Mines (Aluminium Agreement) Act 1961FILE/61-6829a003.docx · Web viewOCPC-VIC, Word 2007, Template Release 2010 V5.01

Version No. 003

Mines (Aluminium Agreement) Act 1961No. 6829 of 1961

Version incorporating amendments as at 30 November 2011

TABLE OF PROVISIONSSection Page

1 Short title 22 Interpretation 23 Act to bind Crown 34 Ratification etc. and enforcement of Agreement and modification

of Acts etc. 34A Ratification of the Amendment Agreement 44B Application of Occupational Health and Safety Act 2004 45 Leased area and reserve area to cease to be State forest 56 Timber in leased area and reserve area to remain Crown property 57 Enactment of certain provisions of Agreement 57A Power to authorise compulsory purchase of land 58 Easements for transmission of electricity 69 Public statutory corporation may enter into agreements 610 Agreement deemed to include certain provisions 7

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SCHEDULES 9

SCHEDULE 1—Agreement 9

SCHEDULE 2—Amendment Agreement 33

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ENDNOTES 77

1. General Information 77

2. Table of Amendments 78

3. Explanatory Details 79

1

Version No. 003


Version incorporating amendments as at 30 November 2011

An Act to ratify validate approve and otherwise give effect to an Agreement between the Minister of Mines and Alcoa of Australia

Proprietary Limited with respect to the Establishment within the State of Victoria of Industries for the Production of Aluminium and for the

Manufacture of Goods therefrom and to the Granting of certain Mineral and other Rights incidental to establishing and carrying on

such Industries and for other Purposes connected therewith.

PreambleWHEREAS an Agreement with respect to the establishment in Victoria of the industries of reducing the ore of aluminium to its basic metal and of manufacturing alloying and fabricating the metal so produced into articles of commerce was made on the twenty-second day of November One thousand nine hundred and sixty-one between Honorable Wilfred John Mibus in his capacity as Minister of Mines for the time being of the State of Victoria for and on behalf of the State of Victoria of the one part and Alcoa of Australia Proprietary Limited a company incorporated under the provisions of the Companies Act 1958 of the other part:

AND WHEREAS by the said Agreement it is provided that the said Agreement shall not be of any force or effect until it has been validated approved and otherwise given effect to by an Act of the Parliament of Victoria:

AND WHEREAS it is expedient to ratify validate approve and otherwise give effect to the said Agreement and to make other provision as hereinafter enacted:

1

BE IT THEREFORE ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):

1 Short title

This Act may be cited as the Mines (Aluminium Agreement) Act 1961.

2 Interpretation

In this Act unless inconsistent with the context or subject-matter—

(a) The Agreement means the agreement a copy of which is set out in Schedule 1 and includes the amendments made, ratified, validated and approved by the Mines (Aluminium Agreement) Amendment Act 2011 and the plan which is annexed to the Agreement as amended and which is referred to in the said Schedule; and

(ab) Amendment Agreement means the agreement a copy of which is set out in Schedule 2 and includes the plan which is annexed to the Amendment Agreement as executed and which is referred to in the said Schedule;

(ac) reserve area has the same meaning that it had immediately before the commencement of the Mines (Aluminium Agreement) Amendment Act 2011;

(b) expressions used in this Act shall have the meanings respectively assigned to them in the Agreement.

2

s. 1

S. 2(a) amended by No. 68/2011 s. 5(1).

S. 2(ab) inserted by No. 68/2011 s. 5(2).

S. 2(ac) inserted by No. 68/2011 s. 5(2).

3 Act to bind Crown

This Act shall bind the Crown.

4 Ratification etc. and enforcement of Agreement and modification of Acts etc.

(1) The Agreement is hereby ratified validated and approved and shall be given effect to.

(2) The following provision shall be read as in aid of and not as in derogation from the provisions of the last preceding subsection—

(a) the Minister and all authorities and officers concerned are hereby empowered to carry out the Agreement and to enter into such agreements and give such approvals as are provided for by it; and

(b) this Act and the Agreement shall take effect notwithstanding anything in any Act and in particular notwithstanding anything in—

(i) the Mineral Resources (Sustainable Development) Act 1990;

(ii) the Forests Act 1958;

(iii) the Water Act 1989;

(iv) the State Electricity Commission Act 1958;

(v) the Local Government Act 1989;

(vi) the Transport (Compliance and Miscellaneous) Act 1983;

3

s. 3

S. 4(2)(b)(i) amended by No. 68/2011 s. 6(a).

S. 4(2)(b)(iii) amended by No. 68/2011 s. 6(b).

S. 4(2)(b)(v) amended by No. 68/2011 s. 6(c).

S. 4(2)(b)(vi) substituted by No. 10115 s. 17(a), amended by No. 68/2011 s. 6(d).

(vii) the Land Act 1958;

(viii) the Electric Light and Power Act 1958—

or in any proclamation regulation Order in Council lease licence authority permit or agreement under any Act; and every Act proclamation regulation Order in Council lease licence or authority permit or agreement shall by virtue of this Act be deemed to be modified to the extent necessary to give full force and effect to this Act and the Agreement (but not further or otherwise) and shall be read and construed and take effect accordingly.

4A Ratification of the Amendment Agreement

(1) The Amendment Agreement is ratified, validated and approved and takes effect.

(2) The Agreement is amended as provided in the Amendment Agreement.

4B Application of Occupational Health and Safety Act 2004

Despite section 4(2)(b), the Occupational Health and Safety Act 2004 and any regulations made under it apply to all mining operations carried out under the Agreement as if the leased area, the freehold land, the prior land, the purchased land and any other land acquired under section 7A were a mine as defined in section 37 of the Occupational Health and Safety Act 2004.

5 Leased area and reserve area to cease to be State forest

4

S. 4A inserted by No. 68/2011 s. 7.

s. 4A

S. 4B inserted by No. 68/2011 s. 7.

Upon the coming into operation of the Agreement the leased area and the reserve area shall cease to be State forest within the meaning of the Forests Act 1958.

6 Timber in leased area and reserve area to remain Crown property

All trees and timber within the meaning of the Forests Act 1958 which are at or after the coming into operation of the Agreement in any part of the leased area or of the reserve area not being worked or used in the exercise of rights under the Agreement shall remain and be the property of the Crown and the provisions of section fifty-two of the said Act shall apply in relation to such trees and timber as if they were on Crown land within a protected forest within the meaning of that Act.

7 Enactment of certain provisions of Agreement

The provisions of subclause (5) of clause 18, subclauses (3) and (4) of clause 19, clause 20A, clauses 21, 21A, 21B, 25 and 26 of the Agreement shall have the same force and effect as if enacted in this Act.

7A Power to authorise compulsory purchase of land

(1) The Company may apply to the Minister for approval to compulsorily acquire an interest in land for the purposes specified in the Agreement.

(2) If the Minister approves an application under subsection (1), the Minister must certify his or her approval and submit that certificate to the Governor in Council for approval.

(3) The certificate must specify the interest in the land proposed to be acquired and the purpose for which it is required.

(4) If the Governor in Council approves a certificate referred to in subsection (2), the Company may

5

s. 5

S. 7 amended by Nos 10115 s. 17(b), 68/2011 s. 8.

S. 7A inserted by No. 68/2011 s. 9.

compulsorily acquire the interest in land specified in the certificate for the purposes specified in the certificate.

(5) The Land Acquisition and Compensation Act 1986 applies to this section as if—

(a) this section is the special Act; and

(b) the Company is the Authority.

8 Easements for transmission of electricity

The Company has the benefit of all easements, rights or privileges now held or hereafter to be acquired by the State Electricity Commission over or affecting land for or in connexion with or necessary for the operation of the 220 kV 3 phase transmission line to the smelter at Point Henry connecting the Company's Anglesea Power Station to that smelter independent of the State Electricity Commission's supply from the Geelong Terminal Station to that smelter.

9 Public statutory corporation may enter into agreements

Where any public statutory corporation has power to construct pipelines, water mains, sewerage works, gas mains, powerlines, wharf facilities or other similar structures and to purchase or acquire land compulsorily for that purpose or to enter into contracts for the supply of goods or services any such corporation may enter into an agreement with the Company which provides for the co-operation between the public statutory corporation and the Company in the construction of pipelines, water mains, sewerage works, gas mains, powerlines, wharf facilities or other similar structures required for their respective purposes or for the supply of goods or services and the parties to any such agreement are hereby authorized to do all things necessary or expedient to carry out any

6

S. 8 inserted by No. 10115 s. 16.


s. 8

such agreement and to give or receive indemnities in any such agreement.

10 Agreement deemed to include certain provisions

The Agreement shall have effect as if the following Part were inserted after Part III:

"PART IIIA—OBLIGATIONS OF THE STATE20A. The State shall—

(a) not impose nor take nor (insofar as it is competent to do so) permit nor authorize any of its agencies or instrumentalities or any local or other authority or Minister of the Crown or public statutory corporation of the State to take or cause to occur any action or combination of actions, including, without limitation, the imposition of any taxes, rates or charges of any nature whatsoever, which—

(i) has the effect of modifying or subtracting from the Company's rights or adding to any of its obligations under this Agreement or any other agreement relating to the smelter at Point Henry;

(ii) is discriminatory to, or has a discriminatory effect on, or is directed at the smelter at Point Henry or the Company; or

(iii) discriminates adversely between the Company and other industrial or commercial enterprises in the State in respect of the income, titles, property or other assets, products, materials or services used or produced by or through the operation of the smelter at Point Henry and the disposal of aluminium and waste products produced in the smelter or is discriminatory to the aluminium industry or is directed at the aluminium industry;

(b) not, without the consent of the Company, resume nor (insofar as it is competent to do so) suffer nor permit to be resumed, other than for

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s. 10

the purpose of a "public project" as defined in the Public Lands and Works Act 1964 (as amended), any of the works installations plant equipment or other property for the time being belonging to the Company and the subject of or used for the purpose of this Agreement where to do so would unduly prejudice or interfere with the Company's operations hereunder; and

(c) make such representations as may be necessary to the Commonwealth with respect to, and use its good offices in relation to, the remedy or amelioration of or removal by the Commonwealth of any adverse effect on the progress or cost of the construction and operation of the smelter at Point Henry or on that smelter, the Company, this Agreement or any other agreement relating to the smelter resulting from Commonwealth Government policies including, without limiting the generality of the foregoing, the imposition of import duties, as soon as practicable after the occurrence of such effect.".

