ALUMINA REFINERY (MITCHELL PLATEAU) · PDF fileALUMINA REFINERY (MITCHELL PLATEAU) AGREEMENT ....

WESTERN AUSTRALIA.

ALUMINA REFINERY(MITCHELL PLATEAU)

AGREEMENT .

No. 90 of 1985.

AN ACT to amend the Alumina Refinery (MitchellPlateau) Agreement Act 1971.

[Assented to 4 December 1985.]

RE it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent

of the Legislative Council and the LegislativeAssembly of Western Australia, in this presentParliament assembled, and by the authority of thesame, as follows:-

1. (1) This Act may be cited as the Alumina aTirg;leinalRefinery (Mitchell Plateau) Agreement Amendment A"Act 1985.

(2) In this Act the Alumina Refinery (Mitchell 01191). 87

Plateau) Agreement Act 1971 is referred to as the Dieltel■lecti■Obyprincipal Act. o=1972.

Commence-ment.

Section 2amended.

No. 90.] Alumina Refinery (Mitchell [1985.Plateau) Agreement.

2. This Act shall come into operation on the dayon which it is assented to by the Governor.

3. Section 2 of the principal Act is amended bydeleting the definition of "the Variation agreement"and substituting the following definitions

CI "the First Variation Agreement" means theagreement a copy of which is set out inthe Second Schedule;

"the Second Variation Agreement" means theagreement a copy of which is set out in theThird Schedule. ".

Section 3Aamended.

4. Section 3A of the principal Act is amended byinserting immediately before "Variation" thefollowing-

" First ".

Section 3Binserted.

Ratificationof SecondVariationAgreement.

5. After section 3A of the principal Act thefollowing section is inserted-

3B. (1) The Second Variation Agreementis ratified.

(2) Without limiting or otherwise affectingthe application of the Government Agree-ments Act 1979, the Second Variation Agree-ment shall operate and take effect accordingto its terms notwithstanding any other Act orlaw. ".

Third 6. After the Second Schedule to the principalScheduleadded. Act the following Schedule is added

THIRD SCHEDULE. (Section 2).

1985.] Alumina Refinery (Mitchell [No. 90.Plateau) Agreement.

THIS AGREEMENT is made the 29th day of October, 1985

BETWEEN:

THE HONOURABLE BRIAN THOMAS BURKE, M.L.A.,Premier and Treasurer of the State of Western Australia,acting for and on behalf of the said State and instrument-alities thereof from time to time (hereinafter called "theState") of the one part and

MITCHELL PLATEAU BAUXITE CO. PTY. LIMITED acompany incorporated in the Australian Capital Territoryand having its principal place of business in the State ofWestern Australia at 191 St. George's Terrace Perth ALCOAOF AUSTRALIA LIMITED a company incorporated in theState of Victoria and having its principal place of businessin the State of Western Australia at Cnr. Davy and MarmionStreets Booragoon THE SHELL COMPANY OF AUSTRALIALIMITED a company incorporated in Victoria and havingits principal place of business in Western Australia at200 St. George's Terrace, Perth, SUMITOMO ALUMINIUMSMELTING COMPANY LIMITED a company incorporatedin Japan and having its registered office at 7-9 Nihonbashi,Chuo-ku, Tokyo SUMITOMO CORPORATION a companyincorporated in Japan and having its registered office at11-1 Kandanishikicho 3-Chome, Chiyoda-ku, Tokyo andMARUBENI CORPORATION a company incorporated inJapan and having its registered office at 4-2 Ohtemachi1-Chome, Chiyoda-ku, Tokyo (hereinafter called "theCompany") of the other part.

WHEREAS:

(a) on the 17th day of November, 1971 Alumax BauxiteCorporation (then called Amax Bauxite Corporation)entered into an agreement with the State (hereinaftercalled "the 1971 Agreement") relating to the mining,beneficiation, transport and refining of bauxite andalumina from the Kimberley Region of WesternAustralia and incidental and other purposes whichagreement was ratified by the Alumina Refinery(Mitchell Plateau) Agreement Act 1971;

(b) on the 31st day of August, 1972 Alumax Bauxite Corpora-tion entered into an agreement with the State (here-inafter called "the 1972 Agreement") inter alia amend-ing the 1971 Agreement which agreement was ratifiedby the Alumina Refinery (Mitchell Plateau) AgreementAct Amendment Act 1972 and was amended by anagreement between the parties thereto bearing datethe 15th day of May, 1973;


