Western Australia: Alumina Refinery (Mitchell Plateau) Agreement Act 1971 (WA)

Western Australia Alumina Refinery (Mitchell Plateau) Agreement Act 1971 Western Australia Alumina Refinery (Mitchell Plateau) Agreement Act 1971 Contents 1. Short title 1 2. Interpretation 1 3. Ratification of the Agreement 2 3A. Ratification of Variation Agreement 2 3B. Ratification of Second Variation Agreement 2 4. Ratification and operation of termination agreement 3 5A. Cancellation of Temporary Reserve 5610H 3 5B. Termination of pending applications in respect of Mitchell Plateau area 3 5C. Temporary prohibition on tenement applications in respect of Mitchell Plateau area 3 5. Alumina Refinery (Mitchell Plateau) Agreement Act 1969 repealed 4 6. Certain acts, things, etc., done under former Agreement deemed validly done under the Agreement 4 First Schedule — Alumina Refinery (Mitchell Plateau) Agreement Second Schedule — First Variation Agreement Third Schedule — Second Variation Agreement Fourth Schedule — Termination agreement Fifth Schedule — Mitchell Plateau area Division 1 — Description 1. Mitchell Plateau area 81 Division 2 — Map Division 3 — Coordinates Notes Compilation table 87 Defined terms Western Australia Alumina Refinery (Mitchell Plateau) Agreement Act 1971 An Act to ratify an agreement made between the State and Amax Bauxite Corporation relating to the establishment of a refinery to produce alumina, to provide for carrying the Agreement into effect, to ratify a further agreement for the termination of the Agreement, to repeal the Alumina Refinery (Mitchell Plateau) Agreement Act 1969, and for incidental and other purposes. [Long title amended: No. 31 of 2015 s. 4.] 1. Short title This Act may be cited as the Alumina Refinery (Mitchell Plateau) Agreement Act 1971 1. 2. Interpretation In this Act, unless the contrary intention appears — Mitchell Plateau area has the meaning given in the Fifth Schedule clause 1; pending application means a tenement application made, but not determined, under the Mining Act 1978 before the day on which the Alumina Refinery (Mitchell Plateau) Agreement (Termination) Act 2015 section 6 comes into operation; Temporary Reserve 5610H means the reserve of that designation created under the Mining Act 1904 and continued under the Mining Act 1978; tenement application means an application for a mining tenement under the Mining Act 1978; termination agreement means the agreement a copy of which is set out in the Fourth Schedule; the Agreement means the agreement of which a copy is set forth in the First Schedule, and if the Agreement is added to or varied or any of its provisions are cancelled in accordance with those provisions, includes the Agreement as so altered from time to time; the former Agreement means the agreement of which a copy is set forth in the Schedule to the Alumina Refinery (Mitchell Plateau) Agreement Act 1969; the First Variation Agreement means the agreement a copy of which is set out in the Second Schedule; the Second Variation Agreement means the agreement a copy of which is set out in the Third Schedule. [Section 2 amended: No. 60 of 1972 s. 2; No. 90 of 1985 s. 3; No. 31 of 2015 s. 5.] 3. Ratification of the Agreement (1) The Agreement is ratified. (2) Notwithstanding any other Act or law the Agreement shall, subject to its provisions, be carried out and take effect as though those provisions had been expressly enacted in this Act. 3A. Ratification of Variation Agreement The First Variation Agreement is ratified. [Section 3A inserted: No. 60 of 1972 s. 3; amended: No. 90 of 1985 s. 4.] 3B. Ratification of Second Variation Agreement (1) The Second Variation Agreement is ratified. (2) Without limiting or otherwise affecting the application of the Government Agreements Act 1979, the Second Variation Agreement shall operate and take effect according to its terms notwithstanding any other Act or law. [Section 3B inserted: No. 90 of 1985 s. 5.] 4. Ratification and operation of termination agreement (1) The termination agreement is ratified. (2) Without limiting or otherwise affecting the operation of the Government Agreements Act 1979, the termination agreement is to operate and take effect despite any other Act or law. [Section 4 inserted: No. 31 of 2015 s. 6.] 5A. Cancellation of Temporary Reserve 5610H Temporary Reserve 5610H is cancelled by force of this section. [Section 5A inserted: No. 31 of 2015 s. 6.] 5B. Termination of pending applications in respect of Mitchell Plateau area (1) Each pending application in respect of land wholly or partly within the Mitchell Plateau area is terminated by force of this section. (2) No action, claim or demand lies against the State, the Minister or any other person in respect of any matter or thing arising from the termination of a pending application under this section. [Section 5B inserted: No. 31 of 2015 s. 6.] 5C. Temporary prohibition on tenement applications in respect of Mitchell Plateau area (1) In this section — relevant area means the Mitchell Plateau area or that area modified to the extent necessary to reflect any changes to the boundaries of land contiguous to that area resulting from survey or cadastral information. (2) Despite anything in the Mining Act 1978, a tenement application cannot be made during the designated period in respect of land wholly or partly within the Mitchell Plateau area. (3) For the purposes of subsection (2), the designated period is the period — (a) beginning on the day on which the Alumina Refinery (Mitchell Plateau) Agreement (Termination) Act 2015 section 6 comes into operation; and (b) ending on the day fixed under subsection (4). (4) When the Minister is satisfied that the relevant area has been reserved under the Land Administration Act 1997 Part 4 for the purposes of a national park and classified as a class A reserve under that Part, the Minister must, by notice published in the Gazette, fix a day for the purposes of subsection (3)(b). (5) The day fixed must be the day after the day on which the notice is published in the Gazette. [Section 5C inserted: No. 31 of 2015 s. 6.] 5. Alumina Refinery (Mitchell Plateau) Agreement Act 1969 repealed The Alumina Refinery (Mitchell Plateau) Agreement Act 1969, is hereby repealed. 6. Certain acts, things, etc., done under former Agreement deemed validly done under the Agreement Notwithstanding the repeal effected by section 5, it is hereby declared that — (a) any act or thing done pursuant to the former Agreement by either party thereto is deemed to have been validly done pursuant to, and the doing thereof to have been authorised by, the Agreement; (b) any right, title, privilege or licence granted pursuant to the former Agreement is deemed to have been validly granted pursuant to, and the granting thereof authorised by, the Agreement; (c) any proposal submitted and approved pursuant to the former Agreement and any extension of time granted pursuant thereto, is deemed to have been submitted and approved or granted pursuant to, and the submitting and approval or granting thereof authorised by, the Agreement. [Heading deleted: No. 19 of 2010 s. 42(2).] First Schedule — Alumina Refinery (Mitchell Plateau) Agreement [s. 2] [Heading amended: No. 19 of 2010 s. 4.] ALUMINA REFINERY (MITCHELL PLATEAU) AGREEMENT THIS AGREEMENT made the 17th day of November, One thousand nine hundred and seventy one, BETWEEN THE HONOURABLE JOHN TREZISE TONKIN M.L.A. Premier and Treasurer of the State of Western Australia, acting for and on behalf of the said State and Instrumentalities thereof from time to time (hereinafter called "the State") of the one part and AMAX BAUXITE CORPORATION a Company incorporated in the State of Delaware United States of America and registered as a foreign company in the State of Western Australia (hereinafter referred to as "the said State") under the provisions of the Companies Act 1961, and having its registered office situate at Perth in the said State (hereinafter called "the Company") of the other part. WHEREAS: (a) The Company (and its predecessors in title) at a cost to 17th day of December, 1968 of