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8

s. 10

SCHEDULES

SCHEDULE 1

AGREEMENT

THIS AGREEMENT is made the twenty-second day of November One thousand nine hundred and sixty-one BETWEEN The Honorable WILFRED JOHN MIBUS in his capacity as Minister of Mines for the time being of the State of Victoria for and on behalf of THE STATE OF VICTORIA of the one part and ALCOA OF AUSTRALIA PROPRIETARY LIMITED a Company incorporated under the provisions of the Companies Act 1958 of the said State the registered office of which is situate at 120 William Street Melbourne in the said State of the other part.

Recitals

WHEREAS:

I. The Company is desirous of establishing in the State of Victoria the industries of reducing the ore of aluminium to its basic metal and of manufacturing alloying and fabricating the metal so produced into articles of commerce.

II. In view of the large capital expenditure involved in the establishment of those industries the Company desires to ensure that certain rights incidental to the establishment and carrying on of those industries will be assured to it.

III. The State is satisfied that a large capital expenditure is necessary to establish the said industries satisfactorily and that it is desirable in the interests of the State that subject to the provisions hereof the Company should be granted the rights hereinafter expressed.

NOW IT IS HEREBY AGREED as follows—

PART I—PRELIMINARY1. Definitions

In this Agreement unless inconsistent with the context or subject matter—

Sch. (Heading) substituted by No. 68/2011 s. 11(a).

Sch. 1 (Heading) inserted by No. 68/2011 s. 11(b).

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"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;

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"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

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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.

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(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.

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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 COMPANYDivision 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

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(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

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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.

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(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;

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(ii) the quantities of coal used for the purpose of generating electricity;

(iii) the quantities of coal used for other purposes—

and shall permit the Minister or any person authorized by him in writing to inspect those records at all reasonable times and to take copies thereof or extracts therefrom;

(b) from time to time when requested so to do by the Minister supply him with such information relating to the mining operations of the Company in or on the leased area as he may reasonably require;

(c) furnish to the Secretary within fourteen days after the end of each period of three months during the term of this Agreement a return verified by a director or the secretary of the Company showing in respect of that period particulars of the matters specified in paragraph (a) of this clause.

Division B—Mining Operations and Related Matters

12. Manner of operations

(1) The Company shall—

(a) carry out its operations on the leased area in a safe skilful and workmanlike manner;

(b) permit an Inspector of Mines or any other person authorized by the Minister free access at all reasonable times to the place where coal won from the leased area is kept or stored and to inspect examine measure or weigh the coal and to determine what quantity or proportion thereof is usable or marketable coal;

(c) before commencing to sink any shaft on the leased area or to use any shaft already sunk thereon deposit with the Secretary such sum as the Minister may fix by way of guarantee that before any such shaft is abandoned it will be securely covered to the satisfaction of the Chief Mining Inspector;

(d) securely cover as aforesaid any such shaft before abandoning it;

(e) during the term of this Agreement effectually drain the parts of the leased area from time to time being worked by the Company and pump out all water

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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

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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

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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

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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

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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—

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(a) to construct maintain and operate such works as may be approved by the Water Commission in or on the bed or banks or both bed and banks of the Anglesea River;

(b) to carry out such diversions of any river stream creek or watercourse or of any lake lagoon swamp or marsh within the meaning of the Water Act 1958 situate within the leased area the power station site the prior land and the purchased land as may be approved by the Water Commission.

19. Electricity Commission Works

(1) Nothing contained in this Agreement shall entitle the Company to do anything which may cause damage to any works of the State Electricity Commission of Victoria (in this clause called "the Electricity Commission") existing on or over the leased area or to exercise any of its rights hereunder on or under the site of those works but the Electricity Commission may upon such terms as it deems fit agree with the Company to remove those works from the leased area or to another site within the leased area.

(2) Nothing contained in this Agreement shall preclude an agreement between the Electricity Commission and the Company with the approval of the Minister in respect of—

(a) exploratory boring (in addition to that specified herein) of the leased area and the reserve area with a view to providing coal for the power generation requirements of the State;

(b) the development jointly or otherwise by the Electricity Commission and the Company of open cuts on the leased area necessary to meet those requirements;

(c) co-operation generally between the Electricity Commission and the Company in the generation of power from the coal reserves in the leased area.

(3) In respect of the generation and distribution of electricity by the Company from the power generating station aforesaid and of the smelting and fabrication of aluminium and the operation of ancillary services by the Company the Company shall have the rights—

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(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

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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

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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 195821. 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

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(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—

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(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.

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(2) If—

(a) the Company at any time fails to comply with the terms and conditions (other than clause 15) of this Agreement; and

(b) the Minister having given to the Company at least six months' written notice requiring it to remedy that failure either wholly or so far as it is possible to do so within the period of the notice, the Company does not comply with the notice—

the Minister may apply to a judge of the Court in chambers for a summons calling upon the Company to show cause why this Agreement should not be determined.

(3) Upon the hearing of any summons issued under the last preceding sub-clause the following provisions shall apply—

(a) unless the Court considers that the failure aforesaid was due to mistake or to circumstances beyond the control of the Company or that there was otherwise a reasonable cause therefor and that the State has not been and will not be materially prejudiced by that failure, the Court may by order authorize the Minister to determine this Agreement and thereupon the Minister may determine it accordingly;

(b) evidence may be given by affidavit or if the Court so directs may be given orally or partly by affidavit and partly orally;

(c) subject to the last preceding paragraph the procedure shall be as the Court may direct;

(d) the Court may make such order as to costs as it deems just.

(4) In the last preceding sub-clause "Court" means the Supreme Court of the State of Victoria or a Judge thereof.

(5) The provisions of sub-clause (2) of this clause shall not affect any other right or remedy which the State may have in respect of any breach or non-observance by the Company of the terms and conditions of this Agreement.

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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

(Sgd.) W. J. MIBUS (Seal).

The Common Seal of ALCOA OF AUSTRALIA PROPRIETARY LIMITED was hereto affixed by authority of the Directors in the

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presence of

(Sgd.) J. CHESTER GUEST, Director.

(Sgd.) B. G. BRETT, Secretary.

(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 MIBUSin the presence of:

(Sgd.) R. W. TERRY

(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.) B. G. BRETT, Secretary."

(Seal.)

__________________

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SCHEDULE 2

AMENDMENT AGREEMENT

Date 19 October 2011

Parties

1. The Honourable Michael O'Brien for and on behalf of the State of Victoria as Minister for Energy and Resources (the State).

2. Alcoa of Australia Limited (ACN 004 879 298) of 181-205 Davy Street, Booragoon, Western Australia (the Company).

Recitals

A The State and the Company are parties to an agreement which is set out in the Schedule to the Mines (Aluminium Agreement) Act 1961 (the Principal Agreement) under which the Company has the exclusive right to search work mine for win carry away and dispose of all coal on or in the leased area on the terms set out in the Principal Agreement.

B The initial term of the Principal Agreement is due to expire on 1 February 2012 and the parties wish to extend the term and amend the Principal Agreement in the manner set out in this Agreement.

It is agreed as follows.

1. Definitions and Interpretation

In this Agreement, unless the context requires otherwise:

(a) Effective Date means 1 February 2012.

(b) Words which are defined in the Principal Agreement and which are used in this Agreement have the same meaning in this Agreement as in the Principal Agreement.

Sch. 2 inserted by No. 68/2011 s. 12.

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2. Condition Precedent

This Agreement has no force or effect until it has been ratified, validated and approved by an Act of the Parliament of Victoria.

3. Amendments

The Principal Agreement is amended as follows:

(a) Recitals

A new Recital IV is added after Recital III:

"IV. On the expiry of its initial term the State and the Company wish to extend, amend and restate this Agreement as provided in the Amendment Agreement."

(b) Clause 1

In the definition of "the Act", "Mines Act 1958" is deleted and replaced with "Mineral Resources (Sustainable Development) Act 1990".

A new defined term is added after "the Act":

""Amendment Agreement" means the agreement between the State and the Company amending and restating this Agreement in connection with the extension of this Agreement on the expiry of its initial term;"

The definition of "base index number" is amended as follows:

(i) the word "December" is deleted and replaced with "June";

(ii) the words "One thousand nine hundred and sixty-one" are deleted and replaced with "two thousand and ten"; and

(iii) the word "Commonwealth" is deleted and replaced with "Australian".

The definition of "Chief Mining Inspector" is amended as follows:

(i) the words "Chief Mining Inspector in" are deleted and replaced with "the Chief Inspector appointed under"; and

(ii) the words "Department of Mines" are deleted and replaced with "Act".

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In the definition of "Company", the word "Proprietary" is deleted.

The definition of "current index number" is amended as follows:

(i) the word "average" is deleted;

(ii) the words "for the whole" are deleted and replaced with "as at 30 June"; and

(iii) the word "Commonwealth" is deleted and replaced with "Australian".

