Western Australia: Alumina Refinery (Worsley) Agreement Act 1973 (WA)

Western Australia Alumina Refinery (Worsley) Agreement Act 1973 Western Australia Alumina Refinery (Worsley) Agreement Act 1973 Contents 1. Short title 1 2. Commencement 1 3. Execution of Agreement authorised 1 4. Executed Agreement to operate and take effect 2 5. Repeal 2 6. First Supplementary Agreement approved and ratified 2 6A. Second Supplementary Agreement approved and ratified 2 6B. Third Supplementary Agreement approved and ratified 2 6C. Fourth Supplementary Agreement approved and ratified 2 7. Effect of Supplementary Agreement 3 8. Effect of Second Supplementary Agreement 3 9. Effect of Third Supplementary Agreement 3 10. Effect of Fourth Supplementary Agreement 4 11. Minister to seek advice from Minister for the Environment in certain circumstances 4 First Schedule — Alumina Refinery (Worsley) Agreement Second Schedule — First Supplementary Agreement Third Schedule — Second Supplementary Agreement Fourth Schedule — Third Supplementary Agreement Fifth Schedule — Fourth Supplementary Agreement Notes Compilation table 122 Defined terms Western Australia Alumina Refinery (Worsley) Agreement Act 1973 An Act to authorise the execution on behalf of the State of an Agreement with Alwest Pty. Limited and Dampier Mining Company Limited relating to the establishment at or near Worsley of a refinery to produce alumina and for incidental and other purposes. 1. Short title This Act may be cited as the Alumina Refinery (Worsley) Agreement Act 1973 1. 2. Commencement (1) Subject to subsection (2), this Act shall come into operation on the day on which it receives the Royal Assent 1. (2) Section 5 shall come into operation on a date to be fixed by proclamation, being a date not earlier than the date on which the Agreement referred to in section 3 is duly executed by all the parties thereto 1. 3. Execution of Agreement authorised The execution by the Premier of the State of Western Australia acting for and on behalf of the State of an Agreement in or substantially in accordance with the form set out in the First Schedule is authorised. [Section 3 amended: No. 10 of 1978 s. 2.] 4. Executed Agreement to operate and take effect When the Agreement referred to in section 3 is duly executed by all the parties thereto, the Agreement shall, subject to its provisions, operate and take effect as though those provisions were enacted in this Act. 5. Repeal The Alumina Refinery (Bunbury) Agreement Act 1970, is hereby repealed. 6. First Supplementary Agreement approved and ratified The Agreement a copy of which is set forth in the Second Schedule, in this Act referred to as the First Supplementary Agreement, is approved and ratified. [Section 6 inserted: No. 10 of 1978 s. 3; amended: No. 95 of 1982 s. 2.] 6A. Second Supplementary Agreement approved and ratified The Agreement a copy of which is set in the Third Schedule, in this Act referred to as the Second Supplementary Agreement, is approved and ratified. [Section 6A inserted: No. 95 of 1982 s. 3.] 6B. Third Supplementary Agreement approved and ratified The Agreement a copy of which is set forth in the Fourth Schedule, in this Act referred to as the Third Supplementary Agreement, is approved and ratified. [Section 6B inserted: No. 63 of 1992 s. 4.] 6C. Fourth Supplementary Agreement approved and ratified The Agreement, a copy of which is set forth in the Fifth Schedule, in this Act referred to as the Fourth Supplementary Agreement, is approved and ratified. [Section 6C inserted: No. 15 of 1995 s. 4.] 7. Effect of Supplementary Agreement Notwithstanding the provisions of section 4, on and after the coming into operation of the Alumina Refinery (Worsley) Agreement Act Amendment Act 1978 1, the Agreement which is referred to in section 3 and which was executed pursuant to that section shall operate and take effect subject to its provisions as those provisions are amended by the First Supplementary Agreement. [Section 7 inserted: No. 10 of 1978 s. 4; amended: No. 95 of 1982 s. 4.] 8. Effect of Second Supplementary Agreement Notwithstanding section 4 but without affecting any agreement made pursuant to clause 24(1) of the Agreement referred to in section 3, that Agreement shall, on and after the coming into operation of the Alumina Refinery (Worsley) Agreement Amendment Act 1982 1, operate and take effect subject to its provisions as those provisions are amended by the First and Second Supplementary Agreements. [Section 8 inserted: No. 95 of 1982 s. 5.] 9. Effect of Third Supplementary Agreement Notwithstanding section 4 but without affecting any agreement made pursuant to clause 24(1) of the Agreement referred to in section 3, that Agreement shall, on and after the coming into operation of the Alumina Refinery (Worsley) Agreement Amendment Act 1992 1, operate and take effect subject to its provisions as those provisions are amended by the First, Second and Third Supplementary Agreements. [Section 9 inserted as section 8: No. 63 of 1992 s. 5; renumbered as section 9: No. 15 of 1995 s. 5.] 10. Effect of Fourth Supplementary Agreement Notwithstanding section 4 but without affecting any agreement made pursuant to clause 24(1) of the Agreement referred to in section 3, that Agreement shall, on and after the coming into operation of the Alumina Refinery (Worsley) Agreement Amendment Act 1995 1, operate and take effect subject to its provisions as those provisions are amended by the First, Second, Third and Fourth Supplementary Agreements. [Section 10 inserted: No. 15 of 1995 s. 6.] 11. Minister to seek advice from Minister for the Environment in certain circumstances (1) Before — (a) making an agreement under clause 12C(2) of the Agreement; or (b) approving amendments to Plan Z under clause 12C(7)(b) of the Agreement, the Minister is to seek advice from the Minister for the Environment as to whether, if not for this Act, any matter to be included in the agreement or in the amendments would be in breach of the Environmental Protection Act 1986. (2) The Minister is to cause — (a) the text of any advice received by the Minister from the Minister for the Environment as a result of seeking advice under subsection (1); (b) the text of any agreement made by the Minister under clause 12C(2) of the Agreement; and (c) a copy of any amendments to Plan Z approved by the Minister under clause 12C(7)(b) of the Agreement, to be laid before each House of Parliament within 12 sitting days of that House after the advice is received, the agreement is made or the amendments are approved by the Minister. (3) In this section — the Agreement means the Agreement referred to in section 3, as amended by the Fourth Supplementary Agreement; Minister for the Environment means the Minister to whom the administration of the Environmental Protection Act 1986 is for the time being committed by the Governor; Plan Z means the plan marked Z referred to in clause 12C(1) of the Agreement. [Section 11 inserted: No. 15 of 1995 s. 6.] First Schedule — Alumina Refinery (Worsley) Agreement [s. 3] [Heading amended: No. 19 of 2010 s. 4.] THIS AGREEMENT is made the day of 197 BETWEEN THE HONOURABLE JOHN TREZISE TONKIN, M.L.A., Premier and Treasurer of the State of Western Australia, acting for and on behalf of the said State and its instrumentalities from time to time (hereinafter called "the State") of the one part and ALWEST PTY. LIMITED (hereinafter called "Alwest") a Company incorporated under the Companies Act 1961, of Western Australia and having its registered office at 34‑36 Stirling Street, Perth, in the said State and DAMPIER MINING COMPANY LIMITED (hereinafter called "Dampier") a Company also incorporated under the said Act and having its registered office at 37 Saint George's Terrace, Perth (hereinafter collectively called "the Joint Venturers" in which term shall be included their respective successors and permitted assigns and appointees) of the other part. WHEREAS: A. By an agreement made between the State and Alwest dated the 10th day of November, 1970 which was ratified by the Alumina Refinery (Bunbury) Agreement