over One Million Four Hundred Thousand Dollars ($1.4 Million) having established the existence of bauxite reserves within the mining areas defined in Clause 1 hereof and having already carried out certain investigations relating to the mining beneficiation transport and refining of bauxite and the shipment of bauxite and alumina from the mining areas desires to develop such bauxite reserves and to establish a bauxite mining and beneficiation operation and an alumina plant all of which it is anticipated will cost in excess of One Hundred Million Dollars ($100,000,000). (b) The Company agrees to investigate in due course the feasibility of establishing within the State an industry for smelting alumina produced from ore from the mineral lease as hereinafter defined. NOW THIS AGREEMENT WITNESSETH: — Interpretation 3 1. In this Agreement subject to the context — "apply" "approve" "approval" "consent" "certify" "direct" "notify" or "request" means apply, approve, approval, consent, certify, direct, notify or request in writing as the case may be; "associated company" means — (a) any company having a paid up capital of not less than Two Million ($2,000,000) notified by the Company to the Minister which is incorporated in the United Kingdom the United States America or the Commonwealth of Australia or such other country as the Minister may approve and which — (i) is a subsidiary of the Company within the meaning of the term "subsidiary" in Section 6 of the Companies Act 1961; (ii) holds directly or indirectly not less than twenty per cent (20%) of the issued ordinary share capital of the Company; (iii) is promoted by the Company or by any company that holds directly or indirectly not less than twenty per cent (20%) of the issued ordinary share capital of the Company for all or any of the purposes of this Agreement and in which the Company or such other company holds not less than twenty per cent (20%) of the issued ordinary share capital; or (iv) is related within the meaning of that term in the aforesaid section to the Company or to any company in which the Company holds not less than twenty per cent (20%) of the issued ordinary share capital and (b) any company approved in writing by the Minister for the purposes of this Agreement which is associated directly or indirectly with the Company in its business or operations hereunder; "bauxite" means ore from the mineral lease which either with or without crushing washing and screening is shipped or sold as bauxite or is used for processing into alumina; "commencement date" means the date referred to as the commencement date in Clause 7(1) hereof; "Commonwealth" means the Commonwealth of Australia and includes the Government for the time being thereof; "Company" means Amax Bauxite Corporation and — (a) if this Agreement is assigned, means all the permitted assigns of Amax Bauxite Corporation for the time being entitled to the benefit of this Agreement; and (b) where the rights of the Company under this Agreement to or as the holder of a lease, license, easement or other title have been transferred or assigned by the Company, means in relation to the lease, license, easement or other title, the person or persons for the time being entitled to, or to the exercise of, those rights; "Company's wharf" means the wharf or wharves constructed by the Company pursuant to this Agreement or (except for the purposes of the definition of "port") the temporary wharf for the time being approved by the Minister as the Company's wharf for the purposes hereof during the period to which such approval relates; "Land Act" means the Land Act 1933; "mineral lease" means the mineral lease or mineral leases referred to in Clause 8(1)(a) hereof and includes any renewal thereof; "Mining Act" means the Mining Act 1904; "mining areas" means the mining areas marked A, B, C, D and E and delineated and coloured red on the plan marked "X" initialled by or on behalf of the parties hereto for the purposes of identification; "Minister" means the Minister in the Government of the said State for the time being responsible (under whatsoever title) for the administration of the Ratifying Act and pending the passing of that Act means the Minister for the time being designated in a notice from the State to the Company and includes the successors in office of the Minister; "Minister for Mines" means the Minister in the Government of the said State for the time being responsible for the administration of the Mining Act; "month" means calendar month; "notice" means notice in writing; "person" or "persons" includes bodies corporate; "port" means the port or harbour in the general area of Port Warrender or such other area as the Company requests and the Minister approves and serving the Company's wharf; "RDA" means a regional development authority to which land is leased by the State for the purposes among others of construction of any regional facilities pursuant to Clause 5(3) hereof; "Ratifying Act" means the Act to ratify this Agreement and referred to in Clause 3 hereof; "refinery" means a refining plant at or near the port in which bauxite is treated to produce alumina; "refinery site" means the site on which the refinery is or is to be situated; "regional facilities" means the town facilities and the provision of utilities including electrical generating plants and transmission lines, sewage disposal and drawing, storing, reticulating and supplying water for the Company's operations under this Agreement; "said State" means the State of Western Australia; "smelter" means an electrolytic reduction plant for the conversion of alumina to aluminium using alumina produced from bauxite; "special grade bauxite" means ore which is sold as refractory grade abrasive grade or chemical grade bauxite; "special lease" means a special lease or license to be granted in terms of this Agreement under the Ratifying Act the Mining Act the Land Act or the Jetties Act 1926 and includes any renewal thereof; "this Agreement" "hereof" and "hereunder" includes this Agreement as from time to time added to varied or amended; "ton" means a ton of two thousand two hundred and forty (2,240) lbs. net dry weight; "town facilities" means in relation to the townsite all housing and business premises, all health, educational, social, recreational, security and welfare services, amenities, benefits and facilities, all communications and transportation facilities (including aerodrome) and all other works or facilities necessary or desirable for the purpose of the town and the anticipated population thereof; "townsite" means the townsite to be established pursuant to this Agreement whether or not constituted and defined under Section 10 of the Land Act; "wharf" includes any jetty structure; "year 1" means the year next following the commencement date, and "year" followed immediately by any other numeral has a corresponding meaning; monetary references in this Agreement are to Australian currency; reference in this Agreement to an Act shall include the amendments to such Act for the time being in force and also any Act passed in substitution therefor or in lieu thereof and the regulations for the time being in force thereunder; power given under any clause of this Agreement other than Clause 18 hereof to extend any period or date shall be without prejudice to the power of the Minister under the said Clause 18; marginal notes shall not affect the interpretation or construction hereof 3; the phases in which it is contemplated that this Agreement will operate are as follows: — (a) Phase 1 — the period from the execution hereof by the parties hereto until the commencement date; (b) Phase 2 — the period thereafter. Obligations of the State during Phase 1 3 2. (1) The State shall — (a) upon application by the Company at any time prior to the 30th day of June, 1972 (and surrender of the then existing rights of occupancy already granted in respect of any portions of the mining areas) cause to be granted to the Company rights of occupancy for a period of twelve months for the purposes of this Agreement (including the sole right