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Mines (Aluminium Agreement) Act 1961 - SCHEDULE
AGREEMENT THIS AGREEMENT is made the twenty-second day of November One
thousand nine hundred and sixty-one BETWEEN The Honorable WILFRED JOHN MIBUS
in his capacity as Minister of Mines for the time being of the State of
Victoria for and on behalf of THE STATE OF VICTORIA of the one part and ALCOA
OF AUSTRALIA PROPRIETARY LIMITED a Company incorporated under the provisions
of the Companies Act 1958 of the said State the registered office of which is
situate at 120 William Street Melbourne in the said State of the other part.
Recitals WHEREAS:
I. The Company is desirous of establishing in the State of Victoria the
industries of reducing the ore of aluminium to its basic metal and of
manufacturing alloying and fabricating the metal so produced into articles of
commerce.
II. In view of the large capital expenditure involved in the establishment of
those industries the Company desires to ensure that certain rights incidental
to the establishment and carrying on of those industries will be assured to
it.
III. The State is satisfied that a large capital expenditure is necessary to
establish the said industries satisfactorily and that it is desirable in the
interests of the State that subject to the provisions hereof the Company
should be granted the rights hereinafter expressed. NOW IT IS HEREBY AGREED as
follows- PART I-PRELIMINARY
1. Definitions In this Agreement unless inconsistent with the context or
subject matter- "the Act" means the Mines Act 1958 of the Parliament of
Victoria;
"base index number" means the index number for Melbourne for the December
quarter of the year One thousand nine hundred and sixty-one shown in the
Consumer Price Index published by the Commonwealth Statistician; "Chief Mining
Inspector" means the person for the time being holding the office of Chief
Mining Inspector in the Department of Mines or performing the duties of that
office; "Company" means the said Alcoa of Australia Proprietary Limited and
includes its assigns; "current index number" in respect of any year means the
average index number for Melbourne for the whole of that year as determined by
the Commonwealth Statistician on the basis of the said Consumer Price Index;
"date of commencement" means the date upon which this Agreement comes into
operation by virtue of the provisions of clause 5 hereof; "former forest area"
means the parts of the leased area and the reserve area which are surrounded
by a green verge and marked "A" and "B" respectively on the plan annexed
hereto and contain (subject to survey) 1331 acres more or less; "leased area"
means the land (excluding the prior land the power station site and the
purchased land) within the boundaries shown on the plan annexed hereto by a
red verge and which together with the power station site contains (subject to
survey) 10,865 acres more or less; "Minister" means the responsible Minister
of the Crown for the time being administering the Act; "Power station site"
means such part (not exceeding one hundred acres) of the land within the
boundaries shown on the plan annexed hereto by a red verge as the Company
selects as the site of the power generating station referred to in clause 15
hereof; "prior land" means the land coloured purple on the plan annexed hereto
containing (subject to survey) 99 acres more or less;
"purchased land" means the land described in sub-clause (3) of clause 20
hereof; "regulations" means the regulations for the time being in force under
the Act; "reserve area" means the land within the boundaries shown on the plan
annexed hereto by a blue verge containing (subject to survey) 7,500 acres more
or less; "Secretary" means the person for the time being holding the office of
Secretary for Mines or performing the duties of that office; "State" means the
State of Victoria; "term of this Agreement" means the period specified in
clause 6 hereof as extended from time to time pursuant to clause 7 hereof;
"year" means a period of twelve calendar months commencing on the date of
commencement or an anniversary thereof.
2. Interpretation
(1) In this Agreement unless inconsistent with the context or subject-matter
references to any Act (including references to the Mines Act 1958 by use of
the expression "the Act") shall include all amendments and re-enactments
thereof for the time being in force and all supplemental legislation for the
time being in force whether by regulation rule proclamation or order made or
continuing under that Act or any amendment or re-enactment thereof.
(2) The headings and sidenotes shall not affect the interpretation of this
Agreement.
3. Agreement to be ratified by Act of Parliament This Agreement shall not be
of any force or effect until it has been ratified validated approved and
otherwise given effect by an Act of the Parliament of Victoria.