Act 1970 the State agreed to grant to Alwest certain rights to mine bauxite and Alwest undertook, subject to the provisions of the said agreement, to erect an alumina refinery at or near Bunbury in the said State. B. By an agreement dated the 28th day of July, 1971 made between the State, Alwest and Dampier Alwest assigned to Dampier an undivided one half share or moiety in and to all the right title interest claim and demand of Alwest in and under the said Agreement to the intent that the Joint Venturers should thereafter hold the said rights as tenants in common in equal shares. C. Since the date of the said Agreement extensive investigations have been made by Alwest and by the Joint Venturers as to the suitability of an area near Worsley as a refinery site and of the use in the refinery of coal from the Collie coalfield and extensive geological investigations of the bauxite reserves on both Crown and private land within the areas the subject of the said Agreement have been carried out the cost of which exceeds four million dollars ($4,000,000). D. The parties hereto have agreed to enter into this Agreement in substitution for the said Agreement and that on the execution hereof the said Agreement shall be terminated. NOW THIS AGREEMENT WITNESSETH — Interpretation 2 1. In this Agreement subject to the context — "access channel" means the channel to be dredged to provide access for shipping to the new inner harbour at the port of Bunbury; "apply" "approve" "approval" "consent" "certify" "direct" "notify" or "request" mean apply, approve, approval, consent, certify, direct, notify or request in writing as the case may be and the same rule shall apply with regard to derivatives, inflexions and variants of the quoted words; "associated company" means — (a) any company providing for the purposes of this Agreement capital of not less than Two Million Dollars ($2,000,000) which is incorporated or formed within the United Kingdom the United States of America or Australia or such other country as the Minister may approve and which — (i) is promoted by the Joint Venturers or any of them for all or any of the purposes of this Agreement and in which the Joint Venturers or any of them or some other company, acceptable to the Minister hold not less than a twenty five per cent (25%) interest or some lesser interest acceptable to the Minister; or (ii) being a corporation is related within the meaning of that term as used in section 6 of the Companies Act 1961, to any company in which the Joint Venturers or any of them or some other company acceptable to the Minister hold not less than twenty five per cent (25%) of the issued ordinary share capital; and (iii) is notified to the Minister by the Joint Venturers or any of them as being such a company; (b) any company approved in writing by the Minister; "bauxite" means ore which either with or without crushing washing and screening is sold as bauxite or is used for processing into alumina; "Bunbury Port Authority" and "the Authority" means the body corporate established pursuant to the Bunbury Port Authority Act 1909; "commencement date" means the date on which the Joint Venturers give to the Minister the notice mentioned in Clause 2 hereof; "Commonwealth" means the Commonwealth of Australia and includes the Government thereof for the time being; "Conservator of Forests" and "Conservator" means the Conservator of Forests appointed under the Forests Act 1918; "Crown land" means all land of the Crown including — (a) all land dedicated as a State forest under the Forests Act 1918, other than land reserved as State Forest No. 51 as it existed on the 14th May, 1973; (b) all land reserved for the purpose of water conservation; (c) land reserved under the Land Act and numbered 15410, 18534, 19738, 19739, 19740, 19741, 19958, 20063, 20182, 21287, 24791, 26363, 26666, 30394 and 31890; and (d) land reserved under the Forests Act as Timber Reserves and numbered 66/25, 69/25, 131/25, 144/25, 145/25, 146/25, 147/25, 148/25, 151/25, 160/25, 171/25, 172/25 and 189/25, but excluding — (e) land granted or agreed to be granted in fee simple; (f) land held or occupied under the Crown by lease or licence for any purpose other than pastoral or timber purposes; and (g) all other laid reserved under the Land Act or the Forests Act unless the Minister, after consultation with the Environmental Protection Authority established under the Environmental Protection Act 1971, otherwise determines; "inner harbour" means the harbour to be dredged at Bunbury; "Land Act" means the Land Act 1933; "mineral lease" means the mineral lease referred to in Clause 7(1) hereof and includes any renewal thereof; "Mining Act" means the Mining Act 1904; "Minister" means the Minister in the Government of the State for the time being responsible for the administration of this Agreement; "Minister for Mines" means the Minister in the Government of the State for the time being responsible for the administration of the Mining Act; "month" means calendar month; "notice" means notice in writing; "person" or "persons" includes bodies corporate; "production date" means the date on which the regular production of alumina commences at the refinery; "Railways Commission" means the Western Australian Government Railways Commission established pursuant to the Government Railways Act 1904; "refinery" means a refining plant established pursuant to this Agreement in which bauxite is treated to produce alumina; "smelter" means an electrolytic reduction plant for the conversion of alumina to aluminium using alumina produced from bauxite; "special grade bauxite" means ore which is saleable as refractory grade abrasive grade or chemical grade bauxite; "State Electricity Commission" means the State Electricity Commission of Western Australia established pursuant to the State Electricity Commission Act 1945; "stockpile area" means the land to be made available to the Joint Venturers in the Port of Bunbury, in accordance with the terms of this Agreement, for use as a stockpile area; "this Agreement" "hereof" "hereto" and "hereunder" includes this Agreement as from time to time added to varied or amended; "ton" means a ton of two thousand two hundred and forty (2,240) lbs net dry weight unless otherwise specified; "turning basin" means the dredged waters of the inner harbour as developed by the State for the turning and navigation of vessels in the inner harbour; reference in this Agreement to a company includes any joint venture, partnership or other association of companies; monetary references in this Agreement are to Australian currency; power given under any clauses of this Agreement other than Clause 25 hereof to extend or alter any period or date shall be without prejudice to the power of the Minister under the said Clause 25; Reference in this Agreement to an Act shall include the amendments to such Act for the time being in force and also any Act passed in substitution therefor or in lieu thereof and the regulations for the time being in force thereunder; Marginal notes shall not affect the interpretation or construction hereof 2; any covenant or agreement on the part of the Joint Venturers hereunder shall be deemed to be a joint and several covenant or agreement as the case may be. Commencement and Operation 2 2. (1) The provisions of this Agreement other than Clause 3 hereof shall not come into operation until the Joint Venturers have given the Minister notice that they desire to proceed with the objects of this Agreement. (2) If before the 30th of June 1974 the notice referred to in subclause (1) of this Clause is not given this Agreement will then cease and determine and neither of the parties hereto will have any claim against the other of them with respect to any matter or thing arising out of, done, performed or omitted to be done or performed under this Agreement. Right to Enter on Crown Land 2 3. (1) The State shall to the extent reasonably necessary for the purposes of this Agreement allow the Joint Venturers to enter upon Crown land and survey possible sites for their operations under this