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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 CONTENTS Part 1 -- Preliminary 1. Short title 2 2. Commencement 2 Part 2 -- Iron Ore (Hamersley Range) Agreement Act 1963 amended 3. Act amended 3 4. Section 2 amended 3 5. Sections 4C, 4D and 4E inserted 3 4C. Eleventh Supplementary Agreement 3 4D. Twelfth Supplementary Agreement 4 4E. State empowered 4 6. Twelfth and Thirteenth Schedules inserted 4 Twelfth Schedule -- Eleventh Supplementary Agreement Thirteenth Schedule -- Twelfth Supplementary Agreement Part 3 -- Iron Ore (Robe River) Agreement Act 1964 amended 7. Act amended 156 8. Section 2 amended 156 9. Sections 4B and 4C inserted 156 4B. Sixth variation agreement 156 4C. State empowered under clause 9D(9)(a) 156 175--1 page i Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Contents 10. Seventh Schedule inserted 156 Seventh Schedule -- Sixth variation agreement Part 4 -- Iron Ore (Mount Bruce) Agreement Act 1972 amended 11. Act amended 233 12. Section 2 amended 233 13. Sections 4B and 4C inserted 233 4B. 2010 Variation Agreement 233 4C. State empowered under clause 20E(9)(a) 234 14. Fourth Schedule inserted 234 Fourth Schedule -- 2010 Variation Agreement Part 5 -- Iron Ore (Hope Downs) Agreement Act 1992 amended 15. Act amended 314 16. Section 3 amended 314 17. Section 4 amended 314 18. Section 5 inserted 315 5. State empowered under clause 15C(9)(a) 315 19. Schedule amended 315 20. Schedule 2 inserted 315 Schedule 2 -- First Variation Agreement Part 6 -- Iron Ore (Yandicoogina) Agreement Act 1996 amended 21. Act amended 399 22. Section 3 amended 399 23. Section 4 amended 399 24. Section 5 inserted 400 5. State empowered under clause 12C(9)(a) 400 25. Schedule 2 inserted 400 Schedule 2 -- First Variation Agreement Part 7 -- Iron Ore (Mount Newman) Agreement Act 1964 amended 26. Act amended 480 27. Section 2 amended 480 page ii Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Contents 28. Sections 4B and 4C inserted 480 4B. Sixth Variation Agreement 480 4C. State empowered under clause 9E(9)(a) 481 29. Seventh Schedule inserted 481 Seventh Schedule -- Sixth Variation Agreement Part 8 -- Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended 30. Act amended 559 31. Section 3 amended 559 32. Sections 5B and 5C inserted 559 5B. Fourth Variation Agreement 559 5C. State empowered under clause 9E(9)(a) 560 33. Fifth Schedule inserted 560 Fifth Schedule -- Fourth Variation Agreement Part 9 -- Iron Ore (Goldsworthy- Nimingarra) Agreement Act 1972 amended 34. Act amended 637 35. Section 2 amended 637 36. Sections 6 and 7 inserted 637 6. Second Variation Agreement 637 7. State empowered under clause 16C(9)(a) 638 37. Schedule 3 inserted 638 Schedule 3 -- Second Variation Agreement Part 10 -- Iron Ore (McCamey's Monster) Agreement Authorisation Act 1972 amended 38. Act amended 713 39. Section 2A inserted 713 2A. Term used: current Agreement 713 40. Section 3 amended 713 41. Sections 4, 5 and 6 amended 714 42. Sections 8 and 9 inserted 714 8. Fourth Variation Agreement 714 9. State empowered under clause 11E(9)(a) 714 page iii Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Contents 43. Schedule 5 inserted 714 Schedule 5 -- Fourth Variation Agreement Part 11 -- Iron Ore (Marillana Creek) Agreement Act 1991 amended 44. Act amended 788 45. Section 7 inserted 788 7. Variation of Agreement about size of ore products and applicable royalties 788 46. Section 3 amended 790 47. Section 4 amended 790 48. Sections 8 and 9 inserted 790 8. Third Variation Agreement 790 9. State empowered under clause 14C(9)(a) 791 49. Schedule 4 inserted 791 Schedule 4 -- Third Variation Agreement page iv Western Australia LEGISLATIVE ASSEMBLY Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 A Bill for An Act to amend these Acts -- • the Iron Ore (Hamersley Range) Agreement Act 1963; • the Iron Ore (Robe River) Agreement Act 1964; • the Iron Ore (Mount Bruce) Agreement Act 1972; • the Iron Ore (Hope Downs) Agreement Act 1992; • the Iron Ore (Yandicoogina) Agreement Act 1996; • the Iron Ore (Mount Newman) Agreement Act 1964; • the Iron Ore (Mount Goldsworthy) Agreement Act 1964; • the Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972; • the Iron Ore (McCamey's Monster) Agreement Authorisation Act 1972; • the Iron Ore (Marillana Creek) Agreement Act 1991. The Parliament of Western Australia enacts as follows: page 1 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 1 Preliminary s. 1 1 Part 1 -- Preliminary 2 1. Short title 3 This is the Iron Ore Agreements Legislation Amendment 4 Act (No. 2) 2010. 5 2. Commencement 6 This Act comes into operation as follows -- 7 (a) Part 1 -- comes into operation on the day on which this 8 Act receives the Royal Assent (assent day); 9 (b) section 45 is deemed to have come into operation on 10 1 July 2010 immediately after the Iron Ore Agreements 11 Legislation Amendment Act 2010 Part 4 came into 12 operation; 13 (c) the rest of the Act -- comes into operation on the day 14 after assent day. 15 page 2 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 3 1 Part 2 -- Iron Ore (Hamersley Range) Agreement 2 Act 1963 amended 3 3. Act amended 4 This Part amends the Iron Ore (Hamersley Range) Agreement 5 Act 1963. 6 4. Section 2 amended 7 (1) At the end of section 2 insert: 8 9 the Eleventh Supplementary Agreement means the 10 agreement a copy of which is set out in the Twelfth 11 Schedule; 12 the Twelfth Supplementary Agreement means the 13 agreement a copy of which is set out in the Thirteenth 14 Schedule. 15 16 (2) In section 2 in the definition of the Tenth Supplementary 17 Agreement delete "Schedule." and insert: 18 19 Schedule; 20 21 5. Sections 4C, 4D and 4E inserted 22 After section 4B insert: 23 24 4C. Eleventh Supplementary Agreement 25 (1) The Eleventh Supplementary Agreement is ratified and 26 its implementation is authorised. 27 (2) Without limiting or otherwise affecting the application 28 of the Government Agreements Act 1979, the Eleventh page 3 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 Supplementary Agreement is to operate and take effect 2 despite any other Act or law. 3 4D. Twelfth Supplementary Agreement 4 (1) The Twelfth Supplementary Agreement is ratified and 5 its implementation is authorised. 6 (2) Without limiting or otherwise affecting the application 7 of the Government Agreements Act 1979, the Twelfth 8 Supplementary Agreement is to operate and take effect 9 despite any other Act or law. 10 4E. State empowered 11 (1) The State has power in accordance with 12 clause 10N(9)(a) of the Principal Agreement, as 13 defined in the Eleventh Supplementary Agreement, and 14 as inserted by that Supplementary Agreement. 15 (2) The State has power in accordance with 16 clause 7E(9)(a) of the Principal Agreement, as defined 17 in the Twelfth Supplementary Agreement, and as 18 inserted by that Supplementary Agreement. 19 20 6. Twelfth and Thirteenth Schedules inserted 21 After the Eleventh Schedule insert: page 4 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 Twelfth Schedule -- Eleventh Supplementary 2 Agreement 3 [s. 2] 4 2010 5 6 7 8 THE HONOURABLE COLIN JAMES BARNETT 9 PREMIER OF THE STATE OF WESTERN AUSTRALIA 10 11 12 AND 13 14 15 HAMERSLEY IRON PTY. LIMITED 16 ACN 004 558 276 17 18 19 20 21 22 IRON ORE (HAMERSLEY RANGE) AGREEMENT 1963 23 24 RATIFIED VARIATION AGREEMENT 25 26 27 28 29 [Solicitor's details] 30 31 32 33 34 35 36 37 38 page 5 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 THIS AGREEMENT is made this 17th day of November 2010 2 3 BETWEEN 4 THE HONOURABLE COLIN JAMES BARNETT MLA., Premier of the 5 State of Western Australia acting for and on behalf of the said State and 6 instrumentalities thereof from time to time (State) 7 AND 8 HAMERSLEY IRON PTY. LIMITED ACN 004 558 276 of Level 22, 9 Central Park, 152 - 158 St Georges Terrace, Perth, Western Australia 10 (Company). 11 12 RECITALS 13 A. The State and the Company are the parties to the agreement dated 30 14 July 1963 approved by and scheduled to the Iron Ore (Hamersley 15 Range) Agreement Act 1963 and which as subsequently added to, 16 varied or amended is referred to in this Agreement as the "Principal 17 Agreement". 18 B. The State and the Company wish to vary the Principal Agreement. 19 20 THE PARTIES AGREE AS FOLLOWS: 21 1. Subject to the context, the words and expressions used in this 22 Agreement have the same meanings respectively as they have in and 23 for the purpose of the Principal Agreement. 24 2. The State shall sponsor a Bill in the Parliament of Western Australia 25 to ratify this Agreement and shall endeavour to secure its passage as 26 an Act prior to 31 December 2010 or such later date as the parties 27 may agree. page 6 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 3. (a) Clause 4 does not come into operation unless or until an Act 2 passed in accordance with clause 2 ratifies this Agreement. 3 (b) If by 30 June 2011, or such later date as may be agreed 4 pursuant to clause 2, clause 4 has not come into operation 5 then unless the parties hereto otherwise agree this 6 Agreement shall cease and determine and neither party shall 7 have any claim against the other party with respect to any 8 matter or thing arising out of or done or performed or 9 omitted to be done or performed under this Agreement. 10 4. The Principal Agreement is hereby varied as follows: 11 (1) in clause 1: 12 (a) by deleting the existing definitions of "fine ore" 13 and "lump ore"; 14 (b) by inserting in the appropriate alphabetical 15 positions the following new definitions: 16 "approved proposal" means a proposal approved or 17 determined under this Agreement; 18 "beneficiated ore": 19 (a) means iron ore that has been 20 concentrated or upgraded (otherwise than 21 solely by crushing, screening, separating 22 by hydrocycloning or a similar 23 technology which uses primarily size as a 24 criterion, washing, scrubbing, 25 trommelling or drying or by a 26 combination of 2 or more of those 27 processes) by the Company in a plant 28 constructed pursuant to a proposal 29 approved pursuant to an Integration 30 Agreement or in such other plant as is 31 approved by the Minister after 32 consultation with the Minister for Mines page 7 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 and "beneficiation" and "beneficiate" 2 have corresponding meanings; and 3 (b) for the avoidance of doubt, includes iron 4 ore concentration products from the 5 Mount Tom Price concentration plant; 6 "fine ore" means iron ore (not being beneficiated 7 ore) which is screened and will pass through a 6.3 8 millimetre mesh screen; 9 "Integration Agreement" means: 10 (a) the agreement approved by and 11 scheduled to the Iron Ore (Hamersley 12 Range) Agreement Act 1963, as from 13 time to time added to, varied or 14 amended; or 15 (b) the agreement approved by and 16 scheduled to the Iron Ore (Robe River) 17 Agreement Act 1964, as from time to 18 time added, to varied or amended; or 19 20 (c) the agreement approved by and 21 scheduled to the Iron Ore (Hamersley 22 Range) Agreement Act Amendment Act 23 1968, as from time to time added to, 24 varied or amended; or 25 (d) the agreement ratified by and scheduled 26 to the Iron Ore (Mount Bruce) 27 Agreement Act 1972, as from time to 28 time added to, varied or amended; or 29 30 (e) the agreement ratified by and scheduled 31 to the Iron Ore (Hope Downs) 32 Agreement Act 1992, as from time to 33 time added to, varied or amended; or 34 page 8 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 (f) the agreement ratified by and scheduled 2 to the Iron Ore (Yandicoogina) 3 Agreement Act 1996, as from time to 4 time added to, varied or amended; or 5 6 (g) the agreement approved by and 7 scheduled to the Iron Ore (Mount 8 Newman) Agreement Act 1964, as from 9 time to time added to, varied or 10 amended; or 11 12 (h) the agreement approved by and 13 scheduled to the Iron Ore (Mount 14 Goldsworthy) Agreement Act 1964, as 15 from time to time added to, varied or 16 amended; or 17 18 (i) the agreement ratified by and scheduled 19 to the Iron Ore (Goldsworthy- 20 Nimingarra) Agreement Act 1972, as 21 from time to time added to, varied or 22 amended; or 23 24 (j) the agreement authorised by and as 25 scheduled to the Iron Ore (McCamey's 26 Monster) Agreement Authorisation Act 27 1972, as from time to time added to, 28 varied or amended; or 29 30 (k) the agreement ratified by and scheduled 31 to the Iron Ore (Marillana Creek) 32 Agreement Act 1991, as from time to 33 time added to, varied or amended; 34 35 "Integration Proponent" means in relation to an 36 Integration Agreement, "the Company" or "the 37 Joint Venturers" as the case may be as defined in, 38 and for the purpose of, that Integration Agreement; page 9 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 "laws relating to native title" means laws 2 applicable from time to time in the said State in 3 respect of native title and includes the Native Title 4 Act 1993 (Commonwealth); 5 "lump ore" means iron ore (not being beneficiated 6 ore) which is screened and will not pass through a 7 6.3 millimetre mesh screen; 8 "Related Entity" means a company in which: 9 (a) as at 21 June 2010; and 10 (b) after 21 June 2010, with the approval of 11 the Minister, 12 a direct or (through a subsidiary or subsidiaries 13 within the meaning of the Corporations Act 2001 14 (Commonwealth)) indirect shareholding of 20% 15 or more is held by: 16 (c) Rio Tinto Limited ABN 96 004 458 404; 17 or 18 (d) BHP Billiton Limited ABN 49 004 028 19 077; or 20 (e) those companies referred to in 21 paragraphs (c) and (d) in aggregate; 22 "variation date" means the date on which clause 4 23 of the variation agreement made on or about 17 24 November 2010 between the State and the 25 Company comes into operation; 26 "washing" means a process of separation by water 27 using only size as a criterion; page 10 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 (c) in the definition of "agreed or determined" by: 2 (I) deleting "assessed at" and substituting 3 "assessed on"; and 4 (II) deleting all the words after "shall have 5 regard to" and substituting a colon 6 followed by: 7 "(i) in the case of iron ore initially 8 sold at cost pursuant to 9 paragraph (B) of the proviso to 10 clause 10(2)(e), the prices for 11 that type of iron ore prevailing 12 at the time the price for such 13 iron ore was agreed between 14 the arm's length purchaser 15 referred to in paragraph (B)(iii) 16 of that proviso and the seller in 17 relation to the type of sale and 18 the relevant international 19 seaborne iron ore market into 20 which such iron ore was sold 21 and where prices beyond the 22 deemed f.o.b. point are being 23 considered the deductions 24 mentioned in the definition of 25 f.o.b. value; and 26 (ii) in any other case, the prices for 27 that type of iron ore prevailing 28 at the time the price for such 29 iron ore was agreed between 30 the Company and the purchaser 31 in relation to the type of sale 32 and the market into which such 33 iron ore was sold and where 34 prices beyond the deemed f.o.b. 35 point are being considered the page 11 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 deductions mentioned in the 2 definition of f.o.b. value;"; 3 (d) in the definition of "Company's wharf" by 4 inserting "and in clauses 10(2)(e) and (f) also any 5 additional wharf constructed by the Company 6 pursuant to this Agreement" before the semi colon; 7 (e) in the definition "f.o.b. value" by: 8 (i) in paragraph (i): 9 (A) inserting "subject to paragraph 10 (ii)," before "in the case"; and 11 (B) deleting "assessed at" and 12 substituting "assessed on"; 13 (ii) renumbering the existing paragraph (ii) as 14 paragraph (iii); and 15 (iii) inserting after paragraph (i) the following 16 new paragraph: 17 "(ii) in the case of iron ore initially 18 sold at cost pursuant to 19 paragraph (B) of the proviso to 20 clause 10(2)(e), the price which 21 is payable for the iron ore by 22 the arm's length purchaser as 23 referred to in paragraph (B)(iii) 24 of that proviso or, where the 25 Minister considers, following 26 advice from the appropriate 27 Government department, that 28 the price payable in respect of 29 the iron ore does not represent 30 a fair and reasonable market 31 value for that type of iron ore 32 assessed on an arm's length page 12 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 basis in the relevant 2 international seaborne iron ore 3 market, such amount as is 4 agreed or determined as 5 representing such a fair and 6 reasonable market value, less 7 all duties, taxes, costs and 8 charges referred to in paragraph 9 (i) above;"; 10 (f) in the definition of "iron ore" by deleting "iron ore 11 concentration products" and substituting ", without 12 limitation, beneficiated ore"; 13 (g) in the definition of "loading port" by: 14 (i) renumbering the existing paragraph (c) 15 as paragraph (e); and 16 (ii) inserting after paragraph (b) the 17 following new paragraphs: 18 "(c) the Port of Port Hedland; or 19 (d) any other port constructed after 20 the variation date under an 21 Integration Agreement; or"; 22 (h) in the definition of "metallised agglomerates" by 23 deleting "or iron ore concentration products"; 24 (i) in the definition of "mineral lease" by inserting 25 "10H," after "10F"; 26 (j) in the definition of "secondary processing" by 27 deleting "concentration or other benefaction of 28 iron ore other than by crushing or screening" and 29 substituting "beneficiation of iron ore"; page 13 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 (k) in the sentence regarding marginal notes by 2 inserting "and clause headings" after "marginal 3 notes"; and 4 (l) by inserting after that sentence the following new 5 sentences: 6 "Words in the singular shall include the plural and 7 words in the plural shall include the singular 8 according to the requirements of the context. 9 Nothing in this Agreement shall be construed: 10 (a) to exempt the Company from compliance 11 with any requirement in connection with 12 the protection of the environment arising 13 out of or incidental to its activities under 14 this Agreement that may be made by or 15 under the EP Act; or 16 (b) to exempt the State or the Company from 17 compliance with or to require the State or 18 the Company to do anything contrary to 19 any laws relating to native title or any 20 lawful obligation or requirement imposed 21 on the State or the Company as the case 22 may be pursuant to any laws relating to 23 native title; or 24 (c) to exempt the Company from compliance 25 with the provisions of the Aboriginal 26 Heritage Act 1972 (WA)."; 27 (2) by inserting after clause 8 the following new clauses: 28 "Additional Proposals 29 30 8A. (1) If the Company, at any time during the 31 continuance of this Agreement after the 32 variation date, desires to significantly page 14 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 modify, expand or otherwise vary its 2 activities carried on pursuant to this 3 Agreement (other than under clauses 4 10A, 10G, 10I, 10K or 10N) beyond 5 those activities specified in any 6 proposals approved pursuant to clauses 6 7 and 7 it shall give notice of such desire to 8 the Minister and within 2 months 9 thereafter shall submit to the Minister 10 detailed proposals in respect of all 11 matters covered by such notice and such 12 of the other matters mentioned in clause 13 5(1)(a) as the Minister may require. 14 15 (2) A proposal may with the consent of the 16 Minister (except in relation to an 17 Integration Agreement) and that of any 18 parties concerned (being in respect of an 19 Integration Agreement the Integration 20 Proponent for that agreement) provide for 21 the use by the Company of any works 22 installations or facilities constructed or 23 established under a Government 24 agreement. 25 26 (3) Each of the proposals pursuant to 27 subclause (1) may with the approval of 28 the Minister, or shall if so required by the 29 Minister, be submitted separately and in 30 any order as to any matter or matters in 31 respect of which such proposals are 32 required to be submitted. 33 34 (4) At the time when the Company submits 35 the said proposals it shall submit to the 36 Minister details of any services 37 (including any elements of the project 38 investigations, design and management) 39 and any works materials, plant, 40 equipment and supplies that it proposes to page 15 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 consider obtaining from or having carried 2 out or permitting to be obtained from or 3 carried out outside Australia together 4 with its reasons therefor and shall, if 5 required by the Minister, consult with the 6 Minister with respect thereto. 7 8 (5) The Company may withdraw its 9 proposals pursuant to subclause (1) at any 10 time before approval thereof, or where 11 any decision in respect thereof is referred 12 to arbitration as referred to in clause 8B, 13 within 3 months after the award by notice 14 to the Minister that it shall not be 15 proceeding with the same. 16 17 Consideration of Company's proposals under clause 8A 18 19 8B. (1) In respect of each proposal pursuant to 20 subclause (1) of clause 8A the Minister 21 shall: 22 23 (a) subject to the limitations set out 24 below, refuse to approve the 25 proposal (whether it requests 26 the grant of new tenure or not) 27 if the Minister is satisfied on 28 reasonable grounds that it is not 29 in the public interest for the 30 proposal to be approved; or 31 32 (b) approve of the proposal without 33 qualification or reservation; or 34 35 (c) defer consideration of or 36 decision upon the same until 37 such time as the Company 38 submits a further proposal or 39 proposals in respect of some 40 other of the matters mentioned page 16 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 in clause 8A(1) not covered by 2 the said proposal; or 3 4 (d) require as a condition precedent 5 to the giving of his approval to 6 the said proposal that the 7 Company make such alteration 8 thereto or comply with such 9 conditions in respect thereto as 10 he thinks reasonable, and in 11 such a case the Minister shall 12 disclose his reasons for such 13 conditions, 14 15 PROVIDED ALWAYS that where 16 implementation of any proposals 17 hereunder has been approved pursuant to 18 the EP Act subject to conditions or 19 procedures, any approval or decision of 20 the Minister under this clause shall if the 21 case so requires incorporate a 22 requirement that the Company make such 23 alterations to the proposals as may be 24 necessary to make them accord with 25 those conditions or procedures. 26 27 In considering whether to refuse to 28 approve a proposal the Minister is to 29 assess whether or not the implementation 30 of the proposal by itself, or together with 31 any one or more of the other submitted 32 proposals, will: 33 34 (i) detrimentally affect economic and 35 orderly development in the said 36 State, including without limitation, 37 infrastructure development in the 38 said State; or 39 page 17 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 (ii) be contrary to or inconsistent with 2 the planning and development 3 policies and objectives of the 4 State; or 5 6 (iii) detrimentally affect the rights and 7 interests of third parties; or 8 9 (iv) detrimentally affect access to and 10 use by others of the lands the 11 subject of any grant or proposed 12 grant to the Company. 13 14 The right to refuse to approve a proposal 15 conferred by paragraph (a) may only be 16 exercised in respect of a proposal where 17 the Minister is satisfied on reasonable 18 grounds that a purpose of the proposal is 19 the integrated use of works installations 20 or facilities (as defined in subclause (7) 21 of clause 10L for the purpose of that 22 clause) as contemplated by clause 10L. It 23 may not be so exercised in respect of a 24 proposal if pursuant to clause 8C(5) the 25 Minister, prior to the submission of the 26 proposal, advised the Company in 27 writing that the Minister has no public 28 interest concerns (as defined in that 29 clause) with the single preferred 30 development (as referred to in clause 31 8C(5)(a)) the subject of the submitted 32 proposals and those proposals are 33 consistent (as to their substantive scope 34 and content) with the information 35 provided to the Minister pursuant to 36 clause 8C(5) in respect of that single 37 preferred development. 38 39 (2) The Minister shall within 2 months after 40 receipt of proposals pursuant to clause page 18 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 8A(1) give notice to the Company of his 2 decision in respect to the proposals, 3 PROVIDED THAT where a proposal is 4 to be assessed under Part IV of the EP 5 Act the Minister shall only give notice to 6 the Company of his decision in respect to 7 the proposal within 2 months after 8 service on him of an authority under 9 section 45(7) of the EP Act. 10 11 (3) If the decision of the Minister is as 12 mentioned in either of paragraphs (a), (c) 13 or (d) of subclause (1) the Minister shall 14 afford the Company full opportunity to 15 consult with him and should it so desire 16 to submit new or revised proposals either 17 generally or in respect to some particular 18 matter. 19 20 (4) If the decision of the Minister is as 21 mentioned in either of paragraphs (c) or 22 (d) of subclause (1) and the Company 23 considers that the decision is 24 unreasonable the Company within 2 25 months after receipt of the notice 26 mentioned in subclause (2) may elect to 27 refer to arbitration in the manner 28 hereinafter provided the question of the 29 reasonableness of the decision 30 PROVIDED THAT any requirement of 31 the Minister pursuant to the proviso to 32 subclause (1) shall not be referable to 33 arbitration hereunder. A decision of the 34 Minister under paragraph (a) of 35 subclause (1) shall not be referable to 36 arbitration under this Agreement. 37 38 (5) If by the award made on the arbitration 39 pursuant to subclause (4) the dispute is 40 decided in favour of the Company the page 19 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 decision shall take effect as a notice by 2 the Minister that he is so satisfied with 3 and approves the matter or matters the 4 subject of the arbitration. 5 6 (6) The Company shall implement the 7 approved proposals in accordance with 8 the terms thereof. 9 10 (7) Notwithstanding clause 21, the Minister 11 may during the implementation of 12 approved proposals approve variations to 13 those proposals. 14 15 Notification of possible proposals 16 17 8C. (1) If the Company, upon completion of a 18 pre-feasibility study in respect of any 19 matter that would require the submission 20 and approval of proposals pursuant to 21 this Agreement (being proposals which 22 will have as their purpose, or one of their 23 purposes, the integrated use of works 24 installations or facilities as contemplated 25 by clause 10L) for the matter to be 26 undertaken, intends to further consider 27 the matter with a view to possibly 28 submitting such proposals it shall 29 promptly notify the Minister in writing 30 giving reasonable particulars of the 31 relevant matter. 32 33 (2) Within one (1) month after receiving the 34 notification the Minister may, if the 35 Minister so wishes, inform the Company 36 of the Minister's views of the matter at 37 that stage. 38 39 (3) If the Company is informed of the 40 Minister's views, it shall take them into page 20 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 account in deciding whether or not to 2 proceed with its consideration of the 3 matter and the submission of proposals. 4 5 (4) Neither the Minister's response nor the 6 Minister choosing not to respond shall in 7 any way limit, prejudice or otherwise 8 affect the exercise by the Minister of the 9 Minister's powers, or the performance of 10 the Minister's obligations, under this 11 Agreement or otherwise under the laws 12 from time to time of the said State. 13 14 (5) (a) This subclause applies where the 15 Company has settled upon a 16 single preferred development a 17 purpose of which is the integrated 18 use of works installations or 19 facilities (as defined in subclause 20 (7) of clause 10L for the purpose 21 of that clause) as contemplated 22 by clause 10L. 23 24 (b) For the purpose of this subclause 25 "public interest concerns" means 26 any concern that implementation 27 of the single preferred 28 development or any part of it 29 will: 30 31 (i) detrimentally affect 32 economic and orderly 33 development in the said 34 State, including without 35 limitation, infrastructure 36 development in the said 37 State; or 38 39 (ii) be contrary to or 40 inconsistent with the page 21 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 planning and 2 development policies and 3 objectives of the State; or 4 5 (iii) detrimentally affect the 6 rights and interests of 7 third parties; or 8 9 (iv) detrimentally affect 10 access to and use by 11 others of lands the 12 subject of any grant or 13 proposed grant to the 14 Company. 15 16 (c) At any time prior to submission 17 of proposals the Company may 18 give to the Minister notice of its 19 single preferred development and 20 request the Minister to confirm 21 that the Minister has no public 22 interest concerns with that single 23 preferred development. 24 25 (d) The Company shall furnish to the 26 Minister with its notice 27 reasonable particulars of the 28 single preferred development 29 including, without limitation: 30 31 (i) as to the matters that 32 would be required to be 33 addressed in submitted 34 proposals; and 35 36 (ii) its progress in 37 undertaking any 38 feasibility or other 39 studies or matters to be 40 completed before page 22 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 submission of proposals; 2 and 3 4 (iii) its timetable for 5 obtaining required 6 statutory and other 7 approvals in relation to 8 the submission and 9 approval of proposals; 10 and 11 12 (iv) its tenure requirements. 13 14 (e) If so required by the Minister, the 15 Company will provide to the 16 Minister such further information 17 regarding the single preferred 18 development as the Minister may 19 require from time to time for the 20 purpose of considering the 21 Company's request and also 22 consult with the Minister or 23 representatives or officers of the 24 State in regard to the single 25 preferred development. 26 27 (f) Within 2 months after receiving 28 the notice (or if the Minister 29 requests further information, 30 within 2 months after the 31 provision of that information) the 32 Minister must advise the 33 Company: 34 35 (iv) that the Minister has no 36 public interest concerns 37 with the single preferred 38 development; or 39 page 23 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 (v) that he is not then in a 2 position to advise that he 3 has no public interest 4 concerns with the single 5 preferred development 6 and the Minister's 7 reasons in that regard. 8 9 (g) If the Minister gives the advice 10 mentioned in paragraph (f)(ii) the 11 Company may, should it so 12 desire, give a further request to 13 the Minister in respect of a 14 revised or alternate single 15 preferred development and the 16 provisions of this subclause shall 17 apply mutatis mutandis thereto."; 18 19 (3) in paragraph (b) of clause 9(1): 20 (i) by deleting "Clause 6 or Clause 7" and substituting 21 "clauses, 6, 7, 8B, 10I or 10K"; 22 (ii) in subparagraph (i) by: 23 (A) inserting "cause to be granted" after 24 "grant"; 25 (B) in the paragraph beginning "for nominal 26 consideration", deleting "the harbour 27 area"; 28 (C) inserting after that paragraph the following 29 new paragraph: 30 "at commercial rentals, licence or 31 easement fees as applicable - leases, 32 licences or easements within the Port of 33 Dampier; and"; page 24 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 (D) deleting "and" before "the Jetties Act" and 2 substituting a comma; 3 (E) inserting ", the Port Authorities Act 1999 4 (WA)" after "1926"; and 5 (F) inserting "installations or facilities" after 6 "as the Company reasonably requires for 7 its works"; and 8 (iii) in the proviso by deleting "or (as the case may be) 9 all iron ore concentration products"; 10 (4) by inserting after subclause (3) of clause 9 the following 11 new subclause: 12 "(3a) The provisions of subclause (1) of this clause shall 13 not operate so as to require the State to grant or 14 vary, or cause to be granted or varied, any lease 15 licence or other right or title until all processes 16 necessary under any laws relating to native title to 17 enable that grant or variation to proceed, have been 18 completed."; 19 20 (5) by deleting paragraph (e) of clause 10(2) and substituting 21 the following new paragraphs: 22 "(e) ship, or procure the shipment of, all iron ore mined 23 from the mineral lease, all iron ore mined from the 24 mining lease and all iron ore referred to in clause 25 10(2)(ja) and (in each case) sold: 26 27 (i) from the Company's wharf; or 28 29 (ii) from any other wharf in a loading port 30 which wharf has been constructed under an 31 Integration Agreement; or 32 33 (iii) with the Minister's approval given before 34 submission of proposals in that regard, page 25 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 from any other wharf in a loading port 2 which wharf has been constructed under 3 another Government agreement (excluding 4 the Integration Agreements), 5 6 and use its best endeavours to obtain therefor the 7 best price possible having regard to market 8 conditions from time to time prevailing PROVIDED 9 THAT: 10 11 (A) this paragraph shall not apply to iron ore 12 used for secondary processing or for the 13 manufacture of iron or steel in any part of 14 the said State lying north of the twenty 15 sixth parallel of latitude; and 16 17 (B) iron ore from the mineral lease or the 18 mining lease may be sold by the Company 19 prior to or at the time of the shipment 20 under this Agreement at a price equal to 21 the production costs in respect of that iron 22 ore up to the point of sale, if: 23 24 (i) the Minister is notified before the 25 time of shipment that the sale is to 26 be made at cost, providing details 27 of the proposed sale; and 28 29 (ii) the Minister is notified of the 30 proposed arm's length purchaser in 31 the relevant international seaborne 32 iron ore market of the iron ore the 33 subject of the proposed sale at 34 cost; and 35 36 (iii) there is included in the return 37 lodged pursuant to subclause 38 (2)(k) particulars of the transaction 39 in which the ore sold at cost was 40 subsequently purchased in the page 26 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 relevant international seaborne 2 iron ore market by an arm's length 3 purchaser specifying the 4 purchaser, the seller, the price and 5 the date when the sale was agreed 6 between the arm's length purchaser 7 and the seller; and 8 9 (iv) the arm's length purchaser referred 10 to in (iii) above is not then a 11 designated purchaser as referred to 12 in subclause (2)(ea); 13 14 Designated purchaser 15 16 (ea) if required by notice in writing from the Minister, 17 provide the Minister within 30 days after receiving 18 the notice with evidence that the transaction as 19 included in the return pursuant to paragraph (B)(iii) 20 of subclause (2)(e) was a sale in the relevant 21 international seaborne iron ore market to an 22 independent participant in that market. If no 23 evidence is provided or the Minister is not so 24 satisfied on the evidence provided or other 25 information obtained, the Minister may by notice to 26 the Company designate the purchaser to be a 27 designated purchaser and that designation will 28 remain in force unless and until lifted by further 29 notice from the Minister to the Company. For the 30 avoidance of doubt, the parties acknowledge that 31 marketing entities forming part of the corporate 32 group including the Company (or part of the parallel 33 corporate group if the Company is part of a dual- 34 listed corporate structure) are not independent 35 participants for the purposes of this subclause;"; 36 page 27 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 (6) in paragraph (j) of clause 10(2) by: 2 (i) in subparagraph (iii) deleting "iron ore 3 concentration products" and substituting 4 "beneficiated ore"; 5 (ii) in the paragraph after subparagraph (iv): 6 "(A) deleting "iron ore concentration products 7 are" and substituting "beneficiated ore 8 is"; 9 (B) deleting the second reference to "iron ore 10 concentration products" and substituting 11 "beneficiated ore"; and 12 (C) deleting "those iron ore concentration 13 products" and substituting "that 14 beneficiated ore"; and 15 (iii) inserting at the end of the paragraph: 16 "Where for the purpose of determining f.o.b. value 17 it is necessary to convert an amount or price to 18 Australian currency, the conversion is to be 19 calculated using a rate (excluding forward hedge or 20 similar contract rates) that has been approved by 21 the Minister at the request of the Company and in 22 the absence of such request as determined by the 23 Minister to be a reasonable rate for the purpose. 24 The provisions of regulation 85AA (Effect of GST 25 etc on royalties) of the Mining Regulations 1981 26 (WA) shall apply mutatis mutandis to the 27 calculation of royalties under this clause."; 28 (7) in paragraph (k) of clause 10(2) by: 29 (a) inserting ", and also showing such other 30 information in relation to the abovementioned iron page 28 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 ore as the Minister may from time to time 2 reasonably require in regard to, and to assist in 3 verifying, the calculation of royalties in accordance 4 with paragraphs (j) and (ja)" after "the due date of 5 the return"; and 6 (b) deleting all the words after "calculated on the basis 7 of" and substituting a colon followed by: 8 "(i) in the case of iron ore initially sold at 9 cost pursuant to paragraph (B) of the 10 proviso to subclause (2)(e), at the price 11 notified pursuant to paragraph (B)(iii) of 12 that proviso; 13 (ii) in any other case, invoices or provisional 14 invoices (as the case may be) rendered 15 by Company to the purchaser (which 16 invoices the Company shall render 17 without delay simultaneously furnishing 18 copies thereof to the Minister) of such 19 iron ore or on the basis of estimates as 20 agreed or determined, 21 and shall from time to time in the next following 22 appropriate return and payment make (by the 23 return and by cash) all such necessary adjustments 24 (and give to the Minister full details thereof) when 25 the f.o.b. value shall have been finally calculated, 26 agreed or determined;"; 27 (8) in paragraph (n) of clause 10(2) by: 28 (a) deleting "books of account and records of the 29 Company including contracts relative" and 30 substituting "books, records, accounts, documents 31 (including contracts), data and information of the 32 Company stored by any means relating"; page 29 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 (b) inserting "(in whatever form)" after "copies or 2 extracts"; and 3 (c) inserting "the subject of royalty " before the first 4 two references to "hereunder"; 5 (9) by inserting after paragraph (n) of clause 10(2) the 6 following new paragraph: 7 "(o) The Company shall cause to be produced in Perth 8 in the said State all books, records, accounts, 9 documents (including contracts), data and 10 information of the kind referred to in paragraph (n) 11 to enable the exercise of rights by the Minister or 12 the Minister's nominee under paragraph (n), 13 regardless of the location in which or by whom 14 those books, records, accounts, documents 15 (including contracts), data and information are 16 stored from time to time."; 17 (10) in clause 10(4): 18 (a) by deleting paragraph (a) and substituting the 19 following new paragraph (a): 20 "(a) The Company may blend iron ore mined 21 from the mineral lease and the mining 22 lease or either of them with any: 23 24 (i) iron ore mined from a mining 25 tenement or other mining title 26 granted under, or pursuant to, an 27 Integration Agreement; or 28 29 (ii) iron ore mined from a Mining 30 Act 1978 mining lease located 31 in, or proximate to, the Pilbara 32 region of the said State which is 33 held by a Related Entity alone 34 or with a third party or parties page 30 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 (excluding any mining lease 2 granted pursuant to, or held 3 under, a Government 4 agreement); or 5 6 (iii) with the prior approval of the 7 Minister, iron ore mined in, or 8 proximate to the Pilbara region 9 of the said State under a 10 Government agreement 11 (excluding an Integration 12 Agreement); or 13 14 (iv) with the prior approval of the 15 Minister, iron ore mined by a 16 third party from a Mining Act 17 1978 mining lease located in, 18 or proximate to, the Pilbara 19 region of the said State 20 (excluding under a Government 21 agreement) which has been 22 purchased by an Integration 23 Proponent from the third 24 party."; 25 26 (b) in paragraph (b) by: 27 (i) deleting "there is" and substituting "there 28 are"; 29 (ii) deleting "between the relevant 30 Government agreements"; 31 (iii) deleting "blended and" and substituting 32 "blended as between each of the sources 33 referred to in paragraph (a),"; and 34 (iv) inserting a comma after "processing"; page 31 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 (11) in clause 10A by: 2 (a) inserting in its heading "for townsites" after 3 "Additional Proposals"; 4 (b) deleting "The" at the beginning of subclause (2) 5 and "If" at the beginning of subclause (3) and in 6 each case substituting: 7 "Subject to subclause (3a),"; 8 (c) inserting after subclause (3) the following new 9 subclause: 10 "(3a) After the variation date, the provisions of 11 clauses 8A(2) to (5) and of 8B shall 12 mutatis mutandis apply to proposals 13 submitted pursuant to this clause."; and 14 (d) deleting subclause (4); 15 (12) in clause 10I(10) by deleting "subclauses (3) to (8) of this 16 clause" and substituting "clauses 8A(2) to (5) and of 8B"; 17 (13) in clause 10I(11) by: 18 (a) inserting "environmental" before each reference to 19 "approved proposals"; and 20 (b) deleting "subclauses (4), (5), (6), (7), (9) and" in 21 paragraph (f) and substituting "clause 8B and 22 subclause"; 23 (14) in clause 10J(1) by: 24 (a) inserting ", the mining lease, any land that may be 25 included in the mineral lease or the mining lease 26 pursuant to clauses 10F, 10H, 10I or 10K and of 27 any other mineral lease or mining lease granted 28 under or pursuant to this Agreement (as 29 aggregated)" after "total area of the mineral lease"; page 32 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 (b) deleting "300 square miles" and substituting "777 2 square kilometres"; and 3 (c) inserting "by endorsement" after "the subject 4 thereof in the mineral lease"; 5 (15) by inserting after subclause (1) of clause 10J the following 6 new subclause: 7 "(1a) The Minister may approve, upon application by 8 the Company from time to time, for the total area 9 referred to in subclause (1) to be increased up to a 10 limit not exceeding 1,000 square kilometres."; 11 (16) in clause 10J(3) by inserting "as additional proposals 12 pursuant to clause 8A" before the full stop; 13 (17) by deleting clause 10J(4); 14 (18) in clause 10K(4) by deleting the full stop at the end of 15 paragraph (c), substituting a semi colon followed by the 16 following new paragraphs: 17 "(d) under subclause (4) thereof the Minister could 18 refuse to approve a submitted proposal as provided 19 in clause 8B(1); 20 21 (e) subclause (6) thereof also applied to a decision of 22 the Minister to refuse to approve a proposal; and 23 24 (f) the following sentence was inserted at the end of 25 subclause (7) thereof: 26 27 "A decision of the Minister to refuse to approve a 28 submitted proposal shall not be referable to 29 arbitration under this Agreement."; 30 31 (19) in paragraph (c) of clause 10K(8) by deleting the full stop at 32 the end of subparagraph (b), substituting a semi colon 33 followed by the following new paragraphs: page 33 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 "(c) under subclause (4) thereof the Minister could 2 refuse to approve a submitted proposal as provided 3 in clause 8B(1); 4 5 (d) subclause (6) thereof also applied to a decision of 6 the Minister to refuse to approve a proposal; and 7 8 (e) the following sentence was inserted at the end of 9 subclause (7) thereof: 10 11 "A decision of the Minister to refuse to approve a 12 submitted proposal shall not be referable to 13 arbitration under this Agreement."; 14 15 (20) by inserting after clause 10K the following new clauses: 16 "Integrated use of works installations or facilities under the 17 Integration Agreements 18 10L. (1) Subject to subclauses (2) to (7) of this 19 clause and to the other provisions of this 20 Agreement, the Company may during the 21 continuance of this Agreement: 22 23 (a) use any existing or new works 24 installations or facilities constructed 25 or held: 26 27 (i) under this Agreement; or 28 29 (ii) under any other Integration 30 Agreement which are made 31 available for such use and 32 during the continuance of 33 such Integration Agreement; 34 or 35 36 (iii) with the approval of the 37 Minister, under a 38 Government agreement page 34 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 (excluding an Integration 2 Agreement) which are made 3 available for such use and 4 during the continuance of 5 that agreement, 6 7 (wholly or in part) in the activities 8 of the Company carried on by it 9 pursuant to this Agreement 10 including, without limitation, as part 11 of those activities, transporting by 12 railway and shipping from a loading 13 port and undertaking any ancillary 14 and incidental activities in doing so 15 (including, without limitation, 16 blending permitted by clause 10(4)) 17 of: 18 19 (A) iron ore mined from a 20 Mining Act 1978 mining 21 lease located in, or 22 proximate to, the Pilbara 23 region of the said State 24 which is held by a Related 25 Entity alone or with a third 26 party or parties (excluding 27 any mining lease granted 28 pursuant to, or held under, a 29 Government agreement); 30 31 (B) with the prior approval of 32 the Minister, iron ore mined 33 in, or proximate to, the 34 Pilbara region of the said 35 State under a Government 36 agreement (excluding an 37 Integration Agreement); 38 39 (C) with the prior approval of 40 the Minister, iron ore mined page 35 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 by a third party from a 2 Mining Act 1978 mining 3 lease located in, or 4 proximate to, the Pilbara 5 region of the said State 6 (excluding under a 7 Government agreement) 8 which has been purchased 9 by the Company from the 10 third party; 11 12 (D) iron ore mined under an 13 Integration Agreement; 14 15 (b) make any existing or new works 16 installations or facilities constructed 17 or held under this Agreement 18 available for use (wholly or partly) 19 by another Integration Proponent 20 during the continuance of its 21 Integration Agreement in the 22 activities of that Integration 23 Proponent carried on by it pursuant 24 to its Integration Agreement 25 including, without limitation, as part 26 of those activities, transporting by 27 railway and shipping from a loading 28 port and undertaking any ancillary 29 and incidental activities in doing so 30 (including, without limitation, 31 blending permitted by that 32 Integration Agreement) of: 33 34 (i) iron ore mined from a 35 Mining Act 1978 mining 36 lease located in, or 37 proximate to, the Pilbara 38 region of the said State 39 which is held by a Related 40 Entity alone or with a third page 36 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 party or parties (excluding 2 any mining lease granted 3 pursuant to, or held under, a 4 Government agreement); 5 6 (ii) with the prior approval of 7 the Minister (as defined in 8 that Integration Agreement), 9 iron ore mined in, or 10 proximate to, the Pilbara 11 region of the said State 12 under a Government 13 agreement (excluding an 14 Integration Agreement); 15 16 (iii) with the prior approval of 17 the Minister (as defined in 18 that Integration Agreement), 19 iron ore mined by a third 20 party from a Mining Act 21 1978 mining lease located 22 in, or proximate to, the 23 Pilbara region of the said 24 State (excluding under a 25 Government agreement) 26 which has been purchased 27 by that Integration 28 Proponent from the third 29 party; 30 31 (iv) iron ore mined under an 32 Integration Agreement; 33 34 (c) make any existing or new works 35 installations or facilities constructed 36 or held under this Agreement 37 available for use (wholly or partly) 38 in connection with operations 39 under: 40 page 37 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 (i) a Mining Act 1978 mining 2 lease located in, or 3 proximate to, the Pilbara 4 region of the said State, for 5 iron ore, which is held by a 6 Related Entity alone or with 7 a third party or parties 8 (excluding any mining lease 9 granted pursuant to, or held 10 under a Government 11 agreement); or 12 13 (ii) with the approval of the 14 Minister, a Government 15 agreement (other than an 16 Integration Agreement) for 17 the mining of iron ore in, or 18 proximate to, the Pilbara 19 region of the said State; 20 21 (d) subject to subclause (2), under this 22 Agreement and for the purpose of 23 any use or making available for use 24 referred to in paragraph (a), (b) or 25 (c) connect any existing or new 26 works installations or facilities 27 constructed or held under this 28 Agreement to any existing or new 29 works installations or facilities 30 constructed or held under another 31 Integration Agreement; 32 33 (e) subject to subclause (2), under this 34 Agreement and for the purpose of 35 any use or making available for use 36 referred to in paragraph (a), (b) or 37 (c) or making of any connection 38 referred to in paragraph (d) 39 construct new works installations or 40 facilities and expand modify or page 38 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 otherwise vary any existing and new 2 works installations or facilities 3 constructed or held under this 4 Agreement; 5 6 (f) allow a railway or rail spur line (not 7 being a railway or rail spur line 8 constructed or held under an 9 Integration Agreement) to be 10 connected to a railway or rail spur 11 line or other works installations or 12 facilities constructed or held under 13 this Agreement for the delivery of 14 iron ore to an Integration Proponent 15 for transport by railway and 16 shipping from a loading port 17 (together with any ancillary and 18 incidental activities in doing so) as 19 part of its activities under its 20 Integration Agreement; and 21 22 (g) allow an electricity transmission 23 line (not being an electricity 24 transmission line constructed or 25 held under an Integration 26 Agreement) to be connected to an 27 electricity transmission line 28 constructed or held under this 29 Agreement for the supply of 30 electricity permitted to be made 31 under an Integration Agreement. 32 33 (2) (a) A connection referred to in clause 34 (1)(d) or construction, expansion, 35 modification or other variation 36 referred to in subclause (1)(e) by the 37 Company shall, to the extent not 38 already authorised under this 39 Agreement as at the variation date, 40 be regarded as a significant page 39 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 modification expansion or other 2 variation of the Company's activities 3 carried on by it pursuant to this 4 Agreement and may only be made 5 in accordance with proposals 6 submitted and approved or 7 determined under this Agreement in 8 accordance with clauses 8A and 8B 9 or clauses 10A, 10I, 10K or 10N as 10 the case may require and otherwise 11 in compliance with the provisions of 12 this Agreement and the laws from 13 time to time of the said State. For 14 the avoidance of doubt, the parties 15 acknowledge that any use or making 16 available for use contemplated by 17 subclause (1)(a), (1)(b) or (1)(c) 18 shall not otherwise than as required 19 by this paragraph (a) require the 20 submission and approval of further 21 proposals under this Agreement. 22 23 (b) The Company shall not be entitled 24 to: 25 26 (i) submit proposals to 27 construct any new port or to 28 establish harbour or port 29 works installations or 30 facilities, or to expand 31 modify or otherwise vary 32 harbour or works 33 installations or facilities 34 otherwise than at or near the 35 town of Dampier within the 36 boundaries of the Port of 37 Dampier; or 38 39 (ii) generate and supply power, 40 take and supply water or page 40 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 dispose of water otherwise 2 than in accordance with the 3 other clauses of this 4 Agreement and subject to 5 any restrictions contained in 6 those clauses; or 7 8 (iii) without limiting 9 subparagraphs (i) and (ii) 10 submit proposals to 11 construct or establish works 12 installations or facilities of 13 a type, or to make 14 expansions, modifications 15 or other variations of works 16 installations or facilities of 17 a type, which in the 18 Minister's reasonable 19 opinion this Agreement, 20 immediately before the 21 variation date, did not 22 permit or contemplate the 23 Company constructing, 24 establishing or making as 25 the case may be otherwise 26 than for integration use as 27 contemplated by subclauses 28 (1)(a), (1)(b) or (1)(c) or as 29 permitted by clause 10N; or 30 31 (iv) submit proposals to make a 32 connection as referred to in 33 subclause (1)(d) or a 34 construction, expansion, 35 modification or other 36 variation as referred to in 37 subclause (1)(e) otherwise 38 than on tenure granted 39 under or pursuant to this 40 Agreement from time to page 41 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 time or held pursuant to this 2 Agreement from time to 3 time; or 4 5 (v) submit proposals to make a 6 connection referred to in 7 subclause (1)(d) or a 8 construction, expansion, 9 modification or other 10 variation as referred to in 11 subclause (1)(e) for the 12 purpose of use as 13 contemplated by subclause 14 (1)(c)(i), if in the reasonable 15 opinion of the Minister the 16 activity which is the subject 17 of the proposals would give 18 to the holder or holders of 19 the relevant Mining Act 20 1978 mining lease the 21 benefit of rights or powers 22 granted to the Company 23 under this Agreement, over 24 and above the right of 25 access to and use of the 26 relevant works, installations 27 or facilities; or 28 29 (vi) submit proposals to make a 30 connection as referred to in 31 subclause (1)(d) or a 32 construction, expansion, 33 modification or other 34 variation as referred to in 35 subclause (1)(e) for the 36 purpose of use as 37 contemplated by subclause 38 (1)(c) and involving the 39 grant of tenure without the page 42 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 prior approval of the 2 Minister; or 3 4 (vii) submit proposals to assign, 5 sublet, transfer or dispose of 6 any works installations or 7 facilities constructed or held 8 under this Agreement or any 9 leases, licences, easements 10 or other titles under or 11 pursuant to this Agreement 12 for any purpose referred to 13 in this clause. 14 15 (c) Notwithstanding the provisions of 16 clauses 8B, 10I, 10K and 10N, the 17 Minister may defer consideration of, 18 or a decision upon, a proposal 19 submitted by the Company for a 20 connection as referred to in 21 subclause (1)(d) or a construction, 22 expansion, modification or other 23 variation as referred to in subclause 24 (1)(e), for the purpose of use or 25 making available for use as referred 26 to in subclauses (1)(a) or (1)(b), 27 until relevant corresponding 28 proposals under the relevant 29 Integration Agreement have been 30 submitted and those proposals can 31 be approved under that Integration 32 Agreement concurrently with the 33 Minister's approval under this 34 Agreement of the Company's 35 proposal. 36 37 (3) Any use or making available for use as 38 referred to in subclause (1), or submission 39 of proposals as referred to in subclause (2), 40 in respect of a Related Entity shall be page 43 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 subject to the Company first confirming 2 with the Minister that the Minister is 3 satisfied that the relevant company is a 4 Related Entity. 5 6 (4) The Company shall give the Minister prior 7 written notice of any significant change 8 (other than a temporary one for 9 maintenance or to respond to an 10 emergency) proposed in its use, or in it 11 making available for use, works 12 installations or facilities as referred to in 13 this clause: 14 15 (a) from that authorised under this 16 Agreement immediately before the 17 variation date; and 18 19 (b) subsequently from that previously 20 notified to the Minister under this 21 subclause, 22 23 as soon as practicable before such change 24 occurs. 25 26 The Company shall also keep the Minister 27 fully informed with respect to any 28 proposed connection as referred to in 29 subclause (1)(f) or (1)(g) or request of the 30 Company for such connection to be 31 allowed. 32 33 (5) Nothing in this Agreement shall be 34 construed to: 35 36 (a) exempt another Integration 37 Proponent from complying with, or 38 the application of, the provisions of 39 its Integration Agreement; or 40 page 44 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 (b) restrict the Company's rights under 2 clause 20. 3 4 For the avoidance of doubt the approval of 5 proposals under this Agreement shall not 6 be construed as authorising another 7 Integration Proponent to undertake any 8 activities under this Agreement or under 9 another Integration Agreement. 10 11 (6) Nothing in this clause shall be construed to 12 exempt the Company from complying 13 with, or the application of, the other 14 provisions of this Agreement including, 15 without limitation, clauses 11 and 20 and 16 of relevant laws from time to time of the 17 said State. 18 19 (7) For the purpose of this clause "works 20 installations or facilities" means any: 21 22 (a) harbour or port works installations 23 or facilities including, without 24 limitation, stockpiles, reclaimers, 25 conveyors and wharves; 26 27 (b) railway or rail spur lines; 28 29 (c) track structures and systems 30 associated with the operation and 31 maintenance of a railway including, 32 without limitation, sidings, train 33 control and signalling systems, 34 maintenance workshops and 35 terminal yards; 36 37 (d) train loading and unloading works 38 installations or facilities; 39 40 (e) conveyors; page 45 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 2 (f) private roads; 3 4 (g) mine aerodrome and associated 5 aerodrome works installations and 6 facilities; 7 8 (h) iron ore mining, crushing, 9 screening, beneficiation or other 10 processing works installations or 11 facilities; 12 13 (i) mine administration buildings 14 including, without limitation, 15 offices, workshops and medical 16 facilities; 17 18 (j) borrow pits; 19 20 (k) accommodation and ancillary 21 facilities including, without 22 limitation, construction camps and 23 in townsites constructed pursuant to 24 and held under any Integration 25 Agreement; 26 27 (l) water, sewerage, electricity, gas and 28 telecommunications works 29 installations and facilities including, 30 without limitation, pipelines, 31 transmission lines and cables; and 32 33 (m) any other works installations or 34 facilities approved of by the 35 Minister for the purpose of this 36 clause. 37 page 46 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 Transfer of rights to shared works installations or facilities 2 3 10M (1) For the purposes of this clause "Relevant 4 Infrastructure" means any works installations 5 or facilities (as defined in clause 10L(7)): 6 7 (a) constructed or held under another 8 Integration Agreement; 9 10 (b) which the Company is using in its 11 activities pursuant to this 12 Agreement; 13 14 (c) which the Minister is satisfied (after 15 consulting with the Company and 16 the Integration Proponent for that 17 other Integration Agreement): 18 19 (i) are no longer required by 20 that other Integration 21 Proponent to carry on its 22 activities pursuant to its 23 Integration Agreement 24 because of the cessation of 25 the Integration Proponent's 26 mining operations in respect 27 of which such Relevant 28 Infrastructure was 29 constructed or held or 30 because of any other reason 31 acceptable to the Minister; 32 and 33 34 (ii) are required by the 35 Company to continue to 36 carry on its activities 37 pursuant to this Agreement; 38 and 39 page 47 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 (d) in respect of which that other 2 Integration Proponent has notified 3 the Minister it consents to the 4 Company submitting proposals as 5 referred to in subclause (2). 6 7 (2) The Company may as an additional proposal 8 pursuant to clause 8A propose: 9 10 (a) that it be granted a lease licence or 11 other title over the Relevant 12 Infrastructure pursuant to this 13 Agreement subject to and conditional 14 upon the other Integration Proponent 15 surrendering wholly or in part (and 16 upon such terms as the Minister 17 considers reasonable including any 18 variation of terms to address 19 environmental issues) its lease 20 licence or other title over the 21 Relevant Infrastructure; or 22 23 (b) that the other Integration Proponent's 24 lease licence or other title (not being 25 a mineral lease, mining lease or other 26 right to mine title granted under a 27 Government agreement, the Mining 28 Act 1904 or the Mining Act 1978) to 29 the Relevant Infrastructure be 30 transferred to this Agreement (to be 31 held by the Company pursuant to this 32 Agreement) with such surrender of 33 land from it and variations of its 34 terms as the Minister considers 35 reasonable for that title to be held 36 under this Agreement including, 37 without limitation, to address 38 environmental issues and outstanding 39 obligations of that other Integration 40 Proponent under its Integration page 48 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 Agreement in respect of that Relevant 2 Infrastructure. 3 4 The provisions of clause 8B shall mutatis 5 mutandis apply to any such additional 6 proposal. In addition the Company 7 acknowledges that the Minister may require 8 variations of the other Integration 9 Agreement and/or proposals under it or of 10 this Agreement in order to give effect to the 11 matters contemplated by this clause. 12 13 (3) This clause shall cease to apply in the event 14 the State gives any notice of default to the 15 Company pursuant to clause 11(l) and while 16 such notice remains unsatisfied. 17 18 Miscellaneous Licences for Railways 19 20 10N. (1) In this clause subject to the context: 21 22 "Additional Infrastructure" means: 23 24 (a) Train Loading Infrastructure; 25 26 (b) Train Unloading Infrastructure; 27 28 (c) a conveyor, train unloading and 29 other infrastructure necessary for 30 the transport of iron ore, freight 31 goods or other products from the 32 Railway (directly or indirectly) to 33 port facilities within a loading 34 port, 35 36 in each case located outside a Port; 37 38 "LAA" means the Land Administration 39 Act 1997 (WA); 40 page 49 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 "Lateral Access Roads" has the meaning 2 given in subclause (3)(a)(iv)); 3 4 "Lateral Access Road Licence" means a 5 miscellaneous licence granted pursuant to 6 subclause (6)(a)(ii) or subclause (6)(b) as 7 the case may be and according to the 8 requirements of the context describes the 9 area of land from time to time the subject 10 of that licence; 11 12 "Port" means any port the subject of the 13 Port Authorities Act 1999 (WA) or the 14 Shipping and Pilotage Act 1967 (WA); 15 16 "Private Roads" means Lateral Access 17 Roads and the Company's access roads 18 within a Railway Corridor; 19 20 "Rail Safety Act" means the Rail Safety 21 Act 1998 (WA); 22 23 "Railway" means a standard gauge heavy 24 haul railway or railway spur line, located 25 or to be located as the case may be in, or 26 proximate to, the Pilbara region of the 27 said State (but outside the boundaries of 28 a Port) for the transport of iron ore, 29 freight goods and other products together 30 with all railway track, associated track 31 structures including sidings, turning 32 loops, over or under track structures, 33 supports (including supports for 34 equipment or items associated with the 35 use of a railway) tunnels, bridges, train 36 control systems, signalling systems, 37 switch and other gear, communication 38 systems, electric traction infrastructure, 39 buildings (excluding office buildings, 40 housing and freight centres), workshops page 50 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 and associated plant, machinery and 2 equipment and including rolling stock 3 maintenance facilities, terminal yards, 4 depots, culverts and weigh bridges which 5 railway is or is to be (as the case may be) 6 the subject of approved proposals under 7 subclause (4) and includes any expansion 8 or extension thereof outside a Port which 9 is the subject of additional proposals 10 approved in accordance with subclause 11 (5); 12 13 "Railway Corridor" means, prior to the 14 grant of a Special Railway Licence, the 15 land for the route of the Railway the 16 subject of that licence, access roads 17 (other than Lateral Access Roads), areas 18 from which stone, sand, clay and gravel 19 may be taken, temporary accommodation 20 facilities for the railway workforce, water 21 bores and Additional Infrastructure (if 22 any) which is the subject of a subsisting 23 agreement pursuant to subclause (3)(a) 24 and after the grant of the Special Railway 25 Licence the land from time to time the 26 subject of that Special Railway Licence; 27 28 "Railway Operation" means the 29 construction and operation under this 30 Agreement of the relevant Railway and 31 associated access roads and Additional 32 Infrastructure (if any) within the relevant 33 Railway Corridor and of the associated 34 Lateral Access Roads, in accordance with 35 approved proposals; 36 37 "Railway spur line" means a standard 38 gauge heavy haul railway spur line 39 located or to be located in, or proximate 40 to, the Pilbara region of the said State page 51 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 (but outside a Port) connecting to a 2 Railway for the transport of iron ore, 3 freight goods and other products upon the 4 Railway to (directly or indirectly) a 5 loading port; 6 7 "Railway Operation Date" means the date 8 of the first carriage of iron ore, freight 9 goods or other products over the relevant 10 Railway (other than for construction or 11 commissioning purposes); 12 13 "Railway spur line Operation Date" 14 means the date of the first carriage of iron 15 ore, freight goods or other products over 16 the relevant Railway spur line (other than 17 for construction or commissioning 18 purposes); 19 20 "Special Railway Licence" means the 21 relevant miscellaneous licence for 22 railway and, if applicable, other purposes, 23 granted to the Company pursuant to 24 subclause (6)(a)(i) as varied in 25 accordance with subclause (6)(h) or 26 subclause (6)(i) and according to the 27 requirements of the context describes the 28 area of land from time to time the subject 29 of that licence; 30 31 "Train Loading Infrastructure" means 32 conveyors, stockpile areas, blending and 33 screening facilities, stackers, re-claimers 34 and other infrastructure reasonably 35 required for the loading of iron ore, 36 freight goods or other products onto the 37 relevant Railway for transport (directly or 38 indirectly) to a loading port; and 39 page 52 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 "Train Unloading Infrastructure" means 2 train unloading infrastructure reasonably 3 required for the unloading of iron ore 4 from the Railway to be processed, or 5 blended with other iron ore, at processing 6 or blending facilities in the vicinity of 7 that train unloading infrastructure and 8 with the resulting iron ore products then 9 loaded on to the Railway for transport 10 (directly or indirectly) to a loading port. 11 12 Company to obtain prior Ministerial in-principle approval 13 14 (2) (a) If the Company wishes, from time to 15 time during the continuance of this 16 Agreement, to proceed under this clause 17 with a plan to develop a Railway it shall 18 give notice thereof to the Minister and 19 furnish to the Minister with that notice 20 an outline of its plan. 21 22 (b) The Minister shall within one month of a 23 notice under paragraph (a) advise the 24 Company whether or not he approves in- 25 principle the proposed plan. The Minister 26 shall afford the Company full 27 opportunity to consult with him in 28 respect of any decision of the Minister 29 under this paragraph. 30 31 (c) The Minister's in-principle approval in 32 respect of a proposed plan shall lapse if 33 the Company has not submitted detailed 34 proposals to the Minister in respect of 35 that plan in accordance with this clause 36 within 18 months of the Minister's in- 37 principle approval. 38 page 53 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 Railway Corridor 2 3 (3) (a) If the Minister gives in-principle approval 4 to a plan of the Company to develop a 5 Railway it shall consult with the Minister 6 to seek the agreement of the Minister as 7 to: 8 9 (i) where the Railway will begin 10 and end; and 11 12 (ii) a route for the Railway, access 13 roads to be within the Railway 14 Corridor and the land required 15 for that route as well as 16 Additional Infrastructure (if 17 any) including, without 18 limitation, areas from which 19 stone, sand, clay and gravel 20 may be taken, temporary 21 accommodation facilities for 22 the railway workforce and 23 water bores; and 24 25 (iii) in respect of Additional 26 Infrastructure (if any) the 27 nature and capacity of such 28 Additional Infrastructure; and 29 30 (iv) the routes of, and the land 31 required for, roads outside the 32 Railway Corridor (and also 33 outside a Port) for access to it 34 to construct the Railway (such 35 roads as agreed being "Lateral 36 Access Roads"). 37 38 In seeking such agreement, regard shall 39 be had to achieving a balance between 40 engineering matters including costs, the page 54 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 nature and use of any lands concerned 2 and interests therein and the costs of 3 acquiring the land (all of which shall be 4 borne by the Company). The parties 5 acknowledge the intention is for the 6 Company to construct the Railway, the 7 access roads for the construction and 8 maintenance of the Railway which are to 9 be within the Railway Corridor and the 10 relevant Additional Infrastructure (if any) 11 along the centreline of the Railway 12 Corridor subject to changes in that 13 alignment to the extent necessary to avoid 14 heritage, environmental or poor ground 15 conditions that are not identified during 16 preliminary investigation work, and 17 recognise the width of the Railway 18 Corridor may need to vary along its route 19 to accommodate Additional Infrastructure 20 (if any), access roads, areas from which 21 stone, sand, clay and gravel may be taken, 22 temporary accommodation facilities for 23 the railway workforce and water bores. 24 The provisions of clause 25 shall not 25 apply to this subclause. 26 27 (b) If the date by which the Company must 28 submit detailed proposals under 29 subclause (4)(a) (as referred to in 30 subclause (2)(c)) is extended or varied by 31 the Minister pursuant to clause 24, any 32 agreement made pursuant to paragraph 33 (a) before such date is extended or varied 34 shall unless the Minister notifies the 35 Company otherwise be deemed to be at 36 an end and neither party shall have any 37 claim against the other in respect of it. 38 39 (c) The Company acknowledges that it shall 40 be responsible for liaising with every title page 55 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 holder in respect of the land affected and 2 for obtaining in a form and substance 3 acceptable to the Minister all 4 unconditional and irrevocable consents of 5 each such title holder to, and all statutory 6 consents required in respect of the land 7 affected for: 8 9 (i) the grant of the Special 10 Railway Licence for the 11 construction, operation and 12 maintenance within the 13 Railway Corridor of the 14 Railway, access roads and 15 Additional Infrastructure (if 16 any) to be within the Railway 17 Corridor; and 18 19 (ii) the grant of Lateral Access 20 Road Licences for the 21 construction, use and 22 maintenance of Lateral Access 23 Roads over the routes for the 24 Lateral Access Roads agreed 25 pursuant to paragraph (a); and 26 27 (iii) the inclusion of additional land 28 in the Special Railway Licence 29 as referred to in subclause 30 (6)(h) or subclause (6)(i), 31 32 in accordance with this clause. For the 33 purposes of this subclause (3)(c), "title 34 holder" means a management body (as 35 defined in the LAA) in respect of any part 36 of the affected land, a person who holds a 37 mining, petroleum or geothermal energy 38 right (as defined in the LAA) in respect 39 of any part of the affected land, a person 40 who holds a lease or licence under the page 56 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 LAA in respect of any part of the affected 2 land, a person who holds any other title 3 granted under or pursuant to a 4 Government agreement in respect of any 5 part of the affected land, a person who 6 holds a lease or licence in respect of any 7 part of the affected land under any other 8 Act applying in the said State and a 9 person in whom any part of the affected 10 land is vested, immediately before the 11 provision of such consents to the Minister 12 as referred to in subclause (4)(e)(ii) 13 (including as applying pursuant to 14 subclause 5(d)). 15 16 Company to submit proposals for Railway 17 18 (4) (a) The Company shall, subject to the EP 19 Act, the provisions of this Agreement, 20 agreement at that time subsisting in 21 respect of the matters required to be 22 agreed pursuant to subclause 3(a), submit 23 to the Minister by the latest date applying 24 under subclause (2)(c) to the fullest 25 extent reasonably practicable its detailed 26 proposals (including plans where 27 practicable and specifications where 28 reasonably required by the Minister and 29 any other details normally required by a 30 local government in whose area any 31 works are to be situated) with respect to 32 the undertaking of the relevant Railway 33 Operation, which proposals shall include 34 the location, area, layout, design, 35 materials and time program for the 36 commencement and completion of 37 construction or the provision (as the case 38 may be) of each of the following matters 39 namely: 40 page 57 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 (i) the Railway including fencing 2 (if any) and crossing places 3 within the Railway Corridor; 4 5 (ii) Additional Infrastructure (if 6 any) within the Railway 7 Corridor; 8 9 (iii) temporary accommodation and 10 ancillary temporary facilities 11 for the railway workforce on, or 12 in the vicinity of, the Railway 13 Corridor and housing and other 14 appropriate facilities elsewhere 15 for the Company's workforce; 16 17 (iv) water supply; 18 19 (v) energy supplies; 20 21 (vi) access roads within the Railway 22 Corridor and Lateral Access 23 Roads both along the routes for 24 those roads agreed between the 25 Minister and the Company 26 pursuant to subclause 3(a); 27 28 (vii) any other works, services or 29 facilities desired by the 30 Company; and 31 32 (viii) use of local labour, professional 33 services, manufacturers, 34 suppliers contractors and 35 materials and measures to be 36 taken with respect to the 37 engagement and training of 38 employees by the Company, its 39 agents and contractors. 40 page 58 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 (b) Proposals pursuant to paragraph (a) must 2 specify the matters agreed for the purpose 3 pursuant to subclause (3)(a) and must not 4 be contrary to or inconsistent with such 5 agreed matters. 6 7 (c) Each of the proposals pursuant to 8 paragraph (a) may with the approval of 9 the Minister, or must if so required by the 10 Minister, be submitted separately and in 11 any order as to the matter or matters 12 mentioned in one or more of 13 subparagraphs (i) to (viii) of paragraph 14 (a) and until all of its proposals under this 15 subclause have been approved the 16 Company may withdraw and may 17 resubmit any proposal but the withdrawal 18 of any proposal shall not affect the 19 obligations of the Company to submit a 20 proposal under this subclause in respect 21 of the subject matter of the withdrawn 22 proposal. 23 24 (d) The Company shall, whenever any of the 25 following matters referred to in this 26 subclause are proposed by the Company 27 (whether before or during the submission 28 of proposals under this subclause), submit 29 to the Minister details of any services 30 (including any elements of the project 31 investigations, design and management) 32 and any works, materials, plant, 33 equipment and supplies that it proposes to 34 consider obtaining from or having carried 35 out or permitting to be obtained from or 36 carried out outside Australia, together 37 with its reasons therefor and shall, if 38 required by the Minister consult with the 39 Minister with respect thereto. 40 page 59 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 (e) At the time when the Company submits 2 the last of the said proposals pursuant to 3 this subclause, it shall: 4 5 (i) furnish to the Minister's 6 reasonable satisfaction 7 evidence of all accreditations 8 under the Rail Safety Act 9 which are required to be held 10 by the Company or any other 11 person for the construction of 12 the Railway; and 13 14 (ii) furnish to the Minister the 15 written consents referred to in 16 subclause (3)(c)(i) and 17 (3)(c)(ii). 18 19 (f) The provisions of clause 8B shall apply 20 mutatis mutandis to detailed proposals 21 submitted under this subclause. 22 23 Additional Railway Proposals 24 25 (5) (a) If the Company at any time during the 26 currency of a Special Railway Licence 27 desires to construct a Railway spur line 28 (connecting to the Railway the subject of 29 that Special Railway Licence) or desires 30 to significantly modify, expand or 31 otherwise vary its activities within the 32 land the subject of the Special Railway 33 Licence that are the subject of this 34 Agreement and that may be carried on by 35 it pursuant to this Agreement (other than 36 by the construction of a Railway spur 37 line) beyond those activities specified in 38 any approved proposals for that Railway, 39 it shall give notice of such desire to the 40 Minister and furnish to the Minister with page 60 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 that notice an outline of its proposals in 2 respect thereto (including, without 3 limitation, such matters mentioned in 4 subclause (4)(a) as are relevant or as the 5 Minister otherwise requires). 6 7 (b) If the notice relates to a Railway spur 8 line, or to the construction of Train 9 Loading Infrastructure or Train 10 Unloading Infrastructure on land outside 11 the then Railway Corridor, the Minister 12 shall within one month of receipt of such 13 notice advise the Company whether or 14 not he approves in-principle the proposed 15 construction of such spur line, Train 16 Loading Infrastructure or Train 17 Unloading Infrastructure. If the Minister 18 gives in-principle approval the Company 19 may (but not otherwise) submit detailed 20 proposals in respect thereof provided that 21 the provisions of subclause (3) shall 22 mutatis mutandis apply prior to 23 submission of detailed proposals in 24 respect thereof. 25 26 (c) Subject to the EP Act, the provisions of 27 this Agreement and agreement at that 28 time subsisting in respect of any matters 29 required to be agreed pursuant to 30 subclause (3)(a) (as referred to in 31 paragraph (b)), the Company shall 32 submit to the Minister within a 33 reasonable timeframe, as determined by 34 the Minister after receipt of the notice 35 referred to in paragraph (a) (or in the 36 case of a notice referred to in paragraph 37 (b) the giving of the Minister's 38 in-principle consent as referred to in that 39 paragraph), detailed proposals in respect 40 of the proposed construction of such page 61 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 Railway spur line, Train Loading 2 Infrastructure, Train Unloading 3 Infrastructure or other proposed 4 modification, expansion or variation of 5 its activities including such of the 6 matters mentioned in subclause (4)(a) as 7 the Minister may require. 8 9 (d) The provisions of subclause (4) (with the 10 date for submission of proposals being 11 read as the date or time determined by 12 the Minister under paragraph (c) and the 13 reference in subclause (4)(e)(ii) to 14 subclause (3)(c)(i) being read as a 15 reference to subclause (3)(c)(iii)) and of 16 clause 8B shall mutatis mutandis apply to 17 detailed proposals submitted pursuant to 18 this subclause. 19 20 Grant of Tenure 21 22 (6) (a) On application made by the Company to 23 the Minister in such manner as the 24 Minister may determine, not later than 3 25 months after all its proposals submitted 26 pursuant to subclause (4)(a) have been 27 approved or deemed to be approved and 28 the Company has complied with the 29 provisions of subclause (4)(e), the State 30 notwithstanding the Mining Act 1978 31 shall cause to be granted to the 32 Company: 33 34 (i) a miscellaneous licence to 35 conduct within the Railway 36 Corridor and in accordance 37 with its approved proposals all 38 activities (including the taking 39 of stone, sand, clay and gravel, 40 the provision of temporary page 62 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 accommodation facilities for 2 the railway workforce and, 3 subject to the Rights in Water 4 and Irrigation Act 1914 (WA), 5 the operation of water bores) 6 necessary for the planning, 7 design, construction, 8 commissioning, operation and 9 maintenance within the 10 Railway Corridor of the 11 Railway, access roads and 12 Additional Infrastructure (if 13 any) ("the Special Railway 14 Licence") such licence to be 15 granted under and subject to, 16 except as otherwise provided in 17 this Agreement, the Mining Act 18 1978 in the form of the Third 19 Schedule hereto and subject to 20 such terms and conditions as 21 the Minister for Mines may 22 from time to time consider 23 reasonable and at a rental 24 calculated in accordance with 25 the Mining Act 1978: 26 27 (A) prior to the Railway 28 Operation Date, as if 29 the width of the 30 Railway Corridor 31 were 100 metres; and 32 33 (B) on and from the 34 Railway Operation 35 Date, at the rentals 36 from time to time 37 prescribed under the 38 Mining Act 1978; and 39 page 63 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 (ii) a miscellaneous licence or 2 licences to allow the 3 construction, use and 4 maintenance of Lateral Access 5 Roads within the routes agreed 6 for those Lateral Access Roads 7 under subclause (3)(a) (each a 8 "Lateral Access Road 9 Licence"), each such licence to 10 be granted under and subject to, 11 except as otherwise provided in 12 this Agreement, the Mining Act 13 1978 in the form of the Fourth 14 Schedule hereto and subject to 15 such terms and conditions as the 16 Minister for Mines may from 17 time to time consider reasonable 18 and at the rentals from time to 19 time prescribed under the 20 Mining Act 1978. 21 22 (b) On application made by the Company to 23 the Minister in such manner as the 24 Minister may determine, not later than 3 25 months after its proposals submitted 26 pursuant to subclause (5)(a) for the 27 construction of Lateral Access Roads for 28 access to the Railway Corridor to 29 construct a Railway spur line have been 30 approved or deemed to be approved and 31 the Company has complied with the 32 provisions of subclause (4)(e) (as 33 applying pursuant to subclause (5)(d)), 34 the State notwithstanding the Mining Act 35 1978 shall cause to be granted to the 36 Company a miscellaneous licence or 37 licences to allow the construction, use 38 and maintenance of Lateral Access Roads 39 within the routes agreed for those Lateral 40 Access Roads under subclause (3)(a)) (as page 64 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 applying pursuant to subclause (5)(b)) 2 (each a "Lateral Access Road Licence"), 3 each such licence to be granted under and 4 subject to, except as otherwise provided 5 in this Agreement, the Mining Act 1978 6 in the form of the Fifth Schedule hereto 7 and subject to such terms and conditions 8 as the Minister for Mines may from time 9 to time consider reasonable and at the 10 rentals from time to time prescribed 11 under the Mining Act 1978. 12 13 (c) Notwithstanding the Mining Act 1978, 14 the term of the Special Railway Licence 15 shall, subject to the sooner determination 16 thereof on the cessation or sooner 17 determination of this Agreement, be for a 18 period of 50 years commencing on the 19 date of grant thereof. 20 21 (d) Notwithstanding the Mining Act 1978, 22 the term of any Lateral Access Road 23 Licence shall, subject to the sooner 24 determination thereof on the cessation or 25 sooner determination of this Agreement, 26 be for a period of 4 years commencing on 27 the date of grant thereof. 28 29 (e) Notwithstanding the Mining Act 1978, 30 and except as required to do so by the 31 terms of the Special Railway Licence, the 32 Company shall not be entitled to 33 surrender the Special Railway Licence or 34 any Lateral Access Road Licence or any 35 part or parts of them without the prior 36 consent of the Minister. 37 38 (f) (i) The Company may in 39 accordance with approved 40 proposals take stone, sand, clay page 65 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 and gravel from the Railway 2 Corridor for the construction, 3 operation and maintenance of 4 the Railway constructed within 5 or approved for construction 6 within the Railway Corridor. 7 8 (ii) Notwithstanding the Mining 9 Act 1978 no royalty shall be 10 payable under the Mining Act 11 in respect of stone, sand, clay 12 and gravel which the Company 13 is permitted by subparagraph (i) 14 to obtain from the land the 15 subject of the Special Railway 16 Licence. 17 18 (g) For the purposes of this Agreement and 19 without limiting the operation of 20 paragraphs (a) to (f) inclusive above, the 21 application of the Mining Act 1978 and 22 the regulations made thereunder are 23 specifically modified; 24 25 (i) in section 91(1) by: 26 27 (A) deleting "the mining 28 registrar or the 29 warden, in accordance 30 with section 42 (as 31 read with section 92)" 32 and substituting "the 33 Minister"; 34 35 (B) deleting "any person" 36 and substituting "the 37 Company (as defined 38 in the agreement 39 approved by and 40 scheduled to the Iron page 66 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 Ore (Hamersley 2 Range) Agreement 3 Act 1963, as from 4 time to time added to, 5 varied or amended)"; 6 7 (C) deleting "for any one 8 or more of the 9 purposes prescribed" 10 and substituting "for 11 the purpose specified 12 in clause 13 10N(6)(a)(i), clause 14 10N(6)(a)(ii) or 15 clause 10N(6)(b), of 16 the agreement 17 approved by and 18 scheduled to the Iron 19 Ore (Hamersley 20 Range) Agreement 21 Act 1963, as from 22 time to time added to, 23 varied or amended"; 24 25 (ii) in section 91(3)(a), by deleting 26 "prescribed form" and 27 substituting "form required by 28 the agreement approved by and 29 scheduled to the Iron Ore 30 (Hamersley Range) Agreement 31 Act 1963, as from time to time 32 added to, varied or amended"; 33 34 (iii) by deleting sections 91(6), 35 91(9), 91(10) and 91B; 36 37 (iv) in section 92, by deleting 38 "Sections 41, 42, 44, 46, 46A, 39 47 and 52 apply," and inserting 40 "Section 46A (excluding in page 67 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 subsection (2)(a) "the mining 2 registrar, the warden or") 3 applies," and by deleting "in 4 those provisions" and inserting 5 "in that provision"; 6 7 (v) by deleting the full stop at the 8 end of the section 94(1) and 9 inserting, "except to the extent 10 otherwise provided in, or to the 11 extent that such terms and 12 conditions are inconsistent with, 13 the agreement approved by and 14 scheduled to the Iron Ore 15 (Hamersley Range) Agreement 16 Act 1963, as from time to time 17 added to, varied or amended"; 18 19 (vi) by deleting sections 94(2), (3) 20 and (4); 21 22 (vii) in section 96(1), by inserting 23 after "miscellaneous licence" 24 the words "(not being a 25 miscellaneous licence granted 26 pursuant to the agreement 27 approved by and scheduled to 28 the Iron Ore (Hamersley Range) 29 Agreement Act 1963, as from 30 time to time added to, varied or 31 amended"; 32 33 (viii) by deleting mining regulations 34 37(2), 37(3), 42 and 42A; and 35 36 (ix) by inserting at the beginning of 37 mining regulations 41(c) and (f) 38 the words "subject to the 39 agreement approved by and 40 scheduled to the Iron Ore page 68 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 (Hamersley Range) Agreement 2 Act 1963, as from time to time 3 added to, varied or amended". 4 5 (h) If additional proposals are approved in 6 accordance with subclause (5) for the 7 construction of a Railway spur line 8 outside the then Railway Corridor, the 9 Minister for Mines shall include the area 10 of land within which such construction is 11 to occur in the Special Railway Licence 12 by endorsement. The area of such land 13 may be included notwithstanding that the 14 survey of the land has not been completed 15 but subject to correction to accord with 16 the survey when completed at the 17 Company's expense. 18 19 (i) If additional proposals are approved in 20 accordance with subclause (5) for the 21 construction of Train Loading 22 Infrastructure or Train Unloading 23 Infrastructure outside the then Railway 24 Corridor, the Minister for Mines shall 25 include the area of such land within 26 which such infrastructure is approved for 27 construction in the Special Railway 28 Licence by endorsement. The area of 29 such land may be included 30 notwithstanding that the survey of the 31 land has not been completed but subject 32 to correction to accord with the survey 33 when completed at the Company's 34 expense. 35 36 (j) The provisions of this subclause shall not 37 operate so as to require the State to cause 38 a Special Railway Licence or a Lateral 39 Access Road Licence to be granted or any 40 land included in the Special Railway page 69 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 Licence as mentioned above until all 2 processes necessary under any laws 3 relating to native title to enable that grant 4 or inclusion of land to proceed, have been 5 completed. 6 7 Construction and operation of Railway 8 9 (7) (a) Subject to and in accordance with 10 approved proposals, the Rail Safety Act 11 and the grant of the relevant Special 12 Railway Licence and any associated 13 Lateral Access Road Licences the 14 Company shall in a proper and 15 workmanlike manner and in accordance 16 with recognised standards for railways of 17 a similar nature operating under similar 18 conditions construct the Railway and 19 associated Additional Infrastructure and 20 access roads within the Railway Corridor 21 and shall also construct inter alia any 22 necessary sidings, crossing points, 23 bridges, signalling switches and other 24 works and appurtenances and provide for 25 crossings and (where appropriate and 26 required by the Minister) grade 27 separation or other protective devices 28 including flashing lights and boom gates 29 at places where the Railway crosses or 30 intersects with major roads or existing 31 railways. 32 33 (b) The Company shall while the holder of a 34 Special Railway Licence: 35 36 (i) keep the Railway the subject of 37 that licence in an operable state; 38 and 39 page 70 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 (ii) ensure that the Railway the subject 2 of that licence is operated in a safe 3 and proper manner in compliance 4 with all applicable laws from time 5 to time; and 6 7 (iii) without limiting subparagraph (ii) 8 ensure that the obligations 9 imposed under the Rail Safety Act 10 on an owner and an operator (as 11 those terms are therein defined) 12 are complied with in connection 13 with the Railway the subject of 14 that licence. 15 16 Nothing in this Agreement shall be 17 construed to exempt the Company or any 18 other person from compliance with the 19 Rail Safety Act or limit its application to 20 the Company's operations generally 21 (except as otherwise may be provided in 22 that Act or regulations made under it). 23 24 (c) The Company shall provide crossings for 25 livestock and also for any roads, other 26 railways, conveyors, pipelines and other 27 utilities which exist at the date of grant of 28 the relevant Special Railway Licence or 29 in respect of land subsequently included 30 in it at the date of such inclusion and the 31 Company shall on reasonable terms and 32 conditions allow such crossings for roads, 33 railways, conveyors, pipelines and other 34 utilities which may be constructed for 35 future needs and which may be required 36 to cross a Railway constructed pursuant 37 to this clause. 38 39 (d) Subject to clause 10M, the Company 40 shall at all times be the holder of Special page 71 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 Railway Licences and Lateral Access 2 Road Licences granted pursuant to this 3 clause and (without limiting clause 11(j) 4 but subject to clause 10M) shall at all 5 times own manage and control the use of 6 each Railway the subject of a Special 7 Railway Licence held by the Company. 8 9 (e) The Company shall not be entitled to 10 exclusive possession of the land the 11 subject of a Special Railway Licence or 12 Lateral Access Road Licence granted 13 pursuant to this clause to the intent that 14 the State, the Minister, the Minister for 15 Mines and any persons authorised by any 16 of them from time to time shall be 17 entitled to enter upon the land or any part 18 of it at all reasonable times and on 19 reasonable notice with all necessary 20 vehicles, plant and equipment and for 21 purposes related to this Agreement or 22 such other purposes as they think fit but 23 in doing so shall be subject to the 24 reasonable directions of the Company so 25 as not to unreasonably interfere with the 26 Company's operations. 27 28 (f) The Company's ownership of a Railway 29 constructed pursuant to this clause shall 30 not give it an interest in the land 31 underlying it. 32 33 (g) The Company shall not at any time 34 without the prior consent of the Minister 35 dismantle, sell or otherwise dispose of 36 any part or parts of any Railway 37 constructed pursuant to this clause, or 38 permit this to occur, other than for the 39 purpose of maintenance, repair, upgrade 40 or renewal. page 72 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 2 (h) The Company shall, subject to and in 3 accordance with approved proposals, in a 4 proper and workmanlike manner, 5 construct any Additional Infrastructure, 6 access roads, Lateral Access Roads and 7 other works approved for construction 8 under this clause. 9 10 (i) The Company shall while the holder of a 11 Special Railway Licence at all times keep 12 and maintain in good repair and working 13 order and condition (which obligation 14 includes, where necessary, replacing or 15 renewing all parts which are worn out or 16 in need of replacement or renewal due to 17 their age or condition) the Railway, 18 access roads and Additional 19 Infrastructure (if any) the subject of that 20 licence and all such other works 21 installations plant machinery and 22 equipment for the time being the subject 23 of this Agreement and used in connection 24 with the operation use and maintenance 25 of that Railway, access roads and 26 Additional Infrastructure (if any). 27 28 (j) Subject to clause 10M, the Company 29 shall: 30 31 (i) be responsible for the cost of 32 construction and maintenance of 33 all Private Roads constructed 34 pursuant to this clause; and 35 36 (ii) at its own cost erect signposts and 37 take other steps that may be 38 reasonable in the circumstances to 39 prevent any persons and vehicles 40 (other than those engaged upon the page 73 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 Company's activities and its 2 invitees and licensees) from using 3 the Private Roads; and 4 5 (iii) at any place where any Private 6 Roads are constructed by the 7 Company so as to cross any 8 railways or public roads provide at 9 its cost such reasonable protection 10 and signposting as may be required 11 by the Commissioner of Main 12 Roads or the Public Transport 13 Authority as the case may be. 14 15 (k) The provisions of clauses 10(2)(a) and (3) 16 regarding third party access as well as the 17 proviso to clause 10(2)(a) shall apply 18 mutatis mutandis to any Railway or Railway 19 spur line constructed pursuant to this clause 20 except that the Company shall not be 21 obliged to transport passengers upon any 22 such Railway or Railway spur line. 23 24 Aboriginal Heritage Act 1972 (WA) 25 26 (8) For the purposes of this clause the Aboriginal 27 Heritage Act 1972 (WA) applies as if it were 28 modified by: 29 30 (a) the insertion before the full stop at the 31 end of section 18(1) of the words: 32 33 "and the expression "the Company" 34 means the persons from time to time 35 comprising "the Company" in their 36 capacity as such under the agreement 37 approved by and scheduled to the Iron 38 Ore (Hamersley Range) Agreement Act 39 1963, as from time to time added to, 40 varied or amended in relation to the use page 74 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 or proposed use of land pursuant to 2 clause 10N of that agreement after and in 3 accordance with approved proposals 4 under clause 10N of that agreement and 5 in relation to the use of that land before 6 any such approval of proposals where the 7 Company has the requisite authority to 8 enter upon and so use the land"; 9 10 (b) the insertion in sections 18(2), 18(4), 11 18(5) and 18(7) of the words "or the 12 Company as the case may be" after the 13 words "owner of any land"; 14 15 (c) the insertion in section 18(3) of the 16 words "or the Company as the case may 17 be" after the words "the owner"; 18 19 (d) the insertion of the following sentences 20 at the end of section 18(3): 21 22 "In relation to a notice from the 23 Company the conditions that the Minister 24 may specify can as appropriate include, 25 among other conditions, a condition 26 restricting the Company's use of the 27 relevant land to after the approval or 28 deemed approval as the case may be 29 under the abovementioned agreement of 30 all of the Company's submitted initial 31 proposals thereunder for the Railway 32 Operation (as defined in clause 10N(1) 33 of the abovementioned agreement), or in 34 the case of additional proposals 35 submitted or to be submitted by the 36 Company to after the approval or deemed 37 approval under that agreement of such 38 additional proposals, and to the extent so 39 approved. "; and 40 page 75 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 (e) the insertion in sections 18(2) and 18(5) 2 of the words "or it as the case may be" 3 after the word "he". 4 5 The Company acknowledges that nothing in this 6 subclause (8) nor the granting of any consents 7 under section 18 of the Aboriginal Heritage Act 8 1972 (WA) will constitute or is to be construed as 9 constituting the approval of any proposals 10 submitted or to be submitted by the Company 11 under this Agreement or as the grant or promise 12 of land tenure for the purposes of this Agreement. 13 14 Taking of land for the purposes of this clause 15 16 (9) (a) The State is hereby empowered, as and 17 for a public work under Parts 9 and 10 of 18 the LAA, to take for the purposes of this 19 clause any land (other than any part of a 20 Port) which in the opinion of the 21 Company is necessary for the relevant 22 Railway Operation and which the 23 Minister determines is appropriate to be 24 taken for the relevant Railway Operation 25 (except any land the taking of which 26 would be contrary to the provisions of a 27 Government agreement entered into 28 before the submission of the proposals 29 relating to the proposed taking) and 30 notwithstanding any other provisions of 31 that Act may license that land to the 32 Company. 33 34 (b) In applying Parts 9 and 10 of the LAA for 35 the purposes of this clause: 36 37 (i) "land" in that Act includes a 38 legal or equitable estate or 39 interest in land; 40 page 76 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 (ii) sections 170, 171, 172, 173, 2 174, 175 and 184 of that Act do 3 not apply; and 4 5 (iii) that Act applies as if it were 6 modified in section 177(2) by 7 inserting - 8 (A) after "railway" the 9 following - 10 "or land is being taken 11 pursuant to a 12 Government agreement 13 as defined in section 2 14 of the Government 15 Agreements Act 1979 16 (WA)"; and 17 (B) after "that Act" the 18 following - 19 "or that Agreement as 20 the case may be". 21 (c) The Company shall pay to the State on 22 demand the costs of or incidental to any 23 land taken at the request of and on 24 behalf of the Company including but not 25 limited to any compensation payable to 26 any holder of native title or of native title 27 rights and interests in the land. 28 29 Notification of Railway Operation Date 30 31 (10) (a) The Company shall from the date 32 occurring 6 months before the date for 33 completion of construction of a Railway 34 specified in its time program for the 35 commencement and completion of 36 construction of that Railway submitted page 77 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 under subclause (4)(a), keep the Minister 2 fully informed as to: 3 4 (i) the progress of that construction 5 and its likely completion and 6 commissioning; and 7 8 (ii) the likely Railway Operation 9 Date. 10 11 (b) The Company shall on the Railway 12 Operation Date notify the Minister that 13 the first carriage of iron ore, freight goods 14 or other products as the case may be over 15 the Railway (other than for construction 16 or commissioning purposes) has 17 occurred. 18 19 (c) The Company shall from the date 20 occurring 6 months before the date for 21 completion of construction of a Railway 22 spur line specified in its time program for 23 the commencement and completion of 24 construction of that spur line submitted 25 under subclause (5)(c) keep the Minister 26 fully informed as to: 27 28 (i) the progress of that construction 29 and its likely completion and 30 commissioning; and 31 32 (ii) in respect of it, the likely 33 Railway spur line Operation 34 Date. 35 36 (d) The Company shall on the Railway spur 37 line Operation Date in respect of any 38 Railway spur line notify the Minister that 39 the first carriage of iron ore, freight goods 40 or other products as the case may be over page 78 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 such spur line (other than for construction 2 or commissioning purposes) has 3 occurred."; 4 5 (21) In clause 11(a) by deleting the comma at the end of 6 subparagraph (iv) and substituting a semi colon followed by: 7 "(v) in relation to electrical energy but not water, the 8 Company for the purpose of supply to: 9 10 (A) "the Company" or "Joint Venturers" as 11 the case may be as defined in, and for the 12 purpose of an Integration Agreement, for 13 its or their purposes thereunder; 14 15 (B) the holders from time to time of a Mining 16 Act 1978 mining lease located in, or 17 proximate to, the Pilbara region of the 18 said State which is held by a Related 19 Entity alone or with a third party or 20 parties (excluding any mining lease 21 granted pursuant to, or held under, a 22 Government agreement) for the purpose 23 of their iron ore mining operations on 24 that mining lease; and 25 26 (C) with the prior approval of the Minister, 27 "the Company" or "the Joint Venturers" 28 as the case may be as defined in, and for 29 the purpose of a Government agreement 30 (excluding an Integration Agreement) for 31 the mining of iron ore in, or proximate 32 to, the Pilbara region of the said State for 33 the purpose of its or their operations 34 under that agreement,"; 35 (22) in clause 11(d)(1) by inserting "or held pursuant hereto after 36 "granted hereunder or pursuant hereto"; page 79 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 (23) in clause 11(1)(e) by: 2 (a) inserting "or pursuant hereto" after "granted 3 hereunder"; and 4 (b) inserting "or held pursuant hereto" after "clause 20 5 hereof of land"; 6 (24) in clause 11(1) by: 7 (a) inserting "granted under or pursuant to this 8 Agreement, or held pursuant to this Agreement" 9 after the first reference to "licence or other title"; 10 (b) inserting "or held pursuant hereto" after the 11 subsequent 2 references to "granted hereunder or 12 pursuant hereto"; and 13 (c) deleting "occupied by the Company" and 14 substituting "the subject of any lease, licence, 15 easement or other title granted under or pursuant to 16 this Agreement, or held pursuant to this 17 Agreement"; 18 (25) by inserting the following sentence at the end of clause 19: 19 "As a separate independent indemnity the Company will 20 indemnify and keep indemnified the State and its servants 21 agents and contractors in respect of all actions suits claims 22 demands or costs of third parties arising out of or in 23 connection with any use, making available for use or other 24 activities of the Company as referred to in clause 10L."; 25 (26) in clause 20A(a) by inserting "or held pursuant hereto" after 26 "granted hereunder or pursuant hereto"; 27 (27) in clause 21 inserting "or held pursuant hereto" after 28 "granted hereunder or pursuant hereto"; 29 (28) by deleting clause 30; and page 80 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 (29) by inserting after the Second Schedule the following new 2 schedules: 3 4 "THIRD SCHEDULE 5 6 WESTERN AUSTRALIA 7 8 IRON ORE (HAMERSLEY RANGE) AGREEMENT ACT 1963 9 10 MINING ACT 1978 11 12 MISCELLANEOUS LICENCE FOR A RAILWAY AND OTHER 13 PURPOSES 14 15 16 No. MISCELLANEOUS LICENCE [ ] 17 18 WHEREAS by the Agreement (hereinafter called "the Agreement") approved 19 by and scheduled to the Iron Ore (Hamersley Range) Agreement Act 1963, as 20 from time to time added to, varied or amended, the State agreed to grant to 21 [ ] (hereinafter with its successors and permitted assigns called "the 22 Company") a miscellaneous licence for the construction operation and 23 maintenance of a Railway (as defined in clause 10N(1) of the Agreement and 24 otherwise as provided in the Agreement) and, if applicable, other purposes 25 AND WHEREAS the Company pursuant to clause 10N(6)(a) of the Agreement 26 has made application for the said licence; 27 28 NOW in consideration of the rents reserved by and the provisions of the 29 Agreement and in pursuance of the Iron Ore (Hamersley Range) Agreement Act 30 1963, as from time to time added to, varied or amended, the Company is hereby 31 granted by this licence authority to conduct on the land the subject of this 32 licence as more particularly delineated and described from time to time in the 33 Schedule hereto all activities (including the taking of stone, sand, clay and 34 gravel, the provision of temporary accommodation facilities for the railway 35 workforce in accordance with the Agreement and, subject to the Rights in 36 Water and Irrigation Act 1914 (WA), the operation of water bores) necessary 37 for the planning, design, construction, commissioning, operation and 38 maintenance on the land the subject of this licence of the Railway and 39 Additional Infrastructure (as defined in clause 10N(1) of the Agreement) and page 81 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 access roads to be located on the land the subject of this licence in accordance 2 with the provisions of the Agreement and proposals approved under the 3 Agreement, for the term of 50 years from the date hereof (subject to the sooner 4 determination of the term upon the determination of the Agreement) and upon 5 and subject to the terms covenants and conditions set out in the Agreement and 6 the Mining Act 1978 as it applies to this licence, and any amendments to the 7 Agreement and the Mining Act 1978 from time to time and to the terms and 8 conditions (if any) now or hereafter endorsed hereon and the payment of rentals 9 in respect of this licence in accordance with clause 10N(6)(a)(i) of the 10 Agreement PROVIDED ALWAYS that this licence shall not be determined or 11 forfeited otherwise than in accordance with the Agreement. 12 13 In this licence: 14 15 - If the Company be more than one the liability of the Company 16 hereunder shall be joint and several. 17 18 - Reference to an Act includes all amendments to that Act for the time 19 being in force and also any Act passed in substitution therefore or in 20 lieu thereof and to the regulations and by-laws of the time being in 21 force thereunder. 22 23 - Reference to "the Agreement" means such agreement as from time to 24 time added to, varied or amended. 25 26 - The terms "approved proposals", "Railway", "Railway Operation 27 Date", and "Railway spur line" have the meanings given in the 28 Agreement. 29 30 ENDORSEMENTS AND CONDITIONS 31 32 Endorsements 33 34 1. This licence is granted in accordance with proposals submitted on 35 [ ], and approved by the Minister (as defined in the Agreement) on 36 [ ], under the Agreement. 37 38 2. The Company is permitted to, in accordance with approved proposals, 39 take stone, sand, clay and gravel from the land the subject of this page 82 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 licence for the construction, operation and maintenance of the 2 Railway (including any Railway spur line) constructed within or 3 approved for construction within the area of land the subject of this 4 licence. 5 6 3. Notwithstanding the Mining Act 1978, no royalty shall be payable 7 under the Mining Act 1978 in respect of stone, sand, clay and gravel 8 which the Company is permitted by the Agreement to obtain from the 9 land the subject of this licence. 10 11 4. [Any further endorsement which the Minister for Mines may, 12 consistent with the provisions of the Agreement, determines and 13 thereafter impose in respect of this licence including during the term 14 of the Agreement.] 15 16 Conditions 17 18 1. (a) Except as provided in paragraph (b), the Company shall 19 within 2 years after the Railway Operation Date surrender in 20 accordance with the provisions of the Mining Act 1978 the 21 area of this licence down to a maximum of 100 metres width 22 or as otherwise approved by the Minister (as defined in the 23 Agreement) for the safe operation of the Railway then 24 constructed or approved for construction under approved 25 proposals. 26 27 (b) Paragraph (a) shall not apply to land the subject of this 28 licence that was included in this licence pursuant to clause 29 10N(6)(h) or clause 10N(6)(i) of the Agreement. 30 31 2. The Company shall as soon as possible after the construction of a 32 Railway spur line or of an expansion or extension thereof as the case 33 may be surrender in accordance with the Mining Act 1978 the land 34 the subject of this licence that was included in this licence pursuant 35 to clause 10N(6)(h) of the Agreement for the purpose of such 36 construction down to a maximum of 100 metres in width or as 37 otherwise approved by the Minister (as defined in the Agreement) 38 for the safe operation of that Railway spur line or expansion or 39 extension thereof as the case may be then constructed or approved 40 for construction under approved proposals. page 83 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 2 3. [Any further conditions which the Minister for Mines may, consistent 3 with the provisions of the Agreement, determines and thereafter 4 impose in respect of this licence including during the term of the 5 Agreement.] 6 7 SCHEDULE 8 9 Land description 10 11 Locality: 12 Mineral Field 13 Area: 14 15 DATED at Perth this day of . 16 17 MINISTER FOR MINES 18 19 20 21 FOURTH SCHEDULE 22 23 WESTERN AUSTRALIA 24 25 IRON ORE (HAMERSLEY RANGE) AGREEMENT ACT 1963 26 27 MINING ACT 1978 28 29 MISCELLANEOUS LICENCE FOR A LATERAL ACCESS ROAD 30 31 32 No. MISCELLANEOUS LICENCE [ ] 33 34 WHEREAS by the Agreement (hereinafter called "the Agreement") approved 35 by and scheduled to the Iron Ore (Hamersley Range) Agreement Act 1963, as 36 from time to time added to, varied or amended, the State agreed to grant to 37 [ ] (hereinafter with its successors and permitted assigns called "the 38 Company") a miscellaneous licence for the construction use and maintenance 39 of a Lateral Access Road (as defined in the Agreement) AND WHEREAS the page 84 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 Company pursuant to clause 10N(6)(a)(ii) of the Agreement has made 2 application for the said licence; 3 4 NOW in consideration of the rents reserved by and the provisions of the 5 Agreement and in pursuance of the Iron Ore (Hamersley Range) Agreement Act 6 1963, as from time to time added to, varied or amended, the Company is hereby 7 authorised to construct use and maintain a road on the land more particularly 8 delineated and described from time to time in the Schedule hereto in 9 accordance with the provisions of the Agreement and proposals approved under 10 the Agreement for a term of 4 years commencing on the date hereof (subject to 11 the sooner determination of the term upon the cessation or determination of the 12 Agreement) and for the purposes and upon and subject to the terms covenants 13 and conditions set out in the Agreement and the Mining Act 1978 as it applies 14 to this licence, and any amendments to the Agreement and the Mining Act 1978 15 from time to time and to the terms and conditions (if any) now or hereafter 16 endorsed hereon and the payment of rentals in respect of this licence in 17 accordance with clause 10N(6)(a)(ii) of the Agreement PROVIDED ALWAYS 18 that this licence shall not be determined or forfeited otherwise than in 19 accordance with the Agreement. 