The definition of "former forest area" is deleted.

Two new defined terms are added after the definition of "date of commencement":

""Department" means the Department of Primary Industries;

"freehold land" means land coloured blue on the plan annexed hereto being all the land contained in—

(a) certificate of title volume 8230 folio 618 known as Lot 1 on Title Plan 408603H (formerly known as part of Crown Allotment 10 Parish of Angahook); and

(b) certificate of title volume 8489 folio 766 known as Lot 2 on Plan of Subdivision 061660 (formerly known as part of Crown Allotment 10 Parish of Angahook),

which land is the subject of a minerals exemption granted pursuant to section 293 of the Mines Act 1958 on or about 19 August 1985;"

The definition of "leased area" is amended as follows:

(i) the words "the power station site" are deleted;

(ii) the words "within the boundaries shown" are deleted and replaced with "coloured green";

(iii) the words "by a red verge and which together with the power station site" are deleted and replaced with "which"; and

(iv) "10,865 acres" is deleted and replaced with "7,145 hectares".

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The definition of "Power station site" is deleted.

In the definition of "prior land", the words "containing (subject to survey) 99 acres more or less" are deleted and replaced with:

"being all the land contained in certificate of title volume 5944 folio 708 known as Crown Allotments 63B1 and 64D in Parish of Jan Juc County of Grant, which land is the subject of a minerals exemption granted pursuant to section 293 of the Mines Act 1958 on or about 19 August 1985;"

In the definition of "purchased land", the words "described in sub-clause (3) of clause 20 hereof" are deleted and replaced with:

"coloured red on the plan annexed hereto being all the land contained in certificate of title volume 8876 folio 425 known as crown allotment 66 in Parish of Jan Juc County of Grant;"

The definition of "reserve area" is deleted.

In the definition of "Secretary", "Secretary for Mines" is deleted and replaced with "Secretary of the Department".

The following new defined terms are added after the definition of "Secretary":

""significant additional environmental impact" means a significant impact on—

(a) species of fauna or flora or ecological communities or their supporting habitat;

(b) beneficial uses of surface and ground waters; or

(c) the amenity of adjoining areas,

that is in addition to the impacts that already exist by virtue of the Company's existing mining operations at the time the mine extension plan is submitted;

"specified area" means the area designated as such in the plan lodged at the Central Plan Office and assigned plan number LEGL./11-281, being the area in which the Company is authorised to conduct mining operations under the work plan referred to in clause 21A (including the stage 1 area and any area in which the conduct of such mining operations is

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subject to the approval of a mine extension plan in accordance with the work plan);

"stage 1 area" means the area identified as such in the work plan referred to in clause 21A in which the Company is authorised to conduct mining operations as at the date of the Amendment Agreement without the need to submit a mine extension plan for approval;"

A new defined term is added after the definition of "State":

""stone" has the same meaning as it has in the Mineral Resources (Sustainable Development) Act 1990 of the Parliament of Victoria;"

A new defined term is added after the definition of "term of this Agreement":

""water supply infrastructure" means pipelines, ground water extraction bores and any associated assets that support the supply of water;"

(c) Clause 2

In clause 2, "Mines Act 1958" is deleted and replaced with "Mineral Resources (Sustainable Development) Act 1990".

(d) Clause 4

Clause 4 is deleted and a new clause 4 is inserted:

"4. Effect of assignment by Company

(1) The Company may assign all or some of its rights under this Agreement with the written consent of the Minister.

(2) An assignment shall be conditional on the assignee executing a deed in a form approved by the Minister under which the assignee agrees to be responsible for the performance of each of the obligations and conditions imposed by this Agreement that correspond to the rights assigned to it by the Company.

(3) The Company shall be released from responsibility for the performance of each of the obligations and conditions of this Agreement that are assumed by an assignee by reason of sub-clause (2)."

(e) Clause 6

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In clause 6, the word "fifty" is deleted and replaced with "one hundred".

(f) Clause 7

Sub-clauses 7(1) and 7(2) are omitted.

In sub-clause 7(3), the words "of any extension pursuant to sub-clause (1) of this" are deleted and replaced with "specified in the last preceding". The word "further" is deleted.

In sub-clause 7(4), the word "further" is deleted wherever it appears. The word "lease" is deleted and replaced with "licence".

(g) Clause 8

Clause 8 is amended as follows:

(i) the words "on or after the expiration of the first nine years or (if pursuant to clause 15 hereof that period is extended) twelve years of the term of this Agreement" are deleted;

(ii) the number "15" is deleted and replaced with "19";

(iii) the words "or her" are inserted after "his";

(iv) the word "he" is deleted and replaced with "the Minister"; and

(v) the word "leases" is deleted and replaced with "licences".

(h) Clause 9

In sub-clause 9(2)(b), the words "sand gravel clay or earth" are deleted and replaced with "stone".


(i) Clause 10

Sub-clause 10(1)(a) is amended as follows:

(i) the words "two shillings and sixpence" are deleted and replaced with "62 cents";

(ii) the words "each acre" are deleted and replaced with "each hectare"; and

(iii) the words "an acre" are deleted and replaced with "a hectare".

Sub-clause 10(1)(b) is amended as follows:

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(i) the word "ton" is deleted and replaced with "tonne";

(ii) the word "or" is deleted after "electric power";

(iii) the words "or while the Company (whether alone or as part of a partnership or joint venture with others) is operating an aluminium smelting plant at Portland" are inserted after "hereof";

(iv) in paragraph (b)(i), the words "four pence" are deleted and replaced with "38.7203 cents" and the words "one hundred thousand tons" are deleted and replaced with "one hundred and one thousand six hundred tonnes"; and

(v) in paragraph (b)(ii), the words "three pence" are deleted and replaced with "29.0686 cents" and the words "one hundred thousand tons" are deleted and replaced with "one hundred and one thousand six hundred tonnes".

Sub-clause 10(1)(c) is deleted and a new sub-clause 10(1)(c) is inserted:

"(c) in respect of each tonne of coal as aforesaid won from the leased area and used for the generation of electric power otherwise than in connexion with the industries referred to in Recital I hereof or while the Company (whether alone or as part of a partnership or joint venture with others) is operating an aluminium smelting plant at Portland, a royalty at the rate from time to time applicable to lignite under section 12A of the Act;"

A new sub-clause 10(1)(d) is added:

"(d) in respect of each tonne of coal as aforesaid won from the leased area and sold or used by the Company for any purpose other than as specified in paragraph (b) or (c) of this clause, a basic royalty of 38.7203 cents."

In sub-clause 10(2), "Accountant to the Department of Mines" is deleted and replaced with "Department of Primary Industries or its successor".

In sub-clause 10(4), after the words "during that year" insert:

", other than the royalty payable under sub-clause (1)(c),"

Sub-clause 10(5) is amended as follows:

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(i) the word "Commonwealth" is deleted and replaced with "Australian"; and

(ii) the words "Government Statist" are deleted and replaced with "Secretary of the Department of Treasury and Finance".

Sub-clause 10(7) is omitted.


(i) the words "two shillings and sixpence" are deleted and replaced with "62 cents";

(ii) the words "each acre" are deleted and replaced with "each hectare"; and

(iii) the words "an acre" are deleted and replaced with "a hectare".

(j) Clause 11

In sub-clause 11(a), the word "him" is deleted and replaced with "the Minister".

In sub-clause 11(b), the word "him" is deleted and replaced with "the Minister" and the words "as he" are deleted and replaced with "the freehold land the prior land and the purchased land as the Minister".

The following paragraph is added at the end of clause 11:

"This clause does not limit the obligations of the Company with respect to the keeping of proper records under the Act. To the extent that there is an inconsistency between the requirements of this clause and the requirements of the Act with respect to the keeping of records, the requirements of the Act prevail."

(k) Clause 12

Sub-clauses 12(1)(a) to 12(1)(f) are omitted.

Sub-clause 12(1)(g) is amended as follows:

(i) the word "him" is deleted and replaced with "such owner occupier or lessee";

(ii) the word "mining" is inserted after "the Company's"; and

(iii) the words "the freehold land the prior land or the purchased land" are inserted after "leased area".

Sub-clauses 12(1)(h) and 12(1)(i) are omitted.

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Sub-clause 12(1)(j) is amended as follows:

(i) the word "mining" is inserted before "operations";

(ii) the words "the freehold land the prior land or the purchased land" are inserted after "leased area"; and

(iii) the words "all statutory provisions" are deleted and replaced with "the Act and all other statutory provisions".


(l) Clause 13

The heading to clause 13 is deleted and replaced with "Use of leased area".

Sub-clauses 13(a), 13(b), 13(d) and 13(e) are omitted.

(m) Clause 14

Clause 14 is omitted.

(n) Clause 15

The heading to Division C and clause 15 are omitted.

(o) Clause 16


(p) Clause 17

In sub-clause 17(2), the word "he'" is deleted and replaced with "the Minister".

(q) Clause 18


(i) the words "the State Rivers and Water Supply Commission (in this clause called "the Water Commission")" are deleted and replaced with "Barwon Water";

(ii) the words "fifty feet" are deleted and replaced with "fifteen metres";

(iii) the word "pipeline" is deleted wherever it appears and replaced with "water supply infrastructure";

(iv) the words "in the easterly portion of" are deleted and replaced with "within"; and

(v) the words "the Water Commission" are deleted and replaced with "Barwon Water".

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Sub-clauses 18(2) and 18(3) are amended as follows:

(i) the words "the Water Commission" are deleted wherever they appear and replaced with "Barwon Water"; and

(ii) the word "pipeline" is deleted wherever it appears and replaced with "water supply infrastructure".