Agreement. Creation of Temporary Reserve 2 (2) The State shall on the execution of this Agreement create a temporary reserve over all the Crown land within the area delineated in blue on this plan marked "X" referred to in Clause 7(1) hereof. Rights of Occupancy 2 (3) As soon as the temporary reserve referred to under subclause (2) of this Clause has been created the Joint Venturers shall apply for and the State shall grant to them for a period terminating with the granting of the mineral lease referred to in Clause 7(1) hereof, or the sooner determination of this Agreement, rights of occupancy for the purposes of this Agreement (including the sole right to search and prospect for bauxite) in respect of such land on such terms and conditions as the Minister for Mines may determine. (4) The provisions of the Mining Act shall be deemed to be modified to permit the creation of the temporary reserve under subclause (2) of this Clause and the grant of the rights of occupancy under subclause (3) of this Clause. Resumptions 2 4. The State may as and for a public work under the Public Works Act 1902, resume any land required for the purposes of this Agreement and notwithstanding any other provisions of that Act may sell lease or otherwise dispose of the same to the Joint Venturers and the provisions of subsections (2) to (7) inclusive of Section 17 and Section 17A of that Act shall not apply to or in respect of that land or the resumption thereof. Obligations of the Joint Venturers 2 5. The Joint Venturers shall — (1) as soon as reasonably possible after the coming into operation of this Agreement commence the construction of a refinery on a site at or near Worsley as may be agreed by the Minister or at such other place as the parties may agree and thereafter continue such construction and within four years from the commencement date complete and have in operation the first stage of the refinery with a capacity to produce not less than two hundred thousand (200,000) tons of alumina per annum (which refinery the Joint Venturers may expand from time to time as they deem appropriate) PROVIDED THAT if the Joint Venturers shall in writing reasonably demonstrate to the Minister that they have used their best endeavours to negotiate the finance required to construct the refinery and to complete the sales contracts necessary for the sale of alumina produced at the refinery to make the Joint Venturers' project economically practicable, but they have been unsuccessful in either of these endeavours, the Minister shall grant the Joint Venturers such extensions of time as are appropriate to the situation PROVIDED FURTHER that nothing in this subclause shall limit the effect of Clause 19 or Clause 25 hereof; Facilities for Transport of Bauxite and Coal 2 (2) transport all bauxite mined within the mineral lease to the refinery and all alumina produced at the refinery to the port of Bunbury and to facilitate such transport and the transport of coal fuel oil caustic soda lime and limestone required by the Joint Venturers for use within the site of the refinery — (a) shall at their expense construct along a route approved by the Minister and in accordance with recognised standards an appropriate conveyor or pipeline between the mineral lease and the refinery and a pipeline between the refinery and the Port of Bunbury with all proper ancillary equipment and without unduly interfering with any existing means of communication (including roads and railways), and/or (b) shall request the Railways Commission, at the expense of and in consultation with the Joint Venturers, to — (i) construct along a route approved by the Commission an appropriate railway having a gauge of 3′ 6″ between the mineral lease via the refinery to a point on the Commission's existing railway system (the precise location of such point to be decided by the Commission) together with all necessary signalling switch and other gear, all proper and usual works and all crossing places as the Commission may reasonably require; (ii) upgrade the Commission's existing railway as may be necessary from the point of connection with the railway referred to in subparagraph (i) above to the port of Bunbury so as to make it adequate for the Joint Venturers' requirements as to the transport of alumina and other products and goods and materials required for the construction operation repair and maintenance of the refinery and ancillary facilities; (c) shall request the Railways Commission at the expense of and in consultation with the Joint Venturers to upgrade the Commission's existing railway so as to make it adequate for the Joint Venturers' requirements as to the transport of coal from the point of connection referred to in paragraph (b) to an agreed point in the Collie coalfield; PROVIDED THAT — (i) in the event of the State or the Railways Commission within five years of the date of this Agreement or within three years of the completion of the upgrading referred to in paragraph (b)(ii) and paragraph (c) of this subclause, whichever period is the longer, receiving contributions towards the cost of those upgradings from other users of the railways involved, then the State or the Commission shall return to the Joint Venturers such part of the moneys advanced by the Joint Venturers for those upgradings as is equitable; (ii) in the event of any other person making use of the railway referred to in paragraph (b)(i) of this subclause within 15 years of the date of this Agreement and moving over that railway in any one year within that period 500,000 tons or more of bulk products the State shall require such other user to make a fair contribution to the cost of the establishment of the railway and from the proceeds of any such contribution or contributions shall return to the Joint Venturers such part of the moneys advanced by the Joint Venturers for the establishment of the railway as shall be equitable; and, in the event of the Joint Venturers electing to have a railway constructed as aforesaid the Joint Venturers shall — Joint Venturers to Notify Requirements 2 (d) provide to the satisfaction of the Railways Commission not less than twelve months in advance of their first requiring the use of rail transport such details of their requirements (including anticipated or provisional annual tonnages) as to the use of the railways as will enable the Commission to make arrangements to meet those requirements and shall thereafter give adequate notice of any change in those requirements; Ancillary Facilities 2 (e) at their cost provide and maintain such sidings, shunting loops, spurs and other connections as they require for their operations under this Agreement and provide and maintain loading and unloading facilities sufficient to meet train operating requirements and terminal equipment (including weighing devices), together with a staff adequate to ensure the proper operation of all such loading and unloading facilities and terminal equipment; (f) ensure that all wagons are properly trimmed and loaded to prescribed tonnages; Rolling Stock 2 (g) provide sufficient wagons (to a design and specification approved by the Railways Commission) to carry all bauxite coal fuel oil caustic soda lime and limestone to the refinery and alumina to the port of Bunbury and necessary replacements therefor except replacements made necessary solely by the negligence of the Commission; Freight Rates 2 (h) pay in respect of all commodities carried in trains operated by the Railways Commission the appropriate freight rates set out or referred to in the First Schedule hereto by monthly payments on the basis of the anticipated or provisional annual tonnage indicated in the forward pattern of working referred to in Clause 5(2)(d) hereof subject to annual adjustment after the expiration of each year with regard to tonnages actually carried and in ascertaining the number of tons actually carried railway weighbridge weights or such alternative method of measuring as is mutually agreed shall be used but in no event shall any allowance be made for moisture contained in the material transported; Costs