20 21 In this licence: 22 23 - If the Company be more than one the liability of the Company 24 hereunder shall be joint and several. 25 26 - Reference to an Act includes all amendments to that Act for the time 27 being in force and also any Act passed in substitution therefore or in 28 lieu thereof and to the regulations and by-laws of the time being in 29 force thereunder. 30 31 - Reference to "the Agreement" means such agreement as from time to 32 time added to, varied or amended. 33 page 85 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 ENDORSEMENTS AND CONDITIONS 2 3 Endorsements 4 5 1. This licence is granted in accordance with proposals submitted on 6 [ ], and approved by the Minister (as defined in the Agreement) on 7 [ ], under the Agreement. 8 9 2. [Any further endorsement which the Minister for Mines may, 10 consistent with the provisions of the Agreement, determines and 11 thereafter impose in respect of this licence including during the term 12 of the Agreement.] 13 14 Conditions 15 16 [Such conditions which the Minister for Mines may, consistent with the 17 provisions of the Agreement, determines and thereafter impose in respect of the 18 licence, including during the term of the Agreement.] 19 20 SCHEDULE 21 22 Description of land 23 24 Locality: 25 Mineral Field: 26 Area: 27 28 DATED at Perth this day of . 29 30 MINISTER FOR MINES 31 page 86 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 FIFTH SCHEDULE 2 3 WESTERN AUSTRALIA 4 5 IRON ORE (HAMERSLEY RANGE) AGREEMENT ACT 1963 6 7 MINING ACT 1978 8 9 MISCELLANEOUS LICENCE FOR A LATERAL ACCESS ROAD 10 11 12 No. MISCELLANEOUS LICENCE [ ] 13 14 WHEREAS by the Agreement (hereinafter called "the Agreement") approved 15 by and scheduled to the Iron Ore (Hamersley Range) Agreement Act 1963, as 16 from time to time added to, varied or amended, the State agreed to grant to [ ] 17 (hereinafter with its successors and permitted assigns called "the Company") a 18 miscellaneous licence for the construction use and maintenance of a Lateral 19 Access Road (as defined in the Agreement) AND WHEREAS the Company 20 pursuant to clause 10N(6)(b) of the Agreement has made application for the 21 said licence; 22 23 NOW in consideration of the rents reserved by and the provisions of the 24 Agreement and in pursuance of the Iron Ore (Hamersley Range) Agreement Act 25 1963, as from time to time added to, varied or amended, the Company is hereby 26 authorised to construct use and maintain a road on the land more particularly 27 delineated and described from time to time in the Schedule hereto in 28 accordance with the provisions of the Agreement and proposals approved under 29 the Agreement for a term of 4 years commencing on the date hereof (subject to 30 the sooner determination of the term upon the cessation or determination of the 31 Agreement) and for the purposes and upon and subject to the terms covenants 32 and conditions set out in the Agreement and the Mining Act 1978 as it applies 33 to this licence, and any amendments to the Agreement and the Mining Act 1978 34 from time to time and to the terms and conditions (if any) now or hereafter 35 endorsed hereon and the payment of rentals in respect of this licence in 36 accordance with clause 10N(6)(b) of the Agreement PROVIDED ALWAYS 37 that this licence shall not be determined or forfeited otherwise than in 38 accordance with the Agreement. 39 page 87 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 In this licence: 2 3 - If the Company be more than one the liability of the Company 4 hereunder shall be joint and several. 5 6 - Reference to an Act includes all amendments to that Act for the time 7 being in force and also any Act passed in substitution therefore or in 8 lieu thereof and to the regulations and by-laws of the time being in 9 force thereunder. 10 11 - Reference to "the Agreement" means such agreement as from time to 12 time added to, varied or amended. 13 14 ENDORSEMENTS AND CONDITIONS 15 16 Endorsements 17 18 1. This licence is granted in accordance with proposals submitted on 19 [ ], and approved by the Minister (as defined in the Agreement) on 20 [ ], under the Agreement. 21 22 2. [Any further endorsement which the Minister for Mines may, 23 consistent with the provisions of the Agreement, determines and 24 thereafter impose in respect of this licence including during the term 25 of the Agreement.] 26 27 Conditions 28 29 [Such conditions which the Minister for Mines may, consistent with the 30 provisions of the Agreement, determines and thereafter impose in respect of the 31 licence, including during the term of the Agreement.] 32 page 88 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 SCHEDULE 2 3 Description of land 4 5 Locality: 6 Mineral Field: 7 Area: 8 9 DATED at Perth this day of . 10 11 MINISTER FOR MINES" 12 13 14 15 page 89 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 EXECUTED as a deed. 2 SIGNED by THE HONOURABLE ) 3 COLIN JAMES BARNETT ) [Signature] 4 in the presence of: ) 5 [Signature] STEPHEN WOOD 6 7 8 THE COMMON SEAL of ) HAMERSLEY IRON PTY. LIMITED ) ACN 004 558 276 was hereunto affixed ) [C.S.] by authority of the Directors in the ) presence of: ) 9 [Signature] ALAN DAVIES Director 10 [Signature] HELEN FERNIHOUGH Secretary 11 12 page 90 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 Thirteenth Schedule -- Twelfth Supplementary 2 Agreement 3 [s. 2] 4 5 6 2010 7 8 9 10 THE HONOURABLE COLIN JAMES BARNETT 11 PREMIER OF THE STATE OF WESTERN AUSTRALIA 12 13 14 15 AND 16 17 18 19 HAMERSLEY IRON PTY. LIMITED 20 ACN 004 558 276 21 22 23 24 25 IRON ORE (HAMERSLEY RANGE) AGREEMENT 1968 26 27 RATIFIED VARIATION AGREEMENT 28 29 30 31 32 [Solicitor's details] 33 34 35 36 37 38 page 91 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 THIS AGREEMENT is made this 17th day of November 2010 2 3 BETWEEN 4 5 6 THE HONOURABLE COLIN JAMES BARNETT MLA., Premier of the 7 State of Western Australia acting for and on behalf of the said State and 8 instrumentalities thereof from time to time (State) 9 10 AND 11 12 HAMERSLEY IRON PTY. LIMITED ACN 004 558 276 of Level 22, 13 Central Park, 152 - 158 St Georges Terrace, Perth, Western Australia 14 (Company). 15 16 17 RECITALS 18 19 A. The State and the Company are parties to the agreement dated 8 October 20 1968, approved by and scheduled to the Iron Ore (Hamersley Range) 21 Agreement Act Amendment Act 1968 and which as subsequently added 22 to, varied or amended is referred to in this Agreement as the "Principal 23 Agreement". 24 25 B. The State and the Company wish to vary the Principal Agreement. 26 27 28 THE PARTIES AGREE AS FOLLOWS: 29 30 1. Subject to the context, the words and expressions used in this Agreement 31 have the same meanings respectively as they have in and for the purpose 32 of the Principal Agreement. 33 34 2. The State shall sponsor a Bill in the Parliament of Western Australia to 35 ratify this Agreement and shall endeavour to secure its passage as an Act 36 prior to 31 December 2010 or such later date as the parties may agree. 37 38 3. (a) Clause 4 does not come into operation unless or until an Act 39 passed in accordance with clause 2 ratifies this Agreement. page 92 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 2 (b) If by 30 June 2011, or such later date as may be agreed pursuant to 3 clause 2, clause 4 has not come in to operation then unless the 4 parties otherwise agree this Agreement shall cease and determine 5 and neither party shall have any claim against the other with 6 respect to any matter or thing arising out of or done or performed 7 or omitted to be done or performed under this Agreement. 8 9 4. The Principal Agreement is varied: 10 11 (1) in clause 1: 12 13 (a) by inserting in the appropriate alphabetical positions the 14 following new definitions: 15 16 "approved proposal" means a proposal approved or 17 determined under this Agreement; 18 19 "Integration Agreement" means: 20 21 (a) the agreement approved by and scheduled to the Iron 22 Ore (Hamersley Range) Agreement Act 1963, as from 23 time to time added to, varied or amended; or 24 25 (b) the agreement approved by and scheduled to the Iron 26 Ore (Robe River) Agreement Act 1964, as from time 27 to time added to, varied or amended; or 28 29 (c) the agreement approved by and scheduled to the Iron 30 Ore (Hamersley Range) Agreement Act Amendment 31 Act 1968, as from time to time added to, varied or 32 amended; or 33 34 (d) the agreement ratified by and scheduled to the Iron 35 Ore (Mount Bruce) Agreement Act 1972, as from time 36 to time added to, varied or amended; or 37 38 (e) the agreement ratified by and scheduled to the Iron 39 Ore (Hope Downs) Agreement Act 1992, as from time 40 to time added to, varied or amended; or page 93 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 2 (f) the agreement ratified by and scheduled to the Iron 3 Ore (Yandicoogina) Agreement Act 1996, as from 4 time to time added to, varied or amended; or 5 6 (g) the agreement approved by and scheduled to the Iron 7 Ore (Mount Newman) Agreement Act 1964, as from 8 time to time added to, varied or amended; or 9 10 (h) the agreement approved by and scheduled to the Iron 11 Ore (Mount Goldsworthy) Agreement Act 1964, as 12 from time to time added to, varied or amended; or 13 14 (i) the agreement ratified by and scheduled to the Iron 15 Ore (Goldsworthy-Nimingarra) Agreement Act 1972, 16 as from time to time added to, varied or amended; or 17 18 (j) the agreement authorised by and as scheduled to the 19 Iron Ore (McCamey's Monster) Agreement 20 Authorisation Act 1972, as from time to time added 21 to, varied or amended; or 22 23 (k) the agreement ratified by and scheduled to the Iron 24 Ore (Marillana Creek) Agreement Act 1991, as from 25 time to time added to, varied or amended; 26 27 "Integration Proponent" means in relation to an Integration 28 Agreement, "the Company" or "the Joint Venturers" as the 29 case may be as defined in, and for the purpose of, that 30 Integration Agreement; 31 32 "Related Entity" means a company in which: 33 34 (a) as at 21 June 2010; and 35 36 (b) after 21 June 2010, with the approval of the Minister, 37 page 94 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 a direct or (through a subsidiary or subsidiaries within the 2 meaning of the Corporations Act 2001 (Commonwealth)) 3 indirect shareholding of 20% or more is held by: 4 5 (c) Rio Tinto Limited ABN 96 004 458 404; or 6 7 (d) BHP Billiton Limited ABN 49 004 028 077; or 8 9 (e) those companies referred to in paragraphs (c) and (d) 10 in aggregate; 11 12 "variation date" means the date on which clause 4 of the 13 variation agreement made on or about 17 November 2010 14 between the State and the Company comes into operation; 15 16 (b) in the definition of "mineral lease" by inserting "and any 17 areas added to it pursuant to clause 7B" before the semi 18 colon; 19 20 (c) in the sentence beginning "References to this Agreement" by 21 deleting "amended" and inserting "added to, varied or 22 amended" after "from time to time; 23 24 (d) in the sentence beginning "Words and phrases" by inserting 25 "from time to time" after "meanings are"; 26 27 (e) in the sentence beginning "Marginal notes" by inserting 28 "and clause headings" after notes; and 29 30 (f) by inserting after the sentence referred to in clause 4(1)(e) 31 the following new sentences: 32 33 "Words in the singular shall include the plural and words in 34 the plural shall include the singular according to the 35 requirements of the context. 36 37 Nothing in this Agreement shall be construed: 38 39 (a) to exempt the Company from compliance with any 40 requirement in connection with the protection of the page 95 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 environment arising out of or incidental to its 2 activities under this Agreement that may be made by 3 or under the EP Act; or 4 5 (b) to exempt the State or the Company from compliance 6 with or to require the State or the Company to do 7 anything contrary to any laws relating to native title 8 or any lawful obligation or requirement imposed on 9 the State or the Company as the case may be pursuant 10 to any laws relating to native title; or 11 12 (c) to exempt the Company from compliance with the 13 provisions of the Aboriginal Heritage Act 1972 14 (WA)."; 15 16 (2) by inserting after clause 5 the following new clauses: 17 18 "Additional proposals 19 20 5A. (1) If the Company, at any time during the continuance of 21 this Agreement after the variation date, desires to 22 significantly modify, expand or otherwise vary its 23 activities carried on pursuant to this Agreement (other 24 than under clause 7E) beyond those activities 25 specified in any proposals approved pursuant to 26 clause 5 it shall give notice of such desire to the 27 Minister and within 2 months thereafter shall submit 28 to the Minister detailed proposals in respect of all 29 matters covered by such notice and such of the other 30 matters mentioned in clause 4(1) as the Minister may 31 require. 32 33 (2) A proposal may with the consent of the Minister 34 (except in relation to an Integration Agreement) and 35 that of any parties concerned (being in respect of an 36 Integration Agreement the Integration Proponent for 37 that agreement) provide for the use by the Company 38 of any works installations or facilities constructed or 39 established under a Government agreement. 40 page 96 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 (3) Each of the proposals pursuant to subclause (1) may 2 with the approval of the Minister, or shall if so 3 required by the Minister, be submitted separately and 4 in any order as to any matter or matters in respect of 5 which such proposals are required to be submitted. 6 7 (4) At the time when the Company submits the said 8 proposals it shall submit to the Minister details of any 9 services (including any elements of the project 10 investigations, design and management) and any 11 works materials, plant, equipment and supplies that it 12 proposes to consider obtaining from or having carried 13 out or permitting to be obtained from or carried out 14 outside Australia together with its reasons therefor 15 and shall, if required by the Minister, consult with the 16 Minister with respect thereto. 17 18 (5) The Company may withdraw its proposals pursuant to 19 subclause (1) at any time before approval thereof, or 20 where any decision in respect thereof is referred to 21 arbitration as referred to in clause 5B, within 3 22 months after the award by notice to the Minister that 23 it shall not be proceeding with the same. 24 25 Consideration of Company's proposals under clause 5A 26 27 5B. (1) In respect of each proposal pursuant to subclause (1) 28 of clause 5A the Minister shall: 29 30 (a) subject to the limitations set out below, refuse 31 to approve the proposal (whether it requests the 32 grant of new tenure or not) if the Minister is 33 satisfied on reasonable grounds that is not in 34 the public interest for the proposal to be 35 approved; or 36 37 (b) approve of the proposal without qualification or 38 reservation; or 39 page 97 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 (c) defer consideration of or decision upon the 2 same until such time as the Company submits a 3 further proposal or proposals in respect of some 4 other of the matters mentioned in clause 5A(1) 5 not covered by the said proposal; or 6 7 (d) require as a condition precedent to the giving of 8 his approval to the said proposal that the 9 Company make such alteration thereto or 10 comply with such conditions in respect thereto 11 as he thinks reasonable, and in such a case the 12 Minister shall disclose his reasons for such 13 conditions, 14 15 PROVIDED ALWAYS that where implementation of 16 any proposals hereunder has been approved pursuant 17 to the EP Act subject to conditions or procedures, any 18 approval or decision of the Minister under this clause 19 shall if the case so requires incorporate a requirement 20 that the Company make such alterations to the 21 proposals as may be necessary to make them accord 22 with those conditions or procedures. 23 24 In considering whether to refuse to approve a 25 proposal the Minister is to assess whether or not the 26 implementation of the proposal by itself, or together 27 with any one or more of the other submitted 28 proposals, will: 29 30 (i) detrimentally affect economic and orderly 31 development in the said State, including 32 without limitation, infrastructure development 33 in the said State; or 34 35 (ii) be contrary to or inconsistent with the planning 36 and development policies and objectives of the 37 State; or 38 39 (iii) detrimentally affect the rights and interests of 40 third parties; or page 98 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 2 (iv) detrimentally affect access to and use by others 3 of the lands the subject of any grant or 4 proposed grant to the Company. 5 6 The right to refuse to approve a proposal conferred by 7 paragraph (a) may only be exercised in respect of a 8 proposal where the Minister is satisfied on reasonable 9 grounds that a purpose of the proposal is the 10 integrated use of works installations or facilities (as 11 defined in subclause (7) of clause 7C for the purpose 12 of that clause) as contemplated by clause 7C. It may 13 not be so exercised in respect of a proposal if 14 pursuant to clause 5C(5) the Minister, prior to the 15 submission of the proposal, advised the Company in 16 writing that the Minister has no public interest 17 concerns (as defined in that clause) with the single 18 preferred development (as referred to in clause 19 5C(5)(a)) the subject of the submitted proposals and 20 those proposals are consistent (as to their substantive 21 scope and content) with the information provided to 22 the Minister pursuant to clause 5C(5) in respect of 23 that single preferred development. 24 25 (2) The Minister shall within 2 months after receipt of 26 proposals pursuant to clause 5A(1) give notice to the 27 Company of his decision in respect to the proposals, 28 PROVIDED THAT where a proposal is to be 29 assessed under Part IV of the EP Act the Minister 30 shall only give notice to the Company of his decision 31 in respect to the proposal within 2 months after 32 service on him of an authority under section 45(7) of 33 the EP Act. 34 35 (3) If the decision of the Minister is as mentioned in 36 either of paragraphs (a), (c) or (d) of subclause (1) the 37 Minister shall afford the Company full opportunity to 38 consult with him and should it so desire to submit 39 new or revised proposals either generally or in respect 40 to some particular matter. page 99 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 2 (4) If the decision of the Minister is as mentioned in 3 either of paragraphs (c) or (d) of subclause (1) and the 4 Company considers that the decision is unreasonable 5 the Company within 2 months after receipt of the 6 notice mentioned in subclause (2) may elect to refer 7 to arbitration in the manner hereinafter provided the 8 question of the reasonableness of the decision 9 PROVIDED THAT any requirement of the Minister 10 pursuant to the proviso to subclause (1) shall not be 11 referable to arbitration hereunder. A decision of the 12 Minister under paragraph (a) of subclause (1) shall 13 not be referable to arbitration under the Agreement. 14 15 (5) If by the award made on the arbitration pursuant to 16 subclause (4) the dispute is decided in favour of the 17 Company the decision shall take effect as a notice by 18 the Minister that he is so satisfied with and approves 19 the matter or matters the subject of the arbitration. 20 21 (6) The Company shall implement the approved 22 proposals in accordance with the terms thereof. 23 24 (7) Notwithstanding clause 21 of the Principal Agreement 25 (as applying to this Agreement pursuant to clause 26 11(11)), the Minister may during the implementation 27 of approved proposals approve variations to those 28 proposals. 29 30 Notification of possible proposals 31 32 5C. (1) If the Company, upon completion of a pre-feasibility 33 study in respect of any matter that would require the 34 submission and approval of proposals pursuant to this 35 Agreement (being proposals which will have as their 36 purpose, or one of their purposes, the integrated use 37 of works installations or facilities as contemplated by 38 clause 7C) for the matter to be undertaken, intends to 39 further consider the matter with a view to possibly 40 submitting such proposals it shall promptly notify the page 100 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 Minister in writing giving reasonable particulars of 2 the relevant matter. 3 4 (2) Within one (1) month after receiving the notification 5 the Minister may, if the Minister so wishes, inform 6 the Company of the Minister's views of the matter at 7 that stage. 8 9 (3) If the Company is informed of the Minister's views, it 10 shall take them into account in deciding whether or 11 not to proceed with its consideration of the matter and 12 the submission of proposals. 13 14 (4) Neither the Minister's response nor the Minister 15 choosing not to respond shall in any way limit, 16 prejudice or otherwise affect the exercise by the 17 Minister of the Minister's powers, or the performance 18 of the Minister's obligations, under this Agreement or 19 otherwise under the laws from time to time of the said 20 State. 21 22 (5) (a) This subclause applies where the Company has 23 settled upon a single preferred 24 development a purpose of which is the 25 integrated use of works installations or 26 facilities (as defined in subclause (7) of clause 27 7C for the purpose of that clause) as 28 contemplated by clause 7C. 29 30 (b) For the purpose of this subclause "public 31 interest concerns" means any concern that 32 implementation of the single preferred 33 development or any part of it will: 34 35 (i) detrimentally affect economic and orderly 36 development in the said State, including 37 without limitation, infrastructure 38 development in the said State; or 39 page 101 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 (ii) be contrary to or inconsistent with the 2 planning and development policies and 3 objectives of the State; or 4 5 (iii) detrimentally affect the rights and 6 interests of third parties; or 7 8 (iv) detrimentally affect access to and use by 9 others of lands the subject of any grant or 10 proposed grant to the Company. 11 12 (c) At any time prior to submission of proposals 13 the Company may give to the Minister notice of 14 its single preferred development and request the 15 Minister to confirm that the Minister has no 16 public interest concerns with that single 17 preferred development. 18 19 (d) The Company shall furnish to the Minister with 20 its notice reasonable particulars of the single 21 preferred development including, without 22 limitation: 23 24 (i) as to the matters that would be required to 25 be addressed in submitted proposals; and 26 27 (ii) its progress in undertaking any feasibility 28 or other studies or matters to be 29 completed before submission of 30 proposals; and 31 32 (iii) its timetable for obtaining required 33 statutory and other approvals in relation 34 to the submission and approval of 35 proposals; and 36 37 (iv) its tenure requirements. 38 39 (e) If so required by the Minister, the Company 40 will provide to the Minister such further page 102 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 information regarding the single preferred 2 development as the Minister may require from 3 time to time for the purpose of considering the 4 Company's request and also consult with the 5 Minister or representatives or officers of the 6 State in regard to the single preferred 7 development. 8 9 (f) Within 2 months after receiving the notice (or 10 if the Minister requests further information, 11 within 2 months after the provision of that 12 information) the Minister must advise the 13 Company: 14 15 (i) that the Minister has no public interest 16 concerns with the single preferred 17 development; or 18 19 (ii) that he is not then in a position to advise 20 that he has no public interest concerns 21 with the single preferred development 22 and the Minister's reasons in that regard. 23 24 (g) If the Minister gives the advice mentioned in 25 paragraph (f)(ii) the Company may, should it 26 so desire, give a further request to the Minister 27 in respect of a revised or alternate single 28 preferred development and the provisions of 29 this subclause shall apply mutatis mutandis 30 thereto."; 31 32 (3) in clause 6(2)(b): 33 34 (a) by deleting in line 1 "the said proposals" and substituting 35 "approved proposals"; 36 (b) in subparagraph (i) by: 37 (A) inserting "or cause to be granted" after "grant"; page 103 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 (B) inserting after the paragraph beginning "at peppercorn 2 rental" the following new paragraph: 3 "at commercial rentals, licence or easement fees as 4 applicable - leases, licences or easements within the 5 Port of Dampier; and"; 6 (C) inserting "or under the Port Authorities Act 1999 7 (WA)" after "(3) of this clause provided"; and 8 (D) inserting "installations or facilities" after "as the 9 Company reasonably requires for its works"; and 10 (c) in the proviso by deleting "or (as the case may be) all iron 11 ore concentration products" and "or iron ore concentration 12 products"; 13 14 (4) by inserting after subclause (4) of clause 6 the following new 15 subclause: 16 17 "(4a) The provisions of subclause (2) of this clause shall not operate 18 so as to require the State to grant or vary, or cause to be 19 granted or varied, any lease licence or other right or title 20 until all processes necessary under any laws relating to 21 native title to enable that grant or variation to proceed, have 22 been completed."; 23 24 (5) in clause 7(4): 25 26 (a) by inserting "(ea)," after "(e),"; 27 28 (b) after "(k)" by inserting a comma and deleting "and"; and 29 30 (c) after "(n)" by inserting "and (o)"; 31 page 104 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 (6) in clause 7(7) by: 2 3 (a) deleting paragraph (a) and substituting the following new 4 paragraph (a): 5 6 "(a) The Company may blend iron ore mined from the 7 mineral lease with any: 8 9 (i) iron ore mined from a mining tenement or other 10 mining title granted under, or pursuant to, an 11 Integration Agreement; or 12 13 (ii) iron ore mined from a Mining Act 1978 mining 14 lease located in, or proximate to, the Pilbara 15 region of the said State which is held by a 16 Related Entity alone or with a third party or 17 parties (excluding any mining lease granted 18 pursuant to, or held under, a Government 19 agreement); or 20 21 (iii) with the prior approval of the Minister, iron ore 22 mined in, or proximate to, the Pilbara region of 23 the said State under a Government agreement 24 (excluding an Integration Agreement); or 25 26 (iv) with the prior approval of the Minister, iron ore 27 mined by a third party from a Mining Act 1978 28 mining lease located in, or proximate to, the 29 Pilbara region of the said State (excluding 30 under a Government agreement) which has 31 been purchased by an Integration Proponent 32 from the third party."; and 33 34 (b) in paragraph (b): 35 36 (i) deleting "there is" and substituting "there are"; 37 38 (ii) deleting "between the relevant Government 39 agreements"; and 40 page 105 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 (iii) deleting "blended and" and substituting "blended as 2 between each of the sources referred to in paragraph 3 (a),"; 4 5 (7) by inserting in clause 7A "and in clause 10A(3a) the references to 6 "clauses 8A(2) to (5) and of 8B" were to "clauses 5A(2) to (5) and 7 of 5B" before the full stop at the end of that clause; 8 9 (8) by inserting after clause 7A the following new clauses: 10 11 "Additional areas 12 13 7B. (1) Notwithstanding the provisions of the Mining Act 14 1904 or the Mining Act 1978 the Company may from 15 time to time during the currency of this Agreement 16 apply to the Minister for areas held by the Company 17 or an associated company under a mining tenement 18 granted under the Mining Act 1978 to be included in 19 the mineral lease but so that the total area of the 20 mineral lease, any land that may be included in the 21 mineral lease pursuant to this Agreement and of any 22 other mineral lease or mining lease granted under or 23 pursuant to this Agreement (as aggregated) shall not 24 at any time exceed 777 square kilometres. The 25 Minister shall confer with the Minister for Mines in 26 regard to any such application and if they approve the 27 application the Minister for Mines shall upon the 28 surrender of the relevant mining tenement include the 29 area the subject thereof in the mineral lease by 30 endorsement subject to such of the conditions of the 31 surrendered mining tenement as the Minister for 32 Mines determines but otherwise subject to the same 33 terms covenants and conditions as apply to the 34 mineral lease (with such apportionment of rents as is 35 necessary) and notwithstanding that the survey of 36 such additional land has not been completed but 37 subject to correction to accord with the survey when 38 completed at the Company's expense. 39 page 106 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 (2) The Minister may approve, upon application by the 2 Company from time to time, for the total area referred 3 to in subclause (1) to be increased up to a limit not 4 exceeding 1,000 square kilometres. 5 6 (3) The Company shall not mine or carry out other 7 activities (other than exploration, bulk sampling and 8 testing) on any area or areas added to the mineral 9 lease pursuant to subclause (1) of this clause unless 10 and until proposals with respect thereto are approved 11 or determined pursuant to the subsequent provisions 12 of this clause. 13 14 (4) If the Company desires to commence mining of iron 15 ore or to carry out any other activities (other than as 16 aforesaid) on the said areas it shall give notice of such 17 desire to the Minister and shall within 2 months of the 18 date of such notice (or thereafter within such 19 extended time as the Minister may allow as 20 hereinafter provided) and subject to the provisions of 21 this Agreement submit to the Minister to the fullest 22 extent reasonably practicable its detailed proposals 23 (which proposals shall include plans where 24 practicable and specifications where reasonably 25 required by the Minister) with respect to such mining 26 or other activities as additional proposals pursuant to 27 clause 5A. 28 29 Integrated use of works installations or facilities under the 30 Integration Agreements 31 32 7C. (1) Subject to subclauses (2) to (7) of this clause and to 33 the other provisions of this Agreement, the Company 34 may during the continuance of this Agreement: 35 36 (a) use any existing or new works installations or 37 facilities constructed or held: 38 39 (i) under this Agreement; or 40 page 107 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 (ii) under any other Integration Agreement 2 which are made available for such use 3 and during the continuance of such 4 Integration Agreement; or 5 6 (iii) with the approval of the Minister, under 7 a Government agreement (excluding an 8 Integration Agreement) which are made 9 available for such use and during the 10 continuance of that agreement, 11 12 (wholly or in part) in the activities of the 13 Company carried on by it pursuant to this 14 Agreement including, without limitation, as 15 part of those activities, transporting by railway 16 and shipping from a loading port and 17 undertaking any ancillary and incidental 18 activities in doing so (including, without 19 limitation, blending permitted by clause 7(7)) 20 of: 21 22 (A) iron ore mined from a Mining Act 1978 23 mining lease located in the Pilbara region 24 of the said State which is held by a 25 Related Entity alone or with a third party 26 or parties (excluding any mining lease 27 granted pursuant to, or held under, a 28 Government agreement); 29 30 (B) with the prior approval of the Minister 31 iron ore mined in, or proximate to, the 32 Pilbara region of the said State under a 33 Government agreement (excluding an 34 Integration Agreement); 35 36 (C) with the prior approval of the Minister, 37 iron ore mined by a third party from a 38 Mining Act 1978 mining lease located in, 39 or proximate to, the Pilbara region of the 40 said State (excluding under a page 108 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 Government agreement) which has been 2 purchased by the Company from the 3 third party; 4 5 (D) iron ore mined under an Integration 6 Agreement. 7 8 (b) make any existing or new works installations or 9 facilities constructed or held under this 10 Agreement available for use (wholly or partly) 11 by another Integration Proponent during the 12 continuance of its Integration Agreement in the 13 activities of that Integration Proponent carried 14 on by it pursuant to its Integration Agreement 15 including, without limitation, as part of those 16 activities, transporting by railway and shipping 17 from a loading port and undertaking any 18 ancillary and incidental activities in doing so 19 (including, without limitation, blending 20 permitted by that Integration Agreement) of: 21 22 (i) iron ore mined from a Mining Act 1978 23 mining lease located in, or proximate to, 24 the Pilbara region of the said State which 25 is held by a Related Entity alone or with 26 a third party or parties (excluding any 27 mining lease granted pursuant to, or held 28 under, a Government agreement); 29 30 (ii) with the prior approval of the Minister 31 (as defined in that Integration 32 Agreement), iron ore mined in, or 33 proximate to, the Pilbara region of the 34 said State under a Government 35 agreement (excluding an Integration 36 Agreement); 37 38 (iii) with the prior approval of the Minister 39 (as defined in that Integration 40 Agreement), iron ore mined by a third page 109 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 party from a Mining Act 1978 mining 2 lease located in, or proximate to, the 3 Pilbara region of the said State 4 (excluding under a Government 5 agreement) which has been purchased by 6 that Integration Proponent from the third 7 party; 8 9 (iv) iron ore mined under an Integration 10 Agreement; 11 12 (c) make any existing or new works installations 13 or facilities constructed or held under this 14 Agreement available for use (wholly or partly) 15 in connection with operations under: 16 17 (i) a Mining Act 1978 mining lease located 18 in, or proximate to, the Pilbara region of 19 the said State, for iron ore, which is held 20 by a Related Entity alone or with a third 21 party or parties (excluding any mining 22 lease granted pursuant to, or held under a 23 Government agreement); or 24 25 (ii) with the approval of the Minister, a 26 Government agreement (other than an 27 Integration Agreement) for the mining of 28 iron ore in, or proximate to, the Pilbara 29 region of the said State; 30 31 (d) subject to subclause (2), under this Agreement 32 and for the purpose of any use or making 33 available for use referred to in paragraph (a), 34 (b) or (c) connect any existing or new works 35 installations or facilities constructed or held 36 under this Agreement to any existing or new 37 works installations or facilities constructed or 38 held under another Integration Agreement; 39 page 110 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 (e) subject to subclause (2), under this Agreement 2 and for the purpose of any use or making 3 available for use referred to in paragraph (a), 4 (b) or (c) or making of any connection referred 5 to in paragraph (d) construct new works 6 installations or facilities and expand modify or 7 otherwise vary any existing and new works 8 installations or facilities constructed or held 9 under this Agreement; 10 (f) allow a railway or rail spur line (not being a 11 railway or rail spur line constructed or held 12 under an Integration Agreement) to be 13 connected to a railway or rail spur line or other 14 works installations for facilities constructed or 15 held under this Agreement for the delivery of 16 iron ore to an Integration Proponent for 17 transport by railway and shipping from a 18 loading port (together with any ancillary and 19 incidental activities in doing so) as part of its 20 activities under its Integration Agreement; and 21 22 (g) allow an electricity transmission line (not 23 being an electricity transmission line 24 constructed or held under an Integration 25 Agreement) to be connected to an electricity 26 transmission line constructed or held under this 27 Agreement for the supply of electricity 28 permitted to be made under an Integration 29 Agreement. 30 31 (2) (a) A connection referred to in clause (1)(d) or 32 construction, expansion, modification or other 33 variation referred to in subclause (1)(e) by the 34 Company shall, to the extent not already 35 authorised under this Agreement as at the 36 variation date, be regarded as a significant 37 modification expansion or other variation of the 38 Company's activities carried on by it pursuant 39 to this Agreement and may only be made in page 111 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 accordance with proposals submitted and 2 approved or determined under this Agreement 3 in accordance with clauses 5A and 5B or clause 4 7E as the case may require and otherwise in 5 compliance with the provisions of this 6 Agreement and the laws from time to time of 7 the said State. For the avoidance of doubt, the 8 parties acknowledge that any use or making 9 available for use contemplated by subclause 10 (1)(a), (1)(b) or (1)(c) shall not otherwise than 11 as required by this paragraph (a) require the 12 submission and approval of further proposals 13 under this Agreement. 14 15 (b) The Company shall not be entitled to: 16 17 (i) submit proposals to construct any new 18 port or to establish harbour or port 19 works installations or facilities, or to 20 expand modify or otherwise vary 21 harbour or works installations or 22 facilities otherwise than at or near the 23 town of Dampier within the boundaries 24 of the Port of Dampier; or 25 26 (ii) generate and supply power, take and 27 supply water or dispose of water 28 otherwise than in accordance with the 29 other clauses of this Agreement and 30 subject to any restrictions contained in 31 those clauses; or 32 33 (iii) without limiting subparagraphs (i) and 34 (ii) submit proposals to construct or 35 establish works installations or facilities 36 of a type, or to make expansions, 37 modifications or other variations of 38 works installations or facilities of a 39 type, which in the Minister's reasonable 40 opinion this Agreement, immediately page 112 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 before the variation date, did not permit 2 or contemplate the Company 3 constructing, establishing or making as 4 the case may be otherwise than for 5 integration use as contemplated by 6 subclauses (1)(a), (1)(b) or (1)(c) or as 7 permitted by clause 7E; or 8 9 (iv) submit proposals to make a connection 10 as referred to in subclause (1)(d) or a 11 construction, expansion, modification or 12 other variation as referred to in 13 subclause (1)(e) otherwise than on 14 tenure granted under or pursuant to this 15 Agreement from time to time or held 16 pursuant to this Agreement from time to 17 time; or 18 19 (v) submit proposals to make a connection 20 referred to in subclause (1)(d) or a 21 construction, expansion, modification or 22 other variation as referred to in 23 subclause (1)(e) for the purpose of use 24 as contemplated by subclause (1)(c)(i), 25 if in the reasonable opinion of the 26 Minister the activity which is the 27 subject of the proposals would give to 28 the holder or holders of the relevant 29 Mining Act 1978 mining lease the 30 benefit of rights or powers granted to 31 the Company under this Agreement, 32 over and above the right of access to 33 and use of the relevant works, 34 installations or facilities; or 35 36 (vi) submit proposals to make a connection 37 as referred to in subclause (1)(d) or a 38 construction, expansion, modification or 39 other variation as referred to in 40 subclause (1)(e) for the purpose of use page 113 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 as contemplated by subclause (1)(c) and 2 involving the grant of tenure without the 3 prior approval of the Minister; or 4 5 (vii) submit proposals to assign, sublet, 6 transfer or dispose of any works 7 installations or facilities constructed or 8 held under this Agreement or any leases, 9 licences, easements or other titles under 10 or pursuant to this Agreement for any 11 purpose referred to in this clause. 12 13 (c) Notwithstanding the provisions of clauses 5B 14 and 7E, the Minister may defer consideration 15 of, or a decision upon, a proposal submitted by 16 the Company for a connection as referred to in 17 subclause (1)(d) or a construction, expansion, 18 modification or other variation as referred to in 19 subclause (1)(e), for the purpose of use or 20 making available for use as referred to in 21 subclauses (1)(a) or (1)(b), until relevant 22 corresponding proposals under the relevant 23 Integration Agreement have been submitted 24 and those proposals can be approved under that 25 Integration Agreement concurrently with the 26 Minister's approval under this Agreement of 27 the Company's proposal. 28 29 (3) Any use or making available for use as referred to in 30 subclause (1), or submission of proposals as referred 31 to in subclause (2), in respect of a Related Entity shall 32 be subject to the Company first confirming with the 33 Minister that the Minister is satisfied that the relevant 34 company is a Related Entity. 35 36 (4) The Company shall give the Minister prior written 37 notice of any significant change (other than a 38 temporary one for maintenance or to respond to an 39 emergency) proposed in its use, or in it making page 114 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 available for use, works, installations or facilities as 2 referred to in this clause: 3 4 (a) from that authorised under this Agreement 5 immediately before the variation date; and 6 7 (b) subsequently from that previously notified to 8 the Minister under this subclause, 9 10 as soon as practicable before such change occurs. 11 12 The Company shall also keep the Minister fully 13 informed with respect to any proposed connection as 14 referred to in subclause (1)(f) or 1(g) or request of the 15 Company for such connection to be allowed. 16 17 (5) Nothing in this Agreement shall be construed to: 18 19 (a) exempt another Integration Proponent from 20 complying with, or the application of, the 21 provisions of its Integration Agreement; or 22 23 (b) restrict the Company's rights under clause 20 24 of the Principal Agreement (as applying 25 pursuant to clause 11(1)). 26 27 For the avoidance of doubt the approval of proposals 28 under this Agreement shall not be construed as 29 authorising another Integration Proponent to 30 undertake any activities under this Agreement or 31 under another Integration Agreement. 32 33 (6) Nothing in this clause shall be construed to exempt 34 the Company from complying with, or the application 35 of, the other provisions of this Agreement including, 36 without limitation, clause 20 of the Principal 37 Agreement (as applying pursuant to clause 11(1)) and 38 of relevant laws from time to time of the said State. 39 page 115 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 (7) For the purpose of this clause "works installations or 2 facilities" means any: 3 4 (a) harbour or port works installations or facilities 5 including, without limitation, stockpiles, 6 reclaimers, conveyors and wharves; 7 8 (b) railway or rail spur lines; 9 10 (c) track structures and systems associated with the 11 operation and maintenance of a railway 12 including, without limitation, sidings, train 13 control and signalling systems, maintenance 14 workshops and terminal yards; 15 16 (d) train loading and unloading works installations 17 or facilities; 18 19 (e) conveyors; 20 21 (f) private roads; 22 23 (g) mine aerodrome and associated aerodrome 24 works installations and facilities; 25 26 (h) iron ore mining, crushing, screening, 27 beneficiation or other processing works 28 installations or facilities; 29 30 (i) mine administration buildings including, 31 without limitation, offices, workshops and 32 medical facilities; 33 34 (j) borrow pits; 35 36 (k) accommodation and ancillary facilities 37 including, without limitation, construction 38 camps and in townsites constructed pursuant to 39 and held under any Integration Agreement; 40 page 116 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 (l) water, sewerage, electricity, gas and 2 telecommunications works installations and 3 facilities including, without limitation, 4 pipelines, transmission lines and cables; and 5 6 (m) any other works installations or facilities 7 approved of by the Minister for the purpose of 8 this clause. 9 10 Transfer of rights to shared works installations or facilities 11 12 7D. (1) For the purposes of this clause "Relevant 13 Infrastructure" means any works installations or 14 facilities (as defined in clause 7C(7)): 15 16 (a) constructed or held under another Integration 17 Agreement; 18 19 (b) which the Company is using in its activities 20 pursuant to this Agreement; 21 22 (c) which the Minister is satisfied (after consulting 23 with the Company and the Integration 24 Proponent for that other Integration 25 Agreement): 26 27 (i) are no longer required by that other 28 Integration Proponent to carry on its 29 activities pursuant to its Integration 30 Agreement because of the cessation of 31 the Integration Proponent's mining 32 operations in respect of which such 33 Relevant Infrastructure was constructed 34 or held or because of any other reason 35 acceptable to the Minister; and 36 37 (ii) are required by the Company to continue 38 to carry on its activities pursuant to this 39 Agreement; and 40 page 117 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 (d) in respect of which that other Integration 2 Proponent has notified the Minister it consents 3 to the Company submitting proposals as 4 referred to in subclause (2). 5 6 (2) The Company may as an additional proposal pursuant 7 to clause 5A propose: 8 9 (a) that it be granted a lease licence or other title 10 over the Relevant Infrastructure pursuant to this 11 Agreement subject to and conditional upon the 12 other Integration Proponent surrendering 13 wholly or in part (and upon such terms as the 14 Minister considers reasonable including any 15 variation of terms to address environmental 16 issues) its lease licence or other title over the 17 Relevant Infrastructure; or 18 19 (b) that the other Integration Proponent's lease 20 licence or other title (not being a mineral lease, 21 mining lease or other right to mine title granted 22 under a Government agreement, the Mining Act 23 1904 or the Mining Act 1978) to the Relevant 24 Infrastructure be transferred to this Agreement 25 (to be held by the Company pursuant to this 26 Agreement) with such surrender of land from it 27 and variations of its terms as the Minister 28 considers reasonable for that title to be held 29 under this Agreement including, without 30 limitation, to address environmental issues and 31 outstanding obligations of that other Integration 32 Proponent under its Integration Agreement in 33 respect of that Relevant Infrastructure. 34 35 The provisions of clause 5B shall mutatis mutandis 36 apply to any such additional proposal. In addition the 37 Company acknowledges that the Minister may require 38 variations of the other Integration Agreement and/or 39 proposals under it or of this Agreement in order to 40 give effect to the matters contemplated by this clause. page 118 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 2 (3) This clause shall cease to apply in the event the State 3 gives any notice of default to the Company pursuant 4 to clause 12 and while such notice remains 5 unsatisfied. 6 7 Miscellaneous Licences for Railways 8 9 7E. (1) In this clause subject to the context: 10 11 "Additional Infrastructure" means: 12 13 (a) Train Loading Infrastructure; 14 15 (b) Train Unloading Infrastructure; 16 17 (c) a conveyor, train unloading and other 18 infrastructure necessary for the transport of 19 iron ore, freight goods or other products from 20 the Railway (directly or indirectly) to port 21 facilities within a loading port, 22 23 in each case located outside a Port; 24 25 "LAA" means the Land Administration Act 1997 26 (WA); 27 28 "Lateral Access Roads" has the meaning given in 29 subclause (3)(a)(iv)); 30 31 "Lateral Access Road Licence" means a 32 miscellaneous licence granted pursuant to subclause 33 (6)(a)(ii) or subclause (6)(b) as the case may be and 34 according to the requirements of the context describes 35 the area of land from time to time the subject of that 36 licence; 37 38 "Port" means any port the subject of the Port 39 Authorities Act 1999 (WA) or the Shipping and 40 Pilotage Act 1967 (WA); page 119 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 2 "Private Roads" means Lateral Access Roads and the 3 Company's access roads within a Railway Corridor; 4 5 "Rail Safety Act" means the Rail Safety Act 1998 6 (WA); 7 8 "Railway" means a standard gauge heavy haul railway 9 or railway spur line, located or to be located as the 10 case may be in, or proximate to, the Pilbara region of 11 the said State (but outside the boundaries of a Port) 12 for the transport of iron ore, freight goods and other 13 products together with all railway track, associated 14 track structures including sidings, turning loops, over 15 or under track structures, supports (including supports 16 for equipment or items associated with the use of a 17 railway) tunnels, bridges, train control systems, 18 signalling systems, switch and other gear, 19 communication systems, electric traction 20 infrastructure, buildings (excluding office buildings, 21 housing and freight centres), workshops and 22 associated plant, machinery and equipment and 23 including rolling stock maintenance facilities, 24 terminal yards, depots, culverts and weigh bridges 25 which railway is or is to be (as the case may be) the 26 subject of approved proposals under subclause (4) 27 and includes any expansion or extension thereof 28 outside a Port which is the subject of additional 29 proposals approved in accordance with subclause (5); 30 31 "Railway Corridor" means, prior to the grant of a 32 Special Railway Licence, the land for the route of the 33 Railway the subject of that licence, access roads 34 (other than Lateral Access Roads), areas from which 35 stone, sand, clay and gravel may be taken, temporary 36 accommodation facilities for the railway workforce, 37 water bores and Additional Infrastructure (if any) 38 which is the subject of a subsisting agreement 39 pursuant to subclause (3)(a) and after the grant of the page 120 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 Special Railway Licence the land from time to time 2 the subject of that Special Railway Licence; 3 4 "Railway Operation" means the construction and 5 operation under this Agreement of the relevant 6 Railway and associated access roads and Additional 7 Infrastructure (if any) within the relevant Railway 8 Corridor and of the associated Lateral Access Roads, 9 in accordance with approved proposals; 10 11 "Railway spur line" means a standard gauge heavy 12 haul railway spur line located or to be located in, or 13 proximate to, the Pilbara region of the said State (but 14 outside a Port) connecting to a Railway for the 15 transport of iron ore, freight goods and other products 16 upon the Railway to (directly or indirectly) a loading 17 port; 18 19 "Railway Operation Date" means the date of the first 20 carriage of iron ore, freight goods or other products 21 over the relevant Railway (other than for construction 22 or commissioning purposes); 23 24 "Railway spur line Operation Date" means the date of 25 the first carriage of iron ore, freight goods or other 26 products over the relevant Railway spur line (other 27 than for construction or commissioning purposes); 28 29 "Special Railway Licence" means the relevant 30 miscellaneous licence for railway and, if applicable, 31 other purposes, granted to the Company pursuant to 32 subclause (6)(a)(i) as varied in accordance with 33 subclause (6)(h) or subclause (6)(i) and according to 34 the requirements of the context describes the area of 35 land from time to time the subject of that licence; 36 37 "Train Loading Infrastructure" means conveyors, 38 stockpile areas, blending and screening facilities, 39 stackers, re-claimers and other infrastructure 40 reasonably required for the loading of iron ore, freight page 121 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 goods or other products onto the relevant Railway for 2 transport (directly or indirectly) to a loading port; and 3 4 "Train Unloading Infrastructure" means train 5 unloading infrastructure reasonably required for the 6 unloading of iron ore from the Railway to be 7 processed, or blended with other iron ore, at 8 processing or blending facilities in the vicinity of that 9 train unloading infrastructure and with the resulting 10 iron ore products then loaded on to the Railway for 11 transport (directly or indirectly) to a loading port. 12 13 Company to obtain prior Ministerial in-principle 14 approval 15 16 (2) (a) If the Company wishes, from time to time 17 during the continuance of this Agreement, to 18 proceed under this clause with a plan to 19 develop a Railway it shall give notice thereof 20 to the Minister and furnish to the Minister with 21 that notice an outline of its plan. 22 23 (b) The Minister shall within one month of a 24 notice under paragraph (a) advise the Company 25 whether or not he approves in-principle the 26 proposed plan. The Minister shall afford the 27 Company full opportunity to consult with him 28 in respect of any decision of the Minister under 29 this paragraph. 30 31 (c) The Minister's in-principle approval in respect 32 of a proposed plan shall lapse if the Company 33 has not submitted detailed proposals to the 34 Minister in respect of that plan in accordance 35 with this clause within 18 months of the 36 Minister's in-principle approval. 37 page 122 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 Railway Corridor 2 3 (3) (a) If the Minister gives in-principle approval to a 4 plan of the Company to develop a Railway it 5 shall consult with the Minister to seek the 6 agreement of the Minister as to: 7 8 (i) where the Railway will begin and end; 9 and 10 11 (ii) a route for the Railway, access roads to 12 be within the Railway Corridor and the 13 land required for that route as well as 14 Additional Infrastructure (if any) 15 including, without limitation, areas from 16 which stone, sand, clay and gravel may 17 be taken, temporary accommodation 18 facilities for the railway workforce and 19 water bores; and 20 21 (iii) in respect of Additional Infrastructure 22 (if any) the nature and capacity of such 23 Additional Infrastructure; and 24 25 (iv) the routes of, and the land required for, 26 roads outside the Railway Corridor (and 27 also outside a Port) for access to it to 28 construct the Railway (such roads as 29 agreed being "Lateral Access Roads"). 30 31 In seeking such agreement, regard shall be had 32 to achieving a balance between engineering 33 matters including costs, the nature and use of 34 any lands concerned and interests therein and 35 the costs of acquiring the land (all of which 36 shall be borne by the Company). The parties 37 acknowledge the intention is for the Company 38 to construct the Railway, the access roads for 39 the construction and maintenance of the 40 Railway which are to be within the Railway page 123 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 Corridor and the relevant Additional 2 Infrastructure (if any) along the centreline of 3 the Railway Corridor subject to changes in that 4 alignment to the extent necessary to avoid 5 heritage, environmental or poor ground 6 conditions that are not identified during 7 preliminary investigation work, and recognise 8 the width of the Railway Corridor may need to 9 vary along its route to accommodate 10 Additional Infrastructure (if any), access roads, 11 areas from which stone, sand, clay and gravel 12 may be taken, temporary accommodation 13 facilities for the railway workforce and water 14 bores. The provisions of clause 25 of the 15 Principal Agreement (as applying pursuant to 16 clause 11(2c)) shall not apply to this subclause. 17 18 (b) If the date by which the Company must submit 19 detailed proposals under subclause (4)(a) (as 20 referred to in subclause (2)(c)) is extended or 21 varied by the Minister pursuant to clause 24, of 22 the Principal Agreement (as applying pursuant 23 to clause 11(1)), any agreement made pursuant 24 to paragraph (a) before such date is extended 25 or varied shall unless the Minister notifies the 26 Company otherwise be deemed to be at an end 27 and neither party shall have any claim against 28 the other in respect of it. 29 30 (c) The Company acknowledges that it shall be 31 responsible for liaising with every title holder 32 in respect of the land affected and for 33 obtaining in a form and substance acceptable 34 to the Minister all unconditional and 35 irrevocable consents of each such title holder 36 to, and all statutory consents required in 37 respect of the land affected for: 38 39 (i) the grant of the Special Railway Licence 40 for the construction, operation and page 124 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 maintenance within the Railway 2 Corridor of the Railway, access roads 3 and Additional Infrastructure (if any) to 4 be within the Railway Corridor; and 5 6 (ii) the grant of Lateral Access Road 7 Licences for the construction, use and 8 maintenance of Lateral Access Roads 9 over the routes for the Lateral Access 10 Roads agreed pursuant to paragraph (a); 11 and 12 13 (iii) the inclusion of additional land in the 14 Special Railway Licence as referred to 15 in subclause (6)(h) or subclause (6)(i), 16 17 in accordance with this clause. For the 18 purposes of this subclause (3)(c), "title holder" 19 means a management body (as defined in the 20 LAA) in respect of any part of the affected 21 land, a person who holds a mining, petroleum 22 or geothermal energy right (as defined in the 23 LAA) in respect of any part of the affected 24 land, a person who holds a lease or licence 25 under the LAA in respect of any part of the 26 affected land, a person who holds any other 27 title granted under or pursuant to a 28 Government agreement in respect of any part 29 of the affected land, a person who holds a lease 30 or licence in respect of any part of the affected 31 land under any other Act applying in the said 32 State and a person in whom any part of the 33 affected land is vested, immediately before the 34 provision of such consents to the Minister as 35 referred to in subclause (4)(e)(ii) (including as 36 applying pursuant to subclause 5(d)). 37 page 125 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 Company to submit proposals for Railway 2 3 (4) (a) The Company shall, subject to the EP Act, the 4 provisions of this Agreement, agreement at that 5 time subsisting in respect of the matters 6 required to be agreed pursuant to subclause 7 3(a), submit to the Minister by the latest date 8 applying under subclause (2)(c) to the fullest 9 extent reasonably practicable its detailed 10 proposals (including plans where practicable 11 and specifications where reasonably required 12 by the Minister and any other details normally 13 required by a local government in whose area 14 any works are to be situated) with respect to 15 the undertaking of the relevant Railway 16 Operation, which proposals shall include the 17 location, area, layout, design, materials and 18 time program for the commencement and 19 completion of construction or the provision (as 20 the case may be) of each of the following 21 matters namely: 22 23 (i) the Railway including fencing (if any) 24 and crossing places within the Railway 25 Corridor; 26 27 (ii) Additional Infrastructure (if any) within 28 the Railway Corridor; 29 30 (iii) temporary accommodation and ancillary 31 temporary facilities for the railway 32 workforce on, or in the vicinity of, the 33 Railway Corridor and housing and other 34 appropriate facilities elsewhere for the 35 Company's workforce; 36 37 (iv) water supply; 38 39 (v) energy supplies; 40 page 126 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 (vi) access roads within the Railway 2 Corridor and Lateral Access Roads both 3 along the routes for those roads agreed 4 between the Minister and the Company 5 pursuant to subclause 3(a); 6 7 (vii) any other works, services or facilities 8 desired by the Company; and 9 10 (viii) use of local labour, professional 11 services, manufacturers, suppliers 12 contractors and materials and measures 13 to be taken with respect to the 14 engagement and training of employees 15 by the Company, its agents and 16 contractors. 17 18 (b) Proposals pursuant to paragraph (a) must 19 specify the matters agreed for the purpose 20 pursuant to subclause (3)(a) and must not be 21 contrary to or inconsistent with such agreed 22 matters. 23 24 (c) Each of the proposals pursuant to paragraph (a) 25 may with the approval of the Minister, or must 26 if so required by the Minister, be submitted 27 separately and in any order as to the matter or 28 matters mentioned in one or more of 29 subparagraphs (i) to (viii) of paragraph (a) and 30 until all of its proposals under this subclause 31 have been approved the Company may 32 withdraw and may resubmit any proposal but 33 the withdrawal of any proposal shall not affect 34 the obligations of the Company to submit a 35 proposal under this subclause in respect of the 36 subject matter of the withdrawn proposal. 37 38 (d) The Company shall, whenever any of the 39 following matters referred to in this subclause 40 are proposed by the Company (whether before page 127 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 or during the submission of proposals under 2 this subclause), submit to the Minister details 3 of any services (including any elements of the 4 project investigations, design and 5 management) and any works, materials, plant, 6 equipment and supplies that it proposes to 7 consider obtaining from or having carried out 8 or permitting to be obtained from or carried out 9 outside Australia, together with its reasons 10 therefor and shall, if required by the Minister 11 consult with the Minister with respect thereto. 12 13 (e) At the time when the Company submits the last 14 of the said proposals pursuant to this 15 subclause, it shall: 16 17 (i) furnish to the Minister's reasonable 18 satisfaction evidence of all 19 accreditations under the Rail Safety Act 20 which are required to be held by the 21 Company or any other person for the 22 construction of the Railway; and 23 24 (ii) furnish to the Minister the written 25 consents referred to in subclause 26 (3)(c)(i) and (3)(c)(ii). 27 28 (f) The provisions of clause 5B shall apply mutatis 29 mutandis to detailed proposals submitted under 30 this subclause. 31 32 Additional Railway Proposals 33 34 (5) (a) If the Company at any time during the currency 35 of a Special Railway Licence desires to 36 construct a Railway spur line (connecting to 37 the Railway the subject of that Special Railway 38 Licence) or desires to significantly modify, 39 expand or otherwise vary its activities within 40 the land the subject of the Special Railway page 128 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 Licence that are the subject of this Agreement 2 and that may be carried on by it pursuant to 3 this Agreement (other than by the construction 4 of a Railway spur line) beyond those activities 5 specified in any approved proposals for that 6 Railway, it shall give notice of such desire to 7 the Minister and furnish to the Minister with 8 that notice an outline of its proposals in respect 9 thereto (including, without limitation, such 10 matters mentioned in subclause (4)(a) as are 11 relevant or as the Minister otherwise requires). 12 13 (b) If the notice relates to a Railway spur line, or 14 to the construction of Train Loading 15 Infrastructure or Train Unloading 16 Infrastructure on land outside the then Railway 17 Corridor, the Minister shall within one month 18 of receipt of such notice advise the Company 19 whether or not he approves in-principle the 20 proposed construction of such spur line, Train 21 Loading Infrastructure or Train Unloading 22 Infrastructure. If the Minister gives in- 23 principle approval the Company may (but not 24 otherwise) submit detailed proposals in respect 25 thereof provided that the provisions of 26 subclause (3) shall mutatis mutandis apply 27 prior to submission of detailed proposals in 28 respect thereof. 29 30 (c) Subject to the EP Act, the provisions of this 31 Agreement and agreement at that time 32 subsisting in respect of any matters required to 33 be agreed pursuant to subclause (3)(a) (as 34 referred to in paragraph (b)), the Company 35 shall submit to the Minister within a 36 reasonable timeframe, as determined by the 37 Minister after receipt of the notice referred to 38 in paragraph (a) (or in the case of a notice 39 referred to in paragraph (b) the giving of the 40 Minister's in-principle consent as referred to in page 129 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 that paragraph), detailed proposals in respect 2 of the proposed construction of such Railway 3 spur line, Train Loading Infrastructure, Train 4 Unloading Infrastructure or other proposed 5 modification, expansion or variation of its 6 activities including such of the matters 7 mentioned in subclause (4)(a) as the Minister 8 may require. 9 10 (d) The provisions of subclause (4) (with the date 11 for submission of proposals being read as the 12 date or time determined by the Minister under 13 paragraph (c) and the reference in subclause 14 (4)(e)(ii) to subclause (3)(c)(i) being read as a 15 reference to subclause (3)(c)(iii)) and of clause 16 5B shall mutatis mutandis apply to detailed 17 proposals submitted pursuant to this subclause. 18 19 Grant of Tenure 20 21 (6) (a) On application made by the Company to 22 the Minister in such manner as the Minister 23 may determine, not later than 3 months after all 24 its proposals submitted pursuant to subclause 25 (4)(a) have been approved or deemed to be 26 approved and the Company has complied with 27 the provisions of subclause (4)(e), the State 28 notwithstanding the Mining Act 1978 shall 29 cause to be granted to the Company: 30 31 (i) a miscellaneous licence to conduct 32 within the Railway Corridor and in 33 accordance with its approved proposals 34 all activities (including the taking of 35 stone, sand, clay and gravel, the 36 provision of temporary accommodation 37 facilities for the railway workforce and, 38 subject to the Rights in Water and 39 Irrigation Act 1914 (WA), the operation 40 of water bores) necessary for the page 130 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 planning, design, construction, 2 commissioning, operation and 3 maintenance within the Railway 4 Corridor of the Railway, access roads 5 and Additional Infrastructure (if any) 6 ("the Special Railway Licence") such 7 licence to be granted under and subject 8 to, except as otherwise provided in this 9 Agreement, the Mining Act 1978 in the 10 form of the Third Schedule hereto and 11 subject to such terms and conditions as 12 the Minister for Mines may from time to 13 time consider reasonable and at a rental 14 calculated in accordance with the 15 Mining Act 1978: 16 17 (A) prior to the Railway Operation 18 Date, as if the width of the 19 Railway Corridor were 100 20 metres; and 21 22 (B) on and from the Railway 23 Operation Date, at the rentals 24 from time to time prescribed 25 under the Mining Act 1978; and 26 27 (ii) a miscellaneous licence or licences to 28 allow the construction, use and 29 maintenance of Lateral Access Roads 30 within the routes agreed for those 31 Lateral Access Roads under subclause 32 (3)(a) (each a "Lateral Access Road 33 Licence"), each such licence to be 34 granted under and subject to, except as 35 otherwise provided in this Agreement, 36 the Mining Act 1978 in the form of the 37 Fourth Schedule hereto and subject to 38 such terms and conditions as the 39 Minister for Mines may from time to 40 time consider reasonable and at the page 131 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 rentals from time to time prescribed 2 under the Mining Act 1978. 3 4 (b) On application made by the Company to the 5 Minister in such manner as the Minister may 6 determine, not later than 3 months after its 7 proposals submitted pursuant to subclause 8 (5)(a) for the construction of Lateral Access 9 Roads for access to the Railway Corridor to 10 construct a Railway spur line have been 11 approved or deemed to be approved and the 12 Company has complied with the provisions of 13 subclause (4)(e) (as applying pursuant to 14 subclause (5)(d)), the State notwithstanding the 15 Mining Act 1978 shall cause to be granted to 16 the Company a miscellaneous licence or 17 licences to allow the construction, use and 18 maintenance of Lateral Access Roads within 19 the routes agreed for those Lateral Access 20 Roads under subclause (3)(a)) (as applying 21 pursuant to subclause (5)(b)) (each a "Lateral 22 Access Road Licence"), each such licence to 23 be granted under and subject to, except as 24 otherwise provided in this Agreement, the 25 Mining Act 1978 in the form of the Fifth 26 Schedule hereto and subject to such terms and 27 conditions as the Minister for Mines may from 28 time to time consider reasonable and at the 29 rentals from time to time prescribed under the 30 Mining Act 1978. 31 32 (c) Notwithstanding the Mining Act 1978, the 33 term of the Special Railway Licence shall, 34 subject to the sooner determination thereof on 35 the cessation or sooner determination of this 36 Agreement, be for a period of 50 years 37 commencing on the date of grant thereof. 38 39 (d) Notwithstanding the Mining Act 1978, the 40 term of any Lateral Access Road Licence shall, page 132 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 subject to the sooner determination thereof on 2 the cessation or sooner determination of this 3 Agreement, be for a period of 4 years 4 commencing on the date of grant thereof. 5 6 (e) Notwithstanding the Mining Act 1978, and 7 except as required to do so by the terms of the 8 Special Railway Licence, the Company shall 9 not be entitled to surrender the Special 10 Railway Licence or any Lateral Access Road 11 Licence or any part or parts of them without 12 the prior consent of the Minister. 13 14 (f) (i) The Company may in accordance with 15 approved proposals take stone, sand, 16 clay and gravel from the Railway 17 Corridor for the construction, operation 18 and maintenance of the Railway 19 constructed within or approved for 20 construction within the Railway 21 Corridor. 22 23 (ii) Notwithstanding the Mining Act 1978 24 no royalty shall be payable under the 25 Mining Act in respect of stone, sand, 26 clay and gravel which the Company is 27 permitted by subparagraph (i) to obtain 28 from the land the subject of the Special 29 Railway Licence. 30 31 (g) For the purposes of this Agreement and 32 without limiting the operation of paragraphs 33 (a) to (f) inclusive above, the application of the 34 Mining Act 1978 and the regulations made 35 thereunder are specifically modified; 36 37 (i) in section 91(1) by: 38 39 (A) deleting "the mining registrar or 40 the warden, in accordance with page 133 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 section 42 (as read with section 2 92)" and substituting "the 3 Minister"; 4 5 (B) deleting "any person" and 6 substituting "the Company (as 7 defined in the agreement 8 approved by and scheduled to the 9 Iron Ore (Hamersley Range) 10 Agreement Act Amendment Act 11 1968, as from time to time added 12 to, varied or amended)"; 13 14 (C) deleting "for any one or more of 15 the purposes prescribed" and 16 substituting "for the purpose 17 specified in clause 7E(6)(a)(i), 18 clause 7E(6)(a)(ii) or clause 19 7E(6)(b), of the agreement 20 approved by and scheduled to the 21 Iron Ore (Hamersley Range) 22 Agreement Act Amendment Act 23 1968, as from time to time added 24 to, varied or amended"; 25 26 (ii) in section 91(3)(a), by deleting 27 "prescribed form" and substituting 28 "form required by the agreement 29 approved by and scheduled to the Iron 30 Ore (Hamersley Range) Agreement Act 31 Amendment Act 1968, as from time to 32 time added to, varied or amended"; 33 34 (iii) by deleting sections 91(6), 91(9), 91(10) 35 and 91B; 36 37 (iv) in section 92, by deleting "Sections 41, 38 42, 44, 46, 46A, 47 and 52 apply," and 39 inserting "Section 46A (excluding in 40 subsection (2)(a) "the mining registrar, page 134 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 the warden or") applies," and by 2 deleting "in those provisions" and 3 inserting "in that provision"; 4 5 (v) by deleting the full stop at the end of the 6 section 94(1) and inserting, "except to 7 the extent otherwise provided in, or to 8 the extent that such terms and 9 conditions are inconsistent with, the 10 agreement approved by and scheduled 11 to the Iron Ore (Hamersley Range) 12 Agreement Act Amendment Act 1968, as 13 from time to time added to, varied or 14 amended"; 15 16 (vi) by deleting sections 94(2), (3) and (4); 17 18 (vii) in section 96(1), by inserting after 19 "miscellaneous licence" the words "(not 20 being a miscellaneous licence granted 21 pursuant to the agreement approved by 22 and scheduled to the Iron Ore 23 (Hamersley Range) Agreement Act 24 Amendment Act 1968, as from time to 25 time added to, varied or amended"; 26 27 (viii) by deleting mining regulations 37(2), 28 37(3), 42 and 42A; and 29 30 (ix) by inserting at the beginning of mining 31 regulations 41(c) and (f) the words 32 "subject to the agreement approved by 33 and scheduled to the Iron Ore 34 (Hamersley Range) Agreement Act 35 Amendment Act 1968, as from time to 36 time added to, varied or amended". 37 38 (h) If additional proposals are approved in 39 accordance with subclause (5) for the 40 construction of a Railway spur line outside the page 135 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 then Railway Corridor, the Minister for Mines 2 shall include the area of land within which 3 such construction is to occur in the Special 4 Railway Licence by endorsement. The area of 5 such land may be included notwithstanding 6 that the survey of the land has not been 7 completed but subject to correction to accord 8 with the survey when completed at the 9 Company's expense. 10 11 (i) If additional proposals are approved in 12 accordance with subclause (5) for the 13 construction of Train Loading Infrastructure or 14 Train Unloading Infrastructure outside the then 15 Railway Corridor, the Minister for Mines shall 16 include the area of such land within which 17 such infrastructure is approved for construction 18 in the Special Railway Licence by 19 endorsement. The area of such land may be 20 included notwithstanding that the survey of the 21 land has not been completed but subject to 22 correction to accord with the survey when 23 completed at the Company's expense. 24 25 (j) The provisions of this subclause shall not 26 operate so as to require the State to cause a 27 Special Railway Licence or a Lateral Access 28 Road Licence to be granted or any land 29 included in the Special Railway Licence as 30 mentioned above until all processes necessary 31 under any laws relating to native title to enable 32 that grant or inclusion of land to proceed, have 33 been completed. 34 35 Construction and operation of Railway 36 37 (7) (a) Subject to and in accordance with approved 38 proposals, the Rail Safety Act and the grant of 39 the relevant Special Railway Licence and any 40 associated Lateral Access Road Licences the page 136 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 Company shall in a proper and workmanlike 2 manner and in accordance with recognised 3 standards for railways of a similar nature 4 operating under similar conditions construct 5 the Railway and associated Additional 6 Infrastructure and access roads within the 7 Railway Corridor and shall also construct inter 8 alia any necessary sidings, crossing points, 9 bridges, signalling switches and other works 10 and appurtenances and provide for crossings 11 and (where appropriate and required by the 12 Minister) grade separation or other protective 13 devices including flashing lights and boom 14 gates at places where the Railway crosses or 15 intersects with major roads or existing 16 railways. 17 18 (b) The Company shall while the holder of a 19 Special Railway Licence: 20 21 (i) keep the Railway the subject of that 22 licence in an operable state; and 23 24 (ii) ensure that the Railway the subject of 25 that licence is operated in a safe and 26 proper manner in compliance with all 27 applicable laws from time to time; and 28 29 (iii) without limiting subparagraph (ii) 30 ensure that the obligations imposed 31 under the Rail Safety Act on an owner 32 and an operator (as those terms are 33 therein defined) are complied with in 34 connection with the Railway the subject 35 of that licence. 36 37 Nothing in this Agreement shall be construed 38 to exempt the Company or any other person 39 from compliance with the Rail Safety Act or 40 limit its application to the Company's page 137 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 operations generally (except as otherwise may 2 be provided in that Act or regulations made 3 under it). 4 5 (c) The Company shall provide crossings for 6 livestock and also for any roads, other 7 railways, conveyors, pipelines and other 8 utilities which exist at the date of grant of the 9 relevant Special Railway Licence or in respect 10 of land subsequently included in it at the date 11 of such inclusion and the Company shall on 12 reasonable terms and conditions allow such 13 crossings for roads, railways, conveyors, 14 pipelines and other utilities which may be 15 constructed for future needs and which may be 16 required to cross a Railway constructed 17 pursuant to this clause. 18 19 (d) Subject to clause 7D, the Company shall at all 20 times be the holder of Special Railway 21 Licences and Lateral Access Road Licences 22 granted pursuant to this clause and (without 23 limiting clause 11(j) of the Principal 24 Agreement (as applying pursuant to clause 8) 25 but subject to clause 7D) shall at all times own 26 manage and control the use of each Railway 27 the subject of a Special Railway Licence held 28 by the Company. 29 30 (e) The Company shall not be entitled to exclusive 31 possession of the land the subject of a Special 32 Railway Licence or Lateral Access Road 33 Licence granted pursuant to this clause to the 34 intent that the State, the Minister, the Minister 35 for Mines and any persons authorised by any 36 of them from time to time shall be entitled to 37 enter upon the land or any part of it at all 38 reasonable times and on reasonable notice with 39 all necessary vehicles, plant and equipment and 40 for purposes related to this Agreement or such page 138 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 other purposes as they think fit but in doing so 2 shall be subject to the reasonable directions of 3 the Company so as not to unreasonably 4 interfere with the Company's operations. 5 6 (f) The Company's ownership of a Railway 7 constructed pursuant to this clause shall not 8 give it an interest in the land underlying it. 9 10 (g) The Company shall not at any time without the 11 prior consent of the Minister dismantle, sell or 12 otherwise dispose of any part or parts of any 13 Railway constructed pursuant to this clause, or 14 permit this to occur, other than for the purpose 15 of maintenance, repair, upgrade or renewal. 16 17 (h) The Company shall, subject to and in 18 accordance with approved proposals, in a 19 proper and workmanlike manner, construct any 20 Additional Infrastructure, access roads, Lateral 21 Access Roads and other works approved for 22 construction under this clause. 23 24 (i) The Company shall while the holder of a 25 Special Railway Licence at all times keep and 26 maintain in good repair and working order and 27 condition (which obligation includes, where 28 necessary, replacing or renewing all parts 29 which are worn out or in need of replacement 30 or renewal due to their age or condition) the 31 Railway, access roads and Additional 32 Infrastructure (if any) the subject of that 33 licence and all such other works installations 34 plant machinery and equipment for the time 35 being the subject of this Agreement and used 36 in connection with the operation use and 37 maintenance of that Railway, access roads and 38 Additional Infrastructure (if any). 39 page 139 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 (j) Subject to clause 7D, the Company shall: 2 3 (i) be responsible for the cost of 4 construction and maintenance of all 5 Private Roads constructed pursuant to 6 this clause; and 7 8 (ii) at its own cost erect signposts and take 9 other steps that may be reasonable in the 10 circumstances to prevent any persons 11 and vehicles (other than those engaged 12 upon the Company's activities and its 13 invitees and licensees) from using the 14 Private Roads; and 15 16 (iii) at any place where any Private Roads 17 are constructed by the Company so as 18 to cross any railways or public roads 19 provide at its cost such reasonable 20 protection and signposting as may be 21 required by the Commissioner of Main 22 Roads or the Public Transport 23 Authority as the case may be. 24 25 (k) The provisions of clauses 10(2a) and (3) of the 26 Principal Agreement (as applying pursuant to 27 clause 7(4) regarding third party access as well 28 as the proviso to clause 10(2)(a) shall apply 29 mutatis mutandis to any Railway or Railway 30 spur line constructed pursuant to this clause 31 except that the Company shall not be obliged 32 to transport passengers upon any such Railway 33 or Railway spur line. 34 page 140 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 Aboriginal Heritage Act 1972 (WA) 2 3 (8) For the purposes of this clause the Aboriginal 4 Heritage Act 1972 (WA) applies as if it were 5 modified by: 6 7 (a) the insertion before the full stop at the end of 8 section 18(1) of the words: 9 10 "and the expression "the Company" means the 11 persons from time to time comprising "the 12 Company" in their capacity as such under the 13 agreement approved by and scheduled to the 14 Iron Ore (Hamersley Range) Agreement Act 15 Amendment Act 1968, as from time to time 16 added to, varied or amended in relation to the 17 use or proposed use of land pursuant to clause 18 7E of that agreement after and in accordance 19 with approved proposals under clause 7E of 20 that agreement and in relation to the use of that 21 land before any such approval of proposals 22 where the Company has the requisite authority 23 to enter upon and so use the land"; 24 25 (b) the insertion in sections 18(2), 18(4), 18(5) and 26 18(7) of the words "or the Company as the 27 case may be" after the words "owner of any 28 land"; 29 30 (c) the insertion in section 18(3) of the words "or 31 the Company as the case may be" after the 32 words "the owner"; 33 34 (d) the insertion of the following sentences at the 35 end of section 18(3): 36 37 "In relation to a notice from the Company the 38 conditions that the Minister may specify can as 39 appropriate include, among other conditions, a 40 condition restricting the Company's use of the page 141 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 relevant land to after the approval or deemed 2 approval as the case may be under the 3 abovementioned agreement of all of the 4 Company's submitted initial proposals 5 thereunder for the Railway Operation (as 6 defined in clause 7E(1) of the abovementioned 7 agreement), or in the case of additional 8 proposals submitted or to be submitted by the 9 Company to after the approval or deemed 10 approval under that agreement of such 11 additional proposals, and to the extent so 12 approved. "; and 13 14 (e) the insertion in sections 18(2) and 18(5) of the 15 words "or it as the case may be" after the word 16 "he". 17 18 The Company acknowledges that nothing in this 19 subclause (8) nor the granting of any consents under 20 section 18 of the Aboriginal Heritage Act 1972 (WA) 21 will constitute or is to be construed as constituting the 22 approval of any proposals submitted or to be 23 submitted by the Company under this Agreement or 24 as the grant or promise of land tenure for the purposes 25 of this Agreement. 26 27 Taking of land for the purposes of this clause 28 29 (9) (a) The State is hereby empowered, as and for a 30 public work under Parts 9 and 10 of the LAA, 31 to take for the purposes of this clause any land 32 (other than any part of a Port) which in the 33 opinion of the Company is necessary for the 34 relevant Railway Operation and which the 35 Minister determines is appropriate to be taken 36 for the relevant Railway Operation (except any 37 land the taking of which would be contrary to 38 the provisions of a Government agreement 39 entered into before the submission of the 40 proposals relating to the proposed taking) and page 142 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 notwithstanding any other provisions of that 2 Act may license that land to the Company. 3 4 (b) In applying Parts 9 and 10 of the LAA for the 5 purposes of this clause: 6 7 (i) "land" in that Act includes a legal or 8 equitable estate or interest in land; 9 10 (ii) sections 170, 171, 172, 173, 174, 175 11 and 184 of that Act do not apply; and 12 13 (iii) that Act applies as if it were modified in 14 section 177(2) by inserting - 15 (A) after "railway" the following - 16 "or land is being taken pursuant 17 to a Government agreement as 18 defined in section 2 of the 19 Government Agreements Act 20 1979 (WA)"; and 21 (B) after "that Act" the following - 22 "or that Agreement as the case 23 may be". 24 (c) The Company shall pay to the State on demand 25 the costs of or incidental to any land taken at 26 the request of and on behalf of the Company 27 including but not limited to any compensation 28 payable to any holder of native title or of 29 native title rights and interests in the land. 30 31 Notification of Railway Operation Date 32 33 (10) (a) The Company shall from the date occurring 6 34 months before the date for completion of 35 construction of a Railway specified in its time 36 program for the commencement and 37 completion of construction of that Railway page 143 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 submitted under subclause (4)(a), keep the 2 Minister fully informed as to: 3 4 (i) the progress of that construction and its 5 likely completion and commissioning; 6 and 7 8 (ii) the likely Railway Operation Date. 9 10 (b) The Company shall on the Railway Operation 11 Date notify the Minister that the first carriage 12 of iron ore, freight goods or other products as 13 the case may be over the Railway (other than 14 for construction or commissioning purposes) 15 has occurred. 16 17 (c) The Company shall from the date occurring 6 18 months before the date for completion of 19 construction of a Railway spur line specified in 20 its time program for the commencement and 21 completion of construction of that spur line 22 submitted under subclause (5)(c) keep the 23 Minister fully informed as to: 24 25 (i) the progress of that construction and its likely 26 completion and commissioning; and 27 28 (ii) in respect of it, the likely Railway spur line 29 Operation Date. 30 31 (d) The Company shall on the Railway spur line 32 Operation Date in respect of any Railway spur 33 line notify the Minister that the first carriage of 34 iron ore, freight goods or other products as the 35 case may be over such spur line (other than for 36 construction or commissioning purposes) has 37 occurred."; 38 page 144 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 (9) by inserting at the end of clause 11(1) the following new 2 sentence: 3 4 "In addition clause 19 of the Principal Agreement shall apply to 5 and be deemed incorporated in this Agreement as if the reference 6 in the last sentence of that clause to "10L" was to "7C"; 7 8 (10) In clause 12: 9 10 (a) by inserting "granted under or pursuant to this Agreement 11 or held pursuant to this Agreement" after "any lease 12 sublease licence or other title"; 13 14 (b) by inserting "or held pursuant hereto" before "shall 15 thereupon determine"; 16 17 (c) in paragraph (a) by deleting "occupied by the Company" 18 and substituting "the subject of any lease licence easement 19 or other title granted under or pursuant to this Agreement 20 or held pursuant to this Agreement; 21 22 (d) in paragraph (c) by: 23 24 (i) inserting "granted under or pursuant to this 25 Agreement or held pursuant to this Agreement" after 26 "any lease sublease licence or other title"; and 27 28 (ii) inserting "or held pursuant thereto" after "granted 29 thereunder or pursuant thereto"; 30 31 (11) by deleting clause 16; and 32 33 (12) by inserting after the Second Schedule the following schedules: 34 35 page 145 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 "THIRD SCHEDULE 2 3 WESTERN AUSTRALIA 4 5 IRON ORE (HAMERSLEY RANGE) AGREEMENT 6 ACT AMENDMENT ACT 1968 7 8 MINING ACT 1978 9 10 MISCELLANEOUS LICENCE FOR A RAILWAY 11 AND OTHER PURPOSES 12 13 14 No. MISCELLANEOUS LICENCE [ ] 15 16 WHEREAS by the Agreement (hereinafter called "the Agreement") 17 approved by and scheduled to the Iron Ore (Hamersley Range) 18 Agreement Act Amendment Act 1968, as from time to time added to, 19 varied or amended, the State agreed to grant to [ ] (hereinafter with 20 its successors and permitted assigns called "the Company") a 21 miscellaneous licence for the construction operation and maintenance of 22 a Railway (as defined in clause 7E(1) of the Agreement and otherwise as 23 provided in the Agreement) and, if applicable, other purposes AND 24 WHEREAS the Company pursuant to clause 7E(6)(a) of the Agreement 25 has made application for the said licence; 26 27 NOW in consideration of the rents reserved by and the provisions of the 28 Agreement and in pursuance of the Iron Ore (Hamersley Range) 29 Agreement Act Amendment Act 1968, as from time to time added to, 30 varied or amended, the Company is hereby granted by this licence 31 authority to conduct on the land the subject of this licence as more 32 particularly delineated and described from time to time in the Schedule 33 hereto all activities (including the taking of stone, sand, clay and gravel, 34 the provision of temporary accommodation facilities for the railway 35 workforce in accordance with the Agreement and, subject to the Rights 36 in Water and Irrigation Act 1914 (WA), the operation of water bores) 37 necessary for the planning, design, construction, commissioning, 38 operation and maintenance on the land the subject of this licence of the 39 Railway and Additional Infrastructure (as defined in clause 7E(1) of the 40 Agreement) and access roads to be located on the land the subject of this page 146 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 licence in accordance with the provisions of the Agreement and 2 proposals approved under the Agreement, for the term of 50 years from 3 the date hereof (subject to the sooner determination of the term upon the 4 determination of the Agreement) and upon and subject to the terms 5 covenants and conditions set out in the Agreement and the Mining Act 6 1978 as it applies to this licence, and any amendments to the Agreement 7 and the Mining Act 1978 from time to time and to the terms and 8 conditions (if any) now or hereafter endorsed hereon and the payment of 9 rentals in respect of this licence in accordance with clause 7E(6)(a)(i) of 10 the Agreement PROVIDED ALWAYS that this licence shall not be 11 determined or forfeited otherwise than in accordance with the 12 Agreement. 13 14 In this licence: 15 16 - If the Company be more than one the liability of the Company 17 hereunder shall be joint and several. 18 19 - Reference to an Act includes all amendments to that Act for the 20 time being in force and also any Act passed in substitution 21 therefore or in lieu thereof and to the regulations and by-laws of the 22 time being in force thereunder. 23 24 - Reference to "the Agreement" means such agreement as from time 25 to time added to, varied or amended. 26 27 - The terms "approved proposals", "Railway", "Railway Operation 28 Date", and "Railway spur line" have the meanings given in the 29 Agreement. 30 31 ENDORSEMENTS AND CONDITIONS 32 33 Endorsements 34 35 1. This licence is granted in accordance with proposals submitted on 36 [ ], and approved by the Minister (as defined in the Agreement) 37 on [ ], under the Agreement. 38 page 147 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 2. The Company is permitted to, in accordance with approved 2 proposals, take stone, sand, clay and gravel from the land the 3 subject of this licence for the construction, operation and 4 maintenance of the Railway (including any Railway spur line) 5 constructed within or approved for construction within the area of 6 land the subject of this licence. 7 8 3. Notwithstanding the Mining Act 1978, no royalty shall be payable 9 under the Mining Act 1978 in respect of stone, sand, clay and 10 gravel which the Company is permitted by the Agreement to 11 obtain from the land the subject of this licence. 12 13 4. [Any further endorsement which the Minister for Mines may, 14 consistent with the provisions of the Agreement, determines and 15 thereafter impose in respect of this licence including during the 16 term of the Agreement.] 17 18 Conditions 19 20 1. (a) Except as provided in paragraph (b), the Company 21 shall within 2 years after the Railway Operation Date 22 surrender in accordance with the provisions of the 23 Mining Act 1978 the area of this licence down to a 24 maximum of 100 metres width or as otherwise 25 approved by the Minister (as defined in the 26 Agreement) for the safe operation of the Railway then 27 constructed or approved for construction under 28 approved proposals. 29 30 (b) Paragraph (a) shall not apply to land the subject of 31 this licence that was included in this licence pursuant 32 to clause 7E(6)(h) or clause 7E(6)(i) of the 33 Agreement. 34 35 2. The Company shall as soon as possible after the construction 36 of a Railway spur line or of an expansion or extension 37 thereof as the case may be surrender in accordance with the 38 Mining Act 1978 the land the subject of this licence that was 39 included in this licence pursuant to clause 7E(6)(h) of the 40 Agreement for the purpose of such construction down to a page 148 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 maximum of 100 metres in width or as otherwise approved 2 by the Minister (as defined in the Agreement) for the safe 3 operation of that Railway spur line or expansion or 4 extension thereof as the case may be then constructed or 5 approved for construction under approved proposals. 6 7 3. [Any further conditions which the Minister for Mines may, 8 consistent with the provisions of the Agreement, determines 9 and thereafter impose in respect of this licence including 10 during the term of the Agreement.] 11 12 SCHEDULE 13 14 Land description 15 16 Locality: 17 Mineral Field 18 Area: 19 20 DATED at Perth this day of . 21 22 MINISTER FOR MINES 23 24 25 FOURTH SCHEDULE 26 27 WESTERN AUSTRALIA 28 29 IRON ORE (HAMERSLEY RANGE) AGREEMENT ACT 30 AMENDMENT ACT 1968 31 32 MINING ACT 1978 33 34 MISCELLANEOUS LICENCE FOR A LATERAL ACCESS ROAD 35 36 37 No. MISCELLANEOUS LICENCE [ ] 38 39 WHEREAS by the Agreement (hereinafter called "the Agreement") 40 approved by and scheduled to the Iron Ore (Hamersley Range) page 149 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 Agreement Act Amendment Act 1968, as from time to time added to, 2 varied or amended, the State agreed to grant to [ ] (hereinafter with 3 its successors and permitted assigns called "the Company") a 4 miscellaneous licence for the construction use and maintenance of a 5 Lateral Access Road (as defined in the Agreement) AND WHEREAS 6 the Company pursuant to clause 7E(6)(a)(ii) of the Agreement has made 7 application for the said licence; 8 9 NOW in consideration of the rents reserved by and the provisions of the 10 Agreement and in pursuance of the Iron Ore (Hamersley Range) 11 Agreement Act Amendment Act 1968, as from time to time added to, 12 varied or amended, the Company is hereby authorised to construct use 13 and maintain a road on the land more particularly delineated and 14 described from time to time in the Schedule hereto in accordance with 15 the provisions of the Agreement and proposals approved under the 16 Agreement for a term of 4 years commencing on the date hereof (subject 17 to the sooner determination of the term upon the cessation or 18 determination of the Agreement) and for the purposes and upon and 19 subject to the terms covenants and conditions set out in the Agreement 20 and the Mining Act 1978 as it applies to this licence, and any 21 amendments to the Agreement and the Mining Act 1978 from time to 22 time and to the terms and conditions (if any) now or hereafter endorsed 23 hereon and the payment of rentals in respect of this licence in 24 accordance with clause 7E(6)(a)(ii) of the Agreement PROVIDED 25 ALWAYS that this licence shall not be determined or forfeited 26 otherwise than in accordance with the Agreement. 27 28 In this licence: 29 30 - If the Company be more than one the liability of the Company 31 hereunder shall be joint and several. 32 33 - Reference to an Act includes all amendments to that Act for the 34 time being in force and also any Act passed in substitution 35 therefore or in lieu thereof and to the regulations and by-laws of 36 the time being in force thereunder. 37 38 - Reference to "the Agreement" means such agreement as from time 39 to time added to, varied or amended. 40 page 150 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 ENDORSEMENTS AND CONDITIONS 2 3 Endorsements 4 5 1. This licence is granted in accordance with proposals submitted on 6 [ ], and approved by the Minister (as defined in the Agreement) 7 on [ ], under the Agreement. 8 9 2. [Any further endorsement which the Minister for Mines may, 10 consistent with the provisions of the Agreement, determines and 11 thereafter impose in respect of this licence including during the 12 term of the Agreement.] 13 14 Conditions 15 16 [Such conditions which the Minister for Mines may, consistent with the 17 provisions of the Agreement, determines and thereafter impose in respect 18 of the licence, including during the term of the Agreement.] 19 20 SCHEDULE 21 22 Description of land 23 24 Locality: 25 Mineral Field: 26 Area: 27 28 DATED at Perth this day of . 29 30 MINISTER FOR MINES 31 page 151 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 FIFTH SCHEDULE 2 3 WESTERN AUSTRALIA 4 5 IRON ORE (HAMERSLEY RANGE) AGREEMENT 6 ACT AMENDMENT ACT 1968 7 8 MINING ACT 1978 9 10 MISCELLANEOUS LICENCE FOR A LATERAL ACCESS ROAD 11 12 13 No. MISCELLANEOUS LICENCE [ ] 14 15 WHEREAS by the Agreement (hereinafter called "the Agreement") 16 approved by and scheduled to the Iron Ore (Hamersley Range) 17 Agreement Act Amendment Act 1968, as from time to time added to, 18 varied or amended, the State agreed to grant to [ ] (hereinafter with 19 its successors and permitted assigns called "the Company") a 20 miscellaneous licence for the construction use and maintenance of a 21 Lateral Access Road (as defined in the Agreement) AND WHEREAS 22 the Company pursuant to clause 7E(6)(b) of the Agreement has made 23 application for the said licence; 24 25 NOW in consideration of the rents reserved by and the provisions of the 26 Agreement and in pursuance of the Iron Ore (Hamersley Range) 27 Agreement Act Amendment Act 1968, as from time to time added to, 28 varied or amended, the Company is hereby authorised to construct use 29 and maintain a road on the land more particularly delineated and 30 described from time to time in the Schedule hereto in accordance with 31 the provisions of the Agreement and proposals approved under the 32 Agreement for a term of 4 years commencing on the date hereof (subject 33 to the sooner determination of the term upon the cessation or 34 determination of the Agreement) and for the purposes and upon and 35 subject to the terms covenants and conditions set out in the Agreement 36 and the Mining Act 1978 as it applies to this licence, and any 37 amendments to the Agreement and the Mining Act 1978 from time to 38 time and to the terms and conditions (if any) now or hereafter endorsed 39 hereon and the payment of rentals in respect of this licence in 40 accordance with clause 7E(6)(b) of the Agreement PROVIDED page 152 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 ALWAYS that this licence shall not be determined or forfeited 2 otherwise than in accordance with the Agreement. 3 4 In this licence: 5 6 - If the Company be more than one the liability of the Company 7 hereunder shall be joint and several. 8 9 - Reference to an Act includes all amendments to that Act for the 10 time being in force and also any Act passed in substitution 11 therefore or in lieu thereof and to the regulations and by-laws of the 12 time being in force thereunder. 13 14 - Reference to "the Agreement" means such agreement as from time 15 to time added to, varied or amended. 16 17 ENDORSEMENTS AND CONDITIONS 18 19 Endorsements 20 21 1. This licence is granted in accordance with proposals submitted on [ 22 ], and approved by the Minister (as defined in the Agreement) on [ 23 ], under the Agreement. 24 25 2. [Any further endorsement which the Minister for Mines may, 26 consistent with the provisions of the Agreement, determines and 27 thereafter impose in respect of this licence including during the 28 term of the Agreement.] 29 30 Conditions 31 32 [Such conditions which the Minister for Mines may, consistent with the 33 provisions of the Agreement, determines and thereafter impose in respect 34 of the licence, including during the term of the Agreement.] 35 page 153 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 2 Iron Ore (Hamersley Range) Agreement Act 1963 amended s. 6 1 2 SCHEDULE 3 4 Description of land 5 6 Locality: 7 Mineral Field: 8 Area: 9 10 DATED at Perth this day of . 11 12 MINISTER FOR MINES" 13 14 15 16 17 18 19 20 21 page 154 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hamersley Range) Agreement Act 1963 amended Part 2 s. 6 1 EXECUTED as a deed. 2 SIGNED by THE HONOURABLE ) 3 COLIN JAMES BARNETT ) [Signature] 4 in the presence of: ) 5 [Signature] STEPHEN WOOD 6 7 8 THE COMMON SEAL of ) HAMERSLEY IRON PTY. LIMITED ) ACN 004 558 276 was hereunto affixed ) [C.S.] by authority of the Directors in the ) presence of: ) 9 [Signature] ALAN DAVIES Director 10 [Signature] HELEN FERNIHOUGH Secretary 11 page 155 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 7 1 Part 3 -- Iron Ore (Robe River) Agreement 2 Act 1964 amended 3 7. Act amended 4 This Part amends the Iron Ore (Robe River) Agreement 5 Act 1964. 6 8. Section 2 amended 7 In section 2 insert in alphabetical order: 8 9 the sixth variation agreement means the agreement a 10 copy of which is set forth in the Seventh Schedule to 11 this Act; 12 13 9. Sections 4B and 4C inserted 14 After section 4A insert: 15 16 4B. Sixth variation agreement 17 (1) The sixth variation agreement is ratified. 18 (2) The implementation of the sixth variation agreement is 19 authorised. 20 (3) Without limiting or otherwise affecting the application 21 of the Government Agreements Act 1979, the sixth 22 variation agreement is to operate and take effect 23 despite any other Act or law. 24 4C. State empowered under clause 9D(9)(a) 25 The State has power in accordance with 26 clause 9D(9)(a) of the Agreement. 27 28 10. Seventh Schedule inserted 29 After the Sixth Schedule insert: 30 page 156 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 Seventh Schedule -- Sixth variation agreement 2 [s. 2] 3 2010 4 5 THE HONOURABLE COLIN JAMES BARNETT 6 PREMIER OF THE STATE OF WESTERN AUSTRALIA 7 8 AND 9 10 ROBE RIVER LIMITED 11 ACN 008 478 493 12 13 ROBE RIVER MINING CO PTY. LIMITED 14 ACN 008 694 246 15 16 MITSUI IRON ORE DEVELOPMENT PTY. LTD. 17 ACN 008 734 361 18 19 NORTH MINING LIMITED 20 ACN 000 081 434 21 22 NIPPON STEEL AUSTRALIA PTY. LTD. 23 ACN 001 445 049 24 25 SUMITOMO METAL AUSTRALIA PTY. LTD. 26 ACN 001 444 604 27 28 29 IRON ORE (ROBE RIVER) AGREEMENT 1964 30 31 RATIFIED VARIATION AGREEMENT 32 33 34 35 36 [Solicitor's details] 37 38 39 40 page 157 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 THIS AGREEMENT is made this 17th day of November 2010 2 3 4 BETWEEN 5 6 7 THE HONOURABLE COLIN JAMES BARNETT MLA., Premier of the 8 State of Western Australia acting for and on behalf of the said State and 9 instrumentalities thereof from time to time (State) 10 11 AND 12 ROBE RIVER LIMITED ACN 008 478 493 of Level 33, 120 Collins Street, 13 Melbourne, Victoria (RRL) 14 15 AND 16 17 ROBE RIVER MINING CO PTY. LIMITED ACN 008 694 246 of Level 27, 18 Central Park, 152 - 158 St George's Terrace, Perth, Western Australia (RRMC), 19 20 MITSUI IRON ORE DEVELOPMENT PTY. LTD. ACN 008 734 361 of 21 Level 26, Exchange Plaza, 2 The Esplanade, Perth, Western Australia (Mitsui), 22 23 NORTH MINING LIMITED ACN 000 081 434 of Level 33, 120 Collins 24 Street, Melbourne, Victoria (NML), 25 26 NIPPON STEEL AUSTRALIA PTY. LTD. ACN 001 445 049 of Level 24, 1 27 York Street, Sydney, New South Wales, SUMITOMO METAL AUSTRALIA 28 PTY. LTD. ACN 001 444 604 of Level 39, Australia Square, 264 George 29 Street, Sydney, New South Wales, and the said MITSUI IRON ORE 30 DEVELOPMENT PTY. LTD. which 3 companies carry on business under the 31 name of Cape Lambert Iron Associates (CLIA), and 32 33 the said NIPPON STEEL AUSTRALIA PTY LTD and SUMITOMO 34 METAL AUSTRALIA PTY LTD which 2 companies carry on business 35 together under the name Pannawonica Iron Associates (PIA). 36 37 (RRMC, Mitsui, NML, CLIA and PIA are collectively referred to in this 38 Agreement as the Robe Participants.) 39 page 158 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 RECITALS 2 A. The State, RRL and the Robe Participants are now the parties to the 3 agreement dated 18 November 1964, approved by and scheduled to the 4 Iron Ore (Robe River) Agreement Act 1964 and which as subsequently 5 added to, varied or amended is referred to in this Agreement as the 6 "Principal Agreement". 7 B. The parties wish to vary the Principal Agreement. 8 9 Operative provisions 10 11 1. Subject to the context, the words and expressions used in this Agreement 12 have the same meanings respectively as they have in and for the purpose 13 of the Principal Agreement. 14 15 2. The State shall introduce and sponsor a Bill in the Parliament of Western 16 Australia to ratify this Agreement and shall endeavour to secure its 17 passage as an Act prior to 31 December 2010 or such later date as the 18 parties may agree. 19 20 3. (a) Clause 4 does not come into operation unless or until an Act passed 21 in accordance with clause 2 ratifies this Agreement. 22 23 (b) If by 30 June 2011, or such later date as may be agreed pursuant to 24 clause 2, clause 4 has not come into operation then unless the 25 parties hereto otherwise agree this Agreement shall cease and 26 determine and none of the parties shall have any claim against the 27 other parties with respect to any matter or thing arising out of or 28 done or performed or omitted to be done or performed under this 29 Agreement. 30 31 4. The Principal Agreement is varied as follows: 32 33 (1) in clause 1: 34 35 (a) by deleting the current definition of "direct shipping ore", 36 "fine ore" and "fines"; page 159 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 (b) by inserting in the appropriate alphabetical positions the 2 following new definitions: 3 "approved proposal" means a proposal approved or 4 determined under this Agreement; 5 "beneficiated ore" means iron ore that has been 6 concentrated or upgraded (otherwise than solely by crushing, 7 screening, separating by hydrocycloning or a similar 8 technology which uses primarily size as a criterion, washing, 9 scrubbing, trommelling or drying or by a combination of 2 10 or more of those processes) by the Company in a plant 11 constructed pursuant to a proposal approved pursuant to an 12 Integration Agreement or in such other plant as is approved 13 by the Minister after consultation with the Minister for 14 Mines and "beneficiation" and "beneficiate" have 15 corresponding meanings; 16 "EP Act" means the Environmental Protection Act 1986 17 (WA); 18 "fine ore" means iron ore (not being beneficiated ore or 19 pisolite fine ore) which is screened and will pass through a 20 6.3 millimetre mesh screen; 21 22 "Integration Agreement" means: 23 24 (a) the agreement approved by and scheduled to the Iron 25 Ore (Hamersley Range) Agreement Act 1963, as from 26 time to time added to, varied or amended; or 27 28 (b) the agreement approved by and scheduled to the Iron 29 Ore (Robe River) Agreement Act 1964, as from time 30 to time added, to varied or amended; or 31 32 (c) the agreement approved by and scheduled to the Iron 33 Ore (Hamersley Range) Agreement Act Amendment 34 Act 1968, as from time to time added to, varied or 35 amended; or 36 page 160 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 (d) the agreement ratified by and scheduled to the Iron 2 Ore (Mount Bruce) Agreement Act 1972, as from time 3 to time added to, varied or amended; or 4 5 (e) the agreement ratified by and scheduled to the Iron 6 Ore (Hope Downs) Agreement Act 1992, as from time 7 to time added to, varied or amended; or 8 9 (f) the agreement ratified by and scheduled to the Iron 10 Ore (Yandicoogina) Agreement Act 1996, as from 11 time to time added to, varied or amended; or 12 13 (g) the agreement approved by and scheduled to the Iron 14 Ore (Mount Newman) Agreement Act 1964, as from 15 time to time added to, varied or amended; or 16 17 (h) the agreement approved by and scheduled to the Iron 18 Ore (Mount Goldsworthy) Agreement Act 1964, as 19 from time to time added to, varied or amended; or 20 21 (i) the agreement ratified by and scheduled to the Iron 22 Ore (Goldsworthy-Nimingarra) Agreement Act 1972, 23 as from time to time added to, varied or amended; or 24 25 (j) the agreement authorised by and as scheduled to the 26 Iron Ore (McCamey's Monster) Agreement 27 Authorisation Act 1972, as from time to time added to, 28 varied or amended; or 29 30 (k) the agreement ratified by and scheduled to the Iron 31 Ore (Marillana Creek) Agreement Act 1991, as from 32 time to time added to, varied or amended; 33 34 "Integration Proponent" means in relation to an Integration 35 Agreement, "the Company" or "the Joint Venturers" as the 36 case may be as defined in, and for the purpose of, that 37 Integration Agreement; 38 "iron ore" includes, without limitation, beneficiated ore; 39 page 161 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 "laws relating to native title" means laws applicable from 2 time to time in the said State in respect of native title and 3 includes the Native Title Act 1993 (Commonwealth); 4 5 "lump ore" means iron ore (not being beneficiated ore or 6 pisolite fine ore) which is screened and will not pass through 7 a 6.3 millimetre mesh screen; 8 "metallised agglomerates" means products resulting from 9 the reduction of iron ore by any method whatsoever and 10 having an iron content of not less than 85%; 11 "Minister for Mines" means the Minister in the 12 Government of the said State for the time being responsible 13 (under whatsoever title) for the administration of the Mining 14 Act 1978 (WA); 15 "pisolite fine ore" means iron ore (not being beneficiated 16 ore) derived from channel iron deposits that appear to be 17 chemically precipitated sedimentary deposits comprised of a 18 pisolitic texture of hematite grains rimmed with geothite in a 19 geothitic matrix and: 20 (a) having a product grade loss on ignition of 8.5% or 21 greater; and 22 (b) which will pass through an 9.5 millimetre mesh 23 screen; 24 25 "Related Entity" means a company in which: 26 27 (a) as at 21 June 2010; and 28 29 (b) after 21 June 2010, with the approval of the Minister, 30 31 a direct or (through a subsidiary or subsidiaries within the 32 meaning of the Corporations Act 2001 (Commonwealth)) 33 indirect shareholding of 20% or more is held by: 34 35 (c) Rio Tinto Limited ABN 96 004 458 404; or 36 page 162 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 (d) BHP Billiton Limited ABN 49 004 028 077; or 2 3 (e) those companies referred to in paragraphs (c) and (d) 4 in aggregate; 5 6 "variation date" means the date on which clause 4 of the 7 variation agreement made on or about 17 November 2010 8 between the State and the Company comes into operation; 9 and 10 "washing" means a process of separation by water using 11 only size as a criterion; 12 (c) in the definition of "agreed or determined" by: 13 (i) deleting "assessed at" and substituting "assessed on"; 14 and 15 (ii) deleting all the words after "have regard to" and 16 substituting a colon followed by: 17 "(i) in the case of iron ore initially sold at cost 18 pursuant to paragraph (B) of the proviso to 19 clause 9(2)(e), the prices for that type of iron 20 ore prevailing at the time the price for such iron 21 ore was agreed between the arm's length 22 purchaser referred to in paragraph (B)(iii) of 23 that proviso and the seller in relation to the type 24 of sale and the relevant international seaborne 25 iron ore market into which such iron ore was 26 sold and where prices beyond the deemed f.o.b. 27 point are being considered the deductions 28 mentioned in the definition of f.o.b. value; and 29 30 (ii) in any other case, the prices for that type of iron 31 ore prevailing at the time the price for such iron 32 ore was agreed between the Company and the 33 purchaser in relation to the type of sale and the 34 market into which such iron ore was sold and 35 where prices beyond the deemed f.o.b. point are page 163 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 being considered the deductions mentioned in 2 the definition of f.o.b. value;"; 3 (d) in the definition of "Company's wharf" by inserting "and in 4 clauses 9(2)(e) and (f) also any additional wharf constructed 5 by the Company pursuant to this Agreement" before the 6 semi colon; 7 (e) in the definition of "f.o.b. value" by: 8 (i) in paragraph (i): 9 (A) inserting "subject to paragraph (ii)", before "in 10 the case of"; and 11 (B) deleting "assessed as" and substituting 12 "assessed on"; 13 (ii) renumbering paragraph (ii) as paragraph (iii); and 14 (iii) inserting after paragraph (i) the following new 15 paragraph: 16 17 "(ii) in the case of iron ore initially sold at cost 18 pursuant to paragraph (B) of the proviso to 19 clause 9(2)(e), the price which is payable for 20 the iron ore by the arm's length purchaser as 21 referred to in paragraph (B)(iii) of that proviso 22 or, where the Minister considers, following 23 advice from the appropriate Government 24 department, that the price payable in respect of 25 the iron ore does not represent a fair and 26 reasonable market value for that type of iron ore 27 assessed on an arm's length basis in the relevant 28 international seaborne iron ore market, such 29 amount as is agreed or determined as 30 representing such a fair and reasonable market 31 value, less all duties, taxes, costs and charges 32 referred to in paragraph (i) above; and"; 33 (f) in the definition of "loading port" by: page 164 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 (i) renumbering the existing paragraph (c) as paragraph 2 (e); and 3 (ii) inserting after paragraph (b) the following new 4 paragraphs: 5 "(c) the Port of Port Hedland; or 6 (d) any other port constructed after the variation 7 date under an Integration Agreement;"; 8 (g) in the definition of "mineral lease" by deleting "clause 10A" 9 and substituting "clauses 9A or 10A"; 10 (h) in the definition of "secondary processing" by deleting 11 "concentration or other beneficiation of iron ore other than 12 by crushing or screening" and substituting "beneficiation of 13 iron ore"; 14 (i) in the sentence beginning "marginal notes", by inserting 15 "and clause notes" after "marginal notes"; and 16 (j) by inserting at the end of clause 1 the following new 17 paragraphs: 18 19 "Words in the singular shall include the plural and words in 20 the plural shall include the singular according to the 21 requirements of the context. 