to search and prospect for bauxite) over each of the mining areas under Section 276 of the Mining Act at a rental of Fifty Dollars ($50) per annum in respect of each mining area payable in advance and shall then and thereafter subject to the continuance of this Agreement cause to be granted to the Company as may be necessary successive renewals of such last mentioned rights of occupancy (each renewal for a period of twelve (12) months at the same rental and on the same terms) in respect of each mining area the last of which renewals notwithstanding its currency shall in relation to the mining area concerned expire — (i) on the date of grant of a mineral lease of that mining area to the Company under Clause 8(1)(a) hereof; (ii) on the expiration of six years from the commencement date; or (iii) on the determination of this Agreement pursuant to its terms whichever shall first happen; (b) introduce and sponsor a Bill in the Parliament of Western Australia to ratify this Agreement and endeavour to secure its passage as an Act prior to the 31st day of December, 1971, which Bill shall include a provision that notwithstanding any other Act or law this Agreement shall be carried out and take effect as though its provisions had been expressly enacted; (c) to the extent reasonably necessary for the purposes of Clauses 4 and 5 hereof allow the Company to enter upon Crown lands (including land the subject of a pastoral lease) and survey possible sites for its operations under this Agreement; and (d) at the request and cost of the Company co‑operate with the Company in the discharge of the Company's obligations under Clause 4(1) hereof. (2) Notwithstanding anything contained or implied in this Agreement or in the rights of occupancy granted pursuant to subclause (1) of this clause the State may grant to or register in favour or persons other than the Company rights of occupancy leases and other mining tenements in respect of minerals other than those which would be the subject of the mineral lease unless the Minister for Mines reasonably determines that such grant would be likely to unduly prejudice or interfere with the operations or possible operations of the Company assuming the taking by the Company of all reasonable steps to avoid the prejudice or interference and any mineral lease granted pursuant to Clause 8(1) hereof shall be subject to any such rights of occupancy leases or other mining tenements granted pursuant to this subclause. Ratification and operation 3 3. (1) Clauses 8 and 9 and Clause 10 (other than paragraphs (m) and (n) thereof) and Clause 11 of this Agreement shall not operate unless and until the Bill to ratify this Agreement as referred to in Clause 2(b) hereof is passed as an Act before the 31st day of December, 1971, or such later date if any as the parties hereto may mutually agree upon. (2) If the Bill is not so passed before that date or later date (as the case may be) this Agreement will then cease and determine and neither of the parties hereto will have any claim against the other of them with respect to any matter or thing arising out of done performed or omitted to be done or performed under this Agreement except as hereinafter provided in Clause 10(n) hereof. (3) On the Bill referred to in subclause (1) of this clause commencing to operate as an Act all the provisions of this Agreement shall operate and take effect notwithstanding the provisions of any Act or law and for the purposes of this Agreement and notwithstanding the generality of the foregoing: — (a) The Mining Act the Land Act the Transfer of Land Act 1893 and the Public Works Act shall be deemed modified and amended to the extent necessary to enable full force and effect to be given to this Agreement; (b) Without prejudice to the generality of the foregoing the Mining Act shall be deemed modified and amended by the deletion of subsections (3) and (5) of Section 277 and Section 282; (c) Without prejudice to the generality of the foregoing the Transfer of Land Act 1893 shall be deemed modified and amended by the deletion of Section 81D; (d) Without prejudice to the generality of the foregoing the Land Act shall be deemed modified and amended by — (i) The substitution for subsection (2) of Section 45A of the following subsection: — (2) Upon the Governor signifying approval pursuant to subsection (1) of this section in respect of any such land the same may subject to this section be sold or leased; (ii) The deletion of the proviso to Section 116; (iii) The deletion of Section 135; (iv) The deletion of Section 143; (v) The inclusion of a power to offer for sale or leasing land within or in the vicinity of the townsite notwithstanding that the townsite has not been constituted a townsite under Section 10; and (vi) The inclusion of a power to offer for sale or grant leases or licenses for terms or periods and on such terms and conditions (including renewal rights) and in forms consistent with the provisions of this Agreement in lieu of the terms or periods and the terms conditions and forms referred to in the Act and upon application by the Company in forms consistent as aforesaid in lieu of in the forms referred to in the Act; (e) The State and the Minister respectively shall have all the powers discretions and authorities necessary or requisite to enable them to carry out and perform the powers discretions authorities and obligations conferred or imposed upon them respectively hereunder; (f) No future Act of the said State will operate to increase the Company's liabilities or obligations hereunder; (g) The State may as for a public work under the Public Works Act 1902, resume any land or any estate right or interest to in over or in respect of land required for the purposes of this Agreement and may lease or otherwise dispose of the same to the Company; (h) Notwithstanding the provisions of Section 82 of the Mining Act and of regulations 192 and 193 made thereunder and of Section 81D of the Transfer of Land Act 1893 insofar as the same or any of them may apply no mortgage or charge in a form commonly known as a floating charge made or given pursuant to Clause 14 hereof over any lease license reserve or tenement granted hereunder or pursuant hereto by the Company or any assignee or appointee who has executed and is for the time being bound by deed of covenant made pursuant to Clause 14 hereof and no transfer or assignment in exercise of any power of sale contained in such mortgage or charge shall require any approval or consent other than such consent as may be necessary under Clause 14 hereof and no such mortgage or charge shall be rendered ineffectual as an equitable charge by the absence of any approval or consent otherwise than as required by Clause 14 hereof or because the same is not registered under the provisions of the Mining Act; and (i) No lease sub‑lease license or other title or right granted or assigned under or pursuant to this Agreement shall be subject to or capable of partition including partition under the Property Law Act 1969 or under any order of any Court of competent jurisdiction under that Act or otherwise or be subject to the making of an order for sale under the said Act. Obligations of the Company during Phase 1 3 4. (1) The Company shall continue its field and office engineering studies and market and finance studies and other matters necessary to enable it to finalise and to submit to the Minister the detailed proposals and other matters referred to in Clause 5(1) hereof. (2) The Company shall keep the State fully informed in writing at least quarterly commencing within three months after the execution hereof as to the progress and results of the Company's operations under subclause (1) of this clause. (3) The Company shall co‑operate with the State and consult with the representatives or officers of the State regarding matters referred to in subclause (1) of this clause. (4) The Company will employ and retain expert consultant engineers to investigate report upon and make recommendations in regard to the sites for and design of the Company's wharf (including areas for