of dredging 2 (3) (a) (i) advance to the State a sum of one million five hundred thousand dollars ($1,500,000) towards the cost of the dredging in progress in the port of Bunbury for an access channel and turning basin, and for the dredging of a berth for the Joint Venturers in that port and also for the reclamation of adequate areas of land for the establishment of the stockpile area; (ii) advance to the State a sum of four hundred thousand dollars ($400,000) towards the cost of dredging the access channel and turning basin from 36 feet to 40 feet PROVIDED THAT in the event of the State or the Bunbury Port Authority receiving contributions towards the cost of such dredging from other users of the port (other than Alcoa of Australia (W.A.) N.L.) requiring a greater depth than 36 feet the State, having regard to the amount of the contributions of such other users as aforesaid and to the State's existing obligations to refund to Alcoa of Australia (W.A.) N.L. part of any contribution that the Joint Venturers may have made to the cost of such dredging, shall return to the Joint Venturers such part of the said sum of four hundred thousand dollars ($400,000) as is equitable; Additional Dredging 2 (iii) in the event of the Joint Venturers desiring to use vessels requiring a greater depth of water than forty (40) feet and/or a greater width of access channel than four hundred and fifty (450) feet advance to the State a sum to be agreed towards the additional dredging necessary PROVIDED THAT in the event or any such additional dredging being carried out in accordance with this provision the State will to such extent and for such period as is reasonable having regard to the cost of that dredging charge for the use of the additional depth so provided all persons (including the Joint Venturers) having industrial or trading establishments at Bunbury and who in any one year move cargo of 300,000 tons or more (whether inward or outward) through the port of Bunbury in vessels drawing more than forty (40) feet AND the State shall from the proceeds of such charges return to the Joint Venturers the agreed sum; (iv) in the event of their electing to construct a wharf in the port of Bunbury, construct such wharf in accordance with plans and specifications approved by the State; Use of Wharf by Others 2 (v) provided that such use shall not interfere with the Joint Venturers' own requirements in regard thereto, permit any wharf constructed by them to be used by any other person for the handling of inward and outward cargo belonging to that person; the Joint Venturers and the Bunbury Port Authority shall from time to time mutually agree upon terms and conditions (including charges) for such handling and if required by the Authority the Joint Venturers shall act as its agent for and in relation to the collection of such charges and shall remit to the Authority the portion thereof which shall be payable to the Authority; the Joint Venturers may in addition to allowing any other person to use that part of the wharf as aforesaid, permit, in their sole discretion, such other person to use the Joint Venturers' bulk loading and other facilities at the berth on reasonable terms and conditions; Construction of Ship Loader and Conveyor System 2 (b) (i) whether or not the Joint Venturers construct a wharf as aforesaid, if required by the Authority, at a place within the port of Bunbury and in accordance with plans and specifications first approved by the Authority, construct a shiploader and conveyor system at the Joint Venturers' expense capable of loading alumina into ships at a rate of not less than 1,200 tons per hour; (ii) at the sole discretion of the Joint Venturers permit any shiploader and conveyor system constructed at their expense to be used by third parties on reasonable terms and conditions; (iii) in the event of the Bunbury Port Authority's electing to construct the shiploader and conveyor system at the Authority's expense, pay such handling charges for the use of the shiploader and conveyor system as the Authority may from time to time determine; Wharfage 2 (c) (i) throughout the continuance of this Agreement pay to the Bunbury Port Authority a wharfage charge for cargo passing over the wharf at the rate of 15 cents per ton or such other rate as may be agreed in respect of alumina and associated chemicals and by‑products loaded through the shiploader and conveyor system and at rates to be negotiated for all other cargoes; PROVIDED THAT in each calendar year in which the total tonnage of bulk materials passing through the inner harbour exceeds two million (2,000,000) tons the wharfage charge payable by the Joint Venturers on all alumina and associated chemicals and by‑products loaded through the shiploader and conveyor system in excess of eight hundred thousand (800,000) tons shipped in that year shall be reduced by three cents per ton; Handling Charges 2 (ii) pay to the Bunbury Port Authority standard handling charges on all the Joint Venturers cargo other than alumina and associated chemicals and by‑products loaded through the shiploader and conveyor system handled by the Authority but no charge shall be made in respect of liquid caustic and fuel oil if and when a pipeline and related facilities are constructed at the expense of the Joint Venturers to convey these substances from the point of import at Bunbury to the stockpile area or refinery; PROVIDED THAT the wharfage and handling charges (if any) payable pursuant to this Agreement shall be adjusted from time to time in proportion to any increase or decrease in the scale of wharfage and handling charges of the Bunbury Port Authority in respect of locally manufactured goods AND PROVIDED FURTHER that nothing in this Clause shall be taken to imply any exemption from the payment of tonnage rates, conservancy dues or any other charges that would normally be payable by ships using the port of Bunbury; (d) throughout the continuance of this Agreement pay to the Bunbury Port Authority an annual rental to be agreed between the parties for land leased to the Joint Venturers at the port of Bunbury; Red mud 2 (4) not less than two years prior to the estimated production date have submitted to and have had approved by the Minister proposals for the ponding of the red mud that is to be anticipated from 63 years production of alumina at the refinery and such proposals must provide — (a) for the progressive acquisition or leasing of land suitably situated and sufficient in area for residue storage; (b) for the formation of the ponds by constructing raised earth embankments to standards similar to those of an earth dam; (c) for the location, construction and maintenance of the ponds so as to avoid interference to or pollution of underground water, groundwater or the land drainage system and for the establishment of an adequate system of observation wells for testing for such pollution, for the taking of samples from these wells every three months, the submission of such samples to chemical analysis and for producing to the Minister in writing the results of all such analyses; (d) an alternative and satisfactory method of disposal should the particular ponding prove inadequate to prevent pollution; (e) for the progressive and adequate covering of filled ponds with soil and for the landscaping of such covered areas and the planting of trees and shrubs thereon; AND PROVIDED THAT — the Joint Venturers shall not sell or dispose of any land which, pursuant to the requirements of this subclause, has been acquired or leased by the Joint Venturers for the purpose of the disposal of red mud and which has been used for the ponding of red mud and subsequently covered with soil in accordance with the requirements of paragraph (e) of this subclause without having first offered to sell it to the State nor (other than to the State) within twenty‑eight (28) days of any such offer having been made PROVIDED FURTHER THAT should the State notify the Joint Venturers that it desires to acquire any part of such land the Joint Venturers shall sell to the State at fair market