22 23 Nothing in this Agreement shall be construed: 24 25 (a) to exempt the Company from compliance with any 26 requirement in connection with the protection of the 27 environment arising out of or incidental to its 28 activities under this Agreement that may be made by 29 or under the EP Act; or 30 31 (b) to exempt the State or the Company from compliance 32 with or to require the State or the Company to do 33 anything contrary to any laws relating to native title or 34 any lawful obligation or requirement imposed on the page 165 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 State or the Company as the case may be pursuant to 2 any laws relating to native title; or 3 4 (c) to exempt the Company from compliance with the 5 provisions of the Aboriginal Heritage Act 1972 6 (WA)."; 7 8 (2) by deleting clauses 7A and 7AB and substituting the following new 9 clauses: 10 11 "7A. (1) If the Company, at any time during the continuance of 12 this Agreement after the variation date, desires to 13 significantly modify, expand or otherwise vary its 14 activities carried on pursuant to this Agreement (other 15 than under clauses 7AC, 7C or 9D) beyond those 16 activities specified in any proposals approved 17 pursuant to clause 6 it shall give notice of such desire 18 to the Minister and within 2 months thereafter shall 19 submit to the Minister detailed proposals in respect of 20 all matters covered by such notice and such of the 21 other matters mentioned in clause 5(2)(a) as the 22 Minister may require. 23 24 (2) A proposal may with the consent of the Minister 25 (except in relation to an Integration Agreement) and 26 that of any parties concerned (being in respect of an 27 Integration Agreement the Integration Proponent for 28 that agreement) provide for the use by the Company 29 of any works installations or facilities constructed or 30 established under a Government agreement. 31 32 (3) Each of the proposals pursuant to subclause (1) may 33 with the approval of the Minister, or shall if so 34 required by the Minister, be submitted separately and 35 in any order as to any matter or matters in respect of 36 which such proposals are required to be submitted. 37 38 (4) At the time when the Company submits the said 39 proposals it shall submit to the Minister details of any 40 services (including any elements of the project 41 investigations, design and management) and any page 166 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 works materials, plant, equipment and supplies that it 2 proposes to consider obtaining from or having carried 3 out or permitting to be obtained from or carried out 4 outside Australia together with its reasons therefor 5 and shall, if required by the Minister, consult with the 6 Minister with respect thereto. 7 8 (5) The Company may withdraw its proposals pursuant to 9 subclause (1) at any time before approval thereof, or 10 where any decision in respect thereof is referred to 11 arbitration as referred to in clause 7AB, within 3 12 months after the award by notice to the Minister that it 13 shall not be proceeding with the same. 14 15 Consideration of Company's proposals under clause 7A 16 17 7AB.(1) In respect of each proposal pursuant to subclause (1) 18 of clause 7A the Minister shall: 19 20 (a) subject to the limitations set out below, refuse 21 to approve the proposal (whether it requests the 22 grant of new tenure or not) if the Minister is 23 satisfied on reasonable grounds that it is not in 24 the public interest for the proposal to be 25 approved; or 26 27 (b) approve of the proposal without qualification or 28 reservation; or 29 30 (c) defer consideration of or decision upon the 31 same until such time as the Company submits a 32 further proposal or proposals in respect of some 33 other of the matters mentioned in clause 7A(1) 34 not covered by the said proposal; or 35 36 (d) require as a condition precedent to the giving of 37 his approval to the said proposal that the 38 Company make such alteration thereto or 39 comply with such conditions in respect thereto 40 as he thinks reasonable, and in such a case the page 167 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 Minister shall disclose his reasons for such 2 conditions, 3 4 PROVIDED ALWAYS that where implementation of 5 any proposals hereunder has been approved pursuant 6 to the EP Act subject to conditions or procedures, any 7 approval or decision of the Minister under this clause 8 shall if the case so requires incorporate a requirement 9 that the Company make such alterations to the 10 proposals as may be necessary to make them accord 11 with those conditions or procedures. 12 13 In considering whether to refuse to approve a proposal 14 the Minister is to assess whether or not the 15 implementation of the proposal by itself, or together 16 with any one or more of the other submitted 17 proposals, will: 18 19 (i) detrimentally affect economic and orderly 20 development in the said State, including 21 without limitation, infrastructure development 22 in the said State; or 23 24 (ii) be contrary to or inconsistent with the planning 25 and development policies and objectives of the 26 State; or 27 28 (iii) detrimentally affect the rights and interests of 29 third parties; or 30 31 (iv) detrimentally affect access to and use by others 32 of the lands the subject of any grant or proposed 33 grant to the Company. 34 35 The right to refuse to approve a proposal conferred by 36 paragraph (a) may only be exercised in respect of a 37 proposal where the Minister is satisfied on reasonable 38 grounds that a purpose of the proposal is the 39 integrated use of works installations or facilities (as 40 defined in subclause (7) of clause 9B for the purpose 41 of that clause) as contemplated by clause 9B. It may page 168 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 not be so exercised in respect of a proposal if pursuant 2 to clause 7AD(5) the Minister, prior to the submission 3 of the proposal, advised the Company in writing that 4 the Minister has no public interest concerns (as 5 defined in that clause) with the single preferred 6 development (as referred to in clause 7AD(5)(a)) the 7 subject of the submitted proposals and those proposals 8 are consistent (as to their substantive scope and 9 content) with the information provided to the Minister 10 pursuant to clause 7AD(5) in respect of that single 11 preferred development. 12 13 (2) The Minister shall within 2 months after receipt of 14 proposals pursuant to clause 7A(1) give notice to the 15 Company of his decision in respect to the proposals, 16 PROVIDED THAT where a proposal is to be assessed 17 under Part IV of the EP Act the Minister shall only 18 give notice to the Company of his decision in respect 19 to the proposal within 2 months after service on him 20 of an authority under section 45(7) of the EP Act. 21 22 (3) If the decision of the Minister is as mentioned in 23 either of paragraphs (a), (c) or (d) of subclause (1) the 24 Minister shall afford the Company full opportunity to 25 consult with him and should it so desire to submit new 26 or revised proposals either generally or in respect to 27 some particular matter. 28 29 (4) If the decision of the Minister is as mentioned in 30 either of paragraphs (c) or (d) of subclause (1) and the 31 Company considers that the decision is unreasonable 32 the Company within 2 months after receipt of the 33 notice mentioned in subclause (2) may elect to refer to 34 arbitration in the manner hereinafter provided the 35 question of the reasonableness of the decision 36 PROVIDED THAT any requirement of the Minister 37 pursuant to the proviso to subclause (1) shall not be 38 referable to arbitration hereunder. A decision of the 39 Minister under paragraph (a) of subclause (1) shall not 40 be referrable to arbitration under this Agreement. 41 page 169 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 (5) If by the award made on the arbitration pursuant to 2 subclause (4) the dispute is decided in favour of the 3 Company the decision shall take effect as a notice by 4 the Minister that he is so satisfied with and approves 5 the matter or matters the subject of the arbitration. 6 7 (6) The Company shall implement the approved proposals 8 in accordance with the terms thereof. 9 10 (7) Notwithstanding clause 14, the Minister may during 11 the implementation of approved proposals approve 12 variations to those proposals."; 13 14 (3) by inserting after clause 7AC the following new clause: 15 16 "Notification of possible proposals 17 18 7AD. (1) If the Company, upon completion of a pre-feasibility 19 study in respect of any matter that would require the 20 submission and approval of proposals pursuant to this 21 Agreement (being proposals which will have as their 22 purpose, or one of their purposes, the integrated use of 23 works installations or facilities as contemplated by 24 clause 9B) for the matter to be undertaken, intends to 25 further consider the matter with a view to possibly 26 submitting such proposals it shall promptly notify the 27 Minister in writing giving reasonable particulars of 28 the relevant matter. 29 30 (2) Within one (1) month after receiving the notification 31 the Minister may, if the Minister so wishes, inform the 32 Company of the Minister's views of the matter at that 33 stage. 34 35 (3) If the Company is informed of the Minister's views, it 36 shall take them into account in deciding whether or 37 not to proceed with its consideration of the matter and 38 the submission of proposals. 39 40 (4) Neither the Minister's response nor the Minister 41 choosing not to respond shall in any way limit, page 170 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 prejudice or otherwise affect the exercise by the 2 Minister of the Minister's powers, or the performance 3 of the Minister's obligations, under this Agreement or 4 otherwise under the laws from time to time of the said 5 State. 6 7 (5) (a) This subclause applies where the Company has 8 settled upon a single preferred development a 9 purpose of which is the integrated use of works 10 installations or facilities (as defined in 11 subclause (7) of clause 9B for the purpose of 12 that clause) as contemplated by clause 9B. 13 14 (b) For the purpose of this subclause "public 15 interest concerns" means any concern that 16 implementation of the single preferred 17 development or any part of it will: 18 19 (i) detrimentally affect economic and 20 orderly development in the said State, 21 including without limitation, 22 infrastructure development in the said 23 State; or 24 25 (ii) be contrary to or inconsistent with the 26 planning and development policies and 27 objectives of the State; or 28 29 (iii) detrimentally affect the rights and 30 interests of third parties; or 31 32 (iv) detrimentally affect access to and use by 33 others of lands the subject of any grant or 34 proposed grant to the Company. 35 36 (c) At any time prior to submission of proposals 37 the Company may give to the Minister notice of 38 its single preferred development and request the 39 Minister to confirm that the Minister has no 40 public interest concerns with that single 41 preferred development. page 171 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 2 (d) The Company shall furnish to the Minister with 3 its notice reasonable particulars of the single 4 preferred development including, without 5 limitation: 6 7 (i) as to the matters that would be required 8 to be addressed in submitted proposals; 9 and 10 11 (ii) its progress in undertaking any feasibility 12 or other studies or matters to be 13 completed before submission of 14 proposals; and 15 16 (iii) its timetable for obtaining required 17 statutory and other approvals in relation 18 to the submission and approval of 19 proposals; and 20 21 (iv) its tenure requirements. 22 23 (e) If so required by the Minister, the Company will 24 provide to the Minister such further information 25 regarding the single preferred development as the 26 Minister may require from time to time for the 27 purpose of considering the Company's request and 28 also consult with the Minister or representatives or 29 officers of the State in regard to the single preferred 30 development. 31 32 (f) Within 2 months after receiving the notice (or if the 33 Minister requests further information, within 2 months 34 after the provision of that information) the Minister 35 must advise the Company: 36 37 (i) that the Minister has no public interest concerns 38 with the single preferred development; or 39 40 (ii) that he is not then in a position to advise that he 41 has no public interest concerns with the single page 172 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 preferred development and the Minister's 2 reasons in that regard. 3 4 (g) If the Minister gives the advice mentioned in 5 paragraph (f)(ii) the Company may, should it so 6 desire, give a further request to the Minister in respect 7 of a revised or alternate single preferred development 8 and the provisions of this subclause shall apply 9 mutatis mutandis thereto."; 10 11 (4) in clause 8(1)(b) by: 12 13 (a) in the second line deleting "clause 6" and substituting 14 "clauses 6 or 7AB"; 15 (b) in subparagraph (i): 16 (i) inserting "or cause to be granted" after "granted"; 17 (ii) in the paragraph beginning "at peppercorn rental", 18 deleting "the harbour area"; 19 (iii) inserting after that paragraph the following new 20 paragraph: 21 "at commercial rentals, licence or easement fees as 22 applicable - leases, licences or easements within Port 23 Walcott; and", 24 (iv) inserting ", the Marine and Harbours Act 1981 (WA)" 25 after "Jetties Act 1926"; and 26 (v) inserting "installations or facilities" before "and 27 operations hereunder"; and 28 29 (c) in the proviso following subparagraph (iii): 30 31 (A) deleting "and iron ore concentrates and iron ore 32 pellets" after "all iron ore"; and 33 page 173 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 (B) deleting "or in the case of iron ore or concentrates 2 production as the case may be of the iron or iron ore 3 concentrates or iron ore pellets" and substituting "of 4 the iron ore"; 5 6 (5) by inserting after subclause (3) of clause 8 the following new 7 subclause: 8 9 "(3a) The provisions of subclause (1) of this clause shall not 10 operate so as to require the State to grant or vary, or cause to 11 be granted or varied, any lease, licence or other right or title 12 until all processes necessary under any laws relating to 13 native title to enable that grant or variation to proceed, have 14 been completed."; 15 16 (6) by deleting paragraph (e) of clause 9(2) and substituting the 17 following new paragraphs: 18 "(e) ship, or procure the shipment of, all iron ore mined from the 19 mineral lease and sold: 20 21 (i) from the Company's wharf; or 22 23 (ii) from any other wharf in a loading port which wharf 24 has been constructed under an Integration Agreement; 25 or 26 27 (iii) with the Minister's approval given before submission 28 of proposals in that regard, from any other wharf in a 29 loading port which wharf has been constructed under 30 another Government agreement (excluding the 31 Integration Agreements), 32 33 and use its best endeavours to obtain therefor the best price 34 possible having regard to market conditions from time to 35 time prevailing PROVIDED THAT: 36 37 (A) this paragraph shall not apply to iron ore used for 38 secondary processing or for the manufacture of iron 39 or steel in any part of the said State lying north of the 40 twenty sixth parallel of latitude; and page 174 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 2 (B) iron ore from the mineral lease may be sold by the 3 Company prior to or at the time of the shipment 4 under this Agreement at a price equal to the 5 production costs in respect of that iron ore up to the 6 point of sale, if: 7 8 (i) the Minister is notified before the time of 9 shipment that the sale is to be made at cost, 10 providing details of the proposed sale; and 11 12 (ii) the Minister is notified of the proposed 13 arm's length purchaser in the relevant 14 international seaborne iron ore market of the 15 iron ore the subject of the proposed sale at 16 cost; and 17 18 (iii) there is included in the return lodged 19 pursuant to subclause (2)(k) particulars of 20 the transaction in which the ore sold at cost 21 was subsequently purchased in the relevant 22 international seaborne iron ore market by an 23 arm's length purchaser specifying the 24 purchaser, the seller, the price and the date 25 when the sale was agreed between the arm's 26 length purchaser and the seller; and 27 28 (iv) the arm's length purchaser referred to in (iii) 29 above is not then a designated purchaser as 30 referred to in subclause (2)(ea); 31 32 Designated purchaser 33 34 (ea) if required by notice in writing from the Minister, provide 35 the Minister within 30 days after receiving the notice with 36 evidence that the transaction as included in the return 37 pursuant to paragraph (B)(iii) of subclause (2)(e) was a sale 38 in the relevant international seaborne iron ore market to an 39 independent participant in that market. If no evidence is 40 provided or the Minister is not so satisfied on the evidence 41 provided or other information obtained, the Minister may by page 175 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 notice to the Company designate the purchaser to be a 2 designated purchaser and that designation will remain in 3 force unless and until lifted by further notice from the 4 Minister to the Company. For the avoidance of doubt, the 5 parties acknowledge that marketing entities forming part of 6 the corporate group including the Company (or part of the 7 parallel corporate group if the Company is part of a dual- 8 listed corporate structure) are not independent participants 9 for the purposes of this subclause;"; 10 11 (7) by deleting paragraph (j) of clause 9(2) and substituting the 12 following new paragraph: 13 "(j) pay to the State royalty on all iron ore from the mineral lease 14 (other than iron ore shipped solely for testing purposes) as 15 follows: 16 (i) on lump ore and on fine ore and pisolite fine ore not 17 sold or shipped separately as such at the rate of 7.5% 18 of the f.o.b. value; 19 (ii) on fine ore and pisolite fine ore sold or shipped 20 separately as such at the rate of 5.625% of the f.o.b. 21 value; 22 (iii) on beneficiated ore at the rate of 5% of the f.o.b. 23 value; and 24 (iv) on all other iron ore at the rate of 7.5% of the f.o.b. 25 value. 26 Where beneficiated ore is produced from an admixture of iron ore 27 from the mineral lease and iron ore from elsewhere, a portion (and 28 a portion only) of the beneficiated ore so produced being equal to 29 the proportion that the amount of the iron in the iron ore from the 30 mineral lease used in the production of that beneficiated ore bears 31 to the total amount of iron in the iron ore so used shall be deemed 32 to be produced from iron ore from the mineral lease. 33 Where for the purpose of determining f.o.b. value, it is necessary to 34 convert an amount or price to Australian currency, the conversion page 176 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 is to be calculated using a rate (excluding forward hedge or similar 2 contract rates) that has been approved by the Minister at the 3 request of the Company and in the absence of such request as 4 determined by the Minister to be a reasonable rate for the purpose. 5 The provisions of regulation 85AA (Effect of GST etc. on 6 royalties) of the Mining Regulations 1981 (WA) shall apply 7 mutatis mutandis to the calculation of royalties under this clause;"; 8 9 (8) in clause 9(2)(k): 10 (a) by deleting "or iron ore pellets or iron ore concentrates"; 11 (b) by inserting ", and also showing such other information in 12 relation to the abovementioned iron ore as the Minister may 13 from time to time reasonably require in regard to, and to 14 assist in verifying, the calculation of royalties in accordance 15 with paragraph (j)" after "the due date of return"; and 16 17 (c) by deleting all the words after "on the basis of" and 18 substituting a colon followed by: 19 20 "(i) in the case of iron ore initially sold at cost pursuant to 21 paragraph (B) of the proviso to subclause (2)(e), at the 22 price notified pursuant to paragraph (B)(iii) of that 23 proviso; and 24 25 (ii) in any other case, invoices or provisional invoices (as 26 the case may be) rendered by the Company to the 27 purchaser (which invoices the Company shall render 28 without delay simultaneously furnishing copies 29 thereof to the Minister) of such iron ore or on the 30 basis of estimates as agreed or determined, 31 32 and shall from time to time in the next following appropriate 33 return and payment make (by the return and by cash) all 34 such necessary adjustments (and give to the Minister full 35 details thereof) when the f.o.b. values shall have been finally 36 calculated, agreed or determined;"; 37 page 177 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 (9) in clause 9(2)(n): 2 3 (a) in subparagraph (i): 4 5 (i) by deleting "books of account and records (including 6 but not limited to contracts) of the Company" and 7 substituting "books, records, accounts, documents 8 (including contracts), data and information of the 9 Company stored by any means "; 10 11 (ii) by deleting "or iron ore pellets or iron ore 12 concentrates"; and 13 14 (iii) by inserting "(in whatever form)" after "copies or 15 extracts"; and 16 17 (b) by deleting the full stop at the end of subparagraph (ii) and 18 substituting "; and" and the following new subparagraph: 19 20 "(iii) cause to be produced in Perth in the said State all 21 books, records, accounts, documents (including 22 contracts), data and information of the kind referred to 23 in subparagraph (i) to enable the exercise of rights by 24 the Minister or the Minister's nominee under 25 subparagraph (i), regardless of the location in which 26 or by whom those books, records, accounts, 27 documents (including contracts), data and information 28 are stored from time to time."; 29 30 (10) in clause 9(4): 31 32 (a) by deleting paragraph (a) and substituting the following new 33 paragraph: 34 35 "(a) The Company may blend iron ore mined from the 36 mineral lease with any: 37 38 (i) iron ore mined from a mining tenement or other 39 mining title granted under, or pursuant to, an 40 Integration Agreement; or 41 page 178 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 (ii) iron ore mined from a Mining Act 1978 mining 2 lease located in, or proximate to, the Pilbara 3 region of the said State which is held by a 4 Related Entity alone or with a third party or 5 parties (excluding any mining lease granted 6 pursuant to, or held under, a Government 7 agreement); or 8 9 (iii) with the prior approval of the Minister, iron ore 10 mined in, or proximate to, the Pilbara region of 11 the said State under a Government agreement 12 (excluding an Integration Agreement); or 13 14 (iv) with the prior approval of the Minister, iron ore 15 mined by a third party from a Mining Act 1978 16 mining lease located in, or proximate to, the 17 Pilbara region of the said State (excluding 18 under a Government agreement) which has 19 been purchased by an Integration Proponent 20 from the third party."; and 21 22 (b) in paragraph (b): 23 (i) by deleting "there is" and substituting "there 24 are"; 25 (ii) by deleting "between the relevant Government 26 agreements"; and 27 (iii) by deleting "blended and" and substituting 28 "blended as between each of the sources 29 referred to in paragraph (a)"; and 30 (iv) inserting a comma after "processing"; 31 (11) by inserting after clause 9 the following new clauses: 32 33 "Additional areas 34 35 9A. (1) Notwithstanding the provisions of the Mining Act 36 1904 or the Mining Act 1978 the Company may from page 179 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 time to time during the currency of this Agreement 2 apply to the Minister for: 3 4 (a) areas held by the Company or an associated 5 company under a mining tenement granted 6 under the Mining Act 1978; 7 8 (b) the area shaded in red on Plan "A" initialled by 9 or on behalf of the parties for the purpose of 10 identification (and being at the variation date 11 the subject of Mineral Lease 4SA), 12 13 to be included in the mineral lease but so that the total 14 area of the mineral lease, any land that may be 15 included in the mineral lease pursuant to this 16 Agreement and of any other mineral lease or mining 17 lease granted under or pursuant to this Agreement (as 18 aggregated) shall not at any time exceed 777 square 19 kilometres. The Minister shall confer with the 20 Minister for Mines in regard to any such application 21 and if they approve the application the Minister for 22 Mines shall upon the surrender of the relevant mining 23 tenement, or in respect of the area referred to in 24 paragraph (b) above the surrender of that area from 25 Mineral Lease 4SA, include the area the subject 26 thereof in the mineral lease by endorsement subject to 27 such of the conditions of the surrendered mining 28 tenement as the Minister for Mines determines but 29 otherwise subject to the same terms covenants and 30 conditions as apply to the mineral lease (with such 31 apportionment of rents as is necessary) and 32 notwithstanding that the survey of such additional 33 land has not been completed but subject to correction 34 to accord with the survey when completed at the 35 Company's expense. 36 37 (2) The Minister may approve, upon application by the 38 Company from time to time, for the total area referred 39 to in subclause (1) to be increased up to a limit not 40 exceeding 1,000 square kilometres. 41 page 180 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 (3) The Company shall not mine or carry out other 2 activities (other than exploration, bulk sampling and 3 testing) on any area or areas added to the mineral 4 lease pursuant to subclause (1) of this clause unless 5 and until proposals with respect thereto are approved 6 or determined pursuant to the subsequent provisions 7 of this clause. 8 9 (4) If the Company desires to commence mining of iron 10 ore or to carry out any other activities (other than as 11 aforesaid) on the said areas it shall give notice of such 12 desire to the Minister and shall within 2 months of the 13 date of such notice (or thereafter within such extended 14 time as the Minister may allow as hereinafter 15 provided) and subject to the provisions of this 16 Agreement submit to the Minister to the fullest extent 17 reasonably practicable its detailed proposals (which 18 proposals shall include plans where practicable and 19 specifications where reasonably required by the 20 Minister) with respect to such mining or other 21 activities as additional proposals pursuant to clause 22 7A. 23 24 Integrated use of works installations or facilities under the 25 Integration Agreements 26 27 9B. (1) Subject to subclauses (2) to (7) of this clause and to 28 the other provisions of this Agreement, the Company 29 may during the continuance of this Agreement: 30 31 (a) use any existing or new works installations or 32 facilities constructed or held: 33 34 (i) under this Agreement; or 35 36 (ii) under any other Integration Agreement 37 which are made available for such use 38 and during the continuance of such 39 Integration Agreement; or 40 page 181 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 (iii) with the approval of the Minister, under a 2 Government agreement (excluding an 3 Integration Agreement) which are made 4 available for such use and during the 5 continuance of that agreement, 6 7 (wholly or in part) in the activities of the 8 Company carried on by it pursuant to this 9 Agreement including, without limitation, as part 10 of those activities, transporting by railway and 11 shipping from a loading port and undertaking 12 any ancillary and incidental activities in doing 13 so (including, without limitation, blending 14 permitted by clause 9(4)) of: 15 16 (A) iron ore mined from a Mining Act 1978 17 mining lease located in, or proximate to, 18 the Pilbara region of the said State which 19 is held by a Related Entity alone or with 20 a third party or parties (excluding any 21 mining lease granted pursuant to, or held 22 under, a Government agreement); 23 24 (B) with the prior approval of the Minister, 25 iron ore mined in, or proximate to, the 26 Pilbara region of the said State under a 27 Government agreement (excluding an 28 Integration Agreement); or 29 30 (C) with the prior approval of the Minister, 31 iron ore mined by a third party from a 32 Mining Act 1978 mining lease located in, 33 or proximate to, the Pilbara region of the 34 said State (excluding under a 35 Government agreement) which has been 36 purchased by the Company from the third 37 party; 38 39 (D) iron ore mined under an Integration 40 Agreement; 41 page 182 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 (b) make any existing or new works installations or 2 facilities constructed or held under this 3 Agreement available for use (wholly or partly) 4 by another Integration Proponent during the 5 continuance of its Integration Agreement in the 6 activities of that Integration Proponent carried 7 on by it pursuant to its Integration Agreement 8 including, without limitation, as part of those 9 activities, transporting by railway and shipping 10 from a loading port and undertaking any 11 ancillary and incidental activities in doing so 12 (including, without limitation, blending 13 permitted by that Integration Agreement) of: 14 15 (i) iron ore mined from a Mining Act 1978 16 mining lease located in, or proximate to, 17 the Pilbara region of the said State which 18 is held by a Related Entity alone or with 19 a third party or parties (excluding any 20 mining lease granted pursuant to, or held 21 under, a Government agreement); 22 23 (ii) with the prior approval of the Minister 24 (as defined in that Integration 25 Agreement) iron ore mined in, or 26 proximate to, the Pilbara region of the 27 said State under a Government agreement 28 (excluding an Integration Agreement); 29 30 (iii) with the prior approval of the Minister 31 (as defined in that Integration 32 Agreement), iron ore mined by a third 33 party from a Mining Act 1978 mining 34 lease located in, or proximate to, the 35 Pilbara region of the said State 36 (excluding under a Government 37 agreement) which has been purchased by 38 that Integration Proponent from the third 39 party; 40 page 183 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 (iv) iron ore mined under an Integration 2 Agreement; 3 4 (c) make any existing or new works installations or 5 facilities constructed or held under this 6 Agreement available for use (wholly or partly) 7 in connection with operations under: 8 9 (i) a Mining Act 1978 mining lease located 10 in, or proximate to, the Pilbara region of 11 the said State, for iron ore, which is held 12 by a Related Entity alone or with a third 13 party or parties (excluding any mining 14 lease granted pursuant to, or held under a 15 Government agreement); or 16 17 (ii) with the approval of the Minister, a 18 Government agreement (other than an 19 Integration Agreement) for the mining of 20 iron ore in, or proximate to, the Pilbara 21 region of the said State; 22 23 (d) subject to subclause (2), under this Agreement 24 and for the purpose of any use or making 25 available for use referred to in paragraph (a), 26 (b) or (c) connect any existing or new works 27 installations or facilities constructed or held 28 under this Agreement to any existing or new 29 works installations or facilities constructed or 30 held under another Integration Agreement; 31 32 (e) subject to subclause (2), under this Agreement 33 and for the purpose of any use or making 34 available for use referred to in paragraph (a), 35 (b) or (c) or making of any connection referred 36 to in paragraph (d) construct new works 37 installations or facilities and expand modify or 38 otherwise vary any existing and new works 39 installations or facilities constructed or held 40 under this Agreement; 41 page 184 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 (f) allow a railway or rail spur line (not being a 2 railway or rail spur line constructed or held 3 under an Integration Agreement) to be 4 connected to a railway or rail spur line or other 5 works installations or facilities constructed or 6 held under this Agreement for the delivery of 7 iron ore to an Integration Proponent for 8 transport by railway and shipping from a 9 loading port (together with any ancillary and 10 incidental activities in doing so) as part of its 11 activities under its Integration Agreement; and 12 13 (g) allow an electricity transmission line (not being 14 an electricity transmission line constructed or 15 held under an Integration Agreement) to be 16 connected to an electricity transmission line 17 constructed or held under this Agreement for 18 the supply of electricity permitted to be made 19 under an Integration Agreement. 20 21 (2) (a) A connection referred to in clause (1)(d) or 22 construction, expansion, modification or other 23 variation referred to in subclause (1)(e) by the 24 Company shall, to the extent not already 25 authorised under this Agreement as at the 26 variation date, be regarded as a significant 27 modification expansion or other variation of the 28 Company's activities carried on by it pursuant 29 to this Agreement and may only be made in 30 accordance with proposals submitted and 31 approved or determined under this Agreement 32 in accordance with clauses 7A and 7AB or 33 clause 9D as the case may require and 34 otherwise in compliance with the provisions of 35 this Agreement and the laws from time to time 36 of the said State. For the avoidance of doubt, 37 the parties acknowledge that any use or making 38 available for use contemplated by subclause 39 (1)(a), (1)(b) or (1)(c) shall not otherwise than 40 as required by this paragraph (a) require the page 185 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 submission and approval of further proposals 2 under this Agreement. 3 4 (b) The Company shall not be entitled to: 5 6 (i) submit proposals to construct any new 7 port or to establish harbour or port works 8 installations or facilities, or to expand 9 modify or otherwise vary harbour or 10 works installations or facilities otherwise 11 than within the boundaries of Port 12 Walcott; or 13 14 (ii) generate and supply power, take and 15 supply water or dispose of water 16 otherwise than in accordance with the 17 other clauses of this Agreement and 18 subject to any restrictions contained in 19 those clauses; or 20 21 (iii) without limiting subparagraphs (i) and 22 (ii) submit proposals to construct or 23 establish works installations or facilities 24 of a type, or to make expansions, 25 modifications or other variations of 26 works installations or facilities of a type, 27 which in the Minister's reasonable 28 opinion this Agreement, immediately 29 before the variation date, did not permit 30 or contemplate the Company 31 constructing, establishing or making as 32 the case may be otherwise than for 33 integration use as contemplated by 34 subclauses (1)(a), (1)(b) or (1)(c) or as 35 permitted by clause 9D; or 36 37 (iv) submit proposals to make a connection as 38 referred to in subclause (1)(d) or a 39 construction, expansion, modification or 40 other variation as referred to in subclause 41 (1)(e) otherwise than on tenure granted page 186 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 under or pursuant to this Agreement from 2 time to time or held pursuant to this 3 Agreement from time to time; or 4 5 (v) submit proposals to make a connection 6 referred to in subclause (1)(d) or a 7 construction, expansion, modification or 8 other variation as referred to in subclause 9 (1)(e) for the purpose of use as 10 contemplated by subclause (1)(c)(i), if in 11 the reasonable opinion of the Minister the 12 activity which is the subject of the 13 proposals would give to the holder or 14 holders of the relevant Mining Act 1978 15 mining lease the benefit of rights or 16 powers granted to the Company under 17 this Agreement, over and above the right 18 of access to and use of the relevant 19 works, installations or facilities; or 20 21 (vi) submit proposals to make a connection as 22 referred to in subclause (1)(d) or a 23 construction, expansion, modification or 24 other variation as referred to in subclause 25 (1)(e) for the purpose of use as 26 contemplated by subclause (1)(c) and 27 involving the grant of tenure without the 28 prior approval of the Minister; or 29 30 (vii) submit proposals to assign, sublet, 31 transfer or dispose of any works 32 installations or facilities constructed or 33 held under this Agreement or any leases, 34 licences, easements or other titles under 35 or pursuant to this Agreement for any 36 purpose referred to in this clause. 37 38 (c) Notwithstanding the provisions of clauses 7AB 39 and 9D, the Minister may defer consideration 40 of, or a decision upon, a proposal submitted by 41 the Company for a connection as referred to in page 187 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 subclause (1)(d) or a construction, expansion, 2 modification or other variation as referred to in 3 subclause (1)(e), for the purpose of use or 4 making available for use as referred to in 5 subclauses (1)(a) or (1)(b), until relevant 6 corresponding proposals under the relevant 7 Integration Agreement have been submitted and 8 those proposals can be approved under that 9 Integration Agreement concurrently with the 10 Minister's approval under this Agreement of the 11 Company's proposal. 12 13 (3) Any use or making available for use as referred to in 14 subclause (1), or submission of proposals as referred 15 to in subclause (2), in respect of a Related Entity shall 16 be subject to the Company first confirming with the 17 Minister that the Minister is satisfied that the relevant 18 company is a Related Entity. 19 20 (4) The Company shall give the Minister prior written 21 notice of any significant change (other than a 22 temporary one for maintenance or to respond to an 23 emergency) proposed in its use, or in it making 24 available for use, works, installations or facilities as 25 referred to in this clause: 26 27 (a) from that authorised under this Agreement 28 immediately before the variation date; and 29 30 (b) subsequently from that previously notified to 31 the Minister under this subclause, 32 33 as soon as practicable before such change occurs. 34 35 The Company shall also keep the Minister fully 36 informed with respect to any proposed connection as 37 referred to in subclause (1)(f) or (1)(g) or request of 38 the Company for such connection to be allowed. 39 page 188 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 (5) Nothing in this Agreement shall be construed to: 2 3 (a) exempt another Integration Proponent from 4 complying with, or the application of, the 5 provisions of its Integration Agreement; or 6 7 (b) restrict the Company's rights under clause 13. 8 9 For the avoidance of doubt the approval of proposals 10 under this Agreement shall not be construed as 11 authorising another Integration Proponent to 12 undertake any activities under this Agreement or 13 under another Integration Agreement. 14 15 (6) Nothing in this clause shall be construed to exempt 16 the Company from complying with, or the application 17 of, the other provisions of this Agreement including, 18 without limitation, clause 13 and of relevant laws 19 from time to time of the said State. 20 21 (7) For the purpose of this clause "works installations or 22 facilities" means any: 23 24 (a) harbour or port works installations or facilities 25 including, without limitation, stockpiles, 26 reclaimers, conveyors and wharves; 27 28 (b) railway or rail spur lines; 29 30 (c) track structures and systems associated with the 31 operation and maintenance of a railway 32 including, without limitation, sidings, train 33 control and signalling systems, maintenance 34 workshops and terminal yards; 35 36 (d) train loading and unloading works installations 37 or facilities; 38 39 (e) conveyors; 40 41 (f) private roads; page 189 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 2 (g) mine aerodrome and associated aerodrome 3 works installations and facilities; 4 5 (h) iron ore mining, crushing, screening, 6 beneficiation or other processing works 7 installations or facilities; 8 9 (i) mine administration buildings including, 10 without limitation, offices, workshops and 11 medical facilities; 12 13 (j) borrow pits; 14 15 (k) accommodation and ancillary facilities 16 including, without limitation, construction 17 camps and in townsites constructed pursuant to 18 and held under any Integration Agreement; 19 20 (l) water, sewerage, electricity, gas and 21 telecommunications works installations and 22 facilities including, without limitation, 23 pipelines, transmission lines and cables; and 24 25 (m) any other works installations or facilities 26 approved of by the Minister for the purpose of 27 this clause. 28 29 Transfer of rights to shared works installations or facilities 30 31 9C. (1) For the purposes of this clause "Relevant 32 Infrastructure" means any works installations or 33 facilities (as defined in clause 9B(7)): 34 35 (a) constructed or held under another Integration 36 Agreement; 37 38 (b) which the Company is using in its activities 39 pursuant to this Agreement; 40 page 190 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 (c) which the Minister is satisfied (after consulting 2 with the Company and the Integration 3 Proponent for that other Integration 4 Agreement): 5 6 (i) are no longer required by that other 7 Integration Proponent to carry on its 8 activities pursuant to its Integration 9 Agreement because of the cessation of 10 the Integration Proponent's mining 11 operations in respect of which such 12 Relevant Infrastructure was constructed 13 or held or because of any other reason 14 acceptable to the Minister; and 15 16 (ii) are required by the Company to continue 17 to carry on its activities pursuant to this 18 Agreement; and 19 20 (d) in respect of which that other Integration 21 Proponent has notified the Minister it consents 22 to the Company submitting proposals as 23 referred to in subclause (2). 24 25 (2) The Company may as an additional proposal pursuant 26 to clause 7A propose: 27 28 (a) that it be granted a lease licence or other title 29 over the Relevant Infrastructure pursuant to this 30 Agreement subject to and conditional upon the 31 other Integration Proponent surrendering 32 wholly or in part (and upon such terms as the 33 Minister considers reasonable including any 34 variation of terms to address environmental 35 issues) its lease licence or other title over the 36 Relevant Infrastructure; or 37 38 (b) that the other Integration Proponent's lease 39 licence or other title (not being a mineral lease, 40 mining lease or other right to mine title granted 41 under a Government agreement, the Mining Act page 191 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 1904 or the Mining Act 1978) to the Relevant 2 Infrastructure be transferred to this Agreement 3 (to be held by the Company pursuant to this 4 Agreement) with such surrender of land from it 5 and variations of its terms as the Minister 6 considers reasonable for that title to be held 7 under this Agreement including, without 8 limitation, to address environmental issues and 9 outstanding obligations of that other Integration 10 Proponent under its Integration Agreement in 11 respect of that Relevant Infrastructure. 12 13 The provisions of clause 7AB shall mutatis mutandis 14 apply to any such additional proposal. In addition the 15 Company acknowledges that the Minister may require 16 variations of the other Integration Agreement and/or 17 proposals under it or of this Agreement in order to 18 give effect to the matters contemplated by this clause. 19 20 Miscellaneous Licences for Railways 21 22 9D. (1) In this clause subject to the context: 23 24 "Additional Infrastructure" means: 25 26 (a) Train Loading Infrastructure; 27 28 (b) Train Unloading Infrastructure; 29 30 (c) a conveyor, train unloading and other 31 infrastructure necessary for the transport of iron 32 ore, freight goods or other products from the 33 Railway (directly or indirectly) to port facilities 34 within a loading port, 35 36 in each case located outside a Port; 37 38 "LAA" means Land Administration Act 1977 (WA); 39 40 "Lateral Access Roads" has the meaning given in 41 subclause (3)(a)(iv)); page 192 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 2 "Lateral Access Road Licence" means a 3 miscellaneous licence granted pursuant to subclause 4 (6)(a)(ii) or subclause (6)(b) as the case may be and 5 according to the requirements of the context describes 6 the area of land from time to time the subject of that 7 licence; 8 9 "Port" means any port the subject of the Port 10 Authorities Act 1999 (WA) or the Shipping and 11 Pilotage Act 1967 (WA); 12 13 "Private Roads" means Lateral Access Roads and the 14 Company's access roads within a Railway Corridor; 15 16 "Rail Safety Act" means the Rail Safety Act 1998 17 (WA); 18 19 "Railway" means a standard gauge heavy haul railway 20 or railway spur line, located or to be located as the 21 case may be in, or proximate to, the Pilbara region of 22 the said State (but outside the boundaries of a Port) 23 for the transport of iron ore, freight goods and other 24 products together with all railway track, associated 25 track structures including sidings, turning loops, over 26 or under track structures, supports (including supports 27 for equipment or items associated with the use of a 28 railway) tunnels, bridges, train control systems, 29 signalling systems, switch and other gear, 30 communication systems, electric traction 31 infrastructure, buildings (excluding office buildings, 32 housing and freight centres), workshops and 33 associated plant, machinery and equipment and 34 including rolling stock maintenance facilities, terminal 35 yards, depots, culverts and weigh bridges which 36 railway is or is to be (as the case may be) the subject 37 of approved proposals under subclause (4) and 38 includes any expansion or extension thereof outside a 39 Port which is the subject of additional proposals 40 approved in accordance with subclause (5); 41 page 193 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 "Railway Corridor" means, prior to the grant of a 2 Special Railway Licence, the land for the route of the 3 Railway the subject of that licence, access roads 4 (other than Lateral Access Roads), areas from which 5 stone, sand, clay and gravel may be taken, temporary 6 accommodation facilities for the railway workforce, 7 water bores and Additional Infrastructure (if any) 8 which is the subject of a subsisting agreement 9 pursuant to subclause (3)(a) and after the grant of the 10 Special Railway Licence the land from time to time 11 the subject of that Special Railway Licence; 12 13 "Railway Operation" means the construction and 14 operation under this Agreement of the relevant 15 Railway and associated access roads and Additional 16 Infrastructure (if any) within the relevant Railway 17 Corridor and of the associated Lateral Access Roads, 18 in accordance with approved proposals; 19 20 "Railway spur line" means a standard gauge heavy 21 haul railway spur line located or to be located in, or 22 proximate to, the Pilbara region of the said State (but 23 outside a Port) connecting to a Railway for the 24 transport of iron ore, freight goods and other products 25 upon the Railway to (directly or indirectly) a loading 26 port; 27 28 "Railway Operation Date" means the date of the first 29 carriage of iron ore, freight goods or other products 30 over the relevant Railway (other than for construction 31 or commissioning purposes); 32 33 "Railway spur line Operation Date" means the date of 34 the first carriage of iron ore, freight goods or other 35 products over the relevant Railway spur line (other 36 than for construction or commissioning purposes); 37 38 "Special Railway Licence" means the relevant 39 miscellaneous licence for railway and, if applicable, 40 other purposes, granted to the Company pursuant to 41 subclause (6)(a)(i) as varied in accordance with page 194 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 subclause (6)(h) or subclause (6)(i) and according to 2 the requirements of the context describes the area of 3 land from time to time the subject of that licence; 4 5 "Train Loading Infrastructure" means conveyors, 6 stockpile areas, blending and screening facilities, 7 stackers, re-claimers and other infrastructure 8 reasonably required for the loading of iron ore, freight 9 goods or other products onto the relevant Railway for 10 transport (directly or indirectly) to a loading port; and 11 12 "Train Unloading Infrastructure" means train 13 unloading infrastructure reasonably required for the 14 unloading of iron ore from the Railway to be 15 processed, or blended with other iron ore, at 16 processing or blending facilities in the vicinity of that 17 train unloading infrastructure and with the resulting 18 iron ore products then loaded on to the Railway for 19 transport (directly or indirectly) to a loading port. 20 21 Company to obtain prior Ministerial in-principle 22 approval 23 24 (2) (a) If the Company wishes, from time to time 25 during the continuance of this Agreement, to 26 proceed under this clause with a plan to develop 27 a Railway it shall give notice thereof to the 28 Minister and furnish to the Minister with that 29 notice an outline of its plan. 30 31 (b) The Minister shall within one month of a notice 32 under paragraph (a) advise the Company 33 whether or not he approves in-principle the 34 proposed plan. The Minister shall afford the 35 Company full opportunity to consult with him 36 in respect of any decision of the Minister under 37 this paragraph. 38 39 (c) The Minister's in-principle approval in respect 40 of a proposed plan shall lapse if the Company 41 has not submitted detailed proposals to the page 195 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 Minister in respect of that plan in accordance 2 with this clause within 18 months of the 3 Minister's in-principle approval. 4 5 Railway Corridor 6 7 (3) (a) If the Minister gives in-principle approval to a 8 plan of the Company to develop a Railway it 9 shall consult with the Minister to seek the 10 agreement of the Minister as to: 11 12 (i) where the Railway will begin and end; 13 and 14 15 (ii) a route for the Railway, access roads to 16 be within the Railway Corridor and the 17 land required for that route as well as 18 Additional Infrastructure (if any) 19 including, without limitation, areas from 20 which stone, sand, clay and gravel may 21 be taken, temporary accommodation 22 facilities for the railway workforce and 23 water bores; and 24 25 (iii) in respect of Additional Infrastructure (if 26 any) the nature and capacity of such 27 Additional Infrastructure; and 28 29 (iv) the routes of, and the land required for, 30 roads outside the Railway Corridor (and 31 also outside a Port) for access to it to 32 construct the Railway (such roads as 33 agreed being "Lateral Access Roads"). 34 35 In seeking such agreement, regard shall be had 36 to achieving a balance between engineering 37 matters including costs, the nature and use of 38 any lands concerned and interests therein and 39 the costs of acquiring the land (all of which 40 shall be borne by the Company). The parties 41 acknowledge the intention is for the Company page 196 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 to construct the Railway, the access roads for 2 the construction and maintenance of the 3 Railway which are to be within the Railway 4 Corridor and the relevant Additional 5 Infrastructure (if any) along the centreline of 6 the Railway Corridor subject to changes in that 7 alignment to the extent necessary to avoid 8 heritage, environmental or poor ground 9 conditions that are not identified during 10 preliminary investigation work, and recognise 11 the width of the Railway Corridor may need to 12 vary along its route to accommodate Additional 13 Infrastructure (if any), access roads, areas from 14 which stone, sand, clay and gravel may be 15 taken, temporary accommodation facilities for 16 the railway workforce and water bores. The 17 provisions of clause 18 shall not apply to this 18 subclause. 19 20 (b) If the date by which the Company must submit 21 detailed proposals under subclause (4)(a) (as 22 referred to in subclause (2)(c)) is extended or 23 varied by the Minister pursuant to clause 17, 24 any agreement made pursuant to paragraph (a) 25 before such date is extended or varied shall 26 unless the Minister notifies the Company 27 otherwise be deemed to be at an end and neither 28 party shall have any claim against the other in 29 respect of it. 30 31 (c) The Company acknowledges that it shall be 32 responsible for liaising with every title holder in 33 respect of the land affected and for obtaining in 34 a form and substance acceptable to the Minister 35 all unconditional and irrevocable consents of 36 each such title holder to, and all statutory 37 consents required in respect of the land affected 38 for: 39 40 (i) the grant of the Special Railway Licence 41 for the construction, operation and page 197 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 maintenance within the Railway Corridor 2 of the Railway, access roads and 3 Additional Infrastructure (if any) to be 4 within the Railway Corridor; and 5 6 (ii) the grant of Lateral Access Road 7 Licences for the construction, use and 8 maintenance of Lateral Access Roads 9 over the routes for the Lateral Access 10 Roads agreed pursuant to paragraph (a); 11 and 12 13 (iii) the inclusion of additional land in the 14 Special Railway Licence as referred to in 15 subclause (6)(h) or subclause (6)(i), 16 17 in accordance with this clause. For the purposes 18 of this subclause (3)(c), "title holder" means a 19 management body (as defined in the LAA) in 20 respect of any part of the affected land, a person 21 who holds a mining, petroleum or geothermal 22 energy right (as defined in the LAA) in respect 23 of any part of the affected land, a person who 24 holds a lease or licence under the LAA in 25 respect of any part of the affected land, a person 26 who holds any other title granted under or 27 pursuant to a Government agreement in respect 28 of any part of the affected land, a person who 29 holds a lease or licence in respect of any part of 30 the affected land under any other Act applying in 31 the said State and a person in whom any part of 32 the affected land is vested, immediately before 33 the provision of such consents to the Minister as 34 referred to in subclause (4)(e)(ii) (including as 35 applying pursuant to subclause 5(d)). 36 37 Company to submit proposals for Railway 38 39 (4) (a) The Company shall, subject to the EP Act, the 40 provisions of this Agreement, agreement at that 41 time subsisting in respect of the matters page 198 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 required to be agreed pursuant to subclause 2 3(a), submit to the Minister by the latest date 3 applying under subclause (2)(c) to the fullest 4 extent reasonably practicable its detailed 5 proposals (including plans where practicable 6 and specifications where reasonably required by 7 the Minister and any other details normally 8 required by a local government in whose area 9 any works are to be situated) with respect to the 10 undertaking of the relevant Railway Operation, 11 which proposals shall include the location, area, 12 layout, design, materials and time program for 13 the commencement and completion of 14 construction or the provision (as the case may 15 be) of each of the following matters namely: 16 17 (i) the Railway including fencing (if any) 18 and crossing places within the Railway 19 Corridor; 20 21 (ii) Additional Infrastructure (if any) within 22 the Railway Corridor; 23 24 (iii) temporary accommodation and ancillary 25 temporary facilities for the railway 26 workforce on, or in the vicinity of, the 27 Railway Corridor and housing and other 28 appropriate facilities elsewhere for the 29 Company's workforce; 30 31 (iv) water supply; 32 33 (v) energy supplies; 34 35 (vi) access roads within the Railway Corridor 36 and Lateral Access Roads both along the 37 routes for those roads agreed between the 38 Minister and the Company pursuant to 39 subclause 3(a); 40 page 199 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 (vii) any other works, services or facilities 2 desired by the Company; and 3 4 (viii) use of local labour, professional services, 5 manufacturers, suppliers contractors and 6 materials and measures to be taken with 7 respect to the engagement and training of 8 employees by the Company, its agents 9 and contractors. 10 11 (b) Proposals pursuant to paragraph (a) must 12 specify the matters agreed for the purpose 13 pursuant to subclause (3)(a) and must not be 14 contrary to or inconsistent with such agreed 15 matters. 16 17 (c) Each of the proposals pursuant to paragraph (a) 18 may with the approval of the Minister, or must 19 if so required by the Minister, be submitted 20 separately and in any order as to the matter or 21 matters mentioned in one or more of 22 subparagraphs (i) to (viii) of paragraph (a) and 23 until all of its proposals under this subclause 24 have been approved the Company may 25 withdraw and may resubmit any proposal but 26 the withdrawal of any proposal shall not affect 27 the obligations of the Company to submit a 28 proposal under this subclause in respect of the 29 subject matter of the withdrawn proposal. 30 31 (d) The Company shall, whenever any of the 32 following matters referred to in this subclause 33 are proposed by the Company (whether before 34 or during the submission of proposals under this 35 subclause), submit to the Minister details of any 36 services (including any elements of the project 37 investigations, design and management) and 38 any works, materials, plant, equipment and 39 supplies that it proposes to consider obtaining 40 from or having carried out or permitting to be 41 obtained from or carried out outside Australia, page 200 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 together with its reasons therefor and shall, if 2 required by the Minister consult with the 3 Minister with respect thereto. 4 5 (e) At the time when the Company submits the last 6 of the said proposals pursuant to this subclause, 7 it shall: 8 9 (i) furnish to the Minister's reasonable 10 satisfaction evidence of all accreditations 11 under the Rail Safety Act which are 12 required to be held by the Company or 13 any other person for the construction of 14 the Railway; and 15 16 (ii) furnish to the Minister the written 17 consents referred to in subclause (3)(c)(i) 18 and (3)(c)(ii). 19 20 (f) The provisions of clause 7AB shall apply 21 mutatis mutandis to detailed proposals 22 submitted under this subclause. 23 24 Additional Railway Proposals 25 26 (5) (a) If the Company at any time during the currency 27 of a Special Railway Licence desires to 28 construct a Railway spur line (connecting to 29 the Railway the subject of that Special Railway 30 Licence) or desires to significantly modify, 31 expand or otherwise vary its activities within 32 the land the subject of the Special Railway 33 Licence that are the subject of this Agreement 34 and that may be carried on by it pursuant to this 35 Agreement (other than by the construction of a 36 Railway spur line) beyond those activities 37 specified in any approved proposals for that 38 Railway, it shall give notice of such desire to 39 the Minister and furnish to the Minister with 40 that notice an outline of its proposals in respect 41 thereto (including, without limitation, such page 201 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 matters mentioned in subclause (4)(a) as are 2 relevant or as the Minister otherwise requires). 3 4 (b) If the notice relates to a Railway spur line, or to 5 the construction of Train Loading Infrastructure 6 or Train Unloading Infrastructure on land 7 outside the then Railway Corridor, the Minister 8 shall within one month of receipt of such notice 9 advise the Company whether or not he approves 10 in-principle the proposed construction of such 11 spur line, Train Loading Infrastructure or Train 12 Unloading Infrastructure. If the Minister gives 13 in-principle approval the Company may (but 14 not otherwise) submit detailed proposals in 15 respect thereof provided that the provisions of 16 subclause (3) shall mutatis mutandis apply prior 17 to submission of detailed proposals in respect 18 thereof. 19 20 (c) Subject to the EP Act, the provisions of this 21 Agreement and agreement at that time 22 subsisting in respect of any matters required to 23 be agreed pursuant to subclause (3)(a) (as 24 referred to in paragraph (b)), the Company shall 25 submit to the Minister within a reasonable 26 timeframe, as determined by the Minister after 27 receipt of the notice referred to in paragraph (a) 28 (or in the case of a notice referred to in 29 paragraph (b) the giving of the Minister's 30 in-principle consent as referred to in that 31 paragraph), detailed proposals in respect of the 32 proposed construction of such Railway spur 33 line, Train Loading Infrastructure, Train 34 Unloading Infrastructure or other proposed 35 modification, expansion or variation of its 36 activities including such of the matters 37 mentioned in subclause (4)(a) as the Minister 38 may require. 39 40 (d) The provisions of subclause (4) (with the date 41 for submission of proposals being read as the page 202 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 date or time determined by the Minister under 2 paragraph (c) and the reference in subclause 3 (4)(e)(ii) to subclause (3)(c)(i) being read as a 4 reference to subclause (3)(c)(iii)) and of clause 5 7AB shall mutatis mutandis apply to detailed 6 proposals submitted pursuant to this subclause. 7 8 Grant of Tenure 9 10 (6) (a) On application made by the Company to the 11 Minister in such manner as the Minister may 12 determine, not later than 3 months after all its 13 proposals submitted pursuant to subclause 14 (4)(a) have been approved or deemed to be 15 approved and the Company has complied with 16 the provisions of subclause (4)(e), the State 17 notwithstanding the Mining Act 1978 shall 18 cause to be granted to the Company: 19 20 (i) a miscellaneous licence to conduct within 21 the Railway Corridor and in accordance 22 with its approved proposals all activities 23 (including the taking of stone, sand, clay 24 and gravel, the provision of temporary 25 accommodation facilities for the railway 26 workforce and, subject to the Rights in 27 Water and Irrigation Act 1914 (WA), the 28 operation of water bores) necessary for 29 the planning, design, construction, 30 commissioning, operation and 31 maintenance within the Railway Corridor 32 of the Railway, access roads and 33 Additional Infrastructure (if any) ("the 34 Special Railway Licence") such licence 35 to be granted under and subject to, except 36 as otherwise provided in this Agreement, 37 the Mining Act 1978 in the form of the 38 Second Schedule hereto and subject to 39 such terms and conditions as the Minister 40 for Mines may from time to time 41 consider reasonable and at a rental page 203 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 calculated in accordance with the Mining 2 Act 1978: 3 4 (A) prior to the Railway Operation 5 Date, as if the width of the 6 Railway Corridor were 100 metres; 7 and 8 9 (B) on and from the Railway 10 Operation Date, at the rentals from 11 time to time prescribed under the 12 Mining Act 1978; and 13 14 (ii) a miscellaneous licence or licences to 15 allow the construction, use and 16 maintenance of Lateral Access Roads 17 within the routes agreed for those Lateral 18 Access Roads under subclause (3)(a) 19 (each a "Lateral Access Road Licence"), 20 each such licence to be granted under and 21 subject to, except as otherwise provided 22 in this Agreement, the Mining Act 1978 23 in the form of the Third Schedule hereto 24 and subject to such terms and conditions 25 as the Minister for Mines may from time 26 to time consider reasonable and at the 27 rentals from time to time prescribed under 28 the Mining Act 1978. 29 30 (b) On application made by the Company to the 31 Minister in such manner as the Minister may 32 determine, not later than 3 months after its 33 proposals submitted pursuant to subclause 34 (5)(a) for the construction of Lateral Access 35 Roads for access to the Railway Corridor to 36 construct a Railway spur line have been 37 approved or deemed to be approved and the 38 Company has complied with the provisions of 39 subclause (4)(e) (as applying pursuant to 40 subclause (5)(d)), the State notwithstanding the 41 Mining Act 1978 shall cause to be granted to page 204 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 the Company a miscellaneous licence or 2 licences to allow the construction, use and 3 maintenance of Lateral Access Roads within the 4 routes agreed for those Lateral Access Roads 5 under subclause (3)(a)) (as applying pursuant to 6 subclause (5)(b)) (each a "Lateral Access Road 7 Licence"), each such licence to be granted 8 under and subject to, except as otherwise 9 provided in this Agreement, the Mining Act 10 1978 in the form of the Fourth Schedule hereto 11 and subject to such terms and conditions as the 12 Minister for Mines may from time to time 13 consider reasonable and at the rentals from time 14 to time prescribed under the Mining Act 1978. 15 16 (c) Notwithstanding the Mining Act 1978, the term 17 of the Special Railway Licence shall, subject to 18 the sooner determination thereof on the 19 cessation or sooner determination of this 20 Agreement, be for a period of 50 years 21 commencing on the date of grant thereof. 22 23 (d) Notwithstanding the Mining Act 1978, the term 24 of any Lateral Access Road Licence shall, 25 subject to the sooner determination thereof on 26 the cessation or sooner determination of this 27 Agreement, be for a period of 4 years 28 commencing on the date of grant thereof. 29 30 (e) Notwithstanding the Mining Act 1978, and 31 except as required to do so by the terms of the 32 Special Railway Licence, the Company shall 33 not be entitled to surrender the Special Railway 34 Licence or any Lateral Access Road Licence or 35 any part or parts of them without the prior 36 consent of the Minister. 37 38 (f) (i) The Company may in accordance with 39 approved proposals take stone, sand, clay 40 and gravel from the Railway Corridor for 41 the construction, operation and page 205 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 maintenance of the Railway constructed 2 within or approved for construction 3 within the Railway Corridor. 4 5 (ii) Notwithstanding the Mining Act 1978 no 6 royalty shall be payable under the Mining 7 Act in respect of stone, sand, clay and 8 gravel which the Company is permitted 9 by subparagraph (i) to obtain from the 10 land the subject of the Special Railway 11 Licence. 12 13 (g) For the purposes of this Agreement and without 14 limiting the operation of paragraphs (a) to (f) 15 inclusive above, the application of the Mining 16 Act 1978 and the regulations made thereunder 17 are specifically modified; 18 19 (i) in section 91(1) by: 20 21 (A) deleting "the mining registrar or 22 the warden, in accordance with 23 section 42 (as read with section 24 92)" and substituting "the 25 Minister"; 26 27 (B) deleting "any person" and 28 substituting "the Company (as 29 defined in the agreement approved 30 by and scheduled to the Iron Ore 31 (Robe River) Agreement Act 1964, 32 as from time to time added to, 33 varied or amended)"; 34 35 (C) deleting "for any one or more of 36 the purposes prescribed" and 37 substituting "for the purpose 38 specified in clause 9D(6)(a)(i), 39 clause 9D(6)(a)(ii) or clause 40 9D(6)(b), of the agreement 41 approved by and scheduled to the page 206 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 Iron Ore (Robe River) Agreement 2 Act 1964, as from time to time 3 added to, varied or amended"; 4 5 (ii) in section 91(3)(a), by deleting 6 "prescribed form" and substituting "form 7 required by the agreement approved by 8 and scheduled to the Iron Ore (Robe 9 River) Agreement Act 1964, as from time 10 to time added to, varied or amended"; 11 12 (iii) by deleting sections 91(6), 91(9), 91(10) 13 and 91B; 14 15 (iv) in section 92, by deleting "Sections 41, 16 42, 44, 46, 46A, 47 and 52 apply," and 17 inserting "Section 46A (excluding in 18 subsection (2)(a) "the mining registrar, 19 the warden or") applies," and by deleting 20 "in those provisions" and inserting "in 21 that provision"; 22 23 (v) by deleting the full stop at the end of the 24 section 94(1) and inserting, "except to the 25 extent otherwise provided in, or to the 26 extent that such terms and conditions are 27 inconsistent with, the agreement 28 approved by and scheduled to the Iron 29 Ore (Robe River) Agreement Act 1964, as 30 from time to time added to, varied or 31 amended"; 32 33 (vi) by deleting sections 94(2), (3) and (4); 34 35 (vii) in section 96(1), by inserting after 36 "miscellaneous licence" the words "(not 37 being a miscellaneous licence granted 38 pursuant to the agreement approved by 39 and scheduled to the Iron Ore (Robe 40 River) Agreement Act 1964, as from time 41 to time added to, varied or amended"; page 207 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 2 (viii) by deleting mining regulations 37(2), 3 37(3), 42 and 42A; and 4 5 (ix) by inserting at the beginning of mining 6 regulations 41(c) and (f) the words 7 "subject to the agreement approved by 8 and scheduled to the Iron Ore (Robe 9 River) Agreement Act 1964, as from time 10 to time added to, varied or amended". 11 12 (h) If additional proposals are approved in 13 accordance with subclause (5) for the 14 construction of a Railway spur line outside the 15 then Railway Corridor, the Minister for Mines 16 shall include the area of land within which such 17 construction is to occur in the Special Railway 18 Licence by endorsement. The area of such land 19 may be included notwithstanding that the 20 survey of the land has not been completed but 21 subject to correction to accord with the survey 22 when completed at the Company's expense. 23 24 (i) If additional proposals are approved in 25 accordance with subclause (5) for the 26 construction of Train Loading Infrastructure or 27 Train Unloading Infrastructure outside the then 28 Railway Corridor, the Minister for Mines shall 29 include the area of such land within which such 30 infrastructure is approved for construction in 31 the Special Railway Licence by endorsement. 32 The area of such land may be included 33 notwithstanding that the survey of the land has 34 not been completed but subject to correction to 35 accord with the survey when completed at the 36 Company's expense. 37 38 (j) The provisions of this subclause shall not 39 operate so as to require the State to cause a 40 Special Railway Licence or a Lateral Access 41 Road Licence to be granted or any land page 208 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 included in the Special Railway Licence as 2 mentioned above until all processes necessary 3 under any laws relating to native title to enable 4 that grant or inclusion of land to proceed, have 5 been completed. 6 7 Construction and operation of Railway 8 9 (7) (a) Subject to and in accordance with approved 10 proposals, the Rail Safety Act and the grant of 11 the relevant Special Railway Licence and any 12 associated Lateral Access Road Licences the 13 Company shall in a proper and workmanlike 14 manner and in accordance with recognised 15 standards for railways of a similar nature 16 operating under similar conditions construct the 17 Railway and associated Additional Infrastructure 18 and access roads within the Railway Corridor 19 and shall also construct inter alia any necessary 20 sidings, crossing points, bridges, signalling 21 switches and other works and appurtenances and 22 provide for crossings and (where appropriate and 23 required by the Minister) grade separation or 24 other protective devices including flashing lights 25 and boom gates at places where the Railway 26 crosses or intersects with major roads or existing 27 railways. 28 29 (b) The Company shall while the holder of a 30 Special Railway Licence: 31 32 (i) keep the Railway the subject of that 33 licence in an operable state; and 34 35 (ii) ensure that the Railway the subject of 36 that licence is operated in a safe and 37 proper manner in compliance with all 38 applicable laws from time to time; and 39 40 (iii) without limiting subparagraph (ii) ensure 41 that the obligations imposed under the page 209 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 Rail Safety Act on an owner and an 2 operator (as those terms are therein 3 defined) are complied with in connection 4 with the Railway the subject of that 5 licence. 6 7 Nothing in this Agreement shall be construed to 8 exempt the Company or any other person from 9 compliance with the Rail Safety Act or limit its 10 application to the Company's operations 11 generally (except as otherwise may be provided 12 in that Act or regulations made under it). 13 14 (c) The Company shall provide crossings for 15 livestock and also for any roads, other railways, 16 conveyors, pipelines and other utilities which 17 exist at the date of grant of the relevant Special 18 Railway Licence or in respect of land 19 subsequently included in it at the date of such 20 inclusion and the Company shall on reasonable 21 terms and conditions allow such crossings for 22 roads, railways, conveyors, pipelines and other 23 utilities which may be constructed for future 24 needs and which may be required to cross a 25 Railway constructed pursuant to this clause. 26 27 (d) Subject to clause 9C, the Company shall at all 28 times be the holder of Special Railway Licences 29 and Lateral Access Road Licences granted 30 pursuant to this clause and (without limiting 31 clause 10(j) but subject to clause 9C) shall at all 32 times own manage and control the use of each 33 Railway the subject of a Special Railway 34 Licence held by the Company. 35 36 (e) The Company shall not be entitled to exclusive 37 possession of the land the subject of a Special 38 Railway Licence or Lateral Access Road 39 Licence granted pursuant to this clause to the 40 intent that the State, the Minister, the Minister 41 for Mines and any persons authorised by any of page 210 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 them from time to time shall be entitled to enter 2 upon the land or any part of it at all reasonable 3 times and on reasonable notice with all 4 necessary vehicles, plant and equipment and for 5 purposes related to this Agreement or such 6 other purposes as they think fit but in doing so 7 shall be subject to the reasonable directions of 8 the Company so as not to unreasonably 9 interfere with the Company's operations. 10 11 (f) The Company's ownership of a Railway 12 constructed pursuant to this clause shall not 13 give it an interest in the land underlying it. 14 15 (g) The Company shall not at any time without the 16 prior consent of the Minister dismantle, sell or 17 otherwise dispose of any part or parts of any 18 Railway constructed pursuant to this clause, or 19 permit this to occur, other than for the purpose 20 of maintenance, repair, upgrade or renewal. 21 22 (h) The Company shall, subject to and in 23 accordance with approved proposals, in a 24 proper and workmanlike manner, construct any 25 Additional Infrastructure, access roads, Lateral 26 Access Roads and other works approved for 27 construction under this clause. 28 29 (i) The Company shall while the holder of a 30 Special Railway Licence at all times keep and 31 maintain in good repair and working order and 32 condition (which obligation includes, where 33 necessary, replacing or renewing all parts which 34 are worn out or in need of replacement or 35 renewal due to their age or condition) the 36 Railway, access roads and Additional 37 Infrastructure (if any) the subject of that licence 38 and all such other works installations plant 39 machinery and equipment for the time being the 40 subject of this Agreement and used in 41 connection with the operation use and page 211 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 maintenance of that Railway, access roads and 2 Additional Infrastructure (if any). 3 4 (j) Subject to clause 9C, the Company shall: 5 6 (i) be responsible for the cost of 7 construction and maintenance of all 8 Private Roads constructed pursuant to 9 this clause; and 10 11 (ii) at its own cost erect signposts and take 12 other steps that may be reasonable in the 13 circumstances to prevent any persons and 14 vehicles (other than those engaged upon 15 the Company's activities and its invitees 16 and licensees) from using the Private 17 Roads; and 18 19 (iii) at any place where any Private Roads are 20 constructed by the Company so as to 21 cross any railways or public roads 22 provide at its cost such reasonable 23 protection and signposting as may be 24 required by the Commissioner of Main 25 Roads or the Public Transport Authority 26 as the case may be. 27 28 (k) The provisions of clauses 9(2)(a) and (3) 29 regarding third party access as well as the 30 proviso to clause 9(2)(a) shall apply mutatis 31 mutandis to any Railway or Railway spur line 32 constructed pursuant to this clause except that 33 the Company shall not be obliged to transport 34 passengers upon any such Railway or Railway 35 spur line. page 212 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 2 Aboriginal Heritage Act 1972 (WA) 3 4 (8) For the purposes of this clause the Aboriginal 5 Heritage Act 1972 (WA) applies as if it were modified 6 by: 7 8 (a) the insertion before the full stop at the end of 9 section 18(1) of the words: 10 11 "and the expression "the Company" means the 12 persons from time to time comprising "the 13 Company" in their capacity as such under the 14 agreement approved by and scheduled to the 15 Iron Ore (Robe River) Agreement Act 1964, as 16 from time to time added to, varied or amended 17 in relation to the use or proposed use of land 18 pursuant to clause 9D of that agreement after 19 and in accordance with approved proposals 20 under clause 9D of that agreement and in 21 relation to the use of that land before any such 22 approval of proposals where the Company has 23 the requisite authority to enter upon and so use 24 the land"; 25 26 (b) the insertion in sections 18(2), 18(4), 18(5) and 27 18(7) of the words "or the Company as the case 28 may be" after the words "owner of any land"; 29 30 (c) the insertion in section 18(3) of the words "or 31 the Company as the case may be" after the 32 words "the owner"; 33 34 (d) the insertion of the following sentences at the 35 end of section 18(3): 36 37 "In relation to a notice from the Company the 38 conditions that the Minister may specify can as 39 appropriate include, among other conditions, a 40 condition restricting the Company's use of the 41 relevant land to after the approval or deemed page 213 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 approval as the case may be under the 2 abovementioned agreement of all of the 3 Company's submitted initial proposals 4 thereunder for the Railway Operation (as 5 defined in clause 9D(1) of the abovementioned 6 agreement), or in the case of additional 7 proposals submitted or to be submitted by the 8 Company to after the approval or deemed 9 approval under that agreement of such 10 additional proposals, and to the extent so 11 approved. "; and 12 13 (e) the insertion in sections 18(2) and 18(5) of the 14 words "or it as the case may be" after the word 15 "he". 16 17 The Company acknowledges that nothing in this 18 subclause (8) nor the granting of any consents under 19 section 18 of the Aboriginal Heritage Act 1972 (WA) 20 will constitute or is to be construed as constituting the 21 approval of any proposals submitted or to be 22 submitted by the Company under this Agreement or as 23 the grant or promise of land tenure for the purposes of 24 this Agreement. 25 26 Taking of land for the purposes of this clause 27 28 (9) (a) The State is hereby empowered, as and for a 29 public work under Parts 9 and 10 of the LAA, 30 to take for the purposes of this clause any land 31 (other than any part of a Port) which in the 32 opinion of the Company is necessary for the 33 relevant Railway Operation and which the 34 Minister determines is appropriate to be taken 35 for the relevant Railway Operation (except any 36 land the taking of which would be contrary to 37 the provisions of a Government agreement 38 entered into before the submission of the 39 proposals relating to the proposed taking) and 40 notwithstanding any other provisions of that 41 Act may license that land to the Company. page 214 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 2 (b) In applying Parts 9 and 10 of the LAA for the 3 purposes of this clause: 4 5 (i) "land" in that Act includes a legal or 6 equitable estate or interest in land; 7 8 (ii) sections 170, 171, 172, 173, 174, 175 and 9 184 of that Act do not apply; and 10 11 (iii) that Act applies as if it were modified in 12 section 177(2) by inserting - 13 (A) after "railway" the following - 14 "or land is being taken pursuant to 15 a Government agreement as 16 defined in section 2 of the 17 Government Agreements Act 1979 18 (WA)"; and 19 (B) after "that Act" the following - 20 "or that Agreement as the case may 21 be". 22 (c) The Company shall pay to the State on demand 23 the costs of or incidental to any land taken at 24 the request of and on behalf of the Company 25 including but not limited to any compensation 26 payable to any holder of native title or of native 27 title rights and interests in the land. 28 29 Notification of Railway Operation Date 30 31 (10) (a) The Company shall from the date occurring 6 32 months before the date for completion of 33 construction of a Railway specified in its time 34 program for the commencement and completion 35 of construction of that Railway submitted under page 215 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 subclause (4)(a), keep the Minister fully 2 informed as to: 3 4 (i) the progress of that construction and its 5 likely completion and commissioning; 6 and 7 8 (ii) the likely Railway Operation Date. 9 10 (b) The Company shall on the Railway Operation 11 Date notify the Minister that the first carriage of 12 iron ore, freight goods or other products as the 13 case may be over the Railway (other than for 14 construction or commissioning purposes) has 15 occurred. 16 17 (c) The Company shall from the date occurring 6 18 months before the date for completion of 19 construction of a Railway spur line specified in 20 its time program for the commencement and 21 completion of construction of that spur line 22 submitted under subclause (5)(c) keep the 23 Minister fully informed as to: 24 25 (i) the progress of that construction and its 26 likely completion and commissioning; 27 and 28 29 (ii) in respect of it, the likely Railway spur 30 line Operation Date. 31 32 (d) The Company shall on the Railway spur line 33 Operation Date in respect of any Railway spur 34 line notify the Minister that the first carriage of 35 iron ore, freight goods or other products as the 36 case may be over such spur line (other than for 37 construction or commissioning purposes) has 38 occurred"; 39 page 216 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 (12) in clause 10(a)(i) by deleting the comma at the end of 2 subparagraph (c) and substituting a semi colon followed by: 3 4 "(D) in relation to electrical energy but not water, the Company 5 for the purpose of supply to: 6 7 (i) "the Company" or "Joint Venturers" as the case may 8 be as defined in, and for the purpose of an Integration 9 Agreement, for its or their purposes thereunder; 10 11 (ii) the holders from time to time of a Mining Act 1978 12 mining lease located in, or proximate to, the Pilbara 13 region of the said State which is held by a Related 14 Entity alone or with a third party or parties (excluding 15 any mining lease granted pursuant to, or held under, a 16 Government agreement) for the purpose of their iron 17 ore mining operations on that mining lease; and 18 19 (iii) with the prior approval of the Minister, "the 20 Company" or "the Joint Venturers" as the case may be 21 as defined in, and for the purpose of a Government 22 agreement (excluding an Integration Agreement) for 23 the mining of iron ore in, or proximate to, the Pilbara 24 region of the said State for the purpose of its or their 25 operations under that agreement,"; 26 27 (13) in clause 10(d) by inserting "or held pursuant hereto" after 28 "hereunder or pursuant hereto"; 29 30 (14) in clause 10(e) by: 31 32 (a) inserting "or pursuant hereto" after "granted hereunder"; and 33 34 (b) inserting " or held pursuant hereto" after "clause 13 hereof"; 35 36 (15) in clause 10(l) by: 37 38 (a) inserting "granted under or pursuant to this Agreement, or 39 held pursuant to this Agreement" after "licence or other 40 title"; 41 page 217 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 (b) inserting "or held pursuant hereto" after each of the two 2 references to "granted hereunder or pursuant hereto"; and 3 4 (c) deleting "occupied by the Company" and substituting "the 5 subject of any lease licence easement or other title granted 6 under or pursuant to this Agreement or held pursuant to this 7 Agreement"; 8 9 (16) by deleting clause 11A; 10 11 (17) by inserting the following sentence at the end of clause 12: 12 13 "As a separate independent indemnity the Company will indemnify 14 and keep indemnified the State and its servants agents and 15 contractors in respect of all actions suits claims demands or costs 16 of third parties arising out of or in connection with any use, making 17 available for use or other activities of the Company as referred to 18 in clause 9B."; 19 20 (18) in clause 14(1) by inserting "or held pursuant hereto" after "granted 21 hereunder or pursuant hereto"; and 22 23 (19) by inserting after the Schedule the following new schedules: 24 page 218 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 "SECOND SCHEDULE 2 3 WESTERN AUSTRALIA 4 5 IRON ORE (ROBE RIVER) AGREEMENT ACT 1964 6 7 MINING ACT 1978 8 9 MISCELLANEOUS LICENCE FOR A RAILWAY AND OTHER 10 PURPOSES 11 12 13 No. MISCELLANEOUS LICENCE [ ] 14 15 WHEREAS by the Agreement (hereinafter called "the Agreement") approved 16 by and scheduled to the Iron Ore (Robe River) Agreement Act 1964, as from 17 time to time added to, varied or amended, the State agreed to grant to [ ] 18 (hereinafter with its successors and permitted assigns called "the Company") a 19 miscellaneous licence for the construction operation and maintenance of a 20 Railway (as defined in clause 9D(1) of the Agreement and otherwise as 21 provided in the Agreement) and, if applicable, other purposes AND WHEREAS 22 the Company pursuant to clause 9D(6)(a) of the Agreement has made 23 application for the said licence; 24 25 NOW in consideration of the rents reserved by and the provisions of the 26 Agreement and in pursuance of the Iron Ore (Robe River) Agreement Act 1964, 27 as from time to time added to, varied or amended, the Company is hereby 28 granted by this licence authority to conduct on the land the subject of this 29 licence as more particularly delineated and described from time to time in the 30 Schedule hereto all activities (including the taking of stone, sand, clay and 31 gravel, the provision of temporary accommodation facilities for the railway 32 workforce in accordance with the Agreement and, subject to the Rights in Water 33 and Irrigation Act 1914 (WA), the operation of water bores) necessary for the 34 planning, design, construction, commissioning, operation and maintenance on 35 the land the subject of this licence of the Railway and Additional Infrastructure 36 (as defined in clause 9D(1) of the Agreement) and access roads to be located on 37 the land the subject of this licence in accordance with the provisions of the 38 Agreement and proposals approved under the Agreement, for the term of 50 39 years from the date hereof (subject to the sooner determination of the term upon 40 the determination of the Agreement) and upon and subject to the terms 41 covenants and conditions set out in the Agreement and the Mining Act 1978 as page 219 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 it applies to this licence, and any amendments to the Agreement and the Mining 2 Act 1978 from time to time and to the terms and conditions (if any) now or 3 hereafter endorsed hereon and the payment of rentals in respect of this licence 4 in accordance with clause 9D(6)(a)(i) of the Agreement PROVIDED ALWAYS 5 that this licence shall not be determined or forfeited otherwise than in 6 accordance with the Agreement. 7 8 In this licence: 9 10 - If the Company be more than one the liability of the Company 11 hereunder shall be joint and several. 12 13 - Reference to an Act includes all amendments to that Act for the time 14 being in force and also any Act passed in substitution therefore or in 15 lieu thereof and to the regulations and by-laws of the time being in 16 force thereunder. 17 18 - Reference to "the Agreement" means such agreement as from time to 19 time added to, varied or amended. 20 21 - The terms "approved proposals", "Railway", "Railway Operation 22 Date", and "Railway spur line" have the meanings given in the 23 Agreement. 24 25 ENDORSEMENTS AND CONDITIONS 26 27 Endorsements 28 29 1. This licence is granted in accordance with proposals submitted on 30 [ ], and approved by the Minister (as defined in the Agreement) on 31 [ ], under the Agreement. 32 33 2. The Company is permitted to, in accordance with approved proposals, 34 take stone, sand, clay and gravel from the land the subject of this 35 licence for the construction, operation and maintenance of the Railway 36 (including any Railway spur line) constructed within or approved for 37 construction within the area of land the subject of this licence. 38 39 3. Notwithstanding the Mining Act 1978, no royalty shall be payable 40 under the Mining Act 1978 in respect of stone, sand, clay and gravel page 220 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 which the Company is permitted by the Agreement to obtain from the 2 land the subject of this licence. 3 4 4. [Any further endorsement which the Minister for Mines may, 5 consistent with the provisions of the Agreement, determines and 6 thereafter impose in respect of this licence including during the term 7 of the Agreement.] 8 9 Conditions 10 11 1. (a) Except as provided in paragraph (b), the Company shall 12 within 2 years after the Railway Operation Date surrender in 13 accordance with the provisions of the Mining Act 1978 the 14 area of this licence down to a maximum of 100 metres width 15 or as otherwise approved by the Minister (as defined in the 16 Agreement) for the safe operation of the Railway then 17 constructed or approved for construction under approved 18 proposals. 19 20 (b) Paragraph (a) shall not apply to land the subject of this 21 licence that was included in this licence pursuant to clause 22 9D(6)(h) or clause 9D(6)(i) of the Agreement. 23 24 2. The Company shall as soon as possible after the construction of a 25 Railway spur line or of an expansion or extension thereof as the case 26 may be surrender in accordance with the Mining Act 1978 the land 27 the subject of this licence that was included in this licence pursuant 28 to clause 9D(6)(h) of the Agreement for the purpose of such 29 construction down to a maximum of 100 metres in width or as 30 otherwise approved by the Minister (as defined in the Agreement) for 31 the safe operation of that Railway spur line or expansion or extension 32 thereof as the case may be then constructed or approved for 33 construction under approved proposals. 34 35 3. [Any further conditions which the Minister for Mines may, consistent 36 with the provisions of the Agreement, determines and thereafter 37 impose in respect of this licence including during the term of the 38 Agreement.] 39 page 221 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 SCHEDULE 2 3 Land description 4 5 Locality: 6 Mineral Field 7 Area: 8 9 DATED at Perth this day of . 10 11 MINISTER FOR MINES 12 page 222 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 THIRD SCHEDULE 2 3 WESTERN AUSTRALIA 4 5 IRON ORE (ROBE RIVER) AGREEMENT ACT 1964 6 7 MINING ACT 1978 8 9 MISCELLANEOUS LICENCE FOR A LATERAL ACCESS ROAD 10 11 12 No. MISCELLANEOUS LICENCE [ ] 13 14 WHEREAS by the Agreement (hereinafter called "the Agreement") approved 15 by and scheduled to the Iron Ore (Robe River) Agreement Act 1964, as from 16 time to time added to, varied or amended, the State agreed to grant to [ ] 17 (hereinafter with its successors and permitted assigns called "the Company") a 18 miscellaneous licence for the construction use and maintenance of a Lateral 19 Access Road (as defined in the Agreement) AND WHEREAS the Company 20 pursuant to clause 9D(6)(a)(ii) of the Agreement has made application for the 21 said licence; 22 23 NOW in consideration of the rents reserved by and the provisions of the 24 Agreement and in pursuance of the Iron Ore (Robe River) Agreement Act 1964, 25 as from time to time added to, varied or amended, the Company is hereby 26 authorised to construct use and maintain a road on the land more particularly 27 delineated and described from time to time in the Schedule hereto in accordance 28 with the provisions of the Agreement and proposals approved under the 29 Agreement for a term of 4 years commencing on the date hereof (subject to the 30 sooner determination of the term upon the cessation or determination of the 31 Agreement) and for the purposes and upon and subject to the terms covenants 32 and conditions set out in the Agreement and the Mining Act 1978 as it applies to 33 this licence, and any amendments to the Agreement and the Mining Act 1978 34 from time to time and to the terms and conditions (if any) now or hereafter 35 endorsed hereon and the payment of rentals in respect of this licence in 36 accordance with clause 9D(6)(a)(ii) of the Agreement PROVIDED ALWAYS 37 that this licence shall not be determined or forfeited otherwise than in 38 accordance with the Agreement. 39 page 223 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 In this licence: 2 3 - If the Company be more than one the liability of the Company 4 hereunder shall be joint and several. 5 6 - Reference to an Act includes all amendments to that Act for the time 7 being in force and also any Act passed in substitution therefore or in 8 lieu thereof and to the regulations and by-laws of the time being in 9 force thereunder. 10 11 - Reference to "the Agreement" means such agreement as from time to 12 time added to, varied or amended. 13 14 ENDORSEMENTS AND CONDITIONS 15 16 Endorsements 17 18 1. This licence is granted in accordance with proposals submitted on 19 [ ], and approved by the Minister (as defined in the Agreement) on 20 [ ], under the Agreement. 21 22 2. [Any further endorsement which the Minister for Mines may, 23 consistent with the provisions of the Agreement, determines and 24 thereafter impose in respect of this licence including during the term 25 of the Agreement.] 26 27 Conditions 28 29 [Such conditions which the Minister for Mines may, consistent with the 30 provisions of the Agreement, determines and thereafter impose in respect of the 31 licence, including during the term of the Agreement.] 32 33 SCHEDULE 34 35 Description of land 36 37 Locality: 38 Mineral Field: 39 Area: 40 page 224 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 DATED at Perth this day of . 2 3 MINISTER FOR MINES 4 5 6 FOURTH SCHEDULE 7 8 WESTERN AUSTRALIA 9 10 IRON ORE (ROBE RIVER) AGREEMENT ACT 1964 11 12 MINING ACT 1978 13 14 MISCELLANEOUS LICENCE FOR A LATERAL ACCESS ROAD 15 16 17 No. MISCELLANEOUS LICENCE [ ] 18 19 WHEREAS by the Agreement (hereinafter called "the Agreement") approved 20 by and scheduled to the Iron Ore (Robe River) Agreement Act 1964, as from 21 time to time added to, varied or amended, the State agreed to grant to [ ] 22 (hereinafter with its successors and permitted assigns called "the Company") a 23 miscellaneous licence for the construction use and maintenance of a Lateral 24 Access Road (as defined in the Agreement) AND WHEREAS the Company 25 pursuant to clause 9D(6)(b) of the Agreement has made application for the said 26 licence; 27 28 NOW in consideration of the rents reserved by and the provisions of the 29 Agreement and in pursuance of the Iron Ore (Robe River) Agreement Act 1964, 30 as from time to time added to, varied or amended, the Company is hereby 31 authorised to construct use and maintain a road on the land more particularly 32 delineated and described from time to time in the Schedule hereto in accordance 33 with the provisions of the Agreement and proposals approved under the 34 Agreement for a term of 4 years commencing on the date hereof (subject to the 35 sooner determination of the term upon the cessation or determination of the 36 Agreement) and for the purposes and upon and subject to the terms covenants 37 and conditions set out in the Agreement and the Mining Act 1978 as it applies to 38 this licence, and any amendments to the Agreement and the Mining Act 1978 39 from time to time and to the terms and conditions (if any) now or hereafter 40 endorsed hereon and the payment of rentals in respect of this licence in 41 accordance with clause 9D(6)(b) of the Agreement PROVIDED ALWAYS that page 225 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 this licence shall not be determined or forfeited otherwise than in accordance 2 with the Agreement. 3 4 In this licence: 5 6 - If the Company be more than one the liability of the Company 7 hereunder shall be joint and several. 8 9 - Reference to an Act includes all amendments to that Act for the time 10 being in force and also any Act passed in substitution therefore or in 11 lieu thereof and to the regulations and by-laws of the time being in 12 force thereunder. 13 14 - Reference to "the Agreement" means such agreement as from time to 15 time added to, varied or amended. 16 17 ENDORSEMENTS AND CONDITIONS 18 19 Endorsements 20 21 1. This licence is granted in accordance with proposals submitted on 22 [ ], and approved by the Minister (as defined in the Agreement) on 23 [ ], under the Agreement. 24 25 2. [Any further endorsement which the Minister for Mines may, 26 consistent with the provisions of the Agreement, determines and 27 thereafter impose in respect of this licence including during the term 28 of the Agreement.] 29 30 Conditions 31 32 [Such conditions which the Minister for Mines may, consistent with the 33 provisions of the Agreement, determines and thereafter impose in respect of the 34 licence, including during the term of the Agreement.] 35 page 226 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 SCHEDULE 2 3 Description of land 4 5 Locality: 6 Mineral Field: 7 Area: 8 9 DATED at Perth this day of . 10 11 MINISTER FOR MINES ". 12 13 14 15 page 227 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 EXECUTED as a deed. 2 3 SIGNED by THE HONOURABLE ) 4 COLIN JAMES BARNETT ) [Signature] 5 in the presence of: ) 6 [Signature] STEPHEN WOOD 7 8 9 10 Signed for ROBE RIVER LIMITED ) 11 ACN 008 478 493 by its attorney in the: ) 12 presence of: ) 13 [Signature] [Signature] Witness Signature Attorney Signature 14 HELEN FERNIHOUGH ALAN DAVIES Print Name Print Name 15 16 17 18 THE COMMON SEAL of ROBE ) 19 RIVER MINING CO PTY. LIMITED ) 20 ACN 008 694 246 was hereunto affixed ) [C.S.] 21 by authority of the Directors in the ) 22 presence of: ) 23 [Signature] ALAN DAVIES Director 24 [Signature] HELEN FERNIHOUGH Secretary 25 26 page 228 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 THE COMMON SEAL of ) 2 MITSUI IRON ORE ) 3 DEVELOPMENT PTY. LTD. ) [C.S.] 4 ACN 008 734 361 was hereunto ) 5 affixed by authority of the Directors ) 6 in the presence of: ) 7 [Signature] YOICHI HASHIMOTO Director 8 [Signature] JOHN SMITH Director/Secretary 9 10 11 12 Signed by NORTH MINING ) 13 LIMITED ACN 000 081 434 by ) 14 its attorney in the presence of: ) 15 [Signature] [Signature] Witness Signature Attorney Signature 16 HELEN FERNIHOUGH ALAN DAVIES Print Name Print Name 17 18 page 229 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 CAPE LAMBERT IRON ASSOCIATES 2 3 Signed by NIPPON STEEL ) 4 AUSTRALIA PTY. LTD. ) 5 ACN 001 445 049 by its duly appointed ) 6 attorney MITSUI IRON ORE ) [C.S.] 7 DEVELOPMENT PTY. LTD. ) 8 ACN 008 734 361 hereunto affixing ) 9 its Seal by authority of the Directors ) 10 in the presence of: 11 [Signature] YOICHI HASHIMOTO Director 12 [Signature] JOHN SMITH Director/Secretary 13 14 15 16 Signed by SUMITOMO METAL ) 17 AUSTRALIA PTY. LTD. ) 18 ACN 001 444 604 by its duly appointed ) 19 attorney MITSUI IRON ORE ) [C.S.] 20 DEVELOPMENT PTY. LTD. ) 21 ACN 008 734 361 hereunto affixing ) 22 its Seal by authority of the Directors ) 23 in the presence of: ) 24 [Signature] YOICHI HASHIMOTO Director 25 [Signature] JOHN SMITH Director/Secretary 26 page 230 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Robe River) Agreement Act 1964 amended Part 3 s. 10 1 The COMMON SEAL of MITSUI ) 2 IRON ORE DEVELOPMENT PTY. ) 3 LTD. ACN 008 734 361 was hereunto ) [C.S.] 4 affixed by authority of the Directors in ) 5 the presence of: ) 6 [Signature] YOICHI HASHIMOTO Director 7 [Signature] JOHN SMITH Secretary 8 9 10 11 PANNAWONICA IRON ASSOCIATES 12 13 Signed by NIPPON STEEL ) 14 AUSTRALIA PTY. LTD. ) 15 ACN 001 445 049 by its duly appointed ) 16 attorney MITSUI IRON ORE ) [C.S.] 17 DEVELOPMENT PTY. LTD. ) 18 ACN 008 734 361 hereunto affixing ) 19 its Seal by authority of the Directors ) 20 in the presence of: 21 [Signature] YOICHI HASHIMOTO Director 22 [Signature] JOHN SMITH Secretary 23 24 25 page 231 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 3 Iron Ore (Robe River) Agreement Act 1964 amended s. 10 1 Signed by SUMITOMO METAL ) 2 AUSTRALIA PTY. LTD. ) 3 ACN 001 444 604 by its duly appointed ) 4 attorney MITSUI IRON ORE ) [C.S.] 5 DEVELOPMENT PTY. LTD. ) 6 ACN 008 734 361 hereunto affixing ) 7 its Seal by authority of the Directors ) 8 in the presence of: ) 9 [Signature] YOICHI HASHIMOTO Director 10 [Signature] JOHN SMITH Secretary 11 page 232 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 11 1 Part 4 -- Iron Ore (Mount Bruce) Agreement 2 Act 1972 amended 3 11. Act amended 4 This Part amends the Iron Ore (Mount Bruce) Agreement 5 Act 1972. 6 12. Section 2 amended 7 (1) At the end of section 2 insert: 8 9 the 2010 Variation Agreement means the agreement a 10 copy of which is set forth in the Fourth Schedule. 11 12 (2) In section 2 in the definition of the Agreement delete 13 "Agreement and the 1987 Variation Agreement;" and insert: 14 15 Agreement, the 1987 Variation Agreement, the Iron 16 Ore Agreements Legislation Amendment Act 2010 17 Part 6 and the 2010 Variation Agreement; 18 19 (3) In section 2 in the definition of the 1987 Variation Agreement 20 delete "Schedule." and insert: 21 22 Schedule; 23 24 13. Sections 4B and 4C inserted 25 After section 4A insert: 26 27 4B. 2010 Variation Agreement 28 (1) The 2010 Variation Agreement is ratified and its 29 implementation is authorised. page 233 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 (2) Without limiting or otherwise affecting the 2 Government Agreements Act 1979, the 2010 Variation 3 Agreement is to operate and take effect despite any 4 other Act or law. 5 4C. State empowered under clause 20E(9)(a) 6 The State has power in accordance with 7 clause 20E(9)(a) of the Agreement. 8 9 14. Fourth Schedule inserted 10 After the Third Schedule insert: page 234 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 Fourth Schedule -- 2010 Variation Agreement 2 [s. 2] 3 2010 4 5 6 7 THE HONOURABLE COLIN JAMES BARNETT 8 PREMIER OF THE STATE OF WESTERN AUSTRALIA 9 10 11 AND 12 13 14 MOUNT BRUCE MINING PTY. LTD. 15 ACN 008 714 010 16 17 18 19 20 21 IRON ORE (MOUNT BRUCE) AGREEMENT 1972 22 23 RATIFIED VARIATION AGREEMENT 24 25 26 27 28 [Solicitor's details] 29 30 31 32 33 34 35 36 37 38 39 40 page 235 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 THIS AGREEMENT is made this 17th day of November 2010 2 3 4 BETWEEN 5 6 7 THE HONOURABLE COLIN JAMES BARNETT MLA., Premier of the 8 State of Western Australia acting for and on behalf of the said State and 9 instrumentalities thereof from time to time (State) 10 11 AND 12 13 MOUNT BRUCE MINING PTY. LIMITED ACN 008 714 010 of Level 22, 14 Central Park, 152-158 St Georges Terrace, Perth, Western Australia 15 (Company). 16 17 18 RECITALS 19 20 A. The State and the Company are the parties to the agreement dated 10 21 March 1972 ratified by and scheduled to the Iron Ore (Mount Bruce) 22 Agreement Act 1972 and which as subsequently added to, varied or 23 amended is referred to in this Agreement as the "Principal Agreement". 24 25 B. The State and the Company wish to vary the Principal Agreement. 26 27 28 THE PARTIES AGREE AS FOLLOWS: 29 30 1. Subject to the context, the words and expressions used in this Agreement 31 have the same meanings respectively as they have in and for the purpose 32 of the Principal Agreement. 33 34 2. The State shall introduce and sponsor a Bill in the Parliament of Western 35 Australia to ratify this Agreement and shall endeavour to secure its 36 passage as an Act prior to 31 December 2010 or such later date as the 37 parties may agree. 38 39 3. (a) Clause 4 does not come into operation unless or until an Act passed 40 in accordance with clause 2 ratifies this Agreement. 41 page 236 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 (b) If by 30 June 2011, or such later date as may be agreed pursuant to 2 clause 2, clause 4 has not come into operation then unless the 3 parties hereto otherwise agree this Agreement shall cease and 4 determine and neither party shall have any claim against the other 5 party with respect to any matter or thing arising out of or done or 6 performed or omitted to be done or performed under this 7 Agreement. 8 9 4. The Principal Agreement is hereby varied as follows: 10 (1) in clause 1: 11 (a) by deleting the current definitions of "direct shipping ore", 12 "fine ore", "fines" and f.o.b. revenue"; 13 (b) by inserting in the appropriate alphabetical positions the 14 following new definitions: 15 16 "agreed or determined" means agreed between the Company 17 and the Minister or, failing agreement within three months of 18 the Minister giving notice to the Company that he requires 19 the value of a quantity of iron ore to be agreed or 20 determined, as determined by the Minister (following, if 21 requested by the Company, consultation with the Company 22 and its consultants in regard thereto) and in agreeing or 23 determining a fair and reasonable market value of such iron 24 ore assessed on an arm's length basis the Company and/or 25 the Minister as the case may be shall have regard to: 26 27 (i) in the case of iron ore initially sold at cost pursuant to 28 paragraph (B) of the proviso to clause 12(1)(d), the 29 prices for that type of iron ore prevailing at the time 30 the price for such iron ore was agreed between the 31 arm's length purchaser referred to in paragraph 32 (B)(iii) of that proviso and the seller in relation to the 33 type of sale and the relevant international seaborne 34 iron ore market into which such iron ore was sold and 35 where prices beyond the deemed f.o.b. point are 36 being considered the deductions mentioned in the 37 definition of f.o.b. value; and 38 page 237 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 (ii) in any other case, the prices for that type of iron ore 2 prevailing at the time the price for such iron ore was 3 agreed between the Company and the purchaser in 4 relation to the type of sale and the market into which 5 such iron ore was sold and where prices beyond the 6 deemed f.o.b. point are being considered the 7 deductions mentioned in the definition of f.o.b. value; 8 9 "approved proposal" means a proposal approved or 10 determined under this Agreement; 11 "beneficiated ore" means iron ore that has been concentrated 12 or upgraded (otherwise than solely by crushing, screening, 13 separating by hydrocycloning or a similar technology which 14 uses primarily size as a criterion, washing, scrubbing, 15 trommelling or drying or by a combination of 2 or more of 16 those processes) by the Company in a plant constructed 17 pursuant to a proposal approved pursuant to an Integration 18 Agreement or in such other plant as is approved by the 19 Minister after consultation with the Minister for Mines and 20 "beneficiation" and "beneficiate" have corresponding 21 meanings; 22 "deemed f.o.b. point" means on ship at the relevant loading 23 port; 24 "deemed f.o.b. value" means an agreed or determined value 25 of the iron ore as if the iron ore was sold f.o.b. at the deemed 26 f.o.b. point as at: 27 (a) in the case of iron ore the property of the Company 28 which is shipped out of the said State, the date of 29 shipment; and 30 (b) in any other case, the date of sale, transfer of 31 ownership, disposal or use as the case may be; 32 "EP Act" means the Environmental Protection Act 1986 33 (WA); page 238 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 "fine ore" means iron ore (not being beneficiated ore) which 2 is screened and will pass through a 6.3 millimetre mesh 3 screen; 4 "f.o.b. value" means: 5 (i) subject to paragraph (ii), in the case of iron ore 6 shipped and sold by the Company, the price which is 7 payable for the iron ore by the purchaser thereof to 8 the Company or an associated company or, where the 9 Minister considers, following advice from the 10 appropriate Government department, that the price 11 payable in respect of the iron ore does not represent a 12 fair and reasonable market value for that type of iron 13 ore assessed on an arm's length basis, such amount as 14 is agreed or determined as representing such a fair 15 and reasonable market value, less all export duties 16 and export taxes payable to the Commonwealth on 17 the export of the iron ore and all costs and charges 18 properly incurred and payable by the Company from 19 the time the iron ore shall be placed on ship at the 20 relevant loading port to the time the same is delivered 21 and accepted by the purchaser including: 22 (1) ocean freight; 23 (2) marine insurance; 24 (3) port and handling charges at the port of 25 discharge; 26 (4) all costs properly incurred in delivering the iron 27 ore from port of discharge to the smelter and 28 evidenced by relevant invoices; 29 (5) all weighing sampling assaying inspection and 30 representation costs; 31 (6) all shipping agency charges after loading on 32 and departure of ship from the relevant loading 33 port; page 239 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 (7) all import taxes by the country of the port of 2 discharge; and 3 (8) such other costs and charges as the Minister 4 may in his discretion consider reasonable in 5 respect of any shipment or sale; 6 (ii) in the case of iron ore initially sold at cost pursuant to 7 paragraph (B) of the proviso to clause 12(1)(d), the 8 price which is payable for the iron ore by the arm's 9 length purchaser as referred to in paragraph (B)(iii) 10 of that proviso or, where the Minister considers, 11 following advice from the appropriate Government 12 department, that the price payable in respect of the 13 iron ore does not represent a fair and reasonable 14 market value for that type of iron ore assessed on an 15 arm's length basis in the relevant international 16 seaborne iron ore market, such amount as is agreed or 17 determined as representing such a fair and reasonable 18 market value, less all duties, taxes, costs and charges 19 referred to in paragraph (i) above; 20 (iii) in all other cases, the deemed f.o.b. value. 