The existing sub-clause 18(4) becomes sub-clause 18(5) and a new sub-clause 18(4) is inserted:"(4) Any additional water supply infrastructure installed or proposed

to be installed by Barwon Water will be subject to individual agreement with the Company."

In the new sub-clause 18(5)(a), "the Water Commission" is deleted and replaced with "Southern Rural Water".

The new sub-clause 18(5)(b) is amended as follows:

(i) "Water Act 1958" is deleted and replaced with "Water Act 1989";

(ii) the words "the power station site" are deleted; and

(iii) the words "the Water Commission" are deleted and replaced with "Southern Rural Water".

(r) Clause 19


In sub-clause 19(3), the word "aforesaid" is deleted and replaced with "hereinafter mentioned".

In sub-clause 19(3)(a), the words "power station site" are deleted and replaced with "prior land and the purchased land".

In sub-clause 19(3)(b), the words "the power station site" are deleted.

In sub-clause 19(3)(c), the words "provisions of Section 26 of the State Electricity Commission Act 1958" are deleted and replaced with "Mines (Aluminium Agreement) Act 1961". The words "power station site the" are deleted.

Sub-clause 19(3)(d) is omitted.

In sub-clause 19(4), the words "(other than sub-clause (5))" are inserted after "in this Agreement". The words "the Electric Light and Power Act 1958", and "(excluding

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section forty-five of the Electric Light and Power Act 1958)" are deleted.

A new sub-clause 19(5) is added after sub-clause 19(4):

"(5) Paragraphs (a) and (b) of sub-clause (3) and sub-clause (4) shall cease to apply on the earlier of:

(a) the date on which the Company permanently ceases to operate an aluminium smelting and fabricating plant on the lands of the Company at Point Henry; and

(b) 1 August 2014,

provided that nothing in this clause shall be taken to prevent the Company from continuing to undertake the activities referred to in paragraphs (a) and (b) of sub-clause (3) to the extent it is permitted to do so without reference to this Agreement."

(s) Clause 20


(t) New Part IIIA

A new Part IIIA is added after Part III, so as to incorporate the text deemed to form part of the Principal Agreement by section 10 of the Mines (Aluminium Agreement) Act 1961:

"PART IIIA – OBLIGATIONS OF THE STATE

20A. The State shall –

(a) not impose nor take nor (insofar as it is competent to do so) permit nor authorize any of its agencies or instrumentalities or any local or other authority or Minister of the Crown or public statutory corporation of the State to take or cause to occur any action or combination of actions, including without limitation, the imposition of any taxes, rates or charges of any nature whatsoever, which –

(i) has the effect of modifying or subtracting from the Company's rights or adding to any of its

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obligations under this Agreement or any other agreement relating to the smelter at Point Henry;



(b) not, without the consent of the Company, resume nor (insofar as it is competent do so) suffer nor permit to be resumed, other than for the purpose of "public construction" as defined in the Project Development and Construction Management Act 1994 (as amended), any of the works installations plant equipment or other property for the time being belonging to the Company and the subject of or used for the purpose of this Agreement where to do so would unduly prejudice or interfere with the Company's operations hereunder; and

(c) make such representations as may be necessary to the Commonwealth with respect to, and use its good offices in relation to, the remedy or amelioration of or removal by the Commonwealth of any adverse effect on the progress or cost of the construction and operation of the smelter at Point Henry or on that smelter, the Company, this Agreement or any other agreement relating to the smelter

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resulting from Commonwealth Government policies including, without limiting the generality of the foregoing, the imposition of import duties, as soon as practicable after the occurrence of such effect."

(u) Part IV

The heading to Part IV is deleted and replaced with "PART IV - APPLICATION OF CERTAIN ACTS".

(v) Clause 21


(i) the word "mining" is inserted before "operations";

(ii) the words "the freehold land the prior land and the purchased land" are inserted before "as if"; and

(iii) the words "mineral lease" are deleted and replaced with "mining licence".

Sub-clause 21(2)(a) is deleted and replaced with: "sections 12 and 12A of the Act, and any other provisions of the Act or another law that commence following the execution of the Amendment Agreement which relate to the subject matter of those sections, shall not apply to this Agreement;"

Sub-clause 21(2)(b) is deleted and replaced with:"section 85 of the Act, and any other provisions of the Act or another law that commence following the execution of the Amendment Agreement which relate to the subject matter of that section, shall not apply to this Agreement."

(w) New clauses 21A to 21D

New clauses 21A to 21D are inserted after clause 21:"21A. Deemed approved work plan

The work plan in relation to the leased area the freehold land and the prior land submitted by the Company to the Department and endorsed by the Department is deemed to be an approved work plan under the Act, and the Company is deemed to have a work authority in respect of that work plan. To avoid doubt, any future variation of the work plan will be dealt with in accordance with the Act.

21B. Application of the Aboriginal Heritage Act 2006

(1) For the avoidance of doubt—

(a) the Aboriginal Heritage Act 2006 and any regulations made under it shall, as far as reasonably practicable, apply to this Agreement and the operations of the Company on the leased area the freehold

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land the prior land and the purchased land;

(b) any variation of the work plan referred to in clause 21A will be dealt with in accordance with the Aboriginal Heritage Act 2006; and

(c) Part 4, Division 3 of the Aboriginal Heritage Act 2006 has no effect in respect of the endorsement of the work plan referred to in clause 21A by the Department.

(2) Before any mining activity authorised by the work plan referred to in clause 21A is undertaken on any part of the leased area the freehold land or the prior land, a cultural heritage management plan in respect of that area must be approved under Part 4 of the Aboriginal Heritage Act 2006, except where the mining activity is within an area that has been subject to significant ground disturbance.

(3) The expressions 'cultural heritage management plan' and 'significant ground disturbance', as used in sub-clause (2), have the meaning given by the Aboriginal Heritage Act 2006.

21C. Application of Occupational Health and Safety Act 2004

The Company acknowledges that the Occupational Health and Safety Act 2004 and any regulations made under that Act apply to this Agreement and the mining operations of the Company on the leased area the freehold land the prior land and the purchased land.

21D. Mine extension process

(1) This clause applies if the Company proposes to extend its mining operations:

(a) outside the stage 1 area; or

(b) outside the area in which such operations are being conducted in accordance with a mine extension plan previously approved in accordance with this clause,

but within the specified area. Any such mine extension requires the approval of a mine extension plan by the Secretary or his or her delegate in accordance with the approval process specified in this clause and the work plan referred to in clause 21A.

(2) If this clause applies the Company must, prior to submitting a mine extension plan for approval, consider and analyse the available options for the mine extension. The options analysis prepared by the Company must specifically evaluate any potential significant additional environmental impacts as well as the potential measures to mitigate those impacts.

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(3) Following completion of the options analysis described in sub-clause (2), the Company must submit a mine extension plan to the Department in accordance with the work plan, and include –

(a) a summary of the options analysis undertaken in accordance with sub-clause (2);

(b) an outline of the proposed mine extension and related environmental impact mitigation actions that would be implemented as part of the mine extension plan; and

(c) information identifying any potential significant additional environmental impacts likely to result from the mine extension after taking account of the actions proposed by the Company (as described in the submitted documentation) to mitigate the environmental impacts of the mine extension described in the mine extension plan.

(4) The Company may consult with the Department, the Department of Planning and Community Development and any other relevant State or Commonwealth government department concerning the mine extension plan and the coordination of the processes described in sub-clauses (2) and (3) with the process for any other State or Commonwealth approvals or permits required in connection with the mine extension.

(5) On receipt of the mine extension plan by the Department and following the Department's initial assessment of the plan, the Minister will refer the plan to the Minister administering the Environment Effects Act 1978 for advice regarding whether the proposed mine extension is likely to have a significant additional environmental impact, after taking account of the actions proposed by the Company to mitigate the environmental impacts of the mine extension described in the mine extension plan.

(6) The Minister, after considering the advice of the Minister administering the Environment Effects Act 1978, may advise the Company that he or she is satisfied that:

(a) the proposed mine extension is not likely to have a significant additional environmental impact, in which case the mine extension plan may be approved by the Secretary or his or her delegate in accordance with the process set out in the

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work plan without further regard to this clause; or

(b) the proposed mine extension is likely to have a significant additional environmental impact, in which case the mine extension plan must not be approved by the Secretary or his or her delegate until an environmental impact and management report ("EIMR") has been prepared to assess the likely significant additional environmental impact of the proposed mine extension described in the mine extension plan, in accordance with this clause and the work plan.

(7) If an EIMR is required, the Minister administering the Environment Effects Act 1978 must promptly specify the scope for the EIMR having regard to:

(a) any relevant Ministerial guidelines made under the Environment Effects Act 1978 (but only insofar as those guidelines relate to the significant additional environmental impacts that have been identified as being likely to result from the proposed mine extension);

(b) the objective of minimising any significant additional environmental impacts of the proposed mine extension in the context of enabling coal extraction;

(c) the objective of limiting consultation on the EIMR to sections of the public that have a material and established interest in the significant additional environmental impacts that have been identified as being likely to result from the proposed mine extension;

(d) the actions proposed by the Company to mitigate the environmental impacts of the mine extension described in the mine extension plan; and

(e) the requirements applicable to the process for obtaining any other concurrent State or Commonwealth approvals or permits required for the proposed mine extension.

(8) If required to do so under sub-clause (6), the Company must prepare an EIMR to assess the likely significant additional environmental impact of the proposed mine extension described in the mine extension plan, in accordance with the requirements of sub-clause (7).