value such part of the land as they do not reasonably require for their own industrial purposes; Disposal of Other Waste Materials 2 (5) dispose of all waste materials other than red mud generated within the refinery site in such manner as to prevent the pollution of rivers, groundwater and underground water and comply with any reasonable direction which the Minister may give with regard to such disposal; Drainage 2 (6) adequately drain the refinery site and related facilities and dispose of such drainage in accordance with plans and specifications to be submitted by the Joint Venturers and approved by the Minister; Housing 2 (7) (a) provide (at such prices rentals or charges as are fair and reasonable under the circumstances) such services and facilities including housing assistance as may be necessary for the proper and reasonable accommodation health and recreation of workers employed by the Joint Venturers and of contractors engaged in carrying out the Joint Venturers' operations under this Agreement; (b) bear the capital cost involved to the State in the State's establishing on the mineral lease or adjacent areas any education, hospital, police or other services to the extent to which such services have been made necessary by the Joint Venturers' operations under this Agreement; (c) share with the State or the appropriate authority on a fair and reasonable basis the capital cost of establishing additional services and works, including sewerage treatments works, water supply works, main drains, education and hospital services to the extent to which such additional services and works have been made necessary in existing towns by the establishment of the refinery; (d) in the event of a material expansion of the designed capacity of the refinery which results in the refinery having a designed capacity to produce more than 1.2 million tons of alumina per year share with the State or the appropriate authority on a fair and reasonable basis the capital cost of establishing such further services and works of the kind referred to in paragraph (c) of this subclause as may be necessary in such existing towns by reason of such expansion. In determining the extend of the Joint Venturers' contribution the parties shall have regard inter alia to the current and anticipated composition of the town involved and the extent to which the ordinary responsibilities of the State with respect to the provision of the capital cost of such services and works are to be assumed by the State in the light of its then current capital resources; Use of local professional services labour and materials 2 (8) as far as it is reasonable and economically practicable — (a) use the services of engineers, surveyors, architects and other processional consultants resident and available within the said State; (b) use labour available within the said State; (c) when calling for tenders and letting contracts for works materials plant equipment and supplies ensure that Western Australian suppliers manufacturers and contractors are given reasonable opportunity to tender or quote; and (d) give proper consideration and where possible preference to Western Australian suppliers manufacturers and contractors when letting contracts or placing orders for works materials plant equipment and supplies where price quality delivery and service are equal to or better than that obtainable elsewhere; Commonwealth Consent 2 (9) make all necessary applications from time to time to the Commonwealth or Commonwealth constituted agency, authority or instrumentality which may be concerned for the grant to the Joint Venturers of all licence or consent under Commonwealth law required to permit the Joint Venturers to enter into this Agreement and perform their obligations hereunder; Royalties on Alumina and Bauxite During First Seven Year Period 2 (10) (a) (i) subject to any increase or decrease provided for in the proviso to this paragraph pay to the State a royalty of 26.25 cents per ton on all alumina produced at the refinery from bauxite the property of the Crown during the period expiring at the end of seven years from the production date PROVIDED THAT the royalty payable under this paragraph shall be reviewed quarterly and shall be calculated separately for each of the quarterly periods mentioned in paragraph (d) of this subclause in accordance with the following formula Where B = the royalty mentioned in this paragraph (expressed in cents) M = the mean quarterly world selling price per ton of aluminium as defined below (expressed in cents) R = the royalty rate per ton (expressed in cents) which will become payable in respect of alumina as a result of the application of this formula; the mean quarterly world selling price per ton of aluminium for any quarter is deemed to be the average (expressed in cents) of the four prices first quoted in the London Metal Bulletin in respect of one pound of Canadian primary aluminium of 99.5 per cent purity F.O.B. Toronto in each of the four quarters which immediately precede that quarter multiplied by 2,240 and for the purpose of this proviso the conversion rate for Canadian dollars to Australian dollars shall be the mean between the buying and selling rate for telegraphic transfers as quoted by a trading bank acceptable to the Minister for Mines; (ii) during the period referred to in sub‑paragraph (i) of paragraph (a) of this subclause pay to the State a royalty of 50 cents per ton on all special grade bauxite the property of the Crown mined by the Joint Venturers within the mineral lease; (iii) In the event that the Joint Venturers produce associated chemicals and by‑products at the refinery, if the Minister so requires, pay to the State such royalty as may be agreed on between the parties hereto; Royalty on Alumina and Bauxite After First Seven Year Period 2 (b) after the expiration of the period referred to in sub‑paragraph (i) of paragraph (a) of this subclause pay to the State on all special grade bauxite mined by the Joint Venturers pursuant to this Agreement and on all alumina produced by them at the refinery from bauxite the property of the Crown royalties at the relevant rates specified in the regulations under the Mining Act PROVIDED THAT the amount payable by way of royalty on each ton of alumina shall not be greater than that payable by any other producer of alumina in the South West Division of the State of Western Australia as defined in the Land Act AND PROVIDED ALWAYS that subject to the proviso to sub‑paragraph (i) of paragraph (a) of this subclause in no case shall the rate of royalty on alumina be less than 26.25 cents per ton; (c) except with the consent of the Minister not use bauxite (other than special grade bauxite) mined by the Joint Venturers pursuant to this Agreement in any other way than for the production of alumina and associated chemicals and by‑products at the refinery; Return and Payment of Royalties 2 (d) after the production date, before the fifteenth day in each of the months of January, April, July and October in each year furnish to the Minister for Mines a return of all bauxite and alumina and associated chemicals and by‑products produced during the quarterly period ending on the last day of the preceding December, March, June and September as the case may be together with all other particulars necessary to enable the calculation of the royalty payable thereon and within thirty (30) days after the expiration of each such quarterly period pay the State the amount of royalty due and payable in respect of that quarter; Inspection 2 (e) permit the Minister for Mines or his nominee to inspect at all reasonable times the records of the Joint Venturers relative to the quantities of special grade bauxite or alumina and associated chemicals and by‑products produced hereunder and to take copies or extracts therefrom for the purpose of determining the royalty payable and take reasonable steps to satisfy the Minister for Mines either by certificate of a competent independent party acceptable to the State or otherwise to the reasonable satisfaction of the Minister for Mines