installations stockpiling and other purposes in the port area) reasonably required by the Company under this Agreement but in such regard the Company will require the consultant engineers to have full regard for the general development of the port area and the dredging thereof and of approaches thereto with a view to the reasonable use by others of the port area and approaches and the Company will furnish to the State copies of such report and recommendations. Company to submit proposals 3 5. (1) By the 31st day of December 1971 or if the Company requests an extension to the 30th day of June 1972 then by that date (or such further extended date if any as the Minister may approve) the Company will where not already done submit to the Minister — Works 3 (a) to the fullest extent reasonably practicable its detailed proposals (including plans where practicable and specifications where reasonably required by the Minister) with respect so far as relevant to the development of the mining areas (or so much thereof as shall be comprised in the mineral lease) for the mining transport and shipment of bauxite and the production and shipment of alumina and including the location area layout design number materials and time programme for the commencement and completion of construction or the provision (as the case may be) of each of the following matters namely — (i) the port and port development including dredging and depositing of spoil the provision of navigational aids the Company's wharf (the plans and specifications for which wharf shall be submitted to and be subject to the approval of the State) the berth and swinging basin for the Company's use and port installations facilities and services all of which shall permit the use of the bauxite and alumina loading wharf by vessels having a capacity of not less than thirty thousand (30,000) tons deadweight tonnage (including but not as part of such proposals a preliminary design for and cost estimate of expanding such facilities to enable the use of the bauxite and alumina loading wharf by vessels having a capacity of not less than sixty thousand (60,000) tons deadweight tonnage); (ii) bauxite and alumina transport facilities; (iii) the townsite and town facilities; (iv) regional facilities other than town facilities; (v) the refinery; (vi) any other works services or facilities desired by the Company; and Marketing and Finance 3 (b) subject to the provisions of subclause (5) of this clause reasonable evidence of marketing arrangements demonstrating the Company's ability to sell or use alumina produced from the refinery and reasonable evidence of the availability of finance necessary for the fulfilment of the Company's proposals under this clause. Order of submission of proposals 3 (2) The Company shall have the right to submit to the Minister its detailed proposals aforesaid in regard to a matter or matters the subject of any of the sub‑paragraphs numbered (i) to (vi) inclusive of paragraph (a) of subclause (1) of this clause as and when the detailed proposals become finalised by the Company PROVIDED THAT where any such matter is the subject of a sub‑paragraph which refers to more than one subject matter the detailed proposals will relate to and cover each of the matters mentioned in the sub‑paragraph PROVIDED FURTHER that the first detailed proposals submitted to the Minister relate to and cover the matters mentioned in sub‑paragraph (i) of the said paragraph (a) of the said subclause (1). (3) In regard to regional facilities the Company shall submit proposals in respect of arrangements with the RDA (including details of proposed borrowings by the RDA) on the basis — (a) of the RDA being constituted by an Act of the Parliament of Western Australia as a body corporate; (b) of the RDA undertaking to construct the regional facilities and to grant to the State a head sub‑lease of an area for the townsite within the area to be granted to the RDA pursuant to Clause 8(1)(d) hereof and of all regional facilities thereon or on some part thereof for a term of forty‑two (42) years and one day at (i) a yearly rent which with interest at a rate agreed on between the Company the RDA and the State will amortise the total cost to the RDA of constructing the regional facilities and such interest thereon over a period of forty‑two (42) years provided that if the RDA is required to repay moneys borrowed for the construction of the regional facilities over a shorter period than forty‑two years the State will prepay the rent in such instalments (not exceeding in total the amount payable by the RDA) as will enable the RDA to meet its obligations as to payment of principal and interest; and (ii) at such additional yearly rent which with interest at a rate agreed and approved as aforesaid will amortise the total cost to the RDA of any subsequent improvements or additions to the regional facilities carried out by the RDA at the request of the Company and such interest thereon over such period (not exceeding the then balance of the term of the head sub‑lease) as may be agreed between the Company, the RDA and the State; (c) subject to paragraphs (e), (f), (g), (h) and (i) below of such head sub‑lease containing such other terms and conditions (including renewal for the same period as any renewal of the mineral lease under Clause 8(1)(a) hereof) as may be agreed upon between the Company, the RDA and the State; (d) of the State granting to the Company a sub‑lease (to which sub‑lease the RDA would be a party) of the regional facilities for the same term as the head sub‑lease less one day and at the same rent (including the obligation to prepay rent) and on the same terms and conditions as are contained in the head sub‑lease including in particular the terms and conditions set out in paragraphs (e), (f), (g), (h) and (i) below; (e) of the RDA agreeing in the head sub‑lease and in the sub‑lease from the State to the Company that the RDA will, subject to the obtaining of finance on terms satisfactory to itself the Company and the State, make such improvements or additions to the regional facilities as may be requested by the Company and will not, subject to paragraph (g) below, make any improvements or additions which would unduly prejudice the Company in relation to its operations under this Agreement or such sub‑lease or prejudicially interfere with those operations or which would increase the Company's commitments under this Agreement or such sub‑lease or prejudicially interfere with the Company's control over the land or any part thereof the subject of such sub‑lease; (f) of the RDA agreeing that it will pay to the Company in respect of the use of any of the town facilities by the RDA or any lessee or sub‑lessee of the RDA (permission for which use the Company shall not unreasonably withhold) a reasonable licence fee having regard to the proportions of use by the Company and the RDA or such lessee or sub‑lessee; (g) of the RDA agreeing with the Company that any improvements or additions to the regional facilities (other than the town facilities) which the RDA may wish to make on any area the subject of a sub‑lease to the Company for the benefit of any person other than the Company (consent to the making of which the Company shall not unreasonably withhold) shall be made without cost to the Company; (h) of the RDA agreeing that the Company shall be entitled to operate and maintain any improvements or additions made pursuant to paragraph (g) at the cost of the RDA and to supply power or water (as the case may be) on behalf of and at the cost of the RDA on reasonable terms including a fair charge for the rental cost to the Company of the regional facilities to which such improvements or additions have been made; (i) of the Company accepting the obligation (subject to paragraph (h) of this subclause) to maintain and operate the regional facilities at its own expense and indemnify the State in regard thereto; and (j) of the Company procuring in favour of the State a covenant in a form and by a third party or third parties approved by the State assuring the completion of