(c) by various assignments Alumax Bauxite Corporationtransferred and assigned (with the consent of the State)all its interest in and to the 1971 Agreement and the1972 Agreement (each as amended as hereinbeforerecited) to the undermentioned companies as tenantsin common the following shares

Mitchell Plateau Bauxite Co. Pty. Limited 52.5%Alcoa of Australia Limited 17.5%Billiton Aluminium Australia B.V. 10%(formerly called HA Bauxite Australia NN.)Sumitomo Chemical Co. Ltd. 10%Sumitomo Corporation 5%(formerly called Sumitomo Shoji Kaisha Ltd.)Marubeni Corporation 5%

(d) the said Sumitomo Chemical Co. Ltd. has transferredand assigned (with the consent of the State) its 10%interest in and to the 1971 Agreement amended asmentioned above to Sumitomo Aluminium SmeltingCompany Limited;

(e) the said Billiton Aluminium Australia B.V. has trans-ferred and assigned (with the consent of the State)its 10% interest in and to the 1971 Agreement amendedas mentioned above to The Shell Company of AustraliaLimited;

(f) the parties hereto desire to amend the 1971 Agreementamended as mentioned above (hereinafter referred toas "the principal Agreement").

NOW THIS AGREEMENT WITNESSETH:

1. Subject to the context the words and expressions usedin this Agreement have the same meanings respectively asthey have in and for the purpose of the principal Agreement.

2. (1) The provisions of this Agreement other than thisClause and Clause 3 hereof shall not come into operationuntil a Bill to ratify this Agreement is passed by theParliament of Western Australia and comes into operationas an Act.

(2) On the said Bill commencing to operate as an Actall the provisions of this Agreement shall operate and takeeffect notwithstanding the provisions of any Act or law.

3. The State shall introduce and sponsor a Bill in theParliament of Western Australia to ratify this Agreementand endeavour to secure its passage as an Act prior to the31st day of December, 1985, or such later date if any asthe parties hereto may mutually agree upon.


4. The principal Agreement is hereby varied as follows

(1) Clause 1-

(a) by deleting the definition of "Mining Act"and inserting the following definitions

"Mining Act 1904" means the Mining Act1904 and the amendments theretoand the regulations made thereunderas in force on the 31st day ofDecember, 1981;

"Mining Act 1978" means the Mining Act1978; ";

(b) in the definition of "mining areas", byinserting after "identification" the following-

" less any part or parts thereof surrenderedby the Company pursuant to Clause4 (6) hereof ";

(c) in the definition of "Minister for Mines", bydeleting "Mining Act" and substituting thefollowing-

" Mining Act 1904 and the Mining Act1978 ";

(d) by inserting after the definition of "port" thefollowing definition-

" "project" means the project contemplatedby this Agreement; ";

(e) in the paragraph commencing "Reference inthis Agreement to an Act", by inserting after"Act", where it first occurs, the following

" other than the Mining Act 1904 ".

(2) Clause 2—

(a) subclause (1) paragraph (a) by deleting"five thousand dollars thereafter" and sub-stituting the following-

" five thousand dollars ($5,000) during theperiod from the 1st day of July 1982until the 31st day of December 1985;


thereafter an amount equal to the rentalswhich would be payable under the MiningAct 1978 in respect of exploration licencesover areas equivalent to the miningareas ";

(b) by inserting after subclause (2) the followingsubclause

" (3) The rights of occupancy referred toin this Clause shall, subject to thisAgreement, continue to be grantedand in force under the Mining Act1904 as though that Act had not beenrepealed. ".

(3) Clause 4—by inserting after subclause (4) thefollowing subclauses-

(5) Whether or not the Company is undertakingthe studies and other matters mentionedin subclause (1) of this Clause the Companyshall except during any period theCompany's rights and obligations aresuspended under Clause 4A (3) hereof orduring the periods known in the region inwhich the mining areas are situated as the"wet season" normally running fromapproximately December in one year toMarch in the next year) maintain or causeto be maintained in operational conditionthe airstrip within the mining areas andthe Mitchell Plateau access road from itsjunction with the Gibb River/KalumburuRoad to the airstrip.

(6) The Company shall on or before the 31stday of December, 1985 surrender to theState out of the rights of occupancygranted pursuant to Clause 2 (1) hereofareas equal to not less than one half of theaggregate area of the mining areas but sothat after such surrender the area of landthat remains subject to the said rights ofoccupancy consists of not more than 5discrete areas each of which constitutesa single area the shape of which isrectangular (without any restriction asto the ratio of length to breadth) or as nearthereto as is practicable.