(9) The Minister administering the Environment Effects Act 1978 may appoint one or more persons to advise him or her on the EIMR and the mine

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extension plan. However, any review by such person or persons must not involve a public hearing and must occur in a timely way.

(10) Following completion of the EIMR and any advice from a person or persons appointed under sub-clause (9), the Minister administering the Environment Effects Act 1978 must, within a reasonable period of time, provide an assessment of the EIMR ("Planning Minister's Assessment") to the Minister to inform the decision by the Secretary or his or her delegate with respect to any conditions to which the mine extension plan may be subject.

(11) In considering the mine extension plan the Secretary or his or her delegate must have regard to the Planning Minister's Assessment, and the geotechnical, practical and financial aspects of the proposed mine extension, and may, subject to sub-clauses (12), (13) and (14), impose on his or her approval of the mine extension plan conditions that achieve a balance between any recommendations made in the Planning Minister's Assessment and the geotechnical, practical and financial aspects of the mine extension plan. Any such conditions will be deemed to be incorporated in the work plan referred to in clause 21A.

(12) Should the Secretary or his or her delegate consider that a deviation from any of the conditions recommended in the Planning Minister's Assessment would be appropriate, the Secretary or his or her delegate will provide any relevant information and seek the agreement of the Minister administering the Environment Effects Act 1978 before imposing any conditions that are not substantially consistent with the conditions recommended in the Planning Minister's Assessment. To avoid doubt, any agreement about conditions is subject always to the restrictions on conditions contained in sub-clause (14) and the requirement for the Secretary or his or her delegate to seek the agreement of the Minister administering the Environment Effects Act 1978 does not affect the responsibility of the Secretary or his or her delegate to exercise his or her discretion to determine the conditions where such agreement is not able to be obtained.

(13) The Secretary or his or her delegate must consult with the Company prior to imposing conditions under sub-clause (11).

(14) The Secretary or his or her delegate may not impose conditions on his or her approval of a mine extension plan which:

(a) have the effect of preventing the Company from conducting mining operations in the specified area;

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(b) require the Company to provide native vegetation offsets; or

(c) are otherwise inconsistent with the rights of the Company under this Agreement.

(15) The Company must comply with any conditions on the approval of a mine extension plan that are deemed to be incorporated in the work plan in accordance with sub-clause (11).

(16) The Company and the State must cooperate and consult regularly concerning the operation of this clause.

(17) To avoid doubt:

(a) the process specified in this clause applies to the approval of a mine extension within the specified area and as such does not require a variation to the work plan which could trigger the application of the Environment Effects Act 1978; and

(b) any mine extension which requires a variation to the work plan referred to in clause 21A will be dealt with in accordance with the Act and accordingly will be subject to all applicable legislative and regulatory requirements at the time (including the Environment Effects Act 1978)."

(x) Clauses 22 and 23

The heading to Division A of Part V and clauses 22 and 23 are omitted.

(y) Clause 25

The words "power station site" are deleted and replaced with "freehold land".

The word "is" is deleted after "proving that" and replaced with "it".

(z) Clause 26

In sub-clause 26(2)(a), the words "(other than clause 15)" are deleted.

(aa) Clause 27

The existing clause 27 is renumbered sub-clause 27(1).

In the renumbered sub-clause 27(1), "Arbitration Act 1958" is replaced with "Commercial Arbitration Act 1984".

A new sub-clause 27(2) is added after sub-clause 27(1):

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"(2) For the avoidance of doubt, Part II of the Act shall apply in relation to any "dispute" (as that term is defined in the Act) between the parties hereto."

(bb) Clause 28

The word "Notices" is inserted as a heading to clause 28.

Sub-clause 28(1) is deleted and replaced with:

"(1) Section 122 of the Act applies to any notice order demand or other writing authorized or required by this Agreement."


(cc) Annexure

The annexure to the Principal Agreement is removed and replaced with the annexure to this Agreement.

4. Restatement

The Principal Agreement as amended by this Agreement is set out in the Schedule.

5. Effective Date

This Agreement takes effect, and the parties agree to be bound by the Principal Agreement as amended by this Agreement, from the Effective Date.

6. Remaining Provisions Unaffected

Except as specifically amended by this Agreement, all terms and conditions of the Principal Agreement remain in full force and effect. With effect from the Effective Date, the Principal Agreement as amended by this Agreement is to be read as a single integrated document incorporating the amendments effected by this Agreement.

7. Governing Law

This Agreement is governed by the laws of Victoria.

8. Counterparts

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This Agreement may be executed in any number of counterparts. All counterparts together will be taken to constitute one instrument.

Executed in Melbourne

Signed by the Honourable Michael O'Brien for and on behalf of the State of Victoria as Minister for Energy and Resources in the presence of:

Witness Signature

JEFF ROSEWARNE

Print Name

Executed in accordance with section 127 of the Corporations Act 2001 by Alcoa of Australia Limited:

Director Signature Director/Secretary Signature

ALAN CRANSBERG MELANIE K BROWN

Print Name Print Name


"The plan lodged at the Central Plan Office and assigned plan number LEGL./11-019, a copy of which is attached to this Annexure, is the annexed plan referred to in the Agreement dated 22 November 1961 between the Honourable Wilfred John Mibus for and on behalf of the State of Victoria and Alcoa of Australia Limited (formerly Alcoa of Australia Proprietary Limited) as amended by an Amendment Agreement dated 19 October 2011 between the Honourable Michael O'Brien for and on behalf of the State of Victoria as Minister for Energy and Resources and Alcoa of Australia Limited."

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53

SCHEDULE

AGREEMENTTHIS AGREEMENT is made the twenty-second day of November One thousand nine hundred and sixty-one BETWEEN The Honorable WILFRED JOHN MIBUS in his capacity as Minister of Mines for the time being of the State of Victoria for and on behalf of THE STATE OF VICTORIA of the one part and ALCOA OF AUSTRALIA PROPRIETARY LIMITED a Company incorporated under the provisions of the Companies Act 1958 of the said State the registered office of which is situate at 120 William Street Melbourne in the said State of the other part.

Recitals

WHEREAS:

I. The Company is desirous of establishing in the State of Victoria the industries of reducing the ore of aluminium to its basic metal and of manufacturing alloying and fabricating the metal so produced into articles of commerce.

II. In view of the large capital expenditure involved in the establishment of those industries the Company desires to ensure that certain rights incidental to the establishment and carrying on of those industries will be assured to it.

III. The State is satisfied that a large capital expenditure is necessary to establish the said industries satisfactorily and that it is desirable in the interests of the State that subject to the provisions hereof the Company should be granted the rights hereinafter expressed.

IV. On the expiry of its initial term the State and the Company wish to extend, amend and restate this Agreement as provided in the Amendment Agreement.

NOW IT IS HEREBY AGREED as follows—

PART I—PRELIMINARY1. Definitions

In this Agreement unless inconsistent with the context or subject matter—

"the Act" means the Mineral Resources (Sustainable Development) Act 1990 of the Parliament of Victoria;

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"Amendment Agreement" means the agreement between the State and the Company amending and restating this Agreement in connection with the extension of this Agreement on the expiry of its initial term;

"base index number" means the index number for Melbourne for the June quarter of the year two thousand and ten shown in the Consumer Price Index published by the Australian Statistician;

"Chief Mining Inspector" means the person for the time being holding the office of the Chief Inspector appointed under the Act or performing the duties of that office;

"Company" means the said Alcoa of Australia Limited and includes its assigns;

"current index number" in respect of any year means the index number for Melbourne as at 30 June of that year as determined by the Australian Statistician on the basis of the said Consumer Price Index;

"date of commencement" means the date upon which this Agreement comes into operation by virtue of the provisions of clause 5 hereof;

"Department" means the Department of Primary Industries;

"freehold land" means land coloured blue on the plan annexed hereto being all the land contained in—

(a) certificate of title volume 8230 folio 618 known as Lot 1 on Title Plan 408603H (formerly known as part of Crown Allotment 10 Parish of Angahook); and

(b) certificate of title volume 8489 folio 766 known as Lot 2 on Plan of Subdivision 061660 (formerly known as part of Crown Allotment 10 Parish of Angahook),

which land is the subject of a minerals exemption granted pursuant to section 293 of the Mines Act 1958 on or about 19 August 1985;

"leased area" means the land (excluding the prior land and the purchased land) coloured green on the plan annexed hereto which contains (subject to survey) 7,145 hectares more or less;

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"Minister" means the responsible Minister of the Crown for the time being administering the Act;

"prior land" means the land coloured purple on the plan annexed hereto being all the land contained in certificate of title volume 5944 folio 708 known as Crown Allotments 63B1 and 64D in Parish of Jan Juc County of Grant, which land is the subject of a minerals exemption granted pursuant to section 293 of the Mines Act 1958 on or about 19 August 1985;

"purchased land" means the land coloured red on the plan annexed hereto being all the land contained in certificate of title volume 8876 folio 425 known as crown allotment 66 in Parish of Jan Juc County of Grant;

"regulations" means the regulations for the time being in force under the Act;

"Secretary" means the person for the time being holding the office of Secretary of the Department or performing the duties of that office;

"significant additional environmental impact" means a significant impact on—

(a) species of fauna or flora or ecological communities or their supporting habitat;

(b) beneficial uses of surface and ground waters; or

(c) the amenity of adjoining areas,

that is in addition to the impacts that already exist by virtue of the Company's existing mining operations at the time the mine extension plan is submitted;

"specified area" means the area designated as such in the plan lodged at the Central Plan Office and assigned plan number LEGL./11-281, being the area in which the Company is authorised to conduct mining operations under the work plan referred to in clause 21A (including the stage 1 area and any area in which the conduct of such mining operations is subject to the approval of a mine extension plan in accordance with the work plan);

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"stage 1 area" means the area identified as such in the work plan referred to in clause 21A in which the Company is authorised to conduct mining operations as at the date of the Amendment Agreement without the need to submit a mine extension plan for approval;

"State" means the State of Victoria;

"stone" has the same meaning as it has in the Mineral Resources (Sustainable Development) Act 1990 of the Parliament of Victoria;

"term of this Agreement" means the period specified in clause 6 hereof as extended from time to time pursuant to clause 7 hereof;

"water supply infrastructure" means pipelines, ground water extraction bores and any associated assets that support the supply of water;

"year" means a period of twelve calendar months commencing on the date of commencement or an anniversary thereof.