all works (including regional facilities) the subject of and in accordance with the proposals of the Company as approved or determined under Clause 6 hereof and assuring that in the event of the sub‑lease being terminated pursuant to its terms or pursuant to this Agreement the amounts which would thereafter have been payable by way of rental (including any rental prepayable) by the Company if such sub‑lease had not been terminated will be paid as and when they would have become due and payable. Recognising that the concept of the RDA is only at this time in the exploratory stage and that neither the State nor the Company have yet had an opportunity of considering in detail its practicability the State and the Company will consult from time to time as may be necessary with regard to the feasibility of the establishment of the RDA in order that the State may, if at any time prior to the Company's proposals being approved or determined it considers the promotion and development of the RDA to be impracticable, request the Company to submit its proposals in accordance with subclause (4) of this clause in lieu of this subclause. (4) If the Company considers that the foregoing arrangements for the RDA are impracticable it may at any time before or after submitting the proposals referred to in the foregoing provisions of subclause (3) of this clause or after such proposals have been disapproved under Clause 6(1)(b) hereof submit proposals or alternative proposals for the provision and financing of regional facilities either by means of one or more corporations or by the Company or any associated company, and also including such provisions as may be considered necessary or desirable for the granting of any lease or leases by the State to any one or more of such corporations of the townsite and any other areas required for regional facilities either through a head sub‑lease to the State or otherwise. Extensions of time as to finance 3 (5) If the Company should in writing and within the time later in this subclause mentioned request the Minister to grant an extension or any further extension of time beyond the 30th day of June, 1972 (or such later date if any previously granted or approved by the Minister) within which to arrange finance and demonstrates to the satisfaction of the Minister that the Company has duly complied with its other obligations hereunder then — (a) the Minister will grant an extension for a period to the 31st day of December, 1972 provided the Company applies for such extension not earlier than the 31st day of March, 1972 and not later than the 31st day of May, 1972 and provided the Company supplies to the Minister reasonably full details of the Company's best but unsuccessful endeavours to arrange such finance; and (b) if an extension is granted under paragraph (a) of this subclause then provided the Company demonstrates to the satisfaction of the Minister that it has again used its best but unsuccessful endeavours to arrange such finance the Minister will grant a further extension for such period as may be warranted in the circumstances and as may be mutually agreed or fixed by arbitration as hereinafter provided but not in any case exceeding (i) three years on request made within one month before the 31st day of December, 1972; and (ii) if an extension is granted under sub‑paragraph (i) of this paragraph then for not exceeding a further period of two years on request made before the expiration of period of extension granted under the said sub‑paragraph (i) subject always and in every case to the condition that the Company duly complies (or complies to the satisfaction of the Minister) with its other obligations hereunder. Consideration of proposals under clause 5(1) 3 6. (1) (a) Within two (2) months after receipt of the detailed proposals of the Company in regard to any of the matters mentioned in Clauses 5(1)(a) and 5(3) hereof the Minister shall except as to any of the matters mentioned in Clause 5(3) hereof give to the Company notice either of his approval of the proposals or of alterations desired thereto and in the latter case shall afford to the Company opportunity to consult with and to submit new proposals to the Minister. The Minister may make such reasonable alterations to or impose such reasonable conditions on the proposals or new proposals (as the case may be) as he shall think fit having regard to the circumstances including the overall development and use by others as well as the Company but the Minister shall in any notice to the Company disclose his reasons for any such alterations or conditions PROVIDED THAT the Minister shall not (except on the grounds of conflict with the Mines Regulation Act 1946) make any alterations to or impose conditions upon the proposals or new proposals insofar as they relate to the site of the mining operations or the mining methods selected by the Company or to the technical aspects of the Company's plant for the crushing washing and screening of ore from the mineral lease or of the refinery. Consideration of proposals under clause 5(3) 3 (b) Within two (2) months after receipt by the Minister of the detailed proposals of the Company in regard to any of the matters mentioned in clause 5(3) hereof the State shall give to the Company notice either of its approval of the proposals or of alterations desired thereto and in the latter case shall afford to the Company opportunity to consult with and to submit new proposals to the State or give notice of its disapproval of the proposals on the grounds that the State is not satisfied that appropriate financial arrangements can be made with respect to the RDA's borrowing. The State may make such alterations to or impose such conditions on the proposals or new proposals (as the case may be) as it shall think fit having regard to the circumstances but the State shall in any notice to the Company disclose its reasons for any such alterations or conditions. If the Company does not within one month thereafter notify the State that it accepts such alterations or conditions the State shall be deemed to have given notice of is disapproval of the proposals. If the State gives notice of disapproval as aforesaid such disapproval shall not be arbitrable under this Agreement. Arbitration as to proposals 3 (2) Except as provided in Clause 6(1)(b) hereof within two (2) months of the receipt of any notice under Clause 6(1) hereof the Company may elect by notice to the State to refer to arbitration and within two (2) months thereafter shall refer to arbitration as hereinafter provided any dispute as to the reasonableness of any such alteration or condition. If by the award on arbitration the dispute is decided against the Company then unless the Company within three (3) months after delivery of the award gives notice to the Minister of its acceptance of the award this Agreement shall on the expiration of that period of three (3) months cease and determine (save as provided in Clause 10(n) hereof) but if the question is decided in favour of the Company the decision will take effect as a notice by the Minister or the State (as the case may be) that he or it is so satisfied with and approves the matter or matters the subject of the arbitration. Effect of non approval of proposals 3 (3) Notwithstanding that under subclause (1) of this clause any detailed proposals of the Company are approved by the State or the Minister or determined by arbitration award unless each and every such proposal and matter is so approved or determined by the 28th day of February, 1972 or by such extended date if any as the Company shall be entitled to or shall be granted pursuant to the provisions hereof then at any time after the said 28th day of February, 1972, or if any extension or extensions should be granted under Clause 5(5) hereof or any other provision of this Agreement then on or after the expiration of the last of such extensions the Minister may give to the Company twelve (12) months notice of intention to determine this Agreement and unless before the expiration of the said twelve (12) months period all the