Alumina Refinery (Pinjarra) Agreement Act 1969 (Western Australia)

Mechanically, the Alumina Refinery (Pinjarra) Agreement Act 1969 (the Act) does three things: it reproduces the contract between the State of Western Australia and Western Aluminium No Liability (the Company) in the First Schedule and declares that that contract is ratified (s 2(1)); it gives statutory force to that contract by directing that its provisions shall be carried out and take effect as though they had been enacted in the Act (s 2(2)); and it ratifies or incorporates a sequence of supplementary agreements that amend or vary the original contract (ss 3-6 and s 1A). The Act therefore converts a negotiated agreement into a statute‑backed legal instrument, and subsequent supplements and amendments are incorporated by reference through the schedules and s 1A definitions.

At a second layer, the First Schedule reproduces the operative contract terms that allocate specific rights, obligations and commercial entitlements between the parties: the Company undertakes to construct and operate an alumina refinery near Pinjarra and to provide port, rail, road, water, electricity, waste containment and related facilities (First Schedule, Clauses 4, 7, 8, 4(2)(a)-(k), 4(5)-(9)). The State undertakes to dredge and reclaim Bunbury harbour, to grant leases, licences and easements (including pipeline authorisations), to provide railway services and port services, and to procure certain statutory approvals and exemptions (First Schedule, Clauses 3, 5(1)-(6), 6, 10). The agreement alters fiscal arrangements: royalties and freight/wharfage schedules are adjusted, and a royalty on alumina is introduced with an escalation mechanism and periodic review (First Schedule, Clause 14).

The supplementary agreements (Second, Third and Fourth Schedules as inserted by later amending Acts) change core financial and infrastructure obligations. The 1972 supplement adjusts the freight rate adjustment mechanism (Second Schedule). The 1976 supplement materially alters the Bunbury dredging contribution and adds a company surcharge and a new graduated wharfage schedule (Third Schedule; see especially the changes to Clause 4(2)(c), the addition of paragraph (cc), and the new Clauses 4A and 4B). The 1978 extract (Fourth Schedule) modifies the Bunbury Port Authority Act to enable leases and licences consistent with the agreement (Fourth Schedule, clause 5A). The Act also provides procedural hooks for registration of pipeline easements and makes the agreement operate notwithstanding other Acts (First Schedule, Clause 2(3); Third Schedule, Clause 16 applying s 33A Public Works Act procedures).

CrestWestern Australia

Alumina Refinery (Pinjarra) Agreement Act 1969

Western Australia

Alumina Refinery (Pinjarra) Agreement Act 1969

Contents

Short title 1

1A. Interpretation 1

Ratification of agreement 2
Ratification of supplementary agreement 2
Ratification of second supplementary agreement 2
Third supplementary agreement 2
Fourth supplementary agreement 3

First Schedule — Alumina Refinery (Pinjarra) Agreement

Second Schedule — First supplementary agreement

Third Schedule — Second supplementary agreement

Fourth Schedule — Extract from third supplementary agreement

Notes

Compilation table 39

Defined terms

Western Australia

Alumina Refinery (Pinjarra) Agreement Act 1969

An Act to ratify an agreement between the State and Western Aluminium No Liability, for the establishment of a refinery near Pinjarra to produce alumina and for incidental and other purposes.

1. Short title

This Act may be cited as the Alumina Refinery (Pinjarra) Agreement Act 1969 1.

1A. Interpretation

In this Act, unless the contrary intention appears —

the agreement means —

(a) in section 2(1), the agreement of which a copy is set forth in the First Schedule; and

(b) except as provided in paragraph (a), the agreement referred to in that paragraph as amended by the first supplementary agreement, the second supplementary agreement, the third supplementary agreement, and the fourth supplementary agreement;

the first supplementary agreement means the agreement of which a copy is set forth in the Second Schedule;

the second supplementary agreement means the agreement of which a copy is set forth in the Third Schedule;

the third supplementary agreement means the agreement set out in the Schedule to the Alumina Refinery (Wagerup) and Acts Amendment Act 1978, a copy of clause 20 of which is set forth in the Fourth Schedule;

the fourth supplementary agreement means the agreement of which a copy is set forth in the Schedule to the Alumina Refinery Agreements (Alcoa) Amendment Act 1987.

[Section 1A inserted: No. 48 of 1972 s.2; amended: No. 116 of 1976 s.2; No. 15 of 1978 s.9; No. 86 of 1987 s.11.]

2. Ratification of agreement

(1) The agreement, a copy of which is set out in the First Schedule, is ratified.

(2) Notwithstanding any other Act or law the agreement shall, subject to its provisions, be carried out and take effect as though those provisions had been expressly enacted in this Act.

[Section 2 amended: No. 48 of 1972 s.3.]

3. Ratification of supplementary agreement

The first supplementary agreement is ratified.

[Section 3 inserted: No. 48 of 1972 s.4; amended: No. 116 of 1976 s.3.]

4. Ratification of second supplementary agreement

The second supplementary agreement is ratified.

[Section 4 inserted: No. 116 of 1976 s.4.]

5. Third supplementary agreement

The agreement is amended and shall be read and construed in accordance with the provisions of the third supplementary agreement.

[Section 5 inserted: No. 15 of 1978 s.10.]

6. Fourth supplementary agreement

The agreement is amended in accordance with the fourth supplementary agreement.

[Section 6 inserted: No. 86 of 1987 s.12.]

First Schedule — Alumina Refinery (Pinjarra) Agreement

[s. 1A]

[Heading amended: No. 19 of 2010 s. 4.]

THIS AGREEMENT UNDER SEAL is made the 30th day of September One thousand nine hundred and sixty‑nine BETWEEN THE HONOURABLE SIR DAVID BRAND, K.C.M.G., M.L.A., Premier and Treasurer of the State of Western Australia acting for and on behalf of the Government of the said State and its instrumentalities (hereinafter referred to as “the State”) of the one part and WESTERN ALUMINIUM NO LIABILITY a company duly incorporated under the Companies Statutes of the State of Victoria and having its principal office in that State at 155 Queen Street Melbourne and having its registered office in the State of Western Australia at Hope Valley Road Kwinana (hereinafter referred to as “the Company” which term shall include its successors and permitted assigns) of the other part.

WHEREAS:

(a) the parties are the parties to the agreement between them defined in section 2 of the Alumina Refinery Agreement Act 1961‑1967 of the State of Western Australia (which agreement is hereinafter referred to as “the principal agreement”);

(b) the Company has pursuant to the principal agreement established at Kwinana a refinery, a berth and other services and facilities relating to the foregoing;

(c) the Company desires to establish an additional refinery near Pinjarra and related facilities for the production and shipment of alumina;

(d) it is desired to make provision for the grant of additional rights to and the undertaking of additional obligations by the Company as hereinafter provided;

(e) the Company agrees to investigate in due course the feasibility of establishing within the State an industry for smelting alumina produced from ore mined within the State by the Company;

(f) it is desired to add to and amend the principal agreement as hereinafter provided

NOW THIS AGREEMENT WITNESSETH:

Interpretation.

In this agreement subject to the context —

“access channel” means the channel to be dredged as hereinafter provided to provide access for shipping to the new inner harbour at the port of Bunbury;

“berth” means the berth to be constructed in the new inner harbour including the supporting structure for the shiploader, to be constructed by the Company pursuant to Clause 4(2)(a) hereof and includes the land approaches and ancillary equipment thereto;

“Bunbury Port Authority” means the Bunbury Port Authority constituted by the Bunbury Port Authority Act 1909;

“inner harbour” means the new harbour to be constructed by the State at the port of Bunbury;

“new commencement date” means the date referred to in Clause 2(1) hereof;

“Pinjarra refinery” means a refining plant at or near Pinjarra in which bauxite is treated to produce alumina;

“Pinjarra refinery site” means the site on which the Pinjarra refinery is to be situated as delineated and coloured red on the plan marked “A” (initialled by the parties hereto for the purposes of identification) together with any land, within the area delineated and coloured blue on the said plan, which may be subsequently acquired by or on behalf of the Company and such other land as may be agreed upon between the parties from time to time;

“port” means the port of Bunbury;

“private railway” means a railway owned and operated by the Company for the purposes of this Agreement and which is not an extension to or a connection with a railway as defined in either the Government Railways Act 1904 or the Public Works Act 1902;

“Ratifying Act” means the Act to ratify this Agreement and referred to in Clause 2 hereof;

“smelter” means an electrolytic reduction plant for the conversion of alumina to aluminium using alumina produced from bauxite;

“this Agreement hereof” and “hereunder” refer to this Agreement whether in its original form or as from time to time added to, varied or amended;

words and phrases to which meanings are given under Clause 2 of the principal agreement (other than words and phrases to which meanings are given in this Agreement) shall have the same respective meanings in this Agreement as are given to them under Clause 2 of the principal agreement.

Ratification and Operation.

(1) The provisions of this Agreement other than Clause 3 hereof shall not come into operation until the Bill referred to in Clause 3 hereof has been passed by the Parliament of Western Australia and comes into operation as an Act.

(2) If the said Bill is not passed this Agreement will then cease and determine and neither of the parties hereto will have any claim against the other of them with respect to any matter or thing arising out of, done, performed or omitted to be done or performed under this Agreement.

(3) On the said Bill commencing to operate as an Act all the provisions of this Agreement shall operate and take effect notwithstanding the provisions of any Act or law.

Initial Obligations of the State.

The State shall —

(a) introduce and sponsor a Bill in the Parliament of Western Australia to ratify this Agreement and endeavour to secure its passage as an Act prior to the 31st day of December, 1969; and

(b) to the extent reasonably necessary for the purposes of this Agreement allow the Company to enter upon Crown lands (including land the subject of a pastoral lease) and survey possible sites for its operations under this Agreement.

Obligations of the Company.

The Company covenants with the State that the Company shall —

(1) having given written notice to the State of its intention to proceed, commence to construct the Pinjarra refinery and thereafter continue such construction and by the 30th day of June, 1973 complete and have in operation the first stage of the Pinjarra refinery with a capacity to produce not less than two hundred thousand (200,000) tons of alumina per annum PROVIDED THAT if the Company shall in writing reasonably demonstrate to the Minister that it has used its best endeavours to negotiate the finance required to construct the Pinjarra refinery and to complete the sales contracts necessary for the sale of alumina produced at the Pinjarra refinery to make the Company’s project economically practicable, but because of prevailing finance and/or market conditions it has been unsuccessful, the Minister shall grant the Company such extensions of time as are appropriate to the situation PROVIDED FURTHER that nothing in this subclause shall limit the effect of Clause 29 of the principal agreement or Clause 11 hereof.

Port facilities.

(2) (a) in accordance with plans and specifications providing for the efficient loading of alumina submitted by the Company and approved by the State establish on land and water areas leased or occupied under terms of license or easement from the Bunbury Port Authority at the cost of the Company as from time to time required for the Company’s operations the berth, shiploader conveyors, storage bins, railway sidings and ancillary facilities for the storage, handling and shipment of alumina. If the said works and facilities are not by then completed the Company may not later than the 31st day of December, 1975 make application to the Minister for an extension of time and if the Company shall reasonably demonstrate that it has not then but will within a reasonable time have a need for such works and facilities, the Minister shall grant such extension of time as is appropriate to the situation. If the Company is not granted an extension of time, or in the event that the Company does not complete the said works and facilities within such extended time as may be granted by the Minister, the Company shall (without affecting its obligations under paragraph (c) of this subclause) lose its rights to establish port facilities under the provisions of this Agreement.

Use of Port.

(b) in accordance with its overall operating requirements use the new inner harbour at the port as one of its bulk handling and shipping terminals for export of alumina produced at the Company’s refineries;

Dredging contribution.

(c) pay to the State the sum of one million five hundred thousand dollars ($1,500,000) being the Company’s agreed contribution under a contract to be entered into by the State for dredging the access channel and turning basin and berth at the port to a depth of thirty‑six (36) feet and reclamation of adequate areas of land for establishment of the Company’s bulk handling terminal facilities at the port. As and when each progress payment falls due for payment under the said contract the State shall inform the Company in writing what is the Company’s due proportion of the payment and the Company shall forthwith pay its proportion to the State

PROVIDED THAT the total of such payments under this paragraph by the Company shall not exceed one million five hundred thousand dollars ($1,500,000)

PROVIDED ALWAYS that any obligation of the Company under this paragraph shall terminate if by the 31st day of December, 1975 or such later date as the parties may agree the State has not completed the work referred to in paragraph (a) of subclause (4) of Clause 5 hereof.

