: 10 November 2011
The long title for the Bill for this Act was "A Bill for an Act to amend the
Mines (Aluminium Agreement) Act 1961 to provide for amendments to
the agreement in the Schedule to that Act, to repeal the Mines
(Aluminium Agreement) (Brown Coal Royalties) Act 2005 and for
other purposes."
51