Version No. 003
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
Version incorporating amendments as at
30 November 2011
TABLE OF PROVISIONS
Section
1
2
3
4
4A
4B
5
6
7
7A
8
9
10
Page
Short title
2
Interpretation
2
Act to bind Crown
3
Ratification etc. and enforcement of Agreement and modification
of Acts etc.
3
Ratification of the Amendment Agreement
4
Application of Occupational Health and Safety Act 2004
4
Leased area and reserve area to cease to be State forest
5
Timber in leased area and reserve area to remain Crown property 5
Enactment of certain provisions of Agreement
5
Power to authorise compulsory purchase of land
5
Easements for transmission of electricity
6
Public statutory corporation may enter into agreements
6
Agreement deemed to include certain provisions
7
__________________
SCHEDULES
9
SCHEDULE 1—Agreement
9
SCHEDULE 2—Amendment Agreement
33
═══════════════
ENDNOTES
77
1. General Information
77
2. Table of Amendments
78
3. Explanatory Details
79
i
Version No. 003
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
Version incorporating amendments as at
30 November 2011
An Act to ratify validate approve and otherwise give effect to an
Agreement between the Minister of Mines and Alcoa of Australia
Proprietary Limited with respect to the Establishment within the State
of Victoria of Industries for the Production of Aluminium and for the
Manufacture of Goods therefrom and to the Granting of certain
Mineral and other Rights incidental to establishing and carrying on
such Industries and for other Purposes connected therewith.
Preamble
WHEREAS an Agreement with respect to the
establishment in Victoria of 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 was
made on the twenty-second day of November One
thousand nine hundred and sixty-one between
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 other
part:
AND WHEREAS by the said Agreement it is
provided that the said Agreement shall not be of
any force or effect until it has been validated
approved and otherwise given effect to by an Act
of the Parliament of Victoria:
AND WHEREAS it is expedient to ratify validate
approve and otherwise give effect to the said
Agreement and to make other provision as
hereinafter enacted:
1
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
s. 1
BE IT THEREFORE ENACTED by the Queen's Most
Excellent Majesty by and with the advice and consent of the
Legislative Council and the Legislative Assembly of Victoria
in this present Parliament assembled and by the authority of
the same as follows (that is to say):
1 Short title
This Act may be cited as the Mines (Aluminium
Agreement) Act 1961.
2 Interpretation
In this Act unless inconsistent with the context or
subject-matter—
S. 2(a)
amended by
No. 68/2011
s. 5(1).
(a) The Agreement means the agreement a copy
of which is set out in Schedule 1 and
includes the amendments made, ratified,
validated and approved by the Mines
(Aluminium Agreement) Amendment Act
2011 and the plan which is annexed to the
Agreement as amended and which is referred
to in the said Schedule; and
S. 2(ab)
inserted by
No. 68/2011
s. 5(2).
(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;
S. 2(ac)
inserted by
No. 68/2011
s. 5(2).
(ac) reserve area has the same meaning that it
had immediately before the commencement
of the Mines (Aluminium Agreement)
Amendment Act 2011;
(b) expressions used in this Act shall have the
meanings respectively assigned to them in
the Agreement.
2
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
s. 3
3 Act to bind Crown
This Act shall bind the Crown.
4 Ratification etc. and enforcement of Agreement and
modification of Acts etc.
(1) The Agreement is hereby ratified validated and
approved and shall be given effect to.
(2) The following provision shall be read as in aid of
and not as in derogation from the provisions of the
last preceding subsection—
(a) the Minister and all authorities and officers
concerned are hereby empowered to carry
out the Agreement and to enter into such
agreements and give such approvals as are
provided for by it; and
(b) this Act and the Agreement shall take effect
notwithstanding anything in any Act and in
particular notwithstanding anything in—
(i) the Mineral Resources (Sustainable
Development) Act 1990;
S. 4(2)(b)(i)
amended by
No. 68/2011
s. 6(a).
(ii) the Forests Act 1958;
(iii) the Water Act 1989;
S. 4(2)(b)(iii)
amended by
No. 68/2011
s. 6(b).
(iv) the State Electricity Commission
Act 1958;
(v) the Local Government Act 1989;
3
S. 4(2)(b)(v)
amended by
No. 68/2011
s. 6(c).
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
s. 4A
S. 4(2)(b)(vi)
substituted by
No. 10115
s. 17(a),
amended by
No. 68/2011
s. 6(d).
