Ord River Hydro Energy Project Agreement Act 1994 (Western Australia)

The Ord River Hydro Energy Project Agreement Act 1994 (the Act) ratifies and authorises implementation of a contract between the State of Western Australia and a Pacific Hydro group of companies (the Partnership), and makes the text of that contract (the Agreement) effective as law by including it as Schedule 1. Section 4(1) expressly ratifies the Agreement and section 4(2) authorises its implementation. Section 4(3) provides that, without limiting or otherwise affecting the Government Agreements Act 1979, the Agreement operates and takes effect despite any other Act or law. The Schedule contains the full project agreement executed on 26 October 1994 and annexes the detailed mutual rights and obligations for development, construction and operation of a hydroelectric project at Lake Argyle together with transmission lines to the Argyle diamond mine and to Kununurra.

Mechanically, the Act does three things. First, it incorporates and renders the Agreement enforceable as a statutory instrument by ratification in the Act itself (s 4(1) and Schedule 1). Second, it gives the Agreement primacy over inconsistent State laws by declaring the Agreement effective despite any other Act or law (s 4(3)). Third, it gives effect to the specific terms in the Agreement that modify or disapply identified State statutes in respect of the Project, for example the Land Act 1933, the Electricity Act 1945, parts of the Public Works Act 1902 and certain provisions of water legislation (see Clauses 11, 14, 23 and 31 of the Agreement).

The Agreement’s stated purpose is to enable the Partnership to develop a hydroelectric power station of at least 30 MW at Lake Argyle and 132 kV transmission lines to supply the Argyle diamond mine and Kununurra, and to facilitate SE CWA access and supply (Agreement recitals). The Agreement sets out a package of rights, approvals, concessions and obligations designed to secure project development within specified timeframes, including: land tenure arrangements (leases, easements for up to 27 years with a 15 year extension, cl 11), streamlined procedural modifications to the Land Act and Electricity Act (cl 11(2), cl 14), stamping and training levy exemptions (cl 35, cl 18), local content and reporting obligations (cl 12, cl 5), environmental management obligations subject to the Environmental Protection Act 1986 and laws relating to traditional usage (cl 7, cl 13, cl 30), and dispute resolution by arbitration (cl 36).

Western Australia

Ord River Hydro Energy Project Agreement Act 1994

Western Australia

Ord River Hydro Energy Project Agreement Act 1994

Contents

‑1. Short title 1

Commencement 1
Interpretation 1
Agreement ratified and implementation authorised 1

Schedule 1 — Ord River Hydro Energy Project Agreement

Notes

Compilation table 38

Defined terms

Western Australia

Ord River Hydro Energy Project Agreement Act 1994

An Act to ratify, and authorise the implementation of, an agreement between the State and Pacific Hydro Group Two Pty. Ltd., Pacific Hydro Group Three Pty. Ltd. and Pacific Hydro Group Four Pty. Ltd. and Pacific Hydro Limited in relation to the development of a hydro electric power station at Lake Argyle and transmission lines to the Argyle diamond mine and Kununurra.

1. Short title

This Act may be cited as the Ord River Hydro Energy Project Agreement Act 1994 1.

2. Commencement

This Act comes into operation on the day on which it receives the Royal Assent 1.

3. Interpretation

In this Act, unless the contrary intention appears —

the Agreement means the Ord River Hydro Energy Project Agreement, a copy of which is set out in Schedule 1, and includes the Agreement as varied from time to time in accordance with its provisions.

4. Agreement ratified and implementation authorised

(1) The Agreement is ratified.

(2) The implementation of the Agreement is authorised.

(3) Without limiting or otherwise affecting the application of the Government Agreements Act 1979, the Agreement operates and takes effect despite any other Act or law.

Schedule 1 — Ord River Hydro Energy Project Agreement

[s. 3]

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

ORD RIVER HYDRO ENERGY PROJECT AGREEMENT

INDEX 2

Page

Definitions 5
Interpretation 8
Initial obligation of the State 8
Ratification and operation 8
Initial obligations of the Partnership 9
Lands for works 9
(1) Partnership to submit proposals 10

(2) Order of proposals 12

(3) Use of existing infrastructure 12

(4) Additional submissions 12

(1) Consideration of proposals 12

(2) Advice of Minister’s decision 13

(3) Consultation with Minister 13

(4) Minister’s decision subject to arbitration 13

(5) Arbitration award 14

(6) Effect of non‑approval of proposals 14

(7) Implementation of proposals 14

Extension or termination of Agreement 15
Additional proposals 15
(1) Land tenures 16

(2) Modification of Land Act 16

(3) Stone sand clay and gravel 17

Use of local labour professional
services and materials 17
Protection and management of the environment 19
Electricity Act 19
(1) Roads — Private roads 20

(2) Maintenance of public roads 21

(3) Upgrading of public roads 21

(4) Acquisition of private roads 21

Water 21
Sales to State Energy Commission 21
Training levy exemption 22
Zoning 22
Rating 22
No discriminatory rates 22
No resumption 23
Resumption for the purposes of this Agreement 23
Assignment 24
Variation 25
Force majeure 25
Power to extend periods 26
Determination of Agreement 26
Effect of cessation or determination of Agreement 27
Environmental protection 28
Water Supply Agreement 28
Indemnity 29
Commonwealth licences and covenants 29
Subcontracting 30
Stamp duty exemption 30
Arbitration 30
Consultation 31
Notices 31
Term of Agreement 32
Joint and several 32
Guarantee 32
Applicable law 32

THIS AGREEMENT is made the 26th day of October 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 said State and its instrumentalities from time to time (hereinafter called “the State”) of the first part PACIFIC HYDRO GROUP TWO PTY. LTD. ACN 061 436 815 a company incorporated in the State of Victoria, PACIFIC HYDRO GROUP THREE PTY. LTD. ACN 064 817 438 a company incorporated in the Australian Capital Territory and PACIFIC HYDRO GROUP FOUR PTY. LTD. ACN 064 817 518 a company incorporated in the Australian Capital Territory each of the companies has its principal office at Suite 4, 1st Floor, 651 Canterbury Road, Surrey Hills, Victoria (hereinafter collectively called “the Partnership” in which term shall be included the successors and permitted assigns of the parties comprising the Partnership) of the second part and PACIFIC HYDRO LIMITED ACN 057 279 508 a company incorporated in the State of Victoria and having its principal office at Suite 4, 1st Floor, 651 Canterbury Road, Surrey Hills aforesaid (hereinafter called “the Guarantor”) of the third part.

W H E R E A S:

(a) for the purpose of providing electricity to the operations carried on pursuant to the Argyle Diamond Agreement (as hereinafter defined) and the Argyle Tourist Village and facilitating access by the State Energy Commission of Western Australia to electricity the Partnership intends to develop a hydro electric power station of at least 30 megawatts at Lake Argyle, a 132 kilovolt high voltage transmission line from the power station to the Argyle diamond mine and a 132 kilovolt transmission line from the power station to Kununurra;

(b) the State, for the purpose of promoting employment opportunity and industrial development in Western Australia, has agreed to assist the establishment and operation of the said works upon and subject to the terms of this Agreement.

NOW THIS AGREEMENT WITNESSES:

Definitions

In this Agreement subject to the context —

“advise”, “apply”, “approve”, “approval”, “consent”, “certify”, “direct”, “notify”, “request”, or “require”, means advise, apply, approve, approval, consent, certify, direct, notify, request, or require in writing as the case may be and any inflexion or derivation of any of those words has a corresponding meaning;

“approved proposal” means a proposal approved or deemed to be approved under this Agreement;

“Argyle Diamond Agreement” means the Agreement (as amended from time to time) ratified by the Diamond (Argyle Diamond Mines Joint Venture) Agreement Act 1981;

**“Argyle facilities”** means a system for the transmission of electricity from the power station to the Argyle mining area, as defined in the Argyle Diamond Agreement, by way of a 132 kilovolt high voltage transmission line and transformation to mine distribution voltage;

“Clause” means a clause of this Agreement;

**“Commonwealth”** means the Commonwealth of Australia and includes the Government for the time being thereof;

**“Electricity Act”** means the *Electricity Act 1945*;

**“EP Act”** means the *Environmental Protection Act 1986*;

**“Kununurra facilities”** means a system for the transmission of electricity from the power station to Kununurra by way of a 132 kilovolt high voltage transmission line and transformation to State Energy Commission distribution voltage;

**“Land Act”** means the *Land Act 1933*;

**“laws relating to traditional usage”** means laws applicable from time to time in Western Australia in respect of rights or entitlements to or interests in land or waters which rights, entitlements or interests are acknowledged, observed or exercisable by Aboriginal persons (whether communally or individually) in accordance with Aboriginal traditions, observances, customs or beliefs;

**“local authority”** means the council of a municipality that is a city, town or shire constituted under the *Local Government Act 1960*;

“Minister” means the Minister in the Government of the State for the time being responsible for the administration of the Act to ratify this Agreement and pending the passing of that Act means the Minister for the time being designated in a notice from the State to the Partnership and includes the successors in office of the Minister;

**“Minister for Lands**” means the Minister in the Government of the State for the time being responsible for the administration of the Land Act;

“month” means calendar month;

**“notice”** means notice in writing;

**“Partnership’s workforce”** means the persons (and the dependents of those persons) engaged whether as employees, agents or contractors in the construction and operation of the power station, the Argyle facilities and the Kununurra facilities;

**“person”** or **“persons”** includes bodies corporate;

**“power station”** means a hydro electric power station with a nominal total installed capacity of at least 30 megawatts;

**“power station site”** means the land for the site for the power station agreed between the Minister and the Partnership pursuant to Clause 6;

**“private roads”** means the roads referred to in subclause (1) of Clause 15 and any other roads constructed by the Partnership in accordance with an approved proposal or agreed by the parties to be a private road for the purposes of this Agreement;

**“project”** means the power station, the Argyle facilities and the Kununurra facilities;

“public road” means a road as defined by the Road Traffic Act 1974;

**“Rights in Water and Irrigation Act”** means the *Rights in Water and Irrigation Act 1914*;

“Public Works Act” means the Public Works Act 1902;

**“said State”** means the State of Western Australia;

“State Energy Commission” means The State Energy Commission of Western Australia as described in section 7 of the State Energy Commission Act 1979 and includes any successor of the State Energy Commission engaged in the supply of electrical power;

**“State Energy Commission Act”** means the *State Energy Commission Act 1979*;

“subclause” means subclause of the Clause in which the term is used;

“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;

**“Water Authority”** means the Water Authority of Western Australia established pursuant to section 4 of the Water Authority Act;

**“Water Authority Act”** means the *Water Authority Act 1984*;

**“Water Supply Agreement”** means an agreement between the Water Authority and the Partnership for the provision of water to the power station which is approved by the Minister for the purpose of Clause 31.

Interpretation

In this Agreement —

(a) monetary references are references to Australian currency unless otherwise specifically expressed;

(b) power given under any clause other than Clause 27 to extend any period or date shall be without prejudice to the power of the Minister under Clause 27;

(d) words in the singular shall include the plural and words in the plural shall include the singular according to the requirements of the context;

(e) one gender includes the other genders; and

(f) reference to an Act includes the amendments to that Act for the time being in force and also any Act passed in substitution therefor or in lieu thereof and the regulations for the time being in force thereunder.

Initial obligation of the State

The State shall 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 31 December 1994 or such later date as may be agreed between the parties hereto.

Ratification and operation

(1) The provisions of this Agreement other than this Clause and Clauses 1, 2 and 3 shall not come into operation unless and until the Bill referred to in Clause 3 has been passed as an Act before 31 December 1994 or such later date (if any) as the parties hereto agree upon.