21 For the purpose of subparagraph (i) of this definition, it is 22 acknowledged that the consideration payable in an arm's 23 length transaction for iron ore sold solely for testing 24 purposes may be less than the fair and reasonable market 25 value for that iron ore and in this circumstance where the 26 Minister in his discretion is satisfied such consideration 27 represents the entire consideration payable, the Minister 28 shall be taken to be satisfied that such entire consideration 29 represents the fair and reasonable market value; 30 "Government agreement" has the meaning given in the 31 Government Agreements Act 1979; page 240 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 "Integration Agreement" means: 2 (a) the agreement approved by and scheduled to the Iron 3 Ore (Hamersley Range) Agreement Act 1963, as from 4 time to time added to, varied or amended; or 5 6 (b) the agreement approved by and scheduled to the Iron 7 Ore (Robe River) Agreement Act 1964, as from time 8 to time added to, varied or amended; or 9 10 (c) the agreement approved by and scheduled to the Iron 11 Ore (Hamersley Range) Agreement Act Amendment 12 Act 1968, as from time to time added to, varied or 13 amended; or 14 15 (d) the agreement ratified by and scheduled to the Iron 16 Ore (Mount Bruce) Agreement Act 1972, as from time 17 to time added to, varied or amended; or 18 19 (e) the agreement ratified by and scheduled to the Iron 20 Ore (Hope Downs) Agreement Act 1992, as from time 21 to time added to, varied or amended; or 22 23 (f) the agreement ratified by and scheduled to the Iron 24 Ore (Yandicoogina) Agreement Act 1996, as from 25 time to time added to, varied or amended; or 26 27 (g) the agreement approved by and scheduled to the Iron 28 Ore (Mount Newman) Agreement Act 1964, as from 29 time to time added to, varied or amended; or 30 31 (h) the agreement approved by and scheduled to the Iron 32 Ore (Mount Goldsworthy) Agreement Act 1964, as 33 from time to time added to, varied or amended; or 34 35 (i) the agreement ratified by and scheduled to the Iron 36 Ore (Goldsworthy-Nimingarra) Agreement Act 1972, 37 as from time to time added to, varied or amended; or 38 39 (j) the agreement authorised by and as scheduled to the 40 Iron Ore (McCamey's Monster) Agreement page 241 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 Authorisation Act 1972, as from time to time added to, 2 varied or amended; or 3 4 (k) the agreement ratified by and scheduled to the Iron 5 Ore (Marillana Creek) Agreement Act 1991, as from 6 time to time added to, varied or amended; 7 8 "Integration Proponent" means in relation to an Integration 9 Agreement, "the Company" or "the Joint Venturers" as the 10 case may be as defined in, and for the purpose of, that 11 Integration Agreement; 12 "iron ore" includes, without limitation, beneficiated ore; 13 14 "laws relating to native title" means laws applicable from 15 time to time in the said State in respect of native title and 16 includes the Native Title Act 1993 (Commonwealth); 17 "loading port" means: 18 (a) the Port of Dampier; or 19 20 (b) Port Walcott; or 21 22 (c) the Port of Port Hedland; or 23 24 (d) any other port constructed after the variation date 25 under an Integration Agreement; or 26 27 (e) such other port approved by the Minister at the 28 request of the Company from time to time for the 29 shipment of iron ore from the mineral lease; 30 "lump ore" means iron ore (not being beneficiated ore) 31 which is screened and will not pass through a 6.3 millimetre 32 mesh screen; 33 "Minister for Mines" means the Minister in the Government 34 of the said State for the time being responsible (under 35 whatsoever title) for the administration of the Mining Act 36 1978 (WA); page 242 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 2 "Related Entity" means a company in which: 3 4 (a) as at 21 June 2010; and 5 6 (b) after 21 June 2010, with the approval of the Minister, 7 8 a direct or (through a subsidiary or subsidiaries within the 9 meaning of the Corporations Act 2001 (Commonwealth)) 10 indirect shareholding of 20% or more is held by: 11 12 (c) Rio Tinto Limited ABN 96 004 458 404; or 13 14 (d) BHP Billiton Limited ABN 49 004 028 077; or 15 16 (e) those companies referred to in paragraphs (c) and (d) 17 in aggregate; 18 19 "variation date" means the date on which clause 4 of the 20 variation agreement made on or about 17 November 2010 21 between the State and the Company comes into operation; 22 "washing" means a process of separation by water using 23 only size as a criterion; 24 (c) in the definition of "alternative investments" by deleting "or 25 of corporations which are related to the Company for the 26 purposes of the Companies (Western Australia) Code"; 27 (d) in the definition of "Company's wharf" by inserting "and in 28 clauses 12(1)(d) and 14(1) also any additional wharf 29 constructed by the Company pursuant to this Agreement"; 30 (e) in the definition of "metallised agglomerates" by deleting "or 31 iron ore concentrates"; 32 (f) in the definition of "mineral lease" by inserting "and any 33 areas added to it pursuant to clause 20B" before the semi 34 colon; page 243 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 (g) in the definition of "secondary processing" by deleting 2 "concentration or other beneficiation of iron ore other than 3 by crushing or screening" and substituting "beneficiation of 4 iron ore"; 5 (h) in the sentence beginning "marginal notes" by inserting "and 6 clause headings" after "marginal notes; and 7 (i) by inserting after that sentence the following new 8 paragraphs: 9 10 "Nothing in this Agreement shall be construed: 11 12 (a) to exempt the Company from compliance with any 13 requirement in connection with the protection of the 14 environment arising out of or incidental to its 15 activities under this Agreement that may be made by 16 or under the EP Act; or 17 18 (b) to exempt the State or the Company from compliance 19 with or to require the State or the Company to do 20 anything contrary to any laws relating to native title or 21 any lawful obligation or requirement imposed on the 22 State or the Company as the case may be pursuant to 23 any laws relating to native title; or 24 25 (c) to exempt the Company from compliance with the 26 provisions of the Aboriginal Heritage Act 1972 27 (WA)."; 28 29 (2) by inserting after subclause (4) of clause 5 the following new 30 subclauses: 31 32 "(4a) A proposal may with the consent of the Minister (except in 33 relation to an Integration Agreement) and that of any parties 34 concerned (being in respect of an Integration Agreement the 35 Integration Proponent for that agreement) provide for the use 36 by the Company of any works installations or facilities 37 constructed or established under a Government agreement. 38 page 244 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 (4b) At the time when the Company submits the said proposals it 2 shall submit to the Minister details of any services (including 3 any elements of the project investigations, design and 4 management) and any works materials, plant, equipment and 5 supplies that it proposes to consider obtaining from or 6 having carried out or permitting to be obtained from or 7 carried out outside Australia together with its reasons 8 therefore and shall, if required by the Minister, consult with 9 the Minister with respect thereto."; 10 11 (3) in clause 5(5) by: 12 13 (a) inserting "(or where required to be assessed under Part IV of 14 the EP Act within 2 months after the service on him of an 15 authority under section 45(7) of the EP Act)" after "(2) 16 months after receipt of the proposals"; 17 18 (b) inserting ", subject to the EP Act,"after "State shall as 19 hereinafter permit"; 20 21 (c) deleting the fourth sentence and substituting the following 22 new sentence: 23 24 "The provisions of paragraphs (a)(except subparagraph (iv)), 25 (b), (c) and the proviso to, and second sentence of, paragraph 26 (d) of subclause (7) shall apply mutatis mutandis to such 27 proposals provided that in his notice to the Company of his 28 decision in respect of the proposals the Minister shall also be 29 at liberty to specify in such notice such alterations to the 30 proposals as are fair and reasonable having regard to the 31 interests of the Company and any other party nominated as 32 aforesaid (including participation in such development and 33 use by another party or other parties nominated by the 34 Minister)."; 35 36 (4) by deleting the heading to subclause (8) of clause 5 and 37 renumbering that subclause as subclause (6a); 38 page 245 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 (5) by deleting subclause (7) of clause 5 and substituting the following 2 new subclause: 3 4 "(7) (a) In respect of each proposal pursuant to subclause (3) 5 of this clause the Minister shall: 6 7 (i) subject to the limitations set out below, refuse 8 to approve the proposal (whether it requests the 9 grant of new tenure or not) if the Minister is 10 satisfied on reasonable grounds that it is not in 11 the public interest for the proposal to be 12 approved; or 13 14 (ii) approve of the proposal without qualification or 15 reservation; or 16 17 (iii) defer consideration of or decision upon the 18 same until such time as the Company submits a 19 further proposal or proposals in respect of some 20 other of the matters mentioned in subclause (3) 21 not covered by the said proposal; or 22 23 (iv) require as a condition precedent to the giving of 24 his approval to the said proposal that the 25 Company make such alteration thereto or 26 comply with such conditions in respect thereto 27 as he thinks reasonable, and in such a case the 28 Minister shall disclose his reasons for such 29 conditions, 30 31 PROVIDED ALWAYS that where 32 implementation of any proposals hereunder has 33 been approved pursuant to the EP Act subject 34 to conditions or procedures, any approval or 35 decision of the Minister under this clause shall 36 if the case so requires incorporate a 37 requirement that the Company make such 38 alterations to the proposals as may be necessary 39 to make them accord with those conditions or 40 procedures. 41 page 246 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 In considering whether to refuse to approve a proposal 2 the Minister is to assess whether or not the 3 implementation of the proposal by itself, or together 4 with any one or more of the other submitted proposals, 5 will: 6 7 (A) detrimentally affect economic and orderly 8 development in the said State, including 9 without limitation, infrastructure development 10 in the said State; or 11 12 (B) be contrary to or inconsistent with the planning 13 and development policies and objectives of the 14 State; or 15 16 (C) detrimentally affect the rights and interests of 17 third parties; or 18 19 (D) detrimentally affect access to and use by others 20 of the lands the subject of any grant or proposed 21 grant to the Company. 22 23 The right to refuse to approve a proposal conferred 24 by subparagraph (i) of paragraph (a) may only be 25 exercised in respect of a proposal where the Minister 26 is satisfied on reasonable grounds that a purpose of 27 the proposal is the integrated use of works 28 installations or facilities (as defined in subclause (7) 29 of clause 20C for the purpose of that clause) as 30 contemplated by clause 20C. It may not be so 31 exercised in respect of a proposal if pursuant to 32 clause 11B(5) the Minister, prior to the submission of 33 the proposal, advised the Company in writing that the 34 Minister has no public interest concerns (as defined 35 in that clause) with the single preferred development 36 (as referred to in clause 11B(5)(a)) the subject of the 37 submitted proposals and those proposals are 38 consistent (as to their substantive scope and content) 39 with the information provided to the Minister 40 pursuant to clause 11B(5) in respect of that single 41 preferred development. page 247 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 2 (b) The Minister shall within 2 months after receipt of 3 proposals pursuant to subclause (3) give notice to the 4 Company of his decision in respect to the proposals, 5 PROVIDED THAT where a proposal is to be 6 assessed under Part IV of the EP Act the Minister 7 shall only give notice to the Company of his decision 8 in respect to the proposal within 2 months after 9 service on him of an authority under section 45(7) of 10 the EP Act. 11 12 (c) If the decision of the Minister is as mentioned in 13 either of subparagraphs (i), (iii) or (iv) of paragraph 14 (a) the Minister shall afford the Company full 15 opportunity to consult with him and should it so 16 desire to submit new or revised proposals either 17 generally or in respect to some particular matter. 18 19 (d) If the decision of the Minister is as mentioned in 20 either of subparagraphs (iii) or (iv) of paragraph (a) 21 and the Company considers that the decision is 22 unreasonable the Company within 2 months after 23 receipt of the notice mentioned in subclause (2) may 24 elect to refer to arbitration in the manner hereinafter 25 provided the question of the reasonableness of the 26 decision PROVIDED THAT any requirement of the 27 Minister pursuant to the proviso to paragraph (a) shall 28 not be referable to arbitration hereunder. A decision 29 of the Minister under subparagraph (i) of paragraph 30 (a) of this subclause shall not be referable to 31 arbitration under the Agreement. 32 33 (e) An award made on an arbitration pursuant to this 34 subclause (7) shall (except as otherwise provided in 35 subclause (5)) have the force and effect as follows: 36 37 (i) if by the award the dispute is decided against 38 the Company then unless the Company within 39 3 months after delivery of the award gives 40 notice to the Minister of its acceptance of the 41 award this Agreement shall on the expiration of page 248 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 that period of 3 months cease and determine; 2 and 3 4 (ii) if by the award the dispute is decided in favour 5 of the Company then decision shall take effect 6 as a notice by the Minister that he is so satisfied 7 with and approves the mater or matters the 8 subject of the arbitration."; 9 10 (6) by inserting after subclause (13) of clause 5 the following new 11 subclauses: 12 13 "(14) The Company shall implement the approved proposals in 14 accordance with the terms thereof. 15 16 (15) Notwithstanding clause 46, the Minister may during the 17 implementation of approved proposals approve variations to 18 those proposals."; 19 20 (7) in clause 7(1)(b) by: 21 22 (a) inserting "or cause to be granted" after "grant"; 23 24 (b) inserting after the paragraph beginning "at peppercorn 25 rental" the following new paragraph: 26 27 "at commercial rentals, licence or easement fees as 28 applicable - leases, licences or easements within the port (as 29 defined in clause 1 or other port within which the Company 30 is permitted to construct works installations or facilities" 31 32 (c) inserting "the Port Authorities Act 1999 (WA)" after "1926"; 33 and 34 35 (d) inserting "installations or facilities" after "Company 36 reasonably requires for its works"; 37 38 (8) by inserting after subclause (4) of clause 7 the following new 39 subclause; 40 page 249 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 "(4a) The provisions of subclauses (1) and (2) of this clause shall 2 not operate so as to require the State to grant or vary, or 3 cause to be granted or varied, any lease licence or other 4 right or title until all processes necessary under any laws 5 relating to native title to enable that grant or variation to 6 proceed, have been completed."; 7 8 (9) in clause 11(1) by: 9 10 (a) in paragraph (a) inserting "(other than under clause 20E)" 11 after "activities beyond"; and 12 13 (b) in the second sentence: 14 15 (i) inserting "subclauses (3) to (6) hereof and of" after 16 "provisions"; and 17 18 (ii) inserting "11A", before "19"; 19 20 (10) by inserting after subclause (2) of clause 11 the following new 21 subclauses: 22 23 "(3) A proposal may with the consent of the Minister (except in 24 relation to an Integration Agreement) and that of any 25 parties concerned (being in respect of an Integration 26 Agreement the Integration Proponent for that agreement) 27 provide for the use by the Company of any works 28 installations or facilities constructed or established under a 29 Government agreement. 30 31 (4) Each of the proposals pursuant to subclause (1) may with 32 the approval of the Minister, or shall, if so required by the 33 Minister, be submitted separately and in any order as to any 34 matter or matters in respect of which such proposals are 35 required to be submitted. 36 37 (5) At the time when the Company submits the said proposals 38 it shall submit to the Minister details of any services 39 (including any elements of the project investigations, 40 design and management) and any works materials, plant, 41 equipment and supplies that it proposes to consider page 250 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 obtaining from or having carried out or permitting to be 2 obtained from or carried out outside Australia together with 3 its reasons therefor and shall, if required by the Minister, 4 consult with the Minister with respect thereto. 5 6 (6) The Company may withdraw its proposals pursuant to 7 subclause (1) at any time before approval thereof, or where 8 any decision in respect thereof is referred to arbitration as 9 referred to in clause 11A, within 3 months after the award 10 by notice to the Minister that it shall not be proceeding 11 with the same."; 12 13 (11) by inserting after clause 11 the following new subclauses: 14 15 "Consideration of Company's proposals under clause 11 16 17 11A. (1) In respect of each proposal pursuant to subclause (1) 18 of clause 11 the Minister shall: 19 20 (a) subject to the limitations set out below, refuse 21 to approve the proposal (whether it requests 22 the grant of new tenure or not) if the Minister 23 is satisfied on reasonable grounds that it is not 24 in the public interest for the proposal to be 25 approved; or 26 27 (b) approve of the proposal without qualification 28 or reservation; or 29 30 (c) defer consideration of or decision upon the 31 same until such time as the Company submits 32 a further proposal or proposals in respect of 33 some other of the matters mentioned in clause 34 11(1) not covered by the said proposal; or 35 36 (d) require as a condition precedent to the giving 37 of his approval to the said proposal that the 38 Company make such alteration thereto or 39 comply with such conditions in respect 40 thereto as he thinks reasonable, and in such a page 251 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 case the Minister shall disclose his reasons for 2 such conditions, 3 4 PROVIDED ALWAYS that where implementation 5 of any proposals hereunder has been approved 6 pursuant to the EP Act subject to conditions or 7 procedures, any approval or decision of the Minister 8 under this clause shall if the case so requires 9 incorporate a requirement that the Company make 10 such alterations to the proposals as may be necessary 11 to make them accord with those conditions or 12 procedures. 13 14 In considering whether to refuse to approve a 15 proposal the Minister is to assess whether or not the 16 implementation of the proposal by itself, or together 17 with any one or more of the other submitted 18 proposals, will: 19 20 (i) detrimentally affect economic and orderly 21 development in the said State, including 22 without limitation, infrastructure development 23 in the said State; or 24 25 (ii) be contrary to or inconsistent with the 26 planning and development policies and 27 objectives of the State; or 28 29 (iii) detrimentally affect the rights and interests of 30 third parties; or 31 32 (iv) detrimentally affect access to and use by 33 others of the lands the subject of any grant or 34 proposed grant to the Company. 35 36 The right to refuse to approve a proposal conferred 37 by paragraph (a) may only be exercised in respect of 38 a proposal where the Minister is satisfied on 39 reasonable grounds that a purpose of the proposal is 40 the integrated use of works installations or facilities 41 (as defined in subclause (7) of clause 20C for the page 252 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 purpose of that clause) as contemplated by clause 2 20C. It may not be so exercised in respect of a 3 proposal if pursuant to clause 11B(5) the Minister, 4 prior to the submission of the proposal, advised the 5 Company in writing that the Minister has no public 6 interest concerns (as defined in that clause) with the 7 single preferred development (as referred to in clause 8 11B(5)(a)) the subject of the submitted proposals and 9 those proposals are consistent (as to their substantive 10 scope and content) with the information provided to 11 the Minister pursuant to clause 11B(5) in respect of 12 that single preferred development. 13 14 (2) The Minister shall within 2 months after receipt of 15 proposals pursuant to clause 11(1) give notice to the 16 Company of his decision in respect to the proposals, 17 PROVIDED THAT where a proposal is to be 18 assessed under Part IV of the EP Act the Minister 19 shall only give notice to the Company of his decision 20 in respect to the proposal within 2 months after 21 service on him of an authority under section 45(7) of 22 the EP Act. 23 24 (3) If the decision of the Minister is as mentioned in 25 either of paragraphs (a), (c) or (d) of subclause (1) the 26 Minister shall afford the Company full opportunity to 27 consult with him and should it so desire to submit 28 new or revised proposals either generally or in 29 respect to some particular matter. 30 31 (4) If the decision of the Minister is as mentioned in 32 either of paragraphs (c) or (d) of subclause (1) and 33 the Company considers that the decision is 34 unreasonable the Company within 2 months after 35 receipt of the notice mentioned in subclause (2) may 36 elect to refer to arbitration in the manner hereinafter 37 provided the question of the reasonableness of the 38 decision PROVIDED THAT any requirement of the 39 Minister pursuant to the proviso to subclause (1) shall 40 not be referable to arbitration hereunder. A decision 41 of the Minister under paragraph (a) of subclause (1) page 253 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 shall not be referable to arbitration under this 2 Agreement. 3 4 (5) If by the award made on the arbitration pursuant to 5 subclause (4) the dispute is decided in favour of the 6 Company the decision shall take effect as a notice by 7 the Minister that he is so satisfied with and approves 8 the matter or matters the subject of the arbitration. 9 10 (6) The Company shall implement the approved 11 proposals in accordance with the terms thereof. 12 13 (7) Notwithstanding clause 46, the Minister may during 14 the implementation of approved proposals approve 15 variations to those proposals. 16 17 Notification of possible proposals 18 19 11B. (1) If the Company, upon completion of a pre-feasibility 20 study in respect of any matter that would require the 21 submission and approval of proposals pursuant to this 22 Agreement (being proposals which will have as their 23 purpose, or one of their purposes, the integrated use 24 of works installations or facilities as contemplated by 25 clause 20C) for the matter to be undertaken, intends 26 to further consider the matter with a view to possibly 27 submitting such proposals it shall promptly notify the 28 Minister in writing giving reasonable particulars of 29 the relevant matter. 30 31 (2) Within one (1) month after receiving the notification 32 the Minister may, if the Minister so wishes, inform 33 the Company of the Minister's views of the matter at 34 that stage. 35 36 (3) If the Company is informed of the Minister's views, it 37 shall take them into account in deciding whether or 38 not to proceed with its consideration of the matter 39 and the submission of proposals. 40 page 254 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 (4) Neither the Minister's response nor the Minister 2 choosing not to respond shall in any way limit, 3 prejudice or otherwise affect the exercise by the 4 Minister of the Minister's powers, or the performance 5 of the Minister's obligations, under this Agreement or 6 otherwise under the laws from time to time of the 7 said State. 8 9 (4) (a) This subclause applies where the Company has 10 settled upon a single preferred development a 11 purpose of which is the integrated use of works 12 installations or facilities (as defined in 13 subclause (7) of clause 20C for the purpose of 14 that clause) as contemplated by clause 20C. 15 16 (b) For the purpose of this subclause "public 17 interest concerns" means any concern that 18 implementation of the single preferred 19 development or any part of it will: 20 21 (i) detrimentally affect economic and 22 orderly development in the said State, 23 including without limitation, 24 infrastructure development in the said 25 State; or 26 27 (ii) be contrary to or inconsistent with the 28 planning and development policies and 29 objectives of the State; or 30 31 (iii) detrimentally affect the rights and 32 interests of third parties; or 33 34 (iv) detrimentally affect access to and use by 35 others of lands the subject of any grant 36 or proposed grant to the Company. 37 38 (c) At any time prior to submission of proposals 39 the Company may give to the Minister notice 40 of its single preferred development and request 41 the Minister to confirm that the Minister has no page 255 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 public interest concerns with that single 2 preferred development. 3 4 (d) The Company shall furnish to the Minister with 5 its notice reasonable particulars of the single 6 preferred development including, without 7 limitation: 8 9 (i) as to the matters that would be required 10 to be addressed in submitted proposals; 11 and 12 13 (ii) its progress in undertaking any 14 feasibility or other studies or matters to 15 be completed before submission of 16 proposals; and 17 18 (iii) its timetable for obtaining required 19 statutory and other approvals in relation 20 to the submission and approval of 21 proposals; and 22 23 (iv) its tenure requirements. 24 25 (e) If so required by the Minister, the Company 26 will provide to the Minister such further 27 information regarding the single preferred 28 development as the Minister may require from 29 time to time for the purpose of considering the 30 Company's request and also consult with the 31 Minister or representatives or officers of the 32 State in regard to the single preferred 33 development. 34 35 (f) Within 2 months after receiving the notice (or 36 if the Minister requests further information, 37 within 2 months after the provision of that 38 information) the Minister must advise the 39 Company: 40 page 256 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 (i) that the Minister has no public interest 2 concerns with the single preferred 3 development; or 4 5 (ii) that he is not then in a position to advise 6 that he has no public interest concerns 7 with the single preferred development 8 and the Minister's reasons in that regard. 9 10 (g) If the Minister gives the advice mentioned in 11 paragraph (f)(ii) the Company may, should it so 12 desire, give a further request to the Minister in 13 respect of a revised or alternate single preferred 14 development and the provisions of this 15 subclause shall apply mutatis mutandis 16 thereto."; 17 18 (12) in clause 12(1) by deleting paragraph (d) and substituting the 19 following new paragraphs: 20 21 "(d) ship, or procure the shipment of, all iron ore mined from the 22 mineral lease, and sold: 23 24 (i) from the Company's wharf; or 25 26 (ii) from any other wharf in a loading port which wharf 27 has been constructed under an Integration Agreement; 28 or 29 30 (iii) with the Minister's approval given before submission 31 of proposals in that regard, from any other wharf in a 32 loading port which wharf has been constructed under 33 another Government agreement (excluding the 34 Integration Agreements), 35 36 and use its best endeavours to obtain therefor the best price 37 possible having regard to market conditions from time to 38 time prevailing PROVIDED THAT: 39 40 (A) this paragraph shall not apply to iron ore used for the 41 production of iron ore concentrates or in a plant for page 257 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 the production of metallised agglomerates or steel in 2 any part of the said State lying north of the twenty 3 sixth parallel of latitude; and 4 5 (B) iron ore from the mineral lease may be sold by the 6 Company prior to or at the time of the shipment under 7 this Agreement at a price equal to the production costs 8 in respect of that iron ore up to the point of sale, if: 9 10 (i) the Minister is notified before the time of 11 shipment that the sale is to be made at cost, 12 providing details of the proposed sale; and 13 14 (ii) the Minister is notified of the proposed 15 arm's length purchaser in the relevant 16 international seaborne iron ore market of the 17 iron ore the subject of the proposed sale at 18 cost; and 19 20 (iii) there is included in the return lodged 21 pursuant to clause 12(1)(i) particulars of the 22 transaction in which the ore sold at cost was 23 subsequently purchased in the relevant 24 international seaborne iron ore market by an 25 arm's length purchaser specifying the 26 purchaser, the seller, the price and the date 27 when the sale was agreed between the arm's 28 length purchaser and the seller; and 29 30 (iv) the arm's length purchaser referred to in (iii) 31 above is not then a designated purchaser as 32 referred to in subclause (1)(da); 33 34 Designated purchaser 35 36 (da) if required by notice in writing from the Minister, provide 37 the Minister within 30 days after receiving the notice with 38 evidence that the transaction as included in the return 39 pursuant to paragraph (B)(iii) of subclause (1)(d) was a sale 40 in the relevant international seaborne iron ore market to an 41 independent participant in that market. If no evidence is page 258 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 provided or the Minister is not so satisfied on the evidence 2 provided or other information obtained, the Minister may by 3 notice to the Company designate the purchaser to be a 4 designated purchaser and that designation will remain in 5 force unless and until lifted by further notice from the 6 Minister to the Company. For the avoidance of doubt, the 7 parties acknowledge that marketing entities forming part of 8 the corporate group including the Company (or part of the 9 parallel corporate group if the Company is part of a dual- 10 listed corporate structure) are not independent participants 11 for the purposes of this subclause;"; 12 13 (13) in paragraph (h) of clause 12(1) by deleting all the words after 14 "(solely for testing purposes)" and substituting the following: 15 16 "(i) on lump ore and on fine ore not sold or shipped separately 17 as such at the rate of 7.5% of the f.o.b. value; 18 19 (ii) on fine ore sold or shipped separately as such at the rate of 20 5.625% of the f.o.b. value; 21 22 (iii) on beneficiated ore at the rate of 5% of the f.o.b. value; and 23 24 (iv) and on all other iron ore at the rate of 7.5% of the f.o.b. 25 value. 26 27 Where beneficiated ore is produced from an admixture of iron ore 28 from the mineral lease and other iron ore a portion (and a portion 29 only) of beneficiated ore so produced being equal to the proportion 30 that the amount of iron in the iron ore from the mineral lease used 31 in the production of beneficiated ore bears to the total amount of 32 iron in the iron ore so used shall be deemed to be produced from 33 iron ore from the mineral lease. 34 35 Where for the purpose of determining f.o.b. value it is necessary to 36 convert an amount or price to Australian currency, the conversion 37 is to be calculated using a rate (excluding forward hedge or similar 38 contract rates) that has been approved by the Minister at the 39 request of the Company and in the absence of such request as 40 determined by the Minister to be a reasonable rate for the purpose. 41 page 259 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 The provisions of regulation 85AA (Effect of GST etc on 2 royalties) of the Mining Regulations 1981 (WA) shall apply 3 mutatis mutandis to the calculation of royalties under this clause."; 4 5 (14) in clause 12(1)(i) by: 6 7 (a) inserting "and also showing such other information in 8 relation to the abovementioned iron ore as the Minister may 9 from time to time reasonably require in regard to, and to 10 assist in verifying, the calculation of royalties in accordance 11 with paragraph (h)," after "due date of the return"; and 12 13 (b) deleting all the words after "calculated on the basis of" and 14 substituting a colon followed by: 15 16 "(i) in the case of iron ore initially sold at cost pursuant to 17 paragraph (B) of the proviso to subclause (1)(d), at 18 the price notified pursuant to paragraph (B)(iii) of 19 that proviso; 20 21 (ii) in any other case, invoices or provisional invoices (as 22 the case may be) rendered by the Company to the 23 purchaser (which invoices the Company shall render 24 without delay simultaneously furnishing copies 25 thereof to the Minister) of such iron ore or on the 26 basis of estimates as agreed or determined, 27 and shall from time to time in the next following appropriate 28 return and payment make (by the return and by cash) all such 29 necessary adjustments (and give to the Minister full details 30 thereof) when the f.o.b. value shall have been finally 31 calculated, agreed or determined;"; 32 33 (15) by deleting paragraph (l) of clause 12(1) and substituting the 34 following new paragraph: 35 36 "(l) permit the Minister or his nominee to inspect at all 37 reasonable times the books, records, accounts, documents 38 (including contracts), data, and information of the Company 39 stored by any means relating to any shipment or sale of iron 40 ore the subject of royalty hereunder and to take copies or page 260 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 extracts (in whatever form) therefrom and for the purpose of 2 determining the f.o.b. value in respect of any shipment sale 3 transfer or other disposal or use or production of iron ore the 4 subject of royalty hereunder the Company will take 5 reasonable steps (i) to provide the Minister with current 6 prices for iron ore and other details and information that may 7 be required by the Minister for the purpose of agreeing or 8 determining the f.o.b. value and (ii) to satisfy the State either 9 by certificate of a competent independent party acceptable to 10 the State or otherwise to the Minister's reasonable 11 satisfaction as to all relevant weights and analyses and will 12 give due regard to any objection or representation made by 13 the Minister or the Minister's nominee as to any particular 14 weight or assay of iron ore which may affect the amount of 15 royalty payable hereunder;"; 16 17 (16) by in clause 12(1) deleting the full stop at the end of paragraph (o), 18 substituting a semi colon and inserting the following new 19 paragraph: 20 21 "Production of books etc in Perth 22 23 (p) shall cause to be produced in Perth in the said State all 24 books, records, accounts, documents (including contracts), 25 data and information of the kind referred to in paragraph (l) 26 to enable the exercise of rights by the Minister or the 27 Minister's nominee under paragraph (l), regardless of the 28 location in which or by whom those books, records, 29 accounts, documents (including contracts), data and 30 information are stored from time to time."; 31 32 (17) by inserting after clause 20 the following new clauses: 33 34 "Blending of iron ore 35 36 20A. (1) The Company may blend iron ore mined from the 37 mineral lease with any: 38 39 (a) iron ore mined from a mining tenement or 40 other mining title granted under, or pursuant 41 to, an Integration Agreement; or page 261 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 2 (b) iron ore mined from a Mining Act 1978 3 mining lease located in, or proximate to, the 4 Pilbara region of the said State which is held 5 by a Related Entity alone or with a third 6 party or parties (excluding any mining lease 7 granted pursuant to, or held under, a 8 Government agreement); or 9 10 (c) with the prior approval of the Minister, iron 11 ore mined in, or proximate to, the Pilbara 12 region of the said State under a Government 13 agreement (excluding an Integration 14 Agreement); or 15 16 (d) with the prior approval of the Minister, iron 17 ore mined by a third party from a Mining 18 Act 1978 mining lease located in, or 19 proximate to, the Pilbara region of the said 20 State (excluding under a Government 21 agreement) which has been purchased by an 22 Integration Proponent from the third party. 23 24 (2) The authority given under subclause (1) is subject 25 to the Minister being reasonably satisfied that there 26 are in place adequate systems and controls for the 27 correct apportionment of the quantities of iron ore 28 being blended as between each of the sources 29 referred to in subclause (1), which systems and 30 controls monitor production, processing, 31 transportation, stockpiling and shipping of all such 32 iron ore. If at any time the Minister ceases to be so 33 satisfied he may, after consulting the Company and 34 provided the Company has not within three (3) 35 months after the commencement of such 36 consultation addressed the matters of concern to the 37 Minister to his satisfaction, by notice in writing to 38 the Company suspend the above authority in respect 39 of the relevant blending arrangements until he is 40 again satisfied in terms of this subclause (2). 41 page 262 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 (3) If any blending of iron ore occurs as contemplated 2 by this clause, then for the purposes of paragraphs 3 (h) and (i) of clause 12(1), a portion of the iron ore 4 so blended being equal to the proportion that the 5 amount of iron ore from the mineral lease used in 6 the admixture of iron ore bears to the total amount 7 of iron ore so blended, shall be deemed to be 8 produced from the mineral lease. 9 10 Additional areas 11 12 20B. (1) Notwithstanding the provisions of the Mining Act 13 or the Mining Act 1978 the Company may from 14 time to time during the currency of this Agreement 15 apply to the Minister for areas held by the Company 16 or an associated company under a mining tenement 17 granted under the Mining Act 1978 to be included 18 in the mineral lease but so that the total area of the 19 mineral lease, any land that may be included in the 20 mineral lease pursuant to this Agreement and of any 21 other mineral lease or mining lease granted under or 22 pursuant to this Agreement (as aggregated) shall not 23 at any time exceed 777 square kilometres. The 24 Minister shall confer with the Minister for Mines in 25 regard to any such application and if they approve 26 the application the Minister for Mines shall upon 27 the surrender of the relevant mining tenement 28 include the area the subject thereof in the mineral 29 lease by endorsement subject to such of the 30 conditions of the surrendered mining tenement as 31 the Minister for Mines determines but otherwise 32 subject to the same terms covenants and conditions 33 as apply to the mineral lease (with such 34 apportionment of rents as is necessary) and 35 notwithstanding that the survey of such additional 36 land has not been completed but subject to 37 correction to accord with the survey when 38 completed at the Company's expense. 39 40 (2) The Minister may approve, upon application by the 41 Company from time to time, for the total area page 263 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 referred to in subclause (1) to be increased up to a 2 limit not exceeding 1,000 square kilometres. 3 4 (3) The Company shall not mine or carry out other 5 activities (other than exploration, bulk sampling and 6 testing) on any area or areas added to the mineral 7 lease pursuant to subclause (1) of this clause unless 8 and until proposals with respect thereto are 9 approved or determined pursuant to the subsequent 10 provisions of this clause. 11 12 (4) If the Company desires to commence mining of iron 13 ore or to carry out any other activities (other than as 14 aforesaid) on the said areas it shall give notice of 15 such desire to the Minister and shall within 2 16 months of the date of such notice (or thereafter 17 within such extended time as the Minister may 18 allow as hereinafter provided) and subject to the 19 provisions of this Agreement submit to the Minister 20 to the fullest extent reasonably practicable its 21 detailed proposals (which proposals shall include 22 plans where practicable and specifications where 23 reasonably required by the Minister) with respect to 24 such mining or other activities as additional 25 proposals pursuant to clause 11. 26 27 Integrated use of works, installations or facilities under the 28 Integration Agreements 29 30 20C. (1) Subject to subclauses (2) to (7) of this clause and to 31 the other provisions of this Agreement, the 32 Company may during the continuance of this 33 Agreement: 34 35 (a) use any existing or new works installations 36 or facilities constructed or held: 37 38 (i) under this Agreement; or 39 40 (ii) under any other Integration 41 Agreement which are made available page 264 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 for such use and during the 2 continuance of such Integration 3 Agreement; or 4 5 (iii) with the approval of the Minister, 6 under a Government agreement 7 (excluding an Integration 8 Agreement) which are made 9 available for such use and during the 10 continuance of that agreement, 11 12 (wholly or in part) in the activities of the Company 13 carried on by it pursuant to this Agreement 14 including, without limitation, as part of those 15 activities, transporting by railway and shipping 16 from a loading port and undertaking any ancillary 17 and incidental activities in doing so (including, 18 without limitation, blending permitted by clause 19 20A) of: 20 21 (A) iron ore mined from a Mining Act 22 1978 mining lease located in, or 23 proximate to, the Pilbara region of 24 the said State which is held by a 25 Related Entity alone or with a third 26 party or parties (excluding any 27 mining lease granted pursuant to, or 28 held under, a Government 29 agreement); 30 31 (B) with the prior approval of the 32 Minister, iron ore mined in, or 33 proximate to, the Pilbara region of 34 the said State under a Government 35 agreement (excluding an Integration 36 Agreement); 37 38 (C) with the prior approval of the 39 Minister, iron ore mined by a third 40 party from a Mining Act 1978 41 mining lease located in, or proximate page 265 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 to, the Pilbara region of the said State 2 (excluding under a Government 3 agreement) which has been 4 purchased by the Company from the 5 third party; 6 7 (D) iron ore mined under an Integration 8 Agreement; 9 10 (b) make any existing or new works 11 installations or facilities constructed or held 12 under this Agreement available for use 13 (wholly or partly) by another Integration 14 Proponent during the continuance of its 15 Integration Agreement in the activities of 16 that Integration Proponent carried on by it 17 pursuant to its Integration Agreement 18 including, without limitation, as part of 19 those activities, transporting by railway and 20 shipping from a loading port and 21 undertaking any ancillary and incidental 22 activities in doing so (including, without 23 limitation, blending permitted by that 24 Integration Agreement) of: 25 26 (i) iron ore mined from a Mining Act 27 1978 mining lease located in, or 28 proximate to, the Pilbara region of the 29 said State which is held by a Related 30 Entity alone or with a third party or 31 parties (excluding any mining lease 32 granted pursuant to, or held under, a 33 Government agreement); 34 35 (ii) with the prior approval of the Minister 36 (as defined in that Integration 37 Agreement), iron ore mined in, or 38 proximate to, the Pilbara region of the 39 said State under a Government 40 agreement (excluding an Integration 41 Agreement); page 266 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 2 (iii) with the prior approval of the Minister 3 (as defined in that Integration 4 Agreement), iron ore mined by a third 5 party from a Mining Act 1978 mining 6 lease located in, or proximate to, the 7 Pilbara region of the said State 8 (excluding under a Government 9 agreement) which has been purchased 10 by that Integration Proponent from the 11 third party; 12 13 (iv) iron ore mined under an Integration 14 Agreement; 15 16 (c) make any existing or new works 17 installations or facilities constructed or held 18 under this Agreement available for use 19 (wholly or partly) in connection with 20 operations under: 21 22 (i) a Mining Act 1978 mining lease 23 located in, or proximate to, the Pilbara 24 region of the said State, for iron ore, 25 which is held by a Related Entity 26 alone or with a third party or parties 27 (excluding any mining lease granted 28 pursuant to, or held under a 29 Government agreement); or 30 31 (ii) with the approval of the Minister, a 32 Government agreement (other than an 33 Integration Agreement) for the mining 34 of iron ore in, or proximate to, the 35 Pilbara region of the said State; 36 37 (d) subject to subclause (2), under this 38 Agreement and for the purpose of any use 39 or making available for use referred to in 40 paragraph (a), (b) or (c) connect any existing 41 or new works installations or facilities page 267 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 constructed or held under this Agreement to 2 any existing or new works installations or 3 facilities constructed or held under another 4 Integration Agreement; 5 6 (e) subject to subclause (2), under this 7 Agreement and for the purpose of any use or 8 making available for use referred to in 9 paragraph (a), (b) or (c) or making of any 10 connection referred to in paragraph (d) 11 construct new works installations or 12 facilities and expand modify or otherwise 13 vary any existing and new works 14 installations or facilities constructed or held 15 under this Agreement; 16 17 (f) allow a railway or rail spur line (not being a 18 railway or rail spur line constructed or held 19 under an Integration Agreement) to be 20 connected to a railway or rail spur line or 21 other works installations or facilities 22 constructed or held under this Agreement for 23 the delivery of iron ore to an Integration 24 Proponent for transport by railway and 25 shipping from a loading port (together with 26 any ancillary and incidental activities in 27 doing so) as part of its activities under its 28 Integration Agreement; and 29 30 (g) allow an electricity transmission line (not 31 being an electricity transmission line 32 constructed or held under an Integration 33 Agreement) to be connected to an electricity 34 transmission line constructed or held under 35 this Agreement for the supply of electricity 36 permitted to be made under an Integration 37 Agreement. 38 39 (2) (a) A connection referred to in clause (1)(d) or 40 construction, expansion, modification or 41 other variation referred to in subclause (1)(e) page 268 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 by the Company shall, to the extent not 2 already authorised under this Agreement as 3 at the variation date, be regarded as a 4 significant modification expansion or other 5 variation of the Company's activities carried 6 on by it pursuant to this Agreement and may 7 only be made in accordance with proposals 8 submitted and approved or determined under 9 this Agreement in accordance with clauses 10 11 and 11A or clause 20E as the case may 11 require and otherwise in compliance with 12 the provisions of this Agreement and the 13 laws from time to time of the said State. For 14 the avoidance of doubt, the parties 15 acknowledge that any use or making 16 available for use contemplated by subclause 17 (1)(a), (1)(b) or (1)(c) shall not otherwise 18 than as required by this paragraph (a) require 19 the submission and approval of further 20 proposals under this Agreement. 21 22 (b) The Company shall not be entitled to: 23 24 (i) submit proposals to develop a port or 25 harbour otherwise than as permitted 26 by clause 5 or to establish harbour or 27 port works installations or facilities, 28 or to expand modify or otherwise 29 vary harbour or works installations 30 or facilities other than within the 31 boundaries of the port (as defined by 32 clause 1) or as permitted by clause 5; 33 or 34 35 (ii) generate and supply power, take and 36 supply water or dispose of water 37 otherwise than in accordance with 38 the other clauses of this Agreement 39 and subject to any restrictions 40 contained in those clauses; or 41 page 269 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 (iii) without limiting subparagraphs (i) 2 and (ii) submit proposals to construct 3 or establish works installations or 4 facilities of a type, or to make 5 expansions, modifications or other 6 variations of works installations or 7 facilities of a type, which in the 8 Minister's reasonable opinion this 9 Agreement, immediately before the 10 variation date, did not permit or 11 contemplate the Company 12 constructing, establishing or making 13 as the case may be otherwise than for 14 integration use as contemplated by 15 subclauses (1)(a), (1)(b) or (1)(c) or 16 as permitted by clause 20E; or 17 18 (iv) submit proposals to make a 19 connection as referred to in subclause 20 (1)(d) or a construction, expansion, 21 modification or other variation as 22 referred to in subclause (1)(e) 23 otherwise than on tenure granted 24 under or pursuant to this Agreement 25 from time to time or held pursuant to 26 this Agreement from time to time; or 27 28 (v) submit proposals to make a 29 connection referred to in subclause 30 (1)(d) or a construction, expansion, 31 modification or other variation as 32 referred to in subclause (1)(e) for the 33 purpose of use as contemplated by 34 subclause (1)(c)(i), if in the 35 reasonable opinion of the Minister 36 the activity which is the subject of 37 the proposals would give to the 38 holder or holders of the relevant 39 Mining Act 1978 mining lease the 40 benefit of rights or powers granted to 41 the Company under this Agreement, page 270 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 over and above the right of access to 2 and use of the relevant works, 3 installations or facilities; or 4 5 (vi) submit proposals to make a 6 connection as referred to in subclause 7 (1)(d) or a construction, expansion, 8 modification or other variation as 9 referred to in subclause (1)(e) for the 10 purpose of use as contemplated by 11 subclause (1)(c) and involving the 12 grant of tenure without the prior 13 approval of the Minister; or 14 15 (vii) submit proposals to assign, sublet, 16 transfer or dispose of any works 17 installations or facilities constructed 18 or held under this Agreement or any 19 leases, licences, easements or other 20 titles under or pursuant to this 21 Agreement for any purpose referred 22 to in this clause. 23 24 (c) Notwithstanding the provisions of clauses 25 11A and 20E, the Minister may defer 26 consideration of, or a decision upon, a 27 proposal submitted by the Company for a 28 connection as referred to in subclause (1)(d) 29 or a construction, expansion, modification or 30 other variation as referred to in subclause 31 (1)(e), for the purpose of use or making 32 available for use as referred to in subclauses 33 (1)(a) or (1)(b), until relevant corresponding 34 proposals under the relevant Integration 35 Agreement have been submitted and those 36 proposals can be approved under that 37 Integration Agreement concurrently with the 38 Minister's approval under this Agreement of 39 the Company's proposal. 40 page 271 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 (3) Any use or making available for use as referred to 2 in subclause (1), or submission of proposals as 3 referred to in subclause (2), in respect of a Related 4 Entity shall be subject to the Company first 5 confirming with the Minister that the Minister is 6 satisfied that the relevant company is a Related 7 Entity. 8 9 (4) The Company shall give the Minister prior written 10 notice of any significant change (other than a 11 temporary one for maintenance or to respond to an 12 emergency) proposed in its use, or in it making 13 available for use, works, installations or facilities as 14 referred to in this clause: 15 16 (a) from that authorised under this Agreement 17 immediately before the variation date; and 18 19 (b) subsequently from that previously notified to 20 the Minister under this subclause, 21 22 as soon as practicable before such change occurs. 23 24 The Company shall also keep the Minister fully 25 informed with respect to any proposed connection 26 as referred to in subclause (1)(f) or (1)(g) or request 27 of the Company for such connection to be allowed. 28 29 (5) Nothing in this Agreement shall be construed to: 30 31 (a) exempt another Integration Proponent from 32 complying with, or the application of, the 33 provisions of its Integration Agreement; or 34 35 (b) restrict the Company's rights under clause 36 43. 37 38 For the avoidance of doubt the approval of 39 proposals under this Agreement shall not be 40 construed as authorising another Integration page 272 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 Proponent to undertake any activities under this 2 Agreement or under another Integration Agreement. 3 4 (6) Nothing in this clause shall be construed to exempt 5 the Company from complying with, or the 6 application of, the other provisions of this 7 Agreement including, without limitation, clause 43 8 and of relevant laws from time to time of the said 9 State. 10 11 (7) For the purpose of this clause "works installations 12 or facilities" means any: 13 14 (a) harbour or port works installations or 15 facilities including, without limitation, 16 stockpiles, reclaimers, conveyors and 17 wharves; 18 19 (b) railway or rail spur lines; 20 21 (c) track structures and systems associated with 22 the operation and maintenance of a railway 23 including, without limitation, sidings, train 24 control and signalling systems, maintenance 25 workshops and terminal yards; 26 27 (d) train loading and unloading works 28 installations or facilities; 29 30 (e) conveyors; 31 32 (f) private roads; 33 34 (g) mine aerodrome and associated aerodrome 35 works installations and facilities; 36 37 (h) iron ore mining, crushing, screening, 38 beneficiation or other processing works 39 installations or facilities; 40 page 273 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 (i) mine administration buildings including, 2 without limitation, offices, workshops and 3 medical facilities; 4 5 (j) borrow pits; 6 7 (k) accommodation and ancillary facilities 8 including, without limitation, construction 9 camps and in townsites constructed pursuant 10 to and held under any Integration 11 Agreement; 12 13 (l) water, sewerage, electricity, gas and 14 telecommunications works installations and 15 facilities including, without limitation, 16 pipelines, transmission lines and cables; and 17 18 (m) any other works installations or facilities 19 approved of by the Minister for the purpose 20 of this clause. 21 22 Transfer of rights to shared works installations or facilities 23 24 20D. (1) For the purposes of this clause "Relevant 25 Infrastructure" means any works installations or 26 facilities (as defined in clause 20C(7)): 27 28 (a) constructed or held under another 29 Integration Agreement; 30 31 (b) which the Company is using in its activities 32 pursuant to this Agreement; 33 34 (c) which the Minister is satisfied (after 35 consulting with the Company and the 36 Integration Proponent for that other 37 Integration Agreement): 38 39 (i) are no longer required by that other 40 Integration Proponent to carry on its 41 activities pursuant to its Integration page 274 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 Agreement because of the cessation 2 of the Integration Proponent's mining 3 operations in respect of which such 4 Relevant Infrastructure was 5 constructed or held or because of any 6 other reason acceptable to the 7 Minister; and 8 9 (ii) are required by the Company to 10 continue to carry on its activities 11 pursuant to this Agreement; and 12 13 (d) in respect of which that other Integration 14 Proponent has notified the Minister it 15 consents to the Company submitting 16 proposals as referred to in subclause (2). 17 18 (2) The Company may as an additional proposal 19 pursuant to clause 11 propose: 20 21 (a) that it be granted a lease licence or other title 22 over the Relevant Infrastructure pursuant to 23 this Agreement subject to and conditional 24 upon the other Integration Proponent 25 surrendering wholly or in part (and upon 26 such terms as the Minister considers 27 reasonable including any variation of terms 28 to address environmental issues) its lease 29 licence or other title over the Relevant 30 Infrastructure; or 31 32 (b) that the other Integration Proponent's lease 33 licence or other title (not being a mineral 34 lease, mining lease or other right to mine 35 title granted under a Government agreement, 36 the Mining Act 1904 or the Mining Act 37 1978) to the Relevant Infrastructure be 38 transferred to this Agreement (to be held by 39 the Company pursuant to this Agreement) 40 with such surrender of land from it and 41 variations of its terms as the Minister page 275 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 considers reasonable for that title to be held 2 under this Agreement including, without 3 limitation, to address environmental issues 4 and outstanding obligations of that other 5 Integration Proponent under its Integration 6 Agreement in respect of that Relevant 7 Infrastructure. 8 9 The provisions of clause 11A shall mutatis 10 mutandis apply to any such additional proposal. In 11 addition the Company acknowledges that the 12 Minister may require variations of the other 13 Integration Agreement and/or proposals under it or 14 of this Agreement in order to give effect to the 15 matters contemplated by this clause. 16 17 (3) This clause shall cease to apply in the event the 18 State gives any notice of default to the Company 19 pursuant to clause 21 and while such notice remains 20 unsatisfied. 21 22 Miscellaneous Licences for Railways 23 24 20E. (1) In this clause subject to the context: 25 26 "Additional Infrastructure" means: 27 28 (a) Train Loading Infrastructure; 29 30 (b) Train Unloading Infrastructure; 31 32 (c) a conveyor, train unloading and other 33 infrastructure necessary for the transport of 34 iron ore, freight goods or other products from 35 the Railway (directly or indirectly) to port 36 facilities within a loading port, 37 38 in each case located outside a Port; 39 40 "LAA" means the Land Administration Act 1997 41 (WA); page 276 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 2 "Lateral Access Roads" has the meaning given in 3 subclause (3)(a)(iv)); 4 5 "Lateral Access Road Licence" means a 6 miscellaneous licence granted pursuant to subclause 7 (6)(a)(ii) or subclause (6)(b) as the case may be and 8 according to the requirements of the context 9 describes the area of land from time to time the 10 subject of that licence; 11 12 "Port" means any port the subject of the Port 13 Authorities Act 1999 (WA) or the Shipping and 14 Pilotage Act 1967 (WA); 15 16 "Private Roads" means Lateral Access Roads and 17 the Company's access roads within a Railway 18 Corridor; 19 20 "Rail Safety Act" means the Rail Safety Act 1998 21 (WA); 22 23 "Railway" means a standard gauge heavy haul 24 railway or railway spur line, located or to be located 25 as the case may be in, or proximate to, the Pilbara 26 region of the said State (but outside the boundaries 27 of a Port) for the transport of iron ore, freight goods 28 and other products together with all railway track, 29 associated track structures including sidings, 30 turning loops, over or under track structures, 31 supports (including supports for equipment or items 32 associated with the use of a railway) tunnels, 33 bridges, train control systems, signalling systems, 34 switch and other gear, communication systems, 35 electric traction infrastructure, buildings (excluding 36 office buildings, housing and freight centres), 37 workshops and associated plant, machinery and 38 equipment and including rolling stock maintenance 39 facilities, terminal yards, depots, culverts and weigh 40 bridges which railway is or is to be (as the case may 41 be) the subject of approved proposals under page 277 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 subclause (4) and includes any expansion or 2 extension thereof outside a Port which is the subject 3 of additional proposals approved in accordance with 4 subclause (5); 5 6 "Railway Corridor" means, prior to the grant of a 7 Special Railway Licence, the land for the route of 8 the Railway the subject of that licence, access roads 9 (other than Lateral Access Roads), areas from 10 which stone, sand, clay and gravel may be taken, 11 temporary accommodation facilities for the railway 12 workforce, water bores and Additional 13 Infrastructure (if any) which is the subject of a 14 subsisting agreement pursuant to subclause (3)(a) 15 and after the grant of the Special Railway Licence 16 the land from time to time the subject of that 17 Special Railway Licence; 18 19 "Railway Operation" means the construction and 20 operation under this Agreement of the relevant 21 Railway and associated access roads and Additional 22 Infrastructure (if any) within the relevant Railway 23 Corridor and of the associated Lateral Access 24 Roads, in accordance with approved proposals; 25 26 "Railway spur line" means a standard gauge heavy 27 haul railway spur line located or to be located in, or 28 proximate to, the Pilbara region of the said State 29 (but outside a Port) connecting to a Railway for the 30 transport of iron ore, freight goods and other 31 products upon the Railway to (directly or indirectly) 32 a loading port; 33 34 "Railway Operation Date" means the date of the 35 first carriage of iron ore, freight goods or other 36 products over the relevant Railway (other than for 37 construction or commissioning purposes); 38 39 "Railway spur line Operation Date" means the date 40 of the first carriage of iron ore, freight goods or 41 other products over the relevant Railway spur line page 278 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 (other than for construction or commissioning 2 purposes); 3 4 "Special Railway Licence" means the relevant 5 miscellaneous licence for railway and, if applicable, 6 other purposes, granted to the Company pursuant to 7 subclause (6)(a)(i) as varied in accordance with 8 subclause (6)(h) or subclause (6)(i) and according to 9 the requirements of the context describes the area of 10 land from time to time the subject of that licence; 11 12 "Train Loading Infrastructure" means conveyors, 13 stockpile areas, blending and screening facilities, 14 stackers, re-claimers and other infrastructure 15 reasonably required for the loading of iron ore, 16 freight goods or other products onto the relevant 17 Railway for transport (directly or indirectly) to a 18 loading port; and 19 20 "Train Unloading Infrastructure" means train 21 unloading infrastructure reasonably required for the 22 unloading of iron ore from the Railway to be 23 processed, or blended with other iron ore, at 24 processing or blending facilities in the vicinity of 25 that train unloading infrastructure and with the 26 resulting iron ore products then loaded on to the 27 Railway for transport (directly or indirectly) to a 28 loading port. 29 30 Company to obtain prior Ministerial in-principle approval 31 32 (2) (a) If the Company wishes, from time to time 33 during the continuance of this Agreement, to 34 proceed under this clause with a plan to 35 develop a Railway it shall give notice thereof 36 to the Minister and furnish to the Minister 37 with that notice an outline of its plan. 38 39 (b) The Minister shall within one month of a 40 notice under paragraph (a) advise the 41 Company whether or not he approves in- page 279 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 principle the proposed plan. The Minister 2 shall afford the Company full opportunity to 3 consult with him in respect of any decision of 4 the Minister under this paragraph. 5 6 (c) The Minister's in-principle approval in respect 7 of a proposed plan shall lapse if the Company 8 has not submitted detailed proposals to the 9 Minister in respect of that plan in accordance 10 with this clause within 18 months of the 11 Minister's in-principle approval. 12 13 Railway Corridor 14 15 (3) (a) If the Minister gives in-principle approval to a 16 plan of the Company to develop a Railway it 17 shall consult with the Minister to seek the 18 agreement of the Minister as to: 19 20 (i) where the Railway will begin and end; 21 and 22 23 (ii) a route for the Railway, access roads 24 to be within the Railway Corridor and 25 the land required for that route as well 26 as Additional Infrastructure (if any) 27 including, without limitation, areas 28 from which stone, sand, clay and 29 gravel may be taken, temporary 30 accommodation facilities for the 31 railway workforce and water bores; 32 and 33 34 (iii) in respect of Additional Infrastructure 35 (if any) the nature and capacity of such 36 Additional Infrastructure; and 37 38 (iv) the routes of, and the land required for, 39 roads outside the Railway Corridor 40 (and also outside a Port) for access to 41 it to construct the Railway (such roads page 280 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 as agreed being "Lateral Access 2 Roads"). 3 4 In seeking such agreement, regard shall be 5 had to achieving a balance between 6 engineering matters including costs, the 7 nature and use of any lands concerned and 8 interests therein and the costs of acquiring the 9 land (all of which shall be borne by the 10 Company). The parties acknowledge the 11 intention is for the Company to construct the 12 Railway, the access roads for the construction 13 and maintenance of the Railway which are to 14 be within the Railway Corridor and the 15 relevant Additional Infrastructure (if any) 16 along the centreline of the Railway Corridor 17 subject to changes in that alignment to the 18 extent necessary to avoid heritage, 19 environmental or poor ground conditions that 20 are not identified during preliminary 21 investigation work, and recognise the width of 22 the Railway Corridor may need to vary along 23 its route to accommodate Additional 24 Infrastructure (if any), access roads, areas 25 from which stone, sand, clay and gravel may 26 be taken, temporary accommodation facilities 27 for the railway workforce and water bores. 28 The provisions of clause 53 shall not apply to 29 this subclause. 30 31 (b) If the date by which the Company must 32 submit detailed proposals under subclause 33 (4)(a) (as referred to in subclause (2)(c)) is 34 extended or varied by the Minister pursuant to 35 clause 52, any agreement made pursuant to 36 paragraph (a) before such date is extended or 37 varied shall unless the Minister notifies the 38 Company otherwise be deemed to be at an 39 end and neither party shall have any claim 40 against the other in respect of it. 41 page 281 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 (c) The Company acknowledges that it shall be 2 responsible for liaising with every title holder 3 in respect of the land affected and for 4 obtaining in a form and substance acceptable 5 to the Minister all unconditional and 6 irrevocable consents of each such title holder 7 to, and all statutory consents required in 8 respect of the land affected for: 9 10 (i) the grant of the Special Railway 11 Licence for the construction, operation 12 and maintenance within the Railway 13 Corridor of the Railway, access roads 14 and Additional Infrastructure (if any) 15 to be within the Railway Corridor; and 16 17 (ii) the grant of Lateral Access Road 18 Licences for the construction, use and 19 maintenance of Lateral Access Roads 20 over the routes for the Lateral Access 21 Roads agreed pursuant to paragraph 22 (a); and 23 24 (iii) the inclusion of additional land in the 25 Special Railway Licence as referred to 26 in subclause (6)(h) or subclause (6)(i), 27 28 in accordance with this clause. For the 29 purposes of this subclause (3)(c), "title 30 holder" means a management body (as 31 defined in the LAA) in respect of any part of 32 the affected land, a person who holds a 33 mining, petroleum or geothermal energy right 34 (as defined in the LAA) in respect of any part 35 of the affected land, a person who holds a 36 lease or licence under the LAA in respect of 37 any part of the affected land, a person who 38 holds any other title granted under or pursuant 39 to a Government agreement in respect of any 40 part of the affected land, a person who holds a 41 lease or licence in respect of any part of the page 282 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 affected land under any other Act applying in 2 the said State and a person in whom any part 3 of the affected land is vested, immediately 4 before the provision of such consents to the 5 Minister as referred to in subclause (4)(e)(ii) 6 (including as applying pursuant to subclause 7 5(d)). 8 9 Company to submit proposals for Railway 10 11 (4) (a) The Company shall, subject to the EP Act, the 12 provisions of this Agreement, agreement at 13 that time subsisting in respect of the matters 14 required to be agreed pursuant to subclause 15 3(a), submit to the Minister by the latest date 16 applying under subclause (2)(c) to the fullest 17 extent reasonably practicable its detailed 18 proposals (including plans where practicable 19 and specifications where reasonably required 20 by the Minister and any other details normally 21 required by a local government in whose area 22 any works are to be situated) with respect to 23 the undertaking of the relevant Railway 24 Operation, which proposals shall include the 25 location, area, layout, design, materials and 26 time program for the commencement and 27 completion of construction or the provision 28 (as the case may be) of each of the following 29 matters namely: 30 31 (i) the Railway including fencing (if any) 32 and crossing places within the Railway 33 Corridor; 34 35 (ii) Additional Infrastructure (if any) 36 within the Railway Corridor; 37 38 (iii) temporary accommodation and 39 ancillary temporary facilities for the 40 railway workforce on, or in the 41 vicinity of, the Railway Corridor and page 283 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 housing and other appropriate facilities 2 elsewhere for the Company's 3 workforce; 4 5 (iv) water supply; 6 7 (v) energy supplies; 8 9 (vi) access roads within the Railway 10 Corridor and Lateral Access Roads 11 both along the routes for those roads 12 agreed between the Minister and the 13 Company pursuant to subclause 3(a); 14 15 (vii) any other works, services or facilities 16 desired by the Company; and 17 18 (viii) use of local labour, professional 19 services, manufacturers, suppliers 20 contractors and materials and 21 measures to be taken with respect to 22 the engagement and training of 23 employees by the Company, its agents 24 and contractors. 25 26 (b) Proposals pursuant to paragraph (a) must 27 specify the matters agreed for the purpose 28 pursuant to subclause (3)(a) and must not be 29 contrary to or inconsistent with such agreed 30 matters. 31 32 (c) Each of the proposals pursuant to paragraph 33 (a) may with the approval of the Minister, or 34 must if so required by the Minister, be 35 submitted separately and in any order as to the 36 matter or matters mentioned in one or more of 37 subparagraphs (i) to (viii) of paragraph (a) 38 and until all of its proposals under this 39 subclause have been approved the Company 40 may withdraw and may resubmit any proposal 41 but the withdrawal of any proposal shall not page 284 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 affect the obligations of the Company to 2 submit a proposal under this subclause in 3 respect of the subject matter of the withdrawn 4 proposal. 5 6 (d) The Company shall, whenever any of the 7 following matters referred to in this subclause 8 are proposed by the Company (whether before 9 or during the submission of proposals under 10 this subclause), submit to the Minister details 11 of any services (including any elements of the 12 project investigations, design and 13 management) and any works, materials, plant, 14 equipment and supplies that it proposes to 15 consider obtaining from or having carried out 16 or permitting to be obtained from or carried 17 out outside Australia, together with its reasons 18 therefor and shall, if required by the Minister 19 consult with the Minister with respect thereto. 20 21 (e) At the time when the Company submits the 22 last of the said proposals pursuant to this 23 subclause, it shall: 24 25 (i) furnish to the Minister's reasonable 26 satisfaction evidence of all 27 accreditations under the Rail Safety 28 Act which are required to be held by 29 the Company or any other person for 30 the construction of the Railway; and 31 32 (ii) furnish to the Minister the written 33 consents referred to in subclause 34 (3)(c)(i) and (3)(c)(ii). 35 36 (f) The provisions of clause 11A shall apply 37 mutatis mutandis to detailed proposals 38 submitted under this subclause. 39 page 285 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 Additional Railway Proposals 2 3 (5) (a) If the Company at any time during the 4 currency of a Special Railway Licence desires 5 to construct a Railway spur line (connecting 6 to the Railway the subject of that Special 7 Railway Licence) or desires to significantly 8 modify, expand or otherwise vary its activities 9 within the land the subject of the Special 10 Railway Licence that are the subject of this 11 Agreement and that may be carried on by it 12 pursuant to this Agreement (other than by the 13 construction of a Railway spur line) beyond 14 those activities specified in any approved 15 proposals for that Railway, it shall give notice 16 of such desire to the Minister and furnish to 17 the Minister with that notice an outline of its 18 proposals in respect thereto (including, 19 without limitation, such matters mentioned in 20 subclause (4)(a) as are relevant or as the 21 Minister otherwise requires). 22 23 (b) If the notice relates to a Railway spur line, or 24 to the construction of Train Loading 25 Infrastructure or Train Unloading 26 Infrastructure on land outside the then 27 Railway Corridor, the Minister shall within 28 one month of receipt of such notice advise the 29 Company whether or not he approves in- 30 principle the proposed construction of such 31 spur line, Train Loading Infrastructure or 32 Train Unloading Infrastructure. If the 33 Minister gives in-principle approval the 34 Company may (but not otherwise) submit 35 detailed proposals in respect thereof provided 36 that the provisions of subclause (3) shall 37 mutatis mutandis apply prior to submission of 38 detailed proposals in respect thereof. 39 40 (c) Subject to the EP Act, the provisions of this 41 Agreement and agreement at that time page 286 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 subsisting in respect of any matters required 2 to be agreed pursuant to subclause (3)(a) (as 3 referred to in paragraph (b)), the Company 4 shall submit to the Minister within a 5 reasonable timeframe, as determined by the 6 Minister after receipt of the notice referred to 7 in paragraph (a) (or in the case of a notice 8 referred to in paragraph (b) the giving of the 9 Minister's in-principle consent as referred to 10 in that paragraph), detailed proposals in 11 respect of the proposed construction of such 12 Railway spur line, Train Loading 13 Infrastructure, Train Unloading Infrastructure 14 or other proposed modification, expansion or 15 variation of its activities including such of the 16 matters mentioned in subclause (4)(a) as the 17 Minister may require. 18 19 (d) The provisions of subclause (4) (with the date 20 for submission of proposals being read as the 21 date or time determined by the Minister under 22 paragraph (c) and the reference in subclause 23 (4)(e)(ii) to subclause (3)(c)(i) being read as a 24 reference to subclause (3)(c)(iii)) and of 25 clause 11A shall mutatis mutandis apply to 26 detailed proposals submitted pursuant to this 27 subclause. 28 29 Grant of Tenure 30 31 (6) (a) On application made by the Company to the 32 Minister in such manner as the Minister may 33 determine, not later than 3 months after all its 34 proposals submitted pursuant to subclause 35 (4)(a) have been approved or deemed to be 36 approved and the Company has complied with 37 the provisions of subclause (4)(e), the State 38 notwithstanding the Mining Act 1978 shall 39 cause to be granted to the Company: 40 page 287 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 (i) a miscellaneous licence to conduct 2 within the Railway Corridor and in 3 accordance with its approved proposals 4 all activities (including the taking of 5 stone, sand, clay and gravel, the 6 provision of temporary accommodation 7 facilities for the railway workforce and, 8 subject to the Rights in Water and 9 Irrigation Act 1914 (WA), the operation 10 of water bores) necessary for the 11 planning, design, construction, 12 commissioning, operation and 13 maintenance within the Railway 14 Corridor of the Railway, access roads 15 and Additional Infrastructure (if any) 16 ("the Special Railway Licence") such 17 licence to be granted under and subject 18 to, except as otherwise provided in this 19 Agreement, the Mining Act 1978 in the 20 form of the Third Schedule hereto and 21 subject to such terms and conditions as 22 the Minister for Mines may from time to 23 time consider reasonable and at a rental 24 calculated in accordance with the 25 Mining Act 1978: 26 27 (A) prior to the Railway Operation 28 Date, as if the width of the 29 Railway Corridor were 100 30 metres; and 31 32 (B) on and from the Railway 33 Operation Date, at the rentals 34 from time to time prescribed 35 under the Mining Act 1978; and 36 37 (ii) a miscellaneous licence or licences to 38 allow the construction, use and 39 maintenance of Lateral Access Roads 40 within the routes agreed for those 41 Lateral Access Roads under subclause page 288 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 (3)(a) (each a "Lateral Access Road 2 Licence"), each such licence to be 3 granted under and subject to, except as 4 otherwise provided in this Agreement, 5 the Mining Act 1978 in the form of the 6 Fourth Schedule hereto and subject to 7 such terms and conditions as the 8 Minister for Mines may from time to 9 time consider reasonable and at the 10 rentals from time to time prescribed 11 under the Mining Act 1978. 12 13 (b) On application made by the Company to the 14 Minister in such manner as the Minister may 15 determine, not later than 3 months after its 16 proposals submitted pursuant to subclause 17 (5)(a) for the construction of Lateral Access 18 Roads for access to the Railway Corridor to 19 construct a Railway spur line have been 20 approved or deemed to be approved and the 21 Company has complied with the provisions of 22 subclause (4)(e) (as applying pursuant to 23 subclause (5)(d)), the State notwithstanding 24 the Mining Act 1978 shall cause to be granted 25 to the Company a miscellaneous licence or 26 licences to allow the construction, use and 27 maintenance of Lateral Access Roads within 28 the routes agreed for those Lateral Access 29 Roads under subclause (3)(a)) (as applying 30 pursuant to subclause (5)(b)) (each a "Lateral 31 Access Road Licence"), each such licence to 32 be granted under and subject to, except as 33 otherwise provided in this Agreement, the 34 Mining Act 1978 in the form of the Fifth 35 Schedule hereto and subject to such terms and 36 conditions as the Minister for Mines may 37 from time to time consider reasonable and at 38 the rentals from time to time prescribed under 39 the Mining Act 1978. 40 page 289 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 (c) Notwithstanding the Mining Act 1978, the 2 term of the Special Railway Licence shall, 3 subject to the sooner determination thereof on 4 the cessation or sooner determination of this 5 Agreement, be for a period of 50 years 6 commencing on the date of grant thereof. 7 8 (d) Notwithstanding the Mining Act 1978, the 9 term of any Lateral Access Road Licence 10 shall, subject to the sooner determination 11 thereof on the cessation or sooner 12 determination of this Agreement, be for a 13 period of 4 years commencing on the date of 14 grant thereof. 15 16 (e) Notwithstanding the Mining Act 1978, and 17 except as required to do so by the terms of the 18 Special Railway Licence, the Company shall 19 not be entitled to surrender the Special 20 Railway Licence or any Lateral Access Road 21 Licence or any part or parts of them without 22 the prior consent of the Minister. 23 24 (f) (i) The Company may in accordance with 25 approved proposals take stone, sand, 26 clay and gravel from the Railway 27 Corridor for the construction, operation 28 and maintenance of the Railway 29 constructed within or approved for 30 construction within the Railway 31 Corridor. 32 33 (ii) Notwithstanding the Mining Act 1978 34 no royalty shall be payable under the 35 Mining Act in respect of stone, sand, 36 clay and gravel which the Company is 37 permitted by subparagraph (i) to obtain 38 from the land the subject of the Special 39 Railway Licence. 40 page 290 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 (g) For the purposes of this Agreement and 2 without limiting the operation of paragraphs 3 (a) to (f) inclusive above, the application of 4 the Mining Act 1978 and the regulations 5 made thereunder are specifically modified; 6 7 (i) in section 91(1) by: 8 9 (A) deleting "the mining registrar or 10 the warden, in accordance with 11 section 42 (as read with section 12 92)" and substituting "the 13 Minister"; 14 15 (B) deleting "any person" and 16 substituting "the Company (as 17 defined in the agreement ratified 18 by and scheduled to the Iron Ore 19 (Mount Bruce) Agreement Act 20 1972, as from time to time added 21 to, varied or amended)"; 22 23 (C) deleting "for any one or more of 24 the purposes prescribed" and 25 substituting "for the purpose 26 specified in clause 20E(6)(a)(i), 27 clause 20E(6)(a)(ii) or clause 28 20E(6)(b), of the agreement 29 ratified by and scheduled to the 30 Iron Ore (Mount Bruce) 31 Agreement Act 1972, as from 32 time to time added to, varied or 33 amended"; 34 35 (ii) in section 91(3)(a), by deleting 36 "prescribed form" and substituting 37 "form required by the agreement ratified 38 by and scheduled to the Iron Ore 39 (Mount Bruce) Agreement Act 1972, as 40 from time to time added to, varied or 41 amended"; page 291 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 2 (iii) by deleting sections 91(6), 91(9), 91(10) 3 and 91B; 4 5 (iv) in section 92, by deleting "Sections 41, 6 42, 44, 46, 46A, 47 and 52 apply," and 7 inserting "Section 46A (excluding in 8 subsection (2)(a) "the mining registrar, 9 the warden or") applies," and by 10 deleting "in those provisions" and 11 inserting "in that provision"; 12 13 (v) by deleting the full stop at the end of the 14 section 94(1) and inserting, "except to 15 the extent otherwise provided in, or to 16 the extent that such terms and 17 conditions are inconsistent with, the 18 agreement ratified by and scheduled to 19 the Iron Ore (Mount Bruce) Agreement 20 Act 1972, as from time to time added to, 21 varied or amended"; 22 23 (vi) by deleting sections 94(2), (3) and (4); 24 25 (vii) in section 96(1), by inserting after 26 "miscellaneous licence" the words "(not 27 being a miscellaneous licence granted 28 pursuant to the agreement ratified by 29 and scheduled to the Iron Ore (Mount 30 Bruce) Agreement Act 1972, as from 31 time to time added to, varied or 32 amended"; 33 34 (viii) by deleting mining regulations 37(2), 35 37(3), 42 and 42A; and 36 37 (ix) by inserting at the beginning of mining 38 regulations 41(c) and (f) the words 39 "subject to the agreement ratified by and 40 scheduled to the Iron Ore (Mount 41 Bruce) Agreement Act 1972, as from page 292 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 time to time added to, varied or 2 amended". 3 4 (h) If additional proposals are approved in 5 accordance with subclause (5) for the 6 construction of a Railway spur line outside 7 the then Railway Corridor, the Minister for 8 Mines shall include the area of land within 9 which such construction is to occur in the 10 Special Railway Licence by endorsement. 11 The area of such land may be included 12 notwithstanding that the survey of the land 13 has not been completed but subject to 14 correction to accord with the survey when 15 completed at the Company's expense. 16 17 (i) If additional proposals are approved in 18 accordance with subclause (5) for the 19 construction of Train Loading Infrastructure 20 or Train Unloading Infrastructure outside the 21 then Railway Corridor, the Minister for Mines 22 shall include the area of such land within 23 which such infrastructure is approved for 24 construction in the Special Railway Licence 25 by endorsement. The area of such land may 26 be included notwithstanding that the survey of 27 the land has not been completed but subject to 28 correction to accord with the survey when 29 completed at the Company's expense. 30 31 (j) The provisions of this subclause shall not 32 operate so as to require the State to cause a 33 Special Railway Licence or a Lateral Access 34 Road Licence to be granted or any land 35 included in the Special Railway Licence as 36 mentioned above until all processes necessary 37 under any laws relating to native title to 38 enable that grant or inclusion of land to 39 proceed, have been completed. 40 page 293 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 Construction and operation of Railway 2 3 (7) (a) Subject to and in accordance with approved 4 proposals, the Rail Safety Act and the grant of 5 the relevant Special Railway Licence and any 6 associated Lateral Access Road Licences the 7 Company shall in a proper and workmanlike 8 manner and in accordance with recognised 9 standards for railways of a similar nature 10 operating under similar conditions construct 11 the Railway and associated Additional 12 Infrastructure and access roads within the 13 Railway Corridor and shall also construct 14 inter alia any necessary sidings, crossing 15 points, bridges, signalling switches and other 16 works and appurtenances and provide for 17 crossings and (where appropriate and required 18 by the Minister) grade separation or other 19 protective devices including flashing lights 20 and boom gates at places where the Railway 21 crosses or intersects with major roads or 22 existing railways. 23 24 (b) The Company shall while the holder of a 25 Special Railway Licence: 26 27 (i) keep the Railway the subject of that 28 licence in an operable state; and 29 30 (ii) ensure that the Railway the subject of 31 that licence is operated in a safe and 32 proper manner in compliance with all 33 applicable laws from time to time; and 34 35 (iii) without limiting subparagraph (ii) 36 ensure that the obligations imposed 37 under the Rail Safety Act on an owner 38 and an operator (as those terms are 39 therein defined) are complied with in 40 connection with the Railway the 41 subject of that licence. page 294 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 2 Nothing in this Agreement shall be construed 3 to exempt the Company or any other person 4 from compliance with the Rail Safety Act or 5 limit its application to the Company's 6 operations generally (except as otherwise may 7 be provided in that Act or regulations made 8 under it). 9 10 (c) The Company shall provide crossings for 11 livestock and also for any roads, other 12 railways, conveyors, pipelines and other 13 utilities which exist at the date of grant of the 14 relevant Special Railway Licence or in respect 15 of land subsequently included in it at the date 16 of such inclusion and the Company shall on 17 reasonable terms and conditions allow such 18 crossings for roads, railways, conveyors, 19 pipelines and other utilities which may be 20 constructed for future needs and which may 21 be required to cross a Railway constructed 22 pursuant to this clause. 23 24 (d) Subject to clause 20D, the Company shall at 25 all times be the holder of Special Railway 26 Licences and Lateral Access Road Licences 27 granted pursuant to this clause and (without 28 limiting clause 28 but subject to clause 20D) 29 shall at all times own manage and control the 30 use of each Railway the subject of a Special 31 Railway Licence held by the Company. 32 33 (e) The Company shall not be entitled to 34 exclusive possession of the land the subject of 35 a Special Railway Licence or Lateral Access 36 Road Licence granted pursuant to this clause 37 to the intent that the State, the Minister, the 38 Minister for Mines and any persons 39 authorised by any of them from time to time 40 shall be entitled to enter upon the land or any 41 part of it at all reasonable times and on page 295 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 reasonable notice with all necessary vehicles, 2 plant and equipment and for purposes related 3 to this Agreement or such other purposes as 4 they think fit but in doing so shall be subject 5 to the reasonable directions of the Company 6 so as not to unreasonably interfere with the 7 Company's operations. 8 9 (f) The Company's ownership of a Railway 10 constructed pursuant to this clause shall not 11 give it an interest in the land underlying it. 12 13 (g) The Company shall not at any time without 14 the prior consent of the Minister dismantle, 15 sell or otherwise dispose of any part or parts 16 of any Railway constructed pursuant to this 17 clause, or permit this to occur, other than for 18 the purpose of maintenance, repair, upgrade 19 or renewal. 20 21 (h) The Company shall, subject to and in 22 accordance with approved proposals, in a 23 proper and workmanlike manner, construct 24 any Additional Infrastructure, access roads, 25 Lateral Access Roads and other works 26 approved for construction under this clause. 27 28 (i) The Company shall while the holder of a 29 Special Railway Licence at all times keep and 30 maintain in good repair and working order 31 and condition (which obligation includes, 32 where necessary, replacing or renewing all 33 parts which are worn out or in need of 34 replacement or renewal due to their age or 35 condition) the Railway, access roads and 36 Additional Infrastructure (if any) the subject 37 of that licence and all such other works 38 installations plant machinery and equipment 39 for the time being the subject of this 40 Agreement and used in connection with the 41 operation use and maintenance of that page 296 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 Railway, access roads and Additional 2 Infrastructure (if any). 3 4 (j) Subject to clause 20D, the Company shall: 5 6 (i) be responsible for the cost of 7 construction and maintenance of all 8 Private Roads constructed pursuant to 9 this clause; and 10 11 (ii) at its own cost erect signposts and take 12 other steps that may be reasonable in 13 the circumstances to prevent any 14 persons and vehicles (other than those 15 engaged upon the Company's activities 16 and its invitees and licensees) from 17 using the Private Roads; and 18 19 (iii) at any place where any Private Roads 20 are constructed by the Company so as 21 to cross any railways or public roads 22 provide at its cost such reasonable 23 protection and signposting as may be 24 required by the Commissioner of Main 25 Roads or the Public Transport 26 Authority as the case may be. 27 28 (k) The provisions of clause 12(1)(a) and (2) as 29 well as the provision to clause 12(1)(a) shall 30 apply mutatis mutandis to any Railway or 31 Railway spur line constructed pursuant to the 32 clause except that the Company shall not be 33 obliged to transport passengers upon any such 34 Railway or Railway spur line. 35 36 Aboriginal Heritage Act 1972 (WA) 37 38 (8) For the purposes of this clause the Aboriginal 39 Heritage Act 1972 (WA) applies as if it were 40 modified by: 41 page 297 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 (a) the insertion before the full stop at the end of 2 section 18(1) of the words: 3 4 "and the expression "the Company" means the 5 persons from time to time comprising "the 6 Company" in their capacity as such under the 7 agreement ratified by and scheduled to the 8 Iron Ore (Mount Bruce) Agreement Act 1972, 9 as from time to time added to, varied or 10 amended in relation to the use or proposed use 11 of land pursuant to clause 20E of that 12 agreement after and in accordance with 13 approved proposals under clause 20E of that 14 agreement and in relation to the use of that 15 land before any such approval of proposals 16 where the Company has the requisite 17 authority to enter upon and so use the land"; 18 19 (b) the insertion in sections 18(2), 18(4), 18(5) 20 and 18(7) of the words "or the Company as 21 the case may be" after the words "owner of 22 any land"; 23 24 (c) the insertion in section 18(3) of the words "or 25 the Company as the case may be" after the 26 words "the owner"; 27 28 (d) the insertion of the following sentences at the 29 end of section 18(3): 30 31 "In relation to a notice from the Company the 32 conditions that the Minister may specify can 33 as appropriate include, among other 34 conditions, a condition restricting the 35 Company's use of the relevant land to after the 36 approval or deemed approval as the case may 37 be under the abovementioned agreement of all 38 of the Company's submitted initial proposals 39 thereunder for the Railway Operation (as 40 defined in clause 20E(1) of the 41 abovementioned agreement), or in the case of page 298 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 additional proposals submitted or to be 2 submitted by the Company to after the 3 approval or deemed approval under that 4 agreement of such additional proposals, and 5 to the extent so approved. "; and 6 7 (e) the insertion in sections 18(2) and 18(5) of the 8 words "or it as the case may be" after the 9 word "he". 10 11 The Company acknowledges that nothing in this 12 subclause (8) nor the granting of any consents under 13 section 18 of the Aboriginal Heritage Act 1972 14 (WA) will constitute or is to be construed as 15 constituting the approval of any proposals 16 submitted or to be submitted by the Company under 17 this Agreement or as the grant or promise of land 18 tenure for the purposes of this Agreement. 19 20 Taking of land for the purposes of this clause 21 22 (9) (a) The State is hereby empowered, as and for a 23 public work under Parts 9 and 10 of the LAA, 24 to take for the purposes of this clause any land 25 (other than any part of a Port) which in the 26 opinion of the Company is necessary for the 27 relevant Railway Operation and which the 28 Minister determines is appropriate to be taken 29 for the relevant Railway Operation (except 30 any land the taking of which would be 31 contrary to the provisions of a Government 32 agreement entered into before the submission 33 of the proposals relating to the proposed 34 taking) and notwithstanding any other 35 provisions of that Act may license that land to 36 the Company. 37 page 299 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 (b) In applying Parts 9 and 10 of the LAA for the 2 purposes of this clause: 3 4 (i) "land" in that Act includes a legal or 5 equitable estate or interest in land; 6 7 (ii) sections 170, 171, 172, 173, 174, 175 8 and 184 of that Act do not apply; and 9 10 (iii) that Act applies as if it were modified 11 in section 177(2) by inserting - 12 (A) after "railway" the following - 13 "or land is being taken 14 pursuant to a Government 15 agreement as defined in 16 section 2 of the Government 17 Agreements Act 1979 (WA)"; 18 and 19 (B) after "that Act" the 20 following - 21 "or that Agreement as the 22 case may be". 23 (c) The Company shall pay to the State on 24 demand the costs of or incidental to any land 25 taken at the request of and on behalf of the 26 Company including but not limited to any 27 compensation payable to any holder of native 28 title or of native title rights and interests in the 29 land. 30 31 Notification of Railway Operation Date 32 33 (10) (a) The Company shall from the date occurring 6 34 months before the date for completion of 35 construction of a Railway specified in its time page 300 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 program for the commencement and 2 completion of construction of that Railway 3 submitted under subclause (4)(a), keep the 4 Minister fully informed as to: 5 6 (i) the progress of that construction and 7 its likely completion and 8 commissioning; and 9 10 (ii) the likely Railway Operation Date. 11 12 (b) The Company shall on the Railway Operation 13 Date notify the Minister that the first carriage 14 of iron ore, freight goods or other products as 15 the case may be over the Railway (other than 16 for construction or commissioning purposes) 17 has occurred. 18 19 (c) The Company shall from the date occurring 6 20 months before the date for completion of 21 construction of a Railway spur line specified 22 in its time program for the commencement 23 and completion of construction of that spur 24 line submitted under subclause (5)(c) keep the 25 Minister fully informed as to: 26 27 (i) the progress of that construction and 28 its likely completion and 29 commissioning; and 30 31 (ii) in respect of it, the likely Railway spur 32 line Operation Date. 33 34 (d) The Company shall on the Railway spur line 35 Operation Date in respect of any Railway spur 36 line notify the Minister that the first carriage 37 of iron ore, freight goods or other products as 38 the case may be over such spur line (other 39 than for construction or commissioning 40 purposes) has occurred."; 41 page 301 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 (18) in clause 21 by: 2 3 (a) inserting "granted under or pursuant to this Agreement or 4 held pursuant to this Agreement" after "licence or other 5 title"; 6 7 (b) inserting "or held pursuant hereto" after the subsequent 2 8 references to "granted hereunder or pursuant hereto"; and 9 10 (c) deleting "occupied by the Company" and substituting "the 11 subject of any lease licence easement or other title granted 12 under or pursuant to this Agreement or held pursuant to this 13 Agreement"; 14 15 (19) in clause 22(i) by inserting "or held pursuant hereto" after "granted 16 hereunder or pursuant hereto"; 17 18 (20) in clause 23 by inserting "or pursuant hereto or held pursuant 19 hereto" after "granted hereunder"; 20 21 (21) by deleting clause 30; 22 23 (22) in clause 41(A)(1) by: 24 25 (a) in paragraph (a): 26 27 (a) deleting "31st day of December 1991" and 28 substituting "31 December 2012"; 29 30 (b) deleting "31st day of December 1994" and 31 substituting "31 December 2015"; and 32 33 (c) deleting "31st day of December 1999" and 34 substituting "31 December 2020"; and 35 36 (b) in paragraph (b) deleting "31st day of December 1991" and 37 substituting "31 December 2012". 38 page 302 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 (23) in clause 41(A)(5) by: 2 3 (a) in paragraph (a) deleting "by the company of alternative 4 investments" and substituting "of an alternative project"; and 5 6 (b) in paragraph (b): 7 8 (i) deleting "the investments" and substituting ", or cause 9 to be implemented, the alternative project"; and 10 11 (ii) deleting "those investments" and substituting "that 12 alternative project"; 13 14 (24) by inserting after subclause (5) of clause 41A the following new 15 subclause: 16 17 "(6) For the purposes of subclause (5) "alternative project" means: 18 19 (a) a project to establish and operate within the said State 20 plant for the production of steel; 21 22 (b) a project to establish and operate within the said State 23 plant which processes and adds value to minerals mined 24 in the said State; or 25 26 (c) any other project within the said State which the 27 Minister approves as providing to the State benefits 28 equivalent to a project to establish and operate plant for 29 the production of steel, 30 31 to be undertaken by: 32 33 (d) the Company (excluding a project referred to in 34 paragraph (a)): or 35 36 (e) a related body corporate or related bodies corporate 37 (within the meaning of the Corporations Act 2001 38 (Cwth) of the Company solely or in conjunction with 39 the Company; or 40 page 303 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 (f) a joint venture in which the Company or its related body 2 corporate has a majority participating interest; or 3 4 (g) any other third person or persons which the Company 5 and the Minister accept as having the requisite financial 6 and technical capacity and expertise to undertake solely, 7 or in conjunction with the Company, the relevant 8 project referred to in paragraph (a), (b) or (c)."; 9 10 (25) by inserting the following sentence at the end of clause 42: 11 12 "As a separate independent indemnity the Company will indemnify 13 and keep indemnified the State and its servants agents and 14 contractors in respect of all actions suits claims demands or costs 15 of third parties arising out of or in connection with any use, making 16 available for use or other activities of the Company as referred to 17 in clause 20C."; 18 19 (26) in clause 44 inserting "or held pursuant hereto" after "hereunder or 20 pursuant hereto"; 21 22 (27) in clause 46 by inserting "or held pursuant hereto" after "granted 23 hereunder or pursuant hereto"; and 24 25 (28) inserting after the Second Schedule the following new schedules: 26 27 page 304 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 " THIRD SCHEDULE 2 3 WESTERN AUSTRALIA 4 5 IRON ORE (MOUNT BRUCE) AGREEMENT ACT 1972 6 7 MINING ACT 1978 8 9 MISCELLANEOUS LICENCE FOR A RAILWAY AND OTHER 10 PURPOSES 11 12 13 No. MISCELLANEOUS LICENCE [ ] 14 15 WHEREAS by the Agreement (hereinafter called "the Agreement") ratified by 16 and scheduled to the Iron Ore (Mount Bruce) Agreement Act 1972, as from time 17 to time added to, varied or amended, the State agreed to grant to [ ] 18 (hereinafter with its successors and permitted assigns called "the Company") a 19 miscellaneous licence for the construction operation and maintenance of a 20 Railway (as defined in clause 20E(1) of the Agreement and otherwise as 21 provided in the Agreement) and, if applicable, other purposes AND WHEREAS 22 the Company pursuant to clause 20E(6)(a) of the Agreement has made 23 application for the said licence; 24 25 NOW in consideration of the rents reserved by and the provisions of the 26 Agreement and in pursuance of the Iron Ore (Mount Bruce) Agreement Act 27 1972, as from time to time added to, varied or amended, the Company is hereby 28 granted by this licence authority to conduct on the land the subject of this 29 licence as more particularly delineated and described from time to time in the 30 Schedule hereto all activities (including the taking of stone, sand, clay and 31 gravel, the provision of temporary accommodation facilities for the railway 32 workforce in accordance with the Agreement and, subject to the Rights in Water 33 and Irrigation Act 1914 (WA), the operation of water bores) necessary for the 34 planning, design, construction, commissioning, operation and maintenance on 35 the land the subject of this licence of the Railway and Additional Infrastructure 36 (as defined in clause 20E(1) of the Agreement) and access roads to be located 37 on the land the subject of this licence in accordance with the provisions of the 38 Agreement and proposals approved under the Agreement, for the term of 50 39 years from the date hereof (subject to the sooner determination of the term upon 40 the determination of the Agreement) and upon and subject to the terms 41 covenants and conditions set out in the Agreement and the Mining Act 1978 as page 305 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 it applies to this licence, and any amendments to the Agreement and the Mining 2 Act 1978 from time to time and to the terms and conditions (if any) now or 3 hereafter endorsed hereon and the payment of rentals in respect of this licence 4 in accordance with clause 20E(6)(a)(i) of the Agreement PROVIDED 5 ALWAYS that this licence shall not be determined or forfeited otherwise than 6 in accordance with the Agreement. 7 8 In this licence: 9 10 - If the Company be more than one the liability of the Company 11 hereunder shall be joint and several. 12 13 - Reference to an Act includes all amendments to that Act for the time 14 being in force and also any Act passed in substitution therefore or in 15 lieu thereof and to the regulations and by-laws of the time being in 16 force thereunder. 17 18 - Reference to "the Agreement" means such agreement as from time to 19 time added to, varied or amended. 20 21 - The terms "approved proposals", "Railway", "Railway Operation 22 Date", and "Railway spur line" have the meanings given in the 23 Agreement. 24 25 ENDORSEMENTS AND CONDITIONS 26 27 Endorsements 28 29 1. This licence is granted in accordance with proposals submitted on 30 [ ], and approved by the Minister (as defined in the Agreement) on 31 [ ], under the Agreement. 32 33 2. The Company is permitted to, in accordance with approved proposals, 34 take stone, sand, clay and gravel from the land the subject of this 35 licence for the construction, operation and maintenance of the Railway 36 (including any Railway spur line) constructed within or approved for 37 construction within the area of land the subject of this licence. 38 39 3. Notwithstanding the Mining Act 1978, no royalty shall be payable 40 under the Mining Act 1978 in respect of stone, sand, clay and gravel page 306 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 which the Company is permitted by the Agreement to obtain from the 2 land the subject of this licence. 3 4 4. [Any further endorsement which the Minister for Mines may, 5 consistent with the provisions of the Agreement, determines and 6 thereafter impose in respect of this licence including during the term 7 of the Agreement.] 8 9 Conditions 10 11 1. (a) Except as provided in paragraph (b), the Company shall 12 within 2 years after the Railway Operation Date surrender in 13 accordance with the provisions of the Mining Act 1978 the 14 area of this licence down to a maximum of 100 metres width 15 or as otherwise approved by the Minister (as defined in the 16 Agreement) for the safe operation of the Railway then 17 constructed or approved for construction under approved 18 proposals. 19 20 (b) Paragraph (a) shall not apply to land the subject of this 21 licence that was included in this licence pursuant to clause 22 20E(6)(h) or clause 20E(6)(i) of the Agreement. 23 24 2. The Company shall as soon as possible after the construction of a 25 Railway spur line or of an expansion or extension thereof as the case 26 may be surrender in accordance with the Mining Act 1978 the land 27 the subject of this licence that was included in this licence pursuant 28 to clause 20E(6)(h) of the Agreement for the purpose of such 29 construction down to a maximum of 100 metres in width or as 30 otherwise approved by the Minister (as defined in the Agreement) for 31 the safe operation of that Railway spur line or expansion or extension 32 thereof as the case may be then constructed or approved for 33 construction under approved proposals. 34 35 3. [Any further conditions which the Minister for Mines may, consistent 36 with the provisions of the Agreement, determines and thereafter 37 impose in respect of this licence including during the term of the 38 Agreement.] 39 40 page 307 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 SCHEDULE 2 3 Land description 4 5 Locality: 6 Mineral Field 7 Area: 8 9 DATED at Perth this day of . 10 11 MINISTER FOR MINES 12 13 14 FOURTH SCHEDULE 15 16 WESTERN AUSTRALIA 17 18 IRON ORE (MOUNT BRUCE) AGREEMENT ACT 1972 19 20 MINING ACT 1978 21 22 MISCELLANEOUS LICENCE FOR A LATERAL ACCESS ROAD 23 24 25 No. MISCELLANEOUS LICENCE [ ] 26 27 WHEREAS by the Agreement (hereinafter called "the Agreement") ratified by 28 and scheduled to the Iron Ore (Mount Bruce) Agreement Act 1972, as from time 29 to time added to, varied or amended, the State agreed to grant to [ ] 30 (hereinafter with its successors and permitted assigns called "the Company") a 31 miscellaneous licence for the construction use and maintenance of a Lateral 32 Access Road (as defined in the Agreement) AND WHEREAS the Company 33 pursuant to clause 20E(6)(a)(ii) of the Agreement has made application for the 34 said licence; 35 36 NOW in consideration of the rents reserved by and the provisions of the 37 Agreement and in pursuance of the Iron Ore (Mount Bruce) Agreement Act 38 1972, as from time to time added to, varied or amended, the Company is hereby 39 authorised to construct use and maintain a road on the land more particularly 40 delineated and described from time to time in the Schedule hereto in accordance 41 with the provisions of the Agreement and proposals approved under the page 308 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 Agreement for a term of 4 years commencing on the date hereof (subject to the 2 sooner determination of the term upon the cessation or determination of the 3 Agreement) and for the purposes and upon and subject to the terms covenants 4 and conditions set out in the Agreement and the Mining Act 1978 as it applies to 5 this licence, and any amendments to the Agreement and the Mining Act 1978 6 from time to time and to the terms and conditions (if any) now or hereafter 7 endorsed hereon and the payment of rentals in respect of this licence in 8 accordance with clause 20E(6)(a)(ii) of the Agreement PROVIDED ALWAYS 9 that this licence shall not be determined or forfeited otherwise than in 10 accordance with the Agreement. 11 12 In this licence: 13 14 - If the Company be more than one the liability of the Company 15 hereunder shall be joint and several. 16 17 - Reference to an Act includes all amendments to that Act for the time 18 being in force and also any Act passed in substitution therefore or in 19 lieu thereof and to the regulations and by-laws of the time being in 20 force thereunder. 21 22 - Reference to "the Agreement" means such agreement as from time to 23 time added to, varied or amended. 24 25 ENDORSEMENTS AND CONDITIONS 26 27 Endorsements 28 29 1. This licence is granted in accordance with proposals submitted on 30 [ ], and approved by the Minister (as defined in the Agreement) on 31 [ ], under the Agreement. 32 33 2. [Any further endorsement which the Minister for Mines may, 34 consistent with the provisions of the Agreement, determines and 35 thereafter impose in respect of this licence including during the term 36 of the Agreement.] 37 page 309 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 Conditions 2 3 [Such conditions which the Minister for Mines may, consistent with the 4 provisions of the Agreement, determines and thereafter impose in respect of the 5 licence, including during the term of the Agreement.] 6 7 SCHEDULE 8 9 Description of land 10 11 Locality: 12 Mineral Field: 13 Area: 14 15 DATED at Perth this day of . 