Contribution for additional dredging.

(d) in the event of the Company desiring to use vessels requiring a greater depth of water than thirty‑six (36) feet and/or a greater width of access channel than four hundred (400) feet pay to the State an amount to be agreed towards the additional dredging necessary PROVIDED THAT in the event of the State or the Bunbury Port Authority receiving contributions towards such additional dredging from other users of the port the State shall, having regard to the resulting benefits of such dredging to all users of the port requiring a depth greater than thirty‑six (36) feet and the contributions made by such users, return to the Company such part of the Company’s contribution as is equitable;

Rental.

(e) pay to the Bunbury Port Authority an annual rental of two hundred dollars ($200) per acre for land leased to the Company at the port;

Wharfage.

(f) throughout the continuance of this Agreement pay to the Bunbury Port Authority a wharfage charge of fifteen (15) cents on every ton of alumina loaded into ships at the berth

PROVIDED THAT: —

Escalation of wharfage.

(i) the wharfage charge per ton shall at the beginning of the fourth year of the Company’s operations at Bunbury and at the beginning of every third year thereafter be increased or decreased by a sum to be agreed to cover the increased or decreased cost to the Bunbury Port Authority reasonably applicable to the Company’s operations;

(ii) the wharfage charge payable in any calendar year shall be decreased by three (3) cents per ton from the date in the year by which the Company’s total shipments of alumina from the port exceed eight hundred thousand (800,000) tons and if:

(I) a company in addition to the Company has contributed towards the cost of the dredging referred to in paragraph (c) of subclause (2) of this Clause and the total tonnage of bulk materials passing through the inner harbour exceeds two million (2,000,000) tons in the year; or if

(II) more than one company in addition to the Company has contributed as aforesaid and the said total tonnage exceeds one million five hundred thousand (1,500,000) tons in the year;

(iii) after the Company has made an additional payment pursuant to Clause 4(2)(d) hereof the wharfage charge payable by the Company shall be reduced by an amount per ton which is equitable having regard to the amount of such contribution the increased throughput of the Company and the reduction in unit wharfage costs resulting from the increased capacity of the port arising out of the increased depth of water and improved access.

Other charges.

(iv) payment of the charges in this paragraph shall not excuse payment of the usual charges from time to time prevailing made or caused to be made by the State against vessels using the berth in respect of the usual services rendered to vessels by the State or any agency instrumentality or local or other authority in or of the State and including such conservancy and pilotage charges or dues as are payable from time to time pursuant to the provisions of any Act;

Use of berth and facilities by third parties.

(g) provided the use of the berth shall not interfere with the Company’s own requirements in regard thereto the Company will permit the berth (but not the Company’s bulk loading and other facilities) to be used by any other person for the handling of inward and outward cargo belonging to that person. The Company and the Bunbury Port Authority shall from time to time mutually agree upon terms and conditions (including charges) for such handling and if required by the Bunbury Port Authority the Company shall act as its agents for and in relation to the collection of such charges and shall remit to the Bunbury Port Authority the portion thereof which shall be payable to the Bunbury Port Authority. The Company may in addition to allowing any other person to use that part of the berth as aforesaid, permit, in its sole discretion, such other person to use the Company’s bulk loading and other facilities at the berth on reasonable terms and conditions;

Notice to Bunbury Port Authority.

(h) at all times and from time to time give such notices to the Bunbury Port Authority as it may reasonably require concerning the respective dates and times a ship is expected to arrive at and depart from the berth;

Export License.

(3) make all necessary applications from time to time to the Commonwealth for the grant to the Company of a license or licenses under Commonwealth law for the export of alumina or aluminium;

Private roads.

(4) be responsible for the cost construction and maintenance of any private roads required to be constructed for the Company’s operations hereunder;

Disposal of red mud.

(5) dispose of red mud and all other effluent from the Pinjarra refinery and contain such red mud and effluent on and within the boundaries of the Pinjarra refinery site in a manner agreed between the parties from time to time;

Pollution.

(6) take such action to prevent the pollution of rivers and underground water as may be agreed between the parties from time to time;

Drainage.

(7) adequately drain the Pinjarra refinery site and related facilities and dispose of such drainage in accordance with plans and specifications to be submitted by the Company and approved by the State;

Forests.

(8) as may be reasonably required by the Conservator from time to time, take adequate measures at the Company’s expense for the progressive restoration and re‑afforestation of the forest destroyed, the prevention of soil erosion and formation of deep water pools, and such safety measures;

Railways.

(9) (a) transport by rail all alumina for shipment by sea produced from the Company’s refineries (other than alumina produced; at Kwinana and shipped through the Company’s wharf at Kwinana) to Bunbury and/or Kwinana;

Rail transport.

(b) transport by rail not less than forty million (40,000,000) tons of bauxite to the Kwinana refinery from the Jarrahdale rail head and all the Company’s requirements of bauxite from any additional or substitute rail head as a result of the extension of the Company’s mining operations;

(c) transport by rail all the Company’s requirements of caustic soda and fuel oil from Kwinana and/or Bunbury to Pinjarra and or to any rail head at a refinery site approved by the Minister until such time as a pipeline is installed for the transport of such products hereunder;

(d) transport by rail all the Company’s requirements of lime, limestone and starch if the parties agree that the tonnages distances and economics involved warrant the use of rail.

PROVIDED THAT the obligations referred to in paragraphs (a) (b) (c) and (d) of this subclause shall not apply during any period in which the State for any reason shall be unable to transport the Company’s daily requirements by rail;

Upgrading.

(e) advance to the State a sum or sums to be agreed between the parties towards the cost of upgrading the existing railway from Pinjarra to Bunbury and/or Kwinana according to a mutually acceptable programme. Any advances made pursuant to this paragraph shall be repaid on terms and conditions (including the rate of interest) to be agreed between the parties at the time;

Rolling stock.

(f) if required by the Railways Commission provide sufficient locomotives and rolling stock (to a design and specification approved by the Railways Commission) to carry all of the Company’s rail freight and to lease such locomotives and rolling stock to the Railways Commission on such terms and in such form as may be agreed by the parties;

Other facilities.

(g) provide and maintain sidings, adequately staffed loading and unloading facilities, all terminal services, including shunting loops, spurs and other connections at and to all loading and unloading points;

(h) ensure that all wagons are properly trimmed and loaded to prescribed tonnages;

(i) provide a forward pattern of working with the Railways Commission and give not less than three (3) months notice in writing to the Railways Commission of any change in the Company’s railway transport requirements;

Freight rates.

(j) pay the freight rates set out in the schedule of rates hereto by monthly payments on the basis of anticipated or provisional tonnage subject to annual adjustment after the expiration of that year. In ascertaining the number of tons transported for the purpose of adjustment in rail freights railway weighbridge weights or such alternative method of measuring as is mutually agreed shall be used;

Loading and unloading operations.

(k) be responsible for all loading and unloading operations on all Company spurs and sidings and may for this purpose undertake its own shunting;

Carriage at Company’s risk.

And the company hereby acknowledges that unless the parties agree otherwise all goods carried for the Company shall be at the risk of the Company and subject to the by‑laws made under the Government Railways Act 1904 insofar as such by‑laws are not inconsistent with this Agreement;

Use of local labour and materials.

(10) so far as reasonably and economically practicable use labour available within the State and give preference to bona fide Western Australian manufacturers and contractors in the placement of orders for works materials plant equipment and supplies where price quality delivery and service are equal to or better than that obtainable elsewhere. In calling tenders and/or letting contracts for works materials plant equipment and supplies required by the Company the Company will ensure that bona fide Western Australian manufacturers and contractors are given reasonable opportunity to tender quote or otherwise be properly considered for such works materials plant equipment and supplies;

Housing.

(11) provide (at such prices rentals or charges as are fair and reasonable under the circumstances) such services and facilities including housing assistance as may be necessary for the proper and reasonable accommodation health and recreation of workers employed by the Company and of contractors engaged in carrying out the Company’s operations under this Agreement,

State’s obligations.

The State covenants with the Company that the State shall —

Road Licenses.

(1) (a) ensure that subject to the provisions of paragraphs (a) (b) (c) and (d) of subclause (9) of Clause 4 hereof and subject to the payment by the Company of appropriate fees, the Commissioner of Transport under the Road and Air Transport Commission Act 1966 will not refuse to grant and issue to the Company (or suppliers to or contractors with the Company and subcontractors of such contractors approved by the State) a license to transport by road goods and materials required for the construction repair operation and maintenance of the Pinjarra refinery within the area bounded by a circle having a radius of fifty (50) miles from the Pinjarra refinery site;

(b) permit all goods and materials of the Company other than those referred to in paragraph (a) of this subclause to move by road subject to the provisions of the Road and Air Transport Commission Act 1966;

(c) ensure that the appropriate fees charged to the Company for licenses under the Road and Air Transport Commission Act 1966 will not be such as to discriminate against the Company its suppliers contractors and subcontractors;

Repair and maintenance.

(2) maintain service repair and where necessary replace at the expense of the State locomotives and rolling stock provided by the Company under paragraph (f) of subclause (9) of Clause 4 hereof except where such locomotives and rolling stock are damaged as a result of the negligence of the Company or its servants or agents;

Transport of goods by rail.

(3) transport over its railways from time to time existing all ore alumina and other goods and materials which the Company upon reasonable notice to the State requires the State to transport;

Dredging.

(4) (a) dredge an access channel at least four hundred (400) feet wide and thirty‑six (36) feet deep below port datum and a turning basin and berth at least one thousand six hundred (1,600) feet wide and thirty‑six (36) feet deep to provide a new inner harbour at the port and use its best endeavours to complete such dredging within twenty‑four (24) months of the date that the State enters into a contract for the required dredging and reclamation;

(b) at the Company’s written request and subject to agreement being reached as to the amount payable by the Company under paragraph (d) of subclause (2) of Clause 4 hereof, dredge the access channel, the turning basin and berth to an agreed depth greater than thirty‑six (36) feet and shall use its best endeavours to complete such dredging with a minimum of delay;

Reclamation.

(c) reclaim to a level above port datum to be agreed between the parties adequate areas of land adjoining the northern boundary of the new inner harbour to accommodate the Company’s shipping terminal facilities including the wharf, storage bins, conveyors and railway sidings, and use its reasonable endeavours to complete such reclamation within twenty‑four (24) months of the date that the State enters into a contract for the required dredging and reclamation;

Lease.

(d) cause a lease to be granted to the Company over an agreed area of land for the purpose of establishing bulk handling and shipping terminal and ancillaries at a rental computed at the rate of two hundred dollars ($200) per acre per annum provided that the cost of any boundary survey required by the State be paid by the Company;

License.

(e) cause a license to be issued to enable the Company to use railway sidings adjoining its lease under paragraph (d) of this subclause;

(f) grant in favour of the Company a license to enable the Company to erect maintain and use a conveyor to convey alumina from the Company’s stockpile area to the berth;

Port services.

(g) cause usual services to be provided at the port to the Company and vessels entering or using or leaving port and carrying alumina produced by the Company provided such services are paid for;

Rates.

(h) ensure that discriminatory rates are not levied at the port against the Company or vessels carrying alumina produced by the Company;

Supply of natural gas.

(5) subject to the provisions of any Act from time to time in force relating to the construction operation and maintenance of pipelines for the conveyance of natural gas, in the absence of established distribution facilities for natural gas, and if required by the Company, grant a pipeline authorization to the Company or to a third party, approved by the State, acting on behalf of the Company for the purposes of this Agreement, on such terms as may be agreed between the parties (including such terms as to payment as will enable the State to be reimbursed for the cost of granting the authorization) to permit the Company to construct and operate a connecting pipeline for the conveyance of natural gas to the Company’s refineries;

Easements. Conveyor system.