(2) If before 31 December 1994 or such later agreed date the said Bill has not commenced to operate as an Act then unless the parties hereto otherwise agree this Agreement shall then cease and determine and no party hereto shall have any claim against any other party 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 Partnership

(1) The Partnership shall continue its field and office engineering, environmental, market and finance studies and other matters necessary for the purposes of Clause 6 and to enable it to finalise and to submit to the Minister the detailed proposals referred to in Clause 7.

(2) The Partnership shall keep the State fully informed in writing quarterly as to the progress and results of its activities under subclause (1).

(3) The Partnership shall co‑operate with the State and consult with the representatives or officers of the State regarding matters referred to in subclauses (1) and (2) and any other relevant studies in relation to those subclauses that the Minister may wish to undertake.

(4) The State shall subject to the adequate protection of the environment (including flora and fauna) and the land affected (including improvements thereon) and laws relating to traditional usage allow the Partnership to enter upon Crown lands (including land the subject of a pastoral lease) to the extent reasonably necessary for the purpose of undertaking its obligations under this Clause.

Lands for works

(1) As soon as practicable during its studies under Clause 5, and from time to time during those studies as required by either of the Partnership or the Minister, the Partnership shall meet with the Minister to seek agreement on the power station site and on routes for the Argyle facilities and the Kununurra facilities and the lands required for those facilities. In seeking such agreement, regard shall be had to achieving a balance between engineering matters including the costs of the works, the nature and use of any lands concerned and interests therein and the cost to both the Partnership and the State of acquiring the land.

(2) Where the Minister and the Partnership propose to reach agreement on any such lands (which may include alternative lands), the Minister shall refer the lands proposed to the Minister for Lands and the Minister for Lands shall act in relation to any such reference in accordance with Part IA of the Land Act, and the provisions of that Part shall apply to the reference, as if the reference were a proposal that the land be disposed of under that Act.

(3) Forthwith after sections 27A to 27G of the Land Act have been complied with, the Minister for Lands shall advise the Minister whether he would or would not be prepared to dispose under the Land Act of the land the subject of the reference for the purposes of the power station site, the Argyle facilities or the Kununurra facilities as the case may be.

(4) If the advice of the Minister for Lands pursuant to subclause (3) is that he would not be prepared to dispose of any land the subject of a reference under subclause (2) then the Partnership and the Minister shall seek to agree on other land for the purposes of this Agreement. The provisions of subclauses (1), (2), and (3) and this subclause shall apply to any such other land proposed to be agreed between the Partnership and the Minister.

(5) Where pursuant to subclause (3) or (4) the Minister for Lands has advised that he would be prepared to dispose of land under the Land Act in respect of a proposed route, the power station site, the Argyle facilities or the Kununurra facilities, section 7A of that Act shall not apply to any application by the Partnership pursuant to Clause 11 for that land and section 33E of the Public Works Act shall not apply to a subsequent setting apart or taking pursuant to the Public Works Act or this Agreement of that land.

(6) Notwithstanding anything herein contained if the power station site and the routes for the Argyle facilities and the Kununurra facilities and the lands required for those facilities have not been agreed between the Minister and the Partnership by 31 March 1995 then unless the Minister and the Partnership otherwise agree this Agreement shall on that date cease and determine and no party hereto shall have any claim against any other party with respect to any matter or thing arising out of, done, performed or omitted to be done or performed under this Agreement.

Partnership to submit proposals

(1) Subject to and in accordance with the EP Act, the laws relating to traditional usage and the provisions of this Agreement the Partnership shall within 6 months of the date of agreement on the lands for the project pursuant to Clause 6 submit to the Minister to the fullest extent reasonably practicable its detailed proposals (including plans where practicable and specifications where reasonably required by the Minister and any other details normally required by the local authority in which area any of the works are to be situated and by the State Energy Commission in relation to electricity generating or transmission works) with respect to the establishment and operation of the project and shall include the location in accordance with Clause 6, area, lay‑out, design, quantities, materials and time programme for the commencement and completion of construction or the provision (as the case may be) of each of the following matters, namely —

(a) the power station site and routes for the electricity transmission lines and any leases, licences or easements of land required from the State;

(b) the power station and ancillary works and facilities;

(d) the stilling pond;

(e) the switching station;

(f) the Argyle facilities;

(g) the Kununurra facilities;

(h) the provision of electricity to the Argyle Tourist Village;

(i) interconnection facilities;

(j) roads serving the power station, the Argyle facilities and the Kununurra facilities;

(k) accommodation and ancillary facilities for the Partnership’s workforce on or in the vicinity of the power station site and housing or other appropriate accommodation and facilities generally for the Partnership’s workforce;

(l) water supply;

(m) any other works, services or facilities desired by the Partnership;

(n) use of local labour professional services manufacturers suppliers contractors and materials; and

(o) an environmental management programme as to measures to be taken in respect of the Partnership’s activities under this Agreement for rehabilitation and the protection and management of the environment.

Order of proposals

(2) Each of the proposals pursuant to subclause (1) may with the approval of the Minister or if so required by him be submitted separately and in any order as to the matter or matters mentioned in one or more of paragraphs (a) to (o) of subclause (1).

Use of existing infrastructure

(3) The proposals relating to any of the matters mentioned in subclause (1) of this Clause may with the approval of the Minister and that of any third parties concerned instead of providing for the construction of new facilities of the kind therein mentioned other than the power station, the Argyle facilities and the Kununurra facilities provide for the use by the Partnership upon reasonable terms and conditions of any existing facilities of such kind.

Additional submissions

(4) At the time when the Partnership submits the said proposals it shall submit to the Minister details of any services (including any elements of the project investigations design and management) and any works materials plant equipment and supplies that it proposes to consider obtaining from or having carried out or permitting to be obtained from or carried out outside Australia together with its reasons therefor and shall, if required by the Minister, consult with the Minister with respect thereto.

Consideration of proposals

(1) Subject to the EP Act and laws relating to traditional usage, in respect of each proposal pursuant to subclause (1) of Clause 7 the Minister shall —

(a) approve of the proposal without qualification or reservation; or

(b) defer consideration of or decision upon the same until such time as the Partnership submits a further proposal or proposals in respect of some other of the matters mentioned in subclause (1) of Clause 7 not covered by the said proposal; or

(c) require as a condition precedent to the giving of his approval to the said proposal that the Partnership makes such alteration thereto or comply with such conditions in respect thereto as he (having regard to the circumstances including the overall development of and the use by others as well as the Partnership of all or any of the facilities proposed to be provided) thinks reasonable and in such a case the Minister shall disclose his reasons for such alterations or conditions,

PROVIDED ALWAYS that where implementation of any proposals hereunder have been approved pursuant to the EP Act subject to conditions or procedures, any approval or decision of the Minister under this Clause shall if the case so requires incorporate a requirement that the Partnership make such alterations to the proposals as may be necessary to make them accord with those conditions or procedures.

Advice of Minister’s decision

(2) The Minister shall within two months after receipt of proposals pursuant to subclause (1) of Clause 7 or where the proposals are to be assessed under section 40(1)(b) of the EP Act or where laws relating to traditional usage apply then within two months after service on him of an authority under section 45(7) of the EP Act or satisfaction of the requirements under laws relating to traditional usage (as the case may be) give notice to the Partnership of his decision in respect to the proposals.

Consultation with Minister

(3) If the decision of the Minister is as mentioned in either of paragraphs (b) or (c) of subclause (1) the Minister shall afford the Partnership full opportunity to consult with him and should it so desire to submit new or revised proposals either generally or in respect to some particular matter.

Minister’s decision subject to arbitration

(4) If the decision of the Minister is as mentioned in either of paragraphs (b) or (c) of subclause (1) and the Partnership considers that the decision is unreasonable the Partnership within two months after receipt of the notice mentioned in subclause (2) may elect to refer to arbitration in the manner hereinafter provided the question of the reasonableness of the decision PROVIDED THAT any requirement of the Minister pursuant to the proviso to subclause (1) shall not be referable to arbitration hereunder.

Arbitration award

(5) An award made on an arbitration pursuant to subclause (4) shall have force and effect as follows —

(a) if by the award the dispute is decided against the Partnership then unless the Partnership within 3 months after delivery of the award gives notice to the Minister of its acceptance of the award this Agreement shall on the expiration of that period of 3 months cease and determine and neither the State nor the Partnership shall 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; or

(b) if by the award the dispute is decided in favour of the Partnership the decision shall take effect as (and be deemed to be) a notice by the Minister that he is so satisfied with and approves the matter or matters the subject of the arbitration.

Effect of non‑approval of proposals

(6) Notwithstanding that under subclause (1) any proposals of the Partnership are approved by the Minister or deemed to be approved as a consequence of an arbitration award, unless each and every such proposal and matter is so approved or deemed to be approved within 12 months of the date for submission of proposals pursuant to subclause (1) of Clause 7 or by such extended date or period if any as the Partnership shall be granted or be entitled to pursuant to the provisions of this Agreement then the Minister may give to the Partnership 12 months notice of intention to determine this Agreement and unless before the expiration of the said 12 months period all the detailed proposals and matters are so approved or deemed to be approved this Agreement shall cease and determine subject however to the provisions of Clause 29.

Implementation of proposals

(7) Subject to and in accordance with the EP Act and any approvals and licences required under that Act and laws relating to traditional usage the Partnership shall implement the approved proposals in accordance with the terms thereof so that each of the power station, the Argyle facilities and the Kununurra facilities is constructed within 2 years of the final approval of the proposals. For the purpose of this subclause, the power station, the Argyle facilities and the Kununurra facilities shall be deemed to be constructed when they are able to be used for the purposes for which they were built.

Extension or termination of Agreement

(1) The periods set forth in subclause (1) of Clause 7 and subclauses (6) and (7) of Clause 8 will be extended (in addition to any extension granted pursuant to Clause 26 or 27) upon request of either the Partnership or the State for such reasonable period or periods as may be necessary from time to time to enable either of the parties hereto to comply with laws relating to traditional usage.

(2) If either the Partnership or the State considers the development of the project should not proceed having regard to matters arising out of laws relating to traditional usage or by reason of claims or objections lodged under laws relating to traditional usage, that party shall consult with the other in regard thereto. Subject to such consultation, either party may at any time before the approval or determination of the proposals required pursuant to subclause (1) of Clause 7 determine this Agreement by notice to the other whereupon this Agreement shall cease and determine and no party hereto shall have any claim against any other party with respect to any matter or thing arising out of, done, performed or omitted to be done or performed under this Agreement.

Additional proposals

(1) If the Partnership at any time during the continuance of this Agreement desires to significantly modify expand or otherwise vary its activities carried on pursuant to any approved proposals it shall give notice of such desire to the Minister and within 2 months thereafter shall submit to the Minister detailed proposals in respect of all matters covered by such notice and such of the other matters mentioned in paragraphs (a) to (o) of subclause (1) of Clause 7 as the Minister may require.

(2) The provisions of Clause 7 and Clause 8 (other than subclauses (5), (6) and (7) of Clause 8) shall mutatis mutandis apply to detailed proposals submitted pursuant to this Clause with the proviso that the Partnership may withdraw such proposals at any time before approval thereof or, where any decision of the Minister in respect thereof is referred to arbitration, within 3 months after the award by notice to the Minister that it shall not be proceeding with the same. Subject to and in accordance with the EP Act and any approvals and licences required under that Act and laws relating to traditional usage the Partnership shall implement approved proposals pursuant to this Clause in accordance with the terms thereof.