16 17 MINISTER FOR MINES 18 19 20 21 FIFTH SCHEDULE 22 23 WESTERN AUSTRALIA 24 25 IRON ORE (MOUNT BRUCE) AGREEMENT ACT 1972 26 27 MINING ACT 1978 28 29 MISCELLANEOUS LICENCE FOR A LATERAL ACCESS ROAD 30 31 32 No. MISCELLANEOUS LICENCE [ ] 33 34 WHEREAS by the Agreement (hereinafter called "the Agreement") ratified by 35 and scheduled to the Iron Ore (Mount Bruce) Agreement Act 1972, as from time 36 to time added to, varied or amended, the State agreed to grant to [ ] 37 (hereinafter with its successors and permitted assigns called "the Company") a 38 miscellaneous licence for the construction use and maintenance of a Lateral 39 Access Road (as defined in the Agreement) AND WHEREAS the Company 40 pursuant to clause 20E(6)(b) of the Agreement has made application for the said 41 licence; page 310 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 2 NOW in consideration of the rents reserved by and the provisions of the 3 Agreement and in pursuance of the Iron Ore (Mount Bruce) Agreement Act 4 1972, as from time to time added to, varied or amended, the Company is hereby 5 authorised to construct use and maintain a road on the land more particularly 6 delineated and described from time to time in the Schedule hereto in accordance 7 with the provisions of the Agreement and proposals approved under the 8 Agreement for a term of 4 years commencing on the date hereof (subject to the 9 sooner determination of the term upon the cessation or determination of the 10 Agreement) and for the purposes and upon and subject to the terms covenants 11 and conditions set out in the Agreement and the Mining Act 1978 as it applies to 12 this licence, and any amendments to the Agreement and the Mining Act 1978 13 from time to time and to the terms and conditions (if any) now or hereafter 14 endorsed hereon and the payment of rentals in respect of this licence in 15 accordance with clause 20E(6)(b) of the Agreement PROVIDED ALWAYS 16 that this licence shall not be determined or forfeited otherwise than in 17 accordance with the Agreement. 18 19 In this licence: 20 21 - If the Company be more than one the liability of the Company 22 hereunder shall be joint and several. 23 24 - Reference to an Act includes all amendments to that Act for the time 25 being in force and also any Act passed in substitution therefore or in 26 lieu thereof and to the regulations and by-laws of the time being in 27 force thereunder. 28 29 - Reference to "the Agreement" means such agreement as from time to 30 time added to, varied or amended. 31 32 ENDORSEMENTS AND CONDITIONS 33 34 Endorsements 35 36 1. This licence is granted in accordance with proposals submitted on 37 [ ], and approved by the Minister (as defined in the Agreement) on 38 [ ], under the Agreement. 39 page 311 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 4 Iron Ore (Mount Bruce) Agreement Act 1972 amended s. 14 1 2. [Any further endorsement which the Minister for Mines may, 2 consistent with the provisions of the Agreement, determines and 3 thereafter impose in respect of this licence including during the term 4 of the Agreement.] 5 6 Conditions 7 8 [Such conditions which the Minister for Mines may, consistent with the 9 provisions of the Agreement, determines and thereafter impose in respect of the 10 licence, including during the term of the Agreement.] 11 12 SCHEDULE 13 14 Description of land 15 16 Locality: 17 Mineral Field: 18 Area: 19 20 DATED at Perth this day of . 21 22 MINISTER FOR MINES " 23 24 page 312 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Bruce) Agreement Act 1972 amended Part 4 s. 14 1 EXECUTED as a deed. 2 3 SIGNED by THE HONOURABLE ) 4 COLIN JAMES BARNETT ) [Signature] 5 in the presence of: ) 6 [Signature] STEPHEN WOOD 7 8 9 THE COMMON SEAL of MOUNT ) BRUCE MINING PTY. LIMITED ACN ) 008 714 010 was hereunto affixed by ) [C.S.] authority of the Directors in the presence of: ) 10 11 [Signature] ALAN DAVIES Director 12 [Signature] HELEN FERNIHOUGH Secretary 13 page 313 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 18 1 Part 5 -- Iron Ore (Hope Downs) Agreement 2 Act 1992 amended 3 15. Act amended 4 This Part amends the Iron Ore (Hope Downs) Agreement 5 Act 1992. 6 16. Section 3 amended 7 (1) In section 3 insert in alphabetical order: 8 9 the First Variation Agreement means the agreement a 10 copy of which is set out in Schedule 2. 11 12 (2) In section 3 in the definition of Agreement delete "the Schedule 13 and includes that agreement as varied from time to time in 14 accordance with its provisions." and insert: 15 16 Schedule 1 and, except in section 4(1), includes that 17 agreement as varied from time to time in accordance 18 with its provisions and by the First Variation 19 Agreement; 20 21 17. Section 4 amended 22 (1) After section 4(1) insert: 23 24 (2A) The First Variation Agreement is ratified. 25 26 (2) After section 4(3) insert: 27 28 (4) To avoid doubt, it is declared that the provisions of the 29 Public Works Act 1902 section 96 do not apply to a 30 railway constructed under the Agreement. 31 page 314 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 18 1 18. Section 5 inserted 2 After section 4 insert: 3 4 5. State empowered under clause 15C(9)(a) 5 The State has power in accordance with 6 clause 15C(9)(a) of the Agreement. 7 8 19. Schedule amended 9 In the heading to the Schedule delete "Schedule" and insert: 10 11 Schedule 1 12 13 20. Schedule 2 inserted 14 After the Schedule insert: page 315 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 Schedule 2 -- First Variation Agreement 2 [s. 3] 3 2010 4 5 6 7 THE HONOURABLE COLIN JAMES BARNETT 8 PREMIER OF THE STATE OF WESTERN AUSTRALIA 9 10 11 AND 12 13 HOPE DOWNS IRON ORE PTY. LTD. 14 ACN 071 514 308 15 16 HAMERSLEY WA PTY. LTD. 17 ACN 115 004 138 18 19 20 21 22 23 IRON ORE (HOPE DOWNS) AGREEMENT 1992 24 25 RATIFIED VARIATION AGREEMENT 26 27 28 29 30 [Solicitor's details] 31 32 33 34 35 36 37 38 39 page 316 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 THIS AGREEMENT is made this 17th day of November 2010 2 3 4 BETWEEN 5 6 7 THE HONOURABLE COLIN JAMES BARNETT MLA., Premier of the 8 State of Western Australia acting for and on behalf of the said State and 9 instrumentalities thereof from time to time (State) 10 11 AND 12 13 HOPE DOWNS IRON ORE PTY LTD ACN 071 514 308 of Level 3, Hppl 14 House, 28-42 Ventnor Avenue, West Perth, Western Australia and 15 HAMERSLEY WA PTY. LTD. ACN 115 004 138 of Level 22, Central Park, 16 152-158 St Georges Terrace, Perth, Western Australia. (Joint Venturers). 17 18 19 RECITALS 20 21 A. The State and the Joint Venturers are now the parties to the agreement 22 dated 30 November 1992 ratified by and scheduled to the Iron Ore (Hope 23 Downs) Agreement Act 1992 and which as subsequently added to, varied 24 or amended is referred to in this Agreement as the "Principal 25 Agreement". 26 27 B. The State and the Joint Venturers wish to vary the Principal Agreement. 28 29 THE PARTIES AGREE AS FOLLOWS: 30 31 1. Subject to the context, the words and expressions used in this Agreement 32 have the same meanings respectively as they have in and for the purpose 33 of the Principal Agreement. 34 35 2. The State shall sponsor a Bill in the Parliament of Western Australia to 36 ratify this Agreement and shall endeavour to secure its passage as an Act 37 prior to 31 December 2010 or such later date as the parties may agree. 38 page 317 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 3. (a) Clause 4 does not come into operation unless or until an Act 2 passed in accordance with clause 2 ratified this Agreement. 3 4 (b) If by 30 June 2011, or such later date as may be agreed pursuant to 5 clause 2, clause 4 has not come into operation then unless the 6 parties hereto otherwise agree this Agreement shall cease and 7 determine and none of the parties shall have any claim against the 8 other parties with respect to any matter or thing arising out of or 9 done or performed or omitted to be done or performed under this 10 Agreement. 11 4. The Principal Agreement is hereby varied as follows: 12 (1) in clause 1: 13 (a) by deleting the existing definitions of "approved proposal", 14 "beneficiated ore", "beneficiated manganese ore", 15 "beneficiated manganiferous ore", "fine ore", "iron ore", 16 "loading port", "lump ore" and "metallised agglomerates"; 17 (b) by inserting in the appropriate alphabetical positions the 18 following new definitions: 19 "approved proposal" means a proposal approved or 20 determined under this Agreement; 21 "associated company" means: 22 (a) any company notified in writing by the Company to 23 the Minister which is incorporated in the United 24 Kingdom, the United States of America or Australia 25 and which is: 26 (i) a subsidiary of the Company within the 27 meaning of the term "subsidiary" in section 46 28 of the Corporations Act 2001 29 (Commonwealth); 30 (ii) promoted by the Company for all or any of the 31 purposes of this Agreement and in which the page 318 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 Company holds not less than $2,000,000 of the 2 issued ordinary capital; 3 (iii) a company in which the Company holds not 4 less than 20% of the issued ordinary share 5 capital; 6 (iv) a related body corporate (within the meaning of 7 the term "related body corporate" in section 9 8 of the Corporations Act 2001 9 (Commonwealth)) of the Company or of any 10 company in which the Company holds not less 11 than 20% of the issued ordinary share capital; 12 and 13 (b) any other company approved in writing by the 14 Minister for the purpose of this Agreement which is 15 associated directly or indirectly with the Company in 16 its business or operations under this Agreement; 17 "beneficiated manganese ore" and "beneficiated 18 manganiferous ore" mean respectively manganese ore and 19 manganiferous ore that has been concentrated or upgraded 20 (otherwise than solely by crushing, screening, separating by 21 hydrocycloning or a similar technology which uses 22 primarily size as a criterion, washing, scrubbing, 23 trommelling or drying or by a combination of 2 or more of 24 those processes) by the Company in a plant constructed 25 pursuant to a proposal approved pursuant to an Integration 26 Agreement or in such other plant as is approved by the 27 Minister after consultation with the Minister for Mines; 28 "beneficiated ore" means iron ore (other than manganese ore 29 and manganiferous ore) that has been concentrated or 30 upgraded (otherwise than solely by crushing, screening, 31 separating by hydrocycloning or a similar technology which 32 uses primarily size as a criterion, washing, scrubbing, 33 trommelling or drying, or by a combination of 2 or more of 34 those processes) by the Company in a plant constructed 35 pursuant to a proposal approved pursuant to an Integration page 319 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 Agreement or in such other plant as is approved by the 2 Minister after consultation with the Minister for Mines and 3 "beneficiation" and "beneficiate" have corresponding 4 meanings; 5 "East Angelas Deposit" has the meaning given in subclause 6 (3) of Clause 15; 7 "fine ore" means iron ore (not being beneficiated ore, 8 beneficiated manganese ore or beneficiated manganiferous 9 ore) which is screened and will pass through a 6.3 10 millimetre mesh screen; 11 "Government agreement" has the meaning given in the 12 Government Agreements Act 1979 (WA); 13 "Integration Agreement" means: 14 (a) the agreement approved by and scheduled to the Iron 15 Ore (Hamersley Range) Agreement Act 1963, as from 16 time to time added to, varied or amended; or 17 (b) the agreement approved by and scheduled to the Iron 18 Ore (Robe River) Agreement Act 1964, as from time 19 to time added to, varied or amended; or 20 (c) the agreement approved by and scheduled to the Iron 21 Ore (Hamersley Range) Agreement Act Amendment 22 Act 1968, as from time to time added to, varied or 23 amended; or 24 (d) the agreement ratified by and scheduled to the Iron 25 Ore (Mount Bruce) Agreement Act 1972, as from 26 time to time added to, varied or amended; or 27 (e) the agreement ratified by and scheduled to the Iron 28 Ore (Hope Downs) Agreement Act 1992, as from time 29 to time added to, varied or amended; or page 320 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 (f) the agreement ratified by and scheduled to the Iron 2 Ore (Yandicoogina) Agreement Act 1996, as from 3 time to time added to, varied or amended; or 4 (g) the agreement approved by and scheduled to the Iron 5 Ore (Mount Newman) Agreement Act 1964, as from 6 time to time added to, varied or amended; or 7 (h) the agreement approved by and scheduled to the Iron 8 Ore (Mount Goldsworthy) Agreement Act 1964, as 9 from time to time added to, varied or amended; or 10 (i) the agreement ratified by and scheduled to the Iron 11 Ore (Goldsworthy-Nimingarra) Agreement Act 1972, 12 as from time to time added to, varied or amended; or 13 (j) the agreement authorised by and as scheduled to the 14 Iron Ore (McCamey's Monster) Agreement 15 Authorisation Act 1972, as from time to time added 16 to, varied or amended; or 17 (k) the agreement ratified by and scheduled to the Iron 18 Ore (Marillana Creek) Agreement Act 1991, as from 19 time to time added to, varied or amended; 20 "Integration Proponent" means in relation to an Integration 21 Agreement, "the Company" or "the Joint Venturers" as the 22 case may be as defined in, and for the purpose of, that 23 Integration Agreement; 24 "iron ore" includes, without limitation, beneficiated ore, 25 beneficiated manganese ore and beneficiated manganiferous 26 ore; 27 "laws relating to native title" means laws applicable from 28 time to time in the said State in respect of native title and 29 includes the Native Title Act 1993 (Commonwealth); page 321 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 "loading port" means: 2 (a) the Port of Dampier; or 3 (b) Port Walcott; or 4 (c) the Port of Port Hedland; or 5 (d) any other port constructed after the variation date 6 under an Integration Agreement; or 7 (e) such other port approved by the Minister at the 8 request of the Company from time to time for the 9 shipment of iron ore from the mining lease; 10 "lump ore" means iron ore (not being beneficiated ore, 11 beneficiated manganese ore or beneficiated manganiferous 12 ore) which is screened and will not pass through a 6.3 13 millimetre mesh screen; 14 "metallised agglomerates" means products resulting from 15 the reduction of iron ore by any method whatsoever and 16 having an iron content of not less than 85%; 17 18 "Related Entity" means a company in which: 19 20 (a) as at 21 June 2010; and 21 (b) after 21 June 2010, with the approval of the Minister, 22 23 a direct or (through a subsidiary or subsidiaries within the 24 meaning of the Corporations Act 2001 (Commonwealth)) 25 indirect shareholding of 20% or more is held by: 26 (c) Rio Tinto Limited ABN 96 004 458 404; or 27 (d) BHP Billiton Limited ABN 49 004 028 077; or 28 (e) those companies referred to in paragraphs (c) and (d) 29 in aggregate; page 322 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 "variation date" means the date on which clause 4 of the 2 variation agreement made on or about 17 November 2010 3 between the State and the Company comes into operation; 4 and 5 (c) in the definition of "agreed or determined" by: 6 (i) inserting "(following, if requested by the Company, 7 consultation with the Company and its consultants in 8 regard thereto" after "as determined by the Minister"; 9 (ii) deleting "assessed at" and substituting "assessed 10 on"; and 11 (iii) deleting all the words after "shall have regard to" 12 and substituting a colon followed by: 13 "(i) in the case of iron ore initially sold at cost 14 pursuant to the proviso to clause 12(10), the 15 prices for that type of iron ore prevailing at 16 the time the price for such iron ore was 17 agreed between the arm's length purchaser 18 referred to in paragraph (iii) of that proviso 19 and the seller in relation to the type of sale 20 and the relevant international seaborne iron 21 ore market into which such iron ore was 22 sold and where prices beyond the deemed 23 f.o.b. point are being considered the 24 deductions mentioned in the definition of 25 f.o.b. value; and 26 (ii) in any other case, the prices for that type of 27 iron ore prevailing at the time the price for 28 such iron ore was agreed between the 29 Company and the purchaser in relation to 30 the type of sale and the market into which 31 such iron ore was sold and where prices 32 beyond the deemed f.o.b. point are being 33 considered the deductions mentioned in the 34 definition of f.o.b. value;"; page 323 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 (d) in the definition of "f.o.b. value" by: 2 (i) in paragraph (i): 3 (A) inserting "subject to paragraph (ii)," before "in 4 the case of"; 5 (B) deleting "assessed at" and substituting 6 "assessed on"; and 7 (C) inserting "relevant" before "loading port" in 8 both places where it appears; 9 (ii) remembering paragraph (ii) as paragraph (iii); and 10 (iii) inserting after paragraph (i) the following new 11 paragraph: 12 "(ii) in the case of iron ore initially sold at cost 13 pursuant to the proviso to clause 12(10), the 14 price which is payable for the iron ore by the 15 arm's length purchaser as referred to in 16 paragraph (iii) of that proviso or, where the 17 Minister considers, following advice from the 18 appropriate Government department, that the 19 price payable in respect of the iron ore does 20 not represent a fair and reasonable market 21 value for that type of iron ore assessed on an 22 arm's length basis in the relevant international 23 seaborne iron ore market, such amount as is 24 agreed or determined as representing such a 25 fair and reasonable market value, less all 26 duties, taxes, costs and charges referred to in 27 paragraph (i) above"; and 28 (e) in the definition of "mining lease" by deleting "Clause 14" 29 and substituting "Clauses 12A, 14 or 15(3)"; page 324 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 (2) by inserting after clause 2 the following new clause: 2 "2A. Nothing in this Agreement shall be construed: 3 (a) to exempt the Company from compliance with any 4 requirement in connection with the protection of the 5 environment arising out of or incidental to its 6 activities under this Agreement that may be made by 7 or under the EP Act; or 8 (b) to exempt the State or the Company from compliance 9 with or to require the State or the Company to do 10 anything contrary to any laws relating to native title 11 or any lawful obligation or requirement imposed on 12 the State or the Company as the case may be pursuant 13 to any laws relating to native title; or 14 (c) to exempt the Company from compliance with the 15 provisions of the Aboriginal Heritage Act 1972 16 (WA)."; 17 (3) in clause 10(1): 18 (a) by inserting "from the mining lease (other than from the 19 East Angelas Deposit)" after "desires to produce"; 20 (b) by deleting "proposals submitted pursuant to subclause (1) 21 of Clause 7" and substituting "approved proposals 22 (including for the development of the East Angelas 23 Deposit)"; and 24 (c) by inserting "(other than for the development of the East 25 Angelas Deposit) or under Clause 15C)" after "activities 26 carried on pursuant to this Agreement"; 27 (4) by inserting the following sentence at the end of clause 10(1): 28 "The provisions of clause 7(4)(b) shall apply to proposals 29 submitted pursuant to this clause."; page 325 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 (5) by deleting subclause (2) of clause 10 and substituting the 2 following new subclauses: 3 "(2) A proposal may with the consent of the Minister (except in 4 relation to an Integration Agreement) and that of any parties 5 concerned (being in respect of an Integration Agreement the 6 Integration Proponent for that agreement) provide for the 7 use by the Company of any works installations or facilities 8 constructed or established under a Government agreement. 9 (3) Each of the proposals pursuant to subclause (1) may with 10 the approval of the Minister or, if so required by the 11 Minister, shall be submitted separately and in any order as 12 to any matter or matters in respect of which such proposals 13 are required to be submitted. 14 (4) At the time when the Company submits the said proposals it 15 shall submit to the Minister details of any services (including 16 any elements of the project investigations, design and 17 management) and any works materials, plant, equipment and 18 supplies that it proposes to consider obtaining from or having 19 carried out or permitting to be obtained from or carried out 20 outside Australia together with its reasons therefor and shall, 21 if required by the Minister, consult with the Minister with 22 respect thereto. 23 (5) The Company may withdraw its proposals pursuant to 24 subclause (1) at any time before approval thereof, or where 25 any decision in respect thereof is referred to arbitration as 26 referred to in clause 10A, within 3 months after the award by 27 notice to the Minister that it shall not be proceeding with the 28 same."; 29 (6) by inserting after clause 10 the following new clauses: 30 "Consideration of Company's proposals under clause 10 31 10A. (1) In respect of each proposal pursuant to subclause (1) 32 of Clause 10 the Minister shall: 33 page 326 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 (a) subject to the limitations set out below, refuse 2 to approve the proposal (whether it requests the 3 grant of new tenure or not) if the Minister is 4 satisfied on reasonable grounds that it is not in 5 the public interest for the proposal to be 6 approved; or 7 (b) approve of the proposal without qualification or 8 reservation; or 9 (c) defer consideration of or decision upon the 10 same until such time as the Company submits a 11 further proposal or proposals in respect of some 12 other of the matters mentioned in Clause 10(1) 13 not covered by the said proposal; or 14 (d) require as a condition precedent to the giving of 15 his approval to the said proposal that the 16 Company make such alteration thereto or 17 comply with such conditions in respect thereto 18 as he thinks reasonable, and in such a case the 19 Minister shall disclose his reasons for such 20 conditions, 21 PROVIDED ALWAYS that where 22 implementation of any proposals hereunder has 23 been approved pursuant to the EP Act subject 24 to conditions or procedures, any approval or 25 decision of the Minister under this clause shall 26 if the case so requires incorporate a 27 requirement that the Company make such 28 alterations to the proposals as may be necessary 29 to make them accord with those conditions or 30 procedures. 31 In considering whether to refuse to approve a 32 proposal the Minister is to assess whether or not the 33 implementation of the proposal by itself, or together 34 with any one or more of the other submitted 35 proposals, will: page 327 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 2 (i) detrimentally affect economic and orderly 3 development in the said State, including 4 without limitation, infrastructure development 5 in the said State; or 6 7 (ii) be contrary to or inconsistent with the planning 8 and development policies and objectives of the 9 State; or 10 11 (iii) detrimentally affect the rights and interests of 12 third parties; or 13 14 (iv) detrimentally affect access to and use by others 15 of the lands the subject of any grant or 16 proposed grant to the Company. 17 The right to refuse to approve a proposal conferred by 18 paragraph (a) may only be exercised in respect of a 19 proposal where the Minister is satisfied on reasonable 20 grounds that a purpose of the proposal is the 21 integrated use of works installations or facilities (as 22 defined in subclause (7) of clause 15A for the purpose 23 of that clause) as contemplated by clause 15A. It may 24 not be so exercised in respect of a proposal if 25 pursuant to clause 10B(5) the Minister, prior to the 26 submission of the proposal, advised the Company in 27 writing that the Minister has no public interest 28 concerns (as defined in that clause) with the single 29 preferred development (as referred to in clause 30 10B(5)(a)) the subject of the submitted proposals and 31 those proposals are consistent (as to their substantive 32 scope and content) with the information provided to 33 the Minister pursuant to clause 10B(5) in respect of 34 that single preferred development. 35 (2) The Minister shall within 2 months after receipt of 36 proposals pursuant to clause 10(1) give notice to the 37 Company of his decision in respect to the proposals, 38 PROVIDED THAT where a proposal is to be page 328 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 assessed under Part IV of the EP Act the Minister 2 shall only give notice to the Company of his decision 3 in respect to the proposal within 2 months after 4 service on him of an authority under section 45(7) of 5 the EP Act. 6 (3) If the decision of the Minister is as mentioned in 7 either of paragraphs (a), (c) or (d) of subclause (1) the 8 Minister shall afford the Company full opportunity to 9 consult with him and should it so desire to submit 10 new or revised proposals either generally or in respect 11 to some particular matter. 12 (4) If the decision of the Minister is as mentioned in 13 either of paragraphs (c) or (d) of subclause (1) and the 14 Company considers that the decision is unreasonable 15 the Company within 2 months after receipt of the 16 notice mentioned in subclause (2) may elect to refer 17 to arbitration in the manner hereinafter provided the 18 question of the reasonableness of the decision 19 PROVIDED THAT any requirement of the Minister 20 pursuant to the proviso to subclause (1) shall not be 21 referable to arbitration hereunder. A decision of the 22 Minister under paragraph (a) of subclause (1) shall 23 not be referable to arbitration under this Agreement. 24 (5) If by the award made on the arbitration pursuant to 25 subclause (4) the dispute is decided in favour of the 26 Company the decision shall take effect as a notice by 27 the Minister that he is so satisfied with and approves 28 the matter or matters the subject of the arbitration. 29 (6) The Company shall implement the approved 30 proposals in accordance with the terms thereof. 31 (7) Notwithstanding Clause 34, the Minister may during 32 the implementation of approved proposals approve 33 variations to those proposals. page 329 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 Notification of possible proposals 2 3 10B. (1) If the Company, upon completion of a pre-feasibility 4 study in respect of any matter that would require the 5 submission and approval of proposals pursuant to this 6 Agreement (being proposals which will have as their 7 purpose, or one of their purposes, the integrated use 8 of works installations or facilities as contemplated by 9 Clause 15A) for the matter to be undertaken, intends 10 to further consider the matter with a view to possibly 11 submitting such proposals it shall promptly notify the 12 Minister in writing giving reasonable particulars of 13 the relevant matter. 14 15 (2) Within one (1) month after receiving the notification 16 the Minister may, if the Minister so wishes, inform 17 the Company of the Minister's views of the matter at 18 that stage. 19 20 (3) If the Company is informed of the Minister's views, it 21 shall take them into account in deciding whether or 22 not to proceed with its consideration of the matter and 23 the submission of proposals. 24 25 (4) Neither the Minister's response nor the Minister 26 choosing not to respond shall in any way limit, 27 prejudice or otherwise affect the exercise by the 28 Minister of the Minister's powers, or the performance 29 of the Minister's obligations, under this Agreement or 30 otherwise under the laws from time to time of the said 31 State. 32 33 (5) (a) This subclause applies where the Company has 34 settled upon a single preferred development a 35 purpose of which is the integrated use of works 36 installations or facilities (as defined in 37 subclause (7) of Clause 15A for the purpose of 38 that clause) as contemplated by Clause 15A. 39 page 330 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 (b) For the purpose of this subclause "public 2 interest concerns" means any concern that 3 implementation of the single preferred 4 development or any part of it will: 5 6 (i) detrimentally affect economic and 7 orderly development in the said State, 8 including without limitation, 9 infrastructure development in the said 10 State; or 11 12 (ii) be contrary to or inconsistent with the 13 planning and development policies and 14 objectives of the State; or 15 16 (iii) detrimentally affect the rights and 17 interests of third parties; or 18 19 (iv) detrimentally affect access to and use by 20 others of lands the subject of any grant 21 or proposed grant to the Company. 22 23 (c) At any time prior to submission of proposals the 24 Company may give to the Minister notice of its 25 single preferred development and request the 26 Minister to confirm that the Minister has no 27 public interest concerns with that single 28 preferred development. 29 30 (d) The Company shall furnish to the Minister with 31 its notice reasonable particulars of the single 32 preferred development including, without 33 limitation: 34 35 (i) as to the matters that would be required to 36 be addressed in submitted proposals; and 37 38 (ii) its progress in undertaking any feasibility 39 or other studies or matters to be completed 40 before submission of proposals; and page 331 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 2 (iii) its timetable for obtaining required 3 statutory and other approvals in relation to 4 the submission and approval of proposals; 5 and 6 7 (iv) its tenure requirements. 8 9 (e) If so required by the Minister, the Company will 10 provide to the Minister such further information 11 regarding the single preferred development as the 12 Minister may require from time to time for the 13 purpose of considering the Company's request 14 and also consult with the Minister or 15 representatives or officers of the State in regard 16 to the single preferred development. 17 18 (f) Within 2 months after receiving the notice (or if 19 the Minister requests further information, within 20 2 months after the provision of that information) 21 the Minister must advise the Company: 22 23 (i) that the Minister has no public interest 24 concerns with the single preferred 25 development; or 26 (ii) that he is not then in a position to advise 27 that he has no public interest concerns 28 with the single preferred development 29 and the Minister's reasons in that regard. 30 31 (g) If the Minister gives the advice mentioned in 32 paragraph (f)(ii) the Company may, should it so 33 desire, give a further request to the Minister in 34 respect of a revised or alternate single preferred 35 development and the provisions of this subclause 36 shall apply mutatis mutandis thereto."; page 332 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 (7) in clause 11(1) by inserting "for the initial mining project referred 2 to in Clause 7 or for the East Angelas Deposit project referred to in 3 subclause (4) of Clause 15" after "exceed 150"; 4 (8) in clause 11(2): 5 (a) by in paragraph (a) inserting "or in respect of the East 6 Angelas Deposit the matters mentioned in paragraphs (a)- 7 (m) of subclause (4) of Clause 15" after "Clause 7"; and 8 (b) by in paragraph (c) inserting "or under subclause (8) of 9 Clause 15" after "Clause 8"; 10 (9) in clause 11(3): 11 (a) by in paragraph (a): 12 (i) inserting "and such increase or plan relates to or 13 primarily relates to the initial mining project 14 referred to in Clause 7" after "in principle a 15 proposed increase or plan"; and 16 (ii) in subparagraph (i) inserting "approval" after "in 17 principle"; 18 (b) by redesignating the existing paragraph (b) as paragraph (c); 19 (c) by inserting the following new paragraph (b): 20 21 "(b) If the Minister approves a proposed increase or 22 plan and such increase or plan relates to or 23 primarily to the East Angelas Deposit project 24 referred to in subclause (4) of Clause 15: 25 26 (i) if it has not already submitted pursuant to 27 subclause (4) of Clause 15 all of its 28 proposals for its East Angelas Deposit 29 project, submit to the Minister pursuant to 30 subclause (4) of Clause 15 detailed 31 proposals in respect of the proposed page 333 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 increase or plan as part of the Company's 2 proposals for its East Angelas Deposit 3 project and in accordance with any 4 conditions of the Minister's in principle 5 approval; or 6 (ii) if it has already submitted pursuant to 7 subclause (4) of Clause 15 all of its proposals 8 for its East Angelas Deposit project, within six 9 (6) months of the Minister's in principle 10 approval submit to the Minister detailed 11 proposals in respect of the proposed increase 12 or plan in accordance with any conditions of 13 that approval otherwise that approval shall 14 lapse."; and 15 (d) by in paragraph (c) deleting the second sentence and 16 substituting the following sentence: 17 18 "The provisions of: 19 20 (i) subclause (4)(b) of Clause 7, subclauses (2) to (5) 21 of Clause 10 and of Clause 10A shall apply to 22 detailed proposals submitted pursuant to paragraph 23 (a)(ii) of this subclause; 24 25 (ii) subclauses (4) to (14) of Clause 15 shall apply 26 mutatis mutandis to detailed proposals regarding a 27 proposed increase or plan referred to in paragraph 28 (b)(i) of this subclause; and 29 30 (iii) subclause (15)(b) of Clause 15 shall apply to detailed 31 proposals submitted pursuant to paragraph (b)(ii) of 32 this subclause."; 33 (10) in clause 11(4) by deleting "pursuant to Clause 8" and substituting 34 "as referred to in"; page 334 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 (11) by inserting after clause 12(8) the following new subclauses: 2 "Blending of iron ore 3 (9) (a) The Company may blend iron ore mined from the 4 mining lease with any: 5 (i) iron ore mined from a mining tenement or 6 other mining title granted under, or pursuant to, 7 an Integration Agreement; or 8 (ii) iron ore mined from a Mining Act 1978 mining 9 lease located in, or proximate to, the Pilbara 10 region of the said State which is held by a 11 Related Entity alone or with a third party or 12 parties (excluding any mining lease granted 13 pursuant to, or held under, a Government 14 agreement); or 15 (iii) with the prior approval of the Minister, iron ore 16 mined in, or proximate to, the Pilbara region of 17 the said State under a Government agreement 18 (excluding an Integration Agreement); or 19 (iv) with the prior approval of the Minister, iron ore 20 mined by a third party from a Mining Act 1978 21 mining lease located in, or proximate to, the 22 Pilbara region of the said State (excluding 23 under a Government agreement) which has 24 been purchased by an Integration Proponent 25 from the third party. 26 (b) The authority given under paragraph (a) is subject to 27 the Minister being reasonably satisfied that there are 28 in place adequate systems and controls for the correct 29 apportionment of the quantities of iron ore being 30 blended as between each of the sources referred to in 31 paragraph (a), which systems and controls monitor 32 production, processing, transportation, stockpiling 33 and shipping of all such iron ore. If at any time the page 335 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 Minister ceases to be so satisfied he may, after 2 consulting the Company and provided the Company 3 has not within three (3) months after the 4 commencement of such consultation addressed the 5 matters of concern to the Minister to his satisfaction, 6 by notice in writing to the Company suspend the 7 above authority in respect of the relevant blending 8 arrangements until he is again satisfied in terms of 9 this paragraph (b). 10 (c) If any blending of iron ore occurs as contemplated by 11 this subclause, then for the purposes of Clauses 13(1) 12 and (2)(a), a portion of the iron ore so blended being 13 equal to the proportion that the amount of iron ore 14 from the mining lease used in the admixture of iron 15 ore bears to the total amount of iron ore so blended, 16 shall be deemed to be produced from the mining 17 lease. 18 19 Shipment of and price for iron ore 20 (10) The Company shall during the continuance of this 21 Agreement ship, or procure to be shipped, all iron ore mined 22 from the mining lease and sold: 23 24 (a) from a wharf in a loading port which has been 25 constructed under an Integration Agreement; or 26 27 (b) with the Minister's approval given before submission 28 of proposals in that regard, from any other wharf in a 29 loading port which wharf has been constructed under 30 another Government agreement (excluding the 31 Integration Agreements), 32 33 and use its best endeavours to obtain for all iron ore from the 34 mining lease the best price possible having regard having 35 regard to market conditions from time to time prevailing; 36 PROVIDED THAT iron ore from the mining lease may be 37 sold by the Company prior to or at the time of the shipment page 336 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 under this Agreement at a price equal to the production costs 2 in respect of that iron ore up to the point of sale, if: 3 4 (i) the Minister is notified before the time of shipment 5 that the sale is to be made at cost, providing details of 6 the proposed sale; and 7 8 (ii) the Minister is notified of the proposed arm's length 9 purchaser in the relevant international seaborne iron 10 ore market of the iron ore the subject of the proposed 11 sale at cost; and 12 13 (iii) there is included in the return lodged pursuant to 14 clause 13(2) particulars of the transaction in which 15 the ore sold at cost was subsequently purchased in the 16 relevant international seaborne iron ore market by an 17 arm's length purchaser specifying the purchaser, the 18 seller, the price and the date when the sale was agreed 19 between the arm's length purchaser and the seller; and 20 21 (iv) the arm's length purchaser referred to in (iii) above is 22 not then a designated purchaser as referred to below. 23 24 If required by notice in writing from the Minister, the 25 Company must provide the Minister within 30 days after 26 receiving the notice with evidence that the transaction as 27 included in the return pursuant to paragraph (b)(iii) above 28 was a sale in the relevant international seaborne iron ore 29 market to an independent participant in that market. If no 30 evidence is provided or the Minister is not so satisfied on the 31 evidence provided or other information obtained, the 32 Minister may by notice to the Company designate the 33 purchaser to be a designated purchaser and that designation 34 will remain in force unless and until lifted by further notice 35 from the Minister to the Company. For the avoidance of 36 doubt, and without limiting the Minister's discretion above, 37 the parties acknowledge that marketing entities forming part 38 of a corporate group that includes at the time a person (alone 39 or together with other persons) that comprise the Company 40 (or part of a parallel corporate group if that person is part of page 337 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 a dual-listed corporate structure) are not independent 2 participants for the purposes of this subclause."; 3 (12) by inserting after clause 12 the following new clause: 4 "Additional areas 5 12A. (1) Notwithstanding the provisions of the Mining Act 6 1904 or the Mining Act 1978 the Company may from 7 time to time during the currency of this Agreement 8 apply to the Minister for areas held by the Company 9 or an associated company under a mining tenement 10 granted under the Mining Act 1978 (excluding the 11 exploration licences referred to in subclause (3) of 12 Clause 15) to be included in the mining lease but so 13 that the total area of the mining lease, any land that 14 may be included in the mining lease pursuant to this 15 Agreement and of any other mineral lease or mining 16 lease granted under or pursuant to this Agreement (as 17 aggregated) shall not at any time exceed 777 square 18 kilometres. The Minister shall confer with the 19 Minister for Mines in regard to any such application 20 and if they approve the application the Minister for 21 Mines shall upon the surrender of the relevant mining 22 tenement include the area the subject thereof in the 23 mining lease by endorsement subject to such of the 24 conditions of the surrendered mining tenement as the 25 Minister for Mines determines but otherwise subject 26 to the same terms covenants and conditions as apply 27 to the mineral lease (with such apportionment of rents 28 as is necessary) and notwithstanding that the survey 29 of such additional land has not been completed but 30 subject to correction to accord with the survey when 31 completed at the Company's expense. 32 (2) The Minister may approve, upon application by the 33 Company from time to time, for the total area referred 34 to in subclause (1) to be increased up to a limit not 35 exceeding 1,000 square kilometres. page 338 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 (3) The Company shall not mine or carry out other 2 activities (other than exploration, bulk sampling and 3 testing) on any area or areas added to the mining lease 4 pursuant to subclause (1) of this Clause unless and 5 until proposals with respect thereto are approved or 6 determined pursuant to the subsequent provisions of 7 this Clause. 8 (4) If the Company desires to commence mining of iron 9 ore or to carry out any other activities (other than as 10 aforesaid) on the said areas it shall give notice of such 11 desire to the Minister and shall within 2 months of the 12 date of such notice (or thereafter within such 13 extended time as the Minister may allow as 14 hereinafter provided) and subject to the provisions of 15 this Agreement submit to the Minister to the fullest 16 extent reasonably practicable its detailed proposals 17 (which proposals shall include plans where 18 practicable and specifications where reasonably 19 required by the Minister) with respect to such mining 20 or other activities as additional proposals pursuant to 21 Clauses 10 or 11 as the case may be."; 22 (13) in clause 13(1): 23 (a) in paragraph (iv), by deleting "3.25%" and inserting "5%"; 24 and 25 (b) by inserting at the end of clause 13(1) the following new 26 paragraphs: 27 "Where beneficiated ore is produced from an admixture of 28 iron ore from the mining lease and other iron ore a portion 29 (and a portion only) of the beneficiated ore so produced 30 being equal to the proportion that the amount of iron in the 31 iron ore from the mining lease used in the production of 32 beneficiated ore bears to the total amount of iron in the iron 33 ore so used shall be deemed to be produced from iron ore 34 from the mining lease. page 339 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 Where for the purpose of determining f.o.b. value it is 2 necessary to convert an amount or price to Australian 3 currency, the conversion is to be calculated using a rate 4 (excluding forward hedge or similar contract rates) that has 5 been approved by the Minister at the request of the 6 Company and in the absence of such request as determined 7 by the Minister to be a reasonable rate for the purpose. 8 The provisions of regulation 85AA (Effect of GST etc on 9 royalties) of the Mining Regulations 1981 (WA) shall apply 10 mutatis mutandis to the calculation of royalties under this 11 clause."; 12 (14) in clause 13(2): 13 (a) by inserting in paragraph (a) "and also showing such other 14 information in relation to the abovementioned iron ore as 15 the Minister may from time to time reasonably require in 16 regard to, and to assist in verifying, the calculation of 17 royalties in accordance with subclause (1)" after "the due 18 date of the return"; 19 20 (b) by in paragraph (a) deleting all words after "on the basis of" 21 and substituting a colon followed by: 22 "(i) in the case of iron ore initially sold at cost pursuant to 23 the proviso to clause 12(10), at the price notified 24 pursuant to paragraph (iii) of that proviso; 25 26 (ii) in any other case, invoices or provisional invoices (as 27 the case may be) rendered by the Company to the 28 purchaser (which invoices the Company shall render 29 without delay simultaneously furnishing copies 30 thereof to the Minister) of such iron ore or on the 31 basis of estimates as agreed or determined, 32 33 and shall from time to time in the next following appropriate 34 return and payment make (by return and by cash) all such 35 necessary adjustments (and give to the Minister full details page 340 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 thereof) when the f.o.b. value shall have been finally 2 calculated, agreed or determined;"; 3 (c) in paragraph (b): 4 (i) by deleting "books of account and records of the 5 Company including contracts relative" and 6 substituting "books, records, accounts, documents 7 (including contracts), data and information of the 8 Company stored by any means relating"; 9 (ii) by inserting "(in whatever form)" after "copies or 10 extracts"; 11 (iii) by inserting "the subject of royalty" before each 12 reference to "hereunder"; and 13 (iv) by deleting "and" after the semi colon; and 14 (d) by in paragraph (c) deleting the full stop and substituting "; 15 and" and inserting after paragraph (c) the following new 16 paragraph: 17 "(d) cause to be produced in Perth in the said State all 18 books, records, accounts, documents (including 19 contracts), data and information of the kind referred 20 to in paragraph (n) to enable the exercise of rights by 21 the Minister or the Minister's nominee under 22 paragraph (n), regardless of the location in which or 23 by whom those books, records, accounts, documents 24 (including contracts), data and information are stored 25 from time to time."; 26 (15) in clause 15(1): 27 (a) by in paragraph (a) inserting "and subclause (3)" after "this 28 subclause"; and 29 (b) by in paragraphs (a) and (b) deleting "2008" and substituting 30 "2012"; page 341 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 (16) by deleting subclause (3) of Clause 15 and substituting the 2 following new subclauses: 3 4 "(3) Notwithstanding the provisions of the Mining Act the 5 Company may on or before 31 December 2012 (or such 6 later date as the parties may agree) apply to the Minister 7 for all exploration licences held by it at the time of 8 application within Area C (and being the subject of 9 subclause (1)) to be included in the mining lease and 10 provided that the exploration licences have been explored 11 to the satisfaction of the State the Minister for Mines 12 shall, subject to the surrender by the Company of the 13 exploration licences concerned include the land the 14 subject thereof (herein called "the East Angelas 15 Deposit") in the mining lease by endorsement on the 16 mining lease subject to such of the conditions of the 17 surrendered exploration licences as the Minister for 18 Mines determines but otherwise subject to the same 19 terms and covenants and conditions as apply to the 20 mining lease (with such apportionment of rents as is 21 necessary) and notwithstanding that the survey of the 22 East Angelas Deposit has not been completed (but 23 subject to correction to accord with the survey when 24 completed at the Company's expense). 25 26 (4) The Company shall subject to the EP Act, Clause 11 and 27 the other provisions of this Agreement submit to the 28 Minister on or before the date occurring 2 years after the 29 East Angelas Deposit is included in the mining lease to 30 the fullest extent reasonably practicable its detailed 31 proposals (including plans where practicable and 32 specifications where reasonably required by the Minister 33 and any other details normally required by a local 34 government in whose area any works are to be situated) 35 with respect to the production of iron ore from the East 36 Angelas Deposit and the transport and shipment of iron 37 ore produced which proposals shall make provisions for 38 the Company's' workforce and associated population 39 required to enable the Company to mine and recover iron 40 ore from the East Angelas Deposit and transport and ship page 342 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 the iron ore and shall include the location, area, lay-out, 2 design, quantities, materials and time programme for the 3 commencement and completion of construction or 4 provision (as the case may be) of each of the following 5 matters, namely: 6 7 (a) the mining and recovery of iron ore including mining 8 crushing screening handling transport and storage of iron 9 ore and plant facilities and any processing of iron ore 10 proposed to be carried out; 11 12 (b) roads within the mining lease and roads serving the 13 mining lease; 14 15 (c) temporary accommodation and ancillary facilities for the 16 mine camp workforce and housing and other appropriate 17 accommodation and facilities elsewhere for the 18 Company's' workforce, in each case engaged in the East 19 Angelas Deposit project; 20 21 (d) management of vehicles on the mine site; 22 23 (e) water supply; 24 25 (f) power supply; 26 27 (g) transportation of iron ore by conveyor or, subject to 28 Clause 11, by rail way or rail spur line constructed under 29 an Integration Agreement; 30 31 (h) subject to Clauses 11 and 12(10), storage and ship 32 loading of iron ore; 33 34 (i) mine aerodrome on or in the vicinity of the mining lease 35 and any other aerodrome facilities and services; 36 37 (j) any other works installations or facilities or services 38 desired by the Company; 39 page 343 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 (k) use of local labour professional services manufacturers 2 suppliers contractors and materials and measures to be 3 taken with respect to the engagement and training of 4 employees by the Company, its agents and contractors; 5 6 (l) any leases, licences or other tenures of land required 7 from the State; and 8 9 (m) an environmental management programme as to 10 measures to be taken, in respect of the Company's 11 activities under this Agreement, for the rehabilitation and 12 the protection and management of the environment. 13 14 (5) A proposal may with the consent of the Minister (except in 15 relation to an Integration Agreement) and that of any parties 16 concerned (being in respect of an Integration Agreement the 17 Integration Proponent for that agreement) provide for the use by 18 the Company of any works installations or facilities constructed or 19 established under a Government agreement. 20 21 (6) Each of the proposals pursuant to subclause (4) may with the 22 approval of the Minister or, if so required by the Minister, shall be 23 submitted separately and in any order as to any matter or matters 24 in respect of which such proposals are required to be submitted. 25 (7) At the time when the Company submits the said proposals it shall: 26 (a) submit to the Minister details of any services (including any 27 elements of the project investigations, design and 28 management) and any works materials, plant, equipment and 29 supplies that it proposes to consider obtaining from or 30 having carried out or permitting to be obtained from or 31 carried out outside Australia together with its reasons 32 therefor and shall, if required by the Minister, consult with 33 the Minister with respect thereto; and page 344 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 (b) furnish to the Minister's reasonable satisfaction evidence of: 2 (i) marketing arrangements demonstrating the Company's 3 ability to sell iron ore in accordance with the said 4 proposals; 5 (ii) the availability of finance necessary for the fulfilment 6 of the operations to which the said proposals refer; 7 and 8 (iii) the readiness of the Company to embark upon and 9 proceed to carry out the operations referred to in the 10 said proposals. 11 12 (8) In respect of each proposal pursuant to subclause (4) the Minister 13 shall: 14 15 (a) subject to the limitations set out below, refuse to approve 16 the proposal (whether it requests the grant of new tenure or 17 not) if the Minister is satisfied on reasonable grounds that it 18 is not in the public interest for the proposal to be approved; 19 or 20 21 (b) approve of the proposal without qualification or reservation; 22 or 23 24 (c) defer consideration of or decision upon the same until such 25 time as the Company submits a further proposal or proposals 26 in respect of some other of the matters mentioned in 27 subclause (4) not covered by the said proposal; or 28 29 (d) require as a condition precedent to the giving of his approval 30 to the said proposal that the Company make such alteration 31 thereto or comply with such conditions in respect thereto as 32 he thinks reasonable, and in such a case the Minister shall 33 disclose his reasons for such conditions, 34 35 PROVIDED ALWAYS that where implementation of any 36 proposals hereunder has been approved pursuant to the EP Act 37 subject to conditions or procedures, any approval or decision of page 345 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 the Minister under this clause shall if the case so requires 2 incorporate a requirement that the Company make such alterations 3 to the proposals as may be necessary to make them accord with 4 those conditions or procedures. 5 6 In considering whether to refuse to approve a proposal the 7 Minister is to assess whether or not the implementation of the 8 proposal by itself, or together with any one or more of the other 9 submitted proposals, will: 10 11 (i) detrimentally affect economic and orderly development in 12 the said State, including without limitation, infrastructure 13 development in the said State; or 14 15 (ii) be contrary to or inconsistent with the planning and 16 development policies and objectives of the State; or 17 18 (iii) detrimentally affect the rights and interests of third 19 parties; or 20 21 (iv) detrimentally affect access to and use by others of the 22 lands the subject of any grant or proposed grant to the 23 Company. 24 25 The right to refuse to approve a proposal conferred by paragraph 26 (a) may only be exercised in respect of a proposal where the 27 Minister is satisfied on reasonable grounds that a purpose of the 28 proposal is the integrated use of works installations or facilities (as 29 defined in subclause (7) of clause 15A for the purpose of that 30 clause) as contemplated by clause 15A. It may not be so exercised 31 in respect of a proposal if pursuant to clause 10B(5) the Minister, 32 prior to the submission of the proposal, advised the Company in 33 writing that the Minister has no public interest concerns (as 34 defined in that clause) with the single preferred development (as 35 referred to in clause 10B(5)(a)) the subject of the submitted 36 proposals and those proposals are consistent (as to their 37 substantive scope and content) with the information provided to 38 the Minister pursuant to clause 10B(5) in respect of that single 39 preferred development. 40 page 346 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 (9) The Minister shall within 2 months after receipt of proposals 2 pursuant to subclause (4) give notice to the Company of his 3 decision in respect to the proposals, PROVIDED THAT where a 4 proposal is to be assessed under Part IV of the EP Act the Minister 5 shall only give notice to the Company of his decision in respect to 6 the proposal within 2 months after service on him of an authority 7 under section 45(7) of the EP Act. 8 9 (10) If the decision of the Minister is as mentioned in either of 10 paragraphs (a), (c) or (d) of subclause (8) the Minister shall afford 11 the Company full opportunity to consult with him and should it so 12 desire to submit new or revised proposals either generally or in 13 respect to some particular matter. 14 15 (11) If the decision of the Minister is as mentioned in either of 16 paragraphs (c) or (d) of subclause (8) and the Company considers 17 that the decision is unreasonable the Company within 2 months 18 after receipt of the notice mentioned in subclause (2) may elect to 19 refer to arbitration in the manner hereinafter provided the question 20 of the reasonableness of the decision PROVIDED THAT any 21 requirement of the Minister pursuant to the proviso to subclause 22 (8) shall not be referable to arbitration hereunder. A decision of 23 the Minister under paragraph (a) of subclause (8) shall not be 24 referable to arbitration under this Agreement. 25 26 (12) If by the award made on the arbitration pursuant to subclause (11) 27 the dispute is decided in favour of the Company the decision shall 28 take effect as a notice by the Minister that he is so satisfied with 29 and approves the matter or matters the subject of the arbitration. 30 31 (13) The Company shall implement the approved proposals in 32 accordance with the terms thereof. 33 34 (14) Notwithstanding Clause 34, the Minister may during the 35 implementation of approved proposals approve variations to those 36 proposals. 37 38 (15) (a) Subject to Clause 11, if the Company at any time during the 39 continuance of this Agreement desires to produce more iron 40 ore from the East Angelas Deposit than the tonneage of iron page 347 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 ore for transportation from the mining lease approved under 2 approved proposals or to significantly modify expand or 3 otherwise vary its activities in relation to the mining of the 4 East Angelas Deposit beyond those activities specified in 5 any approved proposals it shall give notice of such desire to 6 the Minister and shall within 2 months thereafter submit to 7 the Minister detailed proposals in respect of all matters 8 covered by such notice and such of the other matters 9 mentioned in paragraphs (a) to (m) of subclause (4) as the 10 Minister may require. 11 12 (b) The provisions of subclauses (5) to (14) shall mutatis 13 mutandis apply to detailed proposals submitted pursuant 14 to this subclause with the proviso that the Company may 15 withdraw such proposals at any time before approval 16 thereof or, where any decision of the Minister in respect 17 thereof is referred to arbitration, within 3 months after 18 the award by notice to the Minister that it shall not be 19 proceeding with the same. Subject to and accordance 20 with the EP Act and any approvals and licences required 21 under that Act the Company shall implement approved 22 proposals pursuant to this Clause in accordance with the 23 terms thereof."; 24 (17) by inserting after clause 15 the following new clauses: 25 "Integrated use of works installations or facilities under the 26 Integration Agreements 27 15A. (1) Subject to subclauses (2) to (7) of this Clause and to 28 the other provisions of this Agreement, the Company 29 may during the continuance of this Agreement: 30 (a) use any existing or new works installations or 31 facilities constructed or held: 32 (i) under this Agreement; or 33 (ii) under any other Integration Agreement 34 which are made available for such use page 348 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 and during the continuance of such 2 Integration Agreement; or 3 (iii) with the approval of the Minister, under 4 a Government agreement (excluding an 5 Integration Agreement) which are made 6 available for such use and during the 7 continuance of that agreement, 8 (wholly or in part) in the activities of the 9 Company carried on by it pursuant to this 10 Agreement including, without limitation, as 11 part of those activities, transporting by railway 12 and shipping from a loading port and 13 undertaking any ancillary and incidental 14 activities in doing so (including, without 15 limitation, blending permitted by Clause 12(9)) 16 of: 17 (A) iron ore mined from a Mining Act 1978 18 mining lease located in, or proximate to, 19 the Pilbara region of the said State which 20 is held by a Related Entity alone or with 21 a third party or parties (excluding any 22 mining lease granted pursuant to, or held 23 under, a Government agreement); or 24 (B) with the prior approval of the Minister, 25 iron ore mined in, or proximate to, the 26 Pilbara region of the said State under a 27 Government agreement (excluding an 28 Integration Agreement); or 29 (C) with the prior approval of the Minister, 30 iron ore mined by a third party from a 31 Mining Act 1978 mining lease located in, 32 or proximate to, the Pilbara region of the 33 said State (excluding under a 34 Government agreement) which has been page 349 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 purchased by the Company from the 2 third party; or 3 (D) iron ore mined under an Integration 4 Agreement; 5 (b) make any existing or new works installations or 6 facilities constructed or held under this 7 Agreement available for use (wholly or partly) 8 by another Integration Proponent during the 9 continuance of its Integration Agreement in the 10 activities of that Integration Proponent carried 11 on by it pursuant to its Integration Agreement 12 including, without limitation, as part of those 13 activities, transporting by railway and shipping 14 from a loading port and undertaking any 15 ancillary and incidental activities in doing so 16 (including, without limitation, blending 17 permitted by that Integration Agreement) of: 18 (i) iron ore mined from a Mining Act 1978 19 mining lease located in, or proximate to, 20 the Pilbara region of the said State which 21 is held by a Related Entity alone or with 22 a third party or parties (excluding any 23 mining lease granted pursuant to, or held 24 under, a Government agreement); or 25 (ii) with the prior approval of the Minister 26 (as defined in that Integration 27 Agreement), iron ore mined in, or 28 proximate to, the Pilbara region of the 29 said State under a Government 30 agreement (excluding an Integration 31 Agreement); or 32 (iii) with the prior approval of the Minister 33 (as defined in that Integration 34 Agreement), iron ore mined by a third 35 party from a Mining Act 1978 mining page 350 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 lease located in, or proximate to, the 2 Pilbara region of the said State 3 (excluding under a Government 4 agreement) which has been purchased by 5 that Integration Proponent from the third 6 party; or 7 (iv) iron ore mined under an Integration 8 Agreement; 9 (c) make any existing or new works installations or 10 facilities constructed or held under this 11 Agreement available for use (wholly or partly) 12 in connection with operations under: 13 14 (i) a Mining Act 1978 mining lease located 15 in, or proximate to, the Pilbara region of 16 the said State, for iron ore, which is held 17 by a Related Entity alone or with a third 18 party or parties (excluding any mining 19 lease granted pursuant to, or held under a 20 Government agreement); or 21 22 (ii) with the approval of the Minister, a 23 Government agreement (other than an 24 Integration Agreement) for the mining of 25 iron ore in, or proximate to, the Pilbara 26 region of the said State; 27 (d) subject to subclause (2), under this Agreement 28 and for the purpose of any use or making 29 available for use referred to in paragraph (a), 30 (b) or (c) connect any existing or new works 31 installations or facilities constructed or held 32 under this Agreement to any existing or new 33 works installations or facilities constructed or 34 held under another Integration Agreement; 35 (e) subject to subclause (2), under this Agreement 36 and for the purpose of any use or making page 351 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 available for use referred to in paragraph (a), 2 (b) or (c) or making of any connection referred 3 to in paragraph (d) construct new works 4 installations or facilities and expand modify or 5 otherwise vary any existing and new works 6 installations or facilities constructed or held 7 under this Agreement; 8 (f) allow a railway or rail spur line (not being a 9 railway or rail spur line constructed or held 10 under an Integration Agreement) to be 11 connected to a railway or rail spur line or other 12 works installations or facilities constructed or 13 held under this Agreement for the delivery of 14 iron ore to an Integration Proponent for 15 transport by railway and shipping from a 16 loading port (together with any ancillary and 17 incidental activities in doing so) as part of its 18 activities under its Integration Agreement; and 19 (g) allow an electricity transmission line (not being 20 an electricity transmission line constructed or 21 held under an Integration Agreement) to be 22 connected to an electricity transmission line 23 constructed or held under this Agreement for 24 the supply of electricity permitted to be made 25 under an Integration Agreement. 26 (2) (a) A connection referred to in clause (1)(d) or 27 construction, expansion, modification or other 28 variation referred to in subclause (1)(e) by the 29 Company shall, to the extent not already 30 authorised under this Agreement as at the 31 variation date, be regarded as a significant 32 modification expansion or other variation of 33 the Company's activities carried on by it 34 pursuant to this Agreement and may only be 35 made in accordance with proposals submitted 36 and approved or determined under this 37 Agreement in accordance with clauses 10 and page 352 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 10A or clauses 11, 15 or 15C as the case may 2 require and otherwise in compliance with the 3 provisions of this Agreement and the laws 4 from time to time of the said State. For the 5 avoidance of doubt, the parties acknowledge 6 that any use or making available for use 7 contemplated by subclause (1)(a), (1)(b) or 8 (1)(c) shall not otherwise than as required by 9 this paragraph (a) require the submission and 10 approval of further proposals under this 11 Agreement. 12 13 (b) The Company shall not be entitled to: 14 15 (i) submit proposals to construct a port 16 otherwise than as permitted by clause 11 17 or to establish harbour or port works 18 installations or facilities, or to expand 19 modify or otherwise vary harbour or 20 works installations or facilities otherwise 21 than within the boundaries of any port 22 permitted to be constructed by the 23 Company pursuant to clause 11 or at or 24 near the town of Port Hedland within the 25 boundaries of the Port of Port Hedland; 26 or 27 28 (ii) generate and supply power, take and 29 supply water or dispose of water 30 otherwise than in accordance with the 31 other clauses of this Agreement and 32 subject to any restrictions contained in 33 those clauses; or 34 35 (iii) without limiting subparagraphs (i) and 36 (ii) submit proposals to construct or 37 establish works installations or facilities 38 of a type, or to make expansions, 39 modifications or other variations of 40 works installations or facilities of a type, page 353 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 which in the Minister's reasonable 2 opinion this Agreement, immediately 3 before the variation date, did not permit 4 or contemplate the Company 5 constructing, establishing or making as 6 the case may be otherwise than for 7 integration use as contemplated by 8 subclauses (1)(a), (1)(b) or (1)(c) or as 9 permitted by clause 15C; or 10 11 (iv) submit proposals to make a connection 12 as referred to in subclause (1)(d) or a 13 construction, expansion, modification or 14 other variation as referred to in subclause 15 (1)(e) otherwise than on tenure granted 16 under or pursuant to this Agreement 17 from time to time or held pursuant to this 18 Agreement from time to time; or 19 20 (v) submit proposals to make a connection 21 referred to in subclause (1)(d) or a 22 construction, expansion, modification or 23 other variation as referred to in subclause 24 (1)(e) for the purpose of use as 25 contemplated by subclause (1)(c)(i), if in 26 the reasonable opinion of the Minister 27 the activity which is the subject of the 28 proposals would give to the holder or 29 holders of the relevant Mining Act 1978 30 mining lease the benefit of rights or 31 powers granted to the Company under 32 this Agreement, over and above the right 33 of access to and use of the relevant 34 works, installations or facilities; or 35 36 (vi) submit proposals to make a connection 37 as referred to in subclause (1)(d) or a 38 construction, expansion, modification or 39 other variation as referred to in subclause 40 (1)(e) for the purpose of use as page 354 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 contemplated by subclause (1)(c) and 2 involving the grant of tenure without the 3 prior approval of the Minister; or 4 5 (vii) submit proposals to assign, sublet, 6 transfer or dispose of any works 7 installations or facilities constructed or 8 held under this Agreement or any leases, 9 licences, easements or other titles under 10 or pursuant to this Agreement for any 11 purpose referred to in this clause. 12 (c) Notwithstanding the provisions of clauses 10A, 13 11, 15 or 15C, the Minister may defer 14 consideration of, or a decision upon, a proposal 15 submitted by the Company for a connection as 16 referred to in subclause (1)(d) or a construction, 17 expansion, modification or other variation as 18 referred to in subclause (1)(e), for the purpose 19 of use or making available for use as referred to 20 in subclauses (1)(a) or (1)(b), until relevant 21 corresponding proposals under the relevant 22 Integration Agreement have been submitted and 23 those proposals can be approved under that 24 Integration Agreement concurrently with the 25 Minister's approval under this Agreement of the 26 Company's proposal. 27 (3) Any use or making available for use as referred to in 28 subclause (1), or submission of proposals as referred 29 to in subclause (2), in respect of a Related Entity 30 shall be subject to the Company first confirming with 31 the Minister that the Minister is satisfied that the 32 relevant company is a Related Entity. 33 (4) The Company shall give the Minister prior written 34 notice of any significant change (other than a 35 temporary one for maintenance or to respond to an 36 emergency) proposed in its use, or in it making page 355 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 available for use, works, installations or facilities as 2 referred to in this clause: 3 (a) from that authorised under this Agreement 4 immediately before the variation date; and 5 (b) subsequently from that previously notified to 6 the Minister under this subclause, 7 as soon as practicable before such change occurs. 8 The Company shall also keep the Minister fully 9 informed with respect to any proposed connection as 10 referred to in subclause (1)(f) or (1)(g) or request of 11 the Company for such connection to be allowed. 12 (5) Nothing in this Agreement shall be construed to: 13 (a) exempt another Integration Proponent from 14 complying with, or the application of, the 15 provisions of its Integration Agreement. 16 (b) restrict the company's rights under Clause 33. 17 18 For the avoidance of doubt the approval of proposals 19 under this Agreement shall not be construed as 20 authorising another Integration Proponent to 21 undertake any activities under this Agreement or 22 under another Integration Agreement. 23 (6) Nothing in this clause shall be construed to exempt 24 the Company from complying with, or the application 25 of, the other provisions of this Agreement including, 26 without limitation, Clause 33 and of relevant laws 27 from time to time of the said State. 28 (7) For the purpose of this Clause "works installations or 29 facilities" means any: page 356 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 (a) harbour or port works installations or facilities 2 including, without limitation, stockpiles, 3 reclaimers, conveyors and wharves; 4 (b) railway or rail spur lines; 5 (c) track structures and systems associated with the 6 operation and maintenance of a railway 7 including, without limitation, sidings, train 8 control and signalling systems, maintenance 9 workshops and terminal yards; 10 (d) train loading and unloading works installations 11 or facilities; 12 (e) conveyors; 13 (f) private roads; 14 (g) mine aerodrome and associated aerodrome 15 works installations and facilities; 16 (h) iron ore mining, crushing, screening, 17 beneficiation or other processing works 18 installations or facilities; 19 (i) mine administration buildings including, 20 without limitation, offices, workshops and 21 medical facilities; 22 (j) borrow pits; 23 (k) accommodation and ancillary facilities 24 including, without limitation, construction 25 camps and in townsites constructed pursuant to 26 and held under any Integration Agreement; 27 (l) water, sewerage, electricity, gas and 28 telecommunications works installations and 29 facilities including, without limitation, 30 pipelines, transmission lines and cables; and page 357 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 (m) any other works installations or facilities 2 approved of by the Minister for the purpose of 3 this clause. 4 Transfer of rights to shared works installations or facilities 5 15B. (1) For the purposes of this clause "Relevant 6 Infrastructure" means any works installations or 7 facilities (as defined in Clause 15A(7)): 8 (a) constructed or held under another Integration 9 Agreement; 10 (b) which the Company is using in its activities 11 pursuant to this Agreement; 12 (c) which the Minister is satisfied (after consulting 13 with the Company and the Integration 14 Proponent for that other Integration 15 Agreement): 16 (i) are no longer required by that other 17 Integration Proponent to carry on its 18 activities pursuant to its Integration 19 Agreement because of the cessation of 20 the Integration Proponent's mining 21 operations in respect of which such 22 Relevant Infrastructure was constructed 23 or held or because of any other reason 24 acceptable to the Minister; and 25 (ii) are required by the Company to continue 26 to carry on its activities pursuant to this 27 Agreement; and 28 (d) in respect of which that other Integration 29 Proponent has notified the Minister it consents 30 to the Company submitting proposals as 31 referred to in subclause (2). page 358 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 (2) The Company may as an additional proposal pursuant 2 to Clause 10 propose: 3 (a) that it be granted a lease licence or other title 4 over the Relevant Infrastructure pursuant to this 5 Agreement subject to and conditional upon the 6 other Integration Proponent surrendering 7 wholly or in part (and upon such terms as the 8 Minister considers reasonable including any 9 variation of terms to address environmental 10 issues) its lease licence or other title over the 11 Relevant Infrastructure; or 12 (b) that the other Integration Proponent's lease 13 licence or other title (not being a mineral lease, 14 mining lease or other right to mine title granted 15 under a Government agreement, the Mining Act 16 1904 or the Mining Act 1978) to the Relevant 17 Infrastructure be transferred to this Agreement 18 (to be held by the Company pursuant to this 19 Agreement) with such surrender of land from it 20 and variations of its terms as the Minister 21 considers reasonable for that title to be held 22 under this Agreement including, without 23 limitation, to address environmental issues and 24 outstanding obligations of that other Integration 25 Proponent under its Integration Agreement in 26 respect of that Relevant Infrastructure. 27 The provisions of Clause 10A shall mutatis mutandis 28 apply to any such additional proposal. In addition the 29 Company acknowledges that the Minister may 30 require variations of the other Integration Agreement 31 and/or proposals under it or of this Agreement in 32 order to give effect to the matters contemplated by 33 this Clause. 34 (3) This Clause shall cease to apply in the event the State 35 gives any notice of default to the Company pursuant page 359 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 to Clause 37(l) and while such notice remains 2 unsatisfied. 3 Miscellaneous Licences for Railways 4 15C. (1) In this Clause subject to the context: 5 6 "Additional Infrastructure" means: 7 8 (a) Train Loading Infrastructure; 9 10 (b) Train Unloading Infrastructure; 11 12 (c) a conveyor, train unloading and other 13 infrastructure necessary for the transport of iron 14 ore, freight goods or other products from the 15 Railway (directly or indirectly) to port facilities 16 within a loading port, 17 in each case located outside a Port; 18 19 "LAA" means the Land Administration Act 1997 20 (WA); 21 22 "Lateral Access Roads" has the meaning given in 23 subclause (3)(a)(iv)); 24 25 "Lateral Access Road Licence" means a 26 miscellaneous licence granted pursuant to subclause 27 (6)(a)(ii) or subclause (6)(b) as the case may be and 28 according to the requirements of the context describes 29 the area of land from time to time the subject of that 30 licence; 31 32 "Port" means any port the subject of the Port 33 Authorities Act 1999 (WA) or the Shipping and 34 Pilotage Act 1967 (WA); 35 36 "Private Roads" means Lateral Access Roads and the 37 Company's access roads within a Railway Corridor; page 360 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 2 "Rail Safety Act" means the Rail Safety Act 1998 3 (WA); 4 5 "Railway" means a standard gauge heavy haul railway 6 or railway spur line, located or to be located as the 7 case may be in, or proximate to, the Pilbara region of 8 the said State (but outside the boundaries of a Port) 9 for the transport of iron ore, freight goods and other 10 products together with all railway track, associated 11 track structures including sidings, turning loops, over 12 or under track structures, supports (including supports 13 for equipment or items associated with the use of a 14 railway) tunnels, bridges, train control systems, 15 signalling systems, switch and other gear, 16 communication systems, electric traction 17 infrastructure, buildings (excluding office buildings, 18 housing and freight centres), workshops and 19 associated plant, machinery and equipment and 20 including rolling stock maintenance facilities, terminal 21 yards, depots, culverts and weigh bridges which 22 railway is or is to be (as the case may be) the subject 23 of approved proposals under subclause (4) and 24 includes any expansion or extension thereof outside a 25 Port which is the subject of additional proposals 26 approved in accordance with subclause (5); 27 28 "Railway Corridor" means, prior to the grant of a 29 Special Railway Licence, the land for the route of the 30 Railway the subject of that licence, access roads 31 (other than Lateral Access Roads), areas from which 32 stone, sand, clay and gravel may be taken, temporary 33 accommodation facilities for the railway workforce, 34 water bores and Additional Infrastructure (if any) 35 which is the subject of a subsisting agreement 36 pursuant to subclause (3)(a) and after the grant of the 37 Special Railway Licence the land from time to time 38 the subject of that Special Railway Licence; 39 page 361 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 "Railway Operation" means the construction and 2 operation under this Agreement of the relevant 3 Railway and associated access roads and Additional 4 Infrastructure (if any) within the relevant Railway 5 Corridor and of the associated Lateral Access Roads, 6 in accordance with approved proposals; 7 8 "Railway spur line" means a standard gauge heavy 9 haul railway spur line located or to be located in, or 10 proximate to, the Pilbara region of the said State (but 11 outside a Port) connecting to a Railway for the 12 transport of iron ore, freight goods and other products 13 upon the Railway to (directly or indirectly) a loading 14 port; 15 16 "Railway Operation Date" means the date of the first 17 carriage of iron ore, freight goods or other products 18 over the relevant Railway (other than for construction 19 or commissioning purposes); 20 21 "Railway spur line Operation Date" means the date of 22 the first carriage of iron ore, freight goods or other 23 products over the relevant Railway spur line (other 24 than for construction or commissioning purposes); 25 26 "Special Railway Licence" means the relevant 27 miscellaneous licence for railway and, if applicable, 28 other purposes, granted to the Company pursuant to 29 subclause (6)(a)(i) as varied in accordance with 30 subclause (6)(h) or subclause (6)(i) and according to 31 the requirements of the context describes the area of 32 land from time to time the subject of that licence; 33 34 "Train Loading Infrastructure" means conveyors, 35 stockpile areas, blending and screening facilities, 36 stackers, re-claimers and other infrastructure 37 reasonably required for the loading of iron ore, freight 38 goods or other products onto the relevant Railway for 39 transport (directly or indirectly) to a loading port; and 40 page 362 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 "Train Unloading Infrastructure" means train 2 unloading infrastructure reasonably required for the 3 unloading of iron ore from the Railway to be 4 processed, or blended with other iron ore, at 5 processing or blending facilities in the vicinity of that 6 train unloading infrastructure and with the resulting 7 iron ore products then loaded on to the Railway for 8 transport (directly or indirectly) to a loading port. 9 10 Company to obtain prior Ministerial in-principle 11 approval 12 13 (2) (a) If the Company wishes, from time to time 14 during the continuance of this Agreement, to 15 proceed under this clause with a plan to develop 16 a Railway it shall give notice thereof to the 17 Minister and furnish to the Minister with that 18 notice an outline of its plan. 19 (b) The Minister shall within one month of a 20 notice under paragraph (a) advise the Company 21 whether or not he approves in-principle the 22 proposed plan. The Minister shall afford the 23 Company full opportunity to consult with him 24 in respect of any decision of the Minister under 25 this paragraph. 26 (c) The Minister's in-principle approval in respect 27 of a proposed plan shall lapse if the Company 28 has not submitted detailed proposals to the 29 Minister in respect of that plan in accordance 30 with this Clause within 18 months of the 31 Minister's in-principle approval. 32 33 Railway Corridor 34 35 (3) (a) If the Minister gives in-principle approval to a 36 plan of the Company to develop a Railway it 37 shall consult with the Minister to seek the 38 agreement of the Minister as to: page 363 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 2 (i) where the Railway will begin and end; 3 and 4 5 (ii) a route for the Railway, access roads to 6 be within the Railway Corridor and the 7 land required for that route as well as 8 Additional Infrastructure (if any) 9 including, without limitation, areas from 10 which stone, sand, clay and gravel may 11 be taken, temporary accommodation 12 facilities for the railway workforce and 13 water bores; and 14 15 (iii) in respect of Additional Infrastructure (if 16 any) the nature and capacity of such 17 Additional Infrastructure; and 18 19 (iv) the routes of, and the land required for, 20 roads outside the Railway Corridor (and 21 also outside a Port) for access to it to 22 construct the Railway (such roads as 23 agreed being "Lateral Access Roads"). 24 25 In seeking such agreement, regard shall be had 26 to achieving a balance between engineering 27 matters including costs, the nature and use of 28 any lands concerned and interests therein and 29 the costs of acquiring the land (all of which 30 shall be borne by the Company). The parties 31 acknowledge the intention is for the Company 32 to construct the Railway, the access roads for 33 the construction and maintenance of the 34 Railway which are to be within the Railway 35 Corridor and the relevant Additional 36 Infrastructure (if any) along the centreline of 37 the Railway Corridor subject to changes in that 38 alignment to the extent necessary to avoid 39 heritage, environmental or poor ground 40 conditions that are not identified during page 364 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 preliminary investigation work, and recognise 2 the width of the Railway Corridor may need to 3 vary along its route to accommodate Additional 4 Infrastructure (if any), access roads, areas from 5 which stone, sand, clay and gravel may be 6 taken, temporary accommodation facilities for 7 the railway workforce and water bores. The 8 provisions of clause 44 shall not apply to this 9 subclause. 10 11 (b) If the date by which the Company must submit 12 detailed proposals under subclause (4)(a) (as 13 referred to in subclause (2)(c)) is extended or 14 varied by the Minister pursuant to Clause 36, 15 any agreement made pursuant to paragraph (a) 16 before such date is extended or varied shall 17 unless the Minister notifies the Company 18 otherwise be deemed to be at an end and 19 neither party shall have any claim against the 20 other in respect of it. 21 22 (c) The Company acknowledges that it shall be 23 responsible for liaising with every title holder 24 in respect of the land affected and for 25 obtaining in a form and substance acceptable 26 to the Minister all unconditional and 27 irrevocable consents of each such title holder 28 to, and all statutory consents required in 29 respect of the land affected for: 30 31 (i) the grant of the Special Railway Licence 32 for the construction, operation and 33 maintenance within the Railway 34 Corridor of the Railway, access roads 35 and Additional Infrastructure (if any) to 36 be within the Railway Corridor; and 37 38 (ii) the grant of Lateral Access Road 39 Licences for the construction, use and 40 maintenance of Lateral Access Roads page 365 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 over the routes for the Lateral Access 2 Roads agreed pursuant to paragraph (a); 3 and 4 5 (iii) the inclusion of additional land in the 6 Special Railway Licence as referred to 7 in subclause (6)(h) or subclause (6)(i), 8 9 in accordance with this clause. For the 10 purposes of this subclause (3)(c), "title holder" 11 means a management body (as defined in the 12 LAA) in respect of any part of the affected 13 land, a person who holds a mining, petroleum 14 or geothermal energy right (as defined in the 15 LAA) in respect of any part of the affected 16 land, a person who holds a lease or licence 17 under the LAA in respect of any part of the 18 affected land, a person who holds any other 19 title granted under or pursuant to a Government 20 agreement in respect of any part of the affected 21 land, a person who holds a lease or licence in 22 respect of any part of the affected land under 23 any other Act applying in the said State and a 24 person in whom any part of the affected land is 25 vested, immediately before the provision of 26 such consents to the Minister as referred to in 27 subclause (4)(e)(ii) (including as applying 28 pursuant to subclause 5(d)). 29 30 Company to submit proposals for Railway 31 32 (4) (a) The Company shall, subject to the EP Act, the 33 provisions of this Agreement, agreement at that 34 time subsisting in respect of the matters 35 required to be agreed pursuant to subclause 36 3(a), submit to the Minister by the latest date 37 applying under subclause (2)(c) to the fullest 38 extent reasonably practicable its detailed 39 proposals (including plans where practicable 40 and specifications where reasonably required by page 366 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 the Minister and any other details normally 2 required by a local government in whose area 3 any works are to be situated) with respect to the 4 undertaking of the relevant Railway Operation, 5 which proposals shall include the location, area, 6 layout, design, materials and time program for 7 the commencement and completion of 8 construction or the provision (as the case may 9 be) of each of the following matters namely: 10 11 (i) the Railway including fencing (if any) 12 and crossing places within the Railway 13 Corridor; 14 15 (ii) Additional Infrastructure (if any) within 16 the Railway Corridor; 17 18 (iii) temporary accommodation and ancillary 19 temporary facilities for the railway 20 workforce on, or in the vicinity of, the 21 Railway Corridor and housing and other 22 appropriate facilities elsewhere for the 23 Company's workforce; 24 25 (iv) water supply; 26 27 (v) energy supplies; 28 29 (vi) access roads within the Railway Corridor 30 and Lateral Access Roads both along the 31 routes for those roads agreed between 32 the Minister and the Company pursuant 33 to subclause 3(a); 34 35 (vii) any other works, services or facilities 36 desired by the Company; and 37 38 (viii) use of local labour, professional services, 39 manufacturers, suppliers contractors and 40 materials and measures to be taken with page 367 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 respect to the engagement and training of 2 employees by the Company, its agents 3 and contractors. 4 5 (b) Proposals pursuant to paragraph (a) must 6 specify the matters agreed for the purpose 7 pursuant to subclause (3)(a) and must not be 8 contrary to or inconsistent with such agreed 9 matters. 10 11 (c) Each of the proposals pursuant to paragraph (a) 12 may with the approval of the Minister, or must 13 if so required by the Minister, be submitted 14 separately and in any order as to the matter or 15 matters mentioned in one or more of 16 subparagraphs (i) to (viii) of paragraph (a) and 17 until all of its proposals under this subclause 18 have been approved the Company may 19 withdraw and may resubmit any proposal but 20 the withdrawal of any proposal shall not affect 21 the obligations of the Company to submit a 22 proposal under this subclause in respect of the 23 subject matter of the withdrawn proposal. 24 25 (d) The Company shall, whenever any of the 26 following matters referred to in this subclause 27 are proposed by the Company (whether before 28 or during the submission of proposals under 29 this subclause), submit to the Minister details 30 of any services (including any elements of the 31 project investigations, design and 32 management) and any works, materials, plant, 33 equipment and supplies that it proposes to 34 consider obtaining from or having carried out 35 or permitting to be obtained from or carried out 36 outside Australia, together with its reasons 37 therefor and shall, if required by the Minister 38 consult with the Minister with respect thereto. 39 page 368 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 (e) At the time when the Company submits the last 2 of the said proposals pursuant to this 3 subclause, it shall: 4 5 (i) furnish to the Minister's reasonable 6 satisfaction evidence of all 7 accreditations under the Rail Safety Act 8 which are required to be held by the 9 Company or any other person for the 10 construction of the Railway; and 11 12 (ii) furnish to the Minister the written 13 consents referred to in subclause 14 (3)(c)(i) and (3)(c)(ii). 15 16 (f) The provisions of clause 10A shall apply 17 mutatis mutandis to detailed proposals 18 submitted under this subclause. 19 20 Additional Railway Proposals 21 22 (5) (a) If the Company at any time during the currency 23 of a Special Railway Licence desires to 24 construct a Railway spur line (connecting to 25 the Railway the subject of that Special Railway 26 Licence) or desires to significantly modify, 27 expand or otherwise vary its activities within 28 the land the subject of the Special Railway 29 Licence that are the subject of this Agreement 30 and that may be carried on by it pursuant to 31 this Agreement (other than by the construction 32 of a Railway spur line) beyond those activities 33 specified in any approved proposals for that 34 Railway, it shall give notice of such desire to 35 the Minister and furnish to the Minister with 36 that notice an outline of its proposals in respect 37 thereto (including, without limitation, such 38 matters mentioned in subclause (4)(a) as are 39 relevant or as the Minister otherwise requires). 40 page 369 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 (b) If the notice relates to a Railway spur line, or 2 to the construction of Train Loading 3 Infrastructure or Train Unloading 4 Infrastructure on land outside the then 5 Railway Corridor, the Minister shall within 6 one month of receipt of such notice advise the 7 Company whether or not he approves in- 8 principle the proposed construction of such 9 spur line, Train Loading Infrastructure or 10 Train Unloading Infrastructure. If the 11 Minister gives in-principle approval the 12 Company may (but not otherwise) submit 13 detailed proposals in respect thereof provided 14 that the provisions of subclause (3) shall 15 mutatis mutandis apply prior to submission of 16 detailed proposals in respect thereof. 17 18 (c) Subject to the EP Act, the provisions of this 19 Agreement and agreement at that time 20 subsisting in respect of any matters required 21 to be agreed pursuant to subclause (3)(a) (as 22 referred to in paragraph (b)), the Company 23 shall submit to the Minister within a 24 reasonable timeframe, as determined by the 25 Minister after receipt of the notice referred to 26 in paragraph (a) (or in the case of a notice 27 referred to in paragraph (b) the giving of the 28 Minister's in-principle consent as referred to 29 in that paragraph), detailed proposals in 30 respect of the proposed construction of such 31 Railway spur line, Train Loading 32 Infrastructure, Train Unloading Infrastructure 33 or other proposed modification, expansion or 34 variation of its activities including such of the 35 matters mentioned in subclause (4)(a) as the 36 Minister may require. 37 38 (d) The provisions of subclause (4) (with the date 39 for submission of proposals being read as the 40 date or time determined by the Minister under page 370 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 paragraph (c) and the reference in subclause 2 (4)(e)(ii) to subclause (3)(c)(i) being read as a 3 reference to subclause (3)(c)(iii)) and of 4 clause 10A shall mutatis mutandis apply to 5 detailed proposals submitted pursuant to this 6 subclause. 7 Grant of Tenure 8 9 (6) (a) On application made by the Company to the 10 Minister in such manner as the Minister may 11 determine, not later than 3 months after all its 12 proposals submitted pursuant to subclause 13 (4)(a) have been approved or deemed to be 14 approved and the Company has complied with 15 the provisions of subclause (4)(e), the State 16 notwithstanding the Mining Act 1978 shall 17 cause to be granted to the Company: 18 19 (i) a miscellaneous licence to conduct within 20 the Railway Corridor and in accordance 21 with its approved proposals all activities 22 (including the taking of stone, sand, clay 23 and gravel, the provision of temporary 24 accommodation facilities for the railway 25 workforce and, subject to the Rights in 26 Water and Irrigation Act 1914 (WA), the 27 operation of water bores) necessary for 28 the planning, design, construction, 29 commissioning, operation and 30 maintenance within the Railway Corridor 31 of the Railway, access roads and 32 Additional Infrastructure (if any) ("the 33 Special Railway Licence") such licence to 34 be granted under and subject to, except as 35 otherwise provided in this Agreement, the 36 Mining Act 1978 in the form of the 37 Second Schedule hereto and subject to 38 such terms and conditions as the Minister 39 for Mines may from time to time consider page 371 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 reasonable and at a rental calculated in 2 accordance with the Mining Act 1978: 3 4 (A) prior to the Railway Operation 5 Date, as if the width of the 6 Railway Corridor were 100 7 metres; and 8 9 (B) on and from the Railway 10 Operation Date, at the rentals 11 from time to time prescribed 12 under the Mining Act 1978; and 13 14 (ii) a miscellaneous licence or licences to 15 allow the construction, use and 16 maintenance of Lateral Access Roads 17 within the routes agreed for those Lateral 18 Access Roads under subclause (3)(a) 19 (each a "Lateral Access Road Licence"), 20 each such licence to be granted under and 21 subject to, except as otherwise provided in 22 this Agreement, the Mining Act 1978 in 23 the form of the Third Schedule hereto and 24 subject to such terms and conditions as 25 the Minister for Mines may from time to 26 time consider reasonable and at the rentals 27 from time to time prescribed under the 28 Mining Act 1978. 29 30 (b) On application made by the Company to the 31 Minister in such manner as the Minister may 32 determine, not later than 3 months after its 33 proposals submitted pursuant to subclause 34 (5)(a) for the construction of Lateral Access 35 Roads for access to the Railway Corridor to 36 construct a Railway spur line have been 37 approved or deemed to be approved and the 38 Company has complied with the provisions of 39 subclause (4)(e) (as applying pursuant to 40 subclause (5)(d)), the State notwithstanding the page 372 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 Mining Act 1978 shall cause to be granted to 2 the Company a miscellaneous licence or 3 licences to allow the construction, use and 4 maintenance of Lateral Access Roads within 5 the routes agreed for those Lateral Access 6 Roads under subclause (3)(a)) (as applying 7 pursuant to subclause (5)(b)) (each a "Lateral 8 Access Road Licence"), each such licence to 9 be granted under and subject to, except as 10 otherwise provided in this Agreement, the 11 Mining Act 1978 in the form of the Fourth 12 Schedule hereto and subject to such terms and 13 conditions as the Minister for Mines may from 14 time to time consider reasonable and at the 15 rentals from time to time prescribed under the 16 Mining Act 1978. 17 18 (c) Notwithstanding the Mining Act 1978, the 19 term of the Special Railway Licence shall, 20 subject to the sooner determination thereof on 21 the cessation or sooner determination of this 22 Agreement, be for a period of 50 years 23 commencing on the date of grant thereof. 24 25 (d) Notwithstanding the Mining Act 1978, the 26 term of any Lateral Access Road Licence shall, 27 subject to the sooner determination thereof on 28 the cessation or sooner determination of this 29 Agreement, be for a period of 4 years 30 commencing on the date of grant thereof. 31 32 (e) Notwithstanding the Mining Act 1978, and 33 except as required to do so by the terms of the 34 Special Railway Licence, the Company shall 35 not be entitled to surrender the Special 36 Railway Licence or any Lateral Access Road 37 Licence or any part or parts of them without 38 the prior consent of the Minister. 39 page 373 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 (f) (i) The Company may in accordance with 2 approved proposals take stone, sand, 3 clay and gravel from the Railway 4 Corridor for the construction, operation 5 and maintenance of the Railway 6 constructed within or approved for 7 construction within the Railway 8 Corridor. 9 10 (ii) Notwithstanding the Mining Act 1978 no 11 royalty shall be payable under the Mining 12 Act in respect of stone, sand, clay and 13 gravel which the Company is permitted by 14 subparagraph (i) to obtain from the land 15 the subject of the Special Railway 16 Licence. 17 18 (g) For the purposes of this Agreement and 19 without limiting the operation of paragraphs 20 (a) to (f) inclusive above, the application of the 21 Mining Act 1978 and the regulations made 22 thereunder are specifically modified: 23 24 (i) in section 91(1) by: 25 26 (A) deleting "the mining registrar or 27 the warden, in accordance with 28 section 42 (as read with section 29 92)" and substituting "the 30 Minister"; 31 32 (B) deleting "any person" and 33 substituting "the Company (as 34 defined in the agreement ratified 35 by and scheduled to the Iron Ore 36 (Hope Downs) Agreement Act 37 1992, as from time to time added 38 to, varied or amended)"; 39 page 374 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 (C) deleting "for any one or more of 2 the purposes prescribed" and 3 substituting "for the purpose 4 specified in clause 15C(6)(a)(i), 5 clause 15C(6)(a)(ii) or clause 6 15C(6)(b), of the agreement 7 ratified by and scheduled to the 8 Iron Ore (Hope Downs) 9 Agreement Act 1992, as from time 10 to time added to, varied or 11 amended"; 12 13 (ii) in section 91(3)(a), by deleting 14 "prescribed form" and substituting "form 15 required by the agreement ratified by and 16 scheduled to the Iron Ore (Hope Downs) 17 Agreement Act 1992, as from time to time 18 added to, varied or amended"; 19 (iii) by deleting sections 91(6), 91(9), 91(10) 20 and 91B; 21 (iv) in section 92, by deleting "Sections 41, 22 42, 44, 46, 46A, 47 and 52 apply," and 23 inserting "Section 46A (excluding in 24 subsection (2)(a) "the mining registrar, the 25 warden or") applies," and by deleting "in 26 those provisions" and inserting "in that 27 provision"; 28 (v) by deleting the full stop at the end of the 29 section 94(1) and inserting, "except to the 30 extent otherwise provided in, or to the 31 extent that such terms and conditions are 32 inconsistent with, the agreement ratified 33 by and scheduled to the Iron Ore (Hope 34 Downs) Agreement Act 1992, as from time 35 to time added to, varied or amended"; 36 (vi) by deleting sections 94(2), (3) and (4); page 375 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 (vii) in section 96(1), by inserting after 2 "miscellaneous licence" the words "(not 3 being a miscellaneous licence granted 4 pursuant to the agreement ratified by and 5 scheduled to the Iron Ore (Hope Downs) 6 Agreement Act 1992, as from time to time 7 added to, varied or amended"; 8 (viii) by deleting mining regulations 37(2), 9 37(3), 42 and 42A; and 10 (ix) by inserting at the beginning of mining 11 regulations 41(c) and (f) the words 12 "subject to the agreement ratified by and 13 scheduled to the Iron Ore (Hope Downs) 14 Agreement Act 1992, as from time to time 15 added to, varied or amended". 16 17 (h) If additional proposals are approved in 18 accordance with subclause (5) for the 19 construction of a Railway spur line outside the 20 then Railway Corridor, the Minister for Mines 21 shall include the area of land within which 22 such construction is to occur in the Special 23 Railway Licence by endorsement. The area of 24 such land may be included notwithstanding 25 that the survey of the land has not been 26 completed but subject to correction to accord 27 with the survey when completed at the 28 Company's expense. 29 30 (i) If additional proposals are approved in 31 accordance with subclause (5) for the 32 construction of Train Loading Infrastructure or 33 Train Unloading Infrastructure outside the then 34 Railway Corridor, the Minister for Mines shall 35 include the area of such land within which 36 such infrastructure is approved for construction 37 in the Special Railway Licence by 38 endorsement. The area of such land may be page 376 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 included notwithstanding that the survey of the 2 land has not been completed but subject to 3 correction to accord with the survey when 4 completed at the Company's expense. 5 6 (j) The provisions of this subclause shall not 7 operate so as to require the State to cause a 8 Special Railway Licence or a Lateral Access 9 Road Licence to be granted or any land 10 included in the Special Railway Licence as 11 mentioned above until all processes necessary 12 under any laws relating to native title to enable 13 that grant or inclusion of land to proceed, have 14 been completed. 15 16 Construction and operation of Railway 17 18 (7) (a) Subject to and in accordance with approved 19 proposals, the Rail Safety Act and the grant of 20 the relevant Special Railway Licence and any 21 associated Lateral Access Road Licences the 22 Company shall in a proper and workmanlike 23 manner and in accordance with recognised 24 standards for railways of a similar nature 25 operating under similar conditions construct 26 the Railway and associated Additional 27 Infrastructure and access roads within the 28 Railway Corridor and shall also construct inter 29 alia any necessary sidings, crossing points, 30 bridges, signalling switches and other works 31 and appurtenances and provide for crossings 32 and (where appropriate and required by the 33 Minister) grade separation or other protective 34 devices including flashing lights and boom 35 gates at places where the Railway crosses or 36 intersects with major roads or existing 37 railways. 38 39 (b) The Company shall while the holder of a 40 Special Railway Licence: page 377 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 2 (i) keep the Railway the subject of that 3 licence in an operable state; and 4 5 (ii) ensure that the Railway the subject of 6 that licence is operated in a safe and 7 proper manner in compliance with all 8 applicable laws from time to time; and 9 10 (iii) without limiting subparagraph (ii) 11 ensure that the obligations imposed 12 under the Rail Safety Act on an owner 13 and an operator (as those terms are 14 therein defined) are complied with in 15 connection with the Railway the subject 16 of that licence. 17 18 Nothing in this Agreement shall be construed to 19 exempt the Company or any other person from 20 compliance with the Rail Safety Act or limit its 21 application to the Company's operations 22 generally (except as otherwise may be provided 23 in that Act or regulations made under it). 24 25 (c) The Company shall provide crossings for 26 livestock and also for any roads, other 27 railways, conveyors, pipelines and other 28 utilities which exist at the date of grant of the 29 relevant Special Railway Licence or in respect 30 of land subsequently included in it at the date 31 of such inclusion and the Company shall on 32 reasonable terms and conditions allow such 33 crossings for roads, railways, conveyors, 34 pipelines and other utilities which may be 35 constructed for future needs and which may be 36 required to cross a Railway constructed 37 pursuant to this clause. 38 39 (d) Subject to Clause 15B, the Company shall at 40 all times be the holder of Special Railway page 378 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 Licences and Lateral Access Road Licences 2 granted pursuant to this clause and (without 3 limiting Clause 42 but subject to Clause 15B) 4 shall at all times own manage and control the 5 use of each Railway the subject of a Special 6 Railway Licence held by the Company. 7 8 (e) The Company shall not be entitled to exclusive 9 possession of the land the subject of a Special 10 Railway Licence or Lateral Access Road 11 Licence granted pursuant to this clause to the 12 intent that the State, the Minister, the Minister 13 for Mines and any persons authorised by any 14 of them from time to time shall be entitled to 15 enter upon the land or any part of it at all 16 reasonable times and on reasonable notice with 17 all necessary vehicles, plant and equipment and 18 for purposes related to this Agreement or such 19 other purposes as they think fit but in doing so 20 shall be subject to the reasonable directions of 21 the Company so as not to unreasonably 22 interfere with the Company's operations. 23 24 (f) The Company's ownership of a Railway 25 constructed pursuant to this clause shall not 26 give it an interest in the land underlying it. 27 28 (g) The Company shall not at any time without the 29 prior consent of the Minister dismantle, sell or 30 otherwise dispose of any part or parts of any 31 Railway constructed pursuant to this clause, or 32 permit this to occur, other than for the purpose 33 of maintenance, repair, upgrade or renewal. 34 35 (h) The Company shall, subject to and in 36 accordance with approved proposals, in a 37 proper and workmanlike manner, construct any 38 Additional Infrastructure, access roads, Lateral 39 Access Roads and other works approved for 40 construction under this clause. page 379 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 2 (i) The Company shall while the holder of a 3 Special Railway Licence at all times keep and 4 maintain in good repair and working order and 5 condition (which obligation includes, where 6 necessary, replacing or renewing all parts 7 which are worn out or in need of replacement 8 or renewal due to their age or condition) the 9 Railway, access roads and Additional 10 Infrastructure (if any) the subject of that 11 licence and all such other works installations 12 plant machinery and equipment for the time 13 being the subject of this Agreement and used 14 in connection with the operation use and 15 maintenance of that Railway, access roads and 16 Additional Infrastructure (if any). 17 18 (j) Subject to Clause 15B, the Company shall: 19 20 (i) be responsible for the cost of construction 21 and maintenance of all Private Roads 22 constructed pursuant to this clause; and 23 24 (ii) at its own cost erect signposts and take 25 other steps that may be reasonable in the 26 circumstances to prevent any persons 27 and vehicles (other than those engaged 28 upon the Company's activities and its 29 invitees and licensees) from using the 30 Private Roads; and 31 32 (iii) at any place where any Private Roads are 33 constructed by the Company so as to 34 cross any railways or public roads 35 provide at its cost such reasonable 36 protection and signposting as may be 37 required by the Commissioner of Main 38 Roads or the Public Transport Authority 39 as the case may be. 40 page 380 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 (k) The provisions of Clause 24(4) regarding third 2 party access shall apply mutatis mutandis to 3 any Railway or railway spur line constructed 4 pursuant to this clause except that the 5 Company shall not be obliged to transport 6 passengers on any such Railway or Railway 7 spur line and in relation to its use thereof the 8 Company shall not be deemed to be a common 9 carrier at law or otherwise. 10 11 Aboriginal Heritage Act 1972 (WA) 12 13 (8) For the purposes of this clause the Aboriginal 14 Heritage Act 1972 (WA) applies as if it were 15 modified by: 16 17 (a) the insertion before the full stop at the end 18 of section 18(1) of the words: 19 20 "and the expression "the Company" 21 means the persons from time to time 22 comprising "the Company" in their 23 capacity as such under the agreement 24 ratified by and scheduled to the Iron Ore 25 (Hope Downs) Agreement Act 1992, as 26 from time to time added to, varied or 27 amended in relation to the use or 28 proposed use of land pursuant to clause 29 15C of that agreement after and in 30 accordance with approved proposals 31 under clause 15C of that agreement and 32 in relation to the use of that land before 33 any such approval of proposals where the 34 Company has the requisite authority to 35 enter upon and so use the land"; 36 37 (b) the insertion in sections 18(2), 18(4), 18(5) 38 and 18(7) of the words "or the Company as 39 the case may be" after the words "owner of 40 any land"; page 381 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 2 (c) the insertion in section 18(3) of the words 3 "or the Company as the case may be" after 4 the words "the owner"; 5 6 (d) the insertion of the following sentences at 7 the end of section 18(3): 8 9 "In relation to a notice from the Company 10 the conditions that the Minister may specify 11 can as appropriate include, among other 12 conditions, a condition restricting the 13 Company's use of the relevant land to after 14 the approval or deemed approval as the case 15 may be under the abovementioned 16 agreement of all of the Company's submitted 17 initial proposals thereunder for the Railway 18 Operation (as defined in clause 15C(1) of 19 the abovementioned agreement), or in the 20 case of additional proposals submitted or to 21 be submitted by the Company to after the 22 approval or deemed approval under that 23 agreement of such additional proposals, and 24 to the extent so approved. "; and 25 26 (e) the insertion in sections 18(2) and 18(5) of 27 the words "or it as the case may be" after the 28 word "he". 29 30 The Company acknowledges that nothing in this 31 subclause (8) nor the granting of any consents under 32 section 18 of the Aboriginal Heritage Act 1972 (WA) 33 will constitute or is to be construed as constituting the 34 approval of any proposals submitted or to be 35 submitted by the Company under this Agreement or as 36 the grant or promise of land tenure for the purposes of 37 this Agreement. 38 page 382 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 Taking of land for the purposes of this clause 2 3 (9) (a) The State is hereby empowered, as and for a 4 public work under Parts 9 and 10 of the LAA 5 to take for the purposes of this clause any land 6 (other than any part of a Port) which in the 7 opinion of the Company is necessary for the 8 relevant Railway Operation and which the 9 Minister determines is appropriate to be taken 10 for the relevant Railway Operation (except any 11 land the taking of which would be contrary to 12 the provisions of a Government agreement 13 entered into before the submission of the 14 proposals relating to the proposed taking) and 15 notwithstanding any other provisions of that 16 Act may license that land to the Company. 