detailed proposals and matters are so approved or determined this Agreement shall cease and determine subject however to the provisions of Clause 10(n) hereof. Effect of termination on contract with any other party 3 (4) If under any arbitration under Clause 6 hereof the dispute is decided against the Company and subsequently but before the commencement date this Agreement ceases and determines the State will not for a period of three (3) years after such determination enter into a contract with any other party for operations in respect of bauxite from any part of the mining areas on terms more favourable on the whole to the other party than those which would have applied to the Company hereunder if the Company had given notice to the Minister of its acceptance of the award. Commencement date 3 7. (1) Subject to the approval or determination by arbitration as herein provided of each and every of the detailed proposals and matters referred to in Clause 5 hereof the date upon which the last of those proposals of the Company shall have been so approved or determined shall be the commencement date for the purposes of this Agreement. Right of termination 3 (2) The Company may at any time prior to the commencement date give notice to the Minister that it does not wish to proceed with this Agreement whereupon this Agreement shall cease and determine. Phase 2 — obligations of State 3 8. (1) As soon as conveniently may be after the commencement date the State shall — Mineral lease after commencement date 3 (a) On application made by the Company at any time or from time to time before the expiration of six years from the commencement date for a mineral lease of any one or more of the mining areas or parts thereof (where practicable in the shape of a parallelogram or parallelograms) cause any necessary survey to be made of the land so applied for (the cost of which survey to the State will be recouped or repaid to the State by the Company on demand after completion of the survey) and shall cause to be granted to the Company a mineral lease of the land so applied for (notwithstanding the survey in respect thereof has not been completed but subject to such corrections to accord with the survey when completed) in the form of the Schedule hereto for a term which subject to the payment of rents and royalties hereinafter mentioned and to the performance and observance by the Company of its obligations under the mineral lease and otherwise under this Agreement shall be for a period expiring on the expiration of twenty‑one (21) years from the commencement date with the option for the Company to renew the same for a further period of twenty‑one (21) years upon the same terms and conditions (except the option for further renewal) but subject to earlier determination upon the cessation or determination of this Agreement PROVIDED HOWEVER that the Company may from time to time (without abatement of any rent then paid or payable in advance) surrender to the State all or any portion or portions (of reasonable size and shape) of the mineral lease PROVIDED FURTHER and it is hereby agreed that if required by the Company by notice to the Minister given not earlier than the end of the tenth year and not later than the end of the nineteenth year of the renewed term the State will enter into negotiations with the Company for a further renewal of the mineral lease for a further period of twenty‑one (21) years at such rent and on such terms and conditions (including further renewal) as may be mutually agreed (which agreement shall not be subject to arbitration) and if the parties fail to reach such agreement before the end of the twentieth year of the renewed term the State undertakes that it will not for a period of three (3) years after the expiration of the renewed term grant a mineral lease for bauxite of the same area or any part thereof to any other party at a rent and on terms and conditions more favourable on the whole than those which the State had offered to the Company; (b) In accordance with the Company's proposals as finally approved or determined under Clause 6(1)(a) or 6(2) hereof grant to the Company for a term expiring on the same date and renewable for the same periods as the mineral lease and on such other terms and conditions as shall be reasonable having regard to the requirements of the Company hereunder and to the overall development of the port and access to and use by others of lands the subject of any grant to the Company and of services and facilities provided by the Company — (i) At peppercorn rental — special leases of Crown lands within the port area and the townsite; and (ii) At rentals as prescribed by law or are otherwise reasonable — special leases rights mining tenements easements reserves and licences in or under Crown lands for its works and operations hereunder including the construction or provision of roads or tramways or other appropriate form of transport wharf airstrip and water supplies; (c) In accordance with the Company's proposals as finally approved under Clause 6(1)(b) hereof introduce and sponsor a Bill in the Parliament of Western Australia to constitute the RDA; (d) In accordance with the Company's proposals as finally approved under Clause 6(1)(b) hereof — (i) grant to the RDA for a term of ninety‑nine (99) years (subject to earlier determination at the State's option on the termination of this Agreement) at a peppercorn rental a special lease of Crown lands of such area as the State and the RDA may agree not being less than the area required by the Company for the provision of the regional facilities, and in particular on terms that the RDA in accordance with such proposals will undertake to construct the regional facilities and grant a head sub‑lease of the regional facilities to the State; and (ii) grant a sub‑lease of the regional facilities to the Company; (e) On application by the Company at any time and from time to time cause to be granted to it such machinery and tailings leases (including leases for the dumping of over‑burden) and such other leases licenses reserves and tenements easements reserves and licenses (including those for limestone stone sand soil timber and other minerals or materials) under the provisions of the Mining Act or the Land Act modified as in Clause 3(3) hereof as the Company may reasonably require for construction and operating or other purposes under this Agreement; and Services and facilities 3 (f) Provide any services or facilities in accordance with the Company's proposals as finally approved or determined under Clause 6 hereof and also provide any expanded services or facilities which from time to time are reasonably considered necessary by the Minister subject in either case to the Company bearing and paying the capital cost involved if reasonably attributable to or resulting from the Company's operations hereunder and bearing and paying reasonable charges for maintenance and operation except operation charges in respect of education hospital and police services and except where and to the extent that the State otherwise agrees. (2) The State further covenants with the Company that the State — No resumption 3 (a) shall not during the currency hereof without the consent of the Company resume nor suffer nor permit to be resumed by any State instrumentality or by any local or authority of the said State any of the works installations plant equipment or other property for the time being the subject of or used for the purposes of this Agreement nor any of the lands the subject of any lease or license granted under or pursuant to this Agreement AND the State will not create or grant or permit or suffer to be created or granted by any instrumentality or authority of the said State as aforesaid any road right‑of‑way or easement of any nature or kind whatsoever over or in respect of any such lands without the consent of the Company which consent shall not be withheld unless such road right‑of‑way or easement as aforesaid would — (i) unduly prejudice the Company or prejudicially interfere with the operations of the Company under