Land tenures

(1) On application made by the Partnership, not later than 3 months after all its proposals submitted pursuant to subclause (1) of Clause 7 have been approved or deemed to have been approved and the Partnership has complied with the provisions of subclause (4) of Clause 7, the State shall in accordance with the approved proposals grant to the Partnership, or arrange to have the appropriate authority or other interested instrumentality of the State grant, at reasonable rentals or fees or for other reasonable consideration and for such periods (not exceeding 27 years with one automatic extension for a period of 15 years at the option of the Partnership) and on such terms and conditions as shall be reasonable having regard to the requirements of the Partnership —

(a) a lease of the power station site;

(b) leases or easements for access roads to the Partnership’s works under this Agreement; and

under and, except as otherwise provided in this Agreement, subject to the Land Act (as modified by this Agreement) and any such lease, licence or easement may be granted notwithstanding that the survey in respect thereof has not been completed but subject to such corrections to accord with the survey when completed at the Partnership’s expense.

Modification of Land Act

(2) For the purpose of this Agreement in respect of any land to which subclause (1) applies the Land Act shall be deemed to be modified by —

(a) the substitution for subsection (2) of section 45A of the following subsection —

“(2) Upon the Minister signifying approval pursuant to subsection (1) of this section in respect of any such land the same may subject to this section be leased.”;

(b) the deletion of the proviso to section 116;

(d) the deletion of section 143;

(e) the inclusion of a power to grant occupancy rights over land on such terms and conditions as the Minister for Lands may determine;

(f) the inclusion of a power to grant leases or licences for terms or periods and on such terms and conditions (including renewal rights) and in forms consistent with the provisions of this Agreement in lieu of the terms or periods, the terms and conditions and the forms referred to in the Land Act.

The provisions of this subclause shall not operate so as to prejudice the rights of the State to determine any lease licence or other right or title in accordance with the other provisions of this Agreement.

Stone sand clay and gravel

(3) The State shall in accordance with approved proposals grant to the Partnership a mining lease or mining leases for the obtaining of stone sand clay and gravel for the construction of the project such mining lease or mining leases to be granted under and, except as otherwise provided herein, subject to the Mining Act 1978 but limited in term to a reasonable period required for construction of the project and rehabilitation in accordance with the approved proposals of the leased areas. No royalty shall be payable under the Mining Act 1978 in respect of stone sand clay and gravel obtained from any such mining lease.

Use of local labour professional services and materials

(1) The Partnership shall, for the purposes of this Agreement —

(a) except in those cases where the Partnership can demonstrate it is impracticable so to do, use labour available within Western Australia or if such labour is not available then, except as aforesaid, use labour otherwise available within Australia;

(b) as far as it is reasonable and economically practicable so to do, use the services of engineers surveyors architects and other professional consultants experts and specialists, project managers, manufacturers, suppliers and contractors resident and available within Western Australia or if such services are not available within Western Australia then, as far as practicable as aforesaid, use the services of such persons otherwise available within Australia;

(c) during design and when preparing specifications, calling for tenders and letting contracts for works materials plant equipment and supplies (which shall at all times, except where it is impracticable so to do, use or be based upon Australian Standards and Codes) ensure that suitably qualified Western Australian and Australian suppliers manufacturers and contractors are given fair and reasonable opportunity to tender or quote;

(d) give proper consideration and where possible preference to Western Australian suppliers manufacturers and contractors when letting contracts or placing orders for works, materials, plant, equipment and supplies where price quality delivery and service are equal to or better than that obtainable elsewhere or, subject to the foregoing, give that consideration and where possible preference to other Australian suppliers manufacturers and contractors; and

(e) if notwithstanding the foregoing provisions of this subclause a contract is to be let or an order is to be placed with other than a Western Australian or Australian supplier, manufacturer or contractor, give proper consideration and where possible preference to tenders arrangements or proposals that include Australian participation.

(2) Except as otherwise agreed by the Minister the Partnership shall in every contract entered into with a third party for the supply of services labour works materials plant equipment or supplies for the purposes of this Agreement require as a condition thereof that such third party shall undertake the same obligations as are referred to in subclause (1) and shall report to the Partnership concerning such third party’s implementation of that condition.

(3) The Partnership shall submit a report to the Minister at monthly intervals or such longer period as the Minister determines commencing from the date of this Agreement concerning its implementation of the provisions of this Clause together with a copy of any report received by the Partnership pursuant to subclause (2) during that month or longer period as the case may be PROVIDED THAT the Minister may agree that any such reports need not be provided in respect of contracts of such kind or value as the Minister may from time to time determine.

(4) The Partnership shall keep the Minister informed on a regular basis as determined by the Minister from time to time or otherwise as required by the Minister during the currency of this Agreement of any services (including any elements of the project investigations design and management) and any works materials plant equipment and supplies that it may be proposing to obtain from or have carried out or permit to be obtained from or carried out outside Australia together with its reasons therefor and shall as and when required by the Minister consult with the Minister with respect thereto.

Protection and management of the environment

(1) The Partnership shall in respect of the matters referred to in paragraph (o) of subclause (1) of Clause 7 and which are the subject of approved proposals, carry out a continuous programme including monitoring to ascertain the effectiveness of the measures it is taking pursuant to such approved proposals for rehabilitation and the protection and management of the environment and shall as and when reasonably required by the Minister from time to time submit to the Minister a detailed report thereon.

(2) Whenever as a result of its activities pursuant to subclause (1) or otherwise information becomes available to the Partnership which in order to more effectively rehabilitate, protect or manage the environment may necessitate or could require any changes or additions to any approved proposals or require matters not addressed in any such proposals to be addressed the Partnership shall forthwith notify the Minister thereof and with such notification shall submit a detailed report thereon.

(3) The Minister may within 2 months of the receipt of a detailed report pursuant to subclauses (1) or (2) notify the Partnership that he requires additional detailed proposals to be submitted in respect of all or any of the matters the subject of the report and such other reasonable matters as the Minister may require in connection therewith.

(4) The Partnership shall within 2 months of receipt of a notice given pursuant to subclause (3) submit to the Minister additional detailed proposals as required and the provisions of subclauses (1), (2), (3) and (4) of Clause 8 shall mutatis mutandis apply.

(5) Subject to and in accordance with the EP Act and any approvals and licences required under that Act the Partnership shall implement the decision of the Minister or any award on arbitration as the case may be in accordance with the terms thereof.

Electricity Act

For the purpose of this Agreement in respect of the construction and operation of the power station, the Argyle facilities and the Kununurra facilities the Electricity Act shall be deemed to be modified by —

(a) the deletion of sections 7, 8, 12, 13(4), (5) and (6), 17, 32(1)(a), (d) and (l) and 43;

(b) the deletion of “Commission” wherever it occurs in sections 13(1), (2) and (3), 14, 16 and 20 and the substitution in each case of the following —

“Minister”;

(i) by inserting after “this Act” in paragraph (a) the following —

“as modified by the Agreement (as amended from time to time) ratified by the Ord River Hydro Energy Project Agreement Act 1994”; and

(ii) by inserting after “the Act” the following —

“as modified as aforesaid”; and

(d) the addition at the end of section 33(1) of the following proviso —

“PROVIDED THAT to the extent of any inconsistency between approved proposals under the agreement (as amended from time to time) ratified by the Ord River Hydro Energy Project Agreement Act 1994 and any by‑laws made pursuant to this subsection, the approved proposals will prevail.”.

Roads — Private roads

(1) The Partnership shall —

(a) be responsible for the cost of the construction and maintenance of all private roads which shall be used in its activities hereunder;

(b) at its own cost erect signposts and take other steps that may be reasonable in the circumstances to prevent any persons and vehicles other than those engaged upon the Partnership’s activities and its invitees and licensees from using the private roads; and

(c) at any place where any private roads are constructed by the Partnership so as to cross any railways or public roads provide at its cost such reasonable protection and signposting as may be required by the Commissioner of Main Roads or the Railways Commission as the case may be.

Maintenance of public roads

(2) The State shall maintain or cause to be maintained those public roads under the control of the Commissioner of Main Roads or a local authority which may be used by the Partnership for the purposes of this Agreement to a standard similar to comparable public roads maintained by the Commissioner of Main Roads or a local authority as the case may be.

Upgrading of public roads

(3) In the event that for or in connection with the Partnership’s activities hereunder the Partnership or any person engaged by the Partnership uses or wishes to use a public road (whether referred to in subclause (2) or otherwise) which is inadequate for the purpose, or any use by the Partnership or any person engaged by the Partnership of any public road results in excessive damage to or deterioration thereof (other than fair wear and tear) the Partnership shall pay to the State or the local authority as the case may require the whole or an equitable part of the total cost of any upgrading required or of making good the damage or deterioration as may be reasonably required by the Commissioner of Main Roads having regard to the use of such public road by others.

Acquisition of private roads

(4) Where a road constructed by the Partnership for its own use is subsequently required for public use, the State may, after consultation with the Partnership and so long as resumption thereof shall not unduly prejudice or interfere with the activities of the Partnership under this Agreement, resume and dedicate such road as a public road. Upon any such resumption the State shall pay to the Partnership such amount as is reasonable.

Water

The water requirements of the Partnership for its operations under this Agreement shall be obtained in accordance with the provisions of the Water Authority Act 1984 or other relevant Act.

Sales to State Energy Commission

The Partnership is empowered to enter into any arrangements for the sale of electrical power to the State Energy Commission as may be agreed between the Partnership and the State Energy Commission.

Training levy exemption

The provisions of the Building and Construction Industry Training Levy Act 1990 and the Building and Construction Industry Training Fund and Levy Collection Act 1990 shall have no application to the Partnership when acting pursuant to and in accordance with the provisions of this Agreement.

Zoning

The State shall ensure after consultation with the relevant local authority that the power station site and any other lands the subject of any lease, licence or easement granted to the Partnership under this Agreement shall be and remain zoned for use or otherwise protected during the currency of this Agreement so that the activities of the Partnership hereunder may be undertaken and carried out thereon without any interference or interruption by the State or by any State agency or instrumentality or by any local or other authority of the State on the ground that such activities are contrary to any zoning by‑law regulation or order.

Rating

(1) The State shall ensure that notwithstanding the provisions of any Act or anything done or purported to be done under any Act the valuation of the lands the subject of any lease licence or easement granted pursuant to this Agreement (except any parts of such lands on which accommodation units or housing for the Partnership’s workforce is erected or which is occupied in connection with such accommodation units or housing and except as to any part upon which there stands any improvements that are used in connection with a commercial undertaking not directly related to the activities carried out by the Partnership pursuant to approved proposals) shall for rating purposes under the Local Government Act 1960, be deemed to be on the unimproved value thereof and no such lands shall be subject to any discriminatory rate.

(2) It is hereby declared and agreed that the provisions of section 533B of the Local Government Act 1960 shall not apply to any lands the subject of this Agreement.

No discriminatory rates

Except as provided in this Agreement the State shall not impose, nor shall it permit or authorise any of its agencies or instrumentalities or any local or other authority of the State to impose discriminatory taxes rates or charges of any nature whatsoever on or in respect of the titles property or other assets products materials or services used or produced by or through the activities of the Partnership in the conduct of its business hereunder nor will the State take or permit to be taken by any such State authority any other discriminatory action which would deprive the Partnership of full enjoyment of the rights granted and intended to be granted under this Agreement.

No resumption

Subject to the performance by the Partnership of its obligations under this Agreement the State shall not during the currency of this Agreement without the consent of the Partnership resume nor suffer nor permit to be resumed by any State instrumentality or by any local or other authority of the State any of the works installations plant equipment or other property for the time being belonging to the Partnership and the subject of or used for the purpose of this Agreement AND without the consent of the Partnership (which shall not be unreasonably withheld) the State shall not create or grant or permit or suffer to be created or granted by any instrumentality or authority of the State as aforesaid any road right‑of‑way water right or easement of any nature or kind whatsoever over or in respect of the power station site and ancillary works and facilities which may unduly prejudice or interfere with the Partnership’s activities under this Agreement.