(vi) the Transport (Compliance and
Miscellaneous) Act 1983;
(vii) the Land Act 1958;
(viii) the Electric Light and Power Act
1958—
or in any proclamation regulation Order in
Council lease licence authority permit or
agreement under any Act; and every Act
proclamation regulation Order in Council
lease licence or authority permit or
agreement shall by virtue of this Act be
deemed to be modified to the extent
necessary to give full force and effect to this
Act and the Agreement (but not further or
otherwise) and shall be read and construed
and take effect accordingly.
S. 4A
inserted by
No. 68/2011
s. 7.
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.
S. 4B
inserted by
No. 68/2011
s. 7.
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.
4
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
s. 5
5 Leased area and reserve area to cease to be State
forest
Upon the coming into operation of the Agreement
the leased area and the reserve area shall cease to
be State forest within the meaning of the Forests
Act 1958.
6 Timber in leased area and reserve area to remain
Crown property
All trees and timber within the meaning of the
Forests Act 1958 which are at or after the coming
into operation of the Agreement in any part of the
leased area or of the reserve area not being
worked or used in the exercise of rights under the
Agreement shall remain and be the property of the
Crown and the provisions of section fifty-two of
the said Act shall apply in relation to such trees
and timber as if they were on Crown land within a
protected forest within the meaning of that Act.
7 Enactment of certain provisions of Agreement
The provisions of subclause (5) of clause 18,
subclauses (3) and (4) of clause 19, clause 20A,
clauses 21, 21A, 21B, 25 and 26 of the Agreement
shall have the same force and effect as if enacted
in this Act.
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.
5
S. 7
amended by
Nos 10115
s. 17(b),
68/2011 s. 8.
S. 7A
inserted by
No. 68/2011
s. 9.
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
s. 8
(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.
S. 8
inserted by
No. 10115
s. 16.
8 Easements for transmission of electricity
S. 9
inserted by
No. 10115
s. 16.
9 Public statutory corporation may enter into
agreements
The Company has the benefit of all easements,
rights or privileges now held or hereafter to be
acquired by the State Electricity Commission over
or affecting land for or in connexion with or
necessary for the operation of the 220 kV 3 phase
transmission line to the smelter at Point Henry
connecting the Company's Anglesea Power
Station to that smelter independent of the State
Electricity Commission's supply from the Geelong
Terminal Station to that smelter.
Where any public statutory corporation has power
to construct pipelines, water mains, sewerage
works, gas mains, powerlines, wharf facilities or
other similar structures and to purchase or acquire
land compulsorily for that purpose or to enter into
contracts for the supply of goods or services any
such corporation may enter into an agreement
with the Company which provides for the
co-operation between the public statutory
corporation and the Company in the construction
of pipelines, water mains, sewerage works, gas
mains, powerlines, wharf facilities or other similar
structures required for their respective purposes or
for the supply of goods or services and the parties
6
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
s. 10
to any such agreement are hereby authorized to do
all things necessary or expedient to carry out any
such agreement and to give or receive indemnities
in any such agreement.
10 Agreement deemed to include certain provisions
The Agreement shall have effect as if the
following Part were inserted after Part III:
"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;
7
S. 10
inserted by
No. 10115
s. 16.
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
s. 10
(b) not, without the consent of the Company,
resume nor (insofar as it is competent to do so)
suffer nor permit to be resumed, other than for
the purpose of a "public project" as defined in
the Public Lands and Works Act 1964 (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.".
__________________
8
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
Sch. 1
SCHEDULES
SCHEDULE 1
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.
NOW IT IS HEREBY AGREED as follows—
PART I—PRELIMINARY
1. Definitions
In this Agreement unless inconsistent with the context or
subject matter—
9
Sch.
(Heading)
substituted by
No. 68/2011
s. 11(a).
Sch. 1
(Heading)
inserted by
No. 68/2011
s. 11(b).