17 18 (b) In applying Parts 9 and 10 of the LAA for the 19 purposes of this clause: 20 21 (i) "land" in that Act includes a legal or 22 equitable estate or interest in land; 23 24 (ii) sections 170, 171, 172, 173, 174, 175 25 and 184 of that Act do not apply; and 26 27 (iii) that Act applies as if it were modified in 28 section 177(2) by inserting - 29 (A) after "railway" the following - 30 "or land is being taken pursuant to 31 a Government agreement as 32 defined in section 2 of the 33 Government Agreements Act 1979 34 (WA)"; and 35 (B) after "that Act" the following - 36 "or that Agreement as the case 37 may be". page 383 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 (c) The Company shall pay to the State on demand 2 the costs of or incidental to any land taken at 3 the request of and on behalf of the Company 4 including but not limited to any compensation 5 payable to any holder of native title or of 6 native title rights and interests in the land. 7 Notification of Railway Operation Date 8 9 (10) (a) The Company shall from the date occurring 6 10 months before the date for completion of 11 construction of a Railway specified in its time 12 program for the commencement and 13 completion of construction of that Railway 14 submitted under subclause (4)(a), keep the 15 Minister fully informed as to: 16 17 (i) the progress of that construction and its 18 likely completion and commissioning; 19 and 20 21 (ii) the likely Railway Operation Date. 22 23 (b) The Company shall on the Railway Operation 24 Date notify the Minister that the first carriage 25 of iron ore, freight goods or other products as 26 the case may be over the Railway (other than 27 for construction or commissioning purposes) 28 has occurred. 29 30 (c) The Company shall from the date occurring 6 31 months before the date for completion of 32 construction of a Railway spur line specified in 33 its time program for the commencement and 34 completion of construction of that spur line 35 submitted under subclause (5)(c) keep the 36 Minister fully informed as to: 37 page 384 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 (i) the progress of that construction and its 2 likely completion and commissioning; 3 and 4 5 (ii) in respect of it, the likely Railway spur 6 line Operation Date. 7 8 (d) The Company shall on the Railway spur line 9 Operation Date in respect of any Railway spur 10 line notify the Minister that the first carriage of 11 iron ore, freight goods or other products as the 12 case may be over such spur line (other than for 13 construction or commissioning purposes) has 14 occurred."; 15 (18) in clause 16(1) by inserting "and paragraph (m) of subclause (4) of 16 Clause 15" after "Clause 7"; 17 (19) in clause 16(6) by deleting "subclauses (1), (2), (3) and (4) of 18 Clause 8" and substituting "Clause 10A"; 19 (20) in clause 23(1) by deleting "or in respect of land within the area 20 coloured red on the plan "Plan A" annexed hereto arrange to have 21 the Port Authority grant to the Company,"; 22 (21) in clause 23(2) by inserting the following new paragraph: 23 "(2a) The provisions of subclause (1) of this Clause shall not 24 operate so as to require the State to grant or vary, or cause 25 to be granted or varied, any lease licence or other right or 26 title until all processes necessary under any laws relating to 27 native title to enable that grant or variation to proceed, have 28 been completed."; 29 (22) by deleting clause 23(3); 30 (23) by deleting clause 24(5); 31 (24) in clause 27(6), by inserting in paragraph (b) "or cause to be 32 implemented" after "shall implement"; page 385 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 (25) by deleting subclause (7) of clause 27 and substituting the 2 following new subclause: 3 "(7) For the purposes of subclause (6) "alternative project" means: 4 5 (a) a project to establish and operate within the said State 6 plant for the production of metallised agglomerates; 7 8 (b) a project to establish and operate within the said State 9 plant which processes and adds value to minerals 10 mined in the said State; or 11 (c) any other project within the said State which the 12 Minister approves as providing as equivalent benefits 13 to the State to a project to establish and operate 14 within the said State plant for the production of 15 metallised agglomerates, 16 to be undertaken by: 17 (d) the Company (excluding a project referred to in 18 paragraph (a)): or 19 (e) a related body corporate or related bodies corporate 20 (within the meaning of the Corporations Act 2001 21 (Cwth) of the Company solely or in conjunction with 22 the Company; or 23 (f) a joint venture in which the Company or its related 24 body corporate has a majority participating interest; 25 or 26 (g) any other third person or persons which the Company 27 and the Minister accept as having the requisite 28 financial and technical capacity and expertise to 29 undertake solely, or in conjunction with the 30 Company, the relevant project referred to in 31 paragraphs (a), (b) or (c)."; page 386 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 (26) by inserting in clause 33(3)(a) "or held pursuant to this 2 Agreement" after "under or pursuant to this Agreement"; 3 (27) by inserting in clause 34(1) "or held pursuant to this Agreement" 4 after "pursuant to this Agreement"; 5 (28) in clause 37: 6 (i) in subclause (1)(a)(i) by inserting "granted under or 7 pursuant to this Agreement or held pursuant to this 8 Agreement" after "easement grant or other title"; and 9 (ii) in subclause (4) by deleting "occupied by the Company" 10 and substituting "the subject of any lease licence 11 easement or other title granted under or pursuant to this 12 Agreement or held pursuant to this Agreement"; 13 (29) in clause 38: 14 (a) in subclause (1)(a) by inserting "or held pursuant hereto" 15 after "granted hereunder or pursuant hereto"; and 16 (b) in subclause (2) by inserting "or held pursuant to this 17 Agreement" after "made under or pursuant to this 18 Agreement"; 19 (30) by inserting the following sentence at the end of clause 40: 20 "As a separate independent indemnity the Company will indemnify 21 and keep indemnified the State and its servants agents and 22 contractors in respect of all actions suits claims demands or costs 23 of third parties arising out of or in connection with any use, 24 making available for use or other activities of the Company as 25 referred to in Clause 15A."; and 26 (31) by inserting after the Schedule the following new schedules: 27 28 page 387 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 "SECOND SCHEDULE 2 3 WESTERN AUSTRALIA 4 5 IRON ORE (HOPE DOWNS) AGREEMENT ACT 1992 6 7 MINING ACT 1978 8 9 MISCELLANEOUS LICENCE FOR A RAILWAY AND 10 OTHER PURPOSES 11 12 13 No. MISCELLANEOUS LICENCE [ ] 14 15 WHEREAS by the Agreement (hereinafter called "the 16 Agreement") ratified by and scheduled to the Iron Ore (Hope 17 Downs) Agreement Act 1992, as from time to time added to, varied 18 or amended, the State agreed to grant to [ ] (hereinafter with 19 its successors and permitted assigns called "the Company") a 20 miscellaneous licence for the construction operation and 21 maintenance of a Railway (as defined in clause 15C(1) of the 22 Agreement and otherwise as provided in the Agreement) and, if 23 applicable, other purposes AND WHEREAS the Company 24 pursuant to clause 15C(6)(a) of the Agreement has made 25 application for the said licence; 26 27 NOW in consideration of the rents reserved by and the provisions 28 of the Agreement and in pursuance of the Iron Ore (Hope Downs) 29 Agreement Act 1992, as from time to time added to, varied or 30 amended, the Company is hereby granted by this licence authority 31 to conduct on the land the subject of this licence as more 32 particularly delineated and described from time to time in the 33 Schedule hereto all activities (including the taking of stone, sand, 34 clay and gravel, the provision of temporary accommodation 35 facilities for the railway workforce in accordance with the 36 Agreement and, subject to the Rights in Water and Irrigation Act 37 1914 (WA), the operation of water bores) necessary for the 38 planning, design, construction, commissioning, operation and 39 maintenance on the land the subject of this licence of the Railway 40 and Additional Infrastructure (as defined in clause 15C(1) of the page 388 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 Agreement) and access roads to be located on the land the subject 2 of this licence in accordance with the provisions of the Agreement 3 and proposals approved under the Agreement, for the term of 50 4 years from the date hereof (subject to the sooner determination of 5 the term upon the determination of the Agreement) and upon and 6 subject to the terms covenants and conditions set out in the 7 Agreement and the Mining Act 1978 as it applies to this licence, 8 and any amendments to the Agreement and the Mining Act 1978 9 from time to time and to the terms and conditions (if any) now or 10 hereafter endorsed hereon and the payment of rentals in respect of 11 this licence in accordance with clause 15C(6)(a)(i) of the 12 Agreement PROVIDED ALWAYS that this licence shall not be 13 determined or forfeited otherwise than in accordance with the 14 Agreement. 15 16 In this licence: 17 18 - If the Company be more than one the liability of the 19 Company hereunder shall be joint and several. 20 21 - Reference to an Act includes all amendments to that Act 22 for the time being in force and also any Act passed in 23 substitution therefore or in lieu thereof and to the 24 regulations and by-laws of the time being in force 25 thereunder. 26 27 - Reference to "the Agreement" means such agreement as 28 from time to time added to, varied or amended. 29 30 - The terms "approved proposals", "Railway", "Railway 31 Operation Date", and "Railway spur line" have the 32 meanings given in the Agreement. 33 ENDORSEMENTS AND CONDITIONS 34 35 Endorsements 36 37 1. This licence is granted in accordance with proposals 38 submitted on [ ], and approved by the Minister (as 39 defined in the Agreement) on [ ], under the Agreement. page 389 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 2 2. The Company is permitted to, in accordance with 3 approved proposals, take stone, sand, clay and gravel 4 from the land the subject of this licence for the 5 construction, operation and maintenance of the Railway 6 (including any Railway spur line) constructed within or 7 approved for construction within the area of land the 8 subject of this licence. 9 10 3. Notwithstanding the Mining Act 1978, no royalty shall be 11 payable under the Mining Act 1978 in respect of stone, 12 sand, clay and gravel which the Company is permitted by 13 the Agreement to obtain from the land the subject of this 14 licence. 15 16 4. [Any further endorsement which the Minister for Mines 17 may, consistent with the provisions of the Agreement, 18 determines and thereafter impose in respect of this 19 licence including during the term of the Agreement.] 20 21 Conditions 22 23 1. (a) Except as provided in paragraph (b), the 24 Company shall within 2 years after the Railway 25 Operation Date surrender in accordance with 26 the provisions of the Mining Act 1978 the area 27 of this licence down to a maximum of 100 28 metres width or as otherwise approved by the 29 Minister (as defined in the Agreement) for the 30 safe operation of the Railway then constructed 31 or approved for construction under approved 32 proposals. 33 34 (b) Paragraph (a) shall not apply to land the subject 35 of this licence that was included in this licence 36 pursuant to clause 15C(6)(h) or clause 37 15C(6)(i) of the Agreement. 38 39 2. The Company shall as soon as possible after the 40 construction of a Railway spur line or of an expansion page 390 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 or extension thereof as the case may be surrender in 2 accordance with the Mining Act 1978 the land the 3 subject of this licence that was included in this licence 4 pursuant to clause 15C(6)(h) of the Agreement for the 5 purpose of such construction down to a maximum of 6 100 metres in width or as otherwise approved by the 7 Minister (as defined in the Agreement) for the safe 8 operation of that Railway spur line or expansion or 9 extension thereof as the case may be then constructed or 10 approved for construction under approved proposals. 11 12 3. [Any further conditions which the Minister for Mines 13 may, consistent with the provisions of the Agreement, 14 determines and thereafter impose in respect of this 15 licence including during the term of the Agreement.] 16 17 SCHEDULE 18 19 Land description 20 21 Locality: 22 Mineral Field 23 Area: 24 25 DATED at Perth this day of . 26 27 MINISTER FOR MINES 28 29 30 31 page 391 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 THIRD SCHEDULE 2 3 WESTERN AUSTRALIA 4 5 IRON ORE (HOPE DOWNS) AGREEMENT ACT 1992 6 7 MINING ACT 1978 8 9 MISCELLANEOUS LICENCE FOR A LATERAL ACCESS 10 ROAD 11 12 13 No. MISCELLANEOUS LICENCE [ ] 14 15 WHEREAS by the Agreement (hereinafter called "the 16 Agreement") ratified by and scheduled to the Iron Ore (Hope 17 Downs) Agreement Act 1992, as from time to time added to, varied 18 or amended, the State agreed to grant to [ ] (hereinafter with 19 its successors and permitted assigns called "the Company") a 20 miscellaneous licence for the construction use and maintenance of 21 a Lateral Access Road (as defined in the Agreement) AND 22 WHEREAS the Company pursuant to clause 15C(6)(a)(ii) of the 23 Agreement has made application for the said licence; 24 25 NOW in consideration of the rents reserved by and the provisions 26 of the Agreement and in pursuance of the Iron Ore (Hope Downs) 27 Agreement Act 1992, as from time to time added to, varied or 28 amended, the Company is hereby authorised to construct use and 29 maintain a road on the land more particularly delineated and 30 described from time to time in the Schedule hereto in accordance 31 with the provisions of the Agreement and proposals approved 32 under the Agreement for a term of 4 years commencing on the date 33 hereof (subject to the sooner determination of the term upon the 34 cessation or determination of the Agreement) and for the purposes 35 and upon and subject to the terms covenants and conditions set out 36 in the Agreement and the Mining Act 1978 as it applies to this 37 licence, and any amendments to the Agreement and the Mining Act 38 1978 from time to time and to the terms and conditions (if any) 39 now or hereafter endorsed hereon and the payment of rentals in 40 respect of this licence in accordance with clause 15C(6)(a)(ii) of page 392 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 the Agreement PROVIDED ALWAYS that this licence shall not 2 be determined or forfeited otherwise than in accordance with the 3 Agreement. 4 5 In this licence: 6 7 - If the Company be more than one the liability of the 8 Company hereunder shall be joint and several. 9 10 - Reference to an Act includes all amendments to that Act 11 for the time being in force and also any Act passed in 12 substitution therefore or in lieu thereof and to the 13 regulations and by-laws of the time being in force 14 thereunder. 15 16 - Reference to "the Agreement" means such agreement as 17 from time to time added to, varied or amended. 18 19 ENDORSEMENTS AND CONDITIONS 20 21 Endorsements 22 23 1. This licence is granted in accordance with proposals 24 submitted on [ ], and approved by the Minister (as 25 defined in the Agreement) on [ ], under the Agreement. 26 27 2. [Any further endorsement which the Minister for Mines 28 may, consistent with the provisions of the Agreement, 29 determines and thereafter impose in respect of this 30 licence including during the term of the Agreement.] 31 32 Conditions 33 34 [Such conditions which the Minister for Mines may, consistent 35 with the provisions of the Agreement, determines and thereafter 36 impose in respect of the licence, including during the term of the 37 Agreement.] 38 39 page 393 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 SCHEDULE 2 3 Description of land 4 5 Locality: 6 Mineral Field: 7 Area: 8 9 DATED at Perth this day of . 10 11 MINISTER FOR MINES 12 13 14 page 394 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 FOURTH SCHEDULE 2 3 WESTERN AUSTRALIA 4 5 IRON ORE (HOPE DOWNS) AGREEMENT ACT 1992 6 7 MINING ACT 1978 8 9 MISCELLANEOUS LICENCE FOR A LATERAL ACCESS 10 ROAD 11 12 13 No. MISCELLANEOUS LICENCE [ ] 14 15 WHEREAS by the Agreement (hereinafter called "the 16 Agreement") ratified by and scheduled to the Iron Ore (Hope 17 Downs) Agreement Act 1992, as from time to time added to, varied 18 or amended, the State agreed to grant to [ ] (hereinafter with 19 its successors and permitted assigns called "the Company") a 20 miscellaneous licence for the construction use and maintenance of 21 a Lateral Access Road (as defined in the Agreement) AND 22 WHEREAS the Company pursuant to clause 15C(6)(b) of the 23 Agreement has made application for the said licence; 24 25 NOW in consideration of the rents reserved by and the provisions 26 of the Agreement and in pursuance of the Iron Ore (Hope Downs) 27 Agreement Act 1992, as from time to time added to, varied or 28 amended, the Company is hereby authorised to construct use and 29 maintain a road on the land more particularly delineated and 30 described from time to time in the Schedule hereto in accordance 31 with the provisions of the Agreement and proposals approved 32 under the Agreement for a term of 4 years commencing on the date 33 hereof (subject to the sooner determination of the term upon the 34 cessation or determination of the Agreement) and for the purposes 35 and upon and subject to the terms covenants and conditions set out 36 in the Agreement and the Mining Act 1978 as it applies to this 37 licence, and any amendments to the Agreement and the Mining Act 38 1978 from time to time and to the terms and conditions (if any) 39 now or hereafter endorsed hereon and the payment of rentals in 40 respect of this licence in accordance with clause 15C(6)(b) of the page 395 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 Agreement PROVIDED ALWAYS that this licence shall not be 2 determined or forfeited otherwise than in accordance with the 3 Agreement. 4 5 In this licence: 6 7 - If the Company be more than one the liability of the 8 Company hereunder shall be joint and several. 9 10 - Reference to an Act includes all amendments to that Act 11 for the time being in force and also any Act passed in 12 substitution therefore or in lieu thereof and to the 13 regulations and by-laws of the time being in force 14 thereunder. 15 16 - Reference to "the Agreement" means such agreement as 17 from time to time added to, varied or amended. 18 19 ENDORSEMENTS AND CONDITIONS 20 21 Endorsements 22 23 1. This licence is granted in accordance with proposals 24 submitted on [ ], and approved by the Minister (as 25 defined in the Agreement) on [ ], under the Agreement. 26 27 2. [Any further endorsement which the Minister for Mines 28 may, consistent with the provisions of the Agreement, 29 determines and thereafter impose in respect of this 30 licence including during the term of the Agreement.] 31 32 Conditions 33 34 [Such conditions which the Minister for Mines may, consistent 35 with the provisions of the Agreement, determines and thereafter 36 impose in respect of the licence, including during the term of the 37 Agreement.] 38 39 page 396 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Hope Downs) Agreement Act 1992 amended Part 5 s. 20 1 SCHEDULE 2 3 Description of land 4 5 Locality: 6 Mineral Field: 7 Area: 8 9 DATED at Perth this day of . 10 11 12 MINISTER FOR MINES". 13 14 15 page 397 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 5 Iron Ore (Hope Downs) Agreement Act 1992 amended s. 20 1 EXECUTED as a deed. 2 3 SIGNED by THE HONOURABLE ) 4 COLIN JAMES BARNETT ) [Signature] 5 in the presence of: ) 6 [Signature] STEPHEN WOOD 7 8 9 10 THE COMMON SEAL of HOPE ) 11 DOWNS IRON ORE PTY. LTD. ) 12 ACN 071 514 308 was hereunto ) [C.S.] 13 affixed in accordance with its ) 14 constitution in the presence of: ) 15 16 [Signature] TADEUSZ J WATROBA Director 17 [Signature] JAY NEWBY Secretary 18 19 20 THE COMMON SEAL of ) 21 HAMERSLEY WA PTY. LTD. ) 22 ACN 115 004 138 was hereunto ) [C.S.] 23 affixed by authority of the Directors ) 24 in the presence of: ) 25 [Signature] ALAN DAVIES Director 26 [Signature] HELEN FERNIHOUGH Secretary 27 page 398 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 21 1 Part 6 -- Iron Ore (Yandicoogina) Agreement 2 Act 1996 amended 3 21. Act amended 4 This Part amends the Iron Ore (Yandicoogina) Agreement 5 Act 1996. 6 22. Section 3 amended 7 (1) In section 3 insert in alphabetical order: 8 9 the First Variation Agreement means the agreement a 10 copy of which is set out in Schedule 2. 11 12 (2) In section 3 in the definition of Agreement delete "Schedule 1, 13 and includes that agreement as amended from time to time in 14 accordance with clause 33 of the agreement." and insert: 15 16 Schedule 1 and, except in section 4(1), includes that 17 agreement as amended from time to time in accordance 18 with clause 33 of the agreement and by the First 19 Variation Agreement; 20 21 23. Section 4 amended 22 (1) After section 4(1) insert: 23 24 (2A) The First Variation Agreement is ratified. 25 26 (2) After section 4(3) insert: 27 28 (4) To avoid doubt, it is declared that the provisions of the 29 Public Works Act 1902 section 96 do not apply to a 30 railway constructed under the Agreement. 31 page 399 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 24 1 24. Section 5 inserted 2 After section 4 insert: 3 4 5. State empowered under clause 12C(9)(a) 5 The State has power in accordance with 6 clause 12C(9)(a) of the Agreement. 7 8 25. Schedule 2 inserted 9 After Schedule 1 insert: 10 page 400 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 Schedule 2 -- First Variation Agreement 2 [s. 3] 3 2010 4 5 6 7 THE HONOURABLE COLIN JAMES BARNETT 8 PREMIER OF THE STATE OF WESTERN AUSTRALIA 9 10 11 AND 12 13 HAMERSLEY IRON-YANDI PTY. LIMITED 14 ACN 009 181 793 15 16 AND 17 18 HAMERSLEY IRON PTY. LIMITED 19 ACN 004 558 276 20 21 22 23 24 25 IRON ORE (YANDICOOGINA) AGREEMENT 1996 26 27 RATIFIED VARIATION AGREEMENT 28 29 30 31 32 [Solicitor's details] 33 34 35 36 37 38 39 page 401 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 THIS AGREEMENT is made this 17th day of November 2010 2 3 4 BETWEEN 5 6 7 THE HONOURABLE COLIN JAMES BARNETT MLA., Premier of the 8 State of Western Australia acting for and on behalf of the said State and its 9 instrumentalities from time to time (State) 10 11 AND 12 13 HAMERSLEY IRON-YANDI PTY. LIMITED ACN 009 181 793 of Level 14 22, Central Park, 152-158 St Georges Terrace, Perth, Western Australia 15 (Company) 16 17 AND 18 19 HAMERSLEY IRON PTY. LIMITED ACN 004 558 276 of Level 22, 20 Central Park, 152 - 158 St Georges Terrace, Perth, Western Australia 21 (Hamersley). 22 23 24 RECITALS 25 26 A. The State, the Company and Hamersley are the parties to the agreement 27 dated 22 October 1996 ratified by and scheduled to the Iron Ore 28 (Yandicoogina) Agreement Act 1996 and which as subsequently added to, 29 varied is referred to in this Agreement as the "Principal Agreement". 30 31 B. The State, the Company and Hamersley wish to vary the Principal 32 Agreement. 33 34 35 THE PARTIES AGREE AS FOLLOWS: 36 37 1. Subject to the context, the words and expressions used in this Agreement 38 have the same meanings respectively as they have in and for the purpose 39 of the Principal Agreement. 40 page 402 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 2. The State shall sponsor a Bill in the Parliament of Western Australia to 2 ratify this Agreement and shall endeavour to secure its passage as an Act 3 prior to 31 December 2010 or such later date as the parties may agree. 4 5 3. (a) Clause 4 does not come into operation unless or until an Act passed 6 in accordance with clause 2 ratifies this Agreement. 7 8 (b) If by 30 June 2011, or such later date as may be agreed pursuant to 9 clause 2, clause 4 has not come into operation then unless the 10 parties hereto otherwise agree this Agreement shall cease and 11 determine and none of the parties shall have any claim against the 12 other parties with respect to any matter or thing arising out of or 13 done or performed or omitted to be done or performed under this 14 Agreement. 15 16 4. The Principal Agreement is hereby varied as follows: 17 18 (1) in clause 1: 19 20 (a) by deleting the existing definitions of "beneficiated ore", 21 "fine ore", "loading port", "lump ore" and "metallised 22 agglomerates"; 23 24 (b) by inserting in the appropriate alphabetical positions the 25 following new definitions: 26 "associated company" means: 27 28 (a) any company notified in writing by the Company to 29 the Minister which is incorporated in the United 30 Kingdom, the United States of America or Australia 31 and which is: 32 33 (i) a subsidiary of the Company within the 34 meaning of the term "subsidiary" in section 46 35 of the Corporations Act 2001 36 (Commonwealth); 37 38 (ii) promoted by the Company for all or any of the 39 purposes of this Agreement and in which the page 403 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 Company holds not less than $2,000,000 of the 2 issued ordinary capital; 3 4 (iii) a company in which the Company holds not 5 less than 20% of the issued ordinary share 6 capital; 7 8 (iv) a related body corporate (within the meaning of 9 the term "related body corporate" in section 9 10 of the Corporations Act 2001 11 (Commonwealth)) of the Company or of any 12 company in which the Company holds not less 13 than 20% of the issued ordinary share capital; 14 and 15 16 (b) any other company approved in writing by the 17 Minister for the purpose of this Agreement which is 18 associated directly or indirectly with the Company in 19 its business or operations under this Agreement; 20 21 "beneficiated ore" means iron ore that has been 22 concentrated or upgraded otherwise than solely by crushing, 23 screening, separating by hydrocycloning or a similar 24 technology which uses primarily size as a criterion, 25 washing, scrubbing, trommelling or drying, or by a 26 combination of 2 or more of those processes by the 27 Company in a plant constructed pursuant to proposal 28 approved pursuant to an Integration Agreement or such 29 other plant as is approved by the Minister after consultation 30 with the Minister for Mines and "beneficiation" and 31 "beneficiate" have corresponding meanings; 32 33 "fine ore" means iron ore (not being beneficiated ore or 34 pisolite fine ore) which is screened and will pass through a 35 6.3 millimetre mesh screen; 36 37 "Government agreement" has the meaning given in the 38 Government Agreements Act 1979 (WA); 39 page 404 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 "Integration Agreement" means: 2 3 (a) the agreement approved by and scheduled to the Iron 4 Ore (Hamersley Range) Agreement Act 1963, as from 5 time to time added to, varied or amended; or 6 7 (b) the agreement approved by and scheduled to the Iron 8 Ore (Robe River) Agreement Act 1964, as from time 9 to time added to, varied or amended; or 10 11 (c) the agreement approved by and scheduled to the Iron 12 Ore (Hamersley Range) Agreement Act Amendment 13 Act 1968, as from time to time added to, varied or 14 amended; or 15 16 (d) the agreement ratified by and scheduled to the Iron 17 Ore (Mount Bruce) Agreement Act 1972, as from time 18 to time added to, varied or amended; or 19 20 (e) the agreement ratified by and scheduled to the Iron 21 Ore (Hope Downs) Agreement Act 1992, as from time 22 to time added to, varied or amended; or 23 24 (f) the agreement ratified by and scheduled to the Iron 25 Ore (Yandicoogina) Agreement Act 1996, as from 26 time to time added to, varied or amended; or 27 28 (g) the agreement approved by and scheduled to the Iron 29 Ore (Mount Newman) Agreement Act 1964, as from 30 time to time added to, varied or amended; or 31 32 (h) the agreement approved by and scheduled to the Iron 33 Ore (Mount Goldsworthy) Agreement Act 1964, as 34 from time to time added to, varied or amended; or 35 36 (i) the agreement ratified by and scheduled to the Iron 37 Ore (Goldsworthy-Nimingarra) Agreement Act 1972, 38 as from time to time added to, varied or amended; or 39 (j) the agreement authorised by as scheduled to the Iron 40 Ore (McCamey's Monster) Agreement Authorisation page 405 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 Act 1972, as from time to time added to, varied or 2 amended; or 3 (k) the agreement ratified by and scheduled to the Iron 4 Ore (Marillana Creek) Agreement Act 1991, as from 5 time to time added to, varied or amended; 6 7 "Integration Proponent" means in relation to an Integration 8 Agreement, "the Company" or "the Joint Venturers" as the 9 case may be as defined in, and for the purpose of, that 10 Integration Agreement; 11 "loading port" means: 12 13 (a) the Port of Dampier; or 14 15 (b) Port Walcott; or 16 17 (c) the Port of Port Hedland; or 18 19 (d) any other port constructed after the variation date 20 under an Integration Agreement; or 21 22 (e) such other port approved by the Minister at the 23 request of the Company from time to time for the 24 shipment of iron ore from the mining lease; 25 "lump ore" means iron ore (not being beneficiated ore or 26 pisolite fine ore) which is screened and will not pass 27 through a 6.3 millimetre mesh screen; 28 "metallised agglomerates" means products resulting from 29 the reduction of iron ore by any method whatsoever and 30 having an iron content of not less than 85%; 31 "pisolite fine ore" means iron ore (not being beneficiated 32 ore) derived from channel iron deposits that appear to be 33 chemically precipitated sedimentary deposits comprised of a 34 pisolitic texture of hematite grains rimmed with geothite in a 35 geothitic matrix and: 36 page 406 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 (a) having a product grade loss on ignition of 8.5% or 2 greater; and 3 4 (b) which is screened and will pass through an 9.5 5 millimetre mesh screen; 6 7 "Related Entity" means a company in which: 8 9 (a) as at 21 June 2010; and 10 11 (b) after 21 June 2010, with the approval of the Minister, 12 13 a direct or (through a subsidiary or subsidiaries within the 14 meaning of the Corporations Act 2001 (Commonwealth)) 15 indirect shareholding of 20% or more is held by: 16 17 (c) Rio Tinto Limited ABN 96 004 458 404; or 18 19 (d) BHP Billiton Limited ABN 49 004 028 077; or 20 21 (e) those companies referred to in paragraphs (c) and (d) 22 in aggregate; 23 24 "variation date" means the date on which clause 4 of the 25 variation agreement made on or about 17 November 2010 26 between the State, the Company and Hamersley comes into 27 operation; 28 (c) in the definition of "iron ore" by inserting ", without 29 limitation," after "includes"; 30 (d) in the definition of "mining lease" by inserting "and includes 31 any areas added to it pursuant to clause 11(8)"; 32 (2) by inserting after clause 2(3) the following new subclause: 33 34 "(4) Nothing in this Agreement shall be construed to exempt the 35 Company from compliance with the provisions of the 36 Aboriginal Heritage Act 1972 (WA)."; 37 (3) in clause 9(1) by: page 407 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 2 (a) deleting "If" and substituting "Subject to clause 10, if"; and 3 4 (b) inserting "(other than under clause 12C)" after "pursuant to 5 this Agreement"; 6 (4) by deleting subclause (2) of clause 9 and substituting the following 7 new subclauses: 8 9 "(2) A proposal may with the consent of the Minister 10 (except in relation to an Integration Agreement) and 11 that of any parties concerned (being in respect of an 12 Integration Agreement the Integration Proponent for 13 that agreement) provide for the use by the Company 14 of any works installations or facilities constructed or 15 established under a Government agreement. 16 17 (3) Each of the proposals pursuant to subclause (1) may 18 with the approval of the Minister, or shall if so 19 required by the Minister, be submitted separately and 20 in any order as to any matter or matters in respect of 21 which such proposals are required to be submitted. 22 23 (4) At the time when the Company submits the said 24 proposals it shall submit to the Minister details of any 25 services (including any elements of the project 26 investigations, design and management) and any 27 works materials, plant, equipment and supplies that it 28 proposes to consider obtaining from or having carried 29 out or permitting to be obtained from or carried out 30 outside Australia together with its reasons therefor 31 and shall, if required by the Minister, consult with the 32 Minister with respect thereto. 33 34 (5) The Company may withdraw its proposals pursuant to 35 subclause (1) at any time before approval thereof, or 36 where any decision in respect thereof is referred to 37 arbitration as referred to in clause 9A, within 3 38 months after the award by notice to the Minister that it 39 shall not be proceeding with the same."; 40 page 408 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 (5) by inserting after clause 9 the following new clauses: 2 3 Consideration of Company's proposals under clause 9 4 5 9A. (1) In respect of each proposal pursuant to subclause (1) 6 of clause 9 the Minister shall: 7 8 (a) subject to the limitations set out below, refuse 9 to approve the proposal (whether it requests the 10 grant of new tenure or not) if the Minister is 11 satisfied on reasonable grounds that it is not in 12 the public interest for the proposal to be 13 approved; or 14 15 (b) approve of the proposal without qualification or 16 reservation; or 17 18 (c) defer consideration of or decision upon the 19 same until such time as the Company submits a 20 further proposal or proposals in respect of some 21 other of the matters mentioned in clause 9(1) 22 not covered by the said proposal; or 23 24 (d) require as a condition precedent to the giving of 25 his approval to the said proposal that the 26 Company make such alteration thereto or 27 comply with such conditions in respect thereto 28 as he thinks reasonable, and in such a case the 29 Minister shall disclose his reasons for such 30 conditions, 31 32 PROVIDED ALWAYS that where implementation of any 33 proposals hereunder has been approved pursuant to the 34 EP Act subject to conditions or procedures, any approval or 35 decision of the Minister under this clause shall if the case so 36 requires incorporate a requirement that the Company make 37 such alterations to the proposals as may be necessary to 38 make them accord with those conditions or procedures. 39 page 409 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 In considering whether to refuse to approve a proposal the 2 Minister is to assess whether or not the implementation of 3 the proposal by itself, or together with any one or more of 4 the other submitted proposals, will: 5 6 (i) detrimentally affect economic and orderly 7 development in the said State, including without 8 limitation, infrastructure development in the said 9 State; or 10 11 (ii) be contrary to or inconsistent with the planning and 12 development policies and objectives of the State; or 13 14 (iii) detrimentally affect the rights and interests of third 15 parties; or 16 17 (iv) detrimentally affect access to and use by others of the 18 lands the subject of any grant or proposed grant to the 19 Company. 20 21 The right to refuse to approve a proposal conferred by 22 paragraph (a) may only be exercised in respect of a proposal 23 where the Minister is satisfied on reasonable grounds that a 24 purpose of the proposal is the integrated use of works 25 installations or facilities (as defined in subclause (7) of 26 clause 12A for the purpose of that clause) as contemplated 27 by clause 12A. It may not be so exercised in respect of a 28 proposal if pursuant to clause 9B(5) the Minister, prior to the 29 submission of the proposal, advised the Company in writing 30 that the Minister has no public interest concerns (as defined 31 in that clause) with the single preferred development (as 32 referred to in clause 9B(5)(a)) the subject of the submitted 33 proposals and those proposals are consistent (as to their 34 substantive scope and content) with the information 35 provided to the Minister pursuant to clause 9B(5) in respect 36 of that single preferred development. 37 38 (2) The Minister shall within 2 months after receipt of proposals 39 pursuant to clause 9(1) give notice to the Company of his 40 decision in respect to the proposals, PROVIDED THAT page 410 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 where a proposal is to be assessed under Part IV of the EP 2 Act the Minister shall only give notice to the Company of 3 his decision in respect to the proposal within 2 months after 4 service on him of an authority under section 45(7) of the EP 5 Act. 6 7 (3) If the decision of the Minister is as mentioned in either of 8 paragraphs (a), (c) or (d) of subclause (1) the Minister shall 9 afford the Company full opportunity to consult with him and 10 should it so desire to submit new or revised proposals either 11 generally or in respect to some particular matter. 12 13 (4) If the decision of the Minister is as mentioned in either of 14 paragraphs (c) or (d) of subclause (1) and the Company 15 considers that the decision is unreasonable the Company 16 within 2 months after receipt of the notice mentioned in 17 subclause (2) may elect to refer to arbitration in the manner 18 hereinafter provided the question of the reasonableness of 19 the decision PROVIDED THAT any requirement of the 20 Minister pursuant to the proviso to subclause (1) shall not be 21 referable to arbitration hereunder. A decision of the Minister 22 under paragraph (a) of subclause (1) shall not be referable to 23 arbitration under this Agreement. 24 25 (5) If by the award made on the arbitration pursuant to 26 subclause (4) the dispute is decided in favour of the 27 Company the decision shall take effect as a notice by the 28 Minister that he is so satisfied with and approves the matter 29 or matters the subject of the arbitration. 30 31 (6) The Company shall implement the approved proposals in 32 accordance with the terms thereof. 33 34 (7) Notwithstanding clause 33, the Minister may during the 35 implementation of approved proposals approve variations to those 36 proposals. 37 38 Notification of possible proposals 39 page 411 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 9B. (1) If the Company, upon completion of a pre-feasibility study 2 in respect of any matter that would require the submission 3 and approval of proposals pursuant to this Agreement (being 4 proposals which will have as their purpose, the integrated 5 use of works installations or facilities as contemplated by 6 clause 12A) for the matter to be undertaken, intends to 7 further consider the matter with a view to possibly 8 submitting such proposals it shall promptly notify the 9 Minister in writing giving reasonable particulars of the 10 relevant matter. 11 12 (2) Within one (1) month after receiving the notification the 13 Minister may, if the Minister so wishes, inform the 14 Company of the Minister's views of the matter at that stage. 15 16 (3) If the Company is informed of the Minister's views, it shall 17 take them into account in deciding whether or not to proceed 18 with its consideration of the matter and the submission of 19 proposals. 20 21 (4) Neither the Minister's response nor the Minister choosing 22 not to respond shall in any way limit, prejudice or otherwise 23 affect the exercise by the Minister of the Minister's powers, 24 or the performance of the Minister's obligations, under this 25 Agreement or otherwise under the laws from time to time of 26 the said State. 27 28 (5) (a) This subclause applies where the Company has settled 29 upon a single preferred development a purpose of 30 which is the integrated use of works installations or 31 facilities (as defined in subclause (7) of clause 12A 32 for the purpose of that clause) as contemplated by 33 clause 12A. 34 35 (b) For the purpose of this subclause "public interest 36 concerns" means any concern that implementation of 37 the single preferred development or any part of it will: 38 39 (i) detrimentally affect economic and orderly 40 development in the said State, including page 412 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 without limitation, infrastructure development 2 in the said State; or 3 4 (ii) be contrary to or inconsistent with the planning 5 and development policies and objectives of the 6 State; or 7 8 (iii) detrimentally affect the rights and interests of 9 third parties; or 10 11 (iv) detrimentally affect access to and use by others 12 of lands the subject of any grant or proposed 13 grant to the Company. 14 15 (c) At any time prior to submission of proposals the 16 Company may give to the Minister notice of its single 17 preferred development and request the Minister to 18 confirm that the Minister has no public interest 19 concerns with that single preferred development. 20 21 (d) The Company shall furnish to the Minister with its 22 notice reasonable particulars of the single preferred 23 development including, without limitation: 24 25 (i) as to the matters that would be required to be 26 addressed in submitted proposals; and 27 28 (ii) its progress in undertaking any feasibility or 29 other studies or matters to be completed before 30 submission of proposals; and 31 32 (iii) its timetable for obtaining required statutory 33 and other approvals in relation to the 34 submission and approval of proposals; and 35 36 (iv) its tenure requirements. 37 38 (e) If so required by the Minister, the Company will 39 provide to the Minister such further information 40 regarding the single preferred development as the page 413 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 Minister may require from time to time for the 2 purpose of considering the Company's request and 3 also consult with the Minister or representatives or 4 officers of the State in regard to the single preferred 5 development. 6 7 (f) Within 2 months after receiving the notice (or if the 8 Minister requests further information, within 2 9 months after the provision of that information) the 10 Minister must advise the Company: 11 12 (i) that the Minister has no public interest 13 concerns with the single preferred 14 development; or 15 16 (ii) that he is not then in a position to advise that he 17 has no public interest concerns with the single 18 preferred development and the Minister's 19 reasons in that regard. 20 21 (g) If the Minister gives the advice mentioned in 22 paragraph (f)(ii) the Company may, should it so 23 desire, give a further request to the Minister in respect 24 of a revised or alternate single preferred development 25 and the provisions of this subclause shall apply 26 mutatis mutandis thereto."; 27 28 (6) in clause 10(4)(b) by deleting "subclause (2) of Clause 9" 29 and substituting "clauses 9(2) to (5) and 9A"; 30 31 (7) in clause 11(8) by: 32 33 (a) inserting after "total area of the mining lease" the 34 words ", any land that may be included in the mining 35 lease pursuant to this Agreement and of any other 36 mining lease granted under or pursuant to this 37 Agreement (as aggregated)"; 38 39 (b) inserting "by endorsement" after "thereof in the 40 mining lease"; and page 414 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 2 (c) by inserting the following sentence at the end of the 3 clause: 4 5 "The Minister may approve, upon application by the 6 Company from time to time, for the total area referred 7 to in this subclause to be increased up to a limit not 8 exceeding 1,000 square kilometres;"; 9 10 (8) in clause 11(10) by inserting "or clause 10 as the case may 11 be" before the full stop; 12 13 (9) by inserting after subclause (11) of clause 11 the following 14 new subclauses: 15 16 "Blending of iron ore 17 18 (12) (a) The Company may blend iron ore mined from 19 the mining lease with any: 20 21 (i) iron ore mined from a mining tenement 22 or other mining title granted under, or 23 pursuant to, an Integration Agreement; 24 or 25 26 (ii) iron ore mined from a Mining Act 1978 27 mining lease located in, or proximate to, 28 the Pilbara region of the said State 29 which is held by a Related Entity alone 30 or with a third party or parties 31 (excluding any mining lease granted 32 pursuant to, or held under, a 33 Government agreement); or 34 35 (iii) with the prior approval of the Minister, 36 iron ore mined in, or proximate to, the 37 Pilbara region of the said State under a 38 Government agreement (excluding an 39 Integration Agreement); or 40 page 415 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 (iv) with the prior approval of the Minister, 2 iron ore mined by a third party from a 3 Mining Act 1978 mining lease located 4 in, or proximate to, the Pilbara region of 5 the said State (excluding under a 6 Government agreement) which has been 7 purchased by an Integration Proponent 8 from the third party. 9 10 (b) The authority given under paragraph (a) is 11 subject to the Minister being reasonably 12 satisfied that there are in place adequate 13 systems and controls for the correct 14 apportionment of the quantities of iron ore 15 being blended as between each of the sources 16 referred to in paragraph (a), which systems and 17 controls monitor production, processing, 18 transportation, stockpiling and shipping of all 19 such iron ore. If at any time the Minister 20 ceases to be so satisfied he may, after 21 consulting the Company and provided the 22 Company has not within three (3) months after 23 the commencement of such consultation 24 addressed the matters of concern to the 25 Minister to his satisfaction, by notice in writing 26 to the Company suspend the above authority in 27 respect of the relevant blending arrangements 28 until he is again satisfied in terms of this 29 paragraph (b). 30 31 (c) If any blending of iron ore occurs as 32 contemplated by this subclause, then for the 33 purposes of clauses 12(2) and (3)(a), a portion 34 of the iron ore so blended being equal to the 35 proportion that the amount of iron ore from the 36 mining lease used in the admixture of iron ore 37 bears to the total amount of iron ore so 38 blended, shall be deemed to be produced from 39 the mining lease. 40 page 416 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 Shipment of and price for iron ore 2 3 (13) The Company shall during the continuance of this 4 Agreement ship, or procure the shipment of all iron 5 ore mined from the mining lease and sold: 6 7 (a) from a wharf in a loading port which has been 8 constructed under an Integration Agreement; or 9 10 (b) with the Minister's approval given before 11 submission of proposals in that regard, from 12 any other wharf in a loading port which wharf 13 has been constructed under another 14 Government agreement (excluding the 15 Integration Agreements), 16 17 and use its best endeavours to obtain for all iron ore 18 from the mining lease the best price possible having 19 regard having regard to market conditions from time 20 to time prevailing provided that iron ore from the 21 mining lease may be sold by the Company prior to or 22 at the time of the shipment under this Agreement at a 23 price equal to the production costs in respect of that 24 iron ore up to the point of sale, if: 25 26 (i) the Minister is notified before the time of 27 shipment that the sale is to be made at cost, 28 providing details of the proposed sale; and 29 30 (ii) the Minister is notified of the proposed arm's 31 length purchaser in the relevant international 32 seaborne iron ore market of the iron ore the 33 subject of the proposed sale at cost; and 34 35 (iii) there is included in the return lodged pursuant 36 to clause 12(3)(a) particulars of the transaction 37 in which the ore sold at cost was subsequently 38 purchased in the relevant international 39 seaborne iron ore market by an arm's length 40 purchaser specifying the purchaser, the seller, page 417 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 the price and the date when the sale was agreed 2 between the arm's length purchaser and the 3 seller; and 4 5 (iv) the arm's length purchaser referred to in (iii) 6 above is not then a designated purchaser as 7 referred to below. 8 9 If required by notice in writing from the Minister, the 10 Company must provide the Minister within 30 days 11 after receiving the notice with evidence that the 12 transaction as included in the return pursuant to 13 paragraph (iii) of the proviso above was a sale in the 14 relevant international seaborne iron ore market to an 15 independent participant in that market. If no evidence 16 is provided or the Minister is not so satisfied on the 17 evidence provided or other information obtained, the 18 Minister may by notice to the Company designate the 19 purchaser to be a designated purchaser and that 20 designation will remain in force unless and until lifted 21 by further notice from the Minister to the Company. 22 For the avoidance of doubt, the parties acknowledge 23 that marketing entities forming part of the corporate 24 group including the Company (or part of the parallel 25 corporate group if the Company is part of a dual-listed 26 corporate structure) are not independent participants 27 for the purposes of this subclause."; 28 29 (10) in clause 12(1) by 30 31 (a) in the definition of "agreed or determined": 32 33 (i) inserting "(following if requested by the 34 Company, consultation with the Company and 35 its consultants in regard thereto)" after 36 "determined by the Minister"; 37 38 (ii) deleting "assessed at" and substituting "assessed 39 on"; and 40 page 418 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 (iii) deleting all the words after "shall have regard 2 to" and substituting a colon followed by: 3 4 "(i) in the case of iron ore initially sold at 5 cost pursuant to the proviso to clause 6 11(13), the prices for that type of iron 7 ore prevailing at the time the price for 8 such iron ore was agreed between the 9 arm's length purchaser referred to in 10 paragraph (iii) of that proviso and the 11 seller in relation to the type of sale and 12 the relevant international seaborne iron 13 ore market into which such iron ore was 14 sold and where prices beyond the 15 deemed f.o.b. point are being considered 16 the deductions mentioned in the 17 definition of f.o.b. value; and 18 19 (ii) in any other case, the prices for that type 20 of iron ore prevailing at the time the 21 price for such iron ore was agreed 22 between the Company and the purchaser 23 in relation to the type of sale and the 24 market into which such iron ore was 25 sold and where prices beyond the 26 deemed f.o.b. point are being considered 27 the deductions mentioned in the 28 definition of f.o.b. value;"; 29 30 (b) in the definition of "deemed f.o.b. point" by inserting 31 "relevant" before "loading port"; 32 33 (c) in the definition of "f.o.b. value" by: 34 35 (i) in paragraph (i): 36 37 (A) inserting "subject to paragraph (ii)," 38 before "in the case of"; 39 page 419 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 (B) deleting "assessed at" and substituting 2 "assess on"; and 3 4 (C) inserting "relevant" before each 5 reference to "loading port"; 6 7 (ii) renumbering paragraph (ii) as paragraph (iii); 8 and 9 10 (iii) inserting after paragraph (i) the following new 11 paragraph: 12 13 "(ii) in the case of iron ore initially sold at 14 cost pursuant to the proviso to clause 15 11(13), the price which is payable for 16 the iron ore by the arm's length 17 purchaser as referred to in paragraph 18 (iii) of that proviso or, where the 19 Minister considers, following advice 20 from the appropriate Government 21 department, that the price payable in 22 respect of the iron ore does not represent 23 a fair and reasonable market value for 24 that type of iron ore assessed on an arm's 25 length basis in the relevant international 26 seaborne iron ore market, such amount 27 as is agreed or determined as 28 representing such a fair and reasonable 29 market value, less all duties, taxes, costs 30 and charges referred to in paragraph (i) 31 above;"; 32 33 (11) after clause 12(1) by deleting the heading "period to 31 34 December 2010"; 35 36 (12) in clause 12(2) by: 37 (a) deleting "(a) for the period ending on 31 December 38 2010"; page 420 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 (b) inserting in paragraph (i) "and on fine ore and pisolite 2 fine ore where such fine ore and pisolite fine ore is 3 not sold or shipped separately as such "after "lump 4 ore"; 5 (c) inserting in paragraph (ii) "and on pisolite fine ore 6 sold or shipped separately as such" after "fine ore"; 7 (d) deleting paragraphs (b); and (c); and 8 (e) deleting "paragraphs (a) and (b) of" after 9 "PROVIDED HOWEVER"; and 10 (f) inserting after paragraph (d) the following new 11 paragraphs: 12 "(e) Where beneficiated ore is produced from an 13 admixture of iron ore from the mining lease 14 and iron ore from elsewhere, a portion (and a 15 portion only) of the beneficiated ore so 16 produced being equal to the proportion that the 17 amount of the iron in the iron ore from the 18 mining lease used in the production of that 19 beneficiated ore bears to the total amount of 20 iron in the iron ore so used shall be deemed to 21 be produced from iron ore from the mining 22 lease. 23 (f) Where for the purpose of determining f.o.b. 24 value it is necessary to convert an amount or 25 price to Australian currency, the conversion is 26 to be calculated using a rate (excluding forward 27 hedge or similar contract rates) that has been 28 approved by the Minister at the request of the 29 Company and in the absence of such request as 30 determined by the Minister to be a reasonable 31 rate for the purpose. 32 (g) The provisions of regulations 85AA (Effect of 33 GST etc. on royalties) of the Mining 34 Regulations 1981 (WA) shall apply mutatis page 421 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 mutandis to the calculation of royalties under 2 this clause."; 3 (13) in clause 12(3) by: 4 5 (a) in paragraph (a): 6 7 (i) inserting "and also showing such other 8 information in relation to the abovementioned 9 iron ore as the Minister may from time to time 10 reasonably require in regard to, and to assist in 11 verifying, the calculation of royalties in 12 accordance with subclause (2)" after "the due 13 date of the return"; and 14 15 (ii) deleting all the words after "calculated on the 16 basis of" and substituting a colon followed by: 17 18 "(i) in the case of iron ore initially sold at 19 cost pursuant to the proviso to clause 20 11(13), at the price notified pursuant to 21 paragraph (iii) of that proviso; 22 23 (ii) in any other cases invoices or 24 provisional invoices (as the case may 25 be) rendered by the Company to the 26 purchaser (which invoices the Company 27 shall render without delay 28 simultaneously furnishing copies thereof 29 to the Minister) of such iron ore or on 30 the basis of estimates as agreed or 31 determined, 32 33 and shall from time to time in the next 34 following appropriate return and payment 35 make (by return and by cash) all such 36 necessary adjustments (and give to the Minister 37 full details thereof) when the f.o.b. value shall 38 have been finally calculated, agreed or 39 determined;"; 40 page 422 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 (b) in paragraph (b) by: 2 3 (i) deleting "books of account and records of the 4 Company including contracts relative" and 5 substituting "books, records, accounts, 6 documents (including contracts), data and 7 information of the Company stored by any 8 means relating"; and 9 10 (ii) inserting "(in whatever form)" after "copies or 11 extracts"; 12 (iii) inserting "the subject of royalty" before each 13 reference to "hereunder"; and 14 15 (c) by inserting after paragraph (b) the following new 16 paragraph: 17 18 "(ba) The Company shall cause to be produced in 19 Perth in the said State all books, records, 20 accounts, documents (including contracts), data 21 and information of the kind referred to in 22 paragraph (b) to enable the exercise of rights 23 by the Minister or the Minister's nominee under 24 paragraph (b), regardless of the location in 25 which or by whom those books, records, 26 accounts, documents (including contracts), data 27 and information are stored from time to time."; 28 and 29 30 (14) by inserting after clause 12 the following new clauses: 31 32 "Integrated use of works installations or facilities under 33 the Integration Agreements 34 35 12A. (1) Subject to subclauses (2) to (7) of this clause 36 and to the other provisions of this Agreement, 37 the Company may during the continuance of 38 this Agreement: 39 page 423 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 (a) use any existing or new works 2 installations or facilities constructed or 3 held: 4 5 (i) under this Agreement; or 6 7 (ii) under any other Integration 8 Agreement which are made 9 available for such use and during 10 the continuance of such 11 Integration Agreement; or 12 13 (iii) with the approval of the Minister, 14 under a Government agreement 15 (excluding an Integration 16 Agreement) which are made 17 available for such use and during 18 the continuance of that 19 agreement, 20 21 (wholly or in part) in the activities of the 22 Company carried on by it pursuant to 23 this Agreement including, without 24 limitation, as part of those activities, 25 transporting by railway and shipping 26 from a loading port and undertaking any 27 ancillary and incidental activities in 28 doing so (including, without limitation, 29 blending permitted by clause 11(12)) of: 30 31 (A) iron ore mined from a Mining Act 32 1978 mining lease located in, or 33 proximate to, the Pilbara region 34 of the said State which is held by 35 a Related Entity alone or with a 36 third party or parties (excluding 37 any mining lease granted 38 pursuant to, or held under, a 39 Government agreement); 40 page 424 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 (B) with the prior approval of the 2 Minister, iron ore mined in, or 3 proximate to, the Pilbara region 4 of the said State under a 5 Government agreement 6 (excluding an Integration 7 Agreement); 8 9 (C) with the prior approval of the 10 Minister, iron ore mined by a 11 third party from a Mining Act 12 1978 mining lease located in, or 13 proximate to, the Pilbara region 14 of the said State (excluding under 15 a Government agreement) which 16 has been purchased by the 17 Company from the third party; 18 19 (D) iron ore mined under an 20 Integration Agreement; 21 22 (b) make any existing or new works 23 installations or facilities constructed or 24 held under this Agreement available for 25 use (wholly or partly) by another 26 Integration Proponent during the 27 continuance of its Integration 28 Agreement in the activities of that 29 Integration Proponent carried on by it 30 pursuant to its Integration Agreement 31 including, without limitation, as part of 32 those activities, transporting by railway 33 and shipping from a loading port and 34 undertaking any ancillary and incidental 35 activities in doing so (including, without 36 limitation, blending permitted by that 37 Integration Agreement) of: 38 39 (i) iron ore mined from a Mining Act 40 1978 mining lease located in, or page 425 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 proximate to, the Pilbara region 2 of the said State which is held by 3 a Related Entity alone or with a 4 third party or parties (excluding 5 any mining lease granted 6 pursuant to, or held under, a 7 Government agreement); 8 9 (ii) with the prior approval of the 10 Minister (as defined in that 11 Integration Agreement), iron ore 12 mined in, or proximate to, the 13 Pilbara region of the said State 14 under a Government agreement 15 (excluding an Integration 16 Agreement); 17 18 (iii) with the prior approval of the 19 Minister (as defined in that 20 Integration Agreement), ore 21 mined by a third party from a 22 Mining Act 1978 mining lease 23 located in, or proximate to, the 24 Pilbara region of the said State 25 (excluding under a Government 26 agreement) which has been 27 purchased by that Integration 28 Proponent from the third party; 29 30 (iv) iron ore mined under an 31 Integration Agreement; 32 33 (c) make any existing or new works 34 installations or facilities constructed or 35 held under this Agreement available for 36 use (wholly or partly) in connection 37 with operations under: 38 39 (i) a Mining Act 1978 mining lease 40 located in, or proximate to, the page 426 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 Pilbara region of the said State, 2 for iron ore, which is held by a 3 Related Entity alone or with a 4 third party or parties (excluding 5 any mining lease granted 6 pursuant to, or held under a 7 Government agreement); or 8 9 (ii) with the approval of the Minister, 10 a Government agreement (other 11 than an Integration Agreement) 12 for the mining of iron ore in, or 13 proximate to, the Pilbara region 14 of the said State; 15 16 (d) subject to subclause (2), under this 17 Agreement and for the purpose of any 18 use or making available for use referred 19 to in paragraph (a), (b) or (c) connect 20 any existing or new works installations 21 or facilities constructed or held under 22 this Agreement to any existing or new 23 works installations or facilities 24 constructed or held under another 25 Integration Agreement; 26 27 (e) subject to subclause (2), under this 28 Agreement and for the purpose of any 29 use or making available for use referred 30 to in paragraph (a), (b) or (c) or making 31 of any connection referred to in 32 paragraph (d) construct new works 33 installations or facilities and expand 34 modify or otherwise vary any existing 35 and new works installations or facilities 36 constructed or held under this 37 Agreement; 38 39 (f) allow a railway or rail spur line (not 40 being a railway or rail spur line page 427 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 constructed or held under an Integration 2 Agreement) to be connected to a railway 3 or rail spur line or other works 4 installations or facilities constructed or 5 held under this Agreement for the 6 delivery of iron ore to an Integration 7 Proponent for transport by railway and 8 shipping from a loading port (together 9 with any ancillary and incidental 10 activities in doing so) as part of its 11 activities under its Integration 12 Agreement; and 13 14 (g) allow an electricity transmission line 15 (not being an electricity transmission 16 line constructed or held under an 17 Integration Agreement) to be connected 18 to an electricity transmission line 19 constructed or held under this 20 Agreement for the supply of electricity 21 permitted to be made under an 22 Integration Agreement. 23 24 (2) (a) A connection referred to in clause (1)(d) 25 or construction, expansion, modification 26 or other variation referred to in 27 subclause (1)(e) by the Company shall, 28 to the extent not already authorised 29 under this Agreement as at the variation 30 date, be regarded as a significant 31 modification expansion or other 32 variation of the Company's activities 33 carried on by it pursuant to this 34 Agreement and may only be made in 35 accordance with proposals submitted 36 and approved or determined under this 37 Agreement in accordance with clauses 9 38 and 9A or clauses 10 or 12C as the case 39 may require and otherwise in 40 compliance with the provisions of this page 428 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 Agreement and the laws from time to 2 time of the said State. For the avoidance 3 of doubt, the parties acknowledge that 4 any use or making available for use 5 contemplated by subclause (1)(a), (1)(b) 6 or (1)(c) shall not otherwise than as 7 required by this paragraph (a) require 8 the submission and approval of further 9 proposals under this Agreement. 10 11 (b) The Company shall not be entitled to: 12 13 (i) submit proposals to construct any 14 port or to establish harbour or 15 port works installations or 16 facilities; or 17 18 (ii) generate and supply power, take 19 and supply water or dispose of 20 water otherwise than in 21 accordance with the other clauses 22 of this Agreement and subject to 23 any restrictions contained in 24 those clauses; or 25 26 (iii) without limiting subparagraphs 27 (i) and (ii) submit proposals to 28 construct or establish works 29 installations or facilities of a type, 30 or to make expansions, 31 modifications or other variations 32 of works installations or facilities 33 of a type, which in the Minister's 34 reasonable opinion this 35 Agreement, immediately before 36 the variation date, did not permit 37 or contemplate the Company 38 constructing, establishing or 39 making as the case may be 40 otherwise than for integration use page 429 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 as contemplated by subclauses 2 (1)(a), (1)(b) or (1)(c) or as 3 permitted by clause 12C; or 4 5 (iv) submit proposals to make a 6 connection as referred to in 7 subclause (1)(d) or a 8 construction, expansion, 9 modification or other variation as 10 referred to in subclause (1)(e) 11 otherwise than on tenure granted 12 under or pursuant to this 13 Agreement from time to time or 14 held pursuant to this Agreement 15 from time to time; or 16 17 (v) submit proposals to make a 18 connection referred to in 19 subclause (1)(d) or a 20 construction, expansion, 21 modification or other variation as 22 referred to in subclause (1)(e) for 23 the purpose of use as 24 contemplated by subclause 25 (1)(c)(i), if in the reasonable 26 opinion of the Minister the 27 activity which is the subject of 28 the proposals would give to the 29 holder or holders of the relevant 30 Mining Act 1978 mining lease 31 the benefit of rights or powers 32 granted to the Company under 33 this Agreement, over and above 34 the right of access to and use of 35 the relevant works, installations 36 or facilities; or 37 38 (vi) submit proposals to make a 39 connection as referred to in 40 subclause (1)(d) or a page 430 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 construction, expansion, 2 modification or other variation as 3 referred to in subclause (1)(e) for 4 the purpose of use as 5 contemplated by subclause (1)(c) 6 and involving the grant of tenure 7 without the prior approval of the 8 Minister; or 9 10 (vii) submit proposals to assign, 11 sublet, transfer or dispose of any 12 works installations or facilities 13 constructed or held under this 14 Agreement or any leases, 15 licences, easements or other titles 16 under or pursuant to this 17 Agreement for any purpose 18 referred to in this clause. 19 20 (c) Notwithstanding the provisions of 21 clauses 9A, 10 and 12C, the Minister 22 may defer consideration of, or a decision 23 upon, a proposal submitted by the 24 Company for a connection as referred to 25 in subclause (1)(d) or a construction, 26 expansion, modification or other 27 variation as referred to in subclause 28 (1)(e), for the purpose of use or making 29 available for use as referred to in 30 subclauses (1)(a) or (1)(b), until relevant 31 corresponding proposals under the 32 relevant Integration Agreement have 33 been submitted and those proposals can 34 be approved under that Integration 35 Agreement concurrently with the 36 Minister's approval under this 37 Agreement of the Company's proposal. 38 39 (3) Any use or making available for use as referred 40 to in subclause (1), or submission of proposals page 431 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 as referred to in subclause (2), in respect of a 2 Related Entity shall be subject to the Company 3 first confirming with the Minister that the 4 Minister is satisfied that the relevant company 5 is a Related Entity. 6 7 (4) The Company shall give the Minister prior 8 written notice of any significant change (other 9 than a temporary one for maintenance or to 10 respond to an emergency) proposed in its use, 11 or in it making available for use, works, 12 installations or facilities as referred to in this 13 clause: 14 15 (a) from that authorised under this 16 Agreement immediately before the 17 variation date; and 18 19 (b) subsequently from that previously 20 notified to the Minister under this 21 subclause, 22 23 as soon as practicable before such change 24 occurs. 25 26 The Company shall also keep the Minister fully 27 informed with respect to any proposed 28 connection as referred to in subclause (1)(f) or 29 (1) (g) or request of the Company for such 30 connection to be allowed. 31 32 (5) Nothing in this Agreement shall be construed 33 to: 34 35 (a) exempt another Integration Proponent 36 from complying with, or the application 37 of, the provisions of its Integration 38 Agreement; or 39 page 432 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 (b) restrict the Company's rights under 2 clause 32. 3 4 For the avoidance of doubt the approval of 5 proposals under this Agreement shall not be 6 construed as authorising another Integration 7 Proponent to undertake any activities under this 8 Agreement or under another Integration 9 Agreement. 10 11 (6) Nothing in this clause shall be construed to 12 exempt the Company from complying with, or 13 the application of, the other provisions of this 14 Agreement including, without limitation, clause 15 32 and of relevant laws from time to time of the 16 said State. 17 18 (7) For the purpose of this clause "works 19 installations or facilities" means any: 20 21 (a) harbour or port works installations or 22 facilities including, without limitation, 23 stockpiles, reclaimers, conveyors and 24 wharves; 25 26 (b) railway and rail spur lines; 27 28 (c) track structures and systems associated 29 with the operation and maintenance of a 30 railway including, without limitation, 31 sidings, train control and signalling 32 systems, maintenance workshops and 33 terminal yards; 34 35 (d) train loading and unloading works 36 installations or facilities; 37 38 (e) conveyors; 39 40 (f) private roads; page 433 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 2 (g) mine aerodrome and associated 3 aerodrome works installations and 4 facilities; 5 6 (h) iron ore mining, crushing, screening, 7 beneficiation or other processing works 8 installations or facilities; 9 10 (i) mine administration buildings including, 11 without limitation, offices, workshops 12 and medical facilities; 13 14 (j) borrow pits; 15 16 (k) accommodation and ancillary facilities 17 including, without limitation, 18 construction camps and in townsites 19 constructed pursuant to and held under 20 any Integration Agreement; 21 22 (l) water, sewerage, electricity, gas and 23 telecommunications works installations 24 and facilities including, without 25 limitation, pipelines, transmission lines 26 and cables; and 27 28 (m) any other works installations or facilities 29 approved of by the Minister for the 30 purpose of this clause. 31 32 Transfer of rights to shared works installations or 33 facilities 34 35 12B. (1) For the purposes of this clause "Relevant 36 Infrastructure" means any works installations or 37 facilities (as defined in clause 12A(7)): 38 39 (a) constructed or held under another 40 Integration Agreement; page 434 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 2 (b) which the Company is using in its 3 activities pursuant to this Agreement; 4 5 (c) which the Minister is satisfied (after 6 consulting with the Company and the 7 Integration Proponent for that other 8 Integration Agreement): 9 10 (i) are no longer required by that other 11 Integration Proponent to carry on 12 its activities pursuant to its 13 Integration Agreement because of 14 the cessation of the Integration 15 Proponent's mining operations in 16 respect of which such Relevant 17 Infrastructure was constructed or 18 held or because of any other reason 19 acceptable to the Minister; and 20 21 (ii) are required by the Company to 22 continue to carry on its activities 23 pursuant to this Agreement; and 24 25 (d) in respect of which that other Integration 26 Proponent has notified the Minister it 27 consents to the Company submitting 28 proposals as referred to in subclause (2). 29 30 (2) The Company may as an additional proposal 31 pursuant to clause 9 propose: 32 33 (a) that it be granted a lease licence or other 34 title over the Relevant Infrastructure 35 pursuant to this Agreement subject to and 36 conditional upon the other Integration 37 Proponent surrendering wholly or in part 38 (and upon such terms as the Minister 39 considers reasonable including any 40 variation of terms to address page 435 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 environmental issues) its lease licence or 2 other title over the Relevant 3 Infrastructure; or 4 5 (b) that the other Integration Proponent's 6 lease licence or other title (not being a 7 mineral lease, mining lease or other right 8 to mine title granted under a Government 9 agreement, the Mining Act 1904 or the 10 Mining Act 1978) to the Relevant 11 Infrastructure be transferred to this 12 Agreement (to be held by the Company 13 pursuant to this Agreement) with such 14 surrender of land from it and variations of 15 its terms as the Minister considers 16 reasonable for that title to be held under 17 this Agreement including, without 18 limitation, to address environmental 19 issues and outstanding obligations of that 20 other Integration Proponent under its 21 Integration Agreement in respect of that 22 Relevant Infrastructure. 23 24 The provisions of clause 9A shall mutatis 25 mutandis apply to any such additional proposal. 26 In addition the Company acknowledges that the 27 Minister may require variations of the other 28 Integration Agreement and/or proposals under it 29 or of this Agreement in order to give effect to 30 the matters contemplated by this clause. 31 32 (3) This clause shall cease to apply in the event the 33 State gives any notice of default to the Company 34 pursuant to clause 38(l) and while such notice 35 remains unsatisfied. 36 37 Miscellaneous Licences for Railways 38 39 12C. (1) In this clause subject to the context: 40 page 436 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 "Additional Infrastructure" means: 2 3 (a) Train Loading Infrastructure; 4 5 (b) Train Unloading Infrastructure; 6 7 (c) a conveyor, train unloading and other 8 infrastructure necessary for the transport 9 of iron ore, freight goods or other 10 products from the Railway (directly or 11 indirectly) to port facilities within a 12 loading port, 13 14 in each case located outside a Port; 15 16 "LAA" means the Land Administration Act 1997 17 (WA); 18 19 "Lateral Access Roads" has the meaning given 20 in subclause (3)(a)(iv)); 21 22 "Lateral Access Road Licence" means a 23 miscellaneous licence granted pursuant to 24 subclause (6)(a)(ii) or subclause (6)(b) as the 25 case may be and according to the requirements 26 of the context describes the area of land from 27 time to time the subject of that licence; 28 29 "Port" means any port the subject of the Port 30 Authorities Act 1999 (WA) or the Shipping and 31 Pilotage Act 1967 (WA); 32 33 "Private Roads" means Lateral Access Roads 34 and the Company's access roads within a 35 Railway Corridor; 36 37 "Rail Safety Act" means the Rail Safety Act 38 1998 (WA); 39 page 437 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 "Railway" means a standard gauge heavy haul 2 railway or railway spur line, located or to be 3 located as the case may be in, or proximate to, 4 the Pilbara region of the said State (but outside 5 the boundaries of a Port) for the transport of iron 6 ore, freight goods and other products together 7 with all railway track, associated track structures 8 including sidings, turning loops, over or under 9 track structures, supports (including supports for 10 equipment or items associated with the use of a 11 railway) tunnels, bridges, train control systems, 12 signalling systems, switch and other gear, 13 communication systems, electric traction 14 infrastructure, buildings (excluding office 15 buildings, housing and freight centres), 16 workshops and associated plant, machinery and 17 equipment and including rolling stock 18 maintenance facilities, terminal yards, depots, 19 culverts and weigh bridges which railway is or is 20 to be (as the case may be) the subject of 21 approved proposals under subclause (4) and 22 includes any expansion or extension thereof 23 outside a Port which is the subject of additional 24 proposals approved in accordance with 25 subclause (5); 26 27 "Railway Corridor" means, prior to the grant of 28 a Special Railway Licence, the land for the route 29 of the Railway the subject of that licence, access 30 roads (other than Lateral Access Roads), areas 31 from which stone, sand, clay and gravel may be 32 taken, temporary accommodation facilities for 33 the railway workforce, water bores and 34 Additional Infrastructure (if any) which is the 35 subject of a subsisting agreement pursuant to 36 subclause (3)(a) and after the grant of the 37 Special Railway Licence the land from time to 38 time the subject of that Special Railway Licence; 39 page 438 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 "Railway Operation" means the construction and 2 operation under this Agreement of the relevant 3 Railway and associated access roads and 4 Additional Infrastructure (if any) within the 5 relevant Railway Corridor and of the associated 6 Lateral Access Roads, in accordance with 7 approved proposals; 8 9 "Railway spur line" means a standard gauge 10 heavy haul railway spur line located or to be 11 located in, or proximate to, the Pilbara region of 12 the said State (but outside a Port) connecting to a 13 Railway for the transport of iron ore, freight 14 goods and other products upon the Railway to 15 (directly or indirectly) a loading port; 16 17 "Railway Operation Date" means the date of the 18 first carriage of iron ore, freight goods or other 19 products over the relevant Railway (other than 20 for construction or commissioning purposes); 21 22 "Railway spur line Operation Date" means the 23 date of the first carriage of iron ore, freight 24 goods or other products over the relevant 25 Railway spur line (other than for construction or 26 commissioning purposes); 27 28 "Special Railway Licence" means the relevant 29 miscellaneous licence for railway and, if 30 applicable, other purposes, granted to the 31 Company pursuant to subclause (6)(a)(i) as 32 varied in accordance with subclause (6)(h) or 33 subclause (6)(i) and according to the 34 requirements of the context describes the area of 35 land from time to time the subject of that 36 licence; 37 38 "Train Loading Infrastructure" means 39 conveyors, stockpile areas, blending and 40 screening facilities, stackers, re-claimers and page 439 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 other infrastructure reasonably required for the 2 loading of iron ore, freight goods or other 3 products onto the relevant Railway for transport 4 (directly or indirectly) to a loading port; and 5 6 "Train Unloading Infrastructure" means train 7 unloading infrastructure reasonably required for 8 the unloading of iron ore from the Railway to be 9 processed, or blended with other iron ore, at 10 processing or blending facilities in the vicinity 11 of that train unloading infrastructure and with 12 the resulting iron ore products then loaded on to 13 the Railway for transport (directly or indirectly) 14 to a loading port. 15 16 Company to obtain prior Ministerial in-principle 17 approval 18 19 (2) (a) If the Company wishes, from time to time 20 during the continuance of this Agreement, 21 to proceed under this clause with a plan to 22 develop a Railway it shall give notice 23 thereof to the Minister and furnish to the 24 Minister with that notice an outline of its 25 plan. 26 27 (b) The Minister shall within one month of a 28 notice under paragraph (a) advise the 29 Company whether or not he approves in- 30 principle the proposed plan. The Minister 31 shall afford the Company full opportunity 32 to consult with him in respect of any 33 decision of the Minister under this 34 paragraph. 35 36 (c) The Minister's in-principle approval in 37 respect of a proposed plan shall lapse if 38 the Company has not submitted detailed 39 proposals to the Minister in respect of that 40 plan in accordance with this clause within page 440 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 18 months of the Minister's in-principle 2 approval. 3 4 Railway Corridor 5 6 (3) (a) If the Minister gives in-principle approval 7 to a plan of the Company to develop a 8 Railway it shall consult with the Minister 9 to seek the agreement of the Minister as 10 to: 11 12 (i) where the Railway will begin and 13 end; and 14 15 (ii) a route for the Railway, access 16 roads to be within the Railway 17 Corridor and the land required for 18 that route as well as Additional 19 Infrastructure (if any) including, 20 without limitation, areas from 21 which stone, sand, clay and gravel 22 may be taken, temporary 23 accommodation facilities for the 24 railway workforce and water bores; 25 and 26 27 (iii) in respect of Additional 28 Infrastructure (if any) the nature 29 and capacity of such Additional 30 Infrastructure; and 31 32 (iv) the routes of, and the land required 33 for, roads outside the Railway 34 Corridor (and also outside a Port) 35 for access to it to construct the 36 Railway (such roads as agreed 37 being "Lateral Access Roads"). 38 39 In seeking such agreement, regard shall 40 be had to achieving a balance between page 441 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 engineering matters including costs, the 2 nature and use of any lands concerned 3 and interests therein and the costs of 4 acquiring the land (all of which shall be 5 borne by the Company). The parties 6 acknowledge the intention is for the 7 Company to construct the Railway, the 8 access roads for the construction and 9 maintenance of the Railway which are to 10 be within the Railway Corridor and the 11 relevant Additional Infrastructure (if any) 12 along the centreline of the Railway 13 Corridor subject to changes in that 14 alignment to the extent necessary to avoid 15 heritage, environmental or poor ground 16 conditions that are not identified during 17 preliminary investigation work, and 18 recognise the width of the Railway 19 Corridor may need to vary along its route 20 to accommodate Additional Infrastructure 21 (if any), access roads, areas from which 22 stone, sand, clay and gravel may be taken, 23 temporary accommodation facilities for 24 the railway workforce and water bores. 25 The provisions of clause 37 shall not 26 apply to this subclause. 27 28 (b) If the date by which the Company must 29 submit detailed proposals under subclause 30 (4)(a) (as referred to in subclause (2)(c)) 31 is extended or varied by the Minister 32 pursuant to clause 35, any agreement 33 made pursuant to paragraph (a) before 34 such date is extended or varied shall 35 unless the Minister notifies the Company 36 otherwise be deemed to be at an end and 37 neither party shall have any claim against 38 the other in respect of it. 39 page 442 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 (c) The Company acknowledges that it shall 2 be responsible for liaising with every title 3 holder in respect of the land affected and 4 for obtaining in a form and substance 5 acceptable to the Minister all 6 unconditional and irrevocable consents of 7 each such title holder to, and all statutory 8 consents required in respect of the land 9 affected for: 10 11 (i) the grant of the Special Railway 12 Licence for the construction, 13 operation and maintenance within 14 the Railway Corridor of the 15 Railway, access roads and 16 Additional Infrastructure (if any) 17 to be within the Railway Corridor; 18 and 19 20 (ii) the grant of Lateral Access Road 21 Licences for the construction, use 22 and maintenance of Lateral Access 23 Roads over the routes for the 24 Lateral Access Roads agreed 25 pursuant to paragraph (a); and 26 27 (iii) the inclusion of additional land in 28 the Special Railway Licence as 29 referred to in subclause (6)(h) or 30 subclause (6)(i), 31 32 in accordance with this clause. For the 33 purposes of this subclause (3)(c), "title 34 holder" means a management body (as 35 defined in the LAA) in respect of any part 36 of the affected land, a person who holds a 37 mining, petroleum or geothermal energy 38 right (as defined in the LAA) in respect of 39 any part of the affected land, a person 40 who holds a lease or licence under the page 443 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 LAA in respect of any part of the affected 2 land, a person who holds any other title 3 granted under or pursuant to a 4 Government agreement in respect of any 5 part of the affected land, a person who 6 holds a lease or licence in respect of any 7 part of the affected land under any other 8 Act applying in the said State and a 9 person in whom any part of the affected 10 land is vested, immediately before the 11 provision of such consents to the Minister 12 as referred to in subclause (4)(e)(ii) 13 (including as applying pursuant to 14 subclause 5(d)). 15 16 Company to submit proposals for Railway 17 18 (4) (a) The Company shall, subject to the EP 19 Act, the provisions of this Agreement, 20 agreement at that time subsisting in 21 respect of the matters required to be 22 agreed pursuant to subclause 3(a), submit 23 to the Minister by the latest date applying 24 under subclause (2)(c) to the fullest extent 25 reasonably practicable its detailed 26 proposals (including plans where 27 practicable and specifications where 28 reasonably required by the Minister and 29 any other details normally required by a 30 local government in whose area any 31 works are to be situated) with respect to 32 the undertaking of the relevant Railway 33 Operation, which proposals shall include 34 the location, area, layout, design, 35 materials and time program for the 36 commencement and completion of 37 construction or the provision (as the case 38 may be) of each of the following matters 39 namely: 40 page 444 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 (i) the Railway including fencing (if 2 any) and crossing places within the 3 Railway Corridor; 4 5 (ii) Additional Infrastructure (if any) 6 within the Railway Corridor; 7 8 (iii) temporary accommodation and 9 ancillary temporary facilities for 10 the railway workforce on, or in the 11 vicinity of, the Railway Corridor 12 and housing and other appropriate 13 facilities elsewhere for the 14 Company's workforce; 15 16 (iv) water supply; 17 18 (v) energy supplies; 19 20 (vi) access roads within the Railway 21 Corridor and Lateral Access Roads 22 both along the routes for those 23 roads agreed between the Minister 24 and the Company pursuant to 25 subclause 3(a); 26 27 (vii) any other works, services or 28 facilities desired by the Company; 29 and 30 31 (viii) use of local labour, professional 32 services, manufacturers, suppliers 33 contractors and materials and 34 measures to be taken with respect 35 to the engagement and training of 36 employees by the Company, its 37 agents and contractors. 38 39 (b) Proposals pursuant to paragraph (a) must 40 specify the matters agreed for the purpose page 445 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 pursuant to subclause (3)(a) and must not 2 be contrary to or inconsistent with such 3 agreed matters. 4 5 (c) Each of the proposals pursuant to 6 paragraph (a) may with the approval of 7 the Minister, or must if so required by the 8 Minister, be submitted separately and in 9 any order as to the matter or matters 10 mentioned in one or more of 11 subparagraphs (i) to (viii) of paragraph 12 (a) and until all of its proposals under this 13 subclause have been approved the 14 Company may withdraw and may 15 resubmit any proposal but the withdrawal 16 of any proposal shall not affect the 17 obligations of the Company to submit a 18 proposal under this subclause in respect 19 of the subject matter of the withdrawn 20 proposal. 21 22 (d) The Company shall, whenever any of the 23 following matters referred to in this 24 subclause are proposed by the Company 25 (whether before or during the submission 26 of proposals under this subclause), submit 27 to the Minister details of any services 28 (including any elements of the project 29 investigations, design and management) 30 and any works, materials, plant, 31 equipment and supplies that it proposes to 32 consider obtaining from or having carried 33 out or permitting to be obtained from or 34 carried out outside Australia, together 35 with its reasons therefor and shall, if 36 required by the Minister consult with the 37 Minister with respect thereto. 38 page 446 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 (e) At the time when the Company submits 2 the last of the said proposals pursuant to 3 this subclause, it shall: 4 5 (i) furnish to the Minister's reasonable 6 satisfaction evidence of all 7 accreditations under the Rail 8 Safety Act which are required to 9 be held by the Company or any 10 other person for the construction of 11 the Railway; and 12 13 (ii) furnish to the Minister the written 14 consents referred to in subclause 15 (3)(c)(i) and (3)(c)(ii). 16 17 (f) The provisions of clause 9A shall apply 18 mutatis mutandis to detailed proposals 19 submitted under this subclause. 20 21 Additional Railway Proposals 22 23 (5) (a) If the Company at any time during the 24 currency of a Special Railway Licence 25 desires to construct a Railway spur line 26 (connecting to the Railway the subject of 27 that Special Railway Licence) or desires 28 to significantly modify, expand or 29 otherwise vary its activities within the 30 land the subject of the Special Railway 31 Licence that are the subject of this 32 Agreement and that may be carried on by 33 it pursuant to this Agreement (other than 34 by the construction of a Railway spur 35 line) beyond those activities specified in 36 any approved proposals for that Railway, 37 it shall give notice of such desire to the 38 Minister and furnish to the Minister with 39 that notice an outline of its proposals in 40 respect thereto (including, without page 447 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 limitation, such matters mentioned in 2 subclause (4)(a) as are relevant or as the 3 Minister otherwise requires). 4 5 (b) If the notice relates to a Railway spur 6 line, or to the construction of Train 7 Loading Infrastructure or Train 8 Unloading Infrastructure on land outside 9 the then Railway Corridor, the Minister 10 shall within one month of receipt of such 11 notice advise the Company whether or 12 not he approves in-principle the proposed 13 construction of such spur line, Train 14 Loading Infrastructure or Train 15 Unloading Infrastructure. If the Minister 16 gives in-principle approval the Company 17 may (but not otherwise) submit detailed 18 proposals in respect thereof provided that 19 the provisions of subclause (3) shall 20 mutatis mutandis apply prior to 21 submission of detailed proposals in 22 respect thereof. 23 24 (c) Subject to the EP Act, the provisions of 25 this Agreement and agreement at that 26 time subsisting in respect of any matters 27 required to be agreed pursuant to 28 subclause (3)(a) (as referred to in 29 paragraph (b)), the Company shall submit 30 to the Minister within a reasonable 31 timeframe, as determined by the Minister 32 after receipt of the notice referred to in 33 paragraph (a) (or in the case of a notice 34 referred to in paragraph (b) the giving of 35 the Minister's in-principle consent as 36 referred to in that paragraph), detailed 37 proposals in respect of the proposed 38 construction of such Railway spur line, 39 Train Loading Infrastructure, Train 40 Unloading Infrastructure or other page 448 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 proposed modification, expansion or 2 variation of its activities including such of 3 the matters mentioned in subclause (4)(a) 4 as the Minister may require. 5 6 (d) The provisions of subclause (4) (with the 7 date for submission of proposals being 8 read as the date or time determined by the 9 Minister under paragraph (c) and the 10 reference in subclause (4)(e)(ii) to 11 subclause (3)(c)(i) being read as a 12 reference to subclause (3)(c)(iii)) and of 13 clause 9A shall mutatis mutandis apply to 14 detailed proposals submitted pursuant to 15 this subclause. 16 17 Grant of Tenure 18 19 (6) (a) On application made by the Company to 20 the Minister in such manner as the 21 Minister may determine, not later than 3 22 months after all its proposals submitted 23 pursuant to subclause (4)(a) have been 24 approved or deemed to be approved and 25 the Company has complied with the 26 provisions of subclause (4)(e), the State 27 notwithstanding the Mining Act 1978 28 shall cause to be granted to the Company: 29 30 (i) a miscellaneous licence to conduct 31 within the Railway Corridor and in 32 accordance with its approved 33 proposals all activities (including 34 the taking of stone, sand, clay and 35 gravel, the provision of temporary 36 accommodation facilities for the 37 railway workforce and, subject to 38 the Rights in Water and Irrigation 39 Act 1914 (WA), the operation of 40 water bores) necessary for the page 449 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 planning, design, construction, 2 commissioning, operation and 3 maintenance within the Railway 4 Corridor of the Railway, access 5 roads and Additional Infrastructure 6 (if any) ("the Special Railway 7 Licence") such licence to be 8 granted under and subject to, 9 except as otherwise provided in 10 this Agreement, the Mining Act 11 1978 in the form of the Second 12 Schedule hereto and subject to 13 such terms and conditions as the 14 Minister for Mines may from time 15 to time consider reasonable and at 16 a rental calculated in accordance 17 with the Mining Act 1978: 18 19 (A) prior to the Railway 20 Operation Date, as if the 21 width of the Railway 22 Corridor were 100 metres; 23 and 24 25 (B) on and from the Railway 26 Operation Date, at the 27 rentals from time to time 28 prescribed under the Mining 29 Act 1978; and 30 31 (ii) a miscellaneous licence or licences 32 to allow the construction, use and 33 maintenance of Lateral Access 34 Roads within the routes agreed for 35 those Lateral Access Roads under 36 subclause (3)(a) (each a "Lateral 37 Access Road Licence"), each such 38 licence to be granted under and 39 subject to, except as otherwise 40 provided in this Agreement, the page 450 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 Mining Act 1978 in the form of the 2 Third Schedule hereto and subject 3 to such terms and conditions as the 4 Minister for Mines may from time 5 to time consider reasonable and at 6 the rentals from time to time 7 prescribed under the Mining Act 8 1978. 9 10 (b) On application made by the Company to 11 the Minister in such manner as the 12 Minister may determine, not later than 3 13 months after its proposals submitted 14 pursuant to subclause (5)(a) for the 15 construction of Lateral Access Roads for 16 access to the Railway Corridor to 17 construct a Railway spur line have been 18 approved or deemed to be approved and 19 the Company has complied with the 20 provisions of subclause (4)(e) (as 21 applying pursuant to subclause (5)(d)), 22 the State notwithstanding the Mining Act 23 1978 shall cause to be granted to the 24 Company a miscellaneous licence or 25 licences to allow the construction, use and 26 maintenance of Lateral Access Roads 27 within the routes agreed for those Lateral 28 Access Roads under subclause (3)(a)) (as 29 applying pursuant to subclause (5)(b)) 30 (each a "Lateral Access Road Licence"), 31 each such licence to be granted under and 32 subject to, except as otherwise provided 33 in this Agreement, the Mining Act 1978 34 in the form of the Fourth Schedule hereto 35 and subject to such terms and conditions 36 as the Minister for Mines may from time 37 to time consider reasonable and at the 38 rentals from time to time prescribed under 39 the Mining Act 1978. 40 page 451 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 (c) Notwithstanding the Mining Act 1978, 2 the term of the Special Railway Licence 3 shall, subject to the sooner determination 4 thereof on the cessation or sooner 5 determination of this Agreement, be for a 6 period of 50 years commencing on the 7 date of grant thereof. 8 9 (d) Notwithstanding the Mining Act 1978, 10 the term of any Lateral Access Road 11 Licence shall, subject to the sooner 12 determination thereof on the cessation or 13 sooner determination of this Agreement, 14 be for a period of 4 years commencing on 15 the date of grant thereof. 16 17 (e) Notwithstanding the Mining Act 1978, 18 and except as required to do so by the 19 terms of the Special Railway Licence, the 20 Company shall not be entitled to 21 surrender the Special Railway Licence or 22 any Lateral Access Road Licence or any 23 part or parts of them without the prior 24 consent of the Minister. 25 26 (f) (i) The Company may in accordance 27 with approved proposals take 28 stone, sand, clay and gravel from 29 the Railway Corridor for the 30 construction, operation and 31 maintenance of the Railway 32 constructed within or approved for 33 construction within the Railway 34 Corridor. 35 36 (ii) Notwithstanding the Mining Act 37 1978 no royalty shall be payable 38 under the Mining Act in respect of 39 stone, sand, clay and gravel which 40 the Company is permitted by page 452 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 subparagraph (i) to obtain from the 2 land the subject of the Special 3 Railway Licence. 4 5 (g) For the purposes of this Agreement and 6 without limiting the operation of 7 paragraphs (a) to (f) inclusive above, the 8 application of the Mining Act 1978 and 9 the regulations made thereunder are 10 specifically modified; 11 12 (i) in section 91(1) by: 13 14 (A) deleting "the mining 15 registrar or the warden, in 16 accordance with section 42 17 (as read with section 92)" 18 and substituting "the 19 Minister"; 20 21 (B) deleting "any person" and 22 substituting "the Company 23 (as defined in the agreement 24 ratified by and scheduled to 25 the Iron Ore (Yandicoogina) 26 Agreement Act 1996, as 27 from time to time added to, 28 varied or amended)"; 29 30 (C) deleting "for any one or 31 more of the purposes 32 prescribed" and substituting 33 "for the purpose specified in 34 clause 12C(6)(a)(i), clause 35 12C(6)(a)(ii) or clause 36 12C(6)(b), of the agreement 37 ratified by and scheduled to 38 the Iron Ore (Yandicoogina) 39 Agreement Act 1996, as page 453 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 from time to time added to, 2 varied or amended"; 3 4 (ii) in section 91(3)(a), by deleting 5 "prescribed form" and substituting 6 "form required by the agreement 7 ratified by and scheduled to the 8 Iron Ore (Yandicoogina) 9 Agreement Act 1996, as from time 10 to time added to, varied or 11 amended"; 12 13 (iii) by deleting sections 91(6), 91(9), 14 91(10) and 91B; 15 16 (iv) in section 92, by deleting "Sections 17 41, 42, 44, 46, 46A, 47 and 52 18 apply," and inserting "Section 46A 19 (excluding in subsection (2)(a) "the 20 mining registrar, the warden or") 21 applies," and by deleting "in those 22 provisions" and inserting "in that 23 provision"; 24 25 (v) by deleting the full stop at the end 26 of the section 94(1) and inserting, 27 "except to the extent otherwise 28 provided in, or to the extent that 29 such terms and conditions are 30 inconsistent with, the agreement 31 ratified by and scheduled to the 32 Iron Ore (Yandicoogina) 33 Agreement Act 1996, as from time 34 to time added to, varied or 35 amended"; 36 37 (vi) by deleting sections 94(2), (3) and 38 (4); 39 page 454 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 (vii) in section 96(1), by inserting after 2 "miscellaneous licence" the words 3 "(not being a miscellaneous licence 4 granted pursuant to the agreement 5 ratified by and scheduled to the 6 Iron Ore (Yandicoogina) 7 Agreement Act 1996, as from time 8 to time added to, varied or 9 amended"; 10 11 (viii) by deleting mining regulations 12 37(2), 37(3), 42 and 42A; and 13 14 (ix) by inserting at the beginning of 15 mining regulations 41(c) and (f) 16 the words "subject to the 17 agreement ratified by and 18 scheduled to the Iron Ore 19 (Yandicoogina) Agreement Act 20 1996,, as from time to time added 21 to, varied or amended". 22 23 (h) If additional proposals are approved in 24 accordance with subclause (5) for the 25 construction of a Railway spur line 26 outside the then Railway Corridor, the 27 Minister for Mines shall include the area 28 of land within which such construction is 29 to occur in the Special Railway Licence 30 by endorsement. The area of such land 31 may be included notwithstanding that the 32 survey of the land has not been completed 33 but subject to correction to accord with 34 the survey when completed at the 35 Company's expense. 36 37 (i) If additional proposals are approved in 38 accordance with subclause (5) for the 39 construction of Train Loading 40 Infrastructure or Train Unloading page 455 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 Infrastructure outside the then Railway 2 Corridor, the Minister for Mines shall 3 include the area of such land within 4 which such infrastructure is approved for 5 construction in the Special Railway 6 Licence by endorsement. The area of 7 such land may be included 8 notwithstanding that the survey of the 9 land has not been completed but subject 10 to correction to accord with the survey 11 when completed at the Company's 12 expense. 13 14 (j) The provisions of this subclause shall not 15 operate so as to require the State to cause 16 a Special Railway Licence or a Lateral 17 Access Road Licence to be granted or any 18 land included in the Special Railway 19 Licence as mentioned above until all 20 processes necessary under any laws 21 relating to native title to enable that grant 22 or inclusion of land to proceed, have been 23 completed. 24 25 Construction and operation of Railway 26 27 (7) (a) Subject to and in accordance with 28 approved proposals, the Rail Safety Act 29 and the grant of the relevant Special 30 Railway Licence and any associated 31 Lateral Access Road Licences the 32 Company shall in a proper and 33 workmanlike manner and in accordance 34 with recognised standards for railways of 35 a similar nature operating under similar 36 conditions construct the Railway and 37 associated Additional Infrastructure and 38 access roads within the Railway Corridor 39 and shall also construct inter alia any 40 necessary sidings, crossing points, page 456 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 bridges, signalling switches and other 2 works and appurtenances and provide for 3 crossings and (where appropriate and 4 required by the Minister) grade separation 5 or other protective devices including 6 flashing lights and boom gates at places 7 where the Railway crosses or intersects 8 with major roads or existing railways. 9 10 (b) The Company shall while the holder of a 11 Special Railway Licence: 12 13 (i) keep the Railway the subject of 14 that licence in an operable state; 15 and 16 17 (ii) ensure that the Railway the subject 18 of that licence is operated in a safe 19 and proper manner in compliance 20 with all applicable laws from time 21 to time; and 22 23 (iii) without limiting subparagraph (ii) 24 ensure that the obligations imposed 25 under the Rail Safety Act on an 26 owner and an operator (as those 27 terms are therein defined) are 28 complied with in connection with 29 the Railway the subject of that 30 licence. 31 32 Nothing in this Agreement shall be 33 construed to exempt the Company or any 34 other person from compliance with the 35 Rail Safety Act or limit its application to 36 the Company's operations generally 37 (except as otherwise may be provided in 38 that Act or regulations made under it). 39 page 457 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 (c) The Company shall provide crossings for 2 livestock and also for any roads, other 3 railways, conveyors, pipelines and other 4 utilities which exist at the date of grant of 5 the relevant Special Railway Licence or 6 in respect of land subsequently included 7 in it at the date of such inclusion and the 8 Company shall on reasonable terms and 9 conditions allow such crossings for roads, 10 railways, conveyors, pipelines and other 11 utilities which may be constructed for 12 future needs and which may be required 13 to cross a Railway constructed pursuant 14 to this clause. 15 16 (d) Subject to clause 12B, the Company shall 17 at all times be the holder of Special 18 Railway Licences and Lateral Access 19 Road Licences granted pursuant to this 20 clause and (without limiting clause 26 but 21 subject to clause 12B) shall at all times 22 own manage and control the use of each 23 Railway the subject of a Special Railway 24 Licence held by the Company. 25 26 (e) The Company shall not be entitled to 27 exclusive possession of the land the 28 subject of a Special Railway Licence or 29 Lateral Access Road Licence granted 30 pursuant to this clause to the intent that 31 the State, the Minister, the Minister for 32 Mines and any persons authorised by any 33 of them from time to time shall be entitled 34 to enter upon the land or any part of it at 35 all reasonable times and on reasonable 36 notice with all necessary vehicles, plant 37 and equipment and for purposes related to 38 this Agreement or such other purposes as 39 they think fit but in doing so shall be 40 subject to the reasonable directions of the page 458 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 Company so as not to unreasonably 2 interfere with the Company's operations. 3 4 (f) The Company's ownership of a Railway 5 constructed pursuant to this clause shall 6 not give it an interest in the land 7 underlying it. 8 9 (g) The Company shall not at any time 10 without the prior consent of the Minister 11 dismantle, sell or otherwise dispose of 12 any part or parts of any Railway 13 constructed pursuant to this clause, or 14 permit this to occur, other than for the 15 purpose of maintenance, repair, upgrade 16 or renewal. 17 18 (h) The Company shall, subject to and in 19 accordance with approved proposals, in a 20 proper and workmanlike manner, 21 construct any Additional Infrastructure, 22 access roads, Lateral Access Roads and 23 other works approved for construction 24 under this clause. 25 26 (i) The Company shall while the holder of a 27 Special Railway Licence at all times keep 28 and maintain in good repair and working 29 order and condition (which obligation 30 includes, where necessary, replacing or 31 renewing all parts which are worn out or 32 in need of replacement or renewal due to 33 their age or condition) the Railway, 34 access roads and Additional Infrastructure 35 (if any) the subject of that licence and all 36 such other works installations plant 37 machinery and equipment for the time 38 being the subject of this Agreement and 39 used in connection with the operation use 40 and maintenance of that Railway, access page 459 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 roads and Additional Infrastructure (if 2 any). 3 4 (j) Subject to clause 12B, the Company 5 shall: 6 7 (i) be responsible for the cost of 8 construction and maintenance of 9 all Private Roads constructed 10 pursuant to this clause; and 11 12 (ii) at its own cost erect signposts and 13 take other steps that may be 14 reasonable in the circumstances to 15 prevent any persons and vehicles 16 (other than those engaged upon the 17 Company's activities and its 18 invitees and licensees) from using 19 the Private Roads; and 20 21 (iii) at any place where any Private 22 Roads are constructed by the 23 Company so as to cross any 24 railways or public roads provide at 25 its cost such reasonable protection 26 and signposting as may be required 27 by the Commissioner of Main 28 Roads or the Public Transport 29 Authority as the case may be. 30 31 (k) The provisions of clauses 20(3) and (4) 32 shall apply mutatis mutandis to any 33 Railway or Railway spur line constructed 34 pursuant to this clause except that the 35 Company shall not be obliged to transport 36 passengers upon any such Railway or 37 Railway spur line. 38 page 460 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 Aboriginal Heritage Act 1972 (WA) 2 3 (8) For the purposes of this clause the Aboriginal 4 Heritage Act 1972 (WA) applies as if it were 5 modified by: 6 7 (a) the insertion before the full stop at the 8 end of section 18(1) of the words: 9 10 "and the expression "the Company" 11 means the persons from time to time 12 comprising "the Company" in their 13 capacity as such under the agreement 14 ratified by and scheduled to the Iron Ore 15 (Yandicoogina) Agreement Act 1996, as 16 from time to time added to, varied or 17 amended in relation to the use or 18 proposed use of land pursuant to clause 19 12C of that agreement after and in 20 accordance with approved proposals 21 under clause 12C of that agreement and in 22 relation to the use of that land before any 23 such approval of proposals where the 24 Company has the requisite authority to 25 enter upon and so use the land"; 26 27 (b) the insertion in sections 18(2), 18(4), 28 18(5) and 18(7) of the words "or the 29 Company as the case may be" after the 30 words "owner of any land"; 31 32 (c) the insertion in section 18(3) of the words 33 "or the Company as the case may be" 34 after the words "the owner"; 35 36 (d) the insertion of the following sentences at 37 the end of section 18(3): 38 39 "In relation to a notice from the Company 40 the conditions that the Minister may page 461 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 specify can as appropriate include, among 2 other conditions, a condition restricting 3 the Company's use of the relevant land to 4 after the approval or deemed approval as 5 the case may be under the 6 abovementioned agreement of all of the 7 Company's submitted initial proposals 8 thereunder for the Railway Operation (as 9 defined in clause 12C(1) of the 10 abovementioned agreement), or in the 11 case of additional proposals submitted or 12 to be submitted by the Company to after 13 the approval or deemed approval under 14 that agreement of such additional 15 proposals, and to the extent so approved. 16 "; and 17 18 (e) the insertion in sections 18(2) and 18(5) 19 of the words "or it as the case may be" 20 after the word "he". 21 22 The Company acknowledges that nothing in this 23 subclause (8) nor the granting of any consents 24 under section 18 of the Aboriginal Heritage Act 25 1972 (WA) will constitute or is to be construed 26 as constituting the approval of any proposals 27 submitted or to be submitted by the Company 28 under this Agreement or as the grant or promise 29 of land tenure for the purposes of this 30 Agreement. 31 32 Taking of land for the purposes of this clause 33 34 (9) (a) The State is hereby empowered, as and 35 for a public work under Parts 9 and 10 of 36 the LAA, to take for the purposes of this 37 clause any land (other than any part of a 38 Port) which in the opinion of the 39 Company is necessary for the relevant 40 Railway Operation and which the page 462 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 Minister determines is appropriate to be 2 taken for the relevant Railway Operation 3 (except any land the taking of which 4 would be contrary to the provisions of a 5 Government agreement entered into 6 before the submission of the proposals 7 relating to the proposed taking) and 8 notwithstanding any other provisions of 9 that Act may license that land to the 10 Company. 11 12 (b) In applying Parts 9 and 10 of the LAA for 13 the purposes of this clause: 14 15 (i) "land" in that Act includes a legal 16 or equitable estate or interest in 17 land; 18 19 (ii) sections 170, 171, 172, 173, 174, 20 175 and 184 of that Act do not 21 apply; and 22 23 (iii) that Act applies as if it were 24 modified in section 177(2) by 25 inserting - 26 27 (A) after "railway" the 28 following - 29 "or land is being taken 30 pursuant to a Government 31 agreement as defined in 32 section 2 of the Government 33 Agreements Act 1979 34 (WA)"; and 35 (B) after "that Act" the 36 following - 37 "or that Agreement as the 38 case may be". page 463 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 2 (c) The Company shall pay to the State on 3 demand the costs of or incidental to any 4 land taken at the request of and on behalf 5 of the Company including but not limited 6 to any compensation payable to any 7 holder of native title or of native title 8 rights and interests in the land. 9 10 Notification of Railway Operation Date 11 12 (10) (a) The Company shall from the date 13 occurring 6 months before the date for 14 completion of construction of a Railway 15 specified in its time program for the 16 commencement and completion of 17 construction of that Railway submitted 18 under subclause (4)(a), keep the Minister 19 fully informed as to: 20 21 (i) the progress of that construction 22 and its likely completion and 23 commissioning; and 24 25 (ii) the likely Railway Operation Date. 26 27 (b) The Company shall on the Railway 28 Operation Date notify the Minister that 29 the first carriage of iron ore, freight goods 30 or other products as the case may be over 31 the Railway (other than for construction 32 or commissioning purposes) has occurred. 