Resumption for the purposes of this Agreement

(1) The State may as and for a public work under the Public Works Act, resume any land required for the power station site, the Argyle facilities and the Kununurra facilities in accordance with approved proposals and notwithstanding any other provisions of that Act may grant leases licenses or easements of that land to the Partnership and the provisions of subsections (2) to (7) inclusive of section 17 and section 17A of that Act shall not apply to or in respect of that land or the resumption thereof. The Partnership shall pay to the State on demand the costs of and incidental to any land resumed at the request of and on behalf of the Partnership except that the State shall pay any compensation payable pursuant to, and the costs incurred by it in connection with, the Land (Titles and Traditional Usage) Act 1993.

(2) For the purposes of this Agreement, and in the Public Works Act, when construed for the purposes of this Agreement, a reference to “land” shall be read as extending to any land, or to any portion of any land, or to the subsoil, surface or airspace relating thereto and to any estate, right, title, easement, lease, licence, privilege, or other interest, in, over, under, affecting, or in connection with that land or any portion, stratum or other specified sector of that land.

Assignment

(1) Subject to the provisions of this Clause the Partnership may at any time with the consent of the Minister assign mortgage charge sublet or dispose of to any other company or person the whole or any part of the rights of the Partnership hereunder (including its rights to or as the holders of any lease licence or easement) and of the obligations of the Partnership hereunder subject however in the case of an assignment subletting or disposition to the assignee sublessee or disponee (as the case may be) executing in favour of the State (unless the Minister otherwise determines) a deed of covenant in a form to be approved by the Minister to comply with observe and perform the provisions hereof on the part of the Partnership to be complied with observed or performed in regard to the matter or matters the subject of such assignment subletting or disposition.

(2) Notwithstanding anything contained in or anything done under or pursuant to subclause (1) the Partnership shall at all times during the currency of this Agreement be and remain liable for the due and punctual performance and observance of all the covenants and agreements on its part contained in this Agreement and in any lease licence or easement the subject of an assignment mortgage subletting or disposition under subclause (1) PROVIDED THAT the Minister may agree to release the Partnership from such liability where the Minister considers such release will not be contrary to the interests of the State.

(3) Notwithstanding the provisions of the Land Act and the Transfer of Land Act 1893, insofar as the same or any of them may apply —

(a) no assignment mortgage charge sublease or disposition made or given pursuant to this Clause during the currency of this Agreement of or over any lease licence or easement granted under or pursuant to this Agreement by the Partnership or any assignee sublessee or disponee who has executed and is for the time being bound by deed of covenant made pursuant to this Clause; and

(b) no transfer assignment mortgage or sublease made or given during the currency of the Agreement in exercise of any power contained in any such mortgage or charge

shall require any approval or consent other than such consent as may be necessary under this Clause.

Variation

(1) The Partnership and the State may from time to time by agreement in writing add to substitute for cancel or vary all or any of the provisions of this Agreement or of any lease licence easement grant or other title granted under or pursuant to this Agreement for the purpose of more efficiently or satisfactorily implementing or facilitating any of the objects of this Agreement.

(2) The Minister shall cause any agreement made pursuant to subclause (1) in respect of any addition substitution cancellation or variation of the provisions of this Agreement to be laid on the Table of each House of Parliament within 12 sitting days next following its execution.

(3) Either House may, within 12 sitting days of that House after the agreement has been laid before it pass a resolution disallowing the agreement, but if after the last day on which the agreement might have been disallowed neither House has passed such a resolution the agreement shall have effect from and after that last day.

Force majeure

This Agreement shall be deemed to be made subject to any delays in the performance of the obligations under this Agreement and to the temporary suspension of continuing obligations under this Agreement that may be caused by or arise from circumstances beyond the power and control of the party responsible for the performance of those obligations including without limiting the generality of the foregoing delays or any such temporary suspension as aforesaid caused by or arising from act of God force majeure earthquakes floods storms tempest washaways fire (unless caused by the actual fault or privity of the party responsible for such performance) act of war act of public enemies riots civil commotions strikes lockouts stoppages restraint of labour or other similar acts (whether partial or general) acts or omissions of the Commonwealth shortages of labour or essential materials reasonable failure to secure contractors delays of contractors and factors due to overall world economic conditions or factors due to action taken by or on behalf of any government or governmental authority (other than the State or any authority of the State) or factors that could not reasonably have been foreseen PROVIDED ALWAYS that the party whose performance of obligations is affected by any of the said causes shall promptly give notice to the other party of the event or events and shall use its best endeavours to minimise the effects of such causes as soon as possible after the occurrence.

Power to extend periods

Notwithstanding any provision of this Agreement the Minister may at the request of the Partnership from time to time extend or further extend any period or vary or further vary any date referred to in this Agreement or in any approved proposal for such period or to such later date as the Minister thinks fit whether or not the period to be extended has expired or the date to be varied has passed.

Determination of Agreement

(1) In any of the following events namely if —

(a) (i) the Partnership makes default which the State considers material in the due performance or observance of any of the covenants or obligations of the Partnership in this Agreement or in any lease licence or easement granted or assigned under this Agreement on its part to be performed or observed; or

(ii) the Partnership abandons or repudiates this Agreement or its activities under this Agreement

and such default is not remedied or such activities resumed within a period of 180 days after notice is given by the State as provided in subclause (2) or, if the default or abandonment is referred to arbitration, then within the period mentioned in subclause (3); or

(b) any of the parties comprising the Partnership goes into liquidation (other than a voluntary liquidation for the purpose of reconstruction) and unless within 3 months from the date of such liquidation the interest of that party is assigned to an assignee approved by the Minister under Clause 24

the State may by notice to the Partnership determine this Agreement.

(2) The notice to be given by the State in terms of paragraph (a) of subclause (1) shall specify the nature of the default or other ground so entitling the State to exercise such right of determination and where appropriate and known to the State the party or parties responsible therefor and shall be given to the Partnership and all such assignees mortgagees chargees and disponees for the time being of the Partnership’s said rights to or in favour of whom or by whom an assignment mortgage charge or disposition has been effected in terms of Clause 24 whose name and address for service of notice has previously been notified to the State by the Partnership or any such assignee mortgagee chargee or disponee.

(3) (a) If the Partnership contests the alleged default abandonment or repudiation referred to in paragraph (a) of subclause (1) the Partnership shall within 60 days after notice given by the State as provided in subclause (2) refer the matter in dispute to arbitration.

(b) If the question is decided against the Partnership, the Partnership shall comply with the arbitration award within a reasonable time to be fixed by that award PROVIDED THAT if the arbitrator finds that there was a bona fide dispute and that the Partnership was not dilatory in pursuing the arbitration, the time for compliance with the arbitration award shall not be less than 90 days from the date of such award.

(4) If the default referred to in paragraph (a) of subclause (1) shall not have been remedied after receipt of the notice referred to in that subclause or within the time fixed by the arbitration award as aforesaid the State instead of determining this Agreement as aforesaid because of such default may itself remedy such default or cause the same to be remedied (for which purpose the State by agents workmen or otherwise shall have full power to enter upon lands occupied by the Partnership and to make use of all plant machinery equipment and installations thereon) and the actual costs and expenses incurred by the State in remedying or causing to be remedied such default shall be a debt payable by the Partnership to the State on demand.

Effect of cessation or determination of Agreement

(1) On the cessation or determination of this Agreement pursuant to subclause (6) of Clause 8, Clause 28 or Clause 39 —

(a) except as otherwise agreed by the Minister the rights of the Partnership to in or under this Agreement and the rights of the Partnership or of any assignee of the Partnership or any mortgagee to in or under any lease licence or easement or right granted hereunder or pursuant hereto shall thereupon cease and determine but without prejudice to the liability of any of the parties hereto in respect of any antecedent breach or default under this Agreement or in respect of any indemnity given under this Agreement;

(b) the Partnership shall forthwith pay to the State all moneys which may then have become payable or accrued due;

(c) save as aforesaid and as otherwise provided in this Agreement no party hereto shall have any claim against the other of them with respect to any matter or thing in or arising out of this Agreement.

(2) Subject to the provisions of subclause (3) upon the cessation or determination of this Agreement except as otherwise determined by the Minister all buildings erections and other improvements (including all electricity transmission works constructed pursuant to this Agreement) erected on any land then occupied by the Partnership under any other lease licence easement or other title made under or pursuant to this Agreement shall become and remain the absolute property of the State without the payment of any compensation or consideration to the Partnership or any other party and freed and discharged from all mortgages and other encumbrances and the Partnership shall do and execute all such deeds documents and other acts matters and things (including surrenders) as the State may reasonably require to give effect to the provisions of this subclause.

(3) In the event of the Partnership immediately prior to the cessation or determination of this Agreement or within three months after such cessation or determination desiring to remove any of its fixed or movable plant and equipment or any part thereof from any part of the land occupied by it at the date of such cessation or determination it shall give to the State notice of such desire and thereby shall grant to the State the right or option exercisable within 3 months thereafter to purchase in situ such fixed or moveable plant and equipment at a fair valuation to be agreed between the Partnership and the State or failing agreement determined by arbitration under this Agreement.

Environmental protection

Nothing in this Agreement shall be construed to exempt the Partnership from compliance with any requirement in connection with the protection of the environment arising out of or incidental to its activities under this Agreement that may be made pursuant to the EP Act.

Water Supply Agreement

For the purposes of the Water Supply Agreement —

(a) the State shall ensure that no request is made to the Governor in relation to the making or alteration or repeal of Orders in Council pursuant to section 44 of the Rights in Water and Irrigation Act which may affect the supply of water by the Water Authority to the Partnership without prior consultation in regard thereto between the Minister and the Partnership;

(b) the Rights in Water and Irrigation Act shall be deemed modified by the deletion of section 45;

(d) section 63(1) of the Water Authority Act shall be read and construed so that the section does not apply to any person in the Water Supply Agreement for payment by the Water Authority to the Partnership of liquidated damages as a result of failure by the Water Authority to release water to the Partnership; and

(e) the State shall ensure that any use by the State Energy Commission of its powers under section 42 of the State Energy Commission Act in relation to the Ord River Main Dam shall not have a material adverse effect on the operations of the power station.

Indemnity

The Partnership shall 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 Partnership pursuant to this Agreement or relating to its activities hereunder or arising out of or in connection with the construction maintenance or use by the Partnership or its servants agents contractors or assignees of the Partnership’s works or services the subject of this Agreement or the plant apparatus or equipment installed in connection therewith PROVIDED THAT, without in any way affecting the Partnership’s obligations to the State under Clause 23, the foregoing provisions of this Clause shall not apply to any resumption by the State pursuant to Clause 23.

Commonwealth licences and covenants

(1) The Partnership shall from time to time make application to the Commonwealth or to the Commonwealth constituted agency, authority or instrumentality concerned for the grant to it of any licence or consent under the laws of the Commonwealth necessary to enable or permit the Partnership to enter into this Agreement and to perform any of its obligations hereunder.

(2) On request by the Partnership the State shall make representations to the Commonwealth or to the Commonwealth constituted agency authority or instrumentality concerned for the grant to the Partnership of any licence or consent mentioned in subclause (1).

Subcontracting

Without affecting the liabilities of the parties under this Agreement either party shall have the right from time to time to entrust to third parties the carrying out of any portions of the activities which it is authorised or obliged to carry out hereunder.

Stamp duty exemption

(1) The State shall exempt from any stamp duty which but for the operation of this Clause would or might be assessed and chargeable on —

(a) this Agreement;

(b) any instrument executed by the State pursuant to this Agreement granting to or in favour of the Partnership or any permitted assignee any lease licence or easement; and

(c) any assignment, sublease or disposition (other than by way of mortgage or charge) made in conformity with the provisions of subclause (1) of Clause 24

PROVIDED THAT this subclause shall not apply to any instrument or other document executed or made more than 1 year from the date hereof.