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
Sch. 1
"the Act" means the Mines Act 1958 of the Parliament of
Victoria;
"base index number" means the index number for
Melbourne for the December quarter of the year One
thousand nine hundred and sixty-one shown in the
Consumer Price Index published by the
Commonwealth Statistician;
"Chief Mining Inspector" means the person for the time
being holding the office of Chief Mining Inspector in
the Department of Mines or performing the duties of
that office;
"Company" means the said Alcoa of Australia Proprietary
Limited and includes its assigns;
"current index number" in respect of any year means the
average index number for Melbourne for the whole of
that year as determined by the Commonwealth
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;
"former forest area" means the parts of the leased area and
the reserve area which are surrounded by a green
verge and marked "A" and "B" respectively on the
plan annexed hereto and contain (subject to survey)
1331 acres more or less;
"leased area" means the land (excluding the prior land the
power station site and the purchased land) within the
boundaries shown on the plan annexed hereto by a red
verge and which together with the power station site
contains (subject to survey) 10,865 acres more or less;
"Minister" means the responsible Minister of the Crown
for the time being administering the Act;
"Power station site" means such part (not exceeding one
hundred acres) of the land within the boundaries
shown on the plan annexed hereto by a red verge as
the Company selects as the site of the power
generating station referred to in clause 15 hereof;
"prior land" means the land coloured purple on the plan
annexed hereto containing (subject to survey) 99 acres
more or less;
10
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
Sch. 1
"purchased land" means the land described in subclause (3) of clause 20 hereof;
"regulations" means the regulations for the time being in
force under the Act;
"reserve area" means the land within the boundaries
shown on the plan annexed hereto by a blue verge
containing (subject to survey) 7,500 acres more or
less;
"Secretary" means the person for the time being holding
the office of Secretary for Mines or performing the
duties of that office;
"State" means the State 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;
"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 Mines Act 1958 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 re-enactment 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
If the Company assigns all or any of its rights under this
Agreement the following provisions shall have effect—
(a) the assignee shall by virtue of the assignment and the
Act referred to in the last preceding clause be subject
to the relevant obligations and conditions imposed
11
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
Sch. 1
upon the Company by this Agreement so far as they
remain in force and capable of taking effect; and
(b) if the Minister so stipulates in giving his consent to
the assignment the Company shall remain responsible
to the State for the performance of all its obligations
under this Agreement as if no assignment had been
made.
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 fifty years from the date of
commencement.
7. Extension of Agreement
(1) Subject to compliance by the Company with the terms and
conditions of this Agreement the Company shall upon
written application made by it to the Minister not later than
six months prior to the expiration of the period specified in
the last preceding clause be entitled to an extension of that
period for such period not exceeding fifty years as is
specified in its application.
12
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
Sch. 1
(2) If the Minister so determines an extension pursuant to the
last preceding sub-clause shall be subject to the variation of
the terms and conditions of this Agreement (except clauses
9, 10, 18, 19, 22 to 27 (both inclusive) and sub-clause (2) of
clause 14 hereof) so as to make them consistent with the
covenants (other than labour covenants) conditions and
provisos prescribed by the regulations for leases for the
purpose of mining for coal on Crown land.
(3) If—
(a) the Company not later than nine months prior to the
expiration of the period of any extension pursuant to
sub-clause (1) of this clause makes written application
to the Minister for the further extension of the term of
this Agreement for a 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 further
extension as aforesaid upon the terms and conditions
expressed in the notification by the Minister and shall
thereupon become entitled to such further extension. In the
event of the Company failing so to accept such further
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 lease 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.
13
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
Sch. 1
8. Variation of Agreement by Minister in certain event
If 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 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 15 hereof the Minister at any time thereafter may
by an instrument under his hand vary the provisions of this
Agreement in such manner as he 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 leases for the
purpose of mining for coal on the leased area in accordance
with the provisions of the Act.
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
14
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
Sch. 1
(b) the reservation to the State and all persons duly
licensed in that behalf of the right to take carry away
and use any sand stone gravel clay or earth 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) The following provisions shall apply to and in respect of the
reserve area—
(a) during the first five years of the term of this
Agreement the Company shall carry out on the
reserve area a program of exploratory drilling;
(b) the Company may from time to time within the first
five and one-half years of the said term by written
notice given to the State elect to have the terms and
conditions of this Agreement applied to the reserve
area or portion thereof specified in the notice;
(c) if the Company so elects then as from the
commencement of the next following half-yearly
period of the term of this Agreement the expression
"leased area" herein shall unless inconsistent with the
context or subject-matter include (as the case
requires) the reserve area or portion thereof specified
in the Company's notice of election but so that—
(i) coal won from the reserve area may be sold or
used by the Company for the generation of
electric power or in connexion with the
industries referred to in Recital I hereof but for
no other purpose;
(ii) if coal so won is used for any purpose other
than as specified in the last preceding subparagraph the Minister may at any time
thereafter by an instrument under his hand vary
the provisions of this Agreement so far as it
affects the reserve area in the manner provided
in clause 8 hereof.