(7) (a) The Company shall submit to theMinister during December 1987 adetailed programme for the develop-ment of the project.


(b) The Minister shall within one (1)month of receipt of the programmesubmitted pursuant to paragraph (a)of this subclause give to the Companynotice either of-

(i) his approval (subject to para-graph (d) of this subclause)thereof; or

(ii) any objections or alterationsdesired thereto with his reasonstherefor and in such case shallafford the Company an oppor-tunity to consult with and sub-mit a revised programme to theMinister.

(c) If within three months of a noticepursuant to paragraph (b) (ii) of thissubclause agreement is not reached asto the said programme the Ministermay-

(i) allow a further period for thesubmission by the Company of afurther programme for thedevelopment of the project andthe provisions of paragraphs (a)and (b) of this subclause shallapply thereto with the substitu-tion for "during December 1987"of such later time as the Ministermay specify; or

(ii) advise the Company of his inten-tion to invite third parties to sub-mit a detailed programme forthe development of the projectwhereupon the provisions ofClause 4A hereof shall apply,

PROVIDED THAT if the Minister doesnot do either of those things by the31st day of December, 1988 the provi-sions of this Agreement (other thanClause 4A hereof) shall continue toapply without modification.

(d) If a programme approved or agreedpursuant to this subclause containsprovision for the development of the


project otherwise than as contemplatedby this Agreement any such approvalor agreement shall be subject to-

(i) the Company entering into anagreement with the State in aform satisfactory to the Ministerto amend this Agreement toallow such programme toproceed; and

(ii) the passing of a Bill to ratifythat agreement by the Parlia-ment of Western Australia andthe coming into operation of thatBill as an Act.

(8) If the Company shall fail to submit adetailed programme pursuant to subclause(7) of this Clause that failure shall not bean event of default under Clause 10 (m)hereof but the Minister may advise theCompany of his intention to invite thirdparties to submit a detailed programmefor the development of the project where-upon the provisions of Clause 4A hereofshall apply. ".

(4) By inserting after Clause 4 the following Clause-

" 4A. (1) This Clause shall apply only if theMinister has given the advice to theCompany referred to in Clause 4 (7)(c) (ii) or Clause 4 (8) hereof.

(2) (a) From the time of giving suchadvice up to and including the 31stday of December, 1988 the Ministermay invite third parties to under-take appraisals with a view to sub-mitting a detailed programme forthe development of the projectand for the purpose of facilitatingsuch appraisals the State shall beat liberty to provide those thirdparties with such informationconcerning the project as the Statehas in its possession or control(other than written informationsubmitted by the Company for thepurposes of this Agreement andnot being in the public domainunless the Company gives its priorapproval).


(b) Up to and including the 31st dayof December 1988, the Minister maynominate in writing to the Com-pany a party (comprising one ormore of the third parties men-tioned in paragraph (a) of thissubclause) to proceed with the sub-mission of a programme for thedevelopment of the project (here-inafter called "the nominatedparty") and the Company shall,subject to the nominated partyfirst executing a confidentialityagreement in favour of the Com-pany upon terms previously agreedbetween the Company and theMinister whereby the nominatedparty agrees to keep confidentialthe information hereinafter men-tioned, without undue delay makeavailable to the nominated partysuch of the following informationin the possession or control of theCompany concerning the project asthe nominated party may require-

(i) written information sub-mitted by the Company forthe purposes of this Agree-ment;

(ii) information on all work donein connection with explora-tion in the mining areassince the date of this Agree-ment including the mattersrequired to be reported onannually to the Departmentof Mines by a holder of anexploration licence pursuantto section 68 (2) of theMining Act 1978;

(iii) information relating to theinvestigations into and workcarried out with respectto sites for and designs ofthe refinery, the port andthe Company's wharf andother refineries, ports andwharves within the saidState for the purposes of thisagreement,


together with such other informa-tion in the possession or control ofthe Company as the nominatedparty may reasonably require forthe purpose of evaluating theproject and the preparation andsubmission of a programme anddetailed proposals for the develop-ment of the project but theCompany shall not be obliged todivulge

(A) technology of a proprietarynature (not including stand-ard tests used in industry todetermine the suitability of aresource for beneficiation andprocessing to alumina) relat-ing to bauxite beneficiationand alumina production;

(B) bauxite and alumina marketand marketing information;and

(C) project cost informationand financial analyses.

