THIS AGREEMENT is made the 26 day of February 1994
B E T W E E N :
THE HONOURABLE RICHARD FAIRFAX COURT, B.Com., 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 called “the State”) of the one part
AND
REYNOLDS AUSTRALIA ALUMINA, LTD. A.R.B.N. 009 473 492 a corporation incorporated under the laws in force in the State of Delaware in the United States of America and having its registered office in the State of Western Australia at 8th Floor, Griffin Centre, 28 The Esplanade, Perth, THE SHELL COMPANY OF AUSTRALIA LIMITED A.C.N. 004 610 459 a company incorporated in the State of Victoria and having its registered office at Level 18, 1 Spring Street, Melbourne, KOBE ALUMINA ASSOCIATES (AUSTRALIA) PTY. LIMITED A.C.N. 008 907 524 a company incorporated in the State of Western Australia and having its registered office at 7th Floor, 26 St. George’s Terrace, Perth and NISSHO IWAI ALUMINA PTY. LIMITED A.C.N. 009 309 344 a company incorporated in the State of Western Australia and having its registered office at Level 5, Capita Centre, 5 Mill Street, Perth (hereinafter collectively called “the Joint Venturers” in which term shall be included their respective successors and permitted assigns and appointees) of the other part.
A. The State and the Joint Venturers (pursuant to certain deeds of assignment dated the 7th day of February, 1980 and the 31st day of May, 1988) are now the parties to the agreement dated the 22nd day of August, 1974 (the execution of which by the State was authorised pursuant to section 3 of the Alumina Refinery (Worsley) Agreement Act 1973) as varied by an agreement dated the 18th day of April, 1978 approved and ratified by the Alumina Refinery (Worsley) Agreement Act Amendment Act 1978 and as further varied by an agreement dated the 28th day of May, 1981 and as further varied by an agreement dated the 21st day of October, 1982 approved and ratified by the Alumina Refinery (Worsley) Agreement Amendment Act 1982 and as further varied by an agreement dated the 25th day of July, 1983 and as further varied by an agreement dated the 24th day of September, 1992 approved and ratified by the Alumina Refinery (Worsley) Agreement Amendment Act 1992 (which agreement as so varied is hereinafter referred to as “the Principal Agreement”).
B. The parties desire to vary the Principal Agreement.
NOW THIS AGREEMENT WITNESSES —
Unless the context otherwise requires 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 until a Bill to approve and ratify this Agreement is passed by the Legislature of the State of Western Australia and comes into operation as an Act.
The Principal Agreement is hereby varied by inserting after Clause 12B the following clause —
“12C. (1) The Joint Venturers may in accordance with the provisions of this Clause operate the conveyor constructed by them pursuant to Clause 5(2)(a) hereof for the transport of bauxite to the refinery between the points marked A and B on the plan marked Z (“Plan Z”), initialled by or on behalf of the parties hereto for the purposes of identification, at all times notwithstanding any provisions of the Environmental Protection Act 1986 or any other Act or law or any regulation, by‑law or other exercise of statutory power (whether by the State or any local or other authority) relating to noise.
(2) The Joint Venturers shall operate the said conveyor so as to ensure that the level of noise received at each of the measurement points marked R, S, T and U on Plan Z as a result of operation of the said conveyor for more than 90% of any 15 minute period of operation is less than 60 dB LA Slow (or such other level and/or measurement points and/or measurement method as may be agreed between the Minister and the Joint Venturers from time to time).
(3) The Joint Venturers shall provide for the purposes of this Clause appropriate measuring equipment approved by the Minister and shall operate this equipment in accordance with arrangements to be agreed between the Minister and the Joint Venturers from time to time and shall report the results thereof to the Minister at such times and in such format as may be required by the Minister.
(4) If and whenever the level of noise received from the said conveyor measured in accordance with subclause (2) of this Clause exceeds or has exceeded the level referred to in that subclause, the Minister may require the Joint Venturers to take, or may take at the expense of the Joint Venturers such steps as are appropriate to reduce the level of noise from the said conveyor to the said level and/or to prevent any further such occurrences (which may, in appropriate circumstances, include the temporary suspension of operation of the said conveyor).
(5) Notwithstanding the foregoing provisions of this Clause, the Joint Venturers shall at all times take such steps as may be reasonable to maintain and service the said conveyor or any extension thereof so as to limit the noise caused by the operation of the said conveyor and any extension thereof.