2. Interpretation

(1) In this Agreement unless inconsistent with the context or subject-matter references to any Act (including references to the Mineral Resources (Sustainable Development) Act 1990 by use of the expression "the Act") shall include all amendments and re-enactments thereof for the time being in force and all supplemental legislation for the time being in force whether by regulation rule proclamation or order made or continuing under that Act or any amendment or 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

(1) The Company may assign all or some of its rights under this Agreement with the written consent of the Minister.

(2) An assignment shall be conditional on the assignee executing a deed in a form approved by the Minister under which the assignee agrees to be responsible for the

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performance of each of the obligations and conditions imposed by this Agreement that correspond to the rights assigned to it by the Company.

(3) The Company shall be released from responsibility for the performance of each of the obligations and conditions of this Agreement that are assumed by an assignee by reason of sub-clause (2).

PART II—COMMENCEMENT, DURATION, EXTENSION AND VARIATION OF AGREEMENT

5. Commencement of Agreement

(1) This Agreement shall come into operation upon the first day of the calendar month following the date upon which the later of the following events occurs—

(a) the coming into operation of the Act referred to in Clause 3 hereof;

(b) the completion of the surrender of mineral leases numbered 7613, 7614, 7618, 7620, 7626, 7627, 7628 and 7629 in the records of the Department of Mines of the State and the abandonment of mineral lease applications numbered 7615, 7616, 7617, 7619, 7621, 7622, 7625, 7630, 7655, 7656, 7658, 7667 to 7676 (both inclusive), 7686, 7783, 7792, 7889 to 7897 (both inclusive), 7930, 7931, 7932 and 8023 in the said records.

(2) The certificate of the Minister as to the date upon which the surrender and abandonment as aforesaid was completed shall be conclusive.

6. Duration of Agreement

Subject to the provisions hereof this Agreement shall remain in force for the period of one hundred years from the date of commencement.

7. Extension of Agreement

(1) [Omitted]

(2) [Omitted]

(3) If—

(a) the Company not later than nine months prior to the expiration of the period specified in the last preceding clause makes written application to the Minister for the extension of the term of this Agreement for a

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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 extension as aforesaid upon the terms and conditions expressed in the notification by the Minister and shall thereupon become entitled to such extension. In the event of the Company failing so to accept such extension the State shall not within the period of two years after the expiration of the term of this Agreement grant or offer to any other person a licence for the purpose of mining for coal on or in the leased area on terms and conditions more favourable than those expressed in the said notification by the Minister.

(5) No extension or purported extension pursuant to this clause shall be of any force or effect unless evidenced by an instrument executed by the Minister on behalf of the State specifying the period of extension and any variations of the provisions hereof determined pursuant to this clause.

8. Variation of Agreement by Minister in certain event

If the Company has ceased or ceases to use coal from the leased area for the generation of electric power in the power generating station referred to in clause 19 hereof the Minister at any time thereafter may by an instrument under his or her hand vary the provisions of this Agreement in such manner as the Minister deems expedient in the interests of the State but so that the Company shall not be in a less favourable position than if it held licences for the purpose of mining for coal on the leased area in accordance with the provisions of the Act.

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PART III—RIGHTS AND OBLIGATIONS OF COMPANYDivision A—Coal Rights and Related Matters

9. Exclusive right of Company to coal

(1) During the term of this Agreement the Company shall subject to the provisions of sub-clauses (2) and (4) of this clause have—

(a) the exclusive right to search work mine for win carry away and dispose of for the use and benefit of the Company all coal on or in the leased area; and

(b) for the purposes aforesaid the rights on the leased area—

(i) to cut and construct races drains dams reservoirs roads and tramways, to divert control and use water and to do any other works incidental to the method of mining or winning coal from time to time adopted by the Company; and

(ii) to erect alter reconstruct remove or destroy offices buildings dwellings and machinery.

(2) The rights specified in the last preceding sub-clause shall be subject to the reservations following—

(a) the reservation to the State and members of the public of the free right at all times of ingress egress and regress (with or without vehicles and animals) over and along the surface of any part of the leased area not being worked or used for the purposes aforesaid; and

(b) the reservation to the State and all persons duly licensed in that behalf of the right to take carry away and use any stone or timber live or dead on in or under any part of the leased area not being worked or used for the purposes aforesaid.

(3) [Omitted]

(4) [Omitted]

10. Rent and royalty

(1) Subject to the succeeding provisions of this clause the Company shall during the term of this Agreement pay to the State in each year—

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(a) a rent calculated at the rate of 62 cents for each hectare (and proportionately for part of a hectare) of the leased area;

(b) in respect of each tonne of coal (not being unusable or unsaleable waste coal or rubbish) won from the leased area and used for the generation of electric power in connexion with the industries referred to in Recital I hereof or while the Company (whether alone or as part of a partnership or joint venture with others) is operating an aluminium smelting plant at Portland, a basic royalty at the rate of—

(i) 38.7203 cents when the total quantity of such coal won in any year does not exceed one hundred and one thousand six hundred tonnes;

(ii) 29.0686 cents when such total quantity exceeds one hundred and one thousand six hundred tonnes;

(c) in respect of each tonne of coal as aforesaid won from the leased area and used for the generation of electric power otherwise than in connexion with the industries referred to in Recital I hereof or while the Company (whether alone or as part of a partnership or joint venture with others) is operating an aluminium smelting plant at Portland, a royalty at the rate from time to time applicable to lignite under section 12A of the Act;

(d) in respect of each tonne of coal as aforesaid won from the leased area and sold or used by the Company for any purpose other than as specified in paragraph (b) or (c) of this clause, a basic royalty of 38.7203 cents.

(2) The said rent and basic royalties shall be paid by the Company clear of all deductions whatsoever to the Department of Primary Industries or its successor at Melbourne on behalf of the State as follows—

(a) as to the rent, by equal half-yearly payments in advance the first payment to be made on the date of commencement and succeeding payments on the first day of each half-yearly period thereafter;

(b) as to the basic royalties within thirty days after written demand therefor by or on behalf of the State in respect of each half-yearly period during the term of this Agreement.

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(3) If the total royalty payable under this clause in respect of coal won in any year exceeds the amount of the rent paid by the Company in that year the rent so paid shall be accepted by the State as part payment of that royalty.

(4) If the current index number for any year exceeds the base index number then the royalty payable in respect of coal won during that year, other than the royalty payable under sub-clause (1)(c), shall be calculated at a rate bearing the same proportion to the appropriate rate of royalty specified in sub-clause (1) of this clause as the current index number bears to the base index number.

(5) In the event of the Australian Statistician ceasing to publish the Consumer Price Index the last preceding sub-clause shall be modified from time to time by substituting for the method therein specified of determining increases in royalty rates such other method as the Secretary of the Department of Treasury and Finance of the State certifies in writing to be appropriate for determining those increases in similar manner to the method so specified.

(6) The difference between the amount of basic royalty paid or payable in respect of coal won in any year and the amount of royalty payable by virtue of the provisions of sub-clause (4) of this clause in respect of that coal shall be paid by the Company within thirty days after a written demand therefor by or on behalf of the State has been rendered to the Company.

(7) [Omitted]

(8) The Company may at any time by instrument under its common seal surrender to the State its rights under this Agreement as to the whole or part of the leased area and in the event of a partial surrender as aforesaid the said rent shall from the next following day fixed for payment of rent hereunder be reduced by a sum calculated at the rate of 62 cents for each hectare (and proportionately for part of a hectare) of land comprised in the partial surrender.

11. Records and information

The Company shall—

(a) keep proper records of the quantities of coal won from the leased area and of—

(i) the quantities of coal sold by it;

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(ii) the quantities of coal used for the purpose of generating electricity;

(iii) the quantities of coal used for other purposes—

and shall permit the Minister or any person authorized by the Minister in writing to inspect those records at all reasonable times and to take copies thereof or extracts therefrom;

(b) from time to time when requested so to do by the Minister supply the Minister with such information relating to the mining operations of the Company in or on the leased area the freehold land the prior land and the purchased land as the Minister may reasonably require;

(c) furnish to the Secretary within fourteen days after the end of each period of three months during the term of this Agreement a return verified by a director or the secretary of the Company showing in respect of that period particulars of the matters specified in paragraph (a) of this clause.

This clause does not limit the obligations of the Company with respect to the keeping of proper records under the Act. To the extent that there is an inconsistency between the requirements of this clause and the requirements of the Act with respect to the keeping of records, the requirements of the Act prevail.