33 34 (c) The Company shall from the date 35 occurring 6 months before the date for 36 completion of construction of a Railway 37 spur line specified in its time program for 38 the commencement and completion of 39 construction of that spur line submitted page 464 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 under subclause (5)(c) keep the Minister 2 fully informed as to: 3 4 (i) the progress of that construction 5 and its likely completion and 6 commissioning; and 7 8 (ii) in respect of it, the likely Railway 9 spur line Operation Date. 10 11 (d) The Company shall on the Railway spur 12 line Operation Date in respect of any 13 Railway spur line notify the Minister that 14 the first carriage of iron ore, freight goods 15 or other products as the case may be over 16 such spur line (other than for construction 17 or commissioning purposes) has 18 occurred."; 19 (15) In clause 17 by deleting the full stop at the end of paragraph 20 (b), substituting "; and" and the following new paragraph: 21 22 "(c) for the purpose of supply to: 23 24 (i) "the Company" or "Joint Venturers" as the case 25 may be as defined in, and for the purpose of an 26 Integration Agreement, for its or their purposes 27 thereunder; 28 29 (ii) the holders from time to time of a Mining Act 30 1978 mining lease located in, or proximate to, 31 the Pilbara region of the said State which is 32 held by a Related Entity alone or with a third 33 party or parties (excluding any mining lease 34 granted pursuant to, or held under, a 35 Government agreement) for the purpose of 36 their iron ore mining operations on that mining 37 lease; and 38 39 (iii) with the prior approval of the Minister, "the 40 Company" or "the Joint Venturers" as the case page 465 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 may be as defined in, and for the purpose of, 2 aGovernment agreement (excluding an 3 Integration Agreement) for the mining of iron 4 ore in, or proximate to, the Pilbara region of 5 the said State for the purpose of its or their 6 operations under that agreement, 7 8 and to the extent determined by the Minister generate 9 transmit and supply electricity."; 10 (16) deleting clause 20(5); 11 (17) by inserting after subclause (2) of clause 21 the following 12 new subclause: 13 "(2a) The provisions of subclause (1) of this clause shall not 14 operate to require the State to grant or vary, or cause to 15 be granted or varied, any lease licence or other right or 16 title until all processes required by laws relating to 17 native title to enable that grant or variation to proceed, 18 have been completed."; 19 (18) by deleting subclause (7) of clause 23 and substituting the 20 following new subclause: 21 22 "(7) For the purposes of subclause (6) "alternate project" 23 means: 24 25 (a) a project to establish and operate within the said 26 State plant for the production of metallised 27 agglomerates; 28 29 (b) a project to establish and operate within the said 30 State plant which processes and adds value to 31 minerals mined in the said State; or 32 33 (c) any other project within the said State which the 34 Minister approves as providing as equivalent 35 benefits to the State to a project to establish and 36 operate within the said State plant for the 37 production of metallised agglomerates, page 466 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 2 to be undertaken by: 3 4 (d) the Company (excluding a project referred to in 5 paragraph (a)): or 6 7 (e) a related body corporate or related bodies 8 corporate (within the meaning of the 9 Corporations Act 2001 (Cwth) of the Company 10 solely or in conjunction with the Company; or 11 12 (f) a joint venture in which the Company or its 13 related body corporate has a majority 14 participating interest; or 15 (g) any other third person or persons which the 16 Company and the Minister accept as having the 17 requisite financial and technical capacity and 18 expertise to undertake solely, or in conjunction 19 with the Company, the relevant project referred 20 to in paragraph (a), (b) or (c)."; 21 (19) by inserting the following sentence at the end of clause 31: 22 23 "As a separate independent indemnity the Company will 24 indemnify and keep indemnified the State and its servants 25 agents and contractors in respect of all actions suits claims 26 demands or costs of third parties arising out of or in 27 connection with any use, making available for use or other 28 activities of the Company as referred to in clause 12A."; 29 (20) in clause 32(3)(a) by inserting "or held pursuant to this 30 Agreement" after "under or pursuant to this Agreement"; 31 (21) in clause 33(1) by inserting "or held pursuant hereto" after 32 "under or pursuant to this Agreement"; 33 (22) in clause 38(1)(a)(i) by inserting "granted under or pursuant 34 to this Agreement or held pursuant to this Agreement" after 35 "easement or other title"; page 467 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 (23) in clause 38(4) by deleting "occupied by the Company" and 2 substituting "the subject of any lease licence on other title 3 granted under or pursuant to this Agreement or held pursuant 4 to the Agreement"; 5 (24) in clause 39(1)(a) by inserting "or held pursuant hereto" after 6 "granted hereunder or pursuant hereto"; 7 (25) in clause 39(2) by inserting "or held pursuant hereto" after 8 made under or pursuant to this Agreement"; and 9 (25) by inserting after the Schedule the following new schedules: 10 11 page 468 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 " SECOND SCHEDULE 2 3 WESTERN AUSTRALIA 4 5 IRON ORE (YANDICOOGINA) AGREEMENT ACT 1996 6 7 MINING ACT 1978 8 9 MISCELLANEOUS LICENCE FOR A RAILWAY AND OTHER 10 PURPOSES 11 12 13 No. MISCELLANEOUS LICENCE [ ] 14 15 WHEREAS by the Agreement (hereinafter called "the Agreement") ratified by 16 and scheduled to the Iron Ore (Yandicoogina) Agreement Act 1996, as from 17 time to time added to, varied or amended, the State agreed to grant to [ ] 18 (hereinafter with its successors and permitted assigns called "the Company") a 19 miscellaneous licence for the construction operation and maintenance of a 20 Railway (as defined in clause 12C(1) of the Agreement and otherwise as 21 provided in the Agreement) and, if applicable, other purposes AND WHEREAS 22 the Company pursuant to clause 12C(6)(a) of the Agreement has made 23 application for the said licence; 24 25 NOW in consideration of the rents reserved by and the provisions of the 26 Agreement and in pursuance of the Iron Ore (Yandicoogina) Agreement Act 27 1996, as from time to time added to, varied or amended, the Company is hereby 28 granted by this licence authority to conduct on the land the subject of this 29 licence as more particularly delineated and described from time to time in the 30 Schedule hereto all activities (including the taking of stone, sand, clay and 31 gravel, the provision of temporary accommodation facilities for the railway 32 workforce in accordance with the Agreement and, subject to the Rights in Water 33 and Irrigation Act 1914 (WA), the operation of water bores) necessary for the 34 planning, design, construction, commissioning, operation and maintenance on 35 the land the subject of this licence of the Railway and Additional Infrastructure 36 (as defined in clause 12C(1) of the Agreement) and access roads to be located 37 on the land the subject of this licence in accordance with the provisions of the 38 Agreement and proposals approved under the Agreement, for the term of 50 39 years from the date hereof (subject to the sooner determination of the term upon 40 the determination of the Agreement) and upon and subject to the terms page 469 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 covenants and conditions set out in the Agreement and the Mining Act 1978 as 2 it applies to this licence, and any amendments to the Agreement and the Mining 3 Act 1978 from time to time and to the terms and conditions (if any) now or 4 hereafter endorsed hereon and the payment of rentals in respect of this licence 5 in accordance with clause 12C(6)(a)(i) of the Agreement PROVIDED 6 ALWAYS that this licence shall not be determined or forfeited otherwise than 7 in accordance with the Agreement. 8 9 In this licence: 10 11 - If the Company be more than one the liability of the Company 12 hereunder shall be joint and several. 13 14 - Reference to an Act includes all amendments to that Act for the time 15 being in force and also any Act passed in substitution therefore or in 16 lieu thereof and to the regulations and by-laws of the time being in 17 force thereunder. 18 19 - Reference to "the Agreement" means such agreement as from time to 20 time added to, varied or amended. 21 22 - The terms "approved proposals", "Railway", "Railway Operation 23 Date", and "Railway spur line" have the meanings given in the 24 Agreement. 25 26 ENDORSEMENTS AND CONDITIONS 27 28 Endorsements 29 30 1. This licence is granted in accordance with proposals submitted on 31 [ ], and approved by the Minister (as defined in the Agreement) on 32 [ ], under the Agreement. 33 34 2. The Company is permitted to, in accordance with approved proposals, 35 take stone, sand, clay and gravel from the land the subject of this 36 licence for the construction, operation and maintenance of the Railway 37 (including any Railway spur line) constructed within or approved for 38 construction within the area of land the subject of this licence. 39 page 470 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 3. Notwithstanding the Mining Act 1978, no royalty shall be payable 2 under the Mining Act 1978 in respect of stone, sand, clay and gravel 3 which the Company is permitted by the Agreement to obtain from the 4 land the subject of this licence. 5 6 4. [Any further endorsement which the Minister for Mines may, 7 consistent with the provisions of the Agreement, determines and 8 thereafter impose in respect of this licence including during the term 9 of the Agreement.] 10 11 Conditions 12 13 1. (a) Except as provided in paragraph (b), the Company shall 14 within 2 years after the Railway Operation Date surrender in 15 accordance with the provisions of the Mining Act 1978 the 16 area of this licence down to a maximum of 100 metres width 17 or as otherwise approved by the Minister (as defined in the 18 Agreement) for the safe operation of the Railway then 19 constructed or approved for construction under approved 20 proposals. 21 22 (b) Paragraph (a) shall not apply to land the subject of this 23 licence that was included in this licence pursuant to clause 24 12C(6)(h) or clause 12C(6)(i) of the Agreement. 25 26 2. The Company shall as soon as possible after the construction of a 27 Railway spur line or of an expansion or extension thereof as the case 28 may be surrender in accordance with the Mining Act 1978 the land 29 the subject of this licence that was included in this licence pursuant 30 to clause 12C(6)(h) of the Agreement for the purpose of such 31 construction down to a maximum of 100 metres in width or as 32 otherwise approved by the Minister (as defined in the Agreement) for 33 the safe operation of that Railway spur line or expansion or extension 34 thereof as the case may be then constructed or approved for 35 construction under approved proposals. 36 37 3. [Any further conditions which the Minister for Mines may, consistent 38 with the provisions of the Agreement, determines and thereafter 39 impose in respect of this licence including during the term of the 40 Agreement.] page 471 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 2 SCHEDULE 3 4 Land description 5 6 Locality: 7 Mineral Field 8 Area: 9 10 DATED at Perth this day of . 11 12 MINISTER FOR MINES 13 14 page 472 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 THIRD SCHEDULE 2 3 WESTERN AUSTRALIA 4 5 IRON ORE (YANDICOOGINA) AGREEMENT ACT 1996 6 7 MINING ACT 1978 8 9 MISCELLANEOUS LICENCE FOR A LATERAL ACCESS ROAD 10 11 12 No. MISCELLANEOUS LICENCE [ ] 13 14 WHEREAS by the Agreement (hereinafter called "the Agreement") ratified by 15 and scheduled to the Iron Ore (Yandicoogina) Agreement Act 1996, as from 16 time to time added to, varied or amended, the State agreed to grant to [ ] 17 (hereinafter with its successors and permitted assigns called "the Company") a 18 miscellaneous licence for the construction use and maintenance of a Lateral 19 Access Road (as defined in the Agreement) AND WHEREAS the Company 20 pursuant to clause 12C(6)(a)(ii) of the Agreement has made application for the 21 said licence; 22 23 NOW in consideration of the rents reserved by and the provisions of the 24 Agreement and in pursuance of the Iron Ore (Yandicoogina) Agreement Act 25 1996, as from time to time added to, varied or amended, the Company is hereby 26 authorised to construct use and maintain a road on the land more particularly 27 delineated and described from time to time in the Schedule hereto in accordance 28 with the provisions of the Agreement and proposals approved under the 29 Agreement for a term of 4 years commencing on the date hereof (subject to the 30 sooner determination of the term upon the cessation or determination of the 31 Agreement) and for the purposes and upon and subject to the terms covenants 32 and conditions set out in the Agreement and the Mining Act 1978 as it applies to 33 this licence, and any amendments to the Agreement and the Mining Act 1978 34 from time to time and to the terms and conditions (if any) now or hereafter 35 endorsed hereon and the payment of rentals in respect of this licence in 36 accordance with clause 12C(6)(a)(ii) of the Agreement PROVIDED ALWAYS 37 that this licence shall not be determined or forfeited otherwise than in 38 accordance with the Agreement. 39 page 473 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 In this licence: 2 3 - If the Company be more than one the liability of the Company 4 hereunder shall be joint and several. 5 6 - Reference to an Act includes all amendments to that Act for the time 7 being in force and also any Act passed in substitution therefore or in 8 lieu thereof and to the regulations and by-laws of the time being in 9 force thereunder. 10 11 - Reference to "the Agreement" means such agreement as from time to 12 time added to, varied or amended. 13 14 ENDORSEMENTS AND CONDITIONS 15 16 Endorsements 17 18 1. This licence is granted in accordance with proposals submitted on 19 [ ], and approved by the Minister (as defined in the Agreement) on 20 [ ], under the Agreement. 21 22 2. [Any further endorsement which the Minister for Mines may, 23 consistent with the provisions of the Agreement, determines and 24 thereafter impose in respect of this licence including during the term 25 of the Agreement.] 26 27 Conditions 28 29 [Such conditions which the Minister for Mines may, consistent with the 30 provisions of the Agreement, determines and thereafter impose in respect of the 31 licence, including during the term of the Agreement.] 32 33 page 474 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 SCHEDULE 2 3 Description of land 4 5 Locality: 6 Mineral Field: 7 Area: 8 9 DATED at Perth this day of . 10 11 MINISTER FOR MINES 12 13 14 15 page 475 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 FOURTH SCHEDULE 2 3 WESTERN AUSTRALIA 4 5 IRON ORE (YANDICOOGINA) AGREEMENT ACT 1996 6 7 MINING ACT 1978 8 9 MISCELLANEOUS LICENCE FOR A LATERAL ACCESS ROAD 10 11 12 No. MISCELLANEOUS LICENCE [ ] 13 14 WHEREAS by the Agreement (hereinafter called "the Agreement") ratified by 15 and scheduled tithe Iron Ore (Yandicoogina) Agreement Act 1996, as from time 16 to time added to, varied or amended, the State agreed to grant to [ ] 17 (hereinafter with its successors and permitted assigns called "the Company") a 18 miscellaneous licence for the construction use and maintenance of a Lateral 19 Access Road (as defined in the Agreement) AND WHEREAS the Company 20 pursuant to clause 12C(6)(b) of the Agreement has made application for the said 21 licence; 22 23 NOW in consideration of the rents reserved by and the provisions of the 24 Agreement and in pursuance of the Iron Ore (Yandicoogina) Agreement Act 25 1996, as from time to time added to, varied or amended, the Company is hereby 26 authorised to construct use and maintain a road on the land more particularly 27 delineated and described from time to time in the Schedule hereto in accordance 28 with the provisions of the Agreement and proposals approved under the 29 Agreement for a term of 4 years commencing on the date hereof (subject to the 30 sooner determination of the term upon the cessation or determination of the 31 Agreement) and for the purposes and upon and subject to the terms covenants 32 and conditions set out in the Agreement and the Mining Act 1978 as it applies to 33 this licence, and any amendments to the Agreement and the Mining Act 1978 34 from time to time and to the terms and conditions (if any) now or hereafter 35 endorsed hereon and the payment of rentals in respect of this licence in 36 accordance with clause 12C(6)(b) of the Agreement PROVIDED ALWAYS 37 that this licence shall not be determined or forfeited otherwise than in 38 accordance with the Agreement. 39 page 476 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 In this licence: 2 3 - If the Company be more than one the liability of the Company 4 hereunder shall be joint and several. 5 6 - Reference to an Act includes all amendments to that Act for the time 7 being in force and also any Act passed in substitution therefore or in 8 lieu thereof and to the regulations and by-laws of the time being in 9 force thereunder. 10 11 - Reference to "the Agreement" means such agreement as from time to 12 time added to, varied or amended. 13 14 ENDORSEMENTS AND CONDITIONS 15 16 Endorsements 17 18 1. This licence is granted in accordance with proposals submitted on 19 [ ], and approved by the Minister (as defined in the Agreement) on 20 [ ], under the Agreement. 21 22 2. [Any further endorsement which the Minister for Mines may, 23 consistent with the provisions of the Agreement, determines and 24 thereafter impose in respect of this licence including during the term 25 of the Agreement.] 26 27 Conditions 28 29 [Such conditions which the Minister for Mines may, consistent with the 30 provisions of the Agreement, determines and thereafter impose in respect of the 31 licence, including during the term of the Agreement.] 32 33 page 477 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 6 Iron Ore (Yandicoogina) Agreement Act 1996 amended s. 25 1 SCHEDULE 2 3 Description of land 4 5 Locality: 6 Mineral Field: 7 Area: 8 9 DATED at Perth this day of . 10 11 MINISTER FOR MINES ." 12 13 14 15 5. Hamersley confirms that its guarantee in favour of the State as contained 16 in clause 43 of the Principal Agreement shall continue notwithstanding 17 the abovementioned variations to the Principal Agreement. 18 19 20 21 page 478 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Yandicoogina) Agreement Act 1996 amended Part 6 s. 25 1 EXECUTED as a deed. 2 3 SIGNED by THE HONOURABLE ) 4 COLIN JAMES BARNETT ) [Signature] 5 in the presence of: ) 6 [Signature] STEPHEN WOOD 7 8 9 THE COMMON SEAL of HAMERSLEY ) IRON-YANDI PTY. LIMITED ACN 009 ) 181 793 was hereunto affixed by authority ) [C.S.] of the Directors in the presence of: ) 10 11 [Signature] ALAN DAVIES Director 12 [Signature] HELEN FERNIHOUGH Secretary 13 14 15 THE COMMON SEAL of ) HAMERSLEY IRON PTY. LIMITED ) ACN 004 558 276 was hereunto affixed by ) [C.S.] authority of the Directors in the presence of: ) 16 17 [Signature] ALAN DAVIES Director 18 [Signature] HELEN FERNIHOUGH Secretary 19 page 479 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 26 1 Part 7 -- Iron Ore (Mount Newman) Agreement 2 Act 1964 amended 3 26. Act amended 4 This Part amends the Iron Ore (Mount Newman) Agreement 5 Act 1964. 6 27. Section 2 amended 7 (1) In section 2 insert in alphabetical order: 8 9 the Sixth Variation Agreement means the agreement a 10 copy of which is set out in the Seventh Schedule; 11 12 (2) In section 2 in the definition of the Agreement delete 13 "Agreement and the Second Variation Agreement;" and insert: 14 15 Agreement, the Second Variation Agreement, the Third 16 Variation Agreement, the Fourth Variation Agreement, 17 the Fifth Variation Agreement, the Iron Ore 18 Agreements Legislation Amendment Act 2010 Part 8 19 and the Sixth Variation Agreement; 20 21 28. Sections 4B and 4C inserted 22 After section 4A insert: 23 24 4B. Sixth Variation Agreement 25 (1) The Sixth Variation Agreement is ratified. 26 (2) The implementation of the Sixth Variation Agreement 27 is authorised. 28 (3) Without limiting or otherwise affecting the application 29 of the Government Agreements Act 1979, the Sixth page 480 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 Variation Agreement is to operate and take effect 2 despite any other Act or law. 3 4C. State empowered under clause 9E(9)(a) 4 The State has power in accordance with 5 clause 9E(9)(a) of the Agreement. 6 7 29. Seventh Schedule inserted 8 After the Sixth Schedule insert: page 481 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 Seventh Schedule -- Sixth Variation Agreement 2 [s. 2] 3 2010 4 5 6 7 THE HONOURABLE COLIN JAMES BARNETT 8 PREMIER OF THE STATE OF WESTERN AUSTRALIA 9 10 AND 11 12 BHP BILLITON MINERALS PTY. LTD. 13 ACN 008 694 782 14 15 MITSUI-ITOCHU IRON PTY. LTD. 16 ACN 008 702 761 17 18 ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY. LTD. 19 ACN 009 256 259 20 21 22 23 24 25 IRON ORE (MOUNT NEWMAN) AGREEMENT 1964 26 27 RATIFIED VARIATION AGREEMENT 28 29 30 31 32 [Solicitor's details] 33 34 35 36 37 38 39 page 482 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 THIS AGREEMENT is made this 17th day of November 2010 2 3 4 BETWEEN 5 6 7 THE HONOURABLE COLIN JAMES BARNETT MLA., Premier of the 8 State of Western Australia acting for and on behalf of the said State and 9 instrumentalities thereof from time to time (State) 10 11 AND 12 13 BHP BILLITON MINERALS PTY. LTD. ACN 008 694 782 of Level 17, St 14 Georges Square, 225 St Georges Terrace, Perth, Western Australia, MITSUI- 15 ITOCHU IRON PTY. LTD. ACN 008 702 761 of Level 16, Exchange Plaza, 16 2 The Esplanade, Perth, Western Australia and ITOCHU MINERALS & 17 ENERGY OF AUSTRALIA PTY. LTD. ACN 009 256 259 of Level 22, 221 18 St Georges Terrace, Perth, Western Australia (Joint Venturers). 19 20 21 RECITALS 22 23 A. The State and the Joint Venturers are now the parties to the agreement 24 dated 26 August 1964 approved by and scheduled to the Iron Ore (Mount 25 Newman) Agreement Act 1964 and as subsequently added to, varied or 26 amended is referred to in this Agreement as the "Principal Agreement". 27 28 B. The State and the Joint Venturers wish to vary the Principal Agreement. 29 30 31 THE PARTIES AGREE AS FOLLOWS: 32 33 1. Subject to the context, the words and expressions used in this Agreement 34 have the same meanings respectively as they have in and for the purpose 35 of the Principal Agreement. 36 2. The State shall sponsor a Bill in the Parliament of Western Australia to 37 ratify this Agreement and shall endeavour to secure its passage as an Act 38 prior to 31 December 2010 or such later date as the parties may agree. page 483 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 3. (a) Clause 4 does not come into operation unless or until an Act 2 passed in accordance with clause 2 ratifies this Agreement. 3 (b) If by 30 June 2011, or such later date as may be agreed pursuant 4 to clause 2, clause 4 has not come into operation then unless the 5 parties hereto otherwise agree this Agreement shall cease and 6 determine and neither party shall have any claim against the other 7 party with respect to any matter or thing arising out or done or 8 performed or omitted to be done or performed under this 9 Agreement. 10 4. The Principal Agreement is varied as follows: 11 (1) in clause 1: 12 (a) by deleting the existing definitions of "beneficiated ore", 13 "deemed f.o.b. value", "fine ore" and "lump ore"; 14 (b) by inserting in the appropriate alphabetical positions the 15 following new definitions: 16 17 "approved proposal" means a proposal approved or 18 determined under this Agreement; 19 "beneficiated ore" means iron ore that has been concentrated 20 or upgraded (otherwise than solely by crushing, screening, 21 separating by hydrocycloning or a similar technology which 22 uses primarily size as a criterion, washing, scrubbing, 23 trommelling or drying or by a combination of 2 or more of 24 those processes) by the Company in a plant constructed 25 pursuant to a proposal approved pursuant to an Integration 26 Agreement or in such other plant as is approved by the 27 Minister after consultation with the Minister for Mines and 28 "beneficiation" and "beneficiate" have corresponding 29 meanings; 30 31 "deemed f.o.b. value" means an agreed or determined value 32 of the iron ore as if the iron ore was sold f.o.b. at the 33 deemed f.o.b. point as at: 34 page 484 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 (a) in the case of iron ore the property of the Company 2 which is shipped out of the said State, the date of 3 shipment; and 4 5 (b) in any other case, the date of sale, transfer of 6 ownership, disposal or use as the case may be; 7 "fine ore" means iron ore (not being beneficiated ore) which 8 is screened and will pass through a 6.3 millimetre mesh 9 screen; 10 11 "Government agreement" has the meaning given in the 12 Government Agreements Act 1979 (WA); 13 14 "Integration Agreement" means: 15 16 (a) the agreement approved by and scheduled to the Iron 17 Ore (Hamersley Range) Agreement Act 1963, as from 18 time to time added to, varied or amended; or 19 20 (b) the agreement approved by and scheduled to the Iron 21 Ore (Robe River) Agreement Act 1964, as from time 22 to time added to, varied or amended; or 23 24 (c) the agreement approved by and scheduled to the Iron 25 Ore (Hamersley Range) Agreement Act Amendment 26 Act 1968, as from time to time added to, varied or 27 amended; or 28 29 (d) the agreement ratified by and scheduled to the Iron 30 Ore (Mount Bruce) Agreement Act 1972, as from time 31 to time added to, varied or amended; or 32 33 (e) the agreement ratified by and scheduled to the Iron 34 Ore (Hope Downs) Agreement Act 1992, as from time 35 to time added to, varied or amended; or 36 37 (f) the agreement ratified by and scheduled to the Iron 38 Ore (Yandicoogina) Agreement Act 1996, as from 39 time to time added to, varied or amended; or page 485 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 2 (g) the agreement approved by and scheduled to the Iron 3 Ore (Mount Newman) Agreement Act 1964, as from 4 time to time added to, varied or amended; or 5 6 (h) the agreement approved by and scheduled to the Iron 7 Ore (Mount Goldsworthy) Agreement Act 1964, as 8 from time to time added to, varied or amended; or 9 10 (i) the agreement ratified by and scheduled to the Iron 11 Ore (Goldsworthy-Nimingarra) Agreement Act 1972, 12 as from time to time added to, varied or amended; or 13 14 (j) the agreement authorised by and as scheduled to the 15 Iron Ore (McCamey's Monster) Agreement 16 Authorisation Act 1972, as from time to time added 17 to, varied or amended; or 18 19 (k) the agreement ratified by and scheduled to the Iron 20 Ore (Marillana Creek) Agreement Act 1991, as from 21 time to time added to, varied or amended; 22 23 "Integration Proponent" means in relation to an Integration 24 Agreement, "the Company" or "the Joint Venturers" as the 25 case may be as defined in, and for the purpose of, that 26 Integration Agreement; 27 28 "laws relating to native title" means laws applicable from 29 time to time in the said State in respect of native title and 30 includes the Native Title Act 1993 (Commonwealth); 31 32 "loading port" means: 33 34 (a) the Port of Dampier; or 35 36 (b) Port Walcott; or 37 38 (c) the Port of Port Hedland; or 39 page 486 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 (d) any other port constructed after the variation date 2 under an Integration Agreement; or 3 4 (e) such other port approved by the Minister at the 5 request of the Company from time to time for the 6 shipment of iron ore from the mineral lease; 7 8 "lump ore" means iron ore (not being beneficiated ore) 9 which is screened and will not pass through a 6.3 millimetre 10 mesh screen; 11 "McCamey's Mineral Lease" has the same meaning as that 12 given to the expression "mineral lease" in the McCamey's 13 Monster Agreement; 14 "McCamey's Monster Agreement" means the agreement 15 authorised by and as scheduled to the Iron Ore (McCamey's 16 Monster) Agreement Authorisation Act 1972 as 17 subsequently from time to time added to, varied or 18 amended; 19 "Mining Act 1978" means the Mining Act 1978 (WA); 20 "Minister for Mines" means the Minister in the Government 21 of the said State for the time being responsible (under 22 whatsoever title) for the administration of the Mining Act 23 and the Mining Act 1978; 24 "Related Entity" means a company in which: 25 26 (a) as at 21 June 2010; and 27 28 (b) after 21 June 2010, with the approval of the Minister, 29 30 a direct or (through a subsidiary or subsidiaries within the 31 meaning of the Corporations Act 2001 (Commonwealth)) 32 indirect shareholding of 20% or more is held by: 33 34 (c) Rio Tinto Limited ABN 96 004 458 404; or 35 page 487 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 (d) BHP Billiton Limited ABN 49 004 028 077; or 2 3 (e) those companies referred to in paragraphs (c) and (d) 4 in aggregate; 5 6 "variation date" means the date on which clause 4 of the 7 variation agreement made on or about 17 November 2010 8 between the State and the Company comes into operation; 9 10 (c) in the definition of "agreed or determined" by: 11 12 (a) inserting "(following, if requested by the Company, 13 consultation with the Company and its consultants in 14 regard thereto)" after "determined by the Minister"; 15 16 (b) deleting "assessed at" and substituting "assessed on"; 17 and 18 19 (c) deleting all the words after "shall have regard to" and 20 substituting: 21 22 "(i) in the case of iron ore initially sold at cost 23 pursuant to paragraph (B) of the proviso to 24 clause 9(2)(e), the prices for that type of iron 25 ore prevailing at the time the price for such 26 iron ore was agreed between the arm's length 27 purchaser referred to in paragraph (B)(iii) of 28 that proviso and the seller in relation to the 29 type of sale and the relevant international 30 seaborne iron ore market into which such iron 31 ore was sold and where prices beyond the 32 deemed f.o.b. point are being considered the 33 deductions mentioned in the definition of f.o.b. 34 value; and 35 36 (ii) in any other case, the prices for that type of 37 iron ore prevailing at the time the price for 38 such iron ore was agreed between the 39 Company and the purchaser in relation to the 40 type of sale and the market into which such page 488 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 iron ore was sold and where prices beyond the 2 deemed f.o.b. point are being considered the 3 deductions mentioned in the definition of f.o.b. 4 value;" 5 6 (d) in the definition of "Company's wharf" by inserting "and in 7 clauses 9(2)(e) and (f) also any additional wharf constructed 8 by the Company pursuant to this Agreement" before the 9 semi colon; 10 11 (e) in the definition of "deemed f.o.b. point" by deleting 12 "Company's wharf" and substituting "relevant loading port"; 13 14 (f) in the definition of "f.o.b. value" by: 15 16 (i) in paragraph (i): 17 18 (A) inserting "subject to paragraph (ii)," before "in 19 the case of"; 20 21 (B) deleting "assessed at" and substituting 22 "assessed on"; and 23 24 (C) deleting the 2 references to "Company's wharf 25 or other wharf approved by the Minister under 26 clause 9(2)(e) as the case may be" and 27 substituting "relevant loading port"; 28 29 (ii) renumbering paragraph (ii) as paragraph (iii); and 30 31 (iii) inserting after paragraph (i) the following new 32 paragraph: 33 34 "(ii) in the case of iron ore initially sold at cost 35 pursuant to paragraph (B) of the proviso to 36 clause 9(2)(e), the price which is payable for 37 the iron ore by the arm's length purchaser as 38 referred to in paragraph (B)(iii) of that proviso 39 or, where the Minister considers, following 40 advice from the appropriate Government page 489 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 department, that the price payable in respect of 2 the iron ore does not represent a fair and 3 reasonable market value for that type of iron 4 ore assessed on an arm's length basis in the 5 relevant international seaborne iron ore market, 6 such amount as is agreed or determined as 7 representing such a fair and reasonable market 8 value, less all duties, taxes, costs and charges 9 referred to in paragraph (i) above;"; 10 11 (g) in the definition of "iron ore" by inserting ", without 12 limitation," after "includes"; 13 14 (h) in the definition of "mineral lease" by deleting "Clause 9A" 15 and substituting "clauses 9A or 9B"; 16 17 (i) in the definition of "secondary processing" by deleting 18 "concentration or other beneficiation of iron ore other than 19 by crushing or screening" and substituting "beneficiation of 20 iron ore"; 21 22 (j) in the sentence beginning "marginal notes" by inserting "and 23 clause headings after "marginal notes"; and 24 25 (k) by inserting at the end of clause 1 the following new 26 paragraphs: 27 28 "Words in the singular shall include the plural and words in 29 the plural shall include the singular according to the 30 requirements of the context. 31 32 Nothing in this Agreement shall be construed: 33 34 (a) to exempt the Company from compliance with any 35 requirement in connection with the protection of the 36 environment arising out of or incidental to its 37 activities under this Agreement that may be made by 38 or under the EP Act; or 39 page 490 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 (b) to exempt the State or the Company from compliance 2 with or to require the State or the Company to do 3 anything contrary to any laws relating to native title 4 or any lawful obligation or requirement imposed on 5 the State or the Company as the case may be pursuant 6 to any laws relating to native title; or 7 8 (c) to exempt the Company from compliance with the 9 provisions of the Aboriginal Heritage Act 1972 10 (WA)."; 11 12 (2) in clause 6A: 13 14 (a) by inserting in its heading "for townsites" after "Additional 15 Proposals"; and 16 17 (b) by deleting subclauses (2) and (3) and substituting the 18 following new subclause: 19 20 "(2) The provisions of clauses 7A(2) to (5) and 7B shall 21 apply mutatis mutandis to proposals submitted 22 pursuant to subclause (1)."; 23 24 (3) by inserting after clause 7 the following new clauses: 25 26 "Additional Proposals 27 28 7A. (1) If the Company, at any time during the continuance of 29 this Agreement after the variation date, desires to 30 significantly modify, expand or otherwise vary its 31 activities carried on pursuant to this Agreement (other 32 than under clauses 6A, 9A or 9E) beyond those 33 activities specified in any proposals approved 34 pursuant to clause 6 it shall give notice of such desire 35 to the Minister and within 2 months thereafter shall 36 submit to the Minister detailed proposals in respect of 37 all matters covered by such notice and such of the 38 other matters mentioned in clause 5(2)(a) as the 39 Minister may require. 40 page 491 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 (2) A proposal may with the consent of the Minister 2 (except in relation to an Integration Agreement) and 3 that of any parties concerned (being in respect of an 4 Integration Agreement the Integration Proponent for 5 that agreement) provide for the use by the Company 6 of any works installations or facilities constructed or 7 established under a Government agreement. 8 9 (3) Each of the proposals pursuant to subclause (1) may 10 with the approval of the Minister, or shall if so 11 required by the Minister, be submitted separately and 12 in any order as to any matter or matters in respect of 13 which such proposals are required to be submitted. 14 15 (4) At the time when the Company submits the said 16 proposals it shall submit to the Minister details of any 17 services (including any elements of the project 18 investigations, design and management) and any 19 works materials, plant, equipment and supplies that it 20 proposes to consider obtaining from or having carried 21 out or permitting to be obtained from or carried out 22 outside Australia together with its reasons therefor 23 and shall, if required by the Minister, consult with the 24 Minister with respect thereto. 25 26 (5) The Company may withdraw its proposals pursuant to 27 subclause (1) at any time before approval thereof, or 28 where any decision in respect thereof is referred to 29 arbitration as referred to in clause 7B, within 3 30 months after the award by notice to the Minister that 31 it shall not be proceeding with the same. 32 33 Consideration of Company's proposals under clause 7A 34 35 7B. (1) In respect of each proposal pursuant to subclause (1) 36 of clause 7A the Minister shall: 37 38 (a) subject to the limitations set out below, refuse 39 to approve the proposal (whether it requests the 40 grant of tenure or not) if the Minister is page 492 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 satisfied on reasonable grounds that it is not in 2 the public interest for the proposal to be 3 approved; or 4 5 (b) approve of the proposal without qualification or 6 reservation; or 7 8 (c) defer consideration of or decision upon the 9 same until such time as the Company submits a 10 further proposal or proposals in respect of some 11 other of the matters mentioned in clause 7A(1) 12 not covered by the said proposal; or 13 14 (d) require as a condition precedent to the giving of 15 his approval to the said proposal that the 16 Company make such alteration thereto or 17 comply with such conditions in respect thereto 18 as he thinks reasonable, and in such a case the 19 Minister shall disclose his reasons for such 20 conditions, 21 22 PROVIDED ALWAYS that where implementation of 23 any proposals hereunder has been approved pursuant 24 to the EP Act subject to conditions or procedures, any 25 approval or decision of the Minister under this clause 26 shall if the case so requires incorporate a requirement 27 that the Company make such alterations to the 28 proposals as may be necessary to make them accord 29 with those conditions or procedures. 30 31 In considering whether to refuse to approve a 32 proposal the Minister is to assess whether or not the 33 implementation of the proposal by itself, or together 34 with any one or more of the other submitted 35 proposals, will: 36 37 (i) detrimentally affect economic and orderly 38 development in the said State, including 39 without limitation, infrastructure development 40 in the said State; or page 493 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 2 (ii) be contrary to or inconsistent with the planning 3 and development policies and objectives of the 4 State; or 5 6 (iii) detrimentally affect the rights and interests of 7 third parties; or 8 9 (iv) detrimentally affect access to and use by others 10 of the lands the subject of any grant or 11 proposed grant to the Company. 12 13 The right to refuse to approve a proposal conferred 14 by paragraph (a) may only be exercised in respect of 15 a proposal where the Minister is satisfied on 16 reasonable grounds that a purpose of the proposal is 17 the integrated use of works installations or facilities 18 (as defined in subclause (7) of clause 9C for the 19 purpose of that clause) as contemplated by clause 20 9C. It may not be so exercised in respect of a 21 proposal if pursuant to clause 7C(5) the Minister, 22 prior to the submission of the proposal, advised the 23 Company in writing that the Minister has no public 24 interest concerns (as defined in that clause) with the 25 single preferred development (as referred to in 26 clause 7C(5)(a)) the subject of the submitted 27 proposals and those proposals are consistent (as to 28 their substantive scope and content) with the 29 information provided to the Minister pursuant to 30 clause 7C(5) in respect of that single preferred 31 development. 32 33 (2) The Minister shall within 2 months after receipt of 34 proposals pursuant to clause 7A(1) give notice to the 35 Company of his decision in respect to the proposals, 36 PROVIDED THAT where a proposal is to be 37 assessed under Part IV of the EP Act the Minister 38 shall only give notice to the Company of his decision 39 in respect to the proposal within 2 months after page 494 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 service on him of an authority under section 45(7) of 2 the EP Act. 3 4 (3) If the decision of the Minister is as mentioned in 5 either of paragraphs (a), (c) or (d) of subclause (1) the 6 Minister shall afford the Company full opportunity to 7 consult with him and should it so desire to submit 8 new or revised proposals either generally or in respect 9 to some particular matter. 10 11 (4) If the decision of the Minister is as mentioned in 12 either of paragraphs (c) or (d) of subclause (1) and the 13 Company considers that the decision is unreasonable 14 the Company within 2 months after receipt of the 15 notice mentioned in subclause (2) may elect to refer 16 to arbitration in the manner hereinafter provided the 17 question of the reasonableness of the decision 18 PROVIDED THAT any requirement of the Minister 19 pursuant to the proviso to subclause (1) shall not be 20 referable to arbitration hereunder. A decision of the 21 Minister under paragraph (a) of subclause (1) shall 22 not be referable to arbitration under this Agreement. 23 24 (5) If by the award made on the arbitration pursuant to 25 subclause (4) the dispute is decided in favour of the 26 Company the decision shall take effect as a notice by 27 the Minister that he is so satisfied with and approves 28 the matter or matters the subject of the arbitration. 29 30 (6) The Company shall implement the approved 31 proposals in accordance with the terms thereof. 32 33 (7) Notwithstanding clause 20, the Minister may during 34 the implementation of approved proposals approve 35 variations to those proposals 36 37 Notification of possible proposals 38 39 7C. (1) If the Company, upon completion of a pre- 40 feasibility study in respect of any matter that page 495 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 would require the submission and approval of 2 proposals pursuant to this Agreement (being 3 proposals which will have as their purpose, or 4 one of their purposes, the integrated use of 5 works installations or facilities as contemplated 6 by clause 9C) for the matter to be undertaken, 7 intends to further consider the matter with a 8 view to possibly submitting such proposals it 9 shall promptly notify the Minister in writing 10 giving reasonable particulars of the relevant 11 matter. 12 13 (2) Within one (1) month after receiving the 14 notification the Minister may, if the Minister so 15 wishes, inform the Company of the Minister's 16 views of the matter at that stage. 17 18 (3) If the Company is informed of the Minister's 19 views, it shall take them into account in 20 deciding whether or not to proceed with its 21 consideration of the matter and the submission 22 of proposals. 23 24 (4) Neither the Minister's response nor the Minister 25 choosing not to respond shall in any way limit, 26 prejudice or otherwise affect the exercise by 27 the Minister of the Minister's powers, or the 28 performance of the Minister's obligations, 29 under this Agreement or otherwise under the 30 laws from time to time of the said State. 31 32 (5) (a) This subclause applies where the 33 Company has settled upon a single 34 preferred development a purpose of 35 which is the integrated use of works 36 installations or facilities (as defined in 37 subclause (7) of clause 9C for the 38 purpose of that clause) as contemplated 39 by clause 9C. 40 page 496 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 (b) For the purpose of this subclause 2 "public interest concerns" means any 3 concern that implementation of the 4 single preferred development or any 5 part of it will: 6 7 (i) detrimentally affect economic and 8 orderly development in the said 9 State, including without limitation, 10 infrastructure development in the 11 said State; or 12 13 (ii) be contrary to or inconsistent with 14 the planning and development 15 policies and objectives of the 16 State; or 17 18 (iii) detrimentally affect the rights and 19 interests of third parties; or 20 21 (iv) detrimentally affect access to and 22 use by others of lands the subject 23 of any grant or proposed grant to 24 the Company. 25 26 (c) At any time prior to submission of 27 proposals the Company may give to the 28 Minister notice of its single preferred 29 development and request the Minister 30 to confirm that the Minister has no 31 public interest concerns with that single 32 preferred development. 33 34 (d) The Company shall furnish to the 35 Minister with its notice reasonable 36 particulars of the single preferred 37 development including, without 38 limitation: 39 page 497 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 (i) as to the matters that would be 2 required to be addressed in 3 submitted proposals; and 4 5 (ii) its progress in undertaking any 6 feasibility or other studies or 7 matters to be completed before 8 submission of proposals; and 9 10 (iii) its timetable for obtaining required 11 statutory and other approvals in 12 relation to the submission and 13 approval of proposals; and 14 15 (iv) its tenure requirements. 16 17 (e) If so required by the Minister, the 18 Company will provide to the Minister 19 such further information regarding the 20 single preferred development as the 21 Minister may require from time to time 22 for the purpose of considering the 23 Company's request and also consult 24 with the Minister or representatives or 25 officers of the State in regard to the 26 single preferred development. 27 28 (f) Within 2 months after receiving the 29 notice (or if the Minister requests 30 further information, within 2 months 31 after the provision of that information) 32 the Minister must advise the Company: 33 34 (i) that the Minister has no public 35 interest concerns with the single 36 preferred development; or 37 38 (ii) that he is not then in a position to 39 advise that he has no public 40 interest concerns with the single page 498 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 preferred development and the 2 Minister's reasons in that regard. 3 4 (g) If the Minister gives the advice 5 mentioned in paragraph (f)(ii) the 6 Company may, should it so desire, give 7 a further request to the Minister in 8 respect of a revised or alternate single 9 preferred development and the 10 provisions of this subclause shall apply 11 mutatis mutandis thereto."; 12 13 (4) in clause 8(1)(b): 14 (a) by in the first paragraph, deleting "clause 6 hereof or under 15 clause 6A hereof" and substituting "clauses 6, 6A, 7B or 16 9A"; and 17 (b) in subparagraph (i) by: 18 (i) inserting "or cause to be granted" after "grant"; 19 (ii) in the paragraph beginning "for nominal 20 consideration" by deleting "the harbour area"; 21 (iii) inserting after that paragraph the following new 22 paragraph: 23 "at commercial rentals, licence or easement fees as 24 applicable - leases, licences or easements within the 25 Port of Port Hedland; and"; 26 (iv) inserting "the Port Authorities Act 1999 (WA)" after 27 "the Jetties Act, 1926"; and 28 (v) inserting "installations or facilities" after "as the 29 Company reasonably requires for its works"; 30 (5) by inserting after clause 8(3A) the following new clause: 31 page 499 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 "(3B) The provisions of subclause (1) of this clause shall not 2 operate so as to require the State to grant or vary, or 3 cause to be granted or varied, any lease licence or other 4 right or title until all processes necessary under any laws 5 relating to native title to enable that grant or variation to 6 proceed, have been completed."; 7 (6) in clause 8A: 8 (a) by deleting "Joint Venturers a lease" and substituting 9 "Company an extension of the lease granted to it"; and 10 (b) by deleting "the agreement ratified by the Iron Ore Direct 11 Reduced Iron (BHP) Agreement Act 1996" and substituting 12 "this Agreement"; 13 14 (7) by deleting paragraph (e) of clause 9(2) and substituting the 15 following new paragraphs: 16 17 "(e) ship, or procure the shipment of, all iron ore mined from the 18 mineral lease and all iron ore referred to in clauses 9(2)(ja) 19 and (in each case) sold; 20 21 (i) from the Company's wharf; 22 23 (ii) from any other wharf in a loading port which wharf 24 has been constructed under an Integration Agreement; 25 or 26 27 (iii) with the Minister's approval given before submission 28 of proposals in that regard, from any other wharf in a 29 loading port which wharf has been constructed under 30 another Government agreement (excluding the 31 Integration Agreements), 32 33 and use its best endeavours to obtain therefor the best price 34 possible having regard to market conditions from time to 35 time prevailing PROVIDED THAT: 36 page 500 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 (A) this paragraph shall not apply to iron ore used for 2 secondary processing or for the manufacture of iron 3 or steel in any part of the said State lying north of the 4 twenty sixth parallel of latitude; 5 6 (B) iron ore from the mineral lease may be sold by the 7 Company prior to or at the time of the shipment under 8 this Agreement at a price equal to the production 9 costs in respect of that iron ore up to the point of sale, 10 if: 11 12 (i) the Minister is notified before the time of 13 shipment that the sale is to be made at cost, 14 providing details of the proposed sale; and 15 16 (ii) the Minister is notified of the proposed arm's 17 length purchaser in the relevant international 18 seaborne iron ore market of the iron ore the 19 subject of the proposed sale at cost; and 20 21 (iii) there is included in the return lodged pursuant 22 to subclause (2)(k) particulars of the transaction 23 in which the ore sold at cost was subsequently 24 purchased in the relevant international seaborne 25 iron ore market by an arm's length purchaser 26 specifying the purchaser, the seller, the price 27 and the date when the sale was agreed between 28 the arm's length purchaser and the seller; and 29 30 (iv) the arm's length purchaser referred to in 31 paragraph (iii) above is not then a designated 32 purchaser as referred to in subclause (2)(ea); 33 34 Designated purchaser 35 36 (ea) if required by notice in writing from the Minister, 37 provide the Minister within 30 days after receiving 38 the notice with evidence that the transaction as 39 included in the return pursuant to paragraph (B)(iii) of 40 subclause (2)(e) was a sale in the relevant page 501 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 international seaborne iron ore market to an 2 independent participant in that market. If no evidence 3 is provided or the Minister is not so satisfied on the 4 evidence provided or other information obtained, the 5 Minister may by notice to the Company designate the 6 purchaser to be a designated purchaser and that 7 designation will remain in force unless and until lifted 8 by further notice from the Minister to the Company. 9 For the avoidance of doubt, the parties acknowledge 10 that marketing entities forming part of the corporate 11 group including the Company (or part of the parallel 12 corporate group if the Company is part of a dual-listed 13 corporate structure) are not independent participants 14 for the purposes of this subclause,"; 15 16 (8) in clause 9(2)(j) by inserting the following paragraphs after 17 subparagraph (iv): 18 19 "Where beneficiated ore is produced from an admixture of iron ore 20 from the mineral lease and iron ore from elsewhere, a portion (and 21 a portion only) of the beneficiated ore so produced being equal to 22 the proportion that the amount of the iron in the iron ore from the 23 mineral lease used in the production of that beneficiated ore bears 24 to the total amount of iron in the iron ore so used shall be deemed 25 to be produced from iron ore from the mineral lease. 26 27 Where for the purpose of determining f.o.b. value it is necessary to 28 convert an amount or price to Australian currency, the conversion 29 is to be calculated using a rate (excluding forward hedge or similar 30 contract rates) that has been approved by the Minister at the 31 request of the Company and in the absence of such request as 32 determined by the Minister to be a reasonable rate for the purpose. 33 34 The provisions of regulation 85AA (Effect of GST etc on 35 royalties) of the Mining Regulations 1981 (WA) shall apply 36 mutatis mutandis to the calculation of royalties under this clause."; 37 page 502 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 (9) by inserting after paragraph (j) of clause 9(2) the following new 2 paragraph: 3 4 "(ja) pay to the State royalty on all iron ore mined from the 5 McCamey's Mineral Lease purchased, shipped and sold by 6 the Company (other than iron ore shipped solely for testing 7 purposes and in respect of which no purchase price or other 8 consideration is payable or due) at the rates from time to 9 time specified in paragraph (j) and otherwise in accordance 10 with this Agreement as if such iron ore were iron ore mined 11 from the mineral lease;" 12 13 (10) in clause 9(2)(k) by: 14 15 (a) inserting "and also showing such other information in 16 relation to the abovementioned iron ore as the Minister may 17 from time to time reasonably require in regard to, and to 18 assist in verifying, the calculation of royalties in accordance 19 with paragraphs (j) and (ja)" after "the due date of the 20 return"; and 21 22 (b) deleting all the words after "on the basis of" and substituting 23 a colon followed by: 24 25 "(i) in the case of iron ore initially sold at cost pursuant to 26 paragraph (B) of the proviso to subclause (2)(e), at 27 the price notified pursuant to paragraph (B)(iii) of 28 that proviso; 29 30 (ii) in any other case, of invoices or provisional invoices 31 (as the case may be) rendered by the Company to the 32 purchaser (which invoices the Company shall render 33 without delay simultaneously furnishing copies 34 thereof to the Minister) of such iron ore or on the 35 basis of estimates as agreed or determined, 36 37 and shall from time to time in the next following 38 appropriate return and payment make (by the return and by 39 cash) all such necessary adjustments (and give to the page 503 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 Minister full details thereof) when the f.o.b. value shall 2 have been finally calculated, agreed or determined;"; 3 (11) in clause 9(2)(n) by: 4 (a) deleting "books of account and records of the Company 5 including contracts relative" and substituting "books, 6 records, accounts, documents (including contracts), data and 7 information of the Company stored by any means relating"; 8 (b) inserting "the subject of royalty" before "hereunder" where 9 it appears both times; and 10 (c) inserting "(in whatever form)" after "copies or extracts"; 11 (12) by deleting the fullstop after paragraph (n) of clause 9(2) and 12 substituting a semi colon followed by the following new 13 paragraph: 14 "(o) cause to be produced in Perth in the said State all books, 15 records, accounts, documents (including contracts), data and 16 information of the kind referred to in paragraph (n) to enable 17 the exercise of rights by the Minister or the Minister's 18 nominee under paragraph (n), regardless of the location in 19 which or by whom those books, records, accounts, 20 documents (including contracts), data and information are 21 stored from time to time."; 22 23 (13) by inserting after subclause (3) of clause 9 the following new 24 subclause: 25 26 "Blending of iron ore 27 28 (4) (a) The Company may blend iron ore mined from the 29 mineral lease with any: 30 31 (i) iron ore mined from a mining tenement or 32 other mining title granted under, or pursuant 33 to, an Integration Agreement; or 34 page 504 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 (ii) iron ore mined from a Mining Act 1978 mining 2 lease located in, or proximate to, the Pilbara 3 region of the said State which is held by a 4 Related Entity alone or with a third party or 5 parties (excluding any mining lease granted 6 pursuant to, or held under, a Government 7 agreement); or 8 9 (iii) with the prior approval of the Minister, iron 10 ore mined in, or proximate to, the Pilbara 11 region of the said State under a Government 12 agreement (excluding an Integration 13 Agreement); or 14 15 (iv) with the prior approval of the Minister, iron 16 ore mined by a third party from a Mining Act 17 1978 mining lease located in, or proximate to, 18 the Pilbara region of the said State (excluding 19 under a Government agreement) which has 20 been purchased by an Integration Proponent 21 from the third party. 22 23 (b) The authority given under paragraph (a) is subject to 24 the Minister being reasonably satisfied that there are 25 in place adequate systems and controls for the correct 26 apportionment of the quantities of iron ore being 27 blended as between each of the sources referred to in 28 paragraph (a), which systems and controls monitor 29 production, processing, transportation, stockpiling 30 and shipping of all such iron ore. If at any time the 31 Minister ceases to be so satisfied he may, after 32 consulting the Company and provided the Company 33 has not within three (3) months after the 34 commencement of such consultation addressed the 35 matters of concern to the Minister to his satisfaction, 36 by notice in writing to the Company suspend the 37 above authority in respect of the relevant blending 38 arrangements until he is again satisfied in terms of 39 this paragraph (b). 40 page 505 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 (c) If any blending of iron ore occurs as contemplated by 2 this subclause, then for the purposes of paragraphs (j) 3 and (k) of subclause (2) of this clause, a portion of the 4 iron ore so blended being equal to the proportion that 5 the amount of iron ore from the mineral lease used in 6 the admixture of iron ore bears to the total amount of 7 iron ore so blended shall be deemed to be produced 8 from the mineral lease."; 9 10 (14) in clause 9A(11) by deleting the last 2 sentences of paragraph (a) 11 and substituting: 12 13 "The provisions of clauses 7A(2) to (5) and 7B shall apply mutatis 14 mutandis to proposals submitted pursuant to this subclause."; 15 16 (15) in clause 9A(12) by deleting "subclauses (5), (6), (7), (8), (10) and 17 (11)" in paragraph (d) and substituting "clause 7B and subclause 18 (11)" ; 19 20 (16) by inserting after clause 9A the following new clauses: 21 22 "9B. (1) Notwithstanding the provisions of the Mining Act or 23 the Mining Act 1978 the Company may from time to 24 time during the currency of this Agreement apply to 25 the Minister for areas held by the Company or an 26 associated company under a mining tenement granted 27 under the Mining Act 1978 to be included in the 28 mineral lease but so that the total area of the mineral 29 lease, any land that may be included in the mineral 30 lease pursuant to this Agreement and of any other 31 mineral lease or mining lease granted under or 32 pursuant to this Agreement (as aggregated) shall not 33 at any time exceed 777 square kilometres. The 34 Minister shall confer with the Minister for Mines in 35 regard to any such application and if they approve the 36 application the Minister for Mines shall upon the 37 surrender of the relevant mining tenement include the 38 area the subject thereof in the mineral lease by 39 endorsement subject to such of the conditions of the 40 surrendered mining tenement as the Minister for page 506 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 Mines determines but otherwise subject to the same 2 terms covenants and conditions as apply to the 3 mineral lease (with such apportionment of rents as is 4 necessary) and notwithstanding that the survey of 5 such additional land has not been completed but 6 subject to correction to accord with the survey when 7 completed at the Company's expense. 8 page 507 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 (2) The Minister may approve, upon application by the 2 Company from time to time, for the total area referred 3 to in subclause (1) to be increased up to a limit not 4 exceeding 1,000 square kilometres. 5 6 (3) The Company shall not mine or carry out other 7 activities (other than exploration, bulk sampling and 8 testing) on any area added to the mineral lease 9 pursuant to subclause (1) of this clause unless and 10 until proposals with respect thereto are approved or 11 determined pursuant to the subsequent provisions of 12 this clause. 13 14 (4) If the Company desires to commence mining of iron 15 ore or to carry out any other activities (other than as 16 aforesaid) on the said area it shall give notice of such 17 desire to the Minister and shall within 2 months of the 18 date of such notice (or thereafter within such 19 extended time as the Minister may allow as 20 hereinafter provided) and subject to the provisions of 21 this Agreement submit to the Minister to the fullest 22 extent reasonably practicable its detailed proposals 23 (which proposals shall include plans where 24 practicable and specifications where reasonably 25 required by the Minister) with respect to such mining 26 or other activities as additional proposals pursuant to 27 clause 7A. 28 29 Integrated use of works installations or facilities under the 30 Integration Agreements 31 32 9C. (1) Subject to subclauses (2) to (7) of this clause and to 33 the other provisions of this Agreement, the Company 34 may during the continuance of this Agreement: 35 36 (a) use any existing or new works installations or 37 facilities constructed or held: 38 39 (i) under this Agreement; or 40 page 508 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 (ii) under any other Integration Agreement 2 which are made available for such use 3 and during the continuance of such 4 Integration Agreement; or 5 6 (iii) with the approval of the Minister, under 7 a Government agreement (excluding an 8 Integration Agreement) which are made 9 available for such use and during the 10 continuance of that agreement, 11 12 (wholly or in part) in the activities of the 13 Company carried on by it pursuant to this 14 Agreement including, without limitation, as 15 part of those activities, transporting by railway 16 and shipping from a loading port and 17 undertaking any ancillary and incidental 18 activities in doing so (including, without 19 limitation, blending permitted by clause 9(4)) 20 of: 21 22 (A) iron ore mined from a Mining Act 1978 23 mining lease located in, or proximate to, 24 the Pilbara region of the said State which 25 is held by a Related Entity alone or with 26 a third party or parties (excluding any 27 mining lease granted pursuant to, or held 28 under, a Government agreement); 29 30 (B) with the prior approval of the Minister, 31 iron ore mined in, or proximate to, the 32 Pilbara region of the said State under a 33 Government agreement (excluding an 34 Integration Agreement); 35 36 (C) with the prior approval of the Minister, 37 iron ore mined by a third party from a 38 Mining Act 1978 mining lease located in, 39 or proximate to, the Pilbara region of the 40 said State (excluding under a page 509 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 Government agreement) which has been 2 purchased by the Company from the 3 third party; 4 5 (D) iron ore mined under an Integration 6 Agreement; 7 8 (b) make any existing or new works installations or 9 facilities constructed or held under this 10 Agreement available for use (wholly or partly) 11 by another Integration Proponent during the 12 continuance of its Integration Agreement in the 13 activities of that Integration Proponent carried 14 on by it pursuant to its Integration Agreement 15 including, without limitation, as part of those 16 activities, transporting by railway and shipping 17 from a loading port and undertaking any 18 ancillary and incidental activities in doing so 19 (including, without limitation, blending 20 permitted by that Integration Agreement) of: 21 22 (i) iron ore mined from a Mining Act 1978 23 mining lease located in, or proximate to, 24 the Pilbara region of the said State which 25 is held by a Related Entity alone or with 26 a third party or parties (excluding any 27 mining lease granted pursuant to, or held 28 under, a Government agreement); 29 30 (ii) with the prior approval of the Minister 31 (as defined in that Integration 32 Agreement), iron ore mined in, or 33 proximate to, the Pilbara region of the 34 said State under a Government 35 agreement (excluding an Integration 36 Agreement); 37 38 (iii) with the prior approval of the Minister 39 (as defined in that Integration 40 Agreement), iron ore mined by a third page 510 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 party from a Mining Act 1978 mining 2 lease located in, or proximate to, the 3 Pilbara region of the said State 4 (excluding under a Government 5 agreement) which has been purchased by 6 that Integration Proponent from the third 7 party; 8 9 (iv) iron ore mined under an Integration 10 Agreement; 11 12 (c) make any existing or new works installations or 13 facilities constructed or held under this 14 Agreement available for use (wholly or partly) 15 in connection with operations under: 16 17 (i) a Mining Act 1978 mining lease located 18 in, or proximate to, the Pilbara region of 19 the said State, for iron ore, which is held 20 by a Related Entity alone or with a third 21 party or parties (excluding any mining 22 lease granted pursuant to, or held under a 23 Government agreement); or 24 25 (ii) with the approval of the Minister, a 26 Government agreement (other than an 27 Integration Agreement) for the mining of 28 iron ore in, or proximate to, the Pilbara 29 region of the said State; 30 31 (d) subject to subclause (2), under this Agreement 32 and for the purpose of any use or making 33 available for use referred to in paragraph (a), 34 (b) or (c) connect any existing or new works 35 installations or facilities constructed or held 36 under this Agreement to any existing or new 37 works installations or facilities constructed or 38 held under another Integration Agreement; 39 page 511 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 (e) subject to subclause (2), under this Agreement 2 and for the purpose of any use or making 3 available for use referred to in paragraph (a), 4 (b) or (c) or making of any connection referred 5 to in paragraph (d) construct new works 6 installations or facilities and expand modify or 7 otherwise vary any existing and new works 8 installations or facilities constructed or held 9 under this Agreement; 10 11 (f) allow a railway or rail spur line (not being a 12 railway or rail spur line constructed or held 13 under an Integration Agreement) to be 14 connected to a railway or rail spur line or other 15 works installations or facilities constructed or 16 held under this Agreement for the delivery of 17 iron ore to an Integration Proponent for 18 transport by railway and shipping from a 19 loading port (together with any ancillary and 20 incidental activities in doing so) as part of its 21 activities under its Integration Agreement; and 22 23 (g) allow an electricity transmission line (not being 24 an electricity transmission line constructed or 25 held under an Integration Agreement) to be 26 connected to an electricity transmission line 27 constructed or held under this Agreement for 28 the supply of electricity permitted to be made 29 under an Integration Agreement. 30 31 (2) (a) A connection referred to in clause (1)(d) or 32 construction, expansion, modification or other 33 variation referred to in subclause (1)(e) by the 34 Company shall, to the extent not already 35 authorised under this Agreement as at the 36 variation date, be regarded as a significant 37 modification expansion or other variation of the 38 Company's activities carried on by it pursuant 39 to this Agreement and may only be made in 40 accordance with proposals submitted and page 512 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 approved or determined under this Agreement 2 in accordance with clauses 6A, 7A and 7B, 9A 3 or 9E as the case may require and otherwise in 4 compliance with the provisions of this 5 Agreement and the laws from time to time of 6 the said State. For the avoidance of doubt, the 7 parties acknowledge that any use or making 8 available for use contemplated by subclause 9 (1)(a), (1)(b) or (1)(c) shall not otherwise than 10 as required by this paragraph require the 11 submission and approval of further proposals 12 under this Agreement. 13 14 (b) The Company shall not be entitled to: 15 16 (i) submit proposals to construct any new 17 port or to establish harbour or port works 18 installations or facilities, or to expand 19 modify or otherwise vary harbour or 20 works installations or facilities otherwise 21 than at or near the town of Port Hedland 22 within the boundaries of the Port of Port 23 Hedland; or 24 25 (ii) generate and supply power, take and 26 supply water or dispose of water 27 otherwise than in accordance with the 28 other clauses of this Agreement and 29 subject to any restrictions contained in 30 those clauses; or 31 32 (iii) without limiting subparagraphs (i) and 33 (ii) submit proposals to construct or 34 establish works installations or facilities 35 of a type, or to make expansions, 36 modifications or other variations of 37 works installations or facilities of a type, 38 which in the Minister's reasonable 39 opinion this Agreement, immediately 40 before the variation date, did not permit page 513 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 or contemplate the Company 2 constructing, establishing or making as 3 the case may be otherwise than for 4 integration use as contemplated by 5 subclauses (1)(a), (1)(b) or (1)(c) or as 6 permitted by clause 9E; or 7 8 (iv) submit proposals to make a connection as 9 referred to in subclause (1)(d) or a 10 construction, expansion, modification or 11 other variation as referred to in subclause 12 (1)(e) otherwise than on tenure granted 13 under or pursuant to this Agreement from 14 time to time or held pursuant to this 15 Agreement from time to time; or 16 17 (v) submit proposals to make a connection 18 referred to in subclause (1)(d) or a 19 construction, expansion, modification or 20 other variation as referred to in subclause 21 (1)(e) for the purpose of use as 22 contemplated by subclause (1)(c)(i), if in 23 the reasonable opinion of the Minister 24 the activity which is the subject of the 25 proposals would give to the holder or 26 holders of the relevant Mining Act 1978 27 mining lease the benefit of rights or 28 powers granted to the Company under 29 this Agreement, over and above the right 30 of access to and use of the relevant 31 works, installations or facilities; or 32 33 (vi) submit proposals to make a connection as 34 referred to in subclause (1)(d) or a 35 construction, expansion, modification or 36 other variation as referred to in subclause 37 (1)(e) for the purpose of use as 38 contemplated by subclause (1)(c) and 39 involving the grant of tenure without the 40 prior approval of the Minister; or page 514 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 2 (vii) submit proposals to assign, sublet, 3 transfer or dispose of any works 4 installations or facilities constructed or 5 held under this Agreement or any leases, 6 licences, easements or other titles under 7 or pursuant to this Agreement for any 8 purpose referred to in this clause. 9 10 (c) Notwithstanding the provisions of clauses 6A, 11 7B, 9A or 9E the Minister may defer 12 consideration of, or a decision upon, a proposal 13 submitted by the Company for a connection as 14 referred to in subclause (1)(d) or a construction, 15 expansion, modification or other variation as 16 referred to in subclause (1)(e), for the purpose 17 of use or making available for use as referred to 18 in subclauses (1)(a) or (1)(b), until relevant 19 corresponding proposals under the relevant 20 Integration Agreement have been submitted and 21 those proposals can be approved under that 22 Integration Agreement concurrently with the 23 Minister's approval under this Agreement of the 24 Company's proposal. 25 26 (3) Any use or making available for use as referred to in 27 subclause (1), or submission of proposals as referred 28 to in subclause (2), in respect of a Related Entity shall 29 be subject to the Company first confirming with the 30 Minister that the Minister is satisfied that the relevant 31 company is a Related Entity. 32 33 (4) The Company shall give the Minister prior written 34 notice of any significant change (other than a 35 temporary one for maintenance or to respond to an 36 emergency) proposed in its use, or in it making 37 available for use, works installations or facilities as 38 referred to in this clause: 39 page 515 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 (a) from that authorised under this Agreement 2 immediately before the variation date; and 3 4 (b) subsequently from that previously notified to 5 the Minister under this subclause, 6 7 as soon as practicable before such change occurs. 8 9 The Company shall also keep the Minister fully 10 informed with respect to any proposed connection as 11 referred to in subclause (1)(f) or (1)(g) or request of 12 the Company for such connection to be allowed. 13 14 (5) Nothing in this Agreement shall be construed to: 15 16 (a) exempt another Integration Proponent from 17 complying with, or the application of, the 18 provisions of its Integration Agreement; or 19 20 (b) restrict the Company's rights under clause 19. 21 22 For the avoidance of doubt the approval of proposals 23 under this Agreement shall not be construed as 24 authorising another Integration Proponent to 25 undertake any activities under this Agreement or 26 under another Integration Agreement. 27 28 (6) Nothing in this clause shall be construed to exempt 29 the Company from complying with, or the application 30 of, the other provisions of this Agreement including, 31 without limitation, clause 19 and of relevant laws 32 from time to time of the said State. 33 34 (7) For the purpose of this clause "works installations or 35 facilities" means any: 36 37 (a) harbour or port works installations or facilities 38 including, without limitation, stockpiles, 39 reclaimers, conveyors and wharves; 40 page 516 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 (b) railway or rail spur lines; 2 3 (c) track structures and systems associated with the 4 operation and maintenance of a railway 5 including, without limitation, sidings, train 6 control and signalling systems, maintenance 7 workshops and terminal yards; 8 9 (d) train loading and unloading works installations 10 or facilities; 11 12 (e) conveyors; 13 14 (f) private roads; 15 16 (g) mine aerodrome and associated aerodrome 17 works installations and facilities; 18 19 (h) iron ore mining, crushing, screening, 20 beneficiation or other processing works 21 installations or facilities; 22 23 (i) mine administration buildings including, 24 without limitation, offices, workshops and 25 medical facilities; 26 27 (j) borrow pits; 28 29 (k) accommodation and ancillary facilities 30 including, without limitation, construction 31 camps and townsites constructed pursuant to 32 and held under any Integration Agreement; 33 34 (l) water, sewerage, electricity, gas and 35 telecommunications works installations and 36 facilities including, without limitation, 37 pipelines, transmission lines and cables; and 38 page 517 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 (m) any other works installations or facilities 2 approved of by the Minister for the purpose of 3 this clause. 4 5 Transfer of rights to shared works, installations or facilities 6 7 9D. (1) For the purposes of this clause "Relevant 8 Infrastructure" means any works installations or 9 facilities (as defined in clause 9C(7)): 10 11 (a) constructed or held under another Integration 12 Agreement; 13 14 (b) which the Company is using in its activities 15 pursuant to this Agreement; 16 17 (c) which the Minister is satisfied (after consulting 18 with the Company and the Integration 19 Proponent for that other Integration 20 Agreement): 21 22 (i) are no longer required by that other 23 Integration Proponent to carry on its 24 activities pursuant to its Integration 25 Agreement because of the cessation of 26 the Integration Proponent's mining 27 operations in respect of which such 28 Relevant Infrastructure was constructed 29 or held or because of any other reason 30 acceptable to the Minister; and 31 32 (ii) are required by the Company to continue 33 to carry on its activities pursuant to this 34 Agreement; and 35 36 (d) in respect of which that other Integration 37 Proponent has notified the Minister it consents 38 to the Company submitting proposals as 39 referred to in subclause (2). 40 page 518 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 (2) The Company may as an additional proposal pursuant 2 to clause 7A propose: 3 4 (a) that it be granted a lease licence or other title 5 over the Relevant Infrastructure pursuant to this 6 Agreement subject to and conditional upon the 7 other Integration Proponent surrendering 8 wholly or in part (and upon such terms as the 9 Minister considers reasonable including any 10 variation of terms to address environmental 11 issues) its lease licence or other title over the 12 Relevant Infrastructure; or 13 14 (b) that the other Integration Proponent's lease 15 licence or other title (not being a mineral lease, 16 mining lease or other right to mine title granted 17 under a Government agreement, the Mining Act 18 1904 or the Mining Act 1978) to the Relevant 19 Infrastructure be transferred to this Agreement 20 (to be held by the Company pursuant to this 21 Agreement) with such surrender of land from it 22 and variations of its terms as the Minister 23 considers reasonable for that title to be held 24 under this Agreement including, without 25 limitation, to address environmental issues and 26 outstanding obligations of that other Integration 27 Proponent under its Integration Agreement in 28 respect of that Relevant Infrastructure. 29 30 The provisions of clause 7B shall mutatis mutandis 31 apply to any such additional proposal. In addition the 32 Company acknowledges that the Minister may require 33 variations of the other Integration Agreement and/or 34 proposals under it or of this Agreement in order to 35 give effect to the matters contemplated by this clause. 36 37 (3) This clause shall cease to apply in the event the State 38 gives any notice of default to the Company pursuant 39 to clause 10(l) and while such notice remains 40 unsatisfied."; page 519 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 2 Miscellaneous Licences for Railways 3 4 9E. (1) In this clause subject to the context: 5 6 "Additional Infrastructure" means: 7 8 (a) Train Loading Infrastructure; 9 10 (b) Train Unloading Infrastructure; 11 12 (c) a conveyor, train unloading and other 13 infrastructure necessary for the transport of iron 14 ore, freight goods or other products from the 15 Railway (directly or indirectly) to port facilities 16 within a loading port, 17 18 in each case located outside a Port; 19 20 "LAA" means the Land Administration Act 1997 21 (WA); 22 23 "Lateral Access Roads" has the meaning given in 24 subclause (3)(a)(iv); 25 26 "Lateral Access Road Licence" means a 27 miscellaneous licence granted pursuant to subclause 28 (6)(a)(ii) or subclause (6)(b) as the case may be and 29 according to the requirements of the context describes 30 the area of land from time to time the subject of that 31 licence; 32 33 "Port" means any port the subject of the Port 34 Authorities Act 1999 (WA) or the Shipping and 35 Pilotage Act 1967 (WA); 36 37 "Private Roads" means Lateral Access Roads and the 38 Company's access roads within a Railway Corridor; 39 page 520 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 "Rail Safety Act" means the Rail Safety Act 1998 2 (WA); 3 4 "Railway" means a standard gauge heavy haul railway 5 or railway spur line, located or to be located as the 6 case may be in, or proximate to, the Pilbara region of 7 the said State (but outside the boundaries of a Port) 8 for the transport of iron ore, freight goods and other 9 products together with all railway track, associated 10 track structures including sidings, turning loops, over 11 or under track structures, supports (including supports 12 for equipment or items associated with the use of a 13 railway) tunnels, bridges, train control systems, 14 signalling systems, switch and other gear, 15 communication systems, electric traction 16 infrastructure, buildings (excluding office buildings, 17 housing and freight centres), workshops and 18 associated plant, machinery and equipment and 19 including rolling stock maintenance facilities, 20 terminal yards, depots, culverts and weigh bridges 21 which railway is or is to be (as the case may be) the 22 subject of approved proposals under subclause (4) and 23 includes any expansion or extension thereof outside a 24 Port which is the subject of additional proposals 25 approved in accordance with subclause (5); 26 27 "Railway Corridor" means, prior to the grant of a 28 Special Railway Licence, the land for the route of the 29 Railway the subject of that licence, access roads 30 (other than Lateral Access Roads), areas from which 31 stone, sand, clay and gravel may be taken, temporary 32 accommodation facilities for the railway workforce, 33 water bores and Additional Infrastructure (if any) 34 which is the subject of a subsisting agreement 35 pursuant to subclause (3)(a) and after the grant of the 36 Special Railway Licence the land from time to time 37 the subject of that Special Railway Licence; 38 39 "Railway Operation" means the construction and 40 operation under this Agreement of the relevant page 521 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 Railway and associated access roads and Additional 2 Infrastructure (if any) within the relevant Railway 3 Corridor and of the associated Lateral Access Roads, 4 in accordance with approved proposals; 5 6 "Railway spur line" means a standard gauge heavy 7 haul railway spur line located or to be located in, or 8 proximate to, the Pilbara region of the said State (but 9 outside a Port) connecting to a Railway for the 10 transport of iron ore, freight goods and other products 11 upon the Railway to (directly or indirectly) a loading 12 port; 13 14 "Railway Operation Date" means the date of the first 15 carriage of iron ore, freight goods or other products 16 over the relevant Railway (other than for construction 17 or commissioning purposes); 18 19 "Railway spur line Operation Date" means the date of 20 the first carriage of iron ore, freight goods or other 21 products over the relevant Railway spur line (other 22 than for construction or commissioning purposes); 23 24 "Special Railway Licence" means the relevant 25 miscellaneous licence for railway and, if applicable, 26 other purposes, granted to the Company pursuant to 27 subclause (6)(a)(i) as varied in accordance with 28 subclause (6)(h) or subclause (6)(i) and according to 29 the requirements of the context describes the area of 30 land from time to time the subject of that licence; 31 32 "Train Loading Infrastructure" means conveyors, 33 stockpile areas, blending and screening facilities, 34 stackers, re-claimers and other infrastructure 35 reasonably required for the loading of iron ore, freight 36 goods or other products onto the relevant Railway for 37 transport (directly or indirectly) to a loading port; and 38 39 "Train Unloading Infrastructure" means train 40 unloading infrastructure reasonably required for the page 522 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 unloading of iron ore from the Railway to be 2 processed, or blended with other iron ore, at 3 processing or blending facilities in the vicinity of that 4 train unloading infrastructure and with the resulting 5 iron ore products then loaded on to the Railway for 6 transport (directly or indirectly) to a loading port. 7 8 Company to obtain prior Ministerial in-principle 9 approval 10 11 (2) (a) If the Company wishes, from time to time 12 during the continuance of this Agreement, to 13 proceed under this clause with a plan to 14 develop a Railway it shall give notice thereof to 15 the Minister and furnish to the Minister with 16 that notice an outline of its plan. 17 18 (b) The Minister shall within one month of a notice 19 under paragraph (a) advise the Company 20 whether or not he approves in-principle the 21 proposed plan. The Minister shall afford the 22 Company full opportunity to consult with him 23 in respect of any decision of the Minister under 24 this paragraph. 25 26 (c) The Minister's in-principle approval in respect 27 of a proposed plan shall lapse if the Company 28 has not submitted detailed proposals to the 29 Minister in respect of that plan in accordance 30 with this clause within 18 months of the 31 Minister's in-principle approval. 32 33 Railway Corridor 34 35 (3) (a) If the Minister gives in-principle approval to a 36 plan of the Company to develop a Railway it 37 shall consult with the Minister to seek the 38 agreement of the Minister as to: 39 page 523 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 (i) where the Railway will begin and end; 2 and 3 4 (ii) a route for the Railway, access roads to 5 be within the Railway Corridor and the 6 land required for that route as well as 7 Additional Infrastructure (if any) 8 including, without limitation, areas from 9 which stone, sand, clay and gravel may 10 be taken, temporary accommodation 11 facilities for the railway workforce and 12 water bores; and 13 14 (iii) in respect of Additional Infrastructure (if 15 any) the nature and capacity of such 16 Additional Infrastructure; and 17 18 (iv) the routes of, and the land required for, 19 roads outside the Railway Corridor (and 20 also outside a Port) for access to it to 21 construct the Railway (such roads as 22 agreed being "Lateral Access Roads"). 23 24 In seeking such agreement, regard shall be had 25 to achieving a balance between engineering 26 matters including costs, the nature and use of 27 any lands concerned and interests therein and 28 the costs of acquiring the land (all of which 29 shall be borne by the Company). The parties 30 acknowledge the intention is for the Company 31 to construct the Railway, the access roads for 32 the construction and maintenance of the 33 Railway which are to be within the Railway 34 Corridor and the relevant Additional 35 Infrastructure (if any) along the centreline of 36 the Railway Corridor subject to changes in that 37 alignment to the extent necessary to avoid 38 heritage, environmental or poor ground 39 conditions that are not identified during 40 preliminary investigation work, and recognise page 524 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 the width of the Railway Corridor may need to 2 vary along its route to accommodate 3 Additional Infrastructure (if any), access roads, 4 areas from which stone, sand, clay and gravel 5 may be taken, temporary accommodation 6 facilities for the railway workforce and water 7 bores. The provisions of clause 24 shall not 8 apply to this subclause. 9 10 (b) If the date by which the Company must submit 11 detailed proposals under subclause (4)(a) (as 12 referred to in subclause (2)(c)) is extended or 13 varied by the Minister pursuant to clause 23, 14 any agreement made pursuant to paragraph (a) 15 before such date is extended or varied shall 16 unless the Minister notifies the Company 17 otherwise be deemed to be at an end and 18 neither party shall have any claim against the 19 other in respect of it. 20 21 (c) The Company acknowledges that it shall be 22 responsible for liaising with every title holder 23 in respect of the land affected and for obtaining 24 in a form and substance acceptable to the 25 Minister all unconditional and irrevocable 26 consents of each such title holder to, and all 27 statutory consents required in respect of the 28 land affected for: 29 30 (i) the grant of the Special Railway Licence 31 for the construction, operation and 32 maintenance within the Railway Corridor 33 of the Railway, access roads and 34 Additional Infrastructure (if any) to be 35 within the Railway Corridor; and 36 37 (ii) the grant of Lateral Access Road 38 Licences for the construction, use and 39 maintenance of Lateral Access Roads 40 over the routes for the Lateral Access page 525 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 Roads agreed pursuant to paragraph (a); 2 and 3 4 (iii) the inclusion of additional land in the 5 Special Railway Licence as referred to in 6 subclause (6)(h) or subclause (6)(i), 7 8 in accordance with this clause. For the 9 purposes of this subclause (3)(c), "title holder" 10 means a management body (as defined in the 11 LAA) in respect of any part of the affected 12 land, a person who holds a mining, petroleum 13 or geothermal energy right (as defined in the 14 LAA) in respect of any part of the affected 15 land, a person who holds a lease or licence 16 under the LAA in respect of any part of the 17 affected land, a person who holds any other 18 title granted under or pursuant to a 19 Government agreement in respect of any part 20 of the affected land, a person who holds a lease 21 or licence in respect of any part of the affected 22 land under any other Act applying in the said 23 State and a person in whom any part of the 24 affected land is vested, immediately before the 25 provision of such consents to the Minister as 26 referred to in subclause (4)(e)(ii) (including as 27 applying pursuant to subclause 5(d)). 28 29 Company to submit proposals for Railway 30 31 (4) (a) The Company shall, subject to the EP Act, the 32 provisions of this Agreement, agreement at that 33 time subsisting in respect of the matters 34 required to be agreed pursuant to subclause 35 3(a), submit to the Minister by the latest date 36 applying under subclause (2)(c) to the fullest 37 extent reasonably practicable its detailed 38 proposals (including plans where practicable 39 and specifications where reasonably required 40 by the Minister and any other details normally page 526 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 required by a local government in whose area 2 any works are to be situated) with respect to the 3 undertaking of the relevant Railway Operation, 4 which proposals shall include the location, 5 area, layout, design, materials and time 6 program for the commencement and completion 7 of construction or the provision (as the case 8 may be) of each of the following matters 9 namely: 10 11 (i) the Railway including fencing (if any) 12 and crossing places within the Railway 13 Corridor; 14 15 (ii) Additional Infrastructure (if any) within 16 the Railway Corridor; 17 18 (iii) temporary accommodation and ancillary 19 temporary facilities for the railway 20 workforce on, or in the vicinity of, the 21 Railway Corridor and housing and other 22 appropriate facilities elsewhere for the 23 Company's workforce; 24 25 (iv) water supply; 26 27 (v) energy supplies; 28 29 (vi) access roads within the Railway Corridor 30 and Lateral Access Roads both along the 31 routes for those roads agreed between the 32 Minister and the Company pursuant to 33 subclause 3(a); 34 35 (vii) any other works, services or facilities 36 desired by the Company; and 37 38 (viii) use of local labour, professional services, 39 manufacturers, suppliers contractors and 40 materials and measures to be taken with page 527 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 respect to the engagement and training of 2 employees by the Company, its agents 3 and contractors. 4 5 (b) Proposals pursuant to paragraph (a) must 6 specify the matters agreed for the purpose 7 pursuant to subclause (3)(a) and must not be 8 contrary to or inconsistent with such agreed 9 matters. 10 11 (c) Each of the proposals pursuant to paragraph (a) 12 may with the approval of the Minister, or must 13 if so required by the Minister, be submitted 14 separately and in any order as to the matter or 15 matters mentioned in one or more of 16 subparagraphs (i) to (viii) of paragraph (a) and 17 until all of its proposals under this subclause 18 have been approved the Company may 19 withdraw and may resubmit any proposal but 20 the withdrawal of any proposal shall not affect 21 the obligations of the Company to submit a 22 proposal under this subclause in respect of the 23 subject matter of the withdrawn proposal. 24 25 (d) The Company shall, whenever any of the 26 following matters referred to in this subclause 27 are proposed by the Company (whether before 28 or during the submission of proposals under 29 this subclause), submit to the Minister details 30 of any services (including any elements of the 31 project investigations, design and management) 32 and any works, materials, plant, equipment and 33 supplies that it proposes to consider obtaining 34 from or having carried out or permitting to be 35 obtained from or carried out outside Australia, 36 together with its reasons therefor and shall, if 37 required by the Minister consult with the 38 Minister with respect thereto. 39 page 528 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 (e) At the time when the Company submits the last 2 of the said proposals pursuant to this subclause, 3 it shall: 4 5 (i) furnish to the Minister's reasonable 6 satisfaction evidence of all accreditations 7 under the Rail Safety Act which are 8 required to be held by the Company or 9 any other person for the construction of 10 the Railway; and 11 12 (ii) furnish to the Minister the written 13 consents referred to in subclause (3)(c)(i) 14 and (3)(c)(ii). 15 16 (f) The provisions of clause 7B shall apply mutatis 17 mutandis to detailed proposals submitted under 18 this subclause. 19 20 Additional Railway Proposals 21 22 (5) (a) If the Company at any time during the currency 23 of a Special Railway Licence desires to 24 construct a Railway spur line (connecting to the 25 Railway the subject of that Special Railway 26 Licence) or desires to significantly modify, 27 expand or otherwise vary its activities within 28 the land the subject of the Special Railway 29 Licence that are the subject of this Agreement 30 and that may be carried on by it pursuant to this 31 Agreement (other than by the construction of a 32 Railway spur line) beyond those activities 33 specified in any approved proposals for that 34 Railway, it shall give notice of such desire to 35 the Minister and furnish to the Minister with 36 that notice an outline of its proposals in respect 37 thereto (including, without limitation, such 38 matters mentioned in subclause (4)(a) as are 39 relevant or as the Minister otherwise requires). 40 page 529 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 (b) If the notice relates to a Railway spur line, or to 2 the construction of Train Loading Infrastructure 3 or Train Unloading Infrastructure on land 4 outside the then Railway Corridor, the Minister 5 shall within one month of receipt of such notice 6 advise the Company whether or not he 7 approves in-principle the proposed construction 8 of such spur line, Train Loading Infrastructure 9 or Train Unloading Infrastructure. If the 10 Minister gives in-principle approval the 11 Company may (but not otherwise) submit 12 detailed proposals in respect thereof provided 13 that the provisions of subclause (3) shall 14 mutatis mutandis apply prior to submission of 15 detailed proposals in respect thereof. 16 17 (c) Subject to the EP Act, the provisions of this 18 Agreement and agreement at that time 19 subsisting in respect of any matters required to 20 be agreed pursuant to subclause (3)(a) (as 21 referred to in paragraph (b)), the Company shall 22 submit to the Minister within a reasonable 23 timeframe, as determined by the Minister after 24 receipt of the notice referred to in paragraph (a) 25 (or in the case of a notice referred to in 26 paragraph (b) the giving of the Minister's 27 in-principle consent as referred to in that 28 paragraph), detailed proposals in respect of the 29 proposed construction of such Railway spur 30 line, Train Loading Infrastructure, Train 31 Unloading Infrastructure or other proposed 32 modification, expansion or variation of its 33 activities including such of the matters 34 mentioned in subclause (4)(a) as the Minister 35 may require. 36 37 (d) The provisions of subclause (4) (with the date 38 for submission of proposals being read as the 39 date or time determined by the Minister under 40 paragraph (c) and the reference in subclause page 530 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 (4)(e)(ii) to subclause (3)(c)(i) being read as a 2 reference to subclause (3)(c)(iii)) and of clause 3 7B shall mutatis mutandis apply to detailed 4 proposals submitted pursuant to this subclause. 5 6 Grant of Tenure 7 8 (6) (a) On application made by the Company to the 9 Minister in such manner as the Minister may 10 determine, not later than 3 months after all its 11 proposals submitted pursuant to subclause 12 (4)(a) have been approved or deemed to be 13 approved and the Company has complied with 14 the provisions of subclause (4)(e), the State 15 notwithstanding the Mining Act 1978 shall 16 cause to be granted to the Company: 17 18 (i) a miscellaneous licence to conduct 19 within the Railway Corridor and in 20 accordance with its approved proposals 21 all activities (including the taking of 22 stone, sand, clay and gravel, the 23 provision of temporary accommodation 24 facilities for the railway workforce and, 25 subject to the Rights in Water and 26 Irrigation Act 1914 (WA), the operation 27 of water bores) necessary for the 28 planning, design, construction, 29 commissioning, operation and 30 maintenance within the Railway Corridor 31 of the Railway, access roads and 32 Additional Infrastructure (if any) ("the 33 Special Railway Licence") such licence 34 to be granted under and subject to, 35 except as otherwise provided in this 36 Agreement, the Mining Act 1978 in the 37 form of the Second Schedule hereto and 38 subject to such terms and conditions as 39 the Minister for Mines may from time to 40 time consider reasonable and at a rental page 531 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 calculated in accordance with the Mining 2 Act 1978: 3 4 (A) prior to the Railway Operation 5 Date, as if the width of the 6 Railway Corridor were 100 7 metres; and 8 9 (B) on and from the Railway 10 Operation Date, at the rentals from 11 time to time prescribed under the 12 Mining Act 1978; and 13 14 (ii) a miscellaneous licence or licences to 15 allow the construction, use and 16 maintenance of Lateral Access Roads 17 within the routes agreed for those Lateral 18 Access Roads under subclause (3)(a) 19 (each a "Lateral Access Road Licence"), 20 each such licence to be granted under 21 and subject to, except as otherwise 22 provided in this Agreement, the Mining 23 Act 1978 in the form of the Third 24 Schedule hereto and subject to such 25 terms and conditions as the Minister for 26 Mines may from time to time consider 27 reasonable and at the rentals from time to 28 time prescribed under the Mining Act 29 1978. 30 31 (b) On application made by the Company to the 32 Minister in such manner as the Minister may 33 determine, not later than 3 months after its 34 proposals submitted pursuant to subclause 35 (5)(a) for the construction of Lateral Access 36 Roads for access to the Railway Corridor to 37 construct a Railway spur line have been 38 approved or deemed to be approved and the 39 Company has complied with the provisions of 40 subclause (4)(e) (as applying pursuant to page 532 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 subclause (5)(d)), the State notwithstanding the 2 Mining Act 1978 shall cause to be granted to 3 the Company a miscellaneous licence or 4 licences to allow the construction, use and 5 maintenance of Lateral Access Roads within 6 the routes agreed for those Lateral Access 7 Roads under subclause (3)(a)) (as applying 8 pursuant to subclause (5)(b)) (each a "Lateral 9 Access Road Licence"), each such licence to be 10 granted under and subject to, except as 11 otherwise provided in this Agreement, the 12 Mining Act 1978 in the form of the Fourth 13 Schedule hereto and subject to such terms and 14 conditions as the Minister for Mines may from 15 time to time consider reasonable and at the 16 rentals from time to time prescribed under the 17 Mining Act 1978. 18 19 (c) Notwithstanding the Mining Act 1978, the term 20 of the Special Railway Licence shall, subject to 21 the sooner determination thereof on the 22 cessation or sooner determination of this 23 Agreement, be for a period of 50 years 24 commencing on the date of grant thereof. 25 26 (d) Notwithstanding the Mining Act 1978, the term 27 of any Lateral Access Road Licence shall, 28 subject to the sooner determination thereof on 29 the cessation or sooner determination of this 30 Agreement, be for a period of 4 years 31 commencing on the date of grant thereof. 32 33 (e) Notwithstanding the Mining Act 1978, and 34 except as required to do so by the terms of the 35 Special Railway Licence, the Company shall 36 not be entitled to surrender the Special Railway 37 Licence or any Lateral Access Road Licence or 38 any part or parts of them without the prior 39 consent of the Minister. 40 page 533 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 (f) (i) The Company may in accordance with 2 approved proposals take stone, sand, clay 3 and gravel from the Railway Corridor for 4 the construction, operation and 5 maintenance of the Railway constructed 6 within or approved for construction 7 within the Railway Corridor. 8 9 (ii) Notwithstanding the Mining Act 1978 no 10 royalty shall be payable under the 11 Mining Act 1978 in respect of stone, 12 sand, clay and gravel which the 13 Company is permitted by subparagraph 14 (i) to obtain from the land the subject of 15 the Special Railway Licence. 16 17 (g) For the purposes of this Agreement and without 18 limiting the operation of paragraphs (a) to (f) 19 inclusive above, the application of the Mining 20 Act 1978 and the regulations made thereunder 21 are specifically modified; 22 23 (i) in section 91(1) by: 24 25 (A) deleting "the mining registrar or 26 the warden, in accordance with 27 section 42 (as read with section 28 92)" and substituting "the 29 Minister"; 30 31 (B) deleting "any person" and 32 substituting "the Company (as 33 defined in the agreement approved 34 by and scheduled to the Iron Ore 35 (Mount Newman) Agreement Act 36 1964, as from time to time added 37 to, varied or amended)"; 38 39 (C) deleting "for any one or more of 40 the purposes prescribed" and page 534 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 substituting "for the purpose 2 specified in clause 9E(6)(a)(i), 3 clause 9E(6)(a)(ii) or clause 4 9E(6)(b), of the agreement 5 approved by and scheduled to the 6 Iron Ore (Mount Newman) 7 Agreement Act 1964, as from time 8 to time added to, varied or 9 amended"; 10 11 (ii) in section 91(3)(a), by deleting 12 "prescribed form" and substituting "form 13 required by the agreement approved by 14 and scheduled to the Iron Ore (Mount 15 Newman) Agreement Act 1964, as from 16 time to time added to, varied or 17 amended"; 18 19 (iii) by deleting sections 91(6), 91(9), 91(10) 20 and 91B; 21 22 (iv) in section 92, by deleting "Sections 41, 23 42, 44, 46, 46A, 47 and 52 apply," and 24 inserting "Section 46A (excluding in 25 subsection (2)(a) "the mining registrar, 26 the warden or") applies," and by deleting 27 "in those provisions" and inserting "in 28 that provision"; 29 30 (v) by deleting the full stop at the end of the 31 section 94(1) and inserting, "except to 32 the extent otherwise provided in, or to 33 the extent that such terms and conditions 34 are inconsistent with, the agreement 35 approved by and scheduled to the Iron 36 Ore (Mount Newman) Agreement Act 37 1964, as from time to time added to, 38 varied or amended"; 39 40 (vi) by deleting sections 94(2), (3) and (4); page 535 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 2 (vii) in section 96(1), by inserting after 3 "miscellaneous licence" the words "(not 4 being a miscellaneous licence granted 5 pursuant to the agreement approved by 6 and scheduled to the Iron Ore (Mount 7 Newman) Agreement Act 1964, as from 8 time to time added to, varied or 9 amended"; 10 11 (viii) by deleting mining regulations 37(2), 12 37(3), 42 and 42A; and 13 14 (ix) by inserting at the beginning of mining 15 regulations 41(c) and (f) the words 16 "subject to the agreement approved by 17 and scheduled to the Iron Ore (Mount 18 Newman) Agreement Act 1964, as from 19 time to time added to, varied or 20 amended". 21 22 (h) If additional proposals are approved in 23 accordance with subclause (5) for the 24 construction of a Railway spur line outside the 25 then Railway Corridor, the Minister for Mines 26 shall include the area of land within which such 27 construction is to occur in the Special Railway 28 Licence by endorsement. The area of such land 29 may be included notwithstanding that the 30 survey of the land has not been completed but 31 subject to correction to accord with the survey 32 when completed at the Company's expense. 33 34 (i) If additional proposals are approved in 35 accordance with subclause (5) for the 36 construction of Train Loading Infrastructure or 37 Train Unloading Infrastructure outside the then 38 Railway Corridor, the Minister for Mines shall 39 include the area of such land within which such 40 infrastructure is approved for construction in page 536 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 the Special Railway Licence by endorsement. 2 The area of such land may be included 3 notwithstanding that the survey of the land has 4 not been completed but subject to correction to 5 accord with the survey when completed at the 6 Company's expense. 7 8 (j) The provisions of this subclause shall not 9 operate so as to require the State to cause a 10 Special Railway Licence or a Lateral Access 11 Road Licence to be granted or any land 12 included in the Special Railway Licence as 13 mentioned above until all processes necessary 14 under any laws relating to native title to enable 15 that grant or inclusion of land to proceed, have 16 been completed. 17 18 Construction and operation of Railway 19 20 (7) (a) Subject to and in accordance with approved 21 proposals, the Rail Safety Act and the grant of 22 the relevant Special Railway Licence and any 23 associated Lateral Access Road Licences the 24 Company shall in a proper and workmanlike 25 manner and in accordance with recognised 26 standards for railways of a similar nature 27 operating under similar conditions construct the 28 Railway and associated Additional 29 Infrastructure and access roads within the 30 Railway Corridor and shall also construct inter 31 alia any necessary sidings, crossing points, 32 bridges, signalling switches and other works 33 and appurtenances and provide for crossings 34 and (where appropriate and required by the 35 Minister) grade separation or other protective 36 devices including flashing lights and boom 37 gates at places where the Railway crosses or 38 intersects with major roads or existing railways. 39 page 537 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 (b) The Company shall while the holder of a 2 Special Railway Licence: 3 4 (i) keep the Railway the subject of that 5 licence in an operable state; and 6 7 (ii) ensure that the Railway the subject of 8 that licence is operated in a safe and 9 proper manner in compliance with all 10 applicable laws from time to time; and 11 12 (iii) without limiting subparagraph (ii) ensure 13 that the obligations imposed under the 14 Rail Safety Act on an owner and an 15 operator (as those terms are therein 16 defined) are complied with in connection 17 with the Railway the subject of that 18 licence. 19 20 Nothing in this Agreement shall be construed 21 to exempt the Company or any other person 22 from compliance with the Rail Safety Act or 23 limit its application to the Company's 24 operations generally (except as otherwise may 25 be provided in that Act or regulations made 26 under it). 27 28 (c) The Company shall provide crossings for 29 livestock and also for any roads, other railways, 30 conveyors, pipelines and other utilities which 31 exist at the date of grant of the relevant Special 32 Railway Licence or in respect of land 33 subsequently included in it at the date of such 34 inclusion and the Company shall on reasonable 35 terms and conditions allow such crossings for 36 roads, railways, conveyors, pipelines and other 37 utilities which may be constructed for future 38 needs and which may be required to cross a 39 Railway constructed pursuant to this clause. 40 page 538 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 (d) Subject to clause 9D, the Company shall at all 2 times be the holder of Special Railway 3 Licences and Lateral Access Road Licences 4 granted pursuant to this clause and (without 5 limiting clause 10(j) but subject to clause 9D) 6 shall at all times own manage and control the 7 use of each Railway the subject of a Special 8 Railway Licence held by the Company. 9 10 (e) The Company shall not be entitled to exclusive 11 possession of the land the subject of a Special 12 Railway Licence or Lateral Access Road 13 Licence granted pursuant to this clause to the 14 intent that the State, the Minister, the Minister 15 for Mines and any persons authorised by any 16 of them from time to time shall be entitled to 17 enter upon the land or any part of it at all 18 reasonable times and on reasonable notice with 19 all necessary vehicles, plant and equipment and 20 for purposes related to this Agreement or such 21 other purposes as they think fit but in doing so 22 shall be subject to the reasonable directions of 23 the Company so as not to unreasonably 24 interfere with the Company's operations. 25 26 (f) The Company's ownership of a Railway 27 constructed pursuant to this clause shall not 28 give it an interest in the land underlying it. 29 30 (g) The Company shall not at any time without the 31 prior consent of the Minister dismantle, sell or 32 otherwise dispose of any part or parts of any 33 Railway constructed pursuant to this clause, or 34 permit this to occur, other than for the purpose 35 of maintenance, repair, upgrade or renewal. 36 37 (h) The Company shall, subject to and in 38 accordance with approved proposals, in a 39 proper and workmanlike manner, construct any 40 Additional Infrastructure, access roads, Lateral page 539 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 Access Roads and other works approved for 2 construction under this clause. 3 4 (i) The Company shall while the holder of a 5 Special Railway Licence at all times keep and 6 maintain in good repair and working order and 7 condition (which obligation includes, where 8 necessary, replacing or renewing all parts 9 which are worn out or in need of replacement 10 or renewal due to their age or condition) the 11 Railway, access roads and Additional 12 Infrastructure (if any) the subject of that 13 licence and all such other works installations 14 plant machinery and equipment for the time 15 being the subject of this Agreement and used 16 in connection with the operation use and 17 maintenance of that Railway, access roads and 18 Additional Infrastructure (if any). 19 20 (j) Subject to clause 9D, the Company shall: 21 22 (i) be responsible for the cost of 23 construction and maintenance of all 24 Private Roads constructed pursuant to 25 this clause; and 26 27 (ii) at its own cost erect signposts and take 28 other steps that may be reasonable in the 29 circumstances to prevent any persons and 30 vehicles (other than those engaged upon 31 the Company's activities and its invitees 32 and licensees) from using the Private 33 Roads; and 34 35 (iii) at any place where any Private Roads are 36 constructed by the Company so as to 37 cross any railways or public roads 38 provide at its cost such reasonable 39 protection and signposting as may be 40 required by the Commissioner of Main page 540 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 Roads or the Public Transport Authority 2 as the case may be. 3 4 (k) The provisions of clauses 9(2)(a) and (3) 5 regarding third party access as well as the 6 proviso to clause 9(2)(a) shall apply mutatis 7 mutandis to any Railway or Railway spur line 8 constructed pursuant to this clause except that 9 the Company shall not be obliged to transport 10 passengers upon any such Railway or Railway 11 spur line. 12 13 Aboriginal Heritage Act 1972 (WA) 14 15 (8) For the purposes of this clause the Aboriginal 16 Heritage Act 1972 (WA) applies as if it were 17 modified by: 18 19 (a) the insertion before the full stop at the end of 20 section 18(1) of the words: 21 22 "and the expression "the Company" means the 23 persons from time to time comprising "the 24 Company" in their capacity as such under the 25 agreement approved by and scheduled to the 26 Iron Ore (Mount Newman) Agreement Act 27 1964, as from time to time added to, varied or 28 amended in relation to the use or proposed use 29 of land pursuant to clause 9E of that agreement 30 after and in accordance with approved 31 proposals under clause 9E of that agreement 32 and in relation to the use of that land before any 33 such approval of proposals where the Company 34 has the requisite authority to enter upon and so 35 use the land"; 36 37 (b) the insertion in sections 18(2), 18(4), 18(5) and 38 18(7) of the words "or the Company as the case 39 may be" after the words "owner of any land"; 40 page 541 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 (c) the insertion in section 18(3) of the words "or 2 the Company as the case may be" after the 3 words "the owner"; 4 5 (d) the insertion of the following sentences at the 6 end of section 18(3): 7 8 "In relation to a notice from the Company the 9 conditions that the Minister may specify can as 10 appropriate include, among other conditions, a 11 condition restricting the Company's use of the 12 relevant land to after the approval or deemed 13 approval as the case may be under the 14 abovementioned agreement of all of the 15 Company's submitted initial proposals 16 thereunder for the Railway Operation (as 17 defined in clause 9E(1) of the abovementioned 18 agreement), or in the case of additional 19 proposals submitted or to be submitted by the 20 Company to after the approval or deemed 21 approval under that agreement of such 22 additional proposals, and to the extent so 23 approved. "; and 24 25 (e) the insertion in sections 18(2) and 18(5) of the 26 words "or it as the case may be" after the word 27 "he". 