(2) If prior to the date on which the Bill referred to in Clause 3 to ratify this Agreement is passed as an Act stamp duty has been assessed and paid on any instrument or other document or transaction referred to in subclause (1) the State when such Bill is passed as an Act shall on demand refund any stamp duty so paid to the person who paid it.

Arbitration

(1) Any dispute or difference between the parties arising out of or in connection with this Agreement the construction of this Agreement or as to the rights duties or liabilities of either party under this Agreement or as to any matter to be agreed upon between the Partnership and the State or the Minister as the case may be under this Agreement shall in default of agreement between them 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 Commercial Arbitration Act 1985 and notwithstanding section 20(1) of that Act either party may be represented before the arbitrator by a duly qualified legal practitioner or other representative.

(2) Except where otherwise provided in this Agreement, the provisions of this Clause shall not apply to any case where the State the Minister or any other Minister in the Government of the said State is by this Agreement given either expressly or impliedly a discretionary power.

(3) The arbitrator of any submission to arbitration under this Agreement is hereby empowered upon the application of either of the parties to the arbitration to grant in the name of the Minister any interim extension of any period or variation of any date referred to herein which having regard to the circumstances may reasonably be required in order to preserve the rights of that party or of the parties under this Agreement and an award may in the name of the Minister grant any further extension or variation for that purpose.

Consultation

The Partnership shall during the currency of this Agreement consult with and keep the State fully informed on a confidential basis concerning any action that the Partnership proposes to take with any third party (including the Commonwealth or any Commonwealth constituted agency authority instrumentality or other body) which might significantly affect the overall interest of the State under this Agreement.

Notices

Any notice consent or other writing authorised or required by this Agreement to be given or sent shall be deemed to have been duly given or sent by the State if signed by the Minister or by any senior officer of the Public Service of the said State acting by the direction of the Minister and forwarded by prepaid post or handed to the Partnership at Suite 4, 1st Floor, 651 Canterbury Road, Surrey Hills, Victoria or other address in Western Australia nominated as its address for service by the Partnership to the Minister from time to time and by the Partnership if signed on its behalf by any person or persons authorised by its or by its solicitors as notified to the State from time to time and forwarded by prepaid post or handed to the Minister and except in the case of personal service any such notice consent or writing shall be deemed to have been duly given or sent on the day on which it would be delivered in the ordinary course of post.

Term of Agreement

Subject to the provisions of subclause (6) of Clause 8 and Clauses 28 and 29 this Agreement shall expire on the expiration or sooner determination or surrender of the lease granted pursuant to Clause 11 of the power station site.

Joint and several

The obligations of each of the parties comprising the Partnership shall be joint and several under this Agreement.

Guarantee

Notwithstanding any addition to or deletion or variation of the provisions of this Agreement or of any lease licence easement grant or other title granted under or pursuant to this Agreement or any time or other indulgence granted by the State or the Minister to the Partnership whether or not notice thereof is given to the Guarantor, the Guarantor hereby guarantees to the State the due performance by the Partnership of all its obligations to be performed hereunder during the period from the date of this Agreement until the power station the Argyle facilities and the Kununurra facilities are deemed to be constructed in accordance with subclause (7) of Clause 8.

Applicable law

This Agreement shall be interpreted according to the law for the time being in force in the State of Western Australia.

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:	) ) ) )	Richard F. Court

MINISTER FOR RESOURCES DEVELOPMENT Colin Barnett

SIGNED, SEALED AND DELIVERED by ROBERT ALEXANDER STEELE as the Attorney and in the name of PACIFIC HYDRO GROUP TWO PTY. LTD. under Power of Attorney dated 29th August 1994 in the presence of:	) ) ) ) ) ) )	R. A. Steele G. C. Bertuch

SIGNED, SEALED AND DELIVERED by ROBERT ALEXANDER STEELE as the Attorney and in the name of PACIFIC HYDRO GROUP THREE PTY. LTD. under Power of Attorney dated 29th August 1994 in the presence of:	) ) ) ) ) ) )	R. A. Steele G. C. Bertuch

SIGNED, SEALED AND DELIVERED by ROBERT ALEXANDER STEELE as the Attorney and in the name of PACIFIC HYDRO GROUP FOUR PTY. LTD. under Power of Attorney dated 29th August 1994 in the presence of:	) ) ) ) ) ) )	R. A. Steele G. C. Bertuch

SIGNED, SEALED AND DELIVERED by ROBERT ALEXANDER STEELE as the Attorney and in the name of PACIFIC HYDRO LIMITED under Power of Attorney dated 29th August 1994 in the presence of:	) ) ) ) ) ) )	R. A. Steele G. C. Bertuch

Notes

1 This is a compilation of the Ord River Hydro Energy Project Agreement Act 1994 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
Ord River Hydro Energy Project Agreement Act 1994		76 of 1994		13 Dec 1994		13 Dec 1994 (see s. 2)
*Reprint 1: The Ord River Hydro Energy Project Agreement Act 1994* as at 6 Aug 2004**
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)

2 The page number index to the Agreement set out in Schedule 1 does not necessarily reflect the relevant page numbers of this reprint.

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 3

Western Australia

Ord River Hydro Energy Project Agreement Act 1994

Western Australia

Ord River Hydro Energy Project Agreement Act 1994

Contents

‑1. Short title 1

Commencement 1
Interpretation 1
Agreement ratified and implementation authorised 1

Schedule 1 — Ord River Hydro Energy Project Agreement

Notes

Compilation table 38

Defined terms

Western Australia

Ord River Hydro Energy Project Agreement Act 1994

1. Short title

This Act may be cited as the Ord River Hydro Energy Project Agreement Act 1994 1.

2. Commencement

This Act comes into operation on the day on which it receives the Royal Assent 1.

3. Interpretation

In this Act, unless the contrary intention appears —

the Agreement means the Ord River Hydro Energy Project Agreement, a copy of which is set out in Schedule 1, and includes the Agreement as varied from time to time in accordance with its provisions.

4. Agreement ratified and implementation authorised

(1) The Agreement is ratified.

(2) The implementation of the Agreement is authorised.

(3) Without limiting or otherwise affecting the application of the Government Agreements Act 1979, the Agreement operates and takes effect despite any other Act or law.

Schedule 1 — Ord River Hydro Energy Project Agreement

[s. 3]

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

ORD RIVER HYDRO ENERGY PROJECT AGREEMENT

INDEX 2

Page

Definitions 5
Interpretation 8
Initial obligation of the State 8

The Agreement embedded in the Act structures the project around a few core concepts and legal mechanisms. These are: (1) statutory ratification and primacy; (2) negotiated land tenure; (3) administrative modification of State laws; (4) conditional ministerial approvals and arbitration; (5) contractual protections and exemptions in favour of the Partnership; and (6) obligations on the Partnership to deliver, to report and to manage environmental and local content responsibilities.

Statutory ratification and primacy. The Agreement is ratified by the Act and “operates and takes effect despite any other Act or law” (s 4(3)). That gives the Agreement statutory force and intended primacy over inconsistent State statutes, which is implemented by express cross‑modifications in the Agreement to particular Acts (for example cl 11(2) modifies provisions of the Land Act, cl 14 modifies the Electricity Act and cl 31 modifies provisions of water legislation).

Land tenure and resumption mechanics. The Agreement requires the State to grant leases, licences or easements to the Partnership on “reasonable rentals or fees” and for terms not exceeding 27 years with one automatic extension of 15 years at the Partnership’s option (cl 11(1)). The Agreement also provides for the State to resume land as a public work under the Public Works Act for project purposes, and it expressly disapplies certain procedural provisions of the Land Act and the Public Works Act in respect of that resumption (cl 6(5), cl 23(1)). The State may expect the Partnership to pay the costs incidental to resumptions requested by the Partnership (cl 23(1)).

Modifications of other laws and delegations. The Agreement deems certain State Acts to be modified for project purposes. Examples include deletion and substitution of sections of the Electricity Act (cl 14), deletion of specific sections of the Land Act and introduction of tailored grant powers (cl 11(2)), deemed modifications to water statutes to support the Water Supply Agreement (cl 31), and declarations that rating and zoning protections apply to the Partnership’s lands (cl 19, cl 20). Those modifications move some decision‑making authority from statutory bodies to the Minister under the Agreement’s framework (cl 14(b)).

Conditional ministerial approvals and arbitration. The Partnership must prepare a schedule of detailed proposals after land selection (cl 7). The Minister must approve or defer or require conditions within prescribed timelines and the Minister must disclose reasons for certain conditions (cl 8(1)-(3)). Where the Partnership considers a Minister’s decision unreasonable it may, within two months, refer the reasonableness question to arbitration, subject to specified carve outs (cl 8(4)-(5)). Wide ministerial discretions are preserved from arbitration where the Agreement confers discretionary powers (cl 36(2)). The primary dispute forum otherwise is arbitration under the Commercial Arbitration Act 1985 (cl 36(1)).

Protections, exemptions and obligations. The Agreement gives the Partnership protections against “discriminatory” rates and zoning action by State agencies during the currency of the Agreement (cl 21, cl 19). It provides certain financial exemptions including stamp duty relief for specified instruments for a limited period (cl 35) and exemption from the Building and Construction Industry Training Levy Acts when acting under the Agreement (cl 18). The Partnership in return accepts obligations: to report progress (quarterly for studies, cl 5(2), monthly for local content reporting, cl 12(3)); to implement local labour and Australian content preferences where practicable (cl 12); to indemnify the State against third party claims arising from Partnership works except where the State has resumed land (cl 32); and to implement environmental management programmes and monitoring and to act subject to the EP Act and laws relating to traditional usage (cl 7, cl 13, cl 30).

Term, transfer and security. The Agreement contemplates assignment with Ministerial consent and requires assignees to enter deed covenants to perform obligations (cl 24). The Partnership remains liable even after assignment unless the Minister agrees to release liability (cl 24(2)). The Guarantor guarantees the Partnership’s obligations up to the time facilities are deemed constructed (cl 41). On cessation or determination of the Agreement, certain Partnership improvements, including transmission works, may vest in the State without compensation (cl 29(2)).

Timelines and automatic triggers. The Agreement conditions commencement on statutory ratification (cl 3, cl 4). It contains hard deadlines for land agreement and submission of proposals, with express survival and termination consequences if the deadlines are not met (cl 4(2), cl 6(6), cl 8(6)). The Minister has express powers to extend timeframes where appropriate (cl 27, cl 9(1)).

These concepts create a bespoke statutory regime that both disapplies identified statutory protections and also embeds contractual obligations, administrative approvals and arbitration as the primary governance and enforcement architecture for the project.

The Act and the Agreement principally affect the State of Western Australia and the entities forming the Partnership, being Pacific Hydro Group Two Pty Ltd, Pacific Hydro Group Three Pty Ltd, Pacific Hydro Group Four Pty Ltd and Pacific Hydro Limited (Agreement heading and recitals). The State acts through the Minister for the administration of the Act and the Minister for Lands for land matters (definitions). The Agreement also names the State Energy Commission (defined term) and the Water Authority as parties or interested instrumentalities for specific interfaces. A broader set of parties will be affected in practice.