4. Effect of assignment by Company If the Company assigns all or any of its
rights under this Agreement the following provisions shall have effect-
(a) the assignee shall by virtue of the assignment and the Act referred to
in the last preceding clause be subject to the relevant obligations
and conditions imposed upon the Company by this Agreement so far as
they remain in force and capable of taking effect; and
(b) if the Minister so stipulates in giving his consent to the assignment
the Company shall remain responsible to the State for the performance
of all its obligations under this Agreement as if no assignment had
been made. PART II-COMMENCEMENT, DURATION, EXTENSION AND VARIATION OF
AGREEMENT
5. Commencement of Agreement
(1) This Agreement shall come into operation upon the first day of the
calendar month following the date upon which the later of the following events
occurs-
(a) the coming into operation of the Act referred to in Clause 3 hereof;
(b) the completion of the surrender of mineral leases numbered 7613, 7614,
7618, 7620, 7626, 7627, 7628 and 7629 in the records of the Department
of Mines of the State and the abandonment of mineral lease
applications numbered 7615, 7616, 7617, 7619, 7621, 7622, 7625, 7630,
7655, 7656, 7658, 7667 to 7676 (both inclusive), 7686, 7783, 7792,
7889 to 7897 (both inclusive), 7930, 7931, 7932 and 8023 in the said
records.
(2) The certificate of the Minister as to the date upon which the surrender
and abandonment as aforesaid was completed shall be conclusive.
6. Duration of Agreement Subject to the provisions hereof this Agreement shall
remain in force for the period of fifty years from the date of commencement.
7. Extension of Agreement
(1) Subject to compliance by the Company with the terms and conditions of this
Agreement the Company shall upon written application made by it to the
Minister not later than six months prior to the expiration of the period
specified in the last preceding clause be entitled to an extension of that
period for such period not exceeding fifty years as is specified in its
application.
(2) If the Minister so determines an extension pursuant to the last preceding
sub-clause shall be subject to the variation of the terms and conditions of
this Agreement (except clauses 9, 10, 18, 19, 22 to 27 (both inclusive) and
sub-clause (2) of clause 14 hereof) so as to make them consistent with the
covenants (other than labour covenants) conditions and provisos prescribed by
the regulations for leases for the purpose of mining for coal on Crown land.
(3) If-
(a) the Company not later than nine months prior to the expiration of the
period of any extension pursuant to sub-clause (1) of this clause
makes written application to the Minister for the further extension of
the term of this Agreement for a period not exceeding fifty years
specified in the application; and
(b) at the date of receipt by the Minister of that application there is no
existing breach or non-observance by the Company of the terms and
conditions of this Agreement the Minister shall within six months
after the last mentioned date notify the Company in writing of the
terms and conditions upon which the State is prepared to grant the
further extension sought by the Company.
(4) The Company may within three months after notification by the Minister
pursuant to the last preceding sub-clause accept by notice in writing given to
the Minister the further extension as aforesaid upon the terms and conditions
expressed in the notification by the Minister and shall thereupon become
entitled to such further extension. In the event of the Company failing so to
accept such further extension the State shall not within the period of two
years after the expiration of the term of this Agreement grant or offer to any
other person a lease for the purpose of mining for coal on or in the leased
area on terms and conditions more favourable than those expressed in the said
notification by the Minister.
(5) No extension or purported extension pursuant to this clause shall be of
any force or effect unless evidenced by an instrument executed by the Minister
on behalf of the State specifying the period of extension and any variations
of the provisions hereof determined pursuant to this clause.
8. Variation of Agreement by Minister in certain event If on or after the
expiration of the first nine years or (if pursuant to clause 15 hereof that
period is extended) twelve years of the term of this Agreement the Company has
ceased or ceases to use coal from the leased area for the generation of
electric power in the power generating station referred to in clause 15 hereof
the Minister at any time thereafter may by an instrument under his hand vary
the provisions of this Agreement in such manner as he deems expedient in the
interests of the State but so that the Company shall not be in a less
favourable position than if it held leases for the purpose of mining for coal
on the leased area in accordance with the provisions of the Act. PART
III-RIGHTS AND OBLIGATIONS OF COMPANY Division A-Coal Rights and Related
Matters
9. Exclusive right of Company to coal
(1) During the term of this Agreement the Company shall subject to the
provisions of sub-clauses (2) and (4) of this clause have-
(a) the exclusive right to search work mine for win carry away and dispose
of for the use and benefit of the Company all coal on or in the leased
area; and
(b) for the purposes aforesaid the rights on the leased area-
(i) to cut and construct races drains dams reservoirs roads and tramways,
to divert control and use water and to do any other works incidental
to the method of mining or winning coal from time to time adopted by
the Company; and
(ii) to erect alter reconstruct remove or destroy offices buildings
dwellings and machinery.
(2) The rights specified in the last preceding sub-clause shall be subject to
the reservations following-
(a) the reservation to the State and members of the public of the free
right at all times of ingress egress and regress (with or without
vehicles and animals) over and along the surface of any part of the
leased area not being worked or used for the purposes aforesaid; and
(b) the reservation to the State and all persons duly licensed in that
behalf of the right to take carry away and use any sand stone gravel
clay or earth or timber live or dead on in or under any part of the
leased area not being worked or used for the purposes aforesaid.