(6) (a) grant to the Company on such terms as the parties hereto agree such easements as may be necessary to enable the Company to install and operate a conveyor system and/or a private railway in and from any area of land being mined to the Pinjarra refinery site;

(b) subject to the provisions of any Act from time to time in force relating to the construction operation and maintenance of pipelines for the conveyance of petroleum, and in the absence of any suitable established pipeline facility capable of transporting oil and/or caustic for the Company on an economically viable basis consider any proposal submitted by the Company to transport oil and/or caustic by pipeline to the Company’s refineries. Within two (2) months after receipt of the Company’s proposal the Minister shall give to the Company notice either of his approval of the proposal, or of alterations desired thereto and in the latter case shall afford to the Company opportunity to consult with and to submit a new proposal to the Minister. The Minister may make such reasonable alterations to or impose such reasonable conditions on the proposal or new proposal (as the case may be) as he shall think fit, having regard to the circumstances but the Minister shall in any notice to the Company disclose his reasons for any such alteration or condition. Within two (2) months of the receipt of the notice the Company may elect by notice to the State to refer to arbitration and within two (2) months thereafter shall refer to arbitration (as provided in Clause 31 of the principal agreement as amended by Clause 14(3) hereof) any dispute as to the reasonableness of any such alteration or condition. If the question is decided in favour of the Company the decision will take effect as a notice by the Minister that he is so satisfied with and approves the matter or matters the subject of the arbitration.

Pinjarra townsite development.

(1) (a) The Company shall take reasonable measures to purchase or lease land required for the purposes of this Agreement.

(b) If so required by the Company the State may make available to the Company Crown land if conveniently available and/or land acquired or resumed on behalf of the Company for the purposes of this Agreement. The price at which such land shall be sold to the Company shall in the case of land acquired or resumed be based on the actual cost incurred by the State and in the case of Crown land be at a reasonable price to be agreed between the parties. In addition to the foregoing the State shall include in the cost of all land sold to the Company an amount to cover the cost to the State of sub‑dividing the land including the cost of servicing individual lots comprised in the land sold, with water, sewerage, drainage, roads and footpaths. The Company shall pay the State in respect of all land sold to the Company the purchase price in full within one (1) month of the date on which the State is able to give the Company title to the land.

(2) The parties recognise that as a consequence in part of the progressive development of the Pinjarra refinery and related facilities at the Pinjarra refinery site the need will progressively develop at Pinjarra for additional housing accommodation services and works, including sewerage treatment works, water supply head works, main drains, education, hospital and police services. The Company accepts the principle of fair and reasonable sharing by it of the costs of establishing such services and works having regard to the benefits flowing to the State, the community, the Company and others therefrom. Furthermore, the Company undertakes to participate by means of purchase, leasing or other arrangements for its own needs and those of its staff and employees and contractors engaged in the mining and refining operations of the Company in any housing or land development scheme sponsored or approved by the State in Pinjarra or in the immediate neighbourhood.

Water.

(1) To enable the Company to meet its projected daily requirements of water at Pinjarra, the Company shall furnish a full report on the result of its investigations as to the amount of subterranean water available from bores or wells to be constructed on the Company’s land at the Company’s expense.

(2) The State shall if it is satisfied with the report referred to in subclause (1) of this Clause grant to the Company under the Rights in Water and Irrigation Act 1914 a license to permit the Company to draw water up to a specified maximum annual quantity PROVIDED THAT the State may in consultation with the Company, having regard to the performance of the aquifer, amend the license from time to time.

(3) The parties recognise that as development of the aquifer will be at the expense of the Company and primarily for the purpose of the Company’s operations the Company should at all times be entitled to a first call on water from the aquifer situated within the land delineated and coloured red and blue on the said plan marked “A” and from any alternative source of supply developed by and at the expense of the Company for the purposes of such operations. Subject to the foregoing, should at any time there not be available for any cause including an amendment of the license granted under subclause (2) of this Clause an adequate supply of water for the Company’s requirements, the State will promptly use reasonable endeavours to establish an alternative or supplementary supply. The Company will contribute a fair and reasonable proportion of the costs involved in providing such requirements.

Electricity.

(1) The Company is authorized to generate electricity for its own use in respect of and within any approved alumina refinery site and may from time to time serve notice on the State Electricity Commission that it desires to transmit power generated at any such refinery to another site (other than a refinery) owned, leased or held by the Company for the purpose of operating electric motors driving pumps, crushers, conveyors or other equipment. The notice shall set out the engineering details of the proposed works and a plan of the route of the proposed transmission lines to be erected within an easement granted to the Company for the construction of the conveyor belts and/or pipelines.

(2) Within three (3) months of receipt of the notice referred to in subclause (1) of this Clause the said Commission may grant approval to the Company to construct operate and maintain the transmission line the subject of the notice and may attach to such approval such technical requirements as the Commission sees fit having regard to the experience in this field of the Company and any associated company.

(3) In constructing, maintaining and operating the transmission line and the motors and equipment supplied by the transmission line the Company shall comply with the technical requirements of the Electricity Act and Regulations and the Wiring Rules of the Standards Association of Australia.

(4) In the event of a dispute arising between the Company and the said Commission in respect of any of the matters referred to in this Clause, the matter shall be referred to the Minister for determination.

Smelter.

(1) The Company undertakes to investigate the technical and economic feasibility of establishing a smelter in the South West region of the State and from time to time to review the matter and when requested by the State but not more often than every twelve (12) months to keep the State fully informed in writing as to the progress and results of such investigations.

The State may if it so desires also undertake studies and for this purpose the Company shall provide the State with such information as it may reasonably require. The Company shall not be obliged to supply technical information of a confidential nature in respect of processes which have been developed by the Company or an associated Company or acquired from other sources and which is not generally available to the aluminium industry, or financial and economic information of a confidential nature the disclosure of which could unduly prejudice the contractual or commercial arrangements between the Company and third parties.

(2) If as a result of the studies undertaken under subclause (1) of this Clause the Company and the State are satisfied that a smelter is technically and economically viable and competitive on world markets then the Company shall establish a smelter and have it operating at a capacity and within a time to be agreed.

Third Party.

(3) If the Company is unwilling or fails to establish the smelter as provided in subclause (2) of this Clause the State may negotiate with a third party other than an instrumentality of the State to establish a smelter on terms and conditions not more favourable on the whole to the third party than it was prepared to grant the Company. In such circumstances the Company will if required supply alumina for a reasonable period to the third party at a reasonable price (which shall have regard to the prevailing world prices recently negotiated and currently under negotiation by the Company and including the effects on such prices if additional capacity has to be constructed by the Company) and in sufficient quantities to meet the requirements of the third party from time to time PROVIDED THAT the Company shall not be liable to supply the third party with a greater annual quantity of alumina than one hundred thousand (100,000) tons in the first year after the smelter is established and thereafter at a progressively increasing annual tonnage until a maximum of two hundred thousand (200,000) tons is reached in the fifth year.

Resumptions.

The State may as for a public work under the Public Works Act 1902 from time to time acquire or resume any land or any estate right or interest to in over or in respect of land required by the State or the Company for such purposes as the conveyor system, a private railway and existing or proposed refineries, aluminium smelters, residue disposal areas, and housing and for any other works services or purposes that the parties agree are necessary or desirable and may lease or otherwise dispose of the same to the Company. The cost of any land resumed on behalf of the Company by the State shall be paid by the Company on demand.

Power to extend periods.

Notwithstanding any provision hereof the Minister may at the request of the Company from time to time extend any period or date referred to in this Agreement or the principal agreement for such period or to such later date as the Minister thinks fit and the extended period or later date when advised to the Company by notice from the Minister shall be deemed for all purposes hereof substituted for the period or date so intended.

Indemnity.

The Company will indemnify and keep indemnified the State and its servants agents and contractors in respect of all actions suits claims demands or costs of third parties arising out of or in connection with any work carried out by or on behalf of the Company pursuant to this Agreement or relating to its operations hereunder or arising out of or in connection with the construction maintenance or use by the Company or its servants agents contractors or assignees of the Company’s works or services the subject of this Agreement or the plant apparatus or equipment installed in connection therewith.

Additional Refinery.

If the Company desires to establish an additional refinery or refineries in a site or location approved by the State then the provisions of this Agreement shall mutatis mutandis be deemed to apply to the extent agreed at that time by the parties hereto.

Amendments to principal agreement.

The principal agreement is hereby amended by —

(1) substituting for subclause (3) of Clause 9 the following:

Rate of Royalty.

(3) (a) Subject to the provisions of paragraph (d) hereof as from the date this subclause commences to operate royalty payable by the Company hereunder to the Department of Mines on behalf of the State shall be based on alumina and shall be at the rate of twenty‑five (25) cents per ton of alumina produced by the Company.

Escalation.

(b) Royalty payable under this subclause shall increase or decrease proportionately to the increase or decrease in the mean quarterly world selling price of aluminium above or below five hundred Australian dollars ($A500) per ton. The mean quarterly world selling price of aluminium is deemed to be the average expressed in dollars Australian of the four prices first quoted in the London “Metal Bulletin” in respect of Canadian primary aluminium 99.5 per cent purity F.O.B. Toronto in each of the four quarters immediately preceding that quarter referred to in subclause (14) of this Clause or other period referred to in subparagraph (i) of paragraph (d) of this subclause.

Review of Royalty Rates.

(c) (i) The rate of royalty payable under this subclause shall be reviewed by the State seven years after the date when the Company commences commercial production of alumina at the Pinjarra refinery and thereafter as at the last day of each succeeding period of seven (7) years during any renewed term.

(ii) The rate of royalty fixed by the State in any review shall be the royalty rate for alumina specified in the regulations under the Mining Act at the date of review PROVIDED THAT such rate is not greater than the assessed rate of the average of the rates of royalty in respect of bauxite (mined within the Commonwealth of Australia) paid to the Commonwealth of Australia and to all States thereof for the twelve (12) months immediately preceding the date of review having regard to such matters as the respective tonnages mined, the degree of processing required, the alumina content and other characteristics of the bauxite. In the event of the rate specified in the regulations under the Mining Act being greater than the said assessed rate, then the assessed rate shall apply PROVIDED ALWAYS that subject to the provisions of paragraph (b) of this subclause in no case shall the rate of royalty be less than twenty‑five (25) cents per ton.

(d) (i) Promptly after the date this subclause commences to operate the Company shall furnish a return to the Department of Mines showing the amount of bauxite: —

(I) produced prior to that date and which has not been completely processed into alumina;

(II) processed prior to that date by the Company but in respect of which no royalty has been paid.

(ii) The Company shall pay to the Department of Mines royalty at the rate previously payable in respect of bauxite referred to in this paragraph and no other royalty shall be payable in respect of alumina produced from such bauxite.

(e) (i) In the event of the termination hereof the Company shall, as at the date of termination, furnish a return to the Department of Mines showing the amount of bauxite produced which has not been completely processed into alumina.

(ii) The Company shall pay royalty at the rate previously payable in respect of such bauxite.

(2) substituting for subclause (5) of Clause 9 the following:

(5) (a) Subject to the performance by the Company of its obligations under this Clause the term of the mineral lease will, subject as hereinafter provided, be for twenty‑one (21) years from the date of receipt of the request referred to in subclause (1) of this Clause with rights of renewal for three (3) consecutive further periods of twenty‑one (21) years upon the terms and conditions in the said mineral lease contained except that: —

(i) royalty rates may be varied as provided in subclause (3) of this Clause;

(ii) the right of renewal shall be excluded from the third renewed period of twenty‑one (21) years of the said mineral lease.

(b) Within the first six (6) months of the twelve (12) months immediately preceding the expiration of the third renewed period of twenty‑one (21) years of the said mineral lease the Company, if then operating its refineries pursuant to this Agreement, may give notice in writing to the State that it desires a further mineral lease for bauxite of the leased area or of a part or parts thereof for a term of twenty‑one (21) years and the State shall within six (6) months from its receipt of that notice determine and notify the Company of the terms and conditions upon which it is prepared to grant such a further mineral lease of the leased area or of a part or parts thereof (as the case may be) and the Company for a period of three (3) months thereafter will have the right to accept such further mineral lease on those terms and conditions.

(c) For a period of two (2) years thereafter the State shall not offer to grant a mineral lease of the leased area or any part thereof for bauxite to any person other than the Company on more favourable terms and conditions than are offered to the Company.

(3) Substituting for subclause (14) of Clause 9 the following:

(14) In the months of January April July and October of each year the Company will furnish to the Minister for Mines a return of all alumina chargeable with royalty during the period of three calendar months ending on the preceding last day of December March June and September as the case may be and shall within 60 days of the expiration of each such calendar quarterly period pay to the Under Secretary for Mines on behalf of the State the amount of royalty due for such quarter.