as to all relevant weights and analyses and will give due regard to any objection or representation made by the Minister for Mines or his nominee as to any particular weight or assay of special grade bauxite or alumina and associated chemicals and by‑products which may affect the amount of royalty payable hereunder; (11) take reasonable measures to purchase or lease land required by the Joint Venturers for the purposes of this Agreement. Smelter 2 6. (1) The Joint Venturers undertake to investigate the technical and economic feasibility of establishing a smelter in the State of Western Australia and from time to time review the matter and when requested by the Minister but not more than every twelve (12) months to inform the State fully in writing as to the progress and results of such investigations. The State may if it so desires also undertake studies and for this purpose the Joint Venturers shall provide the State with such information as it may reasonably require but the Joint Venturers shall not be obliged to supply technical information of a confidential nature in respect of processes which have been developed by the Joint Venturers or an associated company or acquired from other sources and which is not generally available to the aluminium industry, or financial and economic information of a confidential nature which, if disclosed, could unduly prejudice the contractual or commercial arrangements between the Joint Venturers or any of them and third parties. (2) If the studies undertaken under subclause (1) of this Clause show that in the circumstances then applying to the Joint Venturers a smelter is technically and economically viable and competitive on world markets then the Joint Venturers shall establish a smelter and have it operating at a capacity and within a time to be agreed. (3) If the Joint Venturers are unwilling or fail to establish the smelter as provided in subclause (2) of this Clause the State may negotiate with a third party to establish a smelter on terms and conditions not more favourable on the whole to the third party than any terms it has offered to the Joint Venturers. In such circumstances the Joint Venturers will if required supply alumina for a reasonable period to the third party at a reasonable price (which shall have regard to prevailing world prices and shall take into account the cost of any additional capacity that has to be constructed by the Joint Venturers) and in sufficient quantities to meet the requirements of the third party from time to time PROVIDED THAT the Joint Venturers shall not be liable to supply the third party with a greater annual quantity of alumina than 100,000 tons in the first year after the smelter is established and thereafter at a progressively increasing annual tonnage until a maximum of 200,000 tons is reached in the fifth year. Mineral Lease 2 7. (1) The State shall on application made by the Joint Venturers at any time before the expiration of two (2) years from the commencement date cause to be granted to the Joint Venturers a mineral lease of such Crown land as is then held by the Joint Venturers pursuant to Clause 3(3) hereof and privately owned land in respect of which the mineral rights are reserved to the Crown as is applied for within the area delineated in blue on the plan marked "X" and initialled by or on behalf of the parties hereto for identification (notwithstanding that the survey of any of the lands applied for has not been completed but subject to corrections to accord with the survey when completed) for the mining of bauxite; and the lease shall be so granted under and (except to the extent that the provisions of the Mining Act are not inconsistent with this Agreement) subject to that Act but in the form set out in the Second Schedule. Exemption from Labour Conditions 2 (2) The Joint Venturers shall not be required during the currency of this Agreement to comply with labour conditions imposed by or under the Mining Act with respect to the mineral lease but this subclause shall not apply to privately owned land within the mineral lease unless the owner and occupier have been advised by the Joint Venturers as to the effect of the terms of this Agreement insofar as they relate to privately owned land within the mineral lease and have expressly agreed in writing to the Joint Venturers exercising with respect to his land the right of noncompliance with those labour conditions. Catchment Areas 2 (3) If the mineral lease granted pursuant to subclause (1) of this Clause includes all or any part of the land coloured in red on the plan marked "X", such land being part of the Helena River and Collie River catchment areas the Joint Venturers notwithstanding the existence of the mineral lease, shall not mine or make any use whatsoever of such land until the State has notified the Joint Venturers that it approves of the Joint Venturers mining or otherwise making use of the land and then only to the extent and subject to any conditions indicated in that approval. Rental 2 (4) Rental under the mineral lease shall be paid to the State yearly in advance and for the first seven years of the lease shall be calculated at the rate of five dollars ($5) per annum for every square mile contained in the leased area. Review of Rental 2 (5) After the expiration of the first seven years from the granting of the mineral lease and at the expiration of every seven year period of the lease thereafter the rental for the lease shall be reviewed. The rental for each such period after the first seven years shall be calculated separately in accordance with the following formula — Where B = the rental mentioned in subclause (4) of this Clause. M = the mean quarterly world selling price per ton of aluminium as defined in Clause 5(10)(a)(i) of this Agreement, but here expressed in dollars and cents; R = the new rental; PROVIDED THAT in no case shall the adjusted rental be less than five dollars ($5) per square mile. Term of Mineral Lease 2 (6) Subject to the performance by the Joint Venturers of their obligations under this Clause and notwithstanding any provision of the Mining Act to the contrary the term of the mineral lease will, subject as hereinafter provided, be for twenty‑one (21) years from the date of receipt of the application referred to in subclause (1) of this Clause with rights of renewal for two (2) consecutive further periods of twenty‑one (21) years upon the terms and conditions contained in the mineral lease except that: — (i) the rental rate may be varied as provided in subclause (5) of this Clause; (ii) royalty rates may be varied as provided in subclause (10) of Clause 5 hereof; (iii) the right of renewal shall be excluded after the second renewal. Further Mineral Lease 2 (7) Within the first six (6) months of the twelve (12) months immediately preceding the expiration of the second renewed period of twenty‑one (21) years of the mineral lease the Joint Venturers, if the refinery is then being operated pursuant to this Agreement, may give notice to the State that they desire a further mineral lease under the Mining Act for bauxite of the leased area or of a part or parts thereof for a term of twenty‑one (21) years and the State shall within six (6) months from its receipt of that notice notify the Joint Venturers of the terms and conditions upon which it is prepared to grant such a further mineral lease of the leased area or of a part or parts thereof (as the case may be) and the Joint Venturers for a period of three (3) months thereafter will have the right to accept such further mineral lease on those terms and conditions and for a period of two (2) years the State shall not offer to grant a mineral lease of the leased area or any part thereof for bauxite to any person other than the Joint Venturers on more favourable terms and conditions than have been offered to the Joint Venturers. Surrender of part of Mineral Lease 2 (8) The Joint Venturers may from time to time surrender to the State all or any portion or portions (of reasonable size and shape) of the mineral lease subject to the Joint Venturers having