(3) The following provisions shall apply to and in respect of the reserve
area-
(a) during the first five years of the term of this Agreement the Company
shall carry out on the reserve area a program of exploratory drilling;
(b) the Company may from time to time within the first five and one-half
years of the said term by written notice given to the State elect to
have the terms and conditions of this Agreement applied to the reserve
area or portion thereof specified in the notice;
(c) if the Company so elects then as from the commencement of the next
following half-yearly period of the term of this Agreement the
expression "leased area" herein shall unless inconsistent with the
context or subject-matter include (as the case requires) the reserve
area or portion thereof specified in the Company's notice of election
but so that-
(i) coal won from the reserve area may be sold or used by the Company for
the generation of electric power or in connexion with the industries
referred to in Recital I hereof but for no other purpose;
(ii) if coal so won is used for any purpose other than as specified in the
last preceding sub-paragraph the Minister may at any time thereafter
by an instrument under his hand vary the provisions of this Agreement
so far as it affects the reserve area in the manner provided in clause
8 hereof.
(4) The boundaries of the former forest area the leased area the prior land
the purchased land the reserve area and the power station site shall be as
determined by survey to be made as soon as practicable at the expense of the
Company by a licensed surveyor within the meaning of the Land Surveyors Act
1958 and the Company shall as soon as possible deliver to the Secretary a copy
of the plan or plans of survey and field notes thereof. The copy plan or plans
so delivered shall subject to the provisions of clauses 19 and 20 hereof be
conclusive evidence of the said boundaries.
10. Rent and royalty
(1) Subject to the succeeding provisions of this clause the Company shall
during the term of this Agreement pay to the State in each year-
(a) a rent calculated at the rate of two shillings and sixpence for each
acre (and proportionately for part of an acre) of the leased area;
(b) in respect of each ton of coal (not being unusable or unsaleable waste
coal or rubbish) won from the leased area and used for the generation
of electric power or in connexion with the industries referred to in
Recital I hereof, a basic royalty at the rate of-
(i) four pence when the total quantity of such coal won in any year does
not exceed one hundred thousand tons;
(ii) three pence when such total quantity exceeds one hundred thousand
tons;
(c) in respect of each ton of coal as aforesaid won from the leased area
and sold or used by the Company for any purpose other than as
specified in the last preceding paragraph, a basic royalty of four
pence.
(2) The said rent and basic royalties shall be paid by the Company clear of
all deductions whatsoever to the Accountant to the Department of Mines at
Melbourne on behalf of the State as follows-
(a) as to the rent, by equal half-yearly payments in advance the first
payment to be made on the date of commencement and succeeding payments
on the first day of each half-yearly period thereafter;
(b) as to the basic royalties within thirty days after written demand
therefor by or on behalf of the State in respect of each half-yearly
period during the term of this Agreement.
(3) If the total royalty payable under this clause in respect of coal won in
any year exceeds the amount of the rent paid by the Company in that year the
rent so paid shall be accepted by the State as part payment of that royalty.
(4) If the current index number for any year exceeds the base index number
then the royalty payable in respect of coal won during that year shall be
calculated at a rate bearing the same proportion to the appropriate rate of
royalty specified in sub-clause (1) of this clause as the current index number
bears to the base index number.
(5) In the event of the Commonwealth Statistician ceasing to publish the
Consumer Price Index the last preceding sub-clause shall be modified from time
to time by substituting for the method therein specified of determining
increases in royalty rates such other method as the Government Statist of the
State certifies in writing to be appropriate for determining those increases
in similar manner to the method so specified.
(6) The difference between the amount of basic royalty paid or payable in
respect of coal won in any year and the amount of royalty payable by virtue of
the provisions of sub-clause (4) of this clause in respect of that coal shall
be paid by the Company within thirty days after a written demand therefor by
or on behalf of the State has been rendered to the Company.
(7) Until the survey mentioned in sub-clause (4) of the last preceding clause
has been completed the rent payable under this clause shall be calculated and
paid on the basis of the areas specified in clause 1 hereof. When the said
survey has been completed any necessary adjustment of rent so paid shall be
made on the next following day fixed for payment of rent hereunder.
(8) The Company may at any time by instrument under its common seal surrender
to the State its rights under this Agreement as to the whole or part of the
leased area and in the event of a partial surrender as aforesaid the said rent
shall from the next following day fixed for payment of rent hereunder be
reduced by a sum calculated at the rate of two shillings and sixpence for each
acre (and proportionately for part of an acre) of land comprised in the
partial surrender.