(4) The boundaries of the former forest area the leased area the
prior land the purchased land the reserve area and the power
station site shall be as determined by survey to be made as
soon as practicable at the expense of the Company by a
licensed surveyor within the meaning of the Land
Surveyors Act 1958 and the Company shall as soon as
possible deliver to the Secretary a copy of the plan or plans
of survey and field notes thereof. The copy plan or plans so
15
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
Sch. 1
delivered shall subject to the provisions of clauses 19 and 20
hereof be conclusive evidence of the said boundaries.
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—
(a) a rent calculated at the rate of two shillings and
sixpence for each acre (and proportionately for part of
an acre) of the leased area;
(b) in respect of each ton of coal (not being unusable or
unsaleable waste coal or rubbish) won from the leased
area and used for the generation of electric power or
in connexion with the industries referred to in
Recital I hereof, a basic royalty at the rate of—
(i) four pence when the total quantity of such coal
won in any year does not exceed one hundred
thousand tons;
(ii) three pence when such total quantity exceeds
one hundred thousand tons;
(c) in respect of each ton of coal as aforesaid won from
the leased area and sold or used by the Company for
any purpose other than as specified in the last
preceding paragraph, a basic royalty of four pence.
(2) The said rent and basic royalties shall be paid by the
Company clear of all deductions whatsoever to the
Accountant to the Department of Mines 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.
(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.
16
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
Sch. 1
(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 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 Commonwealth Statistician ceasing to
publish the Consumer Price Index the last preceding subclause 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 Government Statist 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) Until the survey mentioned in sub-clause (4) of the last
preceding clause has been completed the rent payable under
this clause shall be calculated and paid on the basis of the
areas specified in clause 1 hereof. When the said survey has
been completed any necessary adjustment of rent so paid
shall be made on the next following day fixed for payment
of rent hereunder.
(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 two
shillings and sixpence for each acre (and proportionately for
part of an acre) 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;
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Mines (Aluminium Agreement) Act 1961
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(ii) the quantities of coal used for the purpose of
generating electricity;
(iii) the quantities of coal used for other purposes—
and shall permit the Minister or any person authorized
by him 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 him with such information relating to
the mining operations of the Company in or on the
leased area as he 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.
Division B—Mining Operations and Related Matters
12. Manner of operations
(1) The Company shall—
(a) carry out its operations on the leased area in a safe
skilful and workmanlike manner;
(b) permit an Inspector of Mines or any other person
authorized by the Minister free access at all
reasonable times to the place where coal won from the
leased area is kept or stored and to inspect examine
measure or weigh the coal and to determine what
quantity or proportion thereof is usable or marketable
coal;
(c) before commencing to sink any shaft on the leased
area or to use any shaft already sunk thereon deposit
with the Secretary such sum as the Minister may fix
by way of guarantee that before any such shaft is
abandoned it will be securely covered to the
satisfaction of the Chief Mining Inspector;
(d) securely cover as aforesaid any such shaft before
abandoning it;
(e) during the term of this Agreement effectually drain
the parts of the leased area from time to time being
worked by the Company and pump out all water
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Mines (Aluminium Agreement) Act 1961
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Sch. 1
likely to cause injury thereto or which would prevent
or interfere with the working thereof;
(f) make such provision for the disposal of the silt sludge
detritus dirt waste or refuse of or from the Company's
works on the leased area so that the same will not
flow or find its way into any water channel leading
into or from the storage works of any public body or
so as to injure or interfere with any land set apart for
water supply purposes or become an actionable
nuisance or obstruction to any roads ways rivers
creeks or private or Crown lands;
(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 him by reason of the Company's
operations on in or under the leased area as may be
agreed upon by the 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) at all times during the operation of this Agreement
keep and preserve the Company's works as aforesaid
in good repair and condition and at the expiration or
sooner determination of the term of this Agreement
deliver up peaceable possession of the leased area to
some person authorized to receive possession thereof
on behalf of the State;
(i) permit any person authorized by the Minister with all
proper assistants at all reasonable times during the
term of this Agreement to enter into and upon every
part of the Company's works as aforesaid and to
survey and examine the state and condition thereof
and for the purpose aforesaid to descend all pits and
shafts and to use all roads equipment labour and other
things in or on the works or in or on any adjacent land
held in connexion therewith which shall be deemed
necessary by the person so authorized without making
any compensation therefor but so that in so doing no
unnecessary interference with the Company's
operations shall be caused;
(j) in carrying out its operations on the leased area,
comply with all statutory provisions applicable thereto
except to the extent those provisions may be modified
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or excluded by this Agreement or the Act referred to
in clause 3 hereof.