Arbitration.

(4) Substituting for Clause 31 the following:

Except where otherwise specifically provided in this agreement any dispute or difference between the parties arising out of or in connection with this agreement or any agreed amendment or variation thereof or agreed addition thereto or as to the construction of this agreement or any such amendment variation or addition or as to the rights duties or liabilities of either party thereunder or as to any matter to be agreed upon between the parties under this agreement shall in default of agreement between the parties and in the absence of any provision in this agreement to the contrary be referred to and settled by arbitration under the provisions of the Arbitration Act 1895 PROVIDED THAT this Clause shall not apply to any case where the State or the Minister is by this agreement given either expressly or impliedly a discretionary power.

(5) By adding to subclause (3) of Clause 13 the following sentence:

The compensation payable under this subclause shall increase or decrease as from the commencement of each period of seven (7) years while this agreement continues calculated from the first day of January, 1970 by such amount as may be equitable having regard to any increase or decrease in the amount paid to the Conservator of Forests by way of royalties and/or subsidies or grants per timber unit during the last complete financial year preceding the date the period commences above or below the amount so paid during the last complete financial year preceding the date this paragraph commences to operate.

Construction.

The provisions of the principal agreement shall mutatis mutandis apply to this Agreement except that where any provision in the principal agreement is inconsistent with any provision in this Agreement the provisions of this Agreement shall prevail.

SCHEDULE

Rates per ton mile for freight carried on composite trains operating between Kwinana and Pinjarra and between Pinjarra and Bunbury and between Kwinana and Bunbury Monday to Saturday of each week.

Column 1		Column 2
In tons per financial year up to but not exceeding		Rates per ton mile<br>expressed in cents
500,000<br> 1,000,000<br> 1,500,000<br> 2,000,000<br> 2,500,000<br> 3,000,000		2.5<br> 2.0<br> 1.75<br> 1.65<br> 1.5<br> 1.4

(1) The rate to apply to the aggregate tonnage actually transported shall be the rate appearing in Column 2 opposite the tonnage in Column 1 which is nearest above the actual tons transported.

(2) For the purposes of this Schedule a composite train shall be a train carrying only the undermentioned products of the Company namely all or any of the following, alumina, caustic soda, fuel oil, lime, limestone and starch.

(3) The rates set out in this Schedule have been calculated on the basis of the turn around time at terminals not exceeding five hours. If such times are not regularly adhered to by the Company the Railways Commission may review the rates. If the Company does not agree to the revised rates the matter may be referred to arbitration hereunder.

(4) (a) The rates of freight set out in the Schedule are based on costs prevailing at the date of execution of this Agreement and shall be subject to variation from time to time in proportion to any increase or decrease in the costs of the Railways Commission of transporting freight of the Company on the abovementioned composite trains.

(b) The State will at the request of the Company procure the certificate of the Auditor General of the State as to the correctness of such variation in the freight rates.

IN WITNESS whereof these presents have been executed the day and year first hereinbefore written.

SIGNED SEALED AND DELIVERED by the said THE HONOURABLE SIR DAVID BRAND, K.C.M.G., M.L.A., in the presence of —<br>C. W. COURT,<br>Minister for Industrial<br>Development.<br>ARTHUR GRIFFITH,<br>Minister for Mines.	View image in the official source	DAVID BRAND<br> [L.S.]

SIGNED BY WESTERN ALUMINIUM NO LIABILITY by its Attorney GEORGE DUNDAS WRIGHT in the presence of —<br>J. N. LANGFORD.	View image in the official source	Western Aluminium No Liability<br>by its Attorney<br>G. D. WRIGHT.

[First Schedule amended: No. 48 of 1972 s.5.]

Second Schedule — First supplementary agreement

[s. 1A]

[Heading amended: No. 19 of 2010 s. 4.]

THIS AGREEMENT UNDER SEAL is made the 10th day of July, One thousand nine hundred and seventy‑two between THE HONOURABLE JOHN TREZISE TONKIN, M.L.A., Premier of the State of Western Australia acting for and on behalf of the Government of the said State and its instrumentalities (hereinafter referred to as “the State”) of the one part and ALCOA OF AUSTRALIA (W.A.) LIMITED the name whereof was formerly Western Aluminium No Liability a Company duly incorporated under the Companies Statutes of the State of Victoria and having its principal office in that State at 535 Bourke Street, Melbourne and having its registered office in the State of Western Australia at Hope Valley Road Kwinana (hereinafter referred to as “the Company” which term shall include its successors and permitted assigns) of the other part.

WHEREAS the parties are the parties to and desire to amend the agreement between them dated the 30th day of September One thousand nine hundred and sixty‑nine referred to in Section 2 of the Alumina Refinery (Pinjarra) Agreement Act 1969 inter alia related to the establishment of an additional alumina refinery near Pinjarra and associated facilities for the production and shipment of alumina (which agreement is hereinafter referred to as “the Pinjarra agreement”).

NOW THIS AGREEMENT WITNESSETH —

SUBJECT to the context the words and expressions used in this agreement have the same meanings respectively as they have in and for the purposes of the Pinjarra agreement.
THE provisions of this Agreement shall not come into operation unless and until a Bill to approve and ratify this Agreement is passed by the Legislature of the said State and comes into operation as an Act.
THE Schedule of the Pinjarra agreement is amended by

(1) deleting paragraph 4(a) and substituting the following: —

(4) (a) The rates of freight set out in this Schedule are based on costs prevailing at 30th September, 1969, and shall be adjusted on 1st April, 1972, and on the 1st April of each year thereafter on costs prevailing at these dates in accordance with the following formula: —

View image in the official source WHERE:

(i) F1 = New freight rate.

(ii) F = The freight rate which was payable as at the 30th September, 1969, in accordance with Column 2 of the Schedule.

(iii) HR = The average hourly rate payable as at 30th September, 1969.

(iv) HR1 = The average hourly rate payable as at the date of adjustment.

(v) D = The wholesale price (duty free) of distillate in Perth as at 30th September, 1969.

(vi) D1 = The wholesale price (duty free) of distillate in Perth as at the date of adjustment.

(vii) SR = Price of heavy steel rails per ton c.i.f. Port of Fremantle as ascertained from price schedule covering despatches from the Broken Hill Proprietary Company Limited and Australian Iron and Steel Proprietary Limited as at 30th September, 1969.

(viii) SR1 = The price of heavy steel rail per ton c.i.f. Fremantle ascertained as aforementioned as at the date of adjustment.

The rates applicable at the 30th September, 1969, are: —

1st class driver	. . . . . . . . . . . . . . .	175.25 cents
1st class guard	. . . . . . . . . . . . . . .	142.75 cents
Track repairer	. . . . . . . . . . . . . . .	112.63 cents
		430.63 cents
Average hourly rate	. . . . . . . . . . . . . . .	143.54 cents
Price of distillate per gallon	. . . . . . . . . . . . . . .	19.9 cents
Price of steel rail per ton	. . . . . . . . . . . . . .	$99.50

If on the 1st April, 1977, and on the 1st April in every fifth year thereafter either party considers that by reason of changed circumstances the application of the abovementioned formula no longer results in the payment of freight rates fair and equitable from the point of view of both parties the party which so considers may within one month of that date give notice in that behalf to the other party specifying the formula the party giving the notice thinks should be substituted for the existing formula and if within two months of the giving of such notice the parties cannot agree on a formula to be substituted for the formula which applied in accordance with this paragraph during the five years ending on the 31st day of March immediately preceding the question whether a new and if so what formula shall be substituted shall be referred to arbitration as provided by clause 31 hereof.

(2) substituting for the word “variation” in the third line of paragraph 4(b) the word “adjustment”.

IN WITNESS whereof the parties hereto have executed this agreement the day and year first above written.

SIGNED SEALED AND DELIVERED by the HONOURABLE JOHN TREZISE TONKIN, M.L.A., in the presence of —<br> H. E. GRAHAM. MINISTER FOR DEVELOPMENT AND DECENTRALISATION.	View image in the official source	JOHN T. TONKIN.

THE COMMON SEAL OF ALCOA OF AUSTRALIA (W.A.) LIMITED was hereunto affixed in the presence of —<br> C. E. PFEIFER. P. SPRY‑BAILEY.	View image in the official source	(C.S.)

[Second Schedule inserted: No. 48 of 1972 s.6.]

Third Schedule — Second supplementary agreement

[s. 1A]

[Heading amended: No. 19 of 2010 s. 4.]

THIS AGREEMENT made the Fifteenth day of November 1976 BETWEEN THE HONOURABLE SIR CHARLES WALTER MICHAEL COURT, O.B.E., M.L.A. Premier of the State of Western Australia acting for and on behalf of the Government of the said State and its instrumentalities (hereinafter referred to as “the State”) of the one part and ALCOA OF AUSTRALIA (W.A.) LIMITED the name whereof was formerly Western Aluminium No Liability and later Alcoa of Australia (W.A.) N.L. a company duly incorporated under the Companies Statutes of the State of Victoria and having its principal office in that State at 535 Bourke Street, Melbourne and having its registered office in the State of Western Australia at Hope Valley Road, Kwinana (hereinafter referred to as “the Company” which term shall include its successors and permitted assigns) of the other part.

WHEREAS the parties are the parties to and desire to amend the agreement between them defined in Section 1A of the Alumina Refinery (Pinjarra) Agreement Act 1969‑1972 of the State of Western Australia (which agreement is hereinafter referred to as “the principal agreement”).

NOW THIS AGREEMENT WITNESSETH

Subject to the context the words and expressions used in this Agreement have the same meanings respectively as they have in and for the purpose of the principal agreement.
The provisions of this Agreement shall not come into operation unless and until a Bill to approve and ratify this Agreement is passed by the Legislature of the said State and comes into operation as an Act.
The principal agreement is hereby varied as follows:

(1) Clause 4(2) is amended —

(a) as to paragraph (c) —

(i) by substituting for the passage “pay to the State the sum of one million five hundred thousand dollars ($1 500 000) being the Company’s agreed contribution under a contract to be entered into by the State for” in lines one to four inclusive, the passage “advance to the State the sum of two million three hundred thousand dollars ($2 300 000) to assist in” ; and

(ii) by deleting the passage commencing with the word “As” in line nine and ending with the passage “hereof.” in line twenty‑five of the paragraph. ;

(b) by inserting a new paragraph to follow paragraph (c) as follows:

(cc) advance to the State or the Bunbury Port Authority in addition to the sum of two million three hundred thousand dollars ($2 300 000) referred to in paragraph (c) of this subclause the sum of four million dollars ($4 000 000) to assist in additional dredging and removal of rock from the access channel and turning basin of the inner harbour to a depth of forty (40) feet. ;

(i) by substituting for the marginal note “Contribution for additional dredging.” the marginal note “Third party participation”. ;

(ii) by deleting the passage commencing with the word “in” in line one and ending with the word “THAT” in line seven;

(iii) by substituting for the words “such additional dredging” in line nine, the passage “the additional dredging referred to in paragraph (cc) of this subclause” ; and

(iv) by substituting for the passage “return to the Company such part of the Company’s contribution as is equitable,” in lines fourteen, fifteen and sixteen, the passage “pay to the Company such amount as the Minister determines is equitable;” ;

(d) by deleting paragraph (f); and

(e) by inserting a new paragraph to follow paragraph (h) as follows:

(hh) without in any way limiting the Company’s obligations pursuant to Clause 4A hereof pay to the Bunbury Port Authority a surcharge of sixty five (65) cents on the first thirteen million (13 000 000) tons of alumina delivered to the Company’s bulk handling terminal facilities at the port as from the 1st day of April, 1976 (in this paragraph referred to as “the Alumina Surcharge”) PROVIDED THAT in the event of other parties using the port to a depth below thirty six (36) feet the Minister shall reduce the Alumina Surcharge by such amount as the Minister determines is equitable. ;

(2) The following new Clauses as Clauses 4A and 4B are added after Clause 4 as follows:

Wharfage charges.

4A. (1) Subject to subclause (2) of this Clause, the Company shall in respect of the twelve month period commencing from the 1st day of April, 1976 and thereafter in each succeeding period of twelve months pay to the Bunbury Port Authority wharfage charges calculated in accordance with the tonnages of alumina as follows —

(a) on tonnages not exceeding one million (1 000 000) tons, fifteen (15) cents per ton;

(b) on tonnages exceeding one million (1 000 000) tons and not exceeding two million (2 000 000) tons, twelve (12) cents per ton; and

Alteration of wharfage charges.