Directly affected parties

The Partnership and the Guarantor. The Partnership acquires statutory rights to leases, licences and easements, has obligations to construct and operate the power station and transmission facilities, must comply with reporting, local content and environmental requirements, and remains liable for performance even if it assigns rights (cl 11, cl 5, cl 12, cl 13, cl 24). The Guarantor provides a guarantee limited to the period until the facilities are deemed constructed (cl 41).
The State (and Ministers and agencies). The State grants tenure, may modify statutory processes for certain Acts, is responsible for maintaining public roads used by the project to a comparable standard and must consult on certain water and resumption matters (cl 15(2), cl 31, cl 23). The Minister holds approval powers over the Partnership’s proposals and extension powers (cl 8, cl 27).
State instrumentalities. Agencies with statutory responsibilities under the Land Act, Public Works Act, Electricity Act and water legislation will be affected because the Agreement envisages modifications to those Acts for project purposes (cl 11(2), cl 14, cl 23(1), cl 31). The Agreement anticipates interactions with the Commissioner of Main Roads and the Railways Commission in relation to roads crossing (cl 15(1)(c)).

Indirectly affected parties

Argyle Diamond Agreement parties. The Agreement specifically contemplates electricity provision to Argyle mining operations and the Argyle Tourist Village (recitals; cl 7(1)(f)-(h)). The Agreement therefore has effects on the Argyle Diamond Agreement regime insofar as electricity supply and interconnection are concerned and expressly refers to the Argyle facilities (definitions).
Local government and rating authorities. The Agreement modifies rating treatment for Partnership lands and excludes application of certain Local Government Act provisions to those lands (cl 20; cl 20(2) declares s 533B not to apply). The State must ensure towns and local authorities maintain zoning and not interfere with the Partnership’s activities during the Agreement term (cl 19, cl 21).
Aboriginal persons and holders of traditional rights. The Agreement is expressly subject to “laws relating to traditional usage” and anticipates extensions of time and potential termination where traditional usage matters arise (cl 7(1), cl 8(2), cl 9). Submissions and approvals are subject to the EP Act and to satisfaction of requirements under laws relating to traditional usage before Ministerial decisions are made (cl 8(2)).
Contractors, suppliers and local workforce. The Partnership is required to give fair opportunity and preference to Western Australian and Australian suppliers and labour where prices, quality and delivery are comparable, and to impose similar obligations on subcontractors (cl 12). That creates obligations and potential opportunities for local contractors and suppliers.
Third parties using roads or public infrastructure. The Agreement allocates construction and maintenance costs for private roads to the Partnership and allows the State to require contribution for upgrading public roads where the Partnership’s use causes excessive damage (cl 15). It also preserves the State’s power to resume private roads for public use with compensation (cl 15(4)).
Commonwealth agencies. The Partnership must apply for Commonwealth licences and consents required under Commonwealth law; the State will make representations to assist (cl 33). Therefore Commonwealth decision makers have a functional role in enabling the project.

Who pays and who decides in concrete terms

The Partnership pays for construction of the works, private roads and related signposting and protective measures, costs incidental to resumptions requested by the Partnership, and costs of remedying Partnership defaults if the State elects to remedy them (cl 15(1), cl 23(1), cl 28(4)). The Partnership indemnifies the State against third party claims arising from its works (cl 32).
The State decides on the grant of leases, licences and easements through the Minister, acts to modify certain Acts for project purposes, maintains public roads and consults with the Partnership over water orders and zoning protections (cl 11, cl 14, cl 15(2), cl 31, cl 19). The Minister has approval and extension powers, and may require modifications or conditions on proposals (cl 8, cl 27).

The Agreement therefore creates a concentrated set of benefits for the Partnership (tenure, statutory modifications, exemptions) and concomitant obligations and costs for the Partnership (construction, reporting, environmental protection, local content). The State bears costs by granting concessions, by assuming certain maintenance and zoning obligations and by potentially acquiring improvements on termination without purchase, while retaining ministerial control over approvals and extensions.

The Agreement sets out reciprocal duties and rights that structure the project lifecycle. Below are the principal duties on the State and the Partnership and the key rights the Partnership receives. Citations are to clauses in the Agreement in Schedule 1.

State duties and rights

Ratification and enforcement: The State must introduce and sponsor a Bill to ratify the Agreement and secure its passage (cl 3). When the Bill becomes an Act the Agreement’s provisions operate notwithstanding other Acts (cl 4(3)). The Act itself performs that function (s 4).
Grant of tenures: After proposals are approved, the State shall grant leases, licences or easements for the power station site and other project lands at reasonable rentals or fees for such periods not exceeding 27 years with one automatic extension of 15 years at the Partnership’s option, and on reasonable terms (cl 11(1)). The Minister for Lands is to act under Part IA of the Land Act in relation to proposed disposals and the Agreement modifies certain provisions of the Land Act for the project (cl 6(2)-(5), cl 11(2)).
Resumption and public works: The State may resume land as a public work under the Public Works Act for project purposes and grant titles to the Partnership; certain procedural protections in the Public Works Act are not to apply to such resumptions (cl 23(1)). The State will pay compensation payable under the Land (Titles and Traditional Usage) Act 1993 in connection with resumptions (cl 23(1)).
Road maintenance: The State will maintain public roads used by the Partnership to a comparable standard (cl 15(2)). The State may resume private roads constructed by the Partnership for public use and pay a reasonable amount to the Partnership (cl 15(4)).
Zoning and rates: The State will ensure lands granted to the Partnership are zoned or otherwise protected so that Partnership activities are not interfered with by State agencies or local authorities during the Agreement’s currency (cl 19). The State will ensure rating treatment for certain lands is based on unimproved value and not discriminatory; section 533B of the Local Government Act is declared not to apply (cl 20).
Assistance with Commonwealth matters: On request, the State will make representations to Commonwealth agencies for licences and consents (cl 33(2)).

Partnership duties and rights

Project development and delivery: The Partnership must continue studies, submit detailed proposals within specified timeframes after land agreement (cl 5(1), cl 7(1)), and implement approved proposals so that the power station, Argyle and Kununurra facilities are constructed within two years of final approval (cl 8(7)).
Local content and reporting: The Partnership must give fair opportunity to Western Australian and Australian labour, professional services and suppliers, give preference where price, quality and delivery are equal, include clauses requiring subcontractors to adopt the same obligations, and provide monthly reports to the Minister on implementation (cl 12(1)-(4), cl 12(3)).
Environmental management and reporting: The Partnership must prepare and implement an environmental management programme, monitor effectiveness continuously, report to the Minister on results, and submit additional proposals if new information requires changed measures (cl 7(1)(o), cl 13(1)-(5)). All activity is subject to the EP Act and laws relating to traditional usage (cl 7(1), cl 8(1)).
Land tenure rights: On compliance with proposal approvals and related requirements, the Partnership may apply for and be granted leases, licences or easements under terms set out in cl 11(1), with specified term limits and renewal mechanisms.
Exemptions and protections: The Partnership benefits from a range of statutory and financial protections: deemed modifications to the Electricity Act to vest certain powers in the Minister for project purposes (cl 14), stamp duty exemption for specified instruments for one year (cl 35), exemption from building and construction training levies when acting pursuant to the Agreement (cl 18), protections against discriminatory rates and zoning interference (cl 20, cl 21).
Assignment and security: The Partnership may assign or mortgage its rights with Ministerial consent and must secure covenants from assignees, while remaining liable for performance unless released by the Minister (cl 24). The Guarantor provides a guarantee covering obligations until facilities are deemed constructed (cl 41).

Governance, approvals and dispute resolution

Ministerial approval regime: Detailed proposals cover prescribed matters (cl 7(1)(a)-(o)). The Minister must approve, defer or condition proposals and give reasons for conditions (cl 8(1)-(3)). The Minister’s decision must be notified within two months of receipt of proposals (cl 8(2)), subject to EP Act or laws relating to traditional usage timelines.
Arbitration and limited review: Where the Partnership considers the Minister’s deferral or conditions unreasonable it may elect to refer the question of reasonableness to arbitration within two months of the Minister’s notice (cl 8(4)). Arbitration awards have the effects set out in cl 8(5); however, requirements arising from the EP Act or mandated procedures are not subject to arbitration (cl 8(4) proviso). Broader dispute settlement is by arbitration under the Commercial Arbitration Act 1985 and the arbitrator may be empowered to grant extensions in the name of the Minister (cl 36).

Termination and consequences

Determination for breach and remedies: The State may determine the Agreement for material default, abandonment or where a Partnership party is liquidated (cl 28(1)). The Partnership has rights to arbitrate alleged defaults within specified timelines (cl 28(3)). The State may alternatively remedy defaults itself and recover actual costs from the Partnership (cl 28(4)). On cessation or determination the Partnership’s rights to the Agreement and associated leases generally cease, the Partnership must pay outstanding moneys and, subject to exceptions, buildings and improvements vest in the State without compensation (cl 29).
Risk allocation on cessation: The Agreement provides that on cessation, the State becomes owner of specified improvements including transmission works except as otherwise agreed by the Minister and the Partnership may seek to remove plant within narrow time windows but the State has an option to purchase at fair valuation (cl 29(2)-(3)).

These duties and rights create a detailed risk and incentive matrix. The Partnership gains tenure, financial and procedural advantages but undertakes construction, environmental, reporting and local content obligations and retains continuing liability even after assignment unless the Minister releases it. The State acquires ministerial control over approvals, assumes certain zoning and rating obligations, and gains the right to acquire improvements on termination.

The Agreement relies primarily on contractual enforcement mechanisms, ministerial controls and arbitration rather than criminal penalties. The Act itself contains no separate penalty schedule; enforcement and remedial consequences arise from the Agreement’s clauses.

State enforcement powers

Determination for default. The State may determine the Agreement where the Partnership commits a material default in performance or in specified insolvency events (cl 28(1)(a)-(b)). The State’s notice of determination must specify the nature of the default and be served on the Partnership and specified assignees and mortgagees (cl 28(2)).
Opportunity to arbitrate alleged default. If the Partnership contests the alleged default it must refer the matter to arbitration within 60 days of the State notice (cl 28(3)(a)). If the arbitrator finds against the Partnership it must comply with the award within a reasonable time to be fixed, and at least 90 days will be allowed where the arbitrator finds a bona fide dispute and no dilatoriness (cl 28(3)(b)).
State remedy and cost recovery. If the Partnership fails to remedy a default, the State may remedy the default itself and recover the actual costs and expenses incurred as a debt due from the Partnership (cl 28(4)). For that purpose the State may enter Partnership lands and use plant, machinery and installations on site (cl 28(4)).
Arbitration and interim relief. The Agreement empowers arbitrators to grant interim extensions or variations of dates or periods in the name of the Minister where necessary to preserve rights under the Agreement (cl 36(3)). That provides procedural relief during disputes.

Partnership liabilities and monetary consequences

Debt for costs. Costs incurred by the State in remedying defaults become an immediate debt payable by the Partnership on demand (cl 28(4)). The Partnership is also required to pay any moneys becoming payable or accrued due to the State on cessation or determination (cl 29(1)(b)).
Indemnity to State. The Partnership must indemnify the State, its servants, agents and contractors against actions, claims and costs of third parties arising out of the Partnership’s work or use of plant, apparatus and equipment, except in relation to resumptions by the State under cl 23 (cl 32). That indemnity exposes the Partnership to potentially significant third‑party liability costs.
Loss of property rights and forfeiture. On cessation or determination of the Agreement the Partnership’s rights under the Agreement and in leases, licences or easements generally cease (cl 29(1)(a)). Buildings, erections and improvements including transmission works become the State’s absolute property without payment of compensation unless the Minister otherwise agrees (cl 29(2)). This is a material non‑economic penalty: loss of capital assets and investments.