(2) If the Company fails to carry out any work necessary to
comply with the provisions of paragraph (d) of the last
preceding sub-clause the Minister may cause that work to be
done and the cost thereof paid out of the sum referred to in
paragraph (c) of that sub-clause.
13. Hydraulic mining
The Company shall not—
(a) except in accordance with conditions fixed by the
Minister (not being more onerous than the conditions
prescribed by the regulations for leases for the
purpose of mining for minerals by means of hydraulic
sluicing or of any method of dredging) and with the
approval of the Sludge Abatement Board appointed
pursuant to the Act, work any portion of the leased
area by means of hydraulic mining;
(b) in working the leased area do or permit to be done any
wilful negligent or improper act whereby an undue
proportion of unusable or unsaleable waste coal may
be produced therefrom;
(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) close or obstruct any adit to or from any mine
contiguous to the leased area whereby fresh air is
admitted or ventilation promoted;
(e) without the prior written consent of the Minister
assign mortgage charge or encumber its rights under
this Agreement in respect of the leased area or sublet
or part with possession of the leased area or any part
thereof.
14. Company may be ordered to execute works
(1) The Chief Mining Inspector or any other officer authorized
by the Minister may order that any of the galleries drives
air-ways passages water-ways or adits used in connexion
with the working of the leased area shall be stowed and may
from time to time by order in writing direct that such
engineering or other works whether of masonry or otherwise
be constructed and erected as in his opinion are required for
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Mines (Aluminium Agreement) Act 1961
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Sch. 1
the support of the surface of the leased area or any land
adjacent thereto or as a precaution against any contingent
damage to any road specified in the order formed on the
leased area or immediately adjacent thereto and the
Company shall upon receipt of the order forthwith execute
at its cost to the satisfaction of the Chief Mining Inspector or
such other officer all works so specified.
(2) The Company shall from time to time carry out on the
leased area such works for the purpose of rehabilitating any
part thereof as may be agreed upon by the Company and the
Minister or failing agreement as may be determined as
reasonable by arbitration pursuant to clause 27 hereof, but
so that the Company shall not be obliged to rehabilitate a
part of the leased area until it has fully exercised its rights
under this Agreement in respect of that part.
Division C—Obligations of Company as to Expenditure
15. Expenditure during first nine years
(1) During the first nine years of the term of this Agreement the
Company shall expend—
(a) in each of those years in improvements on the leased
area and in carrying on exploratory and mining
operations on the leased area a sum which having
regard to the total sum expended in previous years
will produce an average annual expenditure from time
to time of not less than fifty thousand pounds;
(b) a total sum not less than six million pounds in the
development of and purchase of equipment for the
leased area and in the construction and equipment of
an electric power generating station and other
improvements on the power station site.
(2) The Company shall within sixty days after the expiration of
each of the said nine years deliver to the Secretary a
balance-sheet or statement certified as correct by the
Company's auditors and showing in respect of the last
preceding year of the term of this Agreement the sums
expended for the purposes specified in the last preceding
sub-clause.
(3) If in the event of the Company failing to expend the sum
specified in paragraph (b) of sub-clause (1) of this clause for
the purposes and within the period specified in that subclause the Company establishes to the satisfaction of the
Minister that there is reasonable expectation that the said
sum will have been expended for those purposes on or
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Mines (Aluminium Agreement) Act 1961
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Sch. 1
before the expiration of the first twelve years of the said
term the period so specified shall be extended accordingly.
(4) If the Company fails to expend the sum specified in
paragraph (b) of sub-clause (1) of this clause for the
purposes therein specified within the first nine years or
(if the case so requires) twelve years of the said term the
Minister may at any time thereafter determine this
Agreement subject to his having given to the Company at
least six months' written notice in that behalf.