complied with their obligations under subclauses (10) (11) (12) (13) and (14) of this Clause in respect of that portion or those portions and upon the surrender of any portion or portions of the mineral lease the rental thereunder shall abate in proportion to every square mile or residual part of a square mile of the mineral lease so surrendered, but there shall be no refund of rental covering any part of a yearly rental already paid after becoming due. Mining on Privately Owned Land 2 (9) The Joint Venturers will not commence any mining or related operations for the purposes of this Agreement on any privately owned land within the mineral lease unless and until — (a) they have entered into a written agreement with the owner and occupier of such land for the purpose of providing for adequate restoration of the land after mining and that agreement has been approved by the Minister; and (b) they have entered into a written agreement with the owner and occupier of such land for compensation arising out of their operations or proposed operations on the land, and within fourteen (14) days after the date thereof or (in the case of an agreement entered into before the date hereof) after the execution of this Agreement lodge a true copy of the agreement with the Minister for Mines. (10) The Joint Venturers will by means of contour ploughing, concrete or earth sills, diversion channels, settling ponds and drainage or other approved method as the case may require take all reasonable steps to prevent damage being caused to privately owned land by water runoff and will by every reasonable means prevent soil erosion on such land. (11) The Joint Venturers will within thirty (30) days after ceasing mining operations on any area of privately owned land commence to restore the mined area and continue to restore it until the restoration is completed to the satisfaction of the Minister who in considering any matter relating to such restoration shall have regard to the reasonable requirements of the relevant local authority. (12) Notwithstanding any rule of law or provision of any agreement referred to in subclause (9)(a) of this Clause to the contrary a reference to mining or mining operations in any such agreement shall be read and construed as including the restoration of any mined area and for that purpose and for the purposes of subclause (11) of this Clause the term "restoration" means the battering and smoothing of pit walls, the spreading of previously removed topsoil, the ground ripping and planting of vegetation of or in a mined area and the verb "to restore" has a corresponding meaning. (13) Notwithstanding the provisions of subclause (11) of this Clause where the owner of the privately owned land satisfies the Minister that the excavation of any mined area is capable (with or without modification) of being used and should be used for the purpose of water storage or other approved purpose the Minister will by notice to the Joint Venturers relieve them of the obligation imposed by that subclause with respect to that particular mined area. (14) For the purposes of subclauses (10) (11) and (13) of this Clause, a reference to privately owned land shall be construed as including land owned by the Joint Venturers. Construction of Railway 2 8. (1) The State shall at the request of the Joint Venturers and with all reasonable expedition but at the Joint Venturers' expense in all things execute the railway construction and upgradings referred to in Clause 5(2)(b) and (c) of this Agreement but shall not be required to complete such construction or upgradings within a period of less than two years from the date of the Joint Venturers' particular request. (2) The construction and upgradings referred to in subclause (1) of this Clause shall be carried out to the specifications of the Railways Commission but in deciding on any such specifications the Commission shall have due regard to the requirements of the Joint Venturers and shall consult them as to those requirements. (3) The provisions of section 96 of the Public Works Act 1902, shall not apply to any railway constructed pursuant to this Agreement. Maintenance of Railway 2 (4) The State shall maintain the railway constructed in accordance with Clause 5(2)(b)(i) of this Agreement. Operation of Trains 2 (5) During the currency of this Agreement, subject to the Joint Venturers complying with their obligations hereunder in relation to their use of rail transport and, in particular, subject to the number of wagons provided by the Joint Venturers being sufficient for the purpose, the State shall operate such trains as is required and shall transport over its railways from time to time existing all bauxite alumina coal fuel oil caustic soda lime limestone and other commodities required by the Joint Venturers. Maintenance and Service of Locomotives, Brakevans and Rolling Stock 2 (6) The State, at is own expense, shall provide all locomotives and brakevans and maintain and service all locomotives brakevans and wagons necessary for the purposes of this Agreement. Construction of Roads 2 9. (1) If so required by the Joint Venturers the State shall at the expense of the Joint Venturers acquire or resume such land as may be required and construct or cause to be constructed any road reasonably required by them to gain access to any land in order to carry out their operations under this Agreement and the alignment and general standard of any such road shall be such as is acceptable to the State. (2) The Joint Venturers may construct and use private roads within the area of the mineral lease but — (a) the plans and specifications for any such road shall be approved in advance by the State and shall where required by the State provide for grade separation at all intersections with public roads and railways; (b) the Joint Venturers shall — (i) minimise the extent of forest clearing required for road alignments and give to the Conservator of Forests six (6) months prior notice of their intention to build any road; (ii) take full responsibility for and take precautions to prevent the public from using their private roads; and (iii) provide fences and stock barrier wherever necessary. (3) The Joint Venturers shall in respect of every road constructed pursuant to subclause (2) of this Clause that is open to or used by the public for passage with vehicle comply with the provisions of the Road Maintenance (Contribution) Act 1965. Use of Public Roads 2 10. (1) Subject to any restriction that the State may reasonably impose by way of limitation of speeds or loads or the use of railway crossings the Joint Venturers may use any public roads that may from time to time exist in the area of their operations under this Agreement for the purpose of transporting goods and materials in connection with those operations, but where the Joint Venturers' operations require the use of a public road that is inadequate for the purpose, or results in excessive damage or deterioration of any public road (other than fair wear and tear) the Joint Venturers shall pay to the State or local authority concerned (except where and to the extent that the Commissioner of Main Roads or local authority agrees to bear the whole or part of the cost involved) the total cost of any upgrading required or of making good the damage or deterioration. (2) Where the operations of the Joint Venturers bring about an increase in the conflict of trains and road vehicles at level crossings to such an extent that an improvement in the level of protection requiring the provision of either flashing lights, boom gates or grade separation is considered by the Minister to be warranted following all investigation, the Joint Venturers shall pay to the State (except where and to the extent that the Minister agrees to bear the whole or part of the cost involved) the total cost of providing the increased level of protection. Transport of Construction Materials by Road 2 11. If during the construction of the refinery or any substantial extension thereof the Joint Venturers demonstrate to the satisfaction of the Commissioner