Provided that if the release of anyinformation requested pursuant tothis paragraph comprises data,records, processes and otherdocuments or things would becontrary to an agreement oragreements relating to confidenti-ality between the Company andthird parties entered into before 1stSeptember 1985 or after that datewith the consent of the Minister,the release of that informationpursuant to this paragraph shallbe subject to the Company obtain-ing the consent of such otherparties to that release and theCompany shall use its bestendeavours to obtain such consentwithout undue delay.

(3) If the State nominates a third party asmentioned in subclause (2) of thisClause, the rights and obligations ofthe Company under this Agreement(other than under this Clause) shall be


suspended until such time as they arerevived under subclause (4) of thisClause or are assigned under subclause(5) of this Clause. Any suspensionunder this subclause shall not affectthe Company's rights of occupancy orother mining tenements in respect ofthe mining areas save that thenominated party, subject to it firstexecuting a deed of covenant in favourof the Company containing termspreviously agreed between the Companyand the Minister in respect of thenominated party's observance andperformance of all the obligations ofthe Company under this Agreement(other than this Clause 4A) andrelated matters during the period ofsuspension and subject to it paying therentals payable in respect of the rightsof occupancy and any other governmentcharges imposed upon the Company inrespect of the mining areas during theperiod of the suspension, may haveunrestricted access to the mining areas(and to the facilities established bythe Company in connection with theproject in the Kimberley region onreasonable terms and conditions) forpurposes related to the preparation andsubmission of a programme anddetailed proposals for the developmentof the project and may construct suchfacilities thereon and carry out suchtests and take and remove suchsamples as the nominated party mayrequire for such purposes.

(4) On the occurrence of any of thefollowing events the rights andobligations of the Company under thisAgreement shall revive and be of fullforce and effect

(a) the nominated party fails tosubmit to the Minister by the30th day of June, 1990 detailedproposals and evidence of thenature set out in paragraphs (a)and (b) respectively of Clause 5(1) hereof;

(b) the Minister fails to approve oragree (whether voluntarily or byvirtue of an arbitration award)


with the nominated party by the30th day of June, 1991 all detailedproposals covering the mattersset out in paragraph (a) ofClause 5 (1) hereof; or

(c) the Minister notifies theCompany that the nominatedparty has withdrawn from theproject or that the Minister haswithdrawn nomination from thatparty.

(5) (a) If the rights and obligations ofthe Company shall not have revivedunder subclause (4) of this Clauseand the Minister approves oragrees the detailed proposals of thenominated party as mentioned inparagraph (b) of that subclause(4), the Company shall on theexpiration of three months' noticefrom the Minister requiring thesame assign to the nominated partyfree of all encumbrances all theCompany's right title and interestin-

(i) this Agreement;

(ii) rights of occupancy andmining tenements in respectof the mining areas;

(iii) leases sub-leases licences orother title or right grantedunder this Agreement; and

(iv) improvements constructedon any of the foregoing forthe purposes of this Agree-ment

on reasonable terms and condi-tions and for the considerationmentioned in paragraph (b) of thissubclause.

(b) As consideration for the saidassignment the Company shall beentitled to be paid by the

1985.1 Alumina Refinery (Mitchell

[No. 90.Plateau) Agreement.

nominated party (except to theextent that the nominated partymay have already made paymenttherefor to the Company) the fairvalues of-

(i) the right title and interestof the Company in the im-provements to be assignedunder paragraph (a) of thissubclause as at the date thatthe Minister gives notice tothe Company under para-graph (a) of this subclause;

and

(ii) the information made avail-able by the Company undersubclause (2) of this Clause(but excluding any suchinformation which waseither in the public domainor already known to thenominated party or not takenby the nominated party) asat the time when that infor-mation was made availabletogether with interest at fairand reasonable rates on thevalue thereof from the timethe information was madeavailable in each case up tothe date on which paymenttakes place.

(c) If within one month after theMinister gives notice to the Com-pany under paragraph (a) of thissubclause the Company and thenominated party have not agreedon the reasonable terms and condi-tions mentioned in that paragraphor on the fair values and interestrates mentioned in paragraph (b)of this subelause, as the case maybe, the same shall be determinedby two independent experts, onenominated by the Company andother nominated by the nominatedparty (and if the experts cannotagree by a third expert selected bythem). The decision of the experts(or their umpire) shall be final


and binding on the parties. If aparty shall fail to nominate anexpert within one month of theother party giving notice specifyingthe matters of disagreement whichare to be referred to the expertshereunder then the matters ofdisagreement the subject of thenotice shall be determined by theexpert nominated by the partygiving the notice. The costs of theexperts shall be borne equally bythe Company and the nominatedparty.