(2) Each of the applicable wharfage charges referred to in subclause (1) of this Clause shall be adjusted on the 1st day of April, 1982 and at three yearly intervals thereafter by a sum to be agreed between the parties hereto (or failing agreement referred to arbitration hereunder) to cover the increased or decreased cost to the Bunbury Port Authority reasonably applicable to the Company’s operations.

Other charges.

4B. Payment of the wharfage charges in Clause 4A hereof shall not excuse payment of the usual charges from time to time prevailing made or caused to be made by the State against vessels using the berth in respect of the usual services rendered to vessels by the State or any agency instrumentality or local or other authority in or of the State and including such conservancy and pilotage charges or dues as are payable from time to time pursuant to the provisions of any Act. ;

and

(3) A new clause as Clause 16 is added after Clause 15 as follows —

Pipeline easements.

16 (1) The provisions of section 33A of the Public Works Act 1902 shall apply to and in respect of easements in favour of the Company which have already been acquired or which are to be acquired for the purpose of the construction, maintenance and use of pipelines under paragraph (b) of subclause (6) of Clause 5 of this Agreement and for any purpose incidental to any such purpose, in the same manner as they apply to easements in favour of the Crown.

Certificate by Minister.

(2) For the purposes of subclause (1) of this Clause an instrument does not create an easement in favour of, or operate to transfer an easement to the Company unless it bears a Certificate by the Minister to that effect.

Procedure.

(3) Where an easement is created over any land pursuant to subclause (2) of this Clause:

(a) if the easement is over land that is under the operation of the Transfer of Land Act 1893 and the instrument creating the easement is executed (whether before or after the date of the principal agreement) by a grantor then being the registered proprietor of the land affected, the easement shall notwithstanding any subsequent change in the registered proprietorship of the land and notwithstanding that the consent of any mortgagee or other person whose consent but for the operation of this paragraph would be required to any such instrument has not been obtained, be deemed to be a registerable instrument under the Transfer of Land Act 1893 and upon presentation to the Registrar of Titles of the instrument, the Registrar shall upon payment of the prescribed fee register the same and endorse the easement as an encumbrance on the relevant Certificate of Title;

(b) if the easement is over land that is not under the operation of the Transfer of Land Act 1893 or the Land Act 1933 the instrument creating such easement shall be sent by the Company to the Registrar of Deeds who shall upon payment of the prescribed fee by memorial in the Register of Deeds duly record the creation of the easement;

(c) if the easement is over land that is subject to the Land Act 1933 (excepting such land as is under the operation of the Transfer of Land Act 1893), the instrument creating such easement shall be sent by the Company to the Minister for Lands who shall upon payment of the fee required by the Minister for Lands cause to be made in the appropriate register relating to the land a record of the creation of the easement.

(4) Nothing contained in this Clause shall affect the rights and obligations of the parties hereto under paragraph (b) of subclause (6) of Clause 5 hereof.

IN WITNESS whereof these presents have been executed by or on behalf of the parties hereto the day and year first hereinbefore written.

SIGNED by THE HONOURABLE SIR CHARLES WALTER MICHAEL COURT, O.B.E., M.L.A. in the presence of —<br> ANDREW MENSAROS, MINISTER FOR INDUSTRIAL DEVELOPMENT.	View image in the official source	CHARLES COURT

THE COMMON SEAL OF ALCOA OF AUSTRALIA (W.A.) LIMITED was hereunto affixed in the presence of —<br> Director, WALDO PORTER Jr. Secretary, E. W. HUMPHREYS.	View image in the official source	[C.S.]

[Third Schedule inserted: No. 116 of 1976 s.5.]

Fourth Schedule — Extract from third supplementary agreement

[s. 1A]

[Heading amended: No. 19 of 2010 s. 4.]

Extract from the third supplementary agreement, in which the agreement referred to in section two of this Act as from time to time amended in accordance with this Act is referred to as “the Pinjarra agreement”.

Amendments to Pinjarra agreement.

The Pinjarra agreement is hereby amended by adding after clause 5 a new clause 5A as follows —

Modifications to Bunbury Port Authority Act.

5A. For the purpose of this Agreement in respect of any land leased to the Company pursuant to the Bunbury Port Authority Act 1909, that Act shall be deemed to be modified by —

(a) the deletion of the proviso to section 25; and

(b) the inclusion of a power to grant leases or licences for terms or periods (including renewal rights) and for such purposes as are consistent with the provisions of this Agreement, in lieu of the terms or periods and purposes referred to in section 25.

[Fourth Schedule inserted: No. 15 of 1978 s.11.]

Notes

1 This is a compilation of the Alumina Refinery (Pinjarra) Agreement Act 1969 and includes the amendments made by the other written laws referred to in the following table.

Compilation table

Short title	Number and year	Assent	Commencement
Alumina Refinery (Pinjarra) Agreement Act 1969	75 of 1969	7 Nov 1969	7 Nov 1969
Alumina Refinery (Pinjarra) Agreement Act Amendment Act 1972	48 of 1972	2 Oct 1972	2 Oct 1972
Alumina Refinery (Pinjarra) Agreement Act Amendment Act 1976	116 of 1976	1 Dec 1976	1 Dec 1976
Alumina Refinery (Wagerup) Agreement and Acts Amendment Act 1978 Pt. III	15 of 1978	18 May 1978	18 May 1978
Alumina Refinery Agreements (Alcoa) Amendment Act 1987 Pt. III	86 of 1987	9 Dec 1987	9 Dec 1987
Standardisation of Formatting Act 2010 s. 4	19 of 2010	28 Jun 2010	11 Sep 2010 (see s. 2(b) and Gazette 10 Sep 2010 p. 4341)

Defined terms

[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]

Defined term Provision(s)

the agreement 1A

the first supplementary agreement 1A

the fourth supplementary agreement 1A

the second supplementary agreement 1A

the third supplementary agreement 1A

Western Australia

Alumina Refinery (Pinjarra) Agreement Act 1969

Western Australia

Alumina Refinery (Pinjarra) Agreement Act 1969

Contents

Short title 1

1A. Interpretation 1

Ratification of agreement 2
Ratification of supplementary agreement 2
Ratification of second supplementary agreement 2
Third supplementary agreement 2
Fourth supplementary agreement 3

First Schedule — Alumina Refinery (Pinjarra) Agreement

Second Schedule — First supplementary agreement

Third Schedule — Second supplementary agreement

Fourth Schedule — Extract from third supplementary agreement

Notes

Compilation table 39

Defined terms

Western Australia

Alumina Refinery (Pinjarra) Agreement Act 1969

An Act to ratify an agreement between the State and Western Aluminium No Liability, for the establishment of a refinery near Pinjarra to produce alumina and for incidental and other purposes.

1. Short title

This Act may be cited as the Alumina Refinery (Pinjarra) Agreement Act 1969 1.

1A. Interpretation

In this Act, unless the contrary intention appears —

the agreement means —

(a) in section 2(1), the agreement of which a copy is set forth in the First Schedule; and

the first supplementary agreement means the agreement of which a copy is set forth in the Second Schedule;

the second supplementary agreement means the agreement of which a copy is set forth in the Third Schedule;

the fourth supplementary agreement means the agreement of which a copy is set forth in the Schedule to the .

Several legal and commercial concepts structure the Act and the schedules. Ratification and incorporation: s 2(1) ratifies the agreement in the First Schedule and s 2(2) directs that the agreement “be carried out and take effect as though those provisions had been expressly enacted in this Act”. That is a statutory incorporation of a bilateral contract into public law, giving contractual terms an enforceable legislative base.

Supremacy of the instrument: the First Schedule contains an express non‑derogation clause. Clause 2(3) states that “on the said Bill commencing to operate as an Act all the provisions of this Agreement shall operate and take effect notwithstanding the provisions of any Act or law.” Read together with s 2(2), the effect is that, to the extent enacted, the agreement operates with statutory precedence over other law where there is an inconsistency. The Act therefore creates a sector‑specific legislative regime for the Pinjarra project.

Division of obligations and risk allocation: the contract establishes detailed reciprocal obligations. The Company must construct and operate the Pinjarra refinery to specified capacity and within timeframes, establish port loading facilities to State‑approved plans, contribute substantial capital to harbour dredging, and provide rail, road and environmental measures (First Schedule Clauses 4, 4(2)(a)-(k), 4(5)-(11)). The State is obliged to dredge and reclaim Bunbury inner harbour and to grant leases, licences, and certain easements and authorisations; to transport goods by rail under agreed terms; and to ensure non‑discriminatory fees and services at the port (First Schedule Clause 5).

Fiscal regimes and escalation mechanics: Clause 14 substitutes a royalty regime based on alumina, setting a base rate of 25 cents per ton and an escalation tied to movements in a mean quarterly world selling price of aluminium, with periodic reviews every seven years to reassess royalty rates subject to a comparison against rates payable in other Australian jurisdictions under the Mining Act (First Schedule, Clause 14(1)(a)-(d)). Wharfage and freight rates are also set out and subject to agreed escalation mechanisms and arbitration if the parties cannot agree (First Schedule schedules; Second and Third Schedules amend the adjustment mechanics).

Property and title mechanisms: the contract provides for resumption of land under the Public Works Act 1902 for conveyor systems, railways, refineries, residue disposal and housing, with costs of resumption payable by the Company (First Schedule Clause 10). The 1976 supplement (Third Schedule, Clause 16) applies s 33A Public Works Act procedures to pipeline easements and prescribes registration routes (Transfer of Land Act, Registrar of Deeds, Minister for Lands) along with a Ministerial certificate requirement for instruments creating easements.

Dispute resolution and ministerial reservation: Clause 31 (as replaced by Clause 14(4) of the First Schedule amendments) directs that disputes be referred to arbitration under the Arbitration Act 1895 except where the State or the Minister is given an express or implied discretionary power. The agreement therefore creates a primary arbitration path while carving out certain discretionary decisions from arbitrability (First Schedule, Clause 14(4)).

Environmental and operational constraints: the contract requires containment of red mud and effluent within refinery boundaries “in a manner agreed between the parties” (First Schedule Clause 4(5)), pollution prevention measures “as may be agreed” (Clause 4(6)), and obligations regarding reforestation and erosion prevention if forest areas are affected (Clause 4(8)). These provisions are stated in terms that require further agreement between the parties, rather than prescribing detailed statutory environmental standards within the text provided.

Ministerial discretions and extension powers: Clause 11 expressly enables the Minister to extend periods or dates in the agreement, at the Minister’s discretion, at the Company’s request. Some financial adjustments and reductions (for example, returns to the Company of dredging contributions if other users contribute) are to be determined by the Minister in equity (Third Schedule amendments), introducing administrative discretion as a mechanism to allocate benefits and burdens post‑execution.

Collectively, these concepts show the instrument is both a commercial contract and a legislative regime, combining detailed operational instructions, property rights, payment obligations and administrative discretion, with a layered dispute resolution framework.

Direct contracting parties: the immediate parties are the State of Western Australia (represented by the Premier and Ministers) and the Company initially named as Western Aluminium No Liability and later Alcoa of Australia (W.A.) Limited (First Schedule, front page and Second Schedule). The Act expressly binds those contracting entities and their successors and permitted assigns (First Schedule, opening recital and definitions).

Public statutory authorities and instrumentalities: the Bunbury Port Authority is explicitly engaged (First Schedule Clauses 4(2)(a)-(g), 5(4)(d)-(g)). The Railways Commission (or the State rail authority under the Government Railways Act 1904) is implicated for carriage, rolling stock approvals and rail freight arrangements (First Schedule Clauses 4(9)(e)-(k), 5(2)). The State Electricity Commission is referenced for transmission line approvals (First Schedule Clause 8). The Conservator of Forests is engaged in respect of forest restoration obligations (First Schedule Clause 4(8)). The Minister(s) for Mines, for Industrial Development and for Lands have powers and functions throughout the agreement, and the Minister’s decisions influence timing, approvals, easement certification and extensions (First Schedule Clauses 3, 5(6)(b), 11, Third Schedule Clause 16(2)).