Other enforcement mechanisms

Ministerial discretion and conditions. The Minister may require alterations or conditions on proposals and will disclose reasons (cl 8(1)(c)). Failure to comply with such conditions would expose the Partnership to the same default and remedy mechanics set out above.
Suspension and force majeure. The Agreement recognises force majeure and provides for delays or temporary suspension where performance is affected by events beyond control, subject to notice and best endeavours to mitigate (cl 26). That reduces the risk of State enforcement in those circumstances but requires prompt notification.
Arbitration as default dispute mechanism. For most disputes the Agreement prescribes arbitration under the Commercial Arbitration Act 1985 (cl 36(1)). Arbitration awards can have the practical effect of compelling compliance, awarding damages or giving effect to the Partnership’s expectations in respect of approvals (cl 8(5)). However, the Agreement expressly excludes cases where the State or Minister is given discretionary power from arbitration (cl 36(2)), limiting judicial review or arbitration in some contexts.

Limits on penalties

No criminal sanctions specified. The Agreement imposes contractual liabilities and remedies including termination, cost recovery, indemnities and forfeiture of improvements, but does not create new criminal offences or civil fines other than the conversion of costs to debts.
Ministerial release and discretion. The Minister may release the Partnership from liability after assignment if satisfied it will not be contrary to the State’s interests (cl 24(2)). The Minister may also permit extensions or variations of dates and periods (cl 27). These mechanisms provide flexibility that can mitigate enforcement consequences.

Practical enforcement implications

The State’s most potent enforcement lever is contractual: notice, arbitration and ultimately termination followed by vesting of improvements. The Agreement makes clear that termination and vesting consequences are irreversible in many cases, exposing the Partnership to substantial capital loss if it fails to perform (cl 29(2)).
The State’s right to enter and remedy defaults and to recover costs as a debt (cl 28(4)) means the Partnership must maintain liquidity or access to funds to avoid further enforcement actions. The Guarantor’s limited guarantee (cl 41) covers the period up to construction; post‑construction security may therefore be weaker, depending on the commercial arrangements in place.
The indemnity to the State for third party claims (cl 32) increases the Partnership’s exposure to litigation costs, and the Agreement does not limit indemnity quantum. The exclusion of the indemnity in respect of resumptions (cl 32 proviso) clarifies that State resumptions give separate remedies.

In short, enforcement is contractual and administrative, not criminal. The Agreement blends ministerial discretion with arbitration remedies, and contains strong State powers to terminate and to convert Partnership investments to State property on cessation.

The Agreement expressly interacts with and modifies a number of Western Australian statutes and the Commonwealth interface. It creates bespoke deemed modifications and carve outs, confers ministerial authority in lieu of some statutory bodies and requires compliance with some external regimes such as the Environmental Protection Act 1986 and laws relating to traditional usage. The Act itself gives statutory primacy to the Agreement (s 4(3)).

Deemed modification and disapplication of State Acts

Land Act 1933. The Agreement requires the Minister for Lands to deal with proposed disposals under Part IA of the Land Act (cl 6(2)). It then deems specific textual modifications to the Land Act for the land to which cl 11 applies, including substitution of a subsection in s 45A, deletion of s 116 proviso, deletion of ss 135 and 143, and grants power to the Minister for Lands to determine occupancy rights and grant leases in forms and terms consistent with the Agreement (cl 11(2)(a)-(f)). The Agreement states those modifications shall not prejudice the State’s rights to determine any title pursuant to other Agreement provisions.
Public Works Act 1902. The Agreement allows the State to resume land for the project as a public work under the Public Works Act and specifies that subsections (2) to (7) inclusive of s 17 and s 17A shall not apply to that land or the resumption (cl 23(1)). That removes certain procedural protections or requirements contained in those Public Works Act provisions for resumptions performed for the project.
Electricity Act 1945. For construction and operation of the power station and the transmission works, the Agreement deems the Electricity Act to be modified by deletion of numerous sections, substitution of “Minister” for “Commission” in specific sections, and by inserting qualifying references that the Act is modified by the Agreement (cl 14(a)-(c)). The Agreement adds a proviso to s 33(1) of the Electricity Act that approved proposals under the Agreement prevail over inconsistent by‑laws made under that subsection (cl 14(d)). These modifications shift regulatory control from the Commission to the Minister for project purposes.
Rights in Water and Irrigation Act 1914 and Water Acts. The Agreement deems deletion of s 45 of the Rights in Water and Irrigation Act and deletion of s 39 of the Country Areas Water Supply Act 1947 for purposes of the Water Supply Agreement (cl 31(b)-(c)). It also directs that s 63(1) of the Water Authority Act be read so that it does not apply to provide liquidated damages payable by the Water Authority to the Partnership where the Water Authority fails to release water to the Partnership (cl 31(d)). The State must consult the Partnership before making or amending Orders in Council under s 44 of the Rights in Water and Irrigation Act that may affect water supply (cl 31(a)).
Local Government Act 1960. The Agreement ensures that valuation for rating purposes of project lands shall be deemed to be unimproved value and declares that s 533B of the Local Government Act shall not apply to any lands the subject of the Agreement (cl 20(1)-(2)).
Building and Construction Industry Training Levy Acts. The Building and Construction Industry Training Levy Act 1990 and the Building and Construction Industry Training Fund and Levy Collection Act 1990 are declared not to apply to the Partnership when acting pursuant to the Agreement (cl 18).
Mining Act 1978. The State must grant mining leases for stone, sand, clay and gravel required for construction under the Mining Act but limited in term to the construction and rehabilitation period and with no royalties payable (cl 11(3)).

Interaction with Commonwealth law and licences

Commonwealth licences and consents. The Partnership must apply for any Commonwealth licences or consents needed to enter and perform the Agreement and the State will make representations to Commonwealth agencies on request (cl 33(1)-(2)). That does not alter Commonwealth decision‑making powers but creates an expectation of State assistance.

Environmental and traditional usage overlay

Environmental Protection Act 1986. The Agreement conditions the Partnership’s submissions and the Minister’s decisions upon compliance with the EP Act. The Minister’s decision timelines and approval actions must take account of EP Act processes in certain cases (cl 7(1), cl 8(1)-(2), cl 13). The Agreement expressly states nothing in the Agreement exempts the Partnership from the EP Act or requirements made under it (cl 30).
Laws relating to traditional usage. The Agreement is expressly subject to laws relating to traditional usage. The parties agreed that periods for submissions and approvals can be extended to enable compliance with such laws (cl 9(1)), and either party may determine the Agreement if development should not proceed having regard to matters arising under laws relating to traditional usage (cl 9(2)).

Procedural interactions and primacy

Primacy clause in the Act. Section 4(3) of the Act mandates the Agreement operates despite any other Act or law, which creates a statutory primacy for the Agreement’s provisions. That gives legal effect to the Agreements’ expressed modifications and disapplications of particular legislation and limits the effect of inconsistent State statutory provisions for the project.
Limits to primacy. The Agreement remains subject to Commonwealth law: the Partnership must obtain Commonwealth licences and consents as necessary (cl 33). The Agreement also preserves the operation of the EP Act and laws relating to traditional usage, so those external statutory regimes can and do influence timelines and approvals.

Consequences of interactions

Transferral of regulatory discretion. The Agreement shifts certain statutory decision powers to Ministerial determination or to processes specified in the Agreement for the purposes of the project (for example in the Electricity Act modifications, cl 14). That centralises approvals and can speed decision making for the project at the cost of limiting the statutory procedures otherwise applicable.
Carve outs of procedural protections. The Agreement removes or limits some procedural protections under the Land Act and Public Works Act for resumptions and disposals related to the project (cl 11(2), cl 23(1)). That lowers procedural barriers for land acquisition for the project but changes resumption compensation and notice mechanics in those cases.
Ongoing compliance obligations. Despite the Agreement’s primacy, the Partnership must comply with external environmental and traditional usage laws, and must secure any necessary Commonwealth approvals. Those external regimes can delay approvals and extend timeframes, but the Agreement gives the Minister power to extend dates in those circumstances (cl 9(1), cl 27).

Overall, the Agreement is a bespoke statutory‑contractual regime that selectively modifies, disapplies or supplements State statute in clearly defined ways, while remaining subject to Commonwealth requirements and the EP Act and laws relating to traditional usage.

The compilation information in the Act itself is brief. The legislation entry in the provided source records:

The Ord River Hydro Energy Project Agreement Act 1994, No. 76 of 1994, received assent on 13 December 1994 and commenced on the same date (section 2) (Compilation table). The Agreement that the Act ratifies was executed on 26 October 1994 (Agreement heading).
A formatting amendment was made by the Standardisation of Formatting Act 2010 s 4. That amendment affected headings and formatting and the Act was reprinted; the reprint date is indicated as 6 August 2004 and the Standardisation formatting amendment took effect 11 September 2010 (Compilation table).

The Schedule 1 Agreement itself contains provisions for variation among the parties and makes the Minister responsible to table variations in Parliament. Specifically:

Clause 25 provides that the Partnership and the State may agree in writing to add, substitute, cancel or vary provisions and that such agreements must be laid on the Table of each House of Parliament within 12 sitting days of execution. Either House may disallow the agreement within that period by resolution; absent disallowance the agreement takes effect (cl 25(1)-(3)). That creates an in‑built amendment mechanism for the Agreement itself, subject to parliamentary oversight.
Clause 14 and cl 11(2) show the Agreement anticipates further amendments to State Acts by deeming them modified “for the purpose of this Agreement”, and such modifications may be enacted or implemented consistent with the Agreement’s procedures.

No other legislative amendments or substantive textual changes are recorded in the provided compilation beyond the formatting standardisation. The Agreement includes an explicit variation procedure (cl 25) that envisages periodic contractual amendments between the parties, with an express parliamentary tabling and disallowance mechanism. That internal amendment process is the primary mechanism for altering the detailed project terms without a separate Act, subject to the possibility of parliamentary disallowance.

For practitioners, the key takeaways are:

The Agreement can be changed by written agreement between the State and the Partnership subject to parliamentary tabling and potential disallowance (cl 25).
Any statutory modification outside the Agreement that is intended to affect the project should be assessed against s 4(3) of the Act, which gives the Agreement precedence over inconsistent State laws.
The Act’s own external amendment history in the legislative record is limited to formatting standardisation; the Agreement anticipates further contractual amendments via cl 25.

The source document provides no cases, judgments or litigation record arising under the Act or the Agreement. The Agreement itself foresees disputes and prescribes arbitration as the primary dispute resolution mechanism, rather than court litigation, for most matters.

Relevant dispute provisions in the Agreement

Arbitration under the Commercial Arbitration Act 1985. Clause 36(1) sets out that disputes arising out of or in connection with the Agreement are to be referred to and settled by arbitration under the Commercial Arbitration Act 1985. Parties may be represented by legal practitioners before the arbitrator (cl 36(1)). The clause empowers arbitrators to grant interim extensions or variations in the name of the Minister where reasonably required to preserve rights (cl 36(3)).
Ministerial discretion exempted from arbitration. Clause 36(2) states that the arbitration procedure does not apply where the State, the Minister or any other Minister is given a discretionary power by the Agreement. That limits arbitrability in areas of express ministerial discretion.
Specific arbitration for Minister’s reasonableness decisions. Clause 8(4) allows arbitration to determine the reasonableness of certain Ministerial decisions that defer or condition proposals, subject to the proviso that requirements imposed by the EP Act are not referable to arbitration. Clause 8(5) sets out the practical consequences of adverse awards and the effect of favourable awards.
Dispute mechanics for determination. Clause 28(3) requires the Partnership to refer disputes about alleged defaults to arbitration within specified timeframes and sets the consequences for compliance or non‑compliance with awards.

Because arbitration is the stipulated default mechanism, court litigation would likely be constrained to issues outside the scope of arbitration where judicial relief remains available, and to judicial review in respect of public law or statutory decisions (for example decisions of Commonwealth bodies, or discretionary ministerial acts), subject to the Agreement’s primacy over State law. The Agreement contemplates that Ministerial discretionary powers are not arbitrable, so challenges to the exercise of discretion would likely be run in administrative law contexts if available.