(6) Notwithstanding the provisions ofClause 14 (2) hereof, on an assign-ment of the rights of the Companyhereunder pursuant to subelause (5) ofthis Clause, the Minister shall agreeto release the Company from all liabilityunder the covenants and agreementson its part contained herein and inany lease licence easement grant orother title the subject of an assignmentunder the said subclause (5). ".

(5) Clause 5 (1)—

by deleting "By the 30th day of June 1980 or if theCompany submits a detailed report to the Ministerthat in the opinion of the Company developmentof the bauxite reserves within the mining areasis not then economically feasible or is not feasibledue to an insufficient number of participants forthe project, and the Company requests a deferralof its obligations up to the 30th day of June, 1984then by that date" and substituting the following

By the 30th day of June, 1990 (or, if theCompany's rights and obligations revive under

(A) Clause 4A (4) (a) hereof, then by the30th day of June, 1991;

(B) Clause 4A (4) (b) hereof, then by the30th day of June, 1992; or

(C) Clause 4A (4) (c) hereof after the 30thday of June 1989, then by the anniversaryof the date on which the Minister notifiesthe Company under Clause 4A (4) (c)hereof) ".


(6) Clause 6 (3)-

(a) by deleting "30th day of June 1985" andsubstituting the following-

" the first anniversary of the final date forsubmission of detailed proposals underClause 5 (1) hereof ";

(b) by inserting at the end thereof the following-

" The provisions of Clause 17 hereof shallnot apply to this subclause. ".

(7) Clause 18-(a) by deleting "Notwithstanding" and substitut-

ing the following-" (1) Subject to subclause (2) of this Clause

but otherwise notwithstanding ";(b) by inserting the following subclause

" (2) The Minister may at the request ofthe nominated party from time totime extend either or both of thedates referred to in paragraphs (a)and (b) of Clause 4A (4) hereof fora single period of three months andon any such extension taking effectthe dates of the 30th day of June1990 and/or the 30th day of June 1991mentioned in Clause 5 (1) hereof asthe case may be shall be extendedaccordingly. ".

5. Any reference in the Principal Agreement to the MiningAct without any reference to a year shall be read andconstrued as a reference to the "Mining Act 1904" as definedin the Principal Agreement as amended by this Agreement.IN WITNESS WHEREOF this Agreement has beenexecuted the day and year first hereinbef ore written.SIGNED by the HONOUR-ABLE BRIAN THOMAS BRIAN BURKE.BURKE, M.L.A. in thepresence of:

D. PARKERMINISTER FOR MINERALSAND ENERGY:THE COMMON SEAL of MIT-CHELL PLATEAU BAUXITECO. PTY. LIMITED was hereto (CB.)affixed in the presence of:

D. E. FITZGERALD Director

I. R. NANKIVELL Secretary

No. 90.] Alumina Refinery (Mitchell [1985,Plateau) Agreement.

THE COMMON SEAL of

ALCOA OF AUSTRALIA (C.S.)LIMITED was hereuntoaffixed in the presence of:

P. SPRY-BAILEY DirectorM. GUILMARTIN Secretary

THE COMMON SEAL of THESHELL COMPANY OF AUST-

RALIA LIMITED was here- (C.S.)unto affixed in accordancewith its Articles of Associationin the presence of:

P. H. CHEW DirectorV. M. JOHNSON Authorised

Signatory

SIGNED, SEALED andDELIVERED on behalf ofSUMITOMO ALUMINIUM E. TANIGUCHI Authorised

SMELTING COMPANY RepresentativeLIMITED by its dulyauthorised representative inthe presence of:

N. ITONAGA Witness

SIGNED, SEALED andDELIVERED on behalf ofSUMITOMO CORPORATION T. UMEMOTO Authorisedby its duly authorised repre- Representativesentative in the presence of:

Y. EGUCHI Witness

SIGNED, SEALED andDELIVERED on behalf of M. HARA Authorised

MARUBENI CORPORATION Representativeby its duly authorised repre-sentative in the presence of:

M. KAJITANI Witness

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