this Agreement; or (ii) increase the Company's commitments or prejudicially interefere with the Company's control over any such lands; Labour requirements 3 (b) shall if so requested by the Company and so far as its powers and administrative arrangements permit use reasonable endeavours to assist the Company to obtain adequate and suitable labour for the construction and the carrying out of the works and operations referred to in this Agreement including suitable immigrants for that purpose; No discriminatory rates 3 (c) except provided in this Agreement shall not impose nor permit nor authorise any of its agencies or instrumentalities or any local or other authority of the said State to impose discriminatory taxes rates or charges of any nature whatsoever on or in respect of the titles property or other assets products materials or services used or produced by or through the operations of the Company in the conduct of the Company's business hereunder nor will the State take or permit to be taken by any such State authority any other discriminatory action which would deprive the Company of full enjoyment of the rights granted and intended to be granted under this Agreement; and Consents to improvements on leases 3 (d) shall as and when required by the Company (but without prejudice to the foregoing provisions of this Agreement relating to the detailed proposals and matters referred to in Clause 5(1) hereof) consent where and to the extent that the Minister considers to be reasonably justified to the Company or the RDA making improvements for the purposes of this Agreement on the land (including seabed) comprised in any lease granted by the State to the Company or the RDA pursuant to this Agreement PROVIDED THAT the Company or the RDA shall also obtain any other consents legally required in relation to such improvements. (3) The Company shall not have any tenant rights in improvements made by the Company on the land comprised in any lease granted by the State to the Company pursuant to this Agreement in any case where pursuant to Clause 10(o) hereof such improvements will remain or become the absolute property of the State. Phase 2 Obligation of the Company to construct 3 9. (1) The Company covenants with the State — (a) the Company will in accordance with its proposals as finally approved or determined under Clause 6 hereof promptly after the commencement date commence to construct a refinery and will thereafter continue such construction and shall by the end of year 3 complete and have in operation the first stage of the refinery having a capacity to produce not less than 200,000 tons of alumina per annum and by the end of year 10 complete and have in operation the refinery having a capacity to produce not less than 600,000 tons of alumina per annum and from time to time during such construction period the Company will if required by the Minister demonstrate to his satisfaction that such progress is being made as will ensure completion of such stages within the times aforesaid; (b) the Company will in accordance with its proposals as finally approved or determined under Clause 6 hereof — (i) construct the Company's wharf; (ii) dredge if required the berth at the Company's wharf and any necessary channel and approaches thereto including a swinging basin; (iii) develop or cause to be developed the townsite and construct or cause to be constructed the regional facilities; and (iv) construct and provide other works (if any); and (c) the Company shall not ship or sell bauxite without the prior approval of the Minister except that the Company may ship or sell the following quantities of bauxite without such approval — (i) during the period from the commencement date to the end of year 3 — a quantity up to but not exceeding 3,000,000 tons; (ii) during the period from the beginning of year 4 to the end of year 10 — a quantity equal to two and one half tons of bauxite for each one ton of bauxite fed to the refinery; and (iii) thereafter in each year in which the refinery operates at a rate which is not below 200,000 tons less than its rated capacity a quantity of alumina which is equal to two tons of bauxite for every one ton of bauxite fed to the refinery PROVIDED THAT nothing in this paragraph shall prohibit the fulfilment of a contract for the shipment or sale of bauxite which has received the approval of the Minister. (2) Throughout the continuance of this Agreement the Company shall — Operation of Tramway 3 (a) operate any tramway it may construct in a safe and proper manner and where necessary and to the extent that it can do so without unduly prejudicing or interfering with its operations hereunder allow crossing places for roads and stock; Use of roads by others 3 (b) except to the extent that the Company's proposals as finally approved or determined under Clause 6 hereof otherwise provide allow the public to use free of charge any roads (to the extent that it is reasonable and practicable so to do) constructed by the Company hereunder PROVIDED THAT such use shall not unduly prejudice or interfere with the Company's operations hereunder; Compliance with laws 3 (c) in the construction operation maintenance and use of any work installation plant machinery equipment service or facility provided or controlled by the Company comply with and observe the provisions hereof and subject thereto the laws for the time being in force in the said State; Maintenance 3 (d) at all times keep and maintain in good repair and working order and condition all works installations plant machinery and equipment provided by the Company and for the time being the subject of this Agreement; Use of wharf and facilities 3 (e) subject to and in accordance with by‑laws (which shall include provision for reasonable charges) from time to time to be made and altered as provided in subclause (3) of this clause and subject thereto or if no such by‑laws are made or in force then upon reasonable terms and at reasonable charges (having regard to the cost thereof to the Company) allow the State and third parties to use the Company's wharf and port installations and port equipment PROVIDED THAT such use shall not unduly prejudice or interfere with the Company's operations hereunder and that the entire control and all personnel for or in respect of such use shall be provided by or with the approval of the Company; Access through mining areas 3 (f) allow the State and third parties to have access (with or without stock and vehicles) over the mineral lease except for those parts of the mineral lease which the Company may from time to time reasonably designate as restricted areas for reasons of security or safety PROVIDED THAT such access over shall not unduly prejudice or interfere with the Company's operations hereunder; Protection for Inhabitants 3 (g) subject to and in accordance with by‑laws (which shall include provision for reasonable charges) from time to time to be made and altered as provided in subclause (3) of this clause and subject thereto or if no such by‑laws are made or in force then upon reasonable terms and at reasonable charges (having regard to the cost thereof to the Company) allow the inhabitants for the time being of the townsite being employees licensees or agents of the Company or persons engaged in providing a legitimate and normal service to or for the Company or their employees licensees or agents to make use of the water power recreational health and other services or facilities provided or controlled by the Company; Use of local labour and materials 3 (h) so far as reasonably and economically practicable use labour available within the said State and give preference to bona fide Western Australian manufacturers and contractors in the placement of orders for works materials plant equipment and supplies where price quality delivery and service are equal to or better than that obtainable elsewhere. In calling tenders and or letting contracts for works materials plant equipment and supplies required by the Company the Company will ensure that bona fide Western Australian manufacturers and contractors