11. Records and information The Company shall-
(a) keep proper records of the quantities of coal won from the leased area
and of-
(i) the quantities of coal sold by it;
(ii) the quantities of coal used for the purpose of generating electricity;
(iii) the quantities of coal used for other purposes- and shall permit the
Minister or any person authorized by him in writing to inspect those
records at all reasonable times and to take copies thereof or extracts
therefrom;
(b) from time to time when requested so to do by the Minister supply him
with such information relating to the mining operations of the Company
in or on the leased area as he may reasonably require;
(c) furnish to the Secretary within fourteen days after the end of each
period of three months during the term of this Agreement a return
verified by a director or the secretary of the Company showing in
respect of that period particulars of the matters specified in
paragraph (a) of this clause. Division B-Mining Operations and Related
Matters
12. Manner of operations
(1) The Company shall-
(a) carry out its operations on the leased area in a safe skilful and
workmanlike manner;
(b) permit an Inspector of Mines or any other person authorized by the
Minister free access at all reasonable times to the place where coal
won from the leased area is kept or stored and to inspect examine
measure or weigh the coal and to determine what quantity or proportion
thereof is usable or marketable coal;
(c) before commencing to sink any shaft on the leased area or to use any
shaft already sunk thereon deposit with the Secretary such sum as the
Minister may fix by way of guarantee that before any such shaft is
abandoned it will be securely covered to the satisfaction of the Chief
Mining Inspector;
(d) securely cover as aforesaid any such shaft before abandoning it;
(e) during the term of this Agreement effectually drain the parts of the
leased area from time to time being worked by the Company and pump out
all water likely to cause injury thereto or which would prevent or
interfere with the working thereof;
(f) make such provision for the disposal of the silt sludge detritus dirt
waste or refuse of or from the Company's works on the leased area so
that the same will not flow or find its way into any water channel
leading into or from the storage works of any public body or so as to
injure or interfere with any land set apart for water supply purposes
or become an actionable nuisance or obstruction to any roads ways
rivers creeks or private or Crown lands;
(g) during the term of this Agreement but subject to the provisions of
clause 25 hereof pay to the owner occupier or lessee from the Crown of
any adjoining land such compensation in respect of any damage
sustained by him by reason of the Company's operations on in or under
the leased area as may be agreed upon by the Company with such owner
occupier or lessee or with the Minister or failing any such agreement
as may be determined by arbitration under the provisions hereof;
(h) at all times during the operation of this Agreement keep and preserve
the Company's works as aforesaid in good repair and condition and at
the expiration or sooner determination of the term of this Agreement
deliver up peaceable possession of the leased area to some person
authorized to receive possession thereof on behalf of the State;
(i) permit any person authorized by the Minister with all proper
assistants at all reasonable times during the term of this Agreement
to enter into and upon every part of the Company's works as aforesaid
and to survey and examine the state and condition thereof and for the
purpose aforesaid to descend all pits and shafts and to use all roads
equipment labour and other things in or on the works or in or on any
adjacent land held in connexion therewith which shall be deemed
necessary by the person so authorized without making any compensation
therefor but so that in so doing no unnecessary interference with the
Company's operations shall be caused;
(j) in carrying out its operations on the leased area, comply with all
statutory provisions applicable thereto except to the extent those
provisions may be modified or excluded by this Agreement or the Act
referred to in clause 3 hereof.
(2) If the Company fails to carry out any work necessary to comply with the
provisions of paragraph (d) of the last preceding sub-clause the Minister may
cause that work to be done and the cost thereof paid out of the sum referred
to in paragraph (c) of that sub-clause.
13. Hydraulic mining The Company shall not-
(a) except in accordance with conditions fixed by the Minister (not being
more onerous than the conditions prescribed by the regulations for
leases for the purpose of mining for minerals by means of hydraulic
sluicing or of any method of dredging) and with the approval of the
Sludge Abatement Board appointed pursuant to the Act, work any portion
of the leased area by means of hydraulic mining;
(b) in working the leased area do or permit to be done any wilful
negligent or improper act whereby an undue proportion of unusable or
unsaleable waste coal may be produced therefrom;
(c) use or occupy or permit the leased area to be used or occupied for any
purpose other than the exercise of the rights herein granted or for
the pasturage of stock of or as garden ground for employees of the
Company;
(d) close or obstruct any adit to or from any mine contiguous to the
leased area whereby fresh air is admitted or ventilation promoted;
(e) without the prior written consent of the Minister assign mortgage
charge or encumber its rights under this Agreement in respect of the
leased area or sublet or part with possession of the leased area or
any part thereof.