Division B—Mining Operations and Related Matters

12. Manner of operations

(1) The Company shall—

(a) [omitted];

(b) [omitted];

(c) [omitted];

(d) [omitted];

(e) [omitted];

(f) [omitted];

(g) during the term of this Agreement but subject to the provisions of clause 25 hereof pay to the owner occupier or lessee from the Crown of any adjoining land such compensation in respect of any damage sustained by such owner occupier or lessee by reason

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of the Company's mining operations on in or under the leased area the freehold land the prior land or the purchased land as may be agreed upon by the Company with such owner occupier or lessee or with the Minister or failing any such agreement as may be determined by arbitration under the provisions hereof;

(h) [omitted];

(i) [omitted];

(j) in carrying out its mining operations on the leased area the freehold land the prior land or the purchased land, comply with the Act and all other statutory provisions applicable thereto except to the extent those provisions may be modified or excluded by this Agreement or the Act referred to in clause 3 hereof.

13. Use of leased area

The Company shall not—

(a) [omitted];

(b) [omitted];

(c) use or occupy or permit the leased area to be used or occupied for any purpose other than the exercise of the rights herein granted or for the pasturage of stock of or as garden ground for employees of the Company;

(d) [omitted];

(e) [omitted].

14. [Omitted]

Division C—[Omitted]

15. [Omitted]

Division D—Other Obligations and Rights

16. [Omitted]

17. Roads

(1) If any work proposed by the Company is likely to result in the severance or injury of any road (whether a public highway or not) or part thereof formed or constructed on the leased area the Company shall give notice to that effect to the municipal or other authority responsible for the care and management of the road or if there is no such authority to the Minister.

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(2) Such authority or the Minister (as the case may be) shall within two months after receipt of the said notice notify the Company whether or not it or the Minister requires the Company to construct an alternative road in lieu of the road or part thereof likely to be severed or injured and if so required the Company at its expense shall construct the alternative road to a standard equivalent to that of the road or part thereof it is intended to replace and in such location as such authority or the Minister may reasonably require.

(3) The Company shall not commence the work proposed as aforesaid until it has complied with the provisions of the last preceding sub-clause.

18. Water supply works

(1) Except with the prior written consent of Barwon Water the Company shall not carry out within fifteen metres of the water supply infrastructure lying within the leased area and which is vested in Barwon Water any mining operations or other operations likely to cause damage to that water supply infrastructure.

(2) Barwon Water in order to facilitate the Company's operations shall as soon as practicable after being requested by the Company in writing so to do remove the said water supply infrastructure or portion thereof to another location approved by Barwon Water.

(3) The Company shall pay to Barwon Water the cost of—

(a) removal of the said water supply infrastructure or portion thereof upon request of the Company as aforesaid;

(b) removal of the said water supply infrastructure or portion thereof where such removal is effected by Barwon Water in consequence of operations of the Company which although not requiring the consent of Barwon Water under sub-clause (1) of this clause endanger or are in the opinion of Barwon Water likely to endanger the said water supply infrastructure.

(4) Any additional water supply infrastructure installed or proposed to be installed by Barwon Water will be subject to individual agreement with the Company.

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(5) The Company shall have the rights for the purposes of this Agreement—

(a) to construct maintain and operate such works as may be approved by Southern Rural Water in or on the bed or banks or both bed and banks of the Anglesea River;

(b) to carry out such diversions of any river stream creek or watercourse or of any lake lagoon swamp or marsh within the meaning of the Water Act 1989 situate within the leased area the prior land and the purchased land as may be approved by Southern Rural Water.

19. Electricity Commission Works

(1) [Omitted]

(2) [Omitted]

(3) In respect of the generation and distribution of electricity by the Company from the power generating station hereinafter mentioned and of the smelting and fabrication of aluminium and the operation of ancillary services by the Company the Company shall have the rights—

(a) to erect construct operate and maintain on the prior land and the purchased land the said electric power generating station and ancillary services;

(b) to erect construct and maintain on in or over the leased area the prior land and the purchased land all such equipment as may be necessary for the distribution of electricity from the said power station;

(c) subject to the Mines (Aluminium Agreement) Act 1961, to compulsorily purchase take or use such land easement right or privilege in over or affecting any land as may be necessary for the erection ownership operation and maintenance of the electricity transmission line from the leased area the prior land and the purchased land or any one or more of them to the aluminium smelting and fabricating plant of the Company at Point Henry hereinafter mentioned;

(d) [omitted];

(e) to erect construct maintain and operate on the lands of the Company at Point Henry an aluminium smelting and fabricating plant and ancillary services.

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(4) Notwithstanding anything contained in this Agreement (other than sub-clause (5)) or in the State Electricity Commission Act 1958 the Land Act 1958 or any other Act of the Parliament of Victoria or regulations thereunder the rights conferred by paragraphs (a) and (b) of the last preceding sub-clause hereof shall continue for such period (not being less than the term of this Agreement) and upon such terms and conditions and subject to such provisions of the said Acts and regulations as are prescribed by Order of the Governor in Council.

(5) Paragraphs (a) and (b) of sub-clause (3) and sub-clause (4) shall cease to apply on the earlier of:

(a) the date on which the Company permanently ceases to operate an aluminium smelting and fabricating plant on the lands of the Company at Point Henry; and

(b) 1 August 2014,

provided that nothing in this clause shall be taken to prevent the Company from continuing to undertake the activities referred to in paragraphs (a) and (b) of sub-clause (3) to the extent it is permitted to do so without reference to this Agreement.

20. [Omitted]

PART IIIA – OBLIGATIONS OF THE STATE20A. The State shall –

(a) not impose nor take nor (insofar as it is competent to do so) permit nor authorize any of its agencies or instrumentalities or any local or other authority or Minister of the Crown or public statutory corporation of the State to take or cause to occur any action or combination of actions, including without limitation, the imposition of any taxes, rates or charges of any nature whatsoever, which –

(i) has the effect of modifying or subtracting from the Company's rights or adding to any of its obligations under this Agreement or any other agreement relating to the smelter at Point Henry;

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(b) not, without the consent of the Company, resume nor (insofar as it is competent do so) suffer nor permit to be resumed, other than for the purpose of "public construction" as defined in the Project Development and Construction Management Act 1994 (as amended), any of the works installations plant equipment or other property for the time being belonging to the Company and the subject of or used for the purpose of this Agreement where to do so would unduly prejudice or interfere with the Company's operations hereunder; and

(c) make such representations as may be necessary to the Commonwealth with respect to, and use its good offices in relation to, the remedy or amelioration of or removal by the Commonwealth of any adverse effect on the progress or cost of the construction and operation of the smelter at Point Henry or on that smelter, the Company, this Agreement or any other agreement relating to the smelter resulting from Commonwealth Government policies including, without limiting the generality of the foregoing, the imposition of import duties, as soon as practicable after the occurrence of such effect.

PART IV—APPLICATION OF CERTAIN ACTS21. Application of Act

(1) The Act so far as it is not inconsistent herewith shall with such adaptations as are necessary apply to this Agreement and the mining operations of the Company on the leased area the freehold land the prior land and the purchased land as if this Agreement were a mining licence granted under

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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) sections 12 and 12A of the Act, and any other provisions of the Act or another law that commence following the execution of the Amendment Agreement which relate to the subject matter of those sections, shall not apply to this Agreement;

(b) section 85 of the Act, and any other provisions of the Act or another law that commence following the execution of the Amendment Agreement which relate to the subject matter of that section, shall not apply to this Agreement.

21A. Deemed approved work plan

The work plan in relation to the leased area the freehold land and the prior land submitted by the Company to the Department and endorsed by the Department is deemed to be an approved work plan under the Act, and the Company is deemed to have a work authority in respect of that work plan. To avoid doubt, any future variation of the work plan will be dealt with in accordance with the Act.

21B. Application of the Aboriginal Heritage Act 2006

(1) For the avoidance of doubt—

(a) the Aboriginal Heritage Act 2006 and any regulations made under it shall, as far as reasonably practicable, apply to this Agreement and the operations of the Company on the leased area the freehold land the prior land and the purchased land;

(b) any variation of the work plan referred to in clause 21A will be dealt with in accordance with the Aboriginal Heritage Act 2006; and

(c) Part 4, Division 3 of the Aboriginal Heritage Act 2006 has no effect in respect of the endorsement of the work plan referred to in clause 21A by the Department.

(2) Before any mining activity authorised by the work plan referred to in clause 21A is undertaken on any part of the leased area the freehold land or the prior land, a cultural heritage management plan in respect of that area must be approved under Part 4 of the Aboriginal Heritage Act

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2006, except where the mining activity is within an area that has been subject to significant ground disturbance.

(3) The expressions 'cultural heritage management plan' and 'significant ground disturbance', as used in sub-clause (2), have the meaning given by the Aboriginal Heritage Act 2006.

21C. Application of Occupational Health and Safety Act 2004

The Company acknowledges that the Occupational Health and Safety Act 2004 and any regulations made under that Act apply to this Agreement and the mining operations of the Company on the leased area the freehold land the prior land and the purchased land.

21D. Mine extension process

(1) This clause applies if the Company proposes to extend its mining operations:

(a) outside the stage 1 area; or

(b) outside the area in which such operations are being conducted in accordance with a mine extension plan previously approved in accordance with this clause,

but within the specified area. Any such mine extension requires the approval of a mine extension plan by the Secretary or his or her delegate in accordance with the approval process specified in this clause and the work plan referred to in clause 21A.

(2) If this clause applies the Company must, prior to submitting a mine extension plan for approval, consider and analyse the available options for the mine extension. The options analysis prepared by the Company must specifically evaluate any potential significant additional environmental impacts as well as the potential measures to mitigate those impacts.

(3) Following completion of the options analysis described in sub-clause (2), the Company must submit a mine extension plan to the Department in accordance with the work plan, and include –

(a) a summary of the options analysis undertaken in accordance with sub-clause (2);

(b) an outline of the proposed mine extension and related environmental impact mitigation actions that would

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be implemented as part of the mine extension plan; and

(c) information identifying any potential significant additional environmental impacts likely to result from the mine extension after taking account of the actions proposed by the Company (as described in the submitted documentation) to mitigate the environmental impacts of the mine extension described in the mine extension plan.