are given reasonable opportunity to tender quote or otherwise be properly considered for such works materials plant equipment and supplies; Rent for mineral lease 3 (i) by way of rent for the mineral lease pay to the State annually in advance during the period expiring at the end of twenty‑one (21) years from the commencement date a sum equal to five dollars ($5) per square mile of the area for the time being the subject of the mineral lease and thereafter the amount from time to time prescribed by the Mining Act but not exceeding ten dollars ($10) per square mile; Royalties on bauxite during first 21 year period 3 (j) pay to the State royalty on all bauxite shipped or used (other than bauxite shipped solely for testing purposes) during the period expiring at the end of twenty‑one years from the commencement date as follows — (i) on bauxite shipped — twelve and one half (12.5) cents per ton; (ii) on bauxite used in the refinery — seven and one half (7.5) cents per ton; (iii) on special grade bauxite produced for refractory or special purposes (other than for processing into alumina) and shipped to points within the Commonwealth — twenty‑five (25) cents per ton; (iv) on special grade bauxite produced for refractory or special purposes (other than for processing into alumina) and shipped to points outside the Commonwealth — forty (40) cents per ton. The royalty payable under this paragraph shall increase or decrease proportionately to the increase or decrease in the mean quarterly world selling price of aluminium above or below five hundred Australian dollars (A$500) per ton. The mean quarterly world selling price of aluminium is deemed to be the average expressed in Australian dollars of the four prices first quoted in the London Metal Bulletin in respect of Canadian primary aluminium 99.5 per cent. purity F.O.B. Toronto in each of the four quarters immediately preceding the quarter referred to in subclause (1) of this clause in respect of which the royalty return is required: Royalties on bauxite after first 21 year period 3 (k) After the expiration of the period referred to in paragraph (j) of this subclause pay to the State on bauxite shipped (other than bauxite shipped solely for testing purposes) royalty at such rate or rates as are prescribed from time to time by the Mining Act and on bauxite used in the refinery at a rate determined as follows — (i) the rate of royalty shall be reviewed by the State prior to the commencement of year 22 and prior to the commencement of each seven yearly period thereafter; (ii) the rate of royalty for the seven yearly period immediately succeeding a review shall subject to subparagraph (iii) of this paragraph be the rate determined by the State on the review, or if not so determined within six (6) months after the date for a review, shall be the rate existing immediately prior to the date for the review; (iii) the royalty per ton for any seven yearly period shall not exceed the average royalty per ton which during the three year period expiring on the 30th day of June immediately preceding the respective date for the review was payable in respect of bauxite (not from the mineral lease) used in the production of alumina in the Commonwealth by other parties who or whose associates are engaged in the combined operation of mining bauxite (not from the mineral lease) and producing alumina in the Commonwealth in comparable projects with comparable commitments in comparable areas; Returns and payment of royalties of bauxite 3 (l) in each of the months of January April July and October in each year the Company will furnish to the Minister for Mines a return of all bauxite shipped or used during the quarterly period ending on the preceding last day of December March June and September as the case may be together with all other particulars necessary to enable the calculation of the royalty payable thereon and shall within thirty days after the expiration of each such quarterly period pay the State the amount of royalty due and payable in respect of that quarter; Royalties and returns for other minerals 3 (m) in relation to clay and other minerals (except bauxite and minerals contained in bauxite) mined by the Company from the mineral lease pay the royalties and make the returns and allow access to books and accounts as required from time to time by the Mining Act; and Inspection 3 (n) permit the Minister for Mines or his nominee to inspect at all reasonable times the records of the Company relative to any shipment or use of bauxite hereunder and to take copies or extracts therefrom for the purpose of determining the royalty payable in respect of bauxite hereunder and the Company will take reasonable steps to satisfy the State either by certificate of a competent independent party acceptable to the State or otherwise to the reasonable satisfaction of the Minister for Mines as to all relevant weights and analyses and will give due regard to any objection or representation made by the Minister for Mines or his nominee as to any particular weight or assay of bauxite which may affect the amount of royalty payable hereunder. By‑laws 3 (3) The Governor in Executive Council may upon recommendations by the Company make alter and repeal by‑laws for the purpose of enabling the Company to fulfil its obligations under paragraph (e) of subclause (2) of this clause and (unless and until the townsite is declared a townsite pursuant to section 10 of the Land Act) under paragraph (g) of subclause (2) of this clause and under paragraph (a) of clause 10 hereof upon terms and subject to conditions (including terms and conditions as to user charging and limitation of the liability of the Company) as set out in such by‑laws consistent with the provisions hereof. Should the State at any time consider that any by‑law made hereunder has as a result of altered circumstances become unreasonable or inapplicable then the Company shall recommend such alteration or repeal thereof as the State may reasonably require or (in the event of there being any dispute as to the reasonableness of such requirement) then as may be decided by arbitration hereunder. Restoration of Mined Areas and Regeneration of Vegetation 3 (4) The Company will agree from time to time with the Minister for Mines as to the progressive restoration of the surface of the worked and mined areas and the regeneration of vegetation thereon at the cost of the Company, having regard to good mining and industrial practice, the remoteness of the area and its probable future use, the state of any area before being worked or mined, the cost to the Company, the risk of pollution or undue interference with any drainage system, the risk of erosion and the risk of injury to the public PROVIDED THAT if the Company and the Minister for Mines are unable to agree as to such restoration or regeneration from time to time the same shall be decided by a firm of consultants of international repute versed in such matters nominated by the Minister for Mines and acceptable to the Company which firm shall have regard to such criteria as aforesaid and in giving a decision such firm shall be deemed to be acting as an expert and not as an arbitrator. Disposal of red mud 3 (5) The Company will agree from time to time with the Minister for Mines as to the disposal of red mud and other effluent from the refinery at the cost of the Company having regard to good mining and industrial practice, the remoteness of the area and its probable future use, the cost to the Company, the risk of pollution or undue interference with any drainage system the risk of erosion and the risk of injury to public health PROVIDED THAT if the Company and the Minister for Mines are unable to agree as to such disposal from time to time the same shall be decided by a firm of industrial consultants of international repute versed in such matters nominated by the Minister for Mines and acceptable to the Company which firm shall have regard to such criteria as aforesaid and in giving a decision such firm shall be acting as an expert and not as an arbitrator. Mutual Covenants 3