14. Company may be ordered to execute works
(1) The Chief Mining Inspector or any other officer authorized by the Minister
may order that any of the galleries drives air-ways passages water-ways or
adits used in connexion with the working of the leased area shall be stowed
and may from time to time by order in writing direct that such engineering or
other works whether of masonry or otherwise be constructed and erected as in
his opinion are required for the support of the surface of the leased area or
any land adjacent thereto or as a precaution against any contingent damage to
any road specified in the order formed on the leased area or immediately
adjacent thereto and the Company shall upon receipt of the order forthwith
execute at its cost to the satisfaction of the Chief Mining Inspector or such
other officer all works so specified.
(2) The Company shall from time to time carry out on the leased area such
works for the purpose of rehabilitating any part thereof as may be agreed upon
by the Company and the Minister or failing agreement as may be determined as
reasonable by arbitration pursuant to clause 27 hereof, but so that the
Company shall not be obliged to rehabilitate a part of the leased area until
it has fully exercised its rights under this Agreement in respect of that
part. Division C-Obligations of Company as to Expenditure
15. Expenditure during first nine years
(1) During the first nine years of the term of this Agreement the Company
shall expend-
(a) in each of those years in improvements on the leased area and in
carrying on exploratory and mining operations on the leased area a sum
which having regard to the total sum expended in previous years will
produce an average annual expenditure from time to time of not less
than fifty thousand pounds;
(b) a total sum not less than six million pounds in the development of and
purchase of equipment for the leased area and in the construction and
equipment of an electric power generating station and other
improvements on the power station site.
(2) The Company shall within sixty days after the expiration of each of the
said nine years deliver to the Secretary a balance-sheet or statement
certified as correct by the Company's auditors and showing in respect of the
last preceding year of the term of this Agreement the sums expended for the
purposes specified in the last preceding sub-clause.
(3) If in the event of the Company failing to expend the sum specified in
paragraph (b) of sub-clause (1) of this clause for the purposes and within the
period specified in that sub-clause the Company establishes to the
satisfaction of the Minister that there is reasonable expectation that the
said sum will have been expended for those purposes on or before the
expiration of the first twelve years of the said term the period so specified
shall be extended accordingly.
(4) If the Company fails to expend the sum specified in paragraph (b) of
sub-clause (1) of this clause for the purposes therein specified within the
first nine years or (if the case so requires) twelve years of the said term
the Minister may at any time thereafter determine this Agreement subject to
his having given to the Company at least six months' written notice in that
behalf.
(5) If this Agreement is determined pursuant to the last preceding sub-clause
the Company shall during the period of six months after the date of
determination have the first right to apply in accordance with the Act for
leases for the purpose of mining for coal on the leased area. Division D-Other
Obligations and Rights
16. Notice of operations affecting former forest area
(1) The Company shall from time to time (until the expiration of twenty-five
years from the date of commencement or until the Forests Commission has given
to it written notice that the rights conferred by the next succeeding
sub-clause are no longer required, whichever first occurs) give to the State
at least twelve months' prior written notice of its intention to commence
operations upon any part of the former forest area (other than the part
thereof marked "A" on the plan annexed hereto) and of the sites comprising
approximately thirty-five acres and twenty acres respectively of two sample
plots of pine trees within the leased area which sites have been indicated to
the Company by the said Commission, which part shall be specified in the
notice.
(2) The Forests Commission or any person authorized by it in writing may at
any time while the Company is bound by the provisions of the last preceding
sub-clause but in any event before the Company commences operations upon any
part of the former forest area or of the sites of the said sample plots cut
and remove therefrom any timber or other forest produce.
17. Roads
(1) If any work proposed by the Company is likely to result in the severance
or injury of any road (whether a public highway or not) or part thereof formed
or constructed on the leased area the Company shall give notice to that effect
to the municipal or other authority responsible for the care and management of
the road or if there is no such authority to the Minister.
(2) Such authority or the Minister (as the case may be) shall within two
months after receipt of the said notice notify the Company whether or not it
or he requires the Company to construct an alternative road in lieu of the
road or part thereof likely to be severed or injured and if so required the
Company at its expense shall construct the alternative road to a standard
equivalent to that of the road or part thereof it is intended to replace and
in such location as such authority or the Minister may reasonably require.
(3) The Company shall not commence the work proposed as aforesaid until it has
complied with the provisions of the last preceding sub-clause.
18. Water supply works
(1) Except with the prior written consent of the State Rivers and Water Supply
Commission (in this clause called "the Water Commission") the Company shall
not carry out within fifty feet of the pipeline lying in the easterly portion
of the leased area and which is vested in the Water Commission any mining
operations or other operations likely to cause damage to that pipeline.