Absent any reported cases in the provided text, practitioners must rely on the arbitration clauses and contractual enforcement provisions within the Agreement for dispute risk analysis. Any litigation history beyond the text is not present in the source and therefore not asserted here.

The Agreement contains several provisions that are favourable to project delivery but that also contain potential traps, conditional exposures and timing risks that practitioners and compliance officers should note.

Vesting of improvements on cessation. On cessation or determination the Agreement provides that “all buildings erections and other improvements (including all electricity transmission works constructed pursuant to this Agreement) erected on any land then occupied by the Partnership … shall become and remain the absolute property of the State without the payment of any compensation or consideration to the Partnership” unless the Minister decides otherwise (cl 29(2)). This means the Partnership may lose substantial capital investment on termination unless specific arrangements are negotiated with the Minister. That consequence is not a mere remedy; it is a built‑in forfeiture.
Limited guarantee period. The Guarantor guarantees the Partnership only until the power station and transmission facilities are “deemed to be constructed” (cl 41, and definition of constructed in cl 8(7)). After construction completion the Guarantor’s obligations cease under the text. If substantial risk remains post‑construction, the Partnership may lack third‑party guarantees.
Ministerial discretion not arbitrable. Several powers are explicitly within ministerial discretion and therefore outside the arbitration remedy (cl 36(2)). That reduces the Partnership’s ability to challenge some decisions through the contractually agreed arbitration route.
Arbitration consequences can result in termination. If arbitration decides against the Partnership in certain contexts, and the Partnership does not accept the award within three months, the Agreement may cease and determine (cl 8(5)(a)). That creates a structural risk where attempting arbitration could lead to project collapse if the outcome is adverse and not accepted.
Stamp duty exemption time limit. The stamp duty exemption for the Agreement and relevant instruments applies only to instruments executed within one year from the date of the Agreement (cl 35(1)). If instruments are executed after that window, no statutory exemption is provided by this clause and regular duties may apply. The State agreed to refund stamp duty already paid if the Bill was subsequently passed, but outside that one year statutory window instruments may attract stamp duty.
Limited resumption protections removed. The Agreement disapplies certain procedural protections in the Public Works Act and the Land Act for resumptions in favour of the project (cl 6(5), cl 11(2), cl 23(1)). Practitioners should note the Agreement’s express carveouts of Public Works Act subsections 17(2)-(7) and s 17A and the Land Act provisions; resumptions can proceed on the Agreement’s terms and the Partnership undertakes to pay costs incidental to resumptions requested by it (cl 23(1)). Compensation for resumptions is limited to what is payable under the Land (Titles and Traditional Usage) Act 1993, which may differ from ordinary Public Works Act outcomes.
Loss of levies and training obligations. The Agreement exempts the Partnership from the Building and Construction Industry Training Levy Acts when acting pursuant to the Agreement (cl 18). That is an advantage but may create differential compliance obligations for contractors and differences in cost structure that need contractually to be passed through and accounted for.
Environmental and traditional usage timelines can derail deadlines. Several approvals are explicitly subject to the EP Act and laws relating to traditional usage (cl 7, cl 8, cl 9). These external statutory regimes can suspend or extend timelines, and if not anticipated may lead to missed obligations and potential termination events. The Agreement provides extension mechanics (cl 9(1), cl 27) but the Partnership must use those procedures proactively.
Reporting and local content obligations with limited enforcement detail. The Agreement imposes local content preferences and monthly reporting obligations (cl 12). However the Agreement does not provide a granular compliance audit regime or quantified penalties for non‑compliance beyond the general default provisions. Enforcement would rely on ministerial steps and default mechanics in cl 28. That creates some compliance uncertainty for both the State and the Partnership.
Indemnity and third‑party claim exposure. The Partnership indemnifies the State against third party claims arising out of the Partnership’s works (cl 32). Except for resumptions, the indemnity is broad and potentially significant. The Agreement does not cap indemnity amounts or spell out insurance requirements within the text provided; practitioners must ensure contract and insurance arrangements address that exposure.
Assignment and continuing liability. The Partnership may assign rights with the Minister’s consent, but it remains liable for performance even after assignment unless the Minister releases its liability (cl 24(1)-(3)). Lenders and assignees will need to consider that the Partnership’s continuing liability could complicate security and refinancing strategies.
Deemed modifications to the Electricity Act and the replacement of “Commission” with “Minister” in key sections (cl 14) may alter regulatory and compliance paths that project operators typically expect under the Electricity Act. Practitioners should review the practical effect of those textual modifications on licences, by‑laws and statutory obligations.
Limited express protections for Aboriginal or traditional usage outcomes beyond time extensions and a possible right to determine the Agreement (cl 9). The Agreement defers to laws relating to traditional usage but does not itself define those processes. That leaves operational uncertainty and potential commercial stoppage pending resolution of traditional usage claims.

In summary, the Agreement provides material entitlements to the Partnership but embeds deadlines and forfeiture mechanics that impose material risks if mismanaged. The interaction with environmental and traditional usage regimes can significantly affect project timelines and outcomes. Careful scheduling, insurance, guarantee structuring, reporting compliance and proactive ministerial engagement are necessary mitigants.

Compliance under the Act requires managing statutory timelines, ministerial approval processes, environmental and traditional usage obligations, reporting and local content requirements, tenure application procedures and dispute avoidance measures. Below is a practical, clause‑by‑clause checklist oriented to the Partnership or any assignee, omitting general commercial negotiation points and focusing on contract and statutory compliance steps with direct references to relevant clauses.

Ratification and activation deadlines

Ensure that the Agreement is ratified in Parliament as required by cl 3 and cl 4. If the ratifying Bill is not passed by the deadlines then the Agreement may cease (cl 4(1)-(2)). Track the Bill and secure any necessary parliamentary action or extensions.

Land selection and tenure

Meet with the Minister promptly during the studies required under cl 5 to negotiate the power station site and transmission routes (cl 6(1)). Keep records of meetings and decisions.
Provide the Minister with required land references to the Minister for Lands, and comply with Part IA references as required (cl 6(2)-(3)).
If the Minister for Lands will not dispose of land, seek alternative sites timely to meet the 31 March 1995 deadline or secure agreed extensions (cl 6(4), cl 6(6)).
After approvals, apply for leases, licences and easements within three months and prepare necessary surveys; be prepared to correct survey errors at Partnership expense (cl 11(1)).

Project proposals and approvals

Within six months of agreement on project lands submit detailed proposals covering all items listed at cl 7(1)(a)-(o). Include plans, specifications and any details local authorities require.
If proposals are submitted separately, ensure sequencing and dependencies are explicit (cl 7(2)).
Anticipate EP Act processes and laws relating to traditional usage in the timing for the Minister’s two month decision period; if those processes apply then the decision timing is measured from service of an authority under s 45(7) EP Act or satisfaction of traditional usage requirements (cl 8(2)).
If the Minister requires alterations or conditions, request written reasons and consult promptly; if you consider the decision unreasonable, refer to arbitration within the two month window (cl 8(1)-(4)).

Environmental and traditional usage compliance

Prepare an environmental management programme as part of proposals (cl 7(1)(o)). Implement continuous monitoring and be ready to report to the Minister as required (cl 13(1)).
If new environmental information arises, notify the Minister immediately and submit additional detailed proposals within two months if required (cl 13(2)-(4)).
Factor in the EP Act approval processes and the laws relating to traditional usage; apply early for authorities and consultation, and request formal extensions under cl 9(1) and cl 27 where necessary.

Local content and workforce obligations

Implement procurement and labour policies consistent with cl 12. Document tender processes, give fair opportunity to Western Australian and Australian suppliers, and include contractual clauses requiring subcontractors to adopt the same obligations (cl 12(1)-(2)).
Submit monthly reports to the Minister on implementation of local content obligations and any reports from subcontractors; obtain any dispensation from the Minister for low value contracts where appropriate (cl 12(3)).

Roads, water and other interfaces

Construct and maintain private roads at the Partnership’s cost, erect signposting and comply with Commissioner of Main Roads and Railways Commission directions for crossing points (cl 15(1)(a)-(c)).
Engage with the State and local authorities in relation to public road maintenance and pay a fair equitable share for upgrading where Partnership use causes excessive damage (cl 15(2)-(3)).
Negotiate and secure a Water Supply Agreement with the Water Authority consistent with cl 31, and ensure any Orders in Council affecting water supply are subject to consultation with the Minister and the Partnership (cl 31(a)).

Financial and statutory exemptions

Assess stamp duty and plan instrument execution within the one year window to obtain stamp duty exemptions (cl 35(1)). If stamp duty has already been paid prior to ratification, claim refund per cl 35(2).
Confirm training levy exemption applies and document your reliance on cl 18 to avoid compliance disputes with levy administrators.

Tenures, mining materials and rehabilitation

Apply for mining leases for stone, sand, clay and gravel required for construction under cl 11(3); ensure compliance with the Mining Act while noting the no royalty provision applies for these materials.
Incorporate rehabilitation measures into proposals and environmental management programmes; be prepared to implement additional measures as required by the Minister (cl 13).

Contracts, assignment and security

If assigning, mortgaging or subletting, obtain the Minister’s consent where required and ensure assignees execute deed covenants in forms approved by the Minister (cl 24(1)). Retain records of ministerial consent and deed covenants.
Recognise that original Partnership entities remain liable unless the Minister agrees to release them (cl 24(2)). Lenders should structure security to manage the continuing liability risk.

Dispute avoidance and arbitration

Maintain documentation and records to support positions in any arbitration. For matters that may be characterized as discretionary ministerial powers, consider administrative law remedies because cl 36(2) excludes such discretionary powers from arbitration.
Use cl 36(3) to seek interim extensions or variations through arbitrators if dispute timing threatens rights or obligations.

Insurance and indemnity management

Maintain appropriate insurance to cover third party claims for works, plant and activities to meet indemnity obligations in cl 32. Ensure policies cover likely quantum and name the State as an interested party where appropriate.
Track exposure under indemnities and quantify potential liabilities, particularly in relation to environmental and personal injury risks.

Reporting, consultation and notices

Provide quarterly written progress reports to the State during the study phase (cl 5(2)) and monthly local content reports thereafter (cl 12(3)). Keep a secure paper and electronic trail of communications with the Minister.
Use the formal notices addresses and signature requirements in cl 38 for delivery of notices. Ensure authorised signatories are properly recorded with the State and update address for service promptly.

Term, cessation and asset exit

Plan for the end of the lease term, including the operation of cl 39 which makes the Agreement expire on expiration or determination of the power station lease. If the Partnership intends to remove fixed or movable plant on cessation, provide the State with notice and be aware the State has an option to purchase at fair valuation within three months (cl 29(3)).

Commonwealth licences and approvals

Identify all Commonwealth licences and consents required and make application early. Use the State’s offered representations under cl 33(2) to support Commonwealth processes.

Parliament and variation process

Any variation agreed with the State must be laid on the Table of each House; be prepared for possible disallowance by either House within 12 sitting days (cl 25). Factor parliamentary timing into project scheduling.

In practice, compliance requires a project‑level compliance register that maps Agreement obligations to responsible personnel, timelines for approvals (and extension mechanisms), reporting schedules, insurance coverages and procurement processes to evidence local content and Australian preference obligations. Early and continuous engagement with the Minister’s office, Minister for Lands, the Water Authority, the State Energy Commission and local authorities is essential, together with proactive management of EP Act and traditional usage processes to avoid timeline exposure that could trigger termination mechanics.

Ord River Hydro Energy Project Agreement Act 1994

Plain English Summary

Deep Dive

What it does

Current sections