Landholders and local communities: landowners (including Crown land and pastoral lease holders) in and about the Pinjarra site are affected: the Company may enter Crown lands to survey (First Schedule Clause 3(b)), the State may acquire or resume land under the Public Works Act 1902 for conveyor systems, rail, residues and housing and then lease or dispose of the land to the Company with resumption costs payable by the Company (First Schedule Clause 10). The Pinjarra townsite and local service providers will be affected by the Company’s housing and infrastructure commitments and by the Company’s undertaking to participate in housing schemes (First Schedule Clause 6). Local environmental receptors (rivers, aquifers and forests) are implicated by red mud disposal, drainage, aquifer abstraction and re‑afforestation obligations (First Schedule Clauses 4(5)-(8), 7).

Commercial third parties: other port users and potential third‑party smelter operators are affected. The Company must allow use of its berth by others provided it does not interfere with the Company’s requirements, and the Company may act as agent for collection of charges (First Schedule Clause 4(2)(g)). The agreement contemplates third‑party smelter proposals, including an obligation on the Company to supply alumina to a third party on reasonable terms if the Company fails or refuses to build a smelter that the parties consider viable (First Schedule Clause 9(2)-(3)). Other private companies that might contribute to dredging would affect the Company’s dredging contribution adjustments (First Schedule Clause 4(2)(d) and Third Schedule amendments).

Financial stakeholders and financiers: lenders and mortgagees with interests in lands subject to easements should note the Third Schedule procedures for registration of easements under the Transfer of Land Act 1893 and the provision that an easement created pursuant to the clause may be registered notwithstanding a later change in proprietorship or the absence of mortgagee consent (Third Schedule Clause 16(3)(a)). That mechanism affects security interests and title protection.

Commonwealth agencies: export control is a Commonwealth matter. The Company is required to apply for Commonwealth licences for export of alumina or aluminium (First Schedule Clause 4(3)). This means Commonwealth regulatory approval and conditions can affect the commercial project even though the agreement is a State statute.

Who pays and who decides: financially, the Company bears capital and recurrent costs for construction, dredging contributions/advances, wharfage, surcharges, rail upgrades and resumption costs; the State bears dredging, reclamation and (in part) transport obligations but is to be reimbursed or assisted by Company advances in many instances (First Schedule Clauses 4(2)(c), 4(9)(e), 5(4)(a), 5(4)(c)). Decision‑making falls to the Ministers, the Railways Commission and other authorities specified for technical and regulatory approvals, with arbitration as the principal mechanism for commercial disputes except for matters where the State or Minister has discretionary power (First Schedule Clause 14(4)).

In short, the Act maps a complex web of financial obligations and statutory entitlements across the Company, multiple State instrumentalities, local landholders and commercial third parties, with ministerial discretion and legislative override forming central governance levers.

This section sets out the principal duties the Company and the State assume under the agreement as reproduced in the First Schedule and amended in the supplementary schedules, with references to the relevant clauses.

Company's principal duties and rights

Construction and timing: the Company must give written notice of intention to proceed, commence construction of the Pinjarra refinery and “by the 30th day of June, 1973 complete and have in operation the first stage of the Pinjarra refinery with a capacity to produce not less than 200,000 tons of alumina per annum” (First Schedule Clause 4(1)). The Minister may grant extensions of time if the Company demonstrates it has used best endeavours to secure finance or contracts but has been unsuccessful due to market conditions (Clause 4(1), proviso).
Port facilities and payments: the Company must establish, at its cost and to State‑approved plans, a berth, shiploader, conveyors, storage bins and railway sidings at Bunbury and use the new inner harbour as a bulk handling terminal (Clause 4(2)(a)-(b)). It must pay for dredging/contributions as required by contract; originally $1,500,000 (Clause 4(2)(c)), subsequently advanced to $2,300,000 with an additional $4,000,000 for deeper dredging under the Third Schedule changes (see Third Schedule amendments to Clause 4(2)(c) and insertion of paragraph (cc)). The Company must pay annual rental to the Bunbury Port Authority at $200 per acre (Clause 4(2)(e)) and wharfage charges on alumina loaded (Clause 4(2)(f)), subject to adjustments and reductions tied to throughput and other contributors (Clause 4(2)(f)(i)-(iii)). The 1976 supplement also imposed an “Alumina Surcharge” of 65 cents on the first 13,000,000 tons delivered to the Company’s bulk handling terminal from 1 April 1976 (Third Schedule paragraph (hh)).
Rail, road and logistics: the Company must transport by rail all alumina for sea shipment (except Kwinana‑shipped Kwinana output) to Bunbury/Kwinana, and transport not less than 40,000,000 tons of bauxite to Kwinana from the Jarrahdale rail head (Clause 4(9)(a)-(b)). It must carry caustic soda, fuel oil and other inputs by rail until a pipeline is installed (Clause 4(9)(c)-(d)). The Company is responsible for private roads and for providing and maintaining sidings and loading/unloading facilities (Clause 4(4), (9)(g)-(i)) and must pay the freight rates set out in the Schedule (general freight schedule).
Environmental and community obligations: the Company must dispose of red mud and effluent on site and contain it within refinery boundaries as agreed with the State (Clause 4(5)), take action to prevent pollution of rivers/underground water as agreed (Clause 4(6)), drain the site in accordance with State‑approved plans (Clause 4(7)), and assist with reforestation and erosion prevention at the Company's expense as reasonably required by the Conservator (Clause 4(8)). The Company must provide housing and related services for employees on fair and reasonable terms (Clause 4(11)) and use bona fide Western Australian manufacturers and labour where practicable (Clause 4(10)).
Indemnity and risk: the Company indemnifies and keeps indemnified the State and its servants, agents and contractors against all third party claims relating to works carried out by the Company (Clause 12). The Company acknowledges that goods carried by the State railway are at the Company’s risk unless agreed otherwise (Clause 4(9)(k)).

State's principal duties and rights

Legislative ratification and precedence: the State is to introduce and sponsor the Bill to ratify the agreement (First Schedule Clause 3(a)); the Act ratifies the agreement and directs its operation notwithstanding other Acts (s 2(2); First Schedule Clause 2(3)).
Harbour works: the State must dredge an access channel at least 400 feet wide and 36 feet deep below port datum, and a turning basin and berth 1,600 feet wide and 36 feet deep, using its best endeavours to complete dredging and reclamation within 24 months of entering the dredging contract (Clause 5(4)(a)-(c)). If deeper dredging is required and agreed, the State will endeavour to carry it out (Clause 5(4)(b)).
Leases and licencing: the State will cause a lease to be granted to the Company over land for bulk handling at $200 per acre (Clause 5(4)(d)), grant licences for the use of sidings (Clause 5(4)(e)), grant a license for the conveyor (Clause 5(4)(f)), and ensure usual port services and non‑discriminatory rates (Clause 5(4)(g)-(h)). The Third Schedule (Clause 16) also prescribes procedures for easement creation and registration and requires a Ministerial certificate for instruments creating pipeline easements.
Rail carriage and support: the State will transport via its railways, subject to notice, all ore, alumina and goods reasonably required by the Company (Clause 5(3)), maintain locomotives/rolling stock advanced by the Company (Clause 5(2)), and accept advanced rolling stock on agreed terms subject to negligence exceptions (Clause 5(2)).
Water and pipelines: the State may grant water licences under the Rights in Water and Irrigation Act 1914 on the basis of Company reports (Clause 7(1)-(3)) and, subject to relevant pipeline Acts, grant pipeline authorisations for natural gas or consider proposals for oil/caustic pipelines (Clause 5(5)-(6)(b)). The Minister must notify the Company of alterations desired to pipeline proposals and arbitration is available in the event of unresolved disputes (Clause 5(6)(b)).

Fiscal and tenure arrangements

Royalty regime: Clause 14 substitutes a royalty basis to be “on alumina” at 25 cents per ton with escalation tied to changes in the mean quarterly world selling price of aluminium, and schedules a mandatory review every seven years (Clause 14(1)(a)-(c)). It also sets transitional arrangements for bauxite produced or processed prior to the subclause commencing and deals with termination return obligations (Clause 14(1)(d)-(e)).
Mineral lease term and renewals: Clause 14(2) sets mineral lease terms to 21 years with rights of renewal for three consecutive 21‑year periods with certain exclusions and processes if the Company desires a further lease (Clause 14(2)(a)-(c)).

Dispute resolution and discretion

Arbitration: Clause 31, as replaced, directs disputes to arbitration under the Arbitration Act 1895 unless the State or the Minister has a discretionary power under the agreement (Clause 14(4)). A number of operational approvals include express procedures for referral to arbitration if the Minister imposes conditions the Company regards unreasonable (Clause 5(6)(b)).
Ministerial powers: Clause 11 permits the Minister to extend dates and periods referred to in the agreement at his discretion upon written request of the Company. Some financial returns and equitable adjustments (for example, under Contribution for additional dredging as amended) are left to the Minister to determine (Third Schedule amendments to Clause 4(2)(d)).

These duties and rights are statutoryised by the Act (s 2(2)), meaning parties may enforce them by reference to both the agreement as a contract and the Act as a statute.

The Act and the reproduced agreement primarily rely on contractual and statutory enforcement mechanisms rather than on enumerated criminal penalties or fines contained in the text provided. Enforcement operates by these principal mechanisms:

Statutory enforceability and primacy: s 2(2) states the agreement “shall, subject to its provisions, be carried out and take effect as though those provisions had been expressly enacted in this Act.” That converts contractual duties into statutory obligations enforceable as part of the Act. Clause 2(3) of the First Schedule reinforces that the agreement’s provisions “shall operate and take effect notwithstanding the provisions of any Act or law.” Consequently, where an inconsistency arises between the agreement and other statutes, the agreement as enacted into this Act will prevail to the extent set out.

Monetary obligations and contractual consequences: the agreement imposes payment obligations (royalties, wharfage, rental, dredging contributions, Alumina Surcharge, freight rates, and advances toward rail upgrades) that the State or the Bunbury Port Authority can seek to enforce through debt recovery or contract remedies. For example, wharfage and royalty payments are specified together with timing of returns: quarterly returns of alumina and payment within 60 days of quarter‑end are required under Clause 14(3) (substitution for Clause 9(14) of the principal agreement). Failure to pay likely exposes the Company to recovery proceedings in court or arbitration of a contractual breach claim, though the text provides no criminal sanctions for non‑payment.

Loss of rights as a sanction: the Company’s right to establish port facilities may be forfeited if it fails to complete works within the time or any extended time granted by the Minister (Clause 4(2)(a): “If the Company is not granted an extension of time, or ... does not complete the said works and facilities within such extended time ... the Company shall ... lose its rights to establish port facilities under the provisions of this Agreement.”). That is a commercially significant contractual sanction embedded in the agreement.

Indemnity and third party claims: Clause 12 requires the Company to indemnify the State and its servants, agents and contractors “in respect of all actions suits claims demands or costs of third parties arising out of or in connection with any work carried out by or on behalf of the Company pursuant to this Agreement.” This creates a statutory indemnity obligation that can be enforced by the State against the Company for liability arising from Company works.

Resumption and acquisition powers: Clause 10 authorises the State to acquire or resume land as for a public work under the Public Works Act 1902 and to lease or dispose of the resumed land to the Company, with the cost of land resumed on behalf of the Company to be paid by the Company on demand. The exercise of resumption powers can therefore be enforced operationally and financially against the Company (and implies the Company must reimburse resumption costs demanded by the State).

Dispute resolution: the primary formal enforcement mechanism for contested matters is arbitration. Clause 31, as substituted, mandates reference of disputes to arbitration under the Arbitration Act 1895 except where the State or Minister is reportedly given either expressly or impliedly a discretionary power (First Schedule Clause 14(4)). Arbitration awards are generally enforceable as judgments; however, matters characterized as non‑arbitrable because they involve State discretionary powers may be subject to administrative law review rather than arbitration.

Ministerial discretion and non‑arbitrability: some determinations are left to ministerial or State discretion, which the agreement explicitly exempts from the arbitration clause (Clause 14(4)). That means enforcement or challenge of those decisions will be shaped by administrative law principles and judicial review rather than the Arbitration Act process , an important procedural distinction.

Procedural registration of easements and title effects: the Third Schedule (Clause 16) makes easements created pursuant to the agreement registerable under the Transfer of Land Act, Registrar of Deeds, or Land Act registers even if consent of mortgagees or certain formalities are not obtained, and notwithstanding subsequent changes of registered proprietorship (Third Schedule Clause 16(3)(a)-(c)). That mechanism affects third parties (lenders, subsequent purchasers) and can operate as a de facto override of consent requirements; enforcement here is effected by registration, which alters the property record.