(2) The Water Commission in order to facilitate the Company's operations shall
as soon as practicable after being requested by the Company in writing so to
do remove the said pipeline or portion thereof to another location approved by
the Water Commission.
(3) The Company shall pay to the Water Commission the cost of-
(a) removal of the said pipeline or portion thereof upon request of the
Company as aforesaid;
(b) removal of the said pipeline or portion thereof where such removal is
effected by the Water Commission in consequence of operations of the
Company which although not requiring the consent of the Water
Commission under sub-clause (1) of this clause endanger or are in the
opinion of the Water Commission likely to endanger the said pipeline.
(4) The Company shall have the rights for the purposes of this Agreement-
(a) to construct maintain and operate such works as may be approved by the
Water Commission in or on the bed or banks or both bed and banks of
the Anglesea River;
(b) to carry out such diversions of any river stream creek or watercourse
or of any lake lagoon swamp or marsh within the meaning of the Water
Act 1958 situate within the leased area the power station site the
prior land and the purchased land as may be approved by the Water
Commission.
19. Electricity Commission Works
(1) Nothing contained in this Agreement shall entitle the Company to do
anything which may cause damage to any works of the State Electricity
Commission of Victoria (in this clause called "the Electricity Commission")
existing on or over the leased area or to exercise any of its rights hereunder
on or under the site of those works but the Electricity Commission may upon
such terms as it deems fit agree with the Company to remove those works from
the leased area or to another site within the leased area.
(2) Nothing contained in this Agreement shall preclude an agreement between
the Electricity Commission and the Company with the approval of the Minister
in respect of-
(a) exploratory boring (in addition to that specified herein) of the
leased area and the reserve area with a view to providing coal for the
power generation requirements of the State;
(b) the development jointly or otherwise by the Electricity Commission and
the Company of open cuts on the leased area necessary to meet those
requirements;
(c) co-operation generally between the Electricity Commission and the
Company in the generation of power from the coal reserves in the
leased area.
(3) In respect of the generation and distribution of electricity by the
Company from the power generating station aforesaid and of the smelting and
fabrication of aluminium and the operation of ancillary services by the
Company the Company shall have the rights-
(a) to erect construct operate and maintain on the power station site the
said electric power generating station and ancillary services;
(b) to erect construct and maintain on in or over the leased area the
power station site the prior land and the purchased land all such
equipment as may be necessary for the distribution of electricity from
the said power station;
(c) subject to the provisions of Section 26 of the
State Electricity Commission Act 1958, to compulsorily purchase take
or use such land easement right or privilege in over or affecting any
land as may be necessary for the erection ownership operation and
maintenance of the electricity transmission line from the leased area
the power station site the prior land and the purchased land or any
one or more of them to the aluminium smelting and fabricating plant of
the Company at Point Henry hereinafter mentioned;
(d) subject to the provisions of the Land Act 1958 and to the approval by
the Surveyor-General of the State of the plan of survey of the power
station site, to a grant in fee simple of the power station site upon
payment of such sum as may be agreed upon by the Company and the
State;
(e) to erect construct maintain and operate on the lands of the Company at
Point Henry an aluminium smelting and fabricating plant and ancillary
services.
(4) Notwithstanding anything contained in this Agreement or in the Electric
Light and Power Act 1958 the State Electricity Commission Act 1958 the
Land Act 1958 or any other Act of the Parliament of Victoria or regulations
thereunder the rights conferred by paragraphs (a) and (b) of the last
preceding sub-clause hereof shall continue for such period (not being less
than the term of this Agreement) and upon such terms and conditions and
subject to such provisions (excluding section forty-five of the Electric Light
and Power Act 1958) of the said Acts and regulations as are prescribed by
Order of the Governor in Council.
20. Land occupied under licence from Forests Commission
(1) The rights and powers of the Company under this Agreement shall be subject
to the subsisting rights of any person or body occupying any part of the
former forest area under licence issued by the Forests Commission.
(2) In respect of each of the camps conducted on the former forest area by the
National Fitness Council of Victoria and the Presbyterian Fellowship of
Australia the Company shall bear the cost of-
(a) establishing the improvements on the site of the camp or improvements
equivalent thereto upon an alternative site approved by the body
conducting the camp and (in the case of the camp conducted by the
National Fitness Council of Victoria) by the Forests Commission;
(b) placing such alternative site in equivalent condition to the existing
site of the camp and (unless already existing thereon) providing it
with facilities and services equivalent to those available at the
existing site.