(5) If this Agreement is determined pursuant to the last
preceding sub-clause the Company shall during the period
of six months after the date of determination have the first
right to apply in accordance with the Act for leases for the
purpose of mining for coal on the leased area.
Division D—Other Obligations and Rights
16. Notice of operations affecting former forest area
(1) The Company shall from time to time (until the expiration
of twenty-five years from the date of commencement or
until the Forests Commission has given to it written notice
that the rights conferred by the next succeeding sub-clause
are no longer required, whichever first occurs) give to the
State at least twelve months' prior written notice of its
intention to commence operations upon any part of the
former forest area (other than the part thereof marked "A"
on the plan annexed hereto) and of the sites comprising
approximately thirty-five acres and twenty acres
respectively of two sample plots of pine trees within the
leased area which sites have been indicated to the Company
by the said Commission, which part shall be specified in the
notice.
(2) The Forests Commission or any person authorized by it in
writing may at any time while the Company is bound by the
provisions of the last preceding sub-clause but in any event
before the Company commences operations upon any part
of the former forest area or of the sites of the said sample
plots cut and remove therefrom any timber or other forest
produce.
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
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Mines (Aluminium Agreement) Act 1961
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Sch. 1
management of the road or if there is no such authority to
the Minister.
(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 he 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 the State Rivers and
Water Supply Commission (in this clause called "the Water
Commission") the Company shall not carry out within fifty
feet of the pipeline lying in the easterly portion of the leased
area and which is vested in the Water Commission any
mining operations or other operations likely to cause
damage to that pipeline.
(2) The Water Commission 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 pipeline
or portion thereof to another location approved by the Water
Commission.
(3) The Company shall pay to the Water Commission the cost
of—
(a) removal of the said pipeline or portion thereof upon
request of the Company as aforesaid;
(b) removal of the said pipeline or portion thereof where
such removal is effected by the Water Commission in
consequence of operations of the Company which
although not requiring the consent of the Water
Commission under sub-clause (1) of this clause
endanger or are in the opinion of the Water
Commission likely to endanger the said pipeline.
(4) The Company shall have the rights for the purposes of this
Agreement—
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Mines (Aluminium Agreement) Act 1961
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(a) to construct maintain and operate such works as may
be approved by the Water Commission 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 1958 situate
within the leased area the power station site the prior
land and the purchased land as may be approved by
the Water Commission.
19. Electricity Commission Works
(1) Nothing contained in this Agreement shall entitle the
Company to do anything which may cause damage to any
works of the State Electricity Commission of Victoria (in
this clause called "the Electricity Commission") existing on
or over the leased area or to exercise any of its rights
hereunder on or under the site of those works but the
Electricity Commission may upon such terms as it deems fit
agree with the Company to remove those works from the
leased area or to another site within the leased area.
(2) Nothing contained in this Agreement shall preclude an
agreement between the Electricity Commission and the
Company with the approval of the Minister in respect of—
(a) exploratory boring (in addition to that specified
herein) of the leased area and the reserve area with a
view to providing coal for the power generation
requirements of the State;
(b) the development jointly or otherwise by the
Electricity Commission and the Company of open
cuts on the leased area necessary to meet those
requirements;
(c) co-operation generally between the Electricity
Commission and the Company in the generation of
power from the coal reserves in the leased area.
(3) In respect of the generation and distribution of electricity by
the Company from the power generating station aforesaid
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 power
station site the said electric power generating station
and ancillary services;
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Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
Sch. 1
(b) to erect construct and maintain on in or over the
leased area the power station site 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 provisions of Section 26 of the State
Electricity Commission Act 1958, 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 power station site 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) subject to the provisions of the Land Act 1958 and to
the approval by the Surveyor-General of the State of
the plan of survey of the power station site, to a grant
in fee simple of the power station site upon payment
of such sum as may be agreed upon by the Company
and the State;
(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.
(4) Notwithstanding anything contained in this Agreement or in
the Electric Light and Power Act 1958 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 (excluding section forty-five of the Electric
Light and Power Act 1958) of the said Acts and
regulations as are prescribed by Order of the Governor in
Council.
20. Land occupied under licence from Forests Commission
(1) The rights and powers of the Company under this
Agreement shall be subject to the subsisting rights of any
person or body occupying any part of the former forest area
under licence issued by the Forests Commission.