(4) The Company may consult with the Department, the Department of Planning and Community Development and any other relevant State or Commonwealth government department concerning the mine extension plan and the coordination of the processes described in sub-clauses (2) and (3) with the process for any other State or Commonwealth approvals or permits required in connection with the mine extension.

(5) On receipt of the mine extension plan by the Department and following the Department's initial assessment of the plan, the Minister will refer the plan to the Minister administering the Environment Effects Act 1978 for advice regarding whether the proposed mine extension is likely to have a significant additional environmental impact, after taking account of the actions proposed by the Company to mitigate the environmental impacts of the mine extension described in the mine extension plan.

(6) The Minister, after considering the advice of the Minister administering the Environment Effects Act 1978, may advise the Company that he or she is satisfied that:

(a) the proposed mine extension is not likely to have a significant additional environmental impact, in which case the mine extension plan may be approved by the Secretary or his or her delegate in accordance with the process set out in the work plan without further regard to this clause; or

(b) the proposed mine extension is likely to have a significant additional environmental impact, in which case the mine extension plan must not be approved by the Secretary or his or her delegate until an environmental impact and management report ("EIMR") has been prepared to assess the likely significant additional environmental impact of the

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proposed mine extension described in the mine extension plan, in accordance with this clause and the work plan.

(7) If an EIMR is required, the Minister administering the Environment Effects Act 1978 must promptly specify the scope for the EIMR having regard to:

(a) any relevant Ministerial guidelines made under the Environment Effects Act 1978 (but only insofar as those guidelines relate to the significant additional environmental impacts that have been identified as being likely to result from the proposed mine extension);

(b) the objective of minimising any significant additional environmental impacts of the proposed mine extension in the context of enabling coal extraction;

(c) the objective of limiting consultation on the EIMR to sections of the public that have a material and established interest in the significant additional environmental impacts that have been identified as being likely to result from the proposed mine extension;

(d) the actions proposed by the Company to mitigate the environmental impacts of the mine extension described in the mine extension plan; and

(e) the requirements applicable to the process for obtaining any other concurrent State or Commonwealth approvals or permits required for the proposed mine extension.

(8) If required to do so under sub-clause (6), the Company must prepare an EIMR to assess the likely significant additional environmental impact of the proposed mine extension described in the mine extension plan, in accordance with the requirements of sub-clause (7).

(9) The Minister administering the Environment Effects Act 1978 may appoint one or more persons to advise him or her on the EIMR and the mine extension plan. However, any review by such person or persons must not involve a public hearing and must occur in a timely way.

(10) Following completion of the EIMR and any advice from a person or persons appointed under sub-clause (9), the Minister administering the Environment Effects Act 1978 must, within a reasonable period of time, provide an

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assessment of the EIMR ("Planning Minister's Assessment") to the Minister to inform the decision by the Secretary or his or her delegate with respect to any conditions to which the mine extension plan may be subject.

(11) In considering the mine extension plan the Secretary or his or her delegate must have regard to the Planning Minister's Assessment, and the geotechnical, practical and financial aspects of the proposed mine extension, and may, subject to sub-clauses (12), (13) and (14), impose on his or her approval of the mine extension plan conditions that achieve a balance between any recommendations made in the Planning Minister's Assessment and the geotechnical, practical and financial aspects of the mine extension plan. Any such conditions will be deemed to be incorporated in the work plan referred to in clause 21A.

(12) Should the Secretary or his or her delegate consider that a deviation from any of the conditions recommended in the Planning Minister's Assessment would be appropriate, the Secretary or his or her delegate will provide any relevant information and seek the agreement of the Minister administering the Environment Effects Act 1978 before imposing any conditions that are not substantially consistent with the conditions recommended in the Planning Minister's Assessment. To avoid doubt, any agreement about conditions is subject always to the restrictions on conditions contained in sub-clause (14) and the requirement for the Secretary or his or her delegate to seek the agreement of the Minister administering the Environment Effects Act 1978 does not affect the responsibility of the Secretary or his or her delegate to exercise his or her discretion to determine the conditions where such agreement is not able to be obtained.

(13) The Secretary or his or her delegate must consult with the Company prior to imposing conditions under sub-clause (11).

(14) The Secretary or his or her delegate may not impose conditions on his or her approval of a mine extension plan which:

(a) have the effect of preventing the Company from conducting mining operations in the specified area;

(b) require the Company to provide native vegetation offsets; or

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(c) are otherwise inconsistent with the rights of the Company under this Agreement.

(15) The Company must comply with any conditions on the approval of a mine extension plan that are deemed to be incorporated in the work plan in accordance with sub-clause (11).

(16) The Company and the State must cooperate and consult regularly concerning the operation of this clause.

(17) To avoid doubt:

(a) the process specified in this clause applies to the approval of a mine extension within the specified area and as such does not require a variation to the work plan which could trigger the application of the Environment Effects Act 1978; and

(b) any mine extension which requires a variation to the work plan referred to in clause 21A will be dealt with in accordance with the Act and accordingly will be subject to all applicable legislative and regulatory requirements at the time (including the Environment Effects Act 1978).

PART V—OTHER PROVISIONS AS TO COMPANY'S RIGHTS AND OPERATIONS

Division A—[Omitted]

22. [Omitted]

23. [Omitted]

Division B—Restriction of Rights

24. Restriction of rights in respect of Anglesea River etc.

Notwithstanding anything herein contained the Company shall not be entitled—

(a) to fence or otherwise enclose any part of the boundary of the leased area which coincides with or abuts on the left bank of the Anglesea River;

(b) to obtain a grant in fee simple of or to exercise any rights (other than under clause 18 hereof) hereunder on or in any part of—

(i) the bed or banks of the Anglesea River; or

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(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 freehold land the prior land the purchased land and its land at Point Henry shall—

(a) comply with accepted modern practice for the construction equipment and operation of works of a like nature;

(b) comply with any Act applicable to the construction equipment or operation of those works; and

(c) endeavour to avoid so far as is reasonable and practicable the creation of any nuisance—

and if the Company does so it shall not be liable for any nuisance which is not due to negligence on its part—

Provided that the Company shall have the onus of proving that it has complied with paragraphs (a), (b) and (c) of this clause and that it has not been negligent.

PART VI—OTHER PROVISIONS AFFECTING OPERATION OF AGREEMENT

Division A—Determination of Company's Rights

26. Determination of Agreement

(1) If at any time the Company enters into liquidation (other than a voluntary liquidation for the purpose of reconstruction and assignment of rights under this Agreement) the Minister may determine this Agreement.

(2) If—

(a) the Company at any time fails to comply with the terms and conditions of this Agreement; and

(b) the Minister having given to the Company at least six months' written notice requiring it to remedy that failure either wholly or so far as it is possible to do so within the period of the notice, the Company does not comply with the notice—

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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

(1) In the event of any dispute between the parties hereto in relation to or in respect of any matter arising under or out of this Agreement (other than a dispute as to any matter referred to in the last preceding clause) either party may give to the other written notice requiring the dispute to be submitted to arbitration within the period of thirty days thereafter unless meanwhile the dispute shall have been settled. In the event of the dispute not being settled within that period it shall forthwith be referred to arbitration in accordance with the Commercial Arbitration Act 1984.

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(2) For the avoidance of doubt, Part II of the Act shall apply in relation to any "dispute" (as that term is defined in the Act) between the parties hereto.

28. Notices

(1) Section 122 of the Act applies to any notice order demand or other writing authorized or required by this Agreement.

(2) [Omitted]

IN WITNESS whereof the parties hereto have executed this Agreement the day and year first before written.

Signed Sealed and Delivered by the said WILFRED JOHN MIBUS in the presence of

(Sgd.) R. W. TERRY

(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.) B. G. BRETT, Secretary.

(Seal.)


"The plan lodged at the Central Plan Office and assigned plan number LEGL./11-019, a copy of which is attached to this Annexure, is the annexed plan referred to in the Agreement dated 22 November 1961 between the Honourable Wilfred John Mibus for and on behalf of the State of Victoria and Alcoa of Australia Limited (formerly Alcoa of Australia Proprietary Limited) as amended by an Amendment Agreement dated 19 October 2011 between the Honourable Michael O'Brien for and on behalf of the State of Victoria as Minister for Energy and Resources and Alcoa of Australia Limited.

═══════════════

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ENDNOTES

1. General InformationThe Mines (Aluminium Agreement) Act 1961 was assented to on 12 December 1961 and came into operation on 12 December 1961.

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2. Table of AmendmentsThis Version incorporates amendments made to the Mines (Aluminium Agreement) Act 1961 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Alcoa (Portland Aluminium Smelter) (Amendment) Act 1984, No. 10115/1984Assent Date: 30.10.84Commencement Date: Ss 16, 17 on 30.10.84: s. 2(1)Current State: This information related only to the provision/s

amending the Mines (Aluminium Agreement) Act 1961

Mines (Aluminium Agreement) Amendment Act 2011, No. 68/2011Assent Date: 29.11.11Commencement Date: Ss 5–9, 11, 12 on 30.11.11: s. 2Current State: This information related only to the provision/s

amending the Mines (Aluminium Agreement) Act 1961

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Endnotes


79

3. Explanatory DetailsNo entries at date of publication.

Endnotes


80

Documents

Mines (Aluminium Agreement) Act 1961FILE/61-6829a003.docx · Web viewOCPC-VIC, Word 2007, Template Release 2010 V5.01