(3) Subject to the provisions of the Land Act 1958 and to approval by the
Surveyor-General aforesaid of the plan of survey of the land described in this
sub-clause the Company shall upon payment of the sum of £25,000 to the State
within ninety days after the Forests Commission has given notice to the
Company that it has vacated the land so described (which it shall do during
the first year of the term of this Agreement) be entitled to a grant in fee
simple of those pieces of land in the parish of Jan Juc county of Grant
containing thirty-six acres and twenty-five perches more or less the
boundaries of which are (subject to survey) as follow-
(a) commencing at the north-western angle of Allotment 4 section 1
township of Anglesea bounded thence by a road bearing 24 degrees 38
minutes 1075 links thence by a line bearing 90 degrees 2742·9 links
thence by the Great Ocean-road bearing 193 degrees 8 minutes 1003·4
links and thence by a road and the northern boundary of the said
Allotment 4 bearing 270 degrees 2963 links to the point of
commencement;
(b) commencing at a point bearing 45 degrees 10 minutes 82 links and 24
degrees 38 minutes 262·5 links from the south-eastern angle of
Allotment 64C parish of Jan Juc bounded thence by lines bearing 270
degrees 599·5 links 0 degrees 1367 links and 126 degrees 57 minutes
1141·1 links and thence by a road bearing 204 degrees 38 minutes 749·5
links to the point of commencement. PART IV-APPLICATION OF MINES ACT
1958
21. Application of Act
(1) The Act so far as it is not inconsistent herewith shall with such
adaptations as are necessary apply to this Agreement and the operations of the
Company on the leased area as if this Agreement were a mineral lease granted
under the provisions of the Act and the Company were the registered proprietor
thereof.
(2) Without affecting the generality of the last preceding sub-clause-
(a) section fifty of the Act shall so far as applicable bind the Company
and its officers but shall be read and construed as if the expression
"half-year" therein meant the appropriate half of any period of one
year commencing on the date of commencement or an anniversary thereof
and the provisions of that section had been modified accordingly;
(b) sections twenty-three, forty-seven, forty-eight, forty-nine, fifty-one
to fifty-eight (both inclusive), sixty, sixty-one, sixty-two,
seventy-nine, eighty, three hundred and twelve, three hundred and
twenty-one, three hundred and twenty-four, three hundred and
thirty-one, four hundred and fifty-two and four hundred and
fifty-three of the Act shall not apply to this Agreement. PART V-OTHER
PROVISIONS AS TO COMPANY'S RIGHTS AND OPERATIONS Division A-Mining and
Other Operations
22. Mining on Company's land
(1) If the Company-
(a) at any time after the date of commencement gives to the Minister
written notice of its intention to carry out mining operations on or
in the power station site and the purchased land or any part thereof;
and
(b) has then obtained or is entitled under the provisions hereof to a
grant in fee simple of the land specified in the notice- then as from
the commencement of the next following half-yearly period of the term
of this Agreement the expression "leased area" herein shall unless
inconsistent with the context or subject-matter (but subject always to
the provisions of the two next succeeding sub-clauses) include the
land specified in the notice.
(2) For the purposes of the last preceding sub-clause the following provisions
of this Agreement shall not apply to any land specified in a notice given
pursuant to that sub-clause, that is to say-
(a) sub-clause (2) of clause 9;
(b) insofar as the land so specified lies above a depth of fifty feet
below the surface, paragraph (h) of sub-clause (1) of clause 12;
(c) sub-clause (2) of clause 14;
(d) clause 15.
(3) Nothing in this clause shall derogate from the rights of the Company as
owner of any land or shall affect any operations (other than mining
operations) of the Company thereon.
23. Use of sea water etc. The Company may with the approval of and subject to
such conditions as may be fixed by the responsible Minister of the Crown for
the time being administering the Marine Act 1958-
(a) without charge draw water from the sea in the vicinity of the Anglesea
River for any of its operations on the power station site or the
leased area;
(b) return to the sea any water so drawn which has been used for cooling
purposes only; and
(c) construct such works and use such portion of the sea bed as may
reasonably be required for the purposes mentioned in the two last
preceding paragraphs. Division B-Restriction of Rights
24. Restriction of rights in respect of Anglesea River etc. Notwithstanding
anything herein contained the Company shall not be entitled-
(a) to fence or otherwise enclose any part of the boundary of the leased
area which coincides with or abuts on the left bank of the Anglesea
River;
(b) to obtain a grant in fee simple of or to exercise any rights (other
than under clause 18 hereof) hereunder on or in any part of-
(i) the bed or banks of the Anglesea River; or
(ii) any land abutting on the Anglesea River which is now reserved for
public purposes under the provisions of the Land Act 1958. Division
C-Further Provision as to Operations of the Company
25. Obligations of Company as to operation etc. of works The Company in
constructing equipping and operating its works on the leased area the power
station site the prior land the purchased land and its land at Point Henry
shall-
(a) comply with accepted modern practice for the construction equipment
and operation of works of a like nature;
(b) comply with any Act applicable to the construction equipment or
operation of those works; and
(c) endeavour to avoid so far as is reasonable and practicable the
creation of any nuisance- and if the Company does so it shall not be
liable for any nuisance which is not due to negligence on its part-
Provided that the Company shall have the onus of proving that is has
complied with paragraphs (a), (b) and (c) of this clause and that it
has not been negligent. PART VI-OTHER PROVISIONS AFFECTING OPERATION
OF AGREEMENT Division A-Determination of Company's Rights
26. Determination of Agreement
(1) If at any time the Company enters into liquidation (other than a voluntary
liquidation for the purpose of reconstruction and assignment of rights under
this Agreement) the Minister may determine this Agreement.