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(2) In respect of each of the camps conducted on the former
forest area by the National Fitness Council of Victoria and
the Presbyterian Fellowship of Australia the Company shall
bear the cost of—
(a) establishing the improvements on the site of the camp
or improvements equivalent thereto upon an
alternative site approved by the body conducting the
camp and (in the case of the camp conducted by the
National Fitness Council of Victoria) by the Forests
Commission;
(b) placing such alternative site in equivalent condition to
the existing site of the camp and (unless already
existing thereon) providing it with facilities and
services equivalent to those available at the existing
site.
(3) Subject to the provisions of the Land Act 1958 and to
approval by the Surveyor-General aforesaid of the plan of
survey of the land described in this sub-clause the Company
shall upon payment of the sum of £25,000 to the State
within ninety days after the Forests Commission has given
notice to the Company that it has vacated the land so
described (which it shall do during the first year of the term
of this Agreement) be entitled to a grant in fee simple of
those pieces of land in the parish of Jan Juc county of Grant
containing thirty-six acres and twenty-five perches more or
less the boundaries of which are (subject to survey) as
follow—
(a) commencing at the north-western angle of
Allotment 4 section 1 township of Anglesea bounded
thence by a road bearing 24 degrees 38 minutes
1075 links thence by a line bearing 90 degrees
2742·9 links thence by the Great Ocean-road bearing
193 degrees 8 minutes 1003·4 links and thence by a
road and the northern boundary of the said
Allotment 4 bearing 270 degrees 2963 links to the
point of commencement;
(b) commencing at a point bearing 45 degrees 10 minutes
82 links and 24 degrees 38 minutes 262·5 links from
the south-eastern angle of Allotment 64C parish of
Jan Juc bounded thence by lines bearing 270 degrees
599·5 links 0 degrees 1367 links and 126 degrees
57 minutes 1141·1 links and thence by a road bearing
204 degrees 38 minutes 749·5 links to the point of
commencement.
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PART IV—APPLICATION OF MINES ACT 1958
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 operations of the Company on the leased area as if
this Agreement were a mineral lease granted under the
provisions of the Act and the Company were the registered
proprietor thereof.
(2) Without affecting the generality of the last preceding subclause—
(a) section fifty of the Act shall so far as applicable bind
the Company and its officers but shall be read and
construed as if the expression "half-year" therein
meant the appropriate half of any period of one year
commencing on the date of commencement or an
anniversary thereof and the provisions of that section
had been modified accordingly;
(b) sections twenty-three, forty-seven, forty-eight,
forty-nine, fifty-one to fifty-eight (both inclusive),
sixty, sixty-one, sixty-two, seventy-nine, eighty, three
hundred and twelve, three hundred and twenty-one,
three hundred and twenty-four, three hundred and
thirty-one, four hundred and fifty-two and four
hundred and fifty-three of the Act shall not apply to
this Agreement.
PART V—OTHER PROVISIONS AS TO COMPANY'S
RIGHTS AND OPERATIONS
Division A—Mining and Other Operations
22. Mining on Company's land
(1) If the Company—
(a) at any time after the date of commencement gives to
the Minister written notice of its intention to carry out
mining operations on or in the power station site and
the purchased land or any part thereof; and
(b) has then obtained or is entitled under the provisions
hereof to a grant in fee simple of the land specified in
the notice—
then as from the commencement of the next following
half-yearly period of the term of this Agreement the
expression "leased area" herein shall unless inconsistent
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Mines (Aluminium Agreement) Act 1961
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Sch. 1
with the context or subject-matter (but subject always to the
provisions of the two next succeeding sub-clauses) include
the land specified in the notice.
(2) For the purposes of the last preceding sub-clause the
following provisions of this Agreement shall not apply to
any land specified in a notice given pursuant to that
sub-clause, that is to say—
(a) sub-clause (2) of clause 9;
(b) insofar as the land so specified lies above a depth of
fifty feet below the surface, paragraph (h) of
sub-clause (1) of clause 12;
(c) sub-clause (2) of clause 14;
(d) clause 15.
(3) Nothing in this clause shall derogate from the rights of the
Company as owner of any land or shall affect any operations
(other than mining operations) of the Company thereon.