Absence of criminal penalties in the text: the printed text of the Act and its schedules does not specify criminal offences, administrative fines or penal sanctions for non‑compliance beyond contractual remedies, statutory registration consequences and resumption powers. Enforcement therefore proceeds through civil remedies, statutory registration and reallocation of rights (forfeiture of rights to facilities), indemnity claims and arbitration or administrative law challenge to ministerial decisions.

In short, enforcement is achieved through a combination of statutory authority (the Act’s ratification and supremacy), contractual rights to monetary remedies and loss of rights, arbitration, indemnity claims and statutory property procedures. Administrative discretions and the exemption of certain State powers from arbitration change the enforcement pathway for a subset of decisions from arbitration to judicial or administrative review.

The Act and the reproduced agreement explicitly cross‑reference, modify or displace several existing statutory regimes. The text supplied makes those interconnections central to the operation of the Pinjarra project. Key interactions follow, tied to clause citations.

Priority over other Acts: the First Schedule Clause 2(3) provides that “on the said Bill commencing to operate as an Act all the provisions of this Agreement shall operate and take effect notwithstanding the provisions of any Act or law.” Read with s 2(2), this grants the agreement statutory primacy to the extent enacted, enabling deviations from other statutes where the agreement so provides.

Relevant State statutes engaged by the agreement

Bunbury Port Authority Act 1909: the Hench of the Fourth Schedule (clause 5A) expressly modifies the Bunbury Port Authority Act in respect of land leased to the Company by deleting the proviso to section 25 and providing a power to grant leases or licences for terms and purposes consistent with the agreement. That statutory amendment changes the Port Authority’s conventional leasing powers for land the Company leases under the agreement (Fourth Schedule, clause 5A).
Public Works Act 1902: the Company and State may rely on the Public Works Act for land resumption for conveyors, private railway, refineries, smelters and residue disposal (First Schedule Clause 10). The Third Schedule (Clause 16) applies the provisions of s 33A Public Works Act to pipeline easements acquired for construction, maintenance and use of pipelines.
Rights in Water and Irrigation Act 1914: the State may grant water licences under this Act to permit the Company to draw specified quantities of groundwater, subject to licence amendment in consultation with the Company (First Schedule Clause 7(2)-(3)).
Government Railways Act 1904: the definition of “private railway” and the conduct of rail services references the Government Railways Act; carriage by rail is subject to by‑laws made under that Act insofar as they are not inconsistent with the agreement (First Schedule Clauses 1 (definitions) and 4(9)(k)).
Road and Air Transport Commission Act 1966: the State undertakes that the Commissioner of Transport will not refuse to grant road transport licences (within a 50‑mile radius) to the Company or its contractors, subject to payment of appropriate fees, and that appropriate fees will not discriminate against the Company (First Schedule Clause 5(1)(a)-(c)).
Electricity Act and Wiring Rules: electricity generation and transmission by the Company for its own use must comply with the technical requirements of the Electricity Act and the Wiring Rules of the Standards Association of Australia (First Schedule Clause 8(3)).
Transfer of Land Act 1893 and Land Act 1933: the Third Schedule Clause 16 sets out registration procedures for easements created under the agreement, prescribing registrable instruments under the Transfer of Land Act even where mortgagee consent has not been obtained, or otherwise placing instruments into the Register of Deeds or Land Act registers as appropriate (Third Schedule Clause 16(3)(a)-(c)).
Mining Act and Mining regulations: Clause 14(1)(c) ties the reviewable royalty rate to the royalty rate for alumina specified in the regulations under the Mining Act, with an assessed cap relative to royalties paid for bauxite in other jurisdictions; the mining regulatory regime thus supplies a comparator and regulatory inputs into future royalty reviews.

Commonwealth law interactions

Commonwealth export licensing: the Company is required to make necessary applications to the Commonwealth for licences under Commonwealth law for export of alumina or aluminium (First Schedule Clause 4(3)). This recognises Commonwealth control over exports and anchors State obligations to federal regulatory approvals.
Potential interplay with Commonwealth environmental and other federal statutes is not addressed in the text, but export and customs regulation will involve federal agencies.

Dispute resolution and administrative law: arbitration under the Arbitration Act 1895 is the primary dispute resolution forum (First Schedule Clause 14(4)), but the agreement explicitly exempts State/Minister discretionary powers from arbitration, meaning such decisions may be subject to administrative law principles and judicial review.

Practical consequences of statutory linkages

The agreement both draws upon and derogates from existing statutory frameworks. For instance, the amendment to the Bunbury Port Authority Act (Fourth Schedule) changes the statutory leasing regime to accommodate the agreement’s commercial terms. The Third Schedule’s registration rules for easements change the usual property consent mechanics, potentially affecting mortgagees and purchasers. The Public Works Act resumption powers are the mechanism for securing land for project infrastructure, with costs of resumed land payable by the Company.
The agreement’s instruction that it operates “notwithstanding the provisions of any Act or law” creates a hierarchy that, in the event of conflict, places the agreement (as enacted) above other State statutes to the extent of inconsistency. That can change the operation of otherwise general statutes when applied to the Pinjarra project.

Every statutory cross‑reference and modification noted above is taken from the text of the Act and the First, Second, Third and Fourth Schedules as they appear in the instrument.

The Act as compiled in the provided text includes a sequence of statutory amendments that altered both the body of the Act and the terms of the underlying agreement via supplementary agreements incorporated in the schedules. The compilation table in the Notes summarises the chronology and the schedules themselves record the operative changes. The principal amendments are as follows.

1972 , Alumina Refinery (Pinjarra) Agreement Act Amendment Act 1972 (No. 48 of 1972)

Effect: inserted s 1A (interpretation) as amended, and added the First Supplementary Agreement as the Second Schedule. The Second Schedule amends the freight adjustment mechanism in the Schedule of the Pinjarra agreement. Specifically it replaces paragraph 4(a) in the freight schedule to require annual adjustments of freight rates from 1 April 1972 pursuant to a specified formula based on hourly wage rates, distillate price and steel rail price, and provides for re‑evaluation of the formula every five years from 1 April 1977 with arbitration if parties cannot agree (Second Schedule clauses 2 and 3). The 1972 amendment also formally substitutes the Company name (Western Aluminium No Liability to Alcoa of Australia (W.A.) Limited).

1976 , Alumina Refinery (Pinjarra) Agreement Act Amendment Act 1976 (No. 116 of 1976)

Effect: inserted the Third Schedule (the Second Supplementary Agreement, dated 15 November 1976) which materially changed the pinjarra agreement’s financial and port arrangements. Key changes included:
- Increasing and recharacterising the Company’s contribution to Bunbury dredging: replacing the original $1,500,000 contribution with an advance of $2,300,000 to assist in dredging (Third Schedule changes to Clause 4(2)(c)) and adding an additional $4,000,000 advance for removal of rock and deepening to 40 feet (new paragraph (cc)).
- Redrafting paragraph (d) from “Contribution for additional dredging” to “Third party participation” and making the Minister the determiner of equitable returns to the Company if others contribute to the dredging (Third Schedule amendments).
- Deleting the original paragraph (f) (which imposed a 15 cent wharfage) and inserting new graduated wharfage provisions as new Clauses 4A and 4B. Clause 4A prescribes a tiered wharfage schedule (15 cents per ton up to 1,000,000 tons; 12 cents per ton for 1,000,001-2,000,000 tons; 10 cents per ton above 2,000,000 tons) and Clause 4B preserves other usual port charges.
- Introducing an “Alumina Surcharge” of 65 cents on the first 13,000,000 tons delivered to the Company’s terminal from 1 April 1976 (Third Schedule paragraph (hh)).
- Adding Clause 16 dealing with pipeline easements, applying s 33A of the Public Works Act and providing detailed registration procedures for easements and a Ministerial certificate requirement for instruments creating easements.

1978 , Alumina Refinery (Wagerup) Agreement and Acts Amendment Act 1978 (No. 15 of 1978), Pt III

Effect: inserted the Fourth Schedule to the Pinjarra Agreement Act by extracting an amendment (Clause 20 of the Wagerup agreement) that adds a new Clause 5A to the Pinjarra agreement. Clause 5A modifies the Bunbury Port Authority Act 1909 for lands leased to the Company by deleting the proviso to s 25 and enabling the Authority to grant leases or licences for terms and purposes consistent with the Pinjarra agreement. The net effect is to align the Port Authority’s statutory leasing powers with the commercial terms of the Pinjarra agreement.

1987 , Alumina Refinery Agreements (Alcoa) Amendment Act 1987 (No. 86 of 1987)

Effect: the Act’s s 1A (interpretation) was amended to include the “fourth supplementary agreement” which is described as “the agreement of which a copy is set forth in the Schedule to the Alumina Refinery Agreements (Alcoa) Amendment Act 1987.” The text of that fourth supplementary agreement is referenced in s 1A but is not reproduced in the extract provided here. The 1987 enactment therefore further amended or supplemented the agreement, and the Act’s s 1A records that incorporation.

2010 , Standardisation of Formatting Act 2010 (No. 19 of 2010)

Effect: the 2010 amendment standardised heading formatting in the compilation; it did not change substantive rights but updated the heading styles and references in the compiled text (notes show heading amendments effected by s 4 of the 2010 Act).

Interpretation and practical effect of amendments

The 1976 amendments reallocated the Company’s contributions, introduced a sizeable additional dredging advance and surcharge, and restructured wharfage. They also provided a mechanism for easement creation and registration that relaxes conventional consent requirements, signalling a stronger statutory facilitation of infrastructure corridors (Third Schedule Clause 16).
The 1978 amendment changed the statutory framework governing the Bunbury Port Authority’s leasing powers to accommodate the contractual leasing and licence requirements of the Pinjarra project (Fourth Schedule Clause 5A).
The 1987 supplementary agreement is incorporated by reference but its text is not reproduced in the supplied extracts; its presence is recorded in s 1A.

Each of the foregoing amendment actions is recorded in the Act’s Notes and the Schedules reproduced in the Act text provided. The Act therefore reflects an evolving contractual/statutory package negotiated over time and given legislative effect through successive amendment Acts.

The Act as provided does not list or summarise any reported court decisions or litigation arising under the Alumina Refinery (Pinjarra) Agreement Act 1969 or its schedules. The instrument itself contains procedural and dispute resolution provisions that frame how disputes are to be handled but does not catalogue subsequent lawsuits.

Dispute resolution pathways provided in the agreement

Primary forum: Clause 31, as substituted by Clause 14(4) of the First Schedule amendments, requires that “any dispute or difference between the parties arising out of or in connection with this agreement ... shall in default of agreement between the parties ... be referred to and settled by arbitration under the provisions of the Arbitration Act 1895.” Arbitration awards are enforceable under the Arbitration Act and relevant enforcement provisions of the law; the agreement therefore channels commercial disputes to arbitration as the principal dispute resolution mechanism.
Exclusions: the arbitration clause contains an express carve‑out: it does not apply “to any case where the State or the Minister is by this agreement given either expressly or impliedly a discretionary power.” Those matters are therefore excluded from the arbitration process and will be subject to the administrative law remedies applicable to executive or ministerial decisions (such as judicial review on public law grounds), rather than private arbitration.

Implications from the document

Because the contract was placed on a statutory footing, actions taken to enforce the agreement (for example, seeking injunctions, statutory declarations, or orders enforcing or restraining public authorities) could have occurred in either civil courts or in administrative law proceedings where ministerial discretion was engaged. Disputes over construction and payment obligations would generally follow the arbitration path where not expressly excluded.
The Third Schedule (Clause 16) contains special procedures for registration of easements, which could lead to litigation over title, mortgagee rights and priority of interests. The instrument’s provision that certain easements are to be registered notwithstanding lack of mortgagee consent (third schedule clause 16(3)(a)) creates a potential point of legal contest if financiers or third parties dispute the validity of registrations or the absence of consent, but the Act itself gives the Registrar of Titles directions on registration.

Absence of reported cases in the text

The Act text does not name any cases or provide a litigation history. Any subsequent disputes resulting in reported decisions are not reflected in the instrument supplied here. For practice purposes, parties should be aware that the agreement directs most commercial disputes to arbitration and reserves certain State decisions for administrative law challenge rather than arbitral processes.