(2) If-
(a) the Company at any time fails to comply with the terms and conditions
(other than clause 15) of this Agreement; and
(b) the Minister having given to the Company at least six months' written
notice requiring it to remedy that failure either wholly or so far as
it is possible to do so within the period of the notice, the Company
does not comply with the notice- the Minister may apply to a judge of
the Court in chambers for a summons calling upon the Company to show
cause why this Agreement should not be determined.
(3) Upon the hearing of any summons issued under the last preceding sub-clause
the following provisions shall apply-
(a) unless the Court considers that the failure aforesaid was due to
mistake or to circumstances beyond the control of the Company or that
there was otherwise a reasonable cause therefor and that the State has
not been and will not be materially prejudiced by that failure, the
Court may by order authorize the Minister to determine this Agreement
and thereupon the Minister may determine it accordingly;
(b) evidence may be given by affidavit or if the Court so directs may be
given orally or partly by affidavit and partly orally;
(c) subject to the last preceding paragraph the procedure shall be as the
Court may direct;
(d) the Court may make such order as to costs as it deems just.
(4) In the last preceding sub-clause "Court" means the Supreme Court of the
State of Victoria or a Judge thereof.
(5) The provisions of sub-clause (2) of this clause shall not affect any other
right or remedy which the State may have in respect of any breach or
non-observance by the Company of the terms and conditions of this Agreement.
Division B-Supplemental
27. Disputes In the event of any dispute between the parties hereto in
relation to or in respect of any matter arising under or out of this Agreement
(other than a dispute as to any matter referred to in the last preceding
clause) either party may give to the other written notice requiring the
dispute to be submitted to arbitration within the period of thirty days
thereafter unless meanwhile the dispute shall have been settled. In the event
of the dispute not being settled within that period it shall forthwith be
referred to arbitration in accordance with the Arbitration Act 1958. 28. (1)
Any notice order demand or other writing authorized or required by this
Agreement to be given or sent shall be sufficiently given or sent by-
(a) the State if signed by the Minister or the Secretary or an officer of
the Department of Mines acting by direction of the Minister and
forwarded by prepaid post to the Company at its registered office in
Victoria or at the leased area;
(b) the Company if signed by a director or the secretary of the Company
and forwarded by prepaid post to the Minister at the principal office
of the Department of Mines.
(2) Any such notice order demand or writing so forwarded shall be deemed to
have been given or sent on the day on which it would be delivered in the
ordinary course of post. IN WITNESS whereof the parties hereto have executed
this Agreement the day and year first before written. Signed Sealed and
Delivered by the said WILFRED JOHN MIBUS in the presence of (Sgd.) R. W. TERRY
ü ï ý þ (Sgd.) W. J. MIBUS (Seal). The Common Seal of ALCOA OF AUSTRALIA
PROPRIETARY LIMITED was hereto affixed by authority of the Directors in the
presence of (Sgd.) J. CHESTER GUEST, Director. (Sgd.) B. G. BRETT, Secretary.
ü ï ï ï ý ï ï þ
(Seal.)
A map is annexed to the Agreement and endorsed as follows:
"This is the plan referred to in the annexed Agreement made the twenty-second
day of November, 1961, between the Honorable Wilfred John Mibus for and on
behalf of the State of Victoria of the one part and Alcoa of Australia
Proprietary Limited of the other part. Signed by the said WILFRED JOHN MIBUS
in the presence of: (Sgd.) R. W. TERRY ü ï ý þ
(Sgd.) W. J. MIBUS. The Common Seal of ALCOA OF AUSTRALIA PROPRIETARY LIMITED
was hereto affixed by authority of the Directors in the presence of: (Sgd.) J.
CHESTER GUEST, Director. (Sgd.) B. G. BRETT, Secretary." ü ï ï ý ï ï ï þ
(Seal.) ---------------
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