(6) Notwithstanding any right or cause of action vested in or available to or which might otherwise be vested in or available to any person, no right or claim (including, without limitation, any right of abatement or any claim for damages or an injunction) shall lie against the Joint Venturers or their agents employees officers or contractors by reason of any loss of enjoyment or amenity value, or by reason of any change in the aesthetic environment, alleged to be occasioned by noise caused by the operation of the said conveyor entering any land nor shall the Joint Venturers be liable to pay compensation for, or in respect of any damage attributable to, such noise.
(7) (a) If the Joint Venturers at any time during the currency of this Agreement desire to extend the conveyor beyond the point marked B on Plan Z and to have the foregoing provisions of this Clause apply to the extension, they shall submit their proposals for the extension to the Minister and provide the Minister with such information as to the nature and operation of the proposed extension to the conveyor as the Minister may reasonably require.
(b) Within two months of the Minister receiving all information reasonably required by him or her under paragraph (a) of this subclause, subject to:
(i) the implementation of the proposals being approved under Part IV of the Environmental Protection Act 1986 by the Minister responsible for the administration of that Act in accordance with paragraph (d) of this subclause; and
(ii) the equipment to be used in the proposed extension to the conveyor being of a standard which will emit noise at a level less than or equal to the existing conveyor,
the Minister shall approve amendments to Plan Z in accordance with the proposals to show the route of the extension to the conveyor, subject to such conditions as the Minister may reasonably require, provided that the Minister may not impose any conditions which are unrelated to the mitigation of noise from the proposed extension to the conveyor or which are more onerous than the conditions applying to the existing conveyor.
(c) Where the Minister approves an amendment of Plan Z pursuant to paragraph (b) of this subclause, the provisions of subclauses (1) to (6) of this Clause shall thenceforth apply to the conveyor as shown on the amended Plan Z.
(d) In relation to any proposals referred to in paragraph (b)(i) of this subclause the Minister responsible for the administration of the Environmental Protection Act 1986 shall not refuse approval for the implementation of the said proposals based in whole or in part on any ground which relates to noise emissions from the proposed extension to the conveyor or grant that approval subject to any condition which relates to such noise emissions.”.
Clause 17 of the Principal Agreement is hereby varied by deleting “Nothing” and substituting the following —
“Subject to Clause 12C hereof, nothing”.
IN WITNESS WHEREOF this Agreement has been executed by or on behalf of the parties hereto the day and year first hereinbefore mentioned.
| SIGNED by the said THE HONOURABLE RICHARD FAIRFAX COURT in the presence of: | ) ) ) | R F Court |
MINISTER FOR RESOURCES DEVELOPMENT
Colin Barnett
| EXECUTED by REYNOLDS AUSTRALIA ALUMINA, LTD. by its duly appointed attorney John David Cooper McLean and countersigned by Richard Dennis Gee, both in the presence of: | ) ) ) ) ) ) | REYNOLDS AUSTRALIA ALUMINA, LTD. By its attorney J McLean _________________<br>Signature |
G Faliti R Gee
Signature of Witness Countersigned
Name of Witness
GIUSEPPINA FALITI
Address of Witness
3/9 THE ESPLANADE
S. PERTH WA 6151
| THE COMMON SEAL of THE SHELL COMPANY OF AUSTRALIA LIMITED was hereunto affixed by authority of the Directors in the presence of: | ) ) ) ) ) | [C.S.] |
Director I R Freer
Secretary B H Pascoe
| THE COMMON SEAL of KOBE ALUMINA ASSOCIATES (AUSTRALIA) PTY. LIMITED was hereunto affixed by authority of the Directors in the presence of: | ) ) ) ) ) | |
Director T Ueno
Secretary J A Jansen
EXECUTED by NISSHO IWAI NISSHO IWAI
ALUMINA PTY. LIMITED by its ALUMINA LIMITED
duly appointed attorney KOBE By its attorney
ALUMINA ASSOCIATES
(AUSTRALIA) PTY. LIMITED which
affixed its common seal by the
authority of the Directors in
the presence of:
Director T Ueno [C.S.]
Secretary J A Jansen
alumina
[Fifth Schedule inserted: No. 15 of 1995 s. 7.]
Notes
1 This is a compilation of the Alumina Refinery (Worsley) Agreement Act 1973 and includes the amendments made by the other written laws referred to in the following table. The table also contains information about any reprint.
Compilation table
Short title
Number and year
Assent
Commencement
Alumina Refinery (Worsley) Agreement Act 1973
67 of 1973
28 Nov 1973
s. 5: 16 May 1975 (see s. 2(2) and Gazette 16 May 1975 p. 1345); balance: 28 Nov 1973 (see s. 2(1))