If a reader requires a jurisdictional check for reported litigation or arbitral awards involving this Act and Alcoa (or related parties), a targeted search of reported decisions, arbitration records and administrative law challenges in Western Australian courts and tribunals for the relevant time periods would be necessary; such searches lie beyond the text of the Act itself.

The Act and its schedules contain several provisions that create implementation, legal and practical risks for parties, financiers and third parties. The following are concrete items to watch, each tied to the source text.

Statutory primacy and “notwithstanding” wording (First Schedule Clause 2(3); s 2(2))

The agreement, once enacted, is to “operate and take effect notwithstanding the provisions of any Act or law.” That creates an instrument that can displace general statute law in areas where it provides specific directions. For legal advisers and third parties, the practical implication is that commonly applicable statutes (for example, general planning, environmental or tenure rules) may be varied in their operation as to members of the project, and expectations based on general legislative regimes may not hold.

Ministerial discretion and non‑arbitrability (First Schedule Clause 14(4); Clause 11)

The arbitration clause excludes matters where the State or the Minister has been given a discretionary power. Clause 11 gives the Minister power to extend periods and dates “for such period or to such later date as the Minister thinks fit.” Those ministerial decisions are therefore likely non‑arbitrable and subject to administrative challenge only. Parties must therefore treat the Minister’s determinations as potentially final unless successfully judicially reviewed , a risk if the Company relies on extensions or equitable determinations.

Loss of contractual rights for failure to complete (First Schedule Clause 4(2)(a))

The Company may “lose its rights to establish port facilities” if it does not complete works within the time allowed or within any extension. That is a specific contractual forfeiture, not merely a damages remedy. It creates a high‑stakes operational deadline where failure can terminate discrete statutory entitlements granted by the agreement.

Broad indemnity and third‑party liability (First Schedule Clause 12)

The Company indemnifies the State and its servants against “all actions suits claims demands or costs of third parties” arising from the Company’s works. The scope is wide and could expose the Company to significant third‑party liability for environmental damage, personal injury or property claims. Adequate insurance and careful operational controls are necessary mitigants.

Easement registration that can bind without mortgagee consent (Third Schedule Clause 16(3)(a))

The Third Schedule provides that an easement over land under the Transfer of Land Act will be deemed registerable and may be registered “notwithstanding that the consent of any mortgagee ... has not been obtained.” This registration mechanism potentially binds land subject to existing mortgages without the mortgagee’s prior consent and survives subsequent changes in proprietorship, which raises financing and priority issues. Lenders need to factor in the possibility of statutory easements being registered without their consent.

Ambiguity left to future agreement (Clauses 4(5)-(7), 5(6)(b))

Environmental obligations (red mud containment, pollution prevention measures) are frequently framed as “in a manner agreed between the parties” or “as may be agreed.” That leaves material operational details open to future negotiation and makes compliance contingent on bilateral agreement and possibly arbitration. This creates uncertainty for regulators, local communities and financiers until clear technical standards and monitoring regimes are agreed.

Royalty mechanics and comparators (First Schedule Clause 14(1)(a)-(c))

The royalty is tied to alumina at 25 cents per ton with an escalation linked to world aluminium prices and a review every seven years that references the “rates of royalty in respect of bauxite ... paid to the Commonwealth of Australia and to all States thereof.” The calculation requires international price series and regulatory comparisons; disputes over the correct comparator, calculation period or applicability of caps could arise at review time.

Third‑party payments and Ministerial determination of “equitable” returns (Third Schedule amendments)

The 1976 amendments allow the Minister to determine the amount “equitable” to return to the Company where other users contribute to dredging or when the Minister determines equitable adjustments. Reliance on a single ministerial equitable determination introduces discretionary and political risk.

Heavy logistical commitments (First Schedule Clause 4(9))

The Company undertook to transport by rail not less than 40,000,000 tons of bauxite to Kwinana and to carry all necessary inputs by rail until a pipeline is installed. These are substantial operational commitments with exposure to railway capacity, turnaround times, and variable freight cost adjustment mechanisms (Second Schedule freight formula and schedule). Operational failure may trigger contractual consequences.

Registration mechanics vary by land tenure (Third Schedule Clause 16(3))

The instrument sets different registration routes depending on whether land is Torrens title, registered under the Land Act, or outside Transfer of Land operation. Compliance requires careful procedural steps with multiple registries, and failure to follow the specified path may affect enforceability.

Export control remains Commonwealth domain (First Schedule Clause 4(3))

The agreement obliges the Company to obtain required Commonwealth export licences. Securing those licences is not guaranteed and might condition the commercial viability of production and sales.

No explicit criminal sanctions in the instrument text

The agreement creates civil and statutory obligations but does not quantify fines or criminal penalties; enforcement depends on contractual remedies, indemnity claims, arbitration and administrative powers. Parties should not rely on criminal deterrents for compliance.

Taken together, these “gotchas” point to the need for careful project governance, insurance and financing structures that account for ministerial discretion, possible non‑arbitrable administrative decisions, land‑title registration peculiarities, and long‑tail environmental and indemnity exposures. The text of the Act and schedules is the controlling legal document for these risks.

This section sets out concrete compliance steps and processes the Company, State agencies and third parties should follow to satisfy the Act and the agreement’s requirements as reproduced in the First Schedule and amended by the supplementary schedules.

Ensure the statutory condition for operation has been met

Confirm the ratifying Bill was passed and is in force. The First Schedule envisages the agreement’s provisions coming into operation upon passage of the Bill referred to in Clause 3; s 2(1) of the Act ratifies the agreement and s 2(2) directs the agreement to take effect as if enacted. A compliance audit should confirm that the Act is in force and that any timing conditions have been satisfied (First Schedule Clause 2(1)-(3); s 2).

Document and register the Company’s notices and commencement

Before construction, the Company must give written notice of intention to proceed and then commence construction to trigger timing obligations (First Schedule Clause 4(1)). Keep formal records of notices, dates of commencement, progress milestones, and any evidence demonstrating “best endeavours” to obtain finance or sales contracts should extensions be sought under the ministerial power in Clause 11.

Obtain required licences and authorisations

Commonwealth export licences: Lodge and obtain all necessary Commonwealth export licences for alumina or aluminium (First Schedule Clause 4(3)).
Water licences: Prepare and submit the full groundwater report to the State to support a Rights in Water and Irrigation Act licence; obtain license specifying maximum annual quantity and keep records to support any amendment consultations (First Schedule Clause 7(1)-(3)).
Pipeline authorisations: If the Company intends to construct a gas pipeline or apply for pipeline authorisation, submit proposals to the Minister and engage in the two‑month consultation procedure; if the Minister proposes changes, consider arbitration where the Company considers alterations unreasonable (Clause 5(5)-(6)(b)). Comply with the Public Works Act procedures and obtain the Minister’s certificate where required under Third Schedule Clause 16(2).

Secure port leases and hold to approved plans

Secure a lease or licence from the Bunbury Port Authority for the land required; ensure the land area and lease terms compute rental at $200 per acre unless otherwise agreed (First Schedule Clause 5(4)(d) and Clause 4(2)(e)). Prepare and submit plans and specifications for port facilities for State approval before constructing shiploaders, conveyors and storage bins (Clause 4(2)(a)). Ensure any works on port land are consistent with the modifications to the Bunbury Port Authority Act (Fourth Schedule Clause 5A).

Budget and schedule the Company’s financial obligations

Dredging advances/contributions: Confirm the Company’s payment profile as amended (Third Schedule amendments: advance of $2,300,000 and additional $4,000,000 for deep dredging). Monitor the State’s notifications of progress payments and remit the Company’s proportion promptly (Clause 4(2)(c) as amended).
Wharfage and surcharge payments: Calculate wharfage as per the current wharfage regime , the original 15 cents, then the 1976 tiered schedule (Third Schedule Clauses 4A and 4B) and any Alumina Surcharge obligations (Third Schedule paragraph (hh)). Maintain accurate tonnage records to apply escalations, throughput reductions and surcharges appropriately (Clause 4(2)(f) and Third Schedule).
Freight rate adjustments: Implement the freight adjustment formula introduced in the 1972 Second Schedule and track the indices (hourly rates, distillate price, steel rail price) required for periodic adjustments; plan to engage in negotiations or arbitration if periodic five‑year re‑evaluations indicate a need to change the formula (Second Schedule).

Rail, road and logistics compliance

Coordinate with the Railways Commission for approvals of locomotives and rolling stock provided by the Company, and agree lease terms for rolling stock where required (Clause 4(9)(f)).
Meet obligations to transport specified tonnages by rail and ensure wagons are trimmed and loaded to prescribed tonnages (Clause 4(9)(a)-(i)). Track composite train tonnages and adhere to turnaround time expectations in the freight schedule to avoid rate reviews (Schedule notes).

Environmental, waste and community obligations

Red mud and effluent: Prepare and agree on a containment plan with the State that confines red mud and effluent “on and within the boundaries of the Pinjarra refinery site” (Clause 4(5)). Document monitoring, design criteria, contingency plans, and financial provisions for long‑term containment and closure.
Pollution prevention: Enter into written agreements with the State about pollution prevention measures for rivers and groundwater, with trigger points for State remediation if the aquifer underperforms (Clause 4(6) and Clause 7(2)-(3)).
Forestry and erosion: Coordinate with the Conservator of Forests to set reforestation and erosion prevention programmes and document the Company’s financial and operational responsibilities for restoration (Clause 4(8)).
Housing and community services: Participate in housing and land development schemes in accordance with Clause 6, and budget for the Company’s fair and reasonable share of community infrastructure costs.

Title, easements and land acquisition procedures

For pipeline easements and any land requiring resumption: follow the specific procedures set out in the Third Schedule Clause 16 for registration , obtain the Minister’s certificate (Clause 16(2)), prepare the instrument for registration under the Transfer of Land Act or Registrar of Deeds or Land Act registers as applicable (Clause 16(3)). Confirm timing and fees with the Registrar or Minister and advise financiers that statutory registration may proceed without mortgagee consent.

Reporting, payments and records

Royalty returns and payment: provide quarterly returns of alumina in January, April, July and October and pay royalties within 60 days of each quarter end as required under the substituted Clause 14(3). Maintain accounting records that support royalty calculations and escalation mechanics (Clause 14(1)(b)-(c)).
Freight and wharfage accounting: maintain tonnage and freight records and reconcile to the freight schedule and wharfage clauses; be prepared for independent audit certificates (First Schedule Freight Schedule paragraph 4(b) as amended).
Smelter feasibility reports: comply with the Company’s obligations to furnish smelter feasibility information annually or on request by the State while respecting the confidentiality carve‑outs for proprietary process and financial information (Clause 9(1)). Maintain a record of information provided and any confidentiality protections in place.

Dispute resolution and record of ministerial decisions

Where disagreements arise, follow the agreement’s prescribed arbitration sequence using the Arbitration Act 1895 unless the matter is a discretionary decision by the State or the Minister. For ministerial decisions (extensions, determinations of “equitable” returns, approval of pipeline variations), keep robust documentary records and be prepared to seek administrative review if necessary (Clause 11; Clause 14(4); Third Schedule Clause 16(2)).
When arbitration is initiated, ensure contemporaneous record keeping of notices, valuations, and technical evidence to support positions on costs, royalties, wharfage, dredging paybacks and other disputed matters.

Insurance, indemnity and finance

Maintain insurance cover that adequately protects against third‑party claims for works, environmental liabilities, construction risks, and indemnity obligations under Clause 12. Factor in the possible registration of easements against financed land without mortgagee consent when structuring security packages.

Legal and compliance governance

Appoint legal counsel and compliance liaisons experienced in statutory agreements, easement registration, public works resumption processes and arbitration practice. Develop compliance checklists mapped to the agreement’s specific clauses, ministerial notification points, licence applications, and payment schedules.

Each step above refers to the clauses and schedules of the agreement as reproduced in the Act. Parties should document contemporaneous communications with Ministers and State agencies, as several obligations and adjustments are subject to ministerial approval or ministerial determinations (e.g. dredging reimbursements, pipeline authorisations, and time extensions).

Compliance is therefore not a single act but an ongoing governance process touching project financing, licences, infrastructure construction, environmental management, and dispute avoidance or dispute resolution procedures as outlined in the Act and its Schedules.

Alumina Refinery (Pinjarra) Agreement Act 1969

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