of Transport that the services provided by the Railways Commission do not meet the reasonable requirements of the Joint Venturers, the Commissioner of Transport shall, subject to the payment of the appropriate fee, issue a licence to transport goods by road for such construction or extension under the terms of the Transport Commission Act 1966. State's Obligations 2 12. The State covenants with the Joint Venturers that the State shall — (1) if so required by the Joint Venturers acquire for them any land required for the refinery; the price at which such land will be made available to the Joint Venturers shall be the actual cost of acquisition by the State; (2) on application grant, or make arrangements to have the Authority, or other interested instrumentality of the State, grant to the Joint Venturers, or obtain for them at such prices and on such terms as are prescribed by law or are otherwise reasonable any land, lease, easement or any licence or other right (whether statutory or otherwise) which the parties hereto agree are reasonably necessary to enable the Joint Venturers, subject to the terms of this Agreement to construct, install, establish, operate or maintain, as the case may be — (a) a pipeline or conveyor for the transport of bauxite from the mineral lease to the refinery site; (b) any pipeline for the transport of fresh water, sea water, fuel oil, liquid caustic, red mud or other effluent, or natural gas as is reasonably required for the purposes of this Agreement; (c) a wharf in the port of Bunbury, an adjacent stockpile area adequate for the purposes of the Joint Venturers together with associated shiploader, conveyors, storage bins, railway sidings and ancillary facilities for the storage handling and shipment of alumina and associated chemicals and by‑products and, a ship unloader and other facilities for the discharge and storage of liquid caustic fuel oil soda ash lime and limestone and such other commodities as the Bunbury Port Authority may in its discretion approve from time to time; (d) housing recreational and other facilities, amenities and services required for the employees of the Joint Venturers their contractors and their families; (e) any other facility contemplated by this Agreement or which the Joint Venturers and the Minister agree is desirable for the purposes of the Agreement; PROVIDED THAT the State shall be reimbursed by the Joint Venturers for all expenses involved, whether because of resumption or otherwise in its making or causing to be made available to the Joint Venturers any such land lease easement or other right as aforesaid, and that the Joint Venturers shall pay all fees and other charges normally payable in connection with the granting of any statutory right or licence. AND PROVIDED THAT wherever the grant of any such land, lease, easement, licence or other right is provided for by statute the particular grant shall be made under and the resulting right exercised subject to the terms of the relevant statute except to the extent that this Agreement provides otherwise. AND PROVIDED THAT any easement licence or other right required for the purposes specified in paragraphs (a) and (b) of this subclause shall only be granted to the extent that such grant does not unreasonably interfere with public works (such as water supplies, sewerage, drainage, electricity supplies roads or railways) then existing or under immediate contemplation Modification of Land Act 2 BUT PROVIDED FURTHER THAT in respect of any land sold or leased to the Joint Venturers by the State for any of the purposes of this Agreement the Land Act shall be deemed to be modified by: — (a) the substitution for subsection (2) of section 45A of the following subsection: — "(2) Upon the Governor signifying approval pursuant to subsection (1) of this section in respect of any such land the same may subject to this section be sold or leased;" (b) the deletion of the proviso to section 116; (c) the deletion of section 135; (d) the deletion of section 143; (e) the inclusion of a power to offer for sale or leasing land within or in the vicinity of any townsite notwithstanding that the townsite has not been constituted a townsite under section 10; and (f) the inclusion of a power to offer for sale or grant leases or licences for terms or periods and on such terms and conditions (including renewal rights) and in forms consistent with the provisions of this Agreement in lieu of the terms or periods, the terms and conditions and the forms referred to in the Act; The provisions of the last proviso above shall not operate so as to prejudice the rights of the State to determine any lease licence or other right or title in accordance with the other provisions of this Agreement; (3) should the Joint Venturers desire to establish a second refinery for the processing of bauxite within the State entertain and sympathetically consider any proposals which the Joint Venturers may make with regard thereto including port, railway and other associated facilities; Zoning 2 (4) ensure that no land the subject of any mineral lease or other lease, licence or easement granted under or pursuant to statute or this Agreement and no land of any other tenure (including freehold) used or occupied by the Joint Venturers for any of the purposes contemplated by the Agreement shall be made subject to any restriction as to its use such as would prevent or unreasonably hinder the Joint Venturers carrying out the operations contemplated by this Agreement, whether such restriction be by way of zoning, regulation, by‑law or other exercise of statutory power and whether by the State or any local or other authority; No Discrimination by Rates or Otherwise 2 (5) except as provided in this Agreement not impose nor permit nor authorise any of its agencies or instrumentalities or any local or other authority of the State to impose discriminatory taxes rates or charges of any nature whatsoever on or in respect of the titles property or other assets products materials or services used or produced by or through the operations of the Joint Venturers in the conduct of their business hereunder nor will the State take or permit to be taken by any such State authority any other discriminatory action which would deprive the Joint Venturers of full enjoyment of the rights granted under this Agreement; Rating 2 (6) ensure that notwithstanding the provisions of any Act or anything done or purported to be done under any Act the valuation of all lands (whether of a freehold or leasehold nature) the subject of this Agreement (except as to any part upon which a permanent residence shall be erected or which is occupied in connection therewith) shall for rating purposes be the unimproved value thereof and no such lands shall be subject to any discriminatory rate as against the Joint Venturers as a party to this Agreement PROVIDED THAT nothing in this subclause shall prevent the Joint Venturers making the election provided for by section 533B of the Local Government Act 1960; Resumption of Land 2 (7) having regard to the particular nature of the industry proposed to be established by the Joint Venturers under this Agreement and during the currency hereof not resume or suffer or permit to be resumed by any State instrumentality or by any local or other authority of the said State any estate, right, title or interest in land or improvements thereon held by or acquired by or on behalf of the Joint Venturers for the purpose of their operations under this Agreement the resumption of any of which would unreasonably impede the existing or projected activities of the Joint Venturers nor will the State create or grant or permit or suffer to be created or granted by any instrumentality or authority of the said State as aforesaid any road right of way or easement of any nature or kind whatsoever over or in respect thereof without the consent of the Joint Venturers first having been obtained which consent shall not be arbitrarily or unreasonably withheld; Water 2 13. (1) The Joint Venturers estimate that for a refinery with a designed capacity of 1.2 mi