23. Use of sea water etc.
The Company may with the approval of and subject to such
conditions as may be fixed by the responsible Minister of
the Crown for the time being administering the Marine Act
1958—
(a) without charge draw water from the sea in the vicinity
of the Anglesea River for any of its operations on the
power station site or the leased area;
(b) return to the sea any water so drawn which has been
used for cooling purposes only; and
(c) construct such works and use such portion of the sea
bed as may reasonably be required for the purposes
mentioned in the two last preceding paragraphs.
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;
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Mines (Aluminium Agreement) Act 1961
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(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.
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 power station site 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 is 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.
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Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
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(2) If—
(a) the Company at any time fails to comply with the
terms and conditions (other than clause 15) 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.
(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.
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Mines (Aluminium Agreement) Act 1961
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Division B—Supplemental
27. Disputes
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 Arbitration Act 1958.
28.
(1) Any notice order demand or other writing authorized or
required by this Agreement to be given or sent shall be
sufficiently given or sent by—
(a) the State if signed by the Minister or the Secretary or
an officer of the Department of Mines acting by
direction of the Minister and forwarded by prepaid
post to the Company at its registered office in Victoria
or at the leased area;
(b) the Company if signed by a director or the secretary
of the Company and forwarded by prepaid post to the
Minister at the principal office of the Department of
Mines.
(2) Any such notice order demand or writing so forwarded shall
be deemed to have been given or sent on the day on which it
would be delivered in the ordinary course of post.
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.
31

 (Sgd.) W. J. MIBUS

(Seal).









(Seal.)
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
Sch. 1
A map is annexed to the Agreement and endorsed as follows:
"This is the plan referred to in the annexed Agreement made the
twenty-second day of November, 1961, between the Honorable Wilfred
John Mibus for and on behalf of the State of Victoria of the one part and
Alcoa of Australia Proprietary Limited of the other part.
Signed 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.)
__________________
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Mines (Aluminium Agreement) Act 1961
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Sch. 2
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.
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.
33
Sch. 2
inserted by
No. 68/2011
s. 12.
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
Sch. 2
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
(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.
34
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
Sch. 2
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;"
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.
35
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
Sch. 2
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
(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);
36
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
Sch. 2
"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.
(e)
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 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)."
Clause 6
In clause 6, the word "fifty" is deleted and replaced with
"one hundred".
37
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
Sch. 2
(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.
(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";
38
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
Sch. 2
(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;"
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
39
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
Sch. 2
(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
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";
40
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
Sch. 2
(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".
(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".
41
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
Sch. 2
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:
(r)
(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".
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.
42
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
Sch. 2
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.
(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)
43
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;
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
Sch. 2
(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;
(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,
44
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
Sch. 2
the imposition of import duties, as soon as
practicable after the occurrence of such
effect."
(u)
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".
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)
For the avoidance of doubt—
(a)
45
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;
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
Sch. 2
21C.
(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.
(3)
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.
46
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
Sch. 2
(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
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)
47
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
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
Sch. 2
(b)
(7)
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)
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.
48
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
Sch. 2
(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
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)
49
are otherwise inconsistent with the rights
of the Company under this Agreement.
Mines (Aluminium Agreement) Act 1961
No. 6829 of 1961
Sch. 2
(x)
(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)
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)."
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)
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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(bb)
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.
(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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Mines (Aluminium Agreement) Act 1961
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Sch. 2
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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Mines (Aluminium Agreement) Act 1961
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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) Act 1961
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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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Mines (Aluminium Agreement) Act 1961
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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.
═══════════════
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Endnotes
ENDNOTES
1. General Information
The Mines (Aluminium Agreement) Act 1961 was assented to on
12 December 1961 and came into operation on 12 December 1961.
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Endnotes
2. Table of Amendments
This Version incorporates amendments made to the Mines (Aluminium
Agreement) Act 1961 by Acts and subordinate instruments.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Alcoa (Portland Aluminium Smelter) (Amendment) Act 1984, No. 10115/1984
Assent Date:
30.10.84
Commencement Date:
Ss 16, 17 on 30.10.84: s. 2(1)
Current State:
This information related only to the provision/s
amending the Mines (Aluminium Agreement) Act
1961
Mines (Aluminium Agreement) Amendment Act 2011, No. 68/2011
Assent Date:
29.11.11
Commencement Date:
Ss 5–9, 11, 12 on 30.11.11: s. 2
Current State:
This information related only to the provision/s
amending the Mines (Aluminium Agreement) Act
1961
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
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Endnotes
3. Explanatory Details
No entries at date of publication.
79