28 29 The Company acknowledges that nothing in this 30 subclause (8) nor the granting of any consents under 31 section 18 of the Aboriginal Heritage Act 1972 (WA) 32 will constitute or is to be construed as constituting the 33 approval of any proposals submitted or to be 34 submitted by the Company under this Agreement or 35 as the grant or promise of land tenure for the purposes 36 of this Agreement. page 542 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 2 Taking of land for the purposes of this clause 3 4 (9) (a) The State is hereby empowered, as and for a 5 public work under Parts 9 and 10 of the LAA, 6 to take for the purposes of this clause any land 7 (other than any part of a Port) which in the 8 opinion of the Company is necessary for the 9 relevant Railway Operation and which the 10 Minister determines is appropriate to be taken 11 for the relevant Railway Operation (except any 12 land the taking of which would be contrary to 13 the provisions of a Government agreement 14 entered into before the submission of the 15 proposals relating to the proposed taking) and 16 notwithstanding any other provisions of that 17 Act may license that land to the Company. 18 19 (b) In applying Parts 9 and 10 of the LAA for the 20 purposes of this clause: 21 22 (i) "land" in that Act includes a legal or 23 equitable estate or interest in land; 24 25 (ii) sections 170, 171, 172, 173, 174, 175 and 26 184 of that Act do not apply; and 27 28 (iii) that Act applies as if it were modified in 29 section 177(2) by inserting - 30 31 (A) after "railway" the following - 32 33 "or land is being taken pursuant to 34 a Government agreement as 35 defined in section 2 of the 36 Government Agreements Act 1979 37 (WA)"; and 38 39 (B) after "that Act" the following - page 543 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 "or that Agreement as the case 2 may be". 3 (c) The Company shall pay to the State on demand 4 the costs of or incidental to any land taken at 5 the request of and on behalf of the Company 6 including but not limited to any compensation 7 payable to any holder of native title or of native 8 title rights and interests in the land. 9 10 Notification of Railway Operation Date 11 12 (10) (a) The Company shall from the date occurring 6 13 months before the date for completion of 14 construction of a Railway specified in its time 15 program for the commencement and completion 16 of construction of that Railway submitted under 17 subclause (4)(a), keep the Minister fully 18 informed as to: 19 20 (i) the progress of that construction and its 21 likely completion and commissioning; 22 and 23 24 (ii) the likely Railway Operation Date. 25 26 (b) The Company shall on the Railway Operation 27 Date notify the Minister that the first carriage 28 of iron ore, freight goods or other products as 29 the case may be over the Railway (other than 30 for construction or commissioning purposes) 31 has occurred. 32 33 (c) The Company shall from the date occurring 6 34 months before the date for completion of 35 construction of a Railway spur line specified in 36 its time program for the commencement and 37 completion of construction of that spur line 38 submitted under subclause (5)(c) keep the 39 Minister fully informed as to: page 544 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 2 (i) the progress of that construction and its 3 likely completion and commissioning; 4 and 5 6 (ii) in respect of it, the likely Railway spur 7 line Operation Date. 8 9 (d) The Company shall on the Railway spur line 10 Operation Date in respect of any Railway spur 11 line notify the Minister that the first carriage of 12 iron ore, freight goods or other products as the 13 case may be over such spur line (other than for 14 construction or commissioning purposes) has 15 occurred"; 16 17 (17) by inserting after paragraph (a) of clause 10 the following new 18 paragraph: 19 20 "(aa) the purposes for which the Company may in accordance 21 with paragraph (a) generate transmit and supply electricity 22 shall, without limiting paragraph (a), include the purpose of 23 supply to: 24 25 (i) "the Company" or "Joint Venturers" as the case may 26 be as defined in, and for the purpose of an 27 Integration Agreement, for its or their purposes 28 thereunder; 29 (ii) the holders from time to time of a Mining Act 1978 30 mining lease located in, or proximate to, the Pilbara 31 region of the said State which is held by a Related 32 Entity alone or with a third party or parties 33 (excluding any mining lease granted pursuant to, or 34 held under, a Government agreement) for the 35 purpose of their iron ore mining operations on that 36 mining lease; and 37 (iii) with the prior approval of the Minister, "the 38 Company" or "the Joint Venturers" as the case may page 545 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 be as defined in, and for the purpose of a 2 Government agreement (excluding an Integration 3 Agreement) for the mining of iron ore in, or 4 proximate to, the Pilbara region of the said State for 5 the purpose of its or their operations under that 6 agreement;"; 7 (18) in clause 10(d)(i) by inserting "or held pursuant hereto" after 8 "granted hereunder or pursuant hereto"; 9 10 (19) in clause 10(e) by: 11 12 (a) inserting "or pursuant hereto" after "easement granted 13 hereunder"; and 14 15 (b) inserting "or held pursuant hereto" after "under clause 19 16 hereof"; 17 18 (20) in clause 10(l) by: 19 20 (a) inserting "granted under or pursuant to this Agreement or 21 held pursuant to this Agreement" after "licence or other 22 title"; 23 24 (b) inserting "or held pursuant hereto" after the 2 references to 25 "granted hereunder or pursuant hereto"; and 26 27 (c) deleting "occupied by the Company" and substituting "the 28 subject of any lease, licence, easement or other title granted 29 under or pursuant to this Agreement or held pursuant to this 30 Agreement"; 31 32 (21) by inserting the following new sentence at the end of clause 18: 33 34 "As a separate independent indemnity the Company will indemnify 35 and keep indemnified the State and its servants agents and 36 contractors in respect of all actions suits claims demands or costs 37 of third parties arising out of or in connection with any use, 38 making available for use or other activities of the Company as 39 referred to in clause 9C."; page 546 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 2 (22) in clause 20(1) by inserting "or held pursuant hereto" after 3 "granted hereunder or pursuant hereto"; 4 5 (23) by deleting clause 28; and 6 7 (24) by inserting after the Schedule the following new schedules: 8 9 10 "SECOND SCHEDULE 11 12 WESTERN AUSTRALIA 13 14 IRON ORE (MOUNT NEWMAN) AGREEMENT ACT 1964 15 16 MINING ACT 1978 17 18 MISCELLANEOUS LICENCE FOR A RAILWAY AND OTHER 19 PURPOSES 20 21 22 No. MISCELLANEOUS LICENCE [ ] 23 24 WHEREAS by the Agreement (hereinafter called "the Agreement") approved 25 by and scheduled to the Iron Ore (Mount Newman) Agreement Act 1964, as 26 from time to time added to, varied or amended, the State agreed to grant to [ ] 27 (hereinafter with its successors and permitted assigns called "the Company") a 28 miscellaneous licence for the construction operation and maintenance of a 29 Railway (as defined in clause 9E(1) of the Agreement and otherwise as 30 provided in the Agreement) and, if applicable, other purposes AND 31 WHEREAS the Company pursuant to clause 9E(6)(a) of the Agreement has 32 made application for the said licence; 33 34 NOW in consideration of the rents reserved by and the provisions of the 35 Agreement and in pursuance of the Iron Ore (Mount Newman) Agreement Act 36 1964, as from time to time added to, varied or amended, the Company is hereby 37 granted by this licence authority to conduct on the land the subject of this 38 licence as more particularly delineated and described from time to time in the 39 Schedule hereto all activities (including the taking of stone, sand, clay and 40 gravel, the provision of temporary accommodation facilities for the railway page 547 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 workforce in accordance with the Agreement and, subject to the Rights in 2 Water and Irrigation Act 1914 (WA), the operation of water bores) necessary 3 for the planning, design, construction, commissioning, operation and 4 maintenance on the land the subject of this licence of the Railway and 5 Additional Infrastructure (as defined in clause 9E(1) of the Agreement) and 6 access roads to be located on the land the subject of this licence in accordance 7 with the provisions of the Agreement and proposals approved under the 8 Agreement, for the term of 50 years from the date hereof (subject to the sooner 9 determination of the term upon the determination of the Agreement) and upon 10 and subject to the terms covenants and conditions set out in the Agreement and 11 the Mining Act 1978 as it applies to this licence, and any amendments to the 12 Agreement and the Mining Act 1978 from time to time and to the terms and 13 conditions (if any) now or hereafter endorsed hereon and the payment of rentals 14 in respect of this licence in accordance with clause 9E(6)(a)(i) of the 15 Agreement PROVIDED ALWAYS that this licence shall not be determined or 16 forfeited otherwise than in accordance with the Agreement. 17 18 In this licence: 19 20 - If the Company be more than one the liability of the Company 21 hereunder shall be joint and several. 22 23 - Reference to an Act includes all amendments to that Act for the time 24 being in force and also any Act passed in substitution therefore or in 25 lieu thereof and to the regulations and by-laws of the time being in 26 force thereunder. 27 28 - Reference to "the Agreement" means such agreement as from time to 29 time added to, varied or amended. 30 31 - The terms "approved proposals", "Railway", "Railway Operation 32 Date", and "Railway spur line" have the meanings given in the 33 Agreement. 34 page 548 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 ENDORSEMENTS AND CONDITIONS 2 3 Endorsements 4 5 1. This licence is granted in accordance with proposals submitted on 6 [ ], and approved by the Minister (as defined in the Agreement) on 7 [ ], under the Agreement. 8 9 2. The Company is permitted to, in accordance with approved proposals, 10 take stone, sand, clay and gravel from the land the subject of this 11 licence for the construction, operation and maintenance of the 12 Railway (including any Railway spur line) constructed within or 13 approved for construction within the area of land the subject of this 14 licence. 15 16 3. Notwithstanding the Mining Act 1978, no royalty shall be payable 17 under the Mining Act 1978 in respect of stone, sand, clay and gravel 18 which the Company is permitted by the Agreement to obtain from the 19 land the subject of this licence. 20 21 4. [Any further endorsement which the Minister for Mines may, 22 consistent with the provisions of the Agreement, determines and 23 thereafter impose in respect of this licence including during the term 24 of the Agreement.] 25 26 Conditions 27 28 1. (a) Except as provided in paragraph (b), the Company shall 29 within 2 years after the Railway Operation Date surrender in 30 accordance with the provisions of the Mining Act 1978 the 31 area of this licence down to a maximum of 100 metres width 32 or as otherwise approved by the Minister (as defined in the 33 Agreement) for the safe operation of the Railway then 34 constructed or approved for construction under approved 35 proposals. 36 37 (b) Paragraph (a) shall not apply to land the subject of this 38 licence that was included in this licence pursuant to clause 39 9E(6)(h) or clause 9E(6)(i) of the Agreement. page 549 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 2 2. The Company shall as soon as possible after the construction of a 3 Railway spur line or of an expansion or extension thereof as the case 4 may be surrender in accordance with the Mining Act 1978 the land 5 the subject of this licence that was included in this licence pursuant 6 to clause 9E(6)(h) of the Agreement for the purpose of such 7 construction down to a maximum of 100 metres in width or as 8 otherwise approved by the Minister (as defined in the Agreement) 9 for the safe operation of that Railway spur line or expansion or 10 extension thereof as the case may be then constructed or approved 11 for construction under approved proposals. 12 13 3. [Any further conditions which the Minister for Mines may, consistent 14 with the provisions of the Agreement, determines and thereafter 15 impose in respect of this licence including during the term of the 16 Agreement.] 17 18 SCHEDULE 19 20 Land description 21 22 Locality: 23 Mineral Field 24 Area: 25 26 DATED at Perth this day of . 27 28 MINISTER FOR MINES 29 30 page 550 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 THIRD SCHEDULE 2 3 WESTERN AUSTRALIA 4 5 IRON ORE (MOUNT NEWMAN) AGREEMENT ACT 1964 6 7 MINING ACT 1978 8 9 MISCELLANEOUS LICENCE FOR A LATERAL ACCESS ROAD 10 11 12 No. MISCELLANEOUS LICENCE [ ] 13 14 WHEREAS by the Agreement (hereinafter called "the Agreement") approved 15 by and scheduled to the Iron Ore (Mount Newman) Agreement Act 1964, as 16 from time to time added to, varied or amended, the State agreed to grant to 17 [ ] (hereinafter with its successors and permitted assigns called "the 18 Company") a miscellaneous licence for the construction use and maintenance 19 of a Lateral Access Road (as defined in the Agreement) AND WHEREAS the 20 Company pursuant to clause 9E(6)(a)(ii) of the Agreement has made 21 application for the said licence; 22 23 NOW in consideration of the rents reserved by and the provisions of the 24 Agreement and in pursuance of the Iron Ore (Mount Newman) Agreement Act 25 1964, as from time to time added to, varied or amended, the Company is hereby 26 authorised to construct use and maintain a road on the land more particularly 27 delineated and described from time to time in the Schedule hereto in 28 accordance with the provisions of the Agreement and proposals approved under 29 the Agreement for a term of 4 years commencing on the date hereof (subject to 30 the sooner determination of the term upon the cessation or determination of the 31 Agreement) and for the purposes and upon and subject to the terms covenants 32 and conditions set out in the Agreement and the Mining Act 1978 as it applies 33 to this licence, and any amendments to the Agreement and the Mining Act 1978 34 from time to time and to the terms and conditions (if any) now or hereafter 35 endorsed hereon and the payment of rentals in respect of this licence in 36 accordance with clause 9E(6)(a)(ii) of the Agreement PROVIDED ALWAYS 37 that this licence shall not be determined or forfeited otherwise than in 38 accordance with the Agreement. 39 page 551 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 In this licence: 2 3 - If the Company be more than one the liability of the Company 4 hereunder shall be joint and several. 5 6 - Reference to an Act includes all amendments to that Act for the time 7 being in force and also any Act passed in substitution therefore or in 8 lieu thereof and to the regulations and by-laws of the time being in 9 force thereunder. 10 11 - Reference to "the Agreement" means such agreement as from time to 12 time added to, varied or amended. 13 14 ENDORSEMENTS AND CONDITIONS 15 16 Endorsements 17 18 1. This licence is granted in accordance with proposals submitted on 19 [ ], and approved by the Minister (as defined in the Agreement) on 20 [ ], under the Agreement. 21 22 2. [Any further endorsement which the Minister for Mines may, 23 consistent with the provisions of the Agreement, determines and 24 thereafter impose in respect of this licence including during the term 25 of the Agreement.] 26 27 Conditions 28 29 [Such conditions which the Minister for Mines may, consistent with the 30 provisions of the Agreement, determines and thereafter impose in respect of the 31 licence, including during the term of the Agreement.] 32 33 page 552 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 SCHEDULE 2 3 Description of land 4 5 Locality: 6 Mineral Field: 7 Area: 8 9 DATED at Perth this day of . 10 11 MINISTER FOR MINES 12 page 553 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 FOURTH SCHEDULE 2 3 WESTERN AUSTRALIA 4 5 IRON ORE (MOUNT NEWMAN) AGREEMENT ACT 1964 6 7 MINING ACT 1978 8 9 MISCELLANEOUS LICENCE FOR A LATERAL ACCESS ROAD 10 11 12 No. MISCELLANEOUS LICENCE [ ] 13 14 WHEREAS by the Agreement (hereinafter called "the Agreement") approved 15 by and scheduled to the Iron Ore (Mount Newman) Agreement Act 1964, as 16 from time to time added to, varied or amended, the State agreed to grant to 17 [ ] (hereinafter with its successors and permitted assigns called "the 18 Company") a miscellaneous licence for the construction use and maintenance 19 of a Lateral Access Road (as defined in the Agreement) AND WHEREAS the 20 Company pursuant to clause 9E(6)(b) of the Agreement has made application 21 for the said licence; 22 23 NOW in consideration of the rents reserved by and the provisions of the 24 Agreement and in pursuance of the Iron Ore (Mount Newman) Agreement Act 25 1964, as from time to time added to, varied or amended, the Company is hereby 26 authorised to construct use and maintain a road on the land more particularly 27 delineated and described from time to time in the Schedule hereto in 28 accordance with the provisions of the Agreement and proposals approved under 29 the Agreement for a term of 4 years commencing on the date hereof (subject to 30 the sooner determination of the term upon the cessation or determination of the 31 Agreement) and for the purposes and upon and subject to the terms covenants 32 and conditions set out in the Agreement and the Mining Act 1978 as it applies 33 to this licence, and any amendments to the Agreement and the Mining Act 1978 34 from time to time and to the terms and conditions (if any) now or hereafter 35 endorsed hereon and the payment of rentals in respect of this licence in 36 accordance with clause 9E(6)(b) of the Agreement PROVIDED ALWAYS that 37 this licence shall not be determined or forfeited otherwise than in accordance 38 with the Agreement. 39 page 554 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 In this licence: 2 3 - If the Company be more than one the liability of the Company 4 hereunder shall be joint and several. 5 6 - Reference to an Act includes all amendments to that Act for the time 7 being in force and also any Act passed in substitution therefore or in 8 lieu thereof and to the regulations and by-laws of the time being in 9 force thereunder. 10 11 - Reference to "the Agreement" means such agreement as from time to 12 time added to, varied or amended. 13 14 ENDORSEMENTS AND CONDITIONS 15 16 Endorsements 17 18 1. This licence is granted in accordance with proposals submitted on 19 [ ], and approved by the Minister (as defined in the Agreement) on 20 [ ], under the Agreement. 21 22 2. [Any further endorsement which the Minister for Mines may, 23 consistent with the provisions of the Agreement, determines and 24 thereafter impose in respect of this licence including during the term 25 of the Agreement.] 26 27 Conditions 28 29 [Such conditions which the Minister for Mines may, consistent with the 30 provisions of the Agreement, determines and thereafter impose in respect of the 31 licence, including during the term of the Agreement.] 32 33 page 555 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 SCHEDULE 2 3 Description of land 4 5 Locality: 6 Mineral Field: 7 Area: 8 9 DATED at Perth this day of . 10 11 MINISTER FOR MINES ". 12 13 14 page 556 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 7 s. 29 1 EXECUTED as a deed. 2 3 SIGNED by THE HONOURABLE ) 4 COLIN JAMES BARNETT ) [Signature] 5 in the presence of: ) 6 [Signature] STEPHEN WOOD 7 8 9 10 EXECUTED by BHP BILLITON ) 11 MINERALS PTY. LTD. ACN 008 694 ) 12 782 in accordance with section 127(1) of ) 13 the Corporations Act ) 14 [Signature] [Signature] Signature of Director Signature of Director/Company Secretary 15 STEWART HART ROBIN B LEES Name of Director Name of Director/Company Secretary 16 17 18 19 EXECUTED by MITSUI-ITOCHU ) 20 IRON PTY. LTD. ACN 008 702 761 ) 21 in accordance with section 127(1) ) 22 of the Corporations Act ) 23 [Signature] [Signature] Signature of Director Signature of Director/Company Secretary 24 RYUZO NAKAMURA GAVIN PETER PATTERSON Name of Director Name of Director/Company Secretary 25 26 page 557 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 7 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 29 1 Signed by Shuzaburo Tsuchihashi as ) 2 attorney for ITOCHU MINERALS & ) 3 ENERGY OF AUSTRALIA PTY. ) 4 LTD. ACN 009 256 259 under power ) 5 of attorney dated 12 November 2010 ) 6 in the presence of: ) 7 [Signature] [Signature] Signature of witness Shuzaburo Tsuchihashi 8 YASUSHI FUKUMURA Name of witness (print) 9 10 page 558 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 30 1 Part 8 -- Iron Ore (Mount Goldsworthy) Agreement 2 Act 1964 amended 3 30. Act amended 4 This Part amends the Iron Ore (Mount Goldsworthy) Agreement 5 Act 1964. 6 31. Section 3 amended 7 (1) At the end of section 3 insert: 8 9 the fourth Variation Agreement means the agreement 10 a copy of which is set out in the Fifth Schedule. 11 12 (2) In section 3 in the definition of the third Variation Agreement 13 delete "Schedule." and insert: 14 15 Schedule; 16 17 32. Sections 5B and 5C inserted 18 After section 5A insert: 19 20 5B. Fourth Variation Agreement 21 (1) The fourth Variation Agreement is ratified. 22 (2) The implementation of the fourth Variation Agreement 23 is authorised. 24 (3) Without limiting or otherwise affecting the application 25 of the Government Agreements Act 1979, the fourth 26 Variation Agreement is to operate and take effect 27 despite any other Act or law. page 559 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 5C. State empowered under clause 9E(9)(a) 2 The State has power in accordance with 3 clause 9E(9)(a) of the Agreement. 4 5 33. Fifth Schedule inserted 6 After the Fourth Schedule insert: page 560 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 Fifth Schedule -- Fourth Variation Agreement 2 [s. 3] 3 2010 4 5 6 7 THE HONOURABLE COLIN JAMES BARNETT 8 PREMIER OF THE STATE OF WESTERN AUSTRALIA 9 10 AND 11 12 BHP BILLITON MINERALS PTY. LTD. 13 ACN 008 694 782 14 15 MITSUI IRON ORE CORPORATION PTY. LTD. 16 ACN 050 157 456 17 18 ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY. LTD. 19 ACN 009 256 259 20 21 22 ___________________________________________________________ 23 24 IRON ORE (MOUNT GOLDSWORTHY) AGREEMENT 1964 25 26 RATIFIED VARIATION AGREEMENT 27 ___________________________________________________________ 28 29 30 31 [Solicitor's details] 32 33 34 35 36 37 38 39 40 page 561 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 THIS AGREEMENT is made this 17th day of November 2010 2 3 4 BETWEEN 5 6 7 THE HONOURABLE COLIN JAMES BARNETT MLA., Premier of the 8 State of Western Australia, acting for and on behalf of the said State and 9 instrumentalities thereof from time to time (State) 10 11 AND 12 13 BHP BILLITON MINERALS PTY. LTD. ACN 008 694 782 of Level 17, St 14 Georges Square, 225 St Georges Terrace, Perth, Western Australia, MITSUI 15 IRON ORE CORPORATION PTY. LTD. ACN 050 157 456 of Level 16, 16 Exchange Plaza, 2 The Esplanade, Perth, Western Australia and ITOCHU 17 MINERALS & ENERGY OF AUSTRALIA PTY. LTD. ACN 009 256 259 18 of Level 22, Forrest Centre, 221 St Georges Terrace, Perth, Western Australia 19 (Joint Venturers). 20 21 22 RECITALS 23 24 A. The State and the Joint Venturers are now the parties to the agreement 25 dated 15 October 1964 approved by and scheduled to the Iron Ore 26 (Mount Goldsworthy) Agreement Act 1964 and which as subsequently 27 added to, varied or amended is referred to in this Agreement as the 28 "Principal Agreement". 29 B. The State and the Joint Venturers wish to vary the Principal 30 Agreement. 31 32 33 THE PARTIES AGREE AS FOLLOWS: 34 35 1. Subject to the context, the words and expressions used in this Agreement 36 have the same meanings respectively as they have in and for the purpose 37 of the Principal Agreement. page 562 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 2. The State shall sponsor a Bill in the Parliament of Western Australia to 2 ratify this Agreement and shall endeavour to secure its passage as an Act 3 prior to 31 December 2010 or such later date as the parties may agree. 4 3. (a) Clause 4 does not come into operation unless or until an Act 5 passed in accordance with clause 2 ratifies this Agreement. 6 (b) If by 30 June 2011, or such later date as may be agreed pursuant to 7 clause 2, clause 4 has not come into operation then unless the 8 parties otherwise agree this Agreement shall cease and determine 9 and neither party shall have any claim against the other party with 10 respect to any matter or thing arising out of or done or performed 11 or omitted to be done or performed under this Agreement. 12 4. The Principal Agreement is varied as follows: 13 (1) in clause 1: 14 (a) by deleting the existing definitions of "beneficiated ore", 15 "deemed f.o.b. value", "fine ore", "low grade run of mine 16 iron ore" and "lump ore"; 17 (b) by inserting in the appropriate alphabetical positions the 18 following new definitions: 19 "approved proposal" means a proposal approved or 20 determined under this Agreement; 21 "beneficiated ore" means iron ore that has been concentrated 22 or upgraded (otherwise than solely by crushing, screening, 23 separating by hydrocycloning or a similar technology which 24 uses primarily size as a criterion, washing, scrubbing, 25 trommelling or drying or by a combination of 2 or more of 26 those processes) by the Joint Venturers in a plant constructed 27 pursuant to a proposal approved pursuant to an Integration 28 Agreement or in such other plant as is approved by the 29 Minister after consultation with the Minister for Mines and 30 "beneficiation" and "beneficiate" have corresponding 31 meanings; page 563 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 "deemed f.o.b. value" means an agreed or determined value 2 of the iron ore as if the iron ore was sold f.o.b. at the deemed 3 f.o.b. point as at: 4 (a) in the case of iron ore the property of the Joint 5 Venturers which is shipped out of the said State, the 6 date of shipment; and 7 (b) in any other case, the date of sale, transfer of 8 ownership, disposal or use as the case may be; 9 "EP Act" means the Environmental Protection Act 1986 10 (WA); 11 "fine ore" means iron ore (not being beneficiated ore) which 12 is screened and will pass through a 6.3 millimetre mesh 13 screen; 14 "Government agreement" has the meaning given in the 15 Government Agreements Act 1979 (WA); 16 "Integration Agreement" means: 17 18 (a) the agreement approved by and scheduled to the Iron 19 Ore (Hamersley Range) Agreement Act 1963, as from 20 time to time added to, varied or amended; or 21 (b) the agreement approved by and scheduled to the Iron 22 Ore (Robe River) Agreement Act 1964, as from time 23 to, time added to varied or amended; or 24 (c) the agreement approved by and scheduled to the Iron 25 Ore (Hamersley Range) Agreement Act Amendment 26 Act 1968, as from time to time added to, varied or 27 amended; or 28 (d) the agreement ratified by and scheduled to the Iron 29 Ore (Mount Bruce) Agreement Act 1972, as from time 30 to time added to, varied or amended; or page 564 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 (e) the agreement ratified by and scheduled to the Iron 2 Ore (Hope Downs) Agreement Act 1992, as from time 3 to time added to, varied or amended; or 4 (f) the agreement ratified by and scheduled to the Iron 5 Ore (Yandicoogina) Agreement Act 1996, as from 6 time to time added to, varied or amended; or 7 (g) the agreement approved by and scheduled to the Iron 8 Ore (Mount Newman) Agreement Act 1964, as from 9 time to time added to, varied or amended; or 10 (h) the agreement approved by and scheduled to the Iron 11 Ore (Mount Goldsworthy) Agreement Act 1964, as 12 from time to time added to, varied or amended; or 13 (i) the agreement ratified by and scheduled to the Iron 14 Ore (Goldsworthy-Nimingarra) Agreement Act 1972, 15 as from time to time added to, varied or amended; or 16 (j) the agreement authorised by and as scheduled to the 17 Iron Ore (McCamey's Monster) Agreement 18 Authorisation Act 1972, as from time to time added to, 19 varied or amended; or 20 (k) the agreement ratified by and scheduled to the Iron 21 Ore (Marillana Creek) Agreement Act 1991, as from 22 time to time added to, varied or amended; 23 "Integration Proponent" means in relation to an Integration 24 Agreement, "the Company" or "the Joint Venturers" as the 25 case may be as defined in, and for the purpose of, that 26 Integration Agreement; 27 "iron ore" includes, without limitation, beneficiated ore; 28 "laws relating to native title" means laws applicable from 29 time to time in the said State in respect of native title and 30 includes the Native Title Act 1993 (Commonwealth); page 565 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 "loading port" means: 2 3 (a) the Port of Dampier; or 4 5 (b) Port Walcott; or 6 7 (c) the Port of Port Hedland; or 8 9 (d) any other port constructed after the variation date 10 under an Integration Agreement; or 11 12 (e) such other port approved by the Minister at the 13 request of the Joint Venturers from time to time for 14 the shipment of iron ore from the mineral lease; 15 "lump ore" means iron ore (not being beneficiated ore) 16 which is screened and will not pass through a 6.3 millimetre 17 mesh screen; 18 "Mining Act 1978" means the Mining Act 1978 (WA); 19 "Minister for Mines" means the Minister in the Government 20 of the said State for the time being responsible (under 21 whatsoever title) for the administration of the Mining Act 22 and the Mining Act 1978 (WA); 23 24 "Related Entity" means a company in which: 25 26 (a) as at 21 June 2010; and 27 28 (b) after 21 June 2010, with the approval of the Minister, 29 30 a direct or (through a subsidiary or subsidiaries within the 31 meaning of the Corporations Act 2001 (Commonwealth)) 32 indirect shareholding of 20% or more is held by: 33 34 (c) Rio Tinto Limited ABN 96 004 458 404; or 35 36 (d) BHP Billiton Limited ABN 49 004 028 077; or 37 page 566 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 (e) those companies referred to in paragraphs (c) and (d) 2 in aggregate; 3 4 "variation date" means the date on which clause 4 of the 5 variation agreement made on or about 17 November 2010 6 between the State and the Joint Venturers comes into 7 operation; 8 (c) in the definition of "agreed or determined" by: 9 (i) inserting "(following if requested by the Joint 10 Venturers, consultation with the Joint Venturers and 11 their consultants in regard thereto)" after "determined 12 by the Minister"; 13 (ii) deleting "assessed at" and substituting "assessed on"; 14 and 15 (iii) deleting all the words after "shall have regard to" and 16 substituting a colon followed by: 17 "(i) in the case of iron ore initially sold at cost 18 pursuant to paragraph (B) of the proviso to 19 clause 9(2)(e), the prices for that type of iron 20 ore prevailing at the time the price for such iron 21 ore was agreed between the arm's length 22 purchaser referred to in paragraph (B)(iii) of 23 that proviso and the seller in relation to the type 24 of sale and the relevant international seaborne 25 iron ore market into which such iron ore was 26 sold and where prices beyond the deemed f.o.b. 27 point are being considered the deductions 28 mentioned in the definition of f.o.b. value; and 29 (ii) in any other case, the prices for that type of iron 30 ore prevailing at the time the price for such iron 31 ore was agreed between the Joint Venturers and 32 the purchaser in relation to the type of sale and 33 the market into which such iron ore was sold 34 and where prices beyond the deemed f.o.b. page 567 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 point are being considered the deductions 2 mentioned in the definition of f.o.b. value"; 3 4 (d) in the definition of "deemed f.o.b. point" by deleting "Joint 5 Venturers' wharf" and substituting "relevant loading port"; 6 (e) in the definition of "f.o.b. value": 7 (i) in paragraph (i) by: 8 (A) inserting "subject to paragraph (ii)," before "in 9 the case"; 10 (B) deleting "(including from any wharf approved 11 by the Minister under Clause 9(2)(e))"; 12 (C) deleting "assessed at" and substituting "assessed 13 on"; 14 (D) deleting "Joint Venturers' wharf or other wharf 15 approved from time to time by the Minister for 16 the purpose or other wharf approved by the 17 Minister under clause 9(2)(e) as the case may 18 be" and substituting "relevant loading port"; 19 and 20 (E) in paragraph (6), inserting "after loading on and 21 departure of ship from the relevant loading 22 port" after "agency charges"; 23 (ii) renumbering paragraph (ii) as paragraph (iii); and 24 (iii) inserting after paragraph (i) the following new 25 paragraph: 26 "in the case of iron ore initially sold at cost pursuant 27 to paragraph (B) of the proviso to clause 9(2)(e), the 28 price which is payable for the iron ore by the arm's 29 length purchaser as referred to in paragraph (B)(iii) of 30 that proviso or, where the Minister considers, 31 following advice from the appropriate Government page 568 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 department, that the price payable in respect of the 2 iron ore does not represent a fair and reasonable 3 market value for that type of iron ore assessed on an 4 arm's length basis in the relevant international 5 seaborne iron ore market, such amount as is agreed or 6 determined as representing such a fair and reasonable 7 market value, less all duties, taxes, costs and charges 8 referred to in paragraph (i) above"; 9 (f) in the definition of "Joint Venturers' wharf" by inserting 10 "and in clauses 9(2)(e) and (f) also any additional wharf 11 constructed by the Joint Venturers pursuant to this 12 Agreement" before the semi colon; 13 (g) in the definition of "mineral lease" by inserting "and 14 includes any areas added to any such mineral lease pursuant 15 to clause 9A" before the semi colon; 16 17 (h) in the definition of "secondary processing" by deleting 18 "concentration or other beneficiation of iron ore other than 19 by crushing or screening" and substituting "beneficiation of 20 iron ore"; 21 22 (i) in the sentence commencing "marginal notes" by inserting 23 "and clause headings" after "marginal notes"; and 24 25 (j) by inserting at the end of clause 1 the following new 26 sentences: 27 28 "Words in the singular shall include the plural and words in 29 the plural shall include the singular according to the 30 requirements of the context. 31 32 Nothing in this Agreement shall be construed: 33 34 (a) to exempt the Joint Venturers from compliance with 35 any requirement in connection with the protection of 36 the environment arising out of or incidental to their 37 activities under this Agreement that may be made by 38 or under the EP Act; or 39 page 569 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 (b) to exempt the State or the Joint Venturers from 2 compliance with or to require the State or the Joint 3 Venturers to do anything contrary to any laws relating 4 to native title or any lawful obligation or requirement 5 imposed on the State or the Joint Venturers as the case 6 may be pursuant to any laws relating to native title; or 7 8 (c) to exempt the Joint Venturers from compliance with 9 the provisions of the Aboriginal Heritage Act 1972 10 (WA)."; 11 (2) by inserting after clause 7 the following new clauses: 12 "Additional Proposals 13 7A. (1) If the Joint Venturers, at any time during the 14 continuance of this Agreement after the variation date, 15 desire to significantly modify, expand or otherwise 16 vary their activities carried on pursuant to this 17 Agreement (other than under clauses 11, 12 or 9E) 18 beyond those activities specified in any proposals 19 approved pursuant to clause 6 they shall give notice of 20 such desire to the Minister and within 2 months 21 thereafter shall submit to the Minister detailed 22 proposals in respect of all matters covered by such 23 notice and such of the other matters mentioned in 24 clause 5(2)(a) as the Minister may require. 25 (2) A proposal may with the consent of the Minister 26 (except in relation to an Integration Agreement) and 27 that of any parties concerned (being in respect of an 28 Integration Agreement the Integration Proponent for 29 that agreement) provide for the use by the Joint 30 Venturers of any works installations or facilities 31 constructed or established under a Government 32 agreement. 33 (3) Each of the proposals pursuant to subclause (1) may 34 with the approval of the Minister, or shall if so 35 required by the Minister, be submitted separately and page 570 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 in any order as to any matter or matters in respect of 2 which such proposals are required to be submitted. 3 (4) At the time when the Joint Venturers submit the said 4 proposals they shall submit to the Minister details of 5 any services (including any elements of the project 6 investigations, design and management) and any 7 works materials, plant, equipment and supplies that 8 they propose to consider obtaining from or having 9 carried out or permitting to be obtained from or 10 carried out outside Australia together with their 11 reasons therefor and shall, if required by the Minister, 12 consult with the Minister with respect thereto. 13 (5) The Joint Venturers may withdraw their proposals 14 pursuant to subclause (1) at any time before approval 15 thereof, or where any decision in respect thereof is 16 referred to arbitration as referred to in clause 7B, 17 within 3 months after the award by notice to the 18 Minister that they shall not be proceeding with the 19 same. 20 Consideration of Joint Venturers' proposals under clause 7A 21 7B. (1) In respect of each proposal pursuant to subclause (1) 22 of clause 7A the Minister shall: 23 24 (a) subject to the limitations set out below, refuse 25 to approve the proposal (whether it requests the 26 grant of new tenure or not) if the Minister is 27 satisfied on reasonable grounds that it is not in 28 the public interest for the proposal to be 29 approved; or 30 31 (b) approve of the proposal without qualification or 32 reservation; or 33 34 (c) defer consideration of or decision upon the 35 same until such time as the Joint Venturers 36 submit a further proposal or proposals in 37 respect of some other of the matters mentioned page 571 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 in clause 7A(1) not covered by the said 2 proposal; or 3 4 (d) require as a condition precedent to the giving of 5 his approval to the said proposal that the Joint 6 Venturers make such alteration thereto or 7 comply with such conditions in respect thereto 8 as he thinks reasonable, and in such a case the 9 Minister shall disclose his reasons for such 10 conditions, 11 12 PROVIDED ALWAYS that where implementation of 13 any proposals hereunder has been approved pursuant 14 to the EP Act subject to conditions or procedures, any 15 approval or decision of the Minister under this clause 16 shall if the case so requires incorporate a requirement 17 that the Joint Venturers make such alterations to the 18 proposals as may be necessary to make them accord 19 with those conditions or procedures. 20 21 In considering whether to refuse to approve a proposal 22 the Minister is to assess whether or not the 23 implementation of the proposal by itself, or together 24 with any one or more of the other submitted proposals, 25 will: 26 27 (i) detrimentally affect economic and orderly 28 development in the said State, including without 29 limitation, infrastructure development in the 30 said State; or 31 32 (ii) be contrary to or inconsistent with the planning 33 and development policies and objectives of the 34 State; or 35 36 (iii) detrimentally affect the rights and interests of 37 third parties; or 38 39 (iv) detrimentally affect access to and use by others 40 of the lands the subject of any grant or proposed 41 grant to the Joint Venturers. page 572 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 The right to refuse to approve a proposal conferred by 2 paragraph (a) may only be exercised in respect of a 3 proposal where the Minister is satisfied on reasonable 4 grounds that a purpose of the proposal is the integrated 5 use of works installations or facilities (as defined in 6 subclause (7) of clause 9C for the purpose of that 7 clause) as contemplated by clause 9C. It may not be so 8 exercised in respect of a proposal if pursuant to clause 9 7C(5) the Minister, prior to the submission of the 10 proposal, advised the Joint Venturers in writing that 11 the Minister has no public interest concerns (as defined 12 in that clause) with the single preferred development 13 (as referred to in clause 7C(5)(a)) the subject of the 14 submitted proposals and those proposals are consistent 15 (as to their substantive scope and content) with the 16 information provided to the Minister pursuant to clause 17 7C(5) in respect of that single preferred development. 18 19 (2) The Minister shall within 2 months after receipt of 20 proposals pursuant to clause 7A(1) give notice to the 21 Joint Venturers of his decision in respect to the 22 proposals, PROVIDED THAT where a proposal is to 23 be assessed under Part IV of the EP Act the Minister 24 shall only give notice to the Joint Venturers of his 25 decision in respect to the proposal within 2 months 26 after service on him of an authority under section 27 45(7) of the EP Act. 28 29 (3) If the decision of the Minister is as mentioned in 30 either of paragraphs (a), (c) or (d) of subclause (1) the 31 Minister shall afford the Joint Venturers full 32 opportunity to consult with him and should they so 33 desire to submit new or revised proposals either 34 generally or in respect to some particular matter. 35 36 (4) If the decision of the Minister is as mentioned in 37 either of paragraphs (c) or (d) of subclause (1) and the 38 Joint Venturers consider that the decision is 39 unreasonable the Joint Venturers within 2 months 40 after receipt of the notice mentioned in subclause (2) 41 may elect to refer to arbitration in the manner page 573 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 hereinafter provided the question of the 2 reasonableness of the decision PROVIDED THAT 3 any requirement of the Minister pursuant to the 4 proviso to subclause (1) shall not be referable to 5 arbitration hereunder. A decision of the Minister 6 under paragraph (a) of subclause (1) shall not be 7 referable to arbitration under this Agreement. 8 9 (5) If by the award made on the arbitration pursuant to 10 subclause (4) the dispute is decided in favour of the 11 Joint Venturers the decision shall take effect as a 12 notice by the Minister that he is so satisfied with and 13 approves the matter or matters the subject of the 14 arbitration. 15 16 (6) The Joint Venturers shall implement the approved 17 proposals in accordance with the terms thereof. 18 19 (7) Notwithstanding clause 21, the Minister may during 20 the implementation of approved proposals approve 21 variations to those proposals. 22 23 Notification of possible proposals 24 25 7C. (1) If the Joint Venturers, upon completion of a pre- 26 feasibility study in respect of any matter that would 27 require the submission and approval of proposals 28 pursuant to this Agreement (being proposals which 29 will have as their purpose, or one of their purposes, 30 the integrated use of works installations or facilities as 31 contemplated by clause 9C) for the matter to be 32 undertaken, intends to further consider the matter with 33 a view to possibly submitting such proposals they 34 shall promptly notify the Minister in writing giving 35 reasonable particulars of the relevant matter. 36 37 (2) Within one (1) month after receiving the notification 38 the Minister may, if the Minister so wishes, inform the 39 Joint Venturers of the Minister's views of the matter at 40 that stage. 41 page 574 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 (3) If the Joint Venturers are informed of the Minister's 2 views, they shall take them into account in deciding 3 whether or not to proceed with their consideration of 4 the matter and the submission of proposals. 5 6 (4) Neither the Minister's response nor the Minister 7 choosing not to respond shall in any way limit, 8 prejudice or otherwise affect the exercise by the 9 Minister of the Minister's powers, or the performance 10 of the Minister's obligations, under this Agreement or 11 otherwise under the laws from time to time of the said 12 State. 13 14 (5) (a) This subclause applies where the Joint 15 Venturers have settled upon a single preferred 16 development a purpose of which is the 17 integrated use of works installations or facilities 18 (as defined in subclause (7) of clause 9C for the 19 purpose of that clause) as contemplated by 20 clause 9C. 21 22 (b) For the purpose of this subclause "public 23 interest concerns" means any concern that 24 implementation of the single preferred 25 development or any part of it will: 26 27 (i) detrimentally affect economic and 28 orderly development in the said State, 29 including without limitation, 30 infrastructure development in the said 31 State; or 32 33 (ii) be contrary to or inconsistent with the 34 planning and development policies and 35 objectives of the State; or 36 37 (iii) detrimentally affect the rights and 38 interests of third parties; or 39 page 575 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 (iv) detrimentally affect access to and use by 2 others of lands the subject of any grant 3 or proposed grant to the Joint Venturers. 4 5 (c) At any time prior to submission of proposals 6 the Joint Venturers may give to the Minister 7 notice of their single preferred development 8 and request the Minister to confirm that the 9 Minister has no public interest concerns with 10 that single preferred development. 11 12 (d) The Joint Venturers shall furnish to the 13 Minister with their notice reasonable particulars 14 of the single preferred development including, 15 without limitation: 16 17 (i) as to the matters that would be required 18 to be addressed in submitted proposals; 19 and 20 21 (ii) their progress in undertaking any 22 feasibility or other studies or matters to 23 be completed before submission of 24 proposals; and 25 26 (iii) their timetable for obtaining required 27 statutory and other approvals in relation 28 to the submission and approval of 29 proposals; and 30 31 (iv) their tenure requirements. 32 33 (e) If so required by the Minister, the Joint 34 Venturers will provide to the Minister such 35 further information regarding the single 36 preferred development as the Minister may 37 require from time to time for the purpose of 38 considering the Joint Venturers' request and 39 also consult with the Minister or 40 representatives or officers of the State in regard 41 to the single preferred development. page 576 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 (f) Within 2 months after receiving the notice (or 2 if the Minister requests further information, 3 within 2 months after the provision of that 4 information) the Minister must advise the Joint 5 Venturers: 6 7 (i) that the Minister has no public interest 8 concerns with the single preferred 9 development; or 10 (ii) that he is not then in a position to advise 11 that he has no public interest concerns 12 with the single preferred development 13 and the Minister's reasons in that 14 regard. 15 (g) If the Minister gives the advice mentioned in 16 paragraph (f)(ii) the Joint Venturers may, 17 should they so desire, give a further request to 18 the Minister in respect of a revised or alternate 19 single preferred development and the 20 provisions of this subclause shall apply mutatis 21 mutandis thereto."; 22 (3) in clause 8(2)(b) by: 23 (a) deleting "clause 6" and substituting "clauses 6, 7B, 11 24 or 12"; 25 (b) in sub-paragraph (i): 26 (A) inserting "or cause to be granted" after "grant"; 27 (B) in the paragraph beginning "at peppercorn 28 rental", deleting "the harbour area"; 29 (C) inserting after that paragraph the following new 30 paragraph: page 577 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 "at commercial rentals, licence or easement fees 2 as applicable - leases, licences or easements 3 within the Port of Port Hedland; and"; 4 (D) inserting "the Port Authorities Act 1999 (WA)" 5 after "1926"; and 6 (E) inserting "installations or facilities" after "for 7 their works"; and 8 (c) in subparagraph (ii), deleting "and iron ore 9 concentrates"; 10 (4) by inserting after subclause (4) of clause 8 the following new 11 subclause: 12 "(4a) The provisions of subclause (2) of this clause shall not 13 operate so as to require the said State to grant or vary, 14 or cause to be granted or varied, any lease licence or 15 other right or title until all processes necessary under 16 any laws relating to native title to enable that grant or 17 variation to proceed, have been completed;" 18 (5) in clause 9(2) by deleting paragraph (e) and substituting the 19 following new paragraphs: 20 "(e) ship, or procure the shipment of, all iron ore mined 21 from the mineral lease and sold: 22 (i) from the Joint Venturers' wharf; or 23 (ii) from any other wharf in a loading port which 24 wharf has been constructed under an Integration 25 Agreement; or 26 (iii) with the Minister's approval given before 27 submission of proposals in that regard, from 28 any other wharf in a loading port which wharf 29 has been constructed under another Government 30 agreement (excluding the Integration 31 Agreements), page 578 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 and use their best endeavours to obtain therefor the 2 best price possible having regard to market conditions 3 from time to time prevailing PROVIDED THAT: 4 (A) this paragraph shall not apply to iron ore used 5 for secondary processing or for the industry for 6 additional upgrading of beneficiated ore in any 7 part of the said State lying north of the twenty 8 sixth parallel of latitude; and 9 (B) iron ore from the mineral lease may be sold by 10 the Joint Venturers prior to or at the time of the 11 shipment under this Agreement at a price equal 12 to the production costs in respect of that iron 13 ore up to the point of sale, if: 14 (i) the Minister is notified before the 15 time of shipment that the sale is to be 16 made at cost, providing details of the 17 proposed sale; and 18 (ii) the Minister is notified of the 19 proposed arm's length purchaser in 20 the relevant international seaborne 21 iron ore market of the iron ore the 22 subject of the proposed sale at cost; 23 and 24 (iii) there is included in the return lodged 25 pursuant to subclause (2)(k) 26 particulars of the transaction in which 27 the ore sold at cost was subsequently 28 purchased in the relevant international 29 seaborne iron ore market by an arm's 30 length purchaser specifying the 31 purchaser, the seller, the price and the 32 date when the sale was agreed 33 between the arm's length purchaser 34 and the seller; and page 579 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 (iv) the arm's length purchaser referred to 2 in (iii) above is not then a designated 3 purchaser as referred to in subclause 4 (2)(ea); 5 Designated purchaser 6 (ea) if required by notice in writing from the Minister, 7 provide the Minister within 30 days after receiving the 8 notice with evidence that the transaction as included in 9 the return pursuant to paragraph (B)(iii) of subclause 10 (2)(e) was a sale in the relevant international seaborne 11 iron ore market to an independent participant in that 12 market. If no evidence is provided or the Minister is 13 not so satisfied on the evidence provided or other 14 information obtained, the Minister may by notice to 15 the Joint Venturers designate the purchaser to be a 16 designated purchaser and that designation will remain 17 in force unless and until lifted by further notice from 18 the Minister to the Joint Venturers. For the avoidance 19 of doubt and without limiting the Minister's discretion 20 above, the parties acknowledge that marketing entities 21 forming part of a corporate group that includes the 22 majority Joint Venturer (or part of a parallel corporate 23 group if that Joint Venturer is part of a dual-listed 24 corporate structure) are not independent participants 25 for the purposes of this subclause;"; 26 (6) in clause 9(2)(j) by deleting subparagraph (iv) and inserting 27 at the end of the clause after subparagraph (v) the following 28 new paragraphs: 29 "Where beneficiated ore is produced from an admixture of 30 iron ore from the mineral lease and iron ore from elsewhere, 31 a portion (and a portion only) of the beneficiated ore so 32 produced being equal to the proportion that the amount of 33 the iron in the iron ore from the mineral lease used in the 34 production of that beneficiated ore bears to the total amount 35 of iron in the iron ore so used shall be deemed to be 36 produced from iron ore from the mineral lease. page 580 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 Where for the purpose of determining f.o.b. value it is 2 necessary to convert an amount or price to Australian 3 currency, the conversion is to be calculated using a rate 4 (excluding forward hedge or similar contract rates) that has 5 been approved by the Minister at the request of the Joint 6 Venturers and in the absence of such request as determined 7 by the Minister to be a reasonable rate for the purpose. 8 The provisions of regulation 85AA (Effect of GST etc. on 9 royalties) of the Mining Regulations 1981 (WA) shall apply 10 mutatis mutandis to the calculation of royalties under this 11 subclause."; 12 (7) in clause 9(2)(k) by: 13 (a) inserting "and also showing such other information in 14 relation to the abovementioned iron ore as the Minister 15 may from time to time reasonably require in regard to, 16 and to assist in verifying, the calculation of royalties in 17 accordance with paragraph (j)" after "the due date of 18 the return"; and 19 (b) deleting all the words after "calculated on the basis of " 20 and substituting a colon followed by: 21 "(i) in the case of iron ore initially sold at cost 22 pursuant to paragraph (B) of the proviso to 23 subclause (2)(e), at the price notified pursuant 24 to paragraph (B)(iii) of that proviso; 25 (ii) in any other case, invoices or provisional 26 invoices (as the case may be) rendered by the 27 Joint Venturers to the purchaser (which 28 invoices the Joint Venturers shall render 29 without delay simultaneously furnishing copies 30 thereof to the Minister) of such iron ore or on 31 the basis of estimates as agreed or determined, 32 and shall from time to time in the next following 33 appropriate return and payment make (by the return 34 and by cash) all such necessary adjustments (and give page 581 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 to the Minister full details thereof) when the f.o.b. 2 value shall have been finally calculated, agreed or 3 determined;"; 4 (8) in clause 9(2)(n): 5 (a) by deleting "books of account and records of the Joint 6 Venturers relative to the Joint Venturers' operation 7 under this Agreement including contracts relative" and 8 substituting "books, records, accounts, documents 9 (including contracts), data and information of the Joint 10 Venturers stored by any means relating"; 11 (b) by inserting "(in whatever form)" after "copies or 12 extracts"; and 13 (c) by inserting "the subject of royalty" before the first 14 two references to "hereunder"; 15 (9) by deleting the fullstop at the end of paragraph (n) of clause 16 9(2) and substituting "; and" followed by: 17 "(o) cause to be produced in Perth in the said State all 18 books, records, accounts, documents (including 19 contracts), data and information of the kind referred to 20 in paragraph (n) to enable the exercise of rights by the 21 Minister or the Minister's nominee under paragraph 22 (n), regardless of the location in which or by whom 23 those books, records, accounts, documents (including 24 contracts), data and information are stored from time 25 to time."; 26 (10) by inserting after clause 9 the following new clauses: 27 28 "Additional areas 29 30 9A (1) Notwithstanding the provisions of the Mining 31 Act or the Mining Act 1978 the Joint Venturers may 32 from time to time during the currency of this 33 Agreement apply to the Minister for areas held by the 34 Joint Venturers or an associated company under a page 582 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 mining tenement granted under the Mining Act 1978 2 to be included in any of the mineral leases but so that 3 the total area of the mineral leases, any land that may 4 be included in any of the mineral leases pursuant to 5 this Agreement and of any other mineral lease or 6 mining lease granted under or pursuant to this 7 Agreement (as aggregated) shall not at any time 8 exceed 777 square kilometres. The Minister shall 9 confer with the Minister for Mines in regard to any 10 such application and if they approve the application 11 the Minister for Mines shall upon the surrender of the 12 relevant mining tenement include the area the subject 13 thereof in the relevant mineral lease by endorsement 14 subject to such of the conditions of the surrendered 15 mining tenement as the Minister for Mines determines 16 but otherwise subject to the same terms covenants and 17 conditions as apply to the relevant mineral lease (with 18 such apportionment of rents as is necessary) and 19 notwithstanding that the survey of such additional 20 land has not been completed but subject to correction 21 to accord with the survey when completed at the Joint 22 Venturers' expense. 23 (2) The Minister may approve, upon application by the 24 Joint Venturers from time to time, for the total area 25 referred to in subclause (1) to be increased up to a 26 limit not exceeding 1,000 square kilometres. 27 (3) The Joint Venturers shall not mine or carry out other 28 activities (other than exploration, bulk sampling and 29 testing) on any area or areas added to a mineral lease 30 pursuant to subclause (1) of this clause unless and 31 until proposals with respect thereto are approved or 32 determined pursuant to the subsequent provisions of 33 this clause. 34 (4) If the Joint Venturers desire to commence mining of 35 iron ore or to carry out any other activities (other than 36 as aforesaid) on the said areas they shall give notice of 37 such desire to the Minister and shall within 2 months 38 of the date of such notice (or thereafter within such page 583 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 extended time as the Minister may allow as 2 hereinafter provided) and subject to the provisions of 3 this Agreement submit to the Minister to the fullest 4 extent reasonably practicable their detailed proposals 5 (which proposals shall include plans where practicable 6 and specifications where reasonably required by the 7 Minister) with respect to such mining or other 8 activities as additional proposals pursuant to clause 9 7A in respect of mineral lease 235SA, pursuant to 10 clause 11(8) in respect of mineral lease 249SA and 11 pursuant to clause 12(5) in respect of mineral lease 12 281SA."; 13 Blending of iron ore 14 9B. (1) The Joint Venturers may blend iron ore mined from 15 the mineral lease with any: 16 17 (a) iron ore mined from a mining tenement or other 18 mining title granted under, or pursuant to, an 19 Integration Agreement; or 20 21 (b) iron ore mined from a Mining Act 1978 mining 22 lease: located in, or proximate to, the Pilbara 23 region of the said State which is held by a 24 Related Entity alone or with a third party or 25 parties (excluding any mining lease granted 26 pursuant to, or held under, a Government 27 agreement); or 28 29 (c) with the prior approval of the Minister, iron ore 30 mined in, or proximate to, the Pilbara region of 31 the said State under a Government agreement 32 (excluding an Integration Agreement); or 33 34 (d) with the prior approval of the Minister, iron ore 35 mined by a third party from a Mining Act 1978 36 mining lease located in, or proximate to, the 37 Pilbara region of the said State (excluding under 38 a Government agreement) which has been page 584 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 purchased by an Integration Proponent from the 2 third party. 3 4 (2) The authority given under subclause (1) is subject to 5 the Minister being reasonably satisfied that there are 6 in place adequate systems and controls for the correct 7 apportionment of the quantities of iron ore being 8 blended as between each of the sources referred to in 9 subclause (1), which systems and controls monitor 10 production, processing, transportation, stockpiling 11 and shipping of all such iron ore. If at any time the 12 Minister ceases to be so satisfied he may, after 13 consulting the Joint Venturers and provided the Joint 14 Venturers have not within three (3) months after the 15 commencement of such consultation addressed the 16 matters of concern to the Minister to his satisfaction, 17 by notice in writing to the Joint Venturers suspend 18 the above authority in respect of the relevant 19 blending arrangements until he is again satisfied in 20 terms of this subclause (2). 21 22 (3) If any blending of iron ore occurs as contemplated by 23 this clause, then for the purposes of paragraphs (j) 24 and (k) of subclause (2) of this clause, a portion of 25 the iron ore so blended being equal to the proportion 26 that the amount of iron ore from the mineral lease 27 used in the admixture of iron ore bears to the total 28 amount of iron ore so blended, shall be deemed to be 29 produced from the mineral lease. 30 31 Integrated use of works installations or facilities under the 32 Integration Agreements 33 34 9C. (1) Subject to subclauses (2) to (7) of this clause and to 35 the other provisions of this Agreement, the Joint 36 Venturers may during the continuance of this 37 Agreement: 38 39 (a) use any existing or new works installations or 40 facilities constructed or held: 41 page 585 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 (i) under this Agreement; or 2 3 (ii) under any other Integration Agreement 4 which are made available for such use 5 and during the continuance of such 6 Integration Agreement; or 7 8 (iii) with the approval of the Minister, under a 9 Government agreement (excluding an 10 Integration Agreement) which are made 11 available for such use and during the 12 continuance of that agreement, 13 14 (wholly or in part) in the activities of the Joint 15 Venturers carried on by them pursuant to this 16 Agreement including, without limitation, as part 17 of those activities, transporting by railway and 18 shipping from a loading port and undertaking 19 any ancillary and incidental activities in doing 20 so (including, without limitation, blending 21 permitted by clause 9B) of: 22 23 (A) iron ore mined from a Mining Act 24 1978 mining lease located in, or 25 proximate to, the Pilbara region of 26 the said State which is held by a 27 Related Entity alone or with a third 28 party or parties (excluding any 29 mining lease granted pursuant to, 30 or held under, a Government 31 agreement); 32 33 (B) with the Minister's prior approval, 34 iron ore mined in, or proximate to, 35 the Pilbara region of the said State 36 under a Government agreement 37 (excluding an Integration 38 Agreement); 39 40 (C) with the prior approval of the 41 Minister, iron ore mined by a third page 586 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 party from a Mining Act 1978 2 mining lease located in, or 3 proximate to, the Pilbara region of 4 the said State (excluding under a 5 Government agreement) which has 6 been purchased by the Joint 7 Venturers from the third party; 8 9 (D) iron ore mined under an 10 Integration Agreement; 11 12 (b) make any existing or new works installations or 13 facilities constructed or held under this 14 Agreement available for use (wholly or partly) 15 by another Integration Proponent during the 16 continuance of its Integration Agreement in the 17 activities of that Integration Proponent carried 18 on by it pursuant to its Integration Agreement 19 including, without limitation, as part of those 20 activities, transporting by railway and shipping 21 from a loading port and undertaking any 22 ancillary and incidental activities in doing so 23 (including, without limitation, blending 24 permitted by that Integration Agreement) of: 25 26 (i) iron ore mined from a Mining Act 1978 27 mining lease located in, or proximate to, 28 the Pilbara region of the said State which 29 is held by a Related Entity alone or with 30 a third party or parties (excluding any 31 mining lease granted pursuant to, or held 32 under, a Government agreement); 33 34 (ii) with the prior approval of the Minister 35 (as defined in that Integration 36 Agreement), iron ore mined in, or 37 proximate to, the Pilbara region of the 38 said State under a Government 39 agreement (excluding an Integration 40 Agreement); 41 page 587 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 (iii) with the prior approval of the Minister 2 (as defined in that Integration 3 Agreement), iron ore mined by a third 4 party from a Mining Act 1978 mining 5 lease located in, or proximate to, the 6 Pilbara region of the said State 7 (excluding under a Government 8 agreement) which has been purchased by 9 that Integration Proponent from the third 10 party; 11 12 (iv) iron ore mined under an Integration 13 Agreement; 14 15 (c) make any existing or new works installations or 16 facilities constructed or held under this 17 Agreement available for use (wholly or partly) 18 in connection with operations under: 19 20 (i) a Mining Act 1978 mining lease 21 located in, or proximate to, the Pilbara 22 region of the said State, for iron ore, 23 which is held by a Related Entity alone 24 or with a third party or parties 25 (excluding any mining lease granted 26 pursuant to, or held under a 27 Government agreement); or 28 29 (ii) with the approval of the Minister, a 30 Government agreement (other than an 31 Integration Agreement) for the mining 32 of iron ore in, or proximate to, the 33 Pilbara region of the said State; 34 35 (d) subject to subclause (2), under this Agreement 36 and for the purpose of any use or making 37 available for use referred to in paragraph (a), 38 (b) or (c) connect any existing or new works 39 installations or facilities constructed or held 40 under this Agreement to any existing or new page 588 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 works installations or facilities constructed or 2 held under another Integration Agreement; 3 4 (e) subject to subclause (2), under this Agreement 5 and for the purpose of any use or making 6 available for use referred to in paragraph (a), 7 (b) or (c) or making of any connection referred 8 to in paragraph (d) construct new works 9 installations or facilities and expand modify or 10 otherwise vary any existing and new works 11 installations or facilities constructed or held 12 under this Agreement; 13 14 (f) allow a railway or rail spur line (not being a 15 railway or rail spur line constructed or held 16 under an Integration Agreement) to be 17 connected to a railway or rail spur line or other 18 works installations or facilities constructed or 19 held under this Agreement for the delivery of 20 iron ore to an Integration Proponent for 21 transport by railway and shipping from a 22 loading port (together with any ancillary and 23 incidental activities in doing so) as part of its 24 activities under its Integration Agreement; and 25 26 (g) allow an electricity transmission line (not being 27 an electricity transmission line constructed or 28 held under an Integration Agreement) to be 29 connected to an electricity transmission line 30 constructed or held under this Agreement for 31 the supply of electricity permitted to be made 32 under an Integration Agreement. 33 34 (2) (a) A connection referred to in clause (1)(d) or 35 construction, expansion, modification or other 36 variation referred to in subclause (1)(e) by the 37 Joint Venturers shall, to the extent not already 38 authorised under this Agreement as at the 39 variation date, be regarded as a significant 40 modification expansion or other variation of the 41 Joint Venturers' activities carried on by them page 589 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 pursuant to this Agreement and may only be 2 made in accordance with proposals submitted 3 and approved or determined under this 4 Agreement in accordance with clauses 7A and 5 7B or clauses 11, 12 or 9E as the case may 6 require and otherwise in compliance with the 7 provisions of this Agreement and the laws from 8 time to time of the said State. For the avoidance 9 of doubt, the parties acknowledge that any use 10 or making available for use contemplated by 11 subclause (1)(a), (1)(b) or (1)(c) shall not 12 otherwise than as required by this paragraph (a) 13 require the submission and approval of further 14 proposals under this Agreement. 15 16 (b) The Joint Venturers shall not be entitled to: 17 18 (i) submit proposals to construct any new 19 port or to establish harbour or port works 20 installations or facilities, or to expand 21 modify or otherwise vary harbour or 22 works installations or facilities otherwise 23 than at or near the town of Port Hedland 24 within the boundaries of the Port of Port 25 Hedland; or 26 27 (ii) generate and supply power, take and 28 supply water or dispose of water 29 otherwise than in accordance with the 30 other clauses of this Agreement and 31 subject to any restrictions contained in 32 those clauses; or 33 34 (iii) without limiting subparagraphs (i) and 35 (ii) submit proposals to construct or 36 establish works installations or facilities 37 of a type, or to make expansions, 38 modifications or other variations of 39 works installations or facilities of a type, 40 which in the Minister's reasonable 41 opinion this Agreement, immediately page 590 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 before the variation date, did not permit 2 or contemplate the Joint Venturers 3 constructing, establishing or making as 4 the case may be otherwise than for 5 integration use as contemplated by 6 subclauses (1)(a), (1)(b) or (1)(c) or as 7 permitted by clause 9E; or 8 9 (iv) submit proposals to make a connection as 10 referred to in subclause (1)(d) or a 11 construction, expansion, modification or 12 other variation as referred to in subclause 13 (1)(e) otherwise than on tenure granted 14 under or pursuant to this Agreement from 15 time to time or held pursuant to this 16 Agreement from time to time; or 17 18 (v) submit proposals to make a connection 19 referred to in subclause (1)(d) or a 20 construction, expansion, modification or 21 other variation as referred to in subclause 22 (1)(e) for the purpose of use as 23 contemplated by subclause (1)(c)(i), if in 24 the reasonable opinion of the Minister the 25 activity which is the subject of the 26 proposals would give to the holder or 27 holders of the relevant Mining Act 1978 28 mining lease the benefit of rights or 29 powers granted to the Joint Venturers 30 under this Agreement, over and above the 31 right of access to and use of the relevant 32 works, installations or facilities; or 33 34 (vi) submit proposals to make a connection as 35 referred to in subclause (1)(d) or a 36 construction, expansion, modification or 37 other variation as referred to in subclause 38 (1)(e) for the purpose of use as 39 contemplated by subclause (1)(c) and 40 involving the grant of tenure without the 41 prior approval of the Minister; or page 591 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 (vii) submit proposals to assign, sublet, 2 transfer or dispose of any works 3 installations or facilities constructed or 4 held under this Agreement or any leases, 5 licences, easements or other titles under 6 or pursuant to this Agreement for any 7 purpose referred to in this clause. 8 9 (c) Notwithstanding the provisions of clauses 7B, 10 11, 12 and 9E, the Minister may defer 11 consideration of, or a decision upon, a proposal 12 submitted by the Joint Venturers for a 13 connection as referred to in subclause (1)(d) or 14 a construction, expansion, modification or other 15 variation as referred to in subclause (1)(e), for 16 the purpose of use or making available for use 17 as referred to in subclauses (1)(a) or (1)(b), 18 until relevant corresponding proposals under 19 the relevant Integration Agreement have been 20 submitted and those proposals can be approved 21 under that Integration Agreement concurrently 22 with the Minister's approval under this 23 Agreement of the Joint Venturers' proposal. 24 25 (3) Any use or making available for use as referred to in 26 subclause (1), or submission of proposals as referred 27 to in subclause (2), in respect of a Related Entity shall 28 be subject to the Joint Venturers first confirming with 29 the Minister that the Minister is satisfied that the 30 relevant company is a Related Entity. 31 32 (4) The Joint Venturers shall give the Minister prior 33 written notice of any significant change (other than a 34 temporary one for maintenance or to respond to an 35 emergency) proposed in their use, or in their making 36 available for use, works, installations or facilities as 37 referred to in this clause: 38 39 (a) from that authorised under this Agreement 40 immediately before the variation date; and 41 page 592 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 (b) subsequently from that previously notified to 2 the Minister under this subclause, 3 4 as soon as practicable before such change occurs. 5 6 The Joint Venturers shall also keep the Minister fully 7 informed with respect to any proposed connection as 8 referred to in subclause (1)(f) or (1)(g) or request of 9 them for such connection to be allowed. 10 11 (5) Nothing in this Agreement shall be construed to: 12 13 (a) exempt another Integration Proponent from 14 complying with, or the application of, the 15 provisions of its Integration Agreement; or 16 17 (b) restrict the Joint Venturers' rights under clause 18 20. 19 20 For the avoidance of doubt the approval of proposals 21 under this Agreement shall not be construed as 22 authorising another Integration Proponent to 23 undertake any activities under this Agreement or 24 under another Integration Agreement. 25 26 (6) Nothing in this clause shall be construed to exempt 27 the Joint Venturers from complying with, or the 28 application of, the other provisions of this Agreement 29 including, without limitation, clause 20 and of 30 relevant laws from time to time of the said State. 31 32 (7) For the purpose of this clause "works installations or 33 facilities" means any: 34 35 (a) harbour or port works installations or facilities 36 including, without limitation, stockpiles, 37 reclaimers, conveyors and wharves; 38 39 (b) railway or rail spur lines; 40 page 593 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 (c) track structures and systems associated with the 2 operation and maintenance of a railway 3 including, without limitation, sidings, train 4 control and signalling systems, maintenance 5 workshops and terminal yards; 6 7 (d) train loading and unloading works installations 8 or facilities; 9 10 (e) conveyors; 11 12 (f) private roads; 13 14 (g) mine aerodrome and associated aerodrome 15 works installations and facilities; 16 17 (h) iron ore mining, crushing, screening, 18 beneficiation or other processing works 19 installations or facilities; 20 21 (i) mine administration buildings including, 22 without limitation, offices, workshops and 23 medical facilities; 24 25 (j) borrow pits; 26 27 (k) accommodation and ancillary facilities 28 including, without limitation, construction 29 camps and in townsites constructed pursuant to 30 and held under any Integration Agreement; 31 32 (l) water, sewerage, electricity, gas and 33 telecommunications works installations and 34 facilities including, without limitation, 35 pipelines, transmission lines and cables; and 36 37 (m) any other works installations or facilities 38 approved of by the Minister for the purpose of 39 this clause. 40 page 594 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 Transfer of rights to shared works installations or facilities 2 3 9D. (1) For the purposes of this clause "Relevant 4 Infrastructure" means any works installations or 5 facilities (as defined in clause 9C(7)): 6 7 (a) constructed or held under another Integration 8 Agreement; 9 10 (b) which the Joint Venturers are using in their 11 activities pursuant to this Agreement; 12 13 (c) which the Minister is satisfied (after consulting 14 with the Joint Venturers and the Integration 15 Proponent for that other Integration 16 Agreement): 17 18 (i) are no longer required by that other 19 Integration Proponent to carry on its 20 activities pursuant to its Integration 21 Agreement because of the cessation of 22 the Integration Proponent's mining 23 operations in respect of which such 24 Relevant Infrastructure was constructed 25 or held or because of any other reason 26 acceptable to the Minister; and 27 28 (ii) are required by the Joint Venturers to 29 continue to carry on their activities 30 pursuant to this Agreement; and 31 32 (d) in respect of which that other Integration 33 Proponent has notified the Minister it consents 34 to the Joint Venturers submitting proposals as 35 referred to in subclause (2). 36 37 (2) The Joint Venturers may as an additional proposal 38 pursuant to clause 7A propose: 39 40 (a) that they be granted a lease licence or other title 41 over the Relevant Infrastructure pursuant to this page 595 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 Agreement subject to and conditional upon the 2 other Integration Proponent surrendering 3 wholly or in part (and upon such terms as the 4 Minister considers reasonable including any 5 variation of terms to address environmental 6 issues) its lease licence or other title over the 7 Relevant Infrastructure; or 8 9 (b) that the other Integration Proponent's lease 10 licence or other title (not being a mineral lease, 11 mining lease or other right to mine title granted 12 under a Government agreement, the Mining Act 13 1904 or the Mining Act 1978) to the Relevant 14 Infrastructure be transferred to this Agreement 15 (to be held by the Joint Venturers pursuant to 16 this Agreement) with such surrender of land 17 from it and variations of its terms as the 18 Minister considers reasonable for that title to be 19 held under this Agreement including, without 20 limitation, to address environmental issues and 21 outstanding obligations of that other Integration 22 Proponent under its Integration Agreement in 23 respect of that Relevant Infrastructure. 24 25 The provisions of clause 7B shall mutatis mutandis 26 apply to any such additional proposal. In addition the 27 Joint Venturers acknowledge that the Minister may 28 require variations of the other Integration Agreement 29 and/or proposals under it or of this Agreement in 30 order to give effect to the matters contemplated by 31 this clause. 32 33 (3) This clause shall cease to apply in the event the State 34 gives any notice of default to the Joint Venturers 35 pursuant to clause 10(l) and while such notice remains 36 unsatisfied. 37 page 596 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 Miscellaneous Licences for Railways 2 3 9E. (1) In this clause subject to the context: 4 5 "Additional Infrastructure" means: 6 7 (a) Train Loading Infrastructure; 8 9 (b) Train Unloading Infrastructure; 10 11 (c) a conveyor, train unloading and other 12 infrastructure necessary for the transport of 13 iron ore, freight goods or other products from 14 the Railway (directly or indirectly) to port 15 facilities within a loading port, 16 17 in each case located outside a Port; 18 19 "LAA" means the Land Administration Act 1997 20 (WA); 21 22 "Lateral Access Roads" has the meaning given in 23 subclause (3)(a)(iv); 24 25 "Lateral Access Road Licence" means a 26 miscellaneous licence granted pursuant to subclause 27 (6)(a)(ii) or subclause (6)(b) as the case may be and 28 according to the requirements of the context 29 describes the area of land from time to time the 30 subject of that licence; 31 32 "Port" means any port the subject of the Port 33 Authorities Act 1999 (WA) or the Shipping and 34 Pilotage Act 1967 (WA); 35 36 "Private Roads" means Lateral Access Roads and the 37 Joint Venturers' access roads within a Railway 38 Corridor; 39 40 "Rail Safety Act" means the Rail Safety Act 1998 41 (WA); page 597 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 "Railway" means a standard gauge heavy haul 2 railway or railway spur line, located or to be located 3 as the case may be in, or proximate to, the Pilbara 4 region of the said State (but outside the boundaries 5 of a Port) for the transport of iron ore, freight goods 6 and other products together with all railway track, 7 associated track structures including sidings, turning 8 loops, over or under track structures, supports 9 (including supports for equipment or items associated 10 with the use of a railway) tunnels, bridges, train 11 control systems, signalling systems, switch and other 12 gear, communication systems, electric traction 13 infrastructure, buildings (excluding office buildings, 14 housing and freight centres), workshops and 15 associated plant, machinery and equipment and 16 including rolling stock maintenance facilities, 17 terminal yards, depots, culverts and weigh bridges 18 which railway is or is to be (as the case may be) the 19 subject of approved proposals under subclause (4) 20 and includes any expansion or extension thereof 21 outside a Port which is the subject of additional 22 proposals approved in accordance with subclause (5); 23 24 "Railway Corridor" means, prior to the grant of a 25 Special Railway Licence, the land for the route of the 26 Railway the subject of that licence, access roads 27 (other than Lateral Access Roads), areas from which 28 stone, sand, clay and gravel may be taken, temporary 29 accommodation facilities for the railway workforce, 30 water bores and Additional Infrastructure (if any) 31 which is the subject of a subsisting agreement 32 pursuant to subclause (3)(a) and after the grant of the 33 Special Railway Licence the land from time to time 34 the subject of that Special Railway Licence; 35 36 "Railway Operation" means the construction and 37 operation under this Agreement of the relevant 38 Railway and associated access roads and Additional 39 Infrastructure (if any) within the relevant Railway 40 Corridor and of the associated Lateral Access Roads, 41 in accordance with approved proposals; page 598 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 "Railway spur line" means a standard gauge heavy 2 haul railway spur line located or to be located in, or 3 proximate to, the Pilbara region of the said State (but 4 outside a Port) connecting to a Railway for the 5 transport of iron ore, freight goods and other products 6 upon the Railway to (directly or indirectly) a loading 7 port; 8 9 "Railway Operation Date" means the date of the first 10 carriage of iron ore, freight goods or other products 11 over the relevant Railway (other than for construction 12 or commissioning purposes); 13 14 "Railway spur line Operation Date" means the date of 15 the first carriage of iron ore, freight goods or other 16 products over the relevant Railway spur line (other 17 than for construction or commissioning purposes); 18 19 "Special Railway Licence" means the relevant 20 miscellaneous licence for railway and, if applicable, 21 other purposes, granted to the Joint Venturers 22 pursuant to subclause (6)(a)(i) as varied in 23 accordance with subclause (6)(h) or subclause (6)(i) 24 and according to the requirements of the context 25 describes the area of land from time to time the 26 subject of that licence; 27 28 "Train Loading Infrastructure" means conveyors, 29 stockpile areas, blending and screening facilities, 30 stackers, re-claimers and other infrastructure 31 reasonably required for the loading of iron ore, 32 freight goods or other products onto the relevant 33 Railway for transport (directly or indirectly) to a 34 loading port; and 35 36 "Train Unloading Infrastructure" means train 37 unloading infrastructure reasonably required for the 38 unloading of iron ore from the Railway to be 39 processed, or blended with other iron ore, at 40 processing or blending facilities in the vicinity of that 41 train unloading infrastructure and with the resulting page 599 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 iron ore products then loaded on to the Railway for 2 transport (directly or indirectly) to a loading port. 3 4 Joint Venturers to obtain prior Ministerial in-principle 5 approval 6 7 (2) (a) If the Joint Venturers wish, from time to time 8 during the continuance of this Agreement, to 9 proceed under this clause with a plan to develop 10 a Railway they shall give notice thereof to the 11 Minister and furnish to the Minister with that 12 notice an outline of their plan. 13 14 (b) The Minister shall within one month of a notice 15 under paragraph (a) advise the Joint Venturers 16 whether or not he approves in-principle the 17 proposed plan. The Minister shall afford the 18 Joint Venturers full opportunity to consult with 19 him in respect of any decision of the Minister 20 under this paragraph. 21 22 (c) The Minister's in-principle approval in respect 23 of a proposed plan shall lapse if the Joint 24 Venturers have not submitted detailed 25 proposals to the Minister in respect of that plan 26 in accordance with this clause within 18 27 months of the Minister's in-principle approval. 28 Railway Corridor 29 30 (3) (a) If the Minister gives in-principle approval to a 31 plan of the Joint Venturers to develop a Railway 32 they shall consult with the Minister to seek the 33 agreement of the Minister as to: 34 (i) where the Railway will begin and end; 35 and 36 (ii) a route for the Railway, access roads to 37 be within the Railway Corridor and the 38 land required for that route as well as page 600 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 Additional Infrastructure (if any) 2 including, without limitation, areas from 3 which stone, sand, clay and gravel may 4 be taken, temporary accommodation 5 facilities for the railway workforce and 6 water bores; and 7 (iii) in respect of Additional Infrastructure (if 8 any) the nature and capacity of such 9 Additional Infrastructure; and 10 (iv) the routes of, and the land required for, 11 roads outside the Railway Corridor (and 12 also outside a Port) for access to it to 13 construct the Railway (such roads as 14 agreed being "Lateral Access Roads"). 15 In seeking such agreement, regard shall be had 16 to achieving a balance between engineering 17 matters including costs, the nature and use of 18 any lands concerned and interests therein and 19 the costs of acquiring the land (all of which 20 shall be borne by the Joint Venturers). The 21 parties acknowledge the intention is for the 22 Joint Venturers to construct the Railway, the 23 access roads for the construction and 24 maintenance of the Railway which are to be 25 within the Railway Corridor and the relevant 26 Additional Infrastructure (if any) along the 27 centreline of the Railway Corridor subject to 28 changes in that alignment to the extent 29 necessary to avoid heritage, environmental or 30 poor ground conditions that are not identified 31 during preliminary investigation work, and 32 recognise the width of the Railway Corridor 33 may need to vary along its route to 34 accommodate Additional Infrastructure (if any), 35 access roads, areas from which stone, sand, clay 36 and gravel may be taken, temporary 37 accommodation facilities for the railway page 601 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 workforce and water bores. The provisions of 2 clause 25 shall not apply to this subclause. 3 4 (b) If the date by which the Joint Venturers must 5 submit detailed proposals under subclause 6 (4)(a) (as referred to in subclause (2)(c)) is 7 extended or varied by the Minister pursuant to 8 clause 24, any agreement made pursuant to 9 paragraph (a) before such date is extended or 10 varied shall unless the Minister notifies the 11 Joint Venturers otherwise be deemed to be at 12 an end and neither party shall have any claim 13 against the other in respect of it. 14 15 (c) The Joint Venturers acknowledge that they 16 shall be responsible for liaising with every title 17 holder in respect of the land affected and for 18 obtaining in a form and substance acceptable to 19 the Minister all unconditional and irrevocable 20 consents of each such title holder to, and all 21 statutory consents required in respect of the 22 land affected for: 23 24 (i) the grant of the Special Railway Licence 25 for the construction, operation and 26 maintenance within the Railway Corridor 27 of the Railway, access roads and 28 Additional Infrastructure (if any) to be 29 within the Railway Corridor; and 30 31 (ii) the grant of Lateral Access Road 32 Licences for the construction, use and 33 maintenance of Lateral Access Roads 34 over the routes for the Lateral Access 35 Roads agreed pursuant to paragraph (a); 36 and 37 page 602 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 (iii) the inclusion of additional land in the 2 Special Railway Licence as referred to in 3 subclause (6)(h) or subclause (6)(i), 4 5 in accordance with this clause. For the purposes 6 of this subclause (3)(c), "title holder" means a 7 management body (as defined in the LAA) in 8 respect of any part of the affected land, a person 9 who holds a mining, petroleum or geothermal 10 energy right (as defined in the LAA) in respect 11 of any part of the affected land, a person who 12 holds a lease or licence under the LAA in 13 respect of any part of the affected land, a person 14 who holds any other title granted under or 15 pursuant to a Government agreement in respect 16 of any part of the affected land, a person who 17 holds a lease or licence in respect of any part of 18 the affected land under any other Act applying 19 in the said State and a person in whom any part 20 of the affected land is vested, immediately 21 before the provision of such consents to the 22 Minister as referred to in subclause (4)(e)(ii) 23 (including as applying pursuant to subclause 24 5(d)). 25 26 Joint Venturers to submit proposals for Railway 27 28 (4) (a) The Joint Venturers shall, subject to the EP 29 Act, the provisions of this Agreement, 30 agreement at that time subsisting in respect of 31 the matters required to be agreed pursuant to 32 subclause 3(a), submit to the Minister by the 33 latest date applying under subclause (2)(c) to 34 the fullest extent reasonably practicable their 35 detailed proposals (including plans where 36 practicable and specifications where reasonably 37 required by the Minister and any other details 38 normally required by a local government in 39 whose area any works are to be situated) with 40 respect to the undertaking of the relevant 41 Railway Operation, which proposals shall page 603 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 include the location, area, layout, design, 2 materials and time program for the 3 commencement and completion of construction 4 or the provision (as the case may be) of each of 5 the following matters namely: 6 7 (i) the Railway including fencing (if any) 8 and crossing places within the Railway 9 Corridor; 10 11 (ii) Additional Infrastructure (if any) within 12 the Railway Corridor; 13 14 (iii) temporary accommodation and ancillary 15 temporary facilities for the railway 16 workforce on, or in the vicinity of, the 17 Railway Corridor and housing and other 18 appropriate facilities elsewhere for the 19 Joint Venturers' workforce; 20 (iv) water supply; 21 22 (v) energy supplies; 23 24 (vi) access roads within the Railway Corridor 25 and Lateral Access Roads both along the 26 routes for those roads agreed between the 27 Minister and the Joint Venturers pursuant 28 to subclause 3(a); 29 30 (vii) any other works, services or facilities 31 desired by the Joint Venturers; and 32 33 (viii) use of local labour, professional services, 34 manufacturers, suppliers, contractors and 35 materials and measures to be taken with 36 respect to the engagement and training of 37 employees by the Joint Venturers, their 38 agents and contractors. 39 page 604 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 (b) Proposals pursuant to paragraph (a) must specify the 2 matters agreed for the purpose pursuant to subclause 3 (3)(a) and must not be contrary to or inconsistent 4 with such agreed matters. 5 6 (c) Each of the proposals pursuant to paragraph (a) may 7 with the approval of the Minister, or must if so 8 required by the Minister, be submitted separately and 9 in any order as to the matter or matters mentioned in 10 one or more of subparagraphs (i) to (viii) of 11 paragraph (a) and until all of their proposals under 12 this subclause have been approved the Joint 13 Venturers may withdraw and may resubmit any 14 proposal but the withdrawal of any proposal shall not 15 affect the obligations of the Joint Venturers to submit 16 a proposal under this subclause in respect of the 17 subject matter of the withdrawn proposal. 18 19 (d) The Joint Venturers shall, whenever any of the 20 following matters referred to in this subclause are 21 proposed by the Joint Venturers (whether before or 22 during the submission of proposals under this 23 subclause), submit to the Minister details of any 24 services (including any elements of the project 25 investigations, design and management) and any 26 works, materials, plant, equipment and supplies that 27 they propose to consider obtaining from or having 28 carried out or permitting to be obtained from or 29 carried out outside Australia, together with their 30 reasons therefor and shall, if required by the Minister 31 consult with the Minister with respect thereto. 32 33 (e) At the time when the Joint Venturers submit the last 34 of the said proposals pursuant to this subclause, they 35 shall: 36 37 (i) furnish to the Minister's reasonable 38 satisfaction evidence of all accreditations 39 under the Rail Safety Act which are required 40 to be held by the Joint Venturers or any other page 605 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 person for the construction of the Railway; 2 and 3 4 (ii) furnish to the Minister the written consents 5 referred to in subclause (3)(c)(i) and (3)(c)(ii). 6 7 (f) The provisions of clause 7B shall apply mutatis 8 mutandis to detailed proposals submitted under this 9 subclause. 10 11 Additional Railway Proposals 12 13 (5) (a) If the Joint Venturers at any time during the 14 currency of a Special Railway Licence desire to 15 construct a Railway spur line (connecting to the 16 Railway the subject of that Special Railway 17 Licence) or desires to significantly modify, 18 expand or otherwise vary their activities within 19 the land the subject of the Special Railway 20 Licence that are the subject of this Agreement 21 and that may be carried on by them pursuant to 22 this Agreement (other than by the construction 23 of a Railway spur line) beyond those activities 24 specified in any approved proposals for that 25 Railway, they shall give notice of such desire to 26 the Minister and furnish to the Minister with 27 that notice an outline of their proposals in 28 respect thereto (including, without limitation, 29 such matters mentioned in subclause (4)(a) as 30 are relevant or as the Minister otherwise 31 requires). 32 33 (b) If the notice relates to a Railway spur line, or to 34 the construction of Train Loading Infrastructure 35 or Train Unloading Infrastructure on land 36 outside the then Railway Corridor, the Minister 37 shall within one month of receipt of such notice 38 advise the Joint Venturers whether or not he 39 approves in-principle the proposed construction 40 of such spur line, Train Loading Infrastructure 41 or Train Unloading Infrastructure. If the page 606 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 Minister gives in-principle approval the Joint 2 Venturers may (but not otherwise) submit 3 detailed proposals in respect thereof provided 4 that the provisions of subclause (3) shall 5 mutatis mutandis apply prior to submission of 6 detailed proposals in respect thereof. 7 8 (c) Subject to the EP Act, the provisions of this 9 Agreement and agreement at that time 10 subsisting in respect of any matters required to 11 be agreed pursuant to subclause (3)(a) (as 12 referred to in paragraph (b)), the Joint Venturers 13 shall submit to the Minister within a reasonable 14 timeframe, as determined by the Minister after 15 receipt of the notice referred to in paragraph (a) 16 (or in the case of a notice referred to in 17 paragraph (b) the giving of the Minister's 18 in-principle consent as referred to in that 19 paragraph), detailed proposals in respect of the 20 proposed construction of such Railway spur 21 line, Train Loading Infrastructure, Train 22 Unloading Infrastructure or other proposed 23 modification, expansion or variation of their 24 activities including such of the matters 25 mentioned in subclause (4)(a) as the Minister 26 may require. 27 28 (d) The provisions of subclause (4) (with the date 29 for submission of proposals being read as the 30 date or time determined by the Minister under 31 paragraph (c) and the reference in subclause 32 (4)(e)(ii) to subclause (3)(c)(i) being read as a 33 reference to subclause (3)(c)(iii)) and of clause 34 7B shall mutatis mutandis apply to detailed 35 proposals submitted pursuant to this subclause. 36 37 Grant of Tenure 38 39 (6) (a) On application made by the Joint Venturers to 40 the Minister in such manner as the Minister may 41 determine, not later than 3 months after all their page 607 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 proposals submitted pursuant to subclause (4)(a) 2 have been approved or deemed to be approved 3 and the Joint Venturers have complied with the 4 provisions of subclause (4)(e), the State 5 notwithstanding the Mining Act 1978 shall 6 cause to be granted to the Joint Venturers: 7 8 (i) a miscellaneous licence to conduct within 9 the Railway Corridor and in accordance 10 with their approved proposals all 11 activities (including the taking of stone, 12 sand, clay and gravel, the provision of 13 temporary accommodation facilities for 14 the railway workforce and, subject to the 15 Rights in Water and Irrigation Act 1914 16 (WA), the operation of water bores) 17 necessary for the planning, design, 18 construction, commissioning, operation 19 and maintenance within the Railway 20 Corridor of the Railway, access roads 21 and Additional Infrastructure (if any) 22 ("the Special Railway Licence") such 23 licence to be granted under and subject 24 to, except as otherwise provided in this 25 Agreement, the Mining Act 1978 in the 26 form of the Second Schedule hereto and 27 subject to such terms and conditions as 28 the Minister for Mines may from time to 29 time consider reasonable and at a rental 30 calculated in accordance with the Mining 31 Act 1978: 32 33 (A) prior to the Railway Operation 34 Date, as if the width of the 35 Railway Corridor were 100 36 metres; and 37 38 (B) on and from the Railway 39 Operation Date, at the rentals from 40 time to time prescribed under the 41 Mining Act 1978; and page 608 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 (ii) a miscellaneous licence or licences to 2 allow the construction, use and 3 maintenance of Lateral Access Roads 4 within the routes agreed for those Lateral 5 Access Roads under subclause (3)(a) 6 (each a "Lateral Access Road Licence"), 7 each such licence to be granted under and 8 subject to, except as otherwise provided 9 in this Agreement, the Mining Act 1978 10 in the form of the Third Schedule hereto 11 and subject to such terms and conditions 12 as the Minister for Mines may from time 13 to time consider reasonable and at the 14 rentals from time to time prescribed 15 under the Mining Act 1978. 16 17 (b) On application made by the Joint Venturers to 18 the Minister in such manner as the Minister may 19 determine, not later than 3 months after their 20 proposals submitted pursuant to subclause (5)(a) 21 for the construction of Lateral Access Roads for 22 access to the Railway Corridor to construct a 23 Railway spur line have been approved or 24 deemed to be approved and the Joint Venturers 25 have complied with the provisions of subclause 26 (4)(e) (as applying pursuant to subclause 27 (5)(d)), the State notwithstanding the Mining 28 Act 1978 shall cause to be granted to the Joint 29 Venturers a miscellaneous licence or licences to 30 allow the construction, use and maintenance of 31 Lateral Access Roads within the routes agreed 32 for those Lateral Access Roads under subclause 33 (3)(a)) (as applying pursuant to subclause 34 (5)(b)) (each a "Lateral Access Road Licence"), 35 each such licence to be granted under and 36 subject to, except as otherwise provided in this 37 Agreement, the Mining Act 1978 in the form of 38 the Fourth Schedule hereto and subject to such 39 terms and conditions as the Minister for Mines 40 may from time to time consider reasonable and page 609 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 at the rentals from time to time prescribed under 2 the Mining Act 1978. 3 4 (c) Notwithstanding the Mining Act 1978, the term 5 of the Special Railway Licence shall, subject to 6 the sooner determination thereof on the 7 cessation or sooner determination of this 8 Agreement, be for a period of 50 years 9 commencing on the date of grant thereof. 10 11 (d) Notwithstanding the Mining Act 1978, the term 12 of any Lateral Access Road Licence shall, 13 subject to the sooner determination thereof on 14 the cessation or sooner determination of this 15 Agreement, be for a period of 4 years 16 commencing on the date of grant thereof. 17 18 (e) Notwithstanding the Mining Act 1978, and 19 except as required to do so by the terms of the 20 Special Railway Licence, the Joint Venturers 21 shall not be entitled to surrender the Special 22 Railway Licence or any Lateral Access Road 23 Licence or any part or parts of them without the 24 prior consent of the Minister. 25 26 (f) (i) The Joint Venturers may in accordance 27 with approved proposals take stone, sand, 28 clay and gravel from the Railway 29 Corridor for the construction, operation 30 and maintenance of the Railway 31 constructed within or approved for 32 construction within the Railway Corridor. 33 34 (ii) Notwithstanding the Mining Act 1978 no 35 royalty shall be payable under the Mining 36 Act 1978 in respect of stone, sand, clay 37 and gravel which the Joint Venturers are 38 permitted by subparagraph (i) to obtain 39 from the land the subject of the Special 40 Railway Licence. 41 page 610 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 (g) For the purposes of this Agreement and without 2 limiting the operation of paragraphs (a) to (f) 3 inclusive above, the application of the Mining 4 Act 1978 and the regulations made thereunder 5 are specifically modified; 6 7 (i) in section 91(1) by: 8 9 (A) deleting "the mining registrar or 10 the warden, in accordance with 11 section 42 (as read with section 12 92)" and substituting "the 13 Minister"; 14 15 (B) deleting "any person" and 16 substituting "the Joint Venturers 17 (as defined in the agreement 18 approved by and scheduled to the 19 Iron Ore (Mount Goldsworthy) 20 Agreement Act 1964, as from time 21 to time added to, varied or 22 amended)"; 23 24 (C) deleting "for any one or more of 25 the purposes prescribed" and 26 substituting "for the purpose 27 specified in clause 9E(6)(a)(i), 28 clause 9E(6)(a)(ii) or clause 29 9E(6)(b), of the agreement 30 approved by and scheduled to the 31 Iron Ore (Mount Goldsworthy) 32 Agreement Act 1964, as from time 33 to time added to, varied or 34 amended"; 35 (ii) in section 91(3)(a), by deleting 36 "prescribed form" and substituting "form 37 required by the agreement approved by 38 and scheduled to the Iron Ore (Mount 39 Goldsworthy) Agreement Act 1964, as page 611 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 from time to time added to, varied or 2 amended"; 3 4 (iii) by deleting sections 91(6), 91(9), 91(10) 5 and 91B; 6 7 (iv) in section 92, by deleting "Sections 41, 8 42, 44, 46, 46A, 47 and 52 apply," and 9 inserting "Section 46A (excluding in 10 subsection (2)(a) "the mining registrar, 11 the warden or") applies," and by deleting 12 "in those provisions" and inserting "in 13 that provision"; 14 15 (v) by deleting the full stop at the end of the 16 section 94(1) and inserting, "except to 17 the extent otherwise provided in, or to 18 the extent that such terms and conditions 19 are inconsistent with, the agreement 20 approved by and scheduled to the Iron 21 Ore (Mount Goldsworthy) Agreement Act 22 1964, as from time to time added to, 23 varied or amended"; 24 25 (vi) by deleting sections 94(2), (3) and (4); 26 27 (vii) in section 96(1), by inserting after 28 "miscellaneous licence" the words "(not 29 being a miscellaneous licence granted 30 pursuant to the agreement approved by 31 and scheduled to the Iron Ore (Mount 32 Goldsworthy) Agreement Act 1964, as 33 from time to time added to, varied or 34 amended"; 35 36 (viii) by deleting mining regulations 37(2), 37 37(3), 42 and 42A; and 38 39 (ix) by inserting at the beginning of mining 40 regulations 41(c) and (f) the words 41 "subject to the agreement approved by page 612 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 and scheduled to the Iron Ore (Mount 2 Goldsworthy) Agreement Act 1964, as 3 from time to time added to, varied or 4 amended". 5 6 (h) If additional proposals are approved in 7 accordance with subclause (5) for the 8 construction of a Railway spur line outside the 9 then Railway Corridor, the Minister for Mines 10 shall include the area of land within which such 11 construction is to occur in the Special Railway 12 Licence by endorsement. The area of such land 13 may be included notwithstanding that the 14 survey of the land has not been completed but 15 subject to correction to accord with the survey 16 when completed at the Joint Venturers' expense. 17 18 (i) If additional proposals are approved in 19 accordance with subclause (5) for the 20 construction of Train Loading Infrastructure or 21 Train Unloading Infrastructure outside the then 22 Railway Corridor, the Minister for Mines shall 23 include the area of such land within which such 24 infrastructure is approved for construction in the 25 Special Railway Licence by endorsement. The 26 area of such land may be included 27 notwithstanding that the survey of the land has 28 not been completed but subject to correction to 29 accord with the survey when completed at the 30 Joint Venturers' expense. 31 32 (j) The provisions of this subclause shall not 33 operate so as to require the State to cause a 34 Special Railway Licence or a Lateral Access 35 Road Licence to be granted or any land 36 included in the Special Railway Licence as 37 mentioned above until all processes necessary 38 under any laws relating to native title to enable 39 that grant or inclusion of land to proceed, have 40 been completed. 41 page 613 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 Construction and operation of Railway 2 3 (7) (a) Subject to and in accordance with approved 4 proposals, the Rail Safety Act and the grant of 5 the relevant Special Railway Licence and any 6 associated Lateral Access Road Licences the 7 Joint Venturers shall in a proper and 8 workmanlike manner and in accordance with 9 recognised standards for railways of a similar 10 nature operating under similar conditions 11 construct the Railway and associated 12 Additional Infrastructure and access roads 13 within the Railway Corridor and shall also 14 construct inter alia any necessary sidings, 15 crossing points, bridges, signalling switches 16 and other works and appurtenances and provide 17 for crossings and (where appropriate and 18 required by the Minister) grade separation or 19 other protective devices including flashing 20 lights and boom gates at places where the 21 Railway crosses or intersects with major roads 22 or existing railways. 23 24 (b) The Joint Venturers shall while the holder of a 25 Special Railway Licence: 26 27 (i) keep the Railway the subject of that 28 licence in an operable state; and 29 30 (ii) ensure that the Railway the subject of 31 that licence is operated in a safe and 32 proper manner in compliance with all 33 applicable laws from time to time; and 34 35 (iii) without limiting subparagraph (ii) ensure 36 that the obligations imposed under the 37 Rail Safety Act on an owner and an 38 operator (as those terms are therein 39 defined) are complied with in connection 40 with the Railway the subject of that 41 licence. page 614 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 Nothing in this Agreement shall be construed to 2 exempt the Joint Venturers or any other person 3 from compliance with the Rail Safety Act or 4 limit its application to the Joint Venturers' 5 operations generally (except as otherwise may 6 be provided in that Act or regulations made 7 under it). 8 9 (c) The Joint Venturers shall provide crossings for 10 livestock and also for any roads, other railways, 11 conveyors, pipelines and other utilities which 12 exist at the date of grant of the relevant Special 13 Railway Licence or in respect of land 14 subsequently included in it at the date of such 15 inclusion and the Joint Venturers shall on 16 reasonable terms and conditions allow such 17 crossings for roads, railways, conveyors, 18 pipelines and other utilities which may be 19 constructed for future needs and which may be 20 required to cross a Railway constructed 21 pursuant to this clause. 22 23 (d) Subject to clause 9D, the Joint Venturers shall 24 at all times be the holder of Special Railway 25 Licences and Lateral Access Road Licences 26 granted pursuant to this clause and (without 27 limiting clause 10(j) but subject to clause 9D) 28 shall at all times own manage and control the 29 use of each Railway the subject of a Special 30 Railway Licence held by the Joint Venturers. 31 32 (e) The Joint Venturers shall not be entitled to 33 exclusive possession of the land the subject of a 34 Special Railway Licence or Lateral Access 35 Road Licence granted pursuant to this clause to 36 the intent that the State, the Minister, the 37 Minister for Mines and any persons authorised 38 by any of them from time to time shall be 39 entitled to enter upon the land or any part of it 40 at all reasonable times and on reasonable notice 41 with all necessary vehicles, plant and page 615 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 equipment and for purposes related to this 2 Agreement or such other purposes as they think 3 fit but in doing so shall be subject to the 4 reasonable directions of the Joint Venturers so 5 as not to unreasonably interfere with the Joint 6 Venturers' operations. 7 8 (f) The Joint Venturers' ownership of a Railway 9 constructed pursuant to this clause shall not 10 give it an interest in the land underlying it. 11 12 (g) The Joint Venturers shall not at any time 13 without the prior consent of the Minister 14 dismantle, sell or otherwise dispose of any part 15 or parts of any Railway constructed pursuant to 16 this clause, or permit this to occur, other than 17 for the purpose of maintenance, repair, upgrade 18 or renewal. 19 20 (h) The Joint Venturers shall, subject to and in 21 accordance with approved proposals, in a 22 proper and workmanlike manner, construct any 23 Additional Infrastructure, access roads, Lateral 24 Access Roads and other works approved for 25 construction under this clause. 26 27 (i) The Joint Venturers shall while the holder of a 28 Special Railway Licence at all times keep and 29 maintain in good repair and working order and 30 condition (which obligation includes, where 31 necessary, replacing or renewing all parts 32 which are worn out or in need of replacement 33 or renewal due to their age or condition) the 34 Railway, access roads and Additional 35 Infrastructure (if any) the subject of that licence 36 and all such other works installations plant 37 machinery and equipment for the time being 38 the subject of this Agreement and used in 39 connection with the operation use and 40 maintenance of that Railway, access roads and 41 Additional Infrastructure (if any). page 616 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 (j) Subject to clause 9D, the Joint Venturers shall: 2 3 (i) be responsible for the cost of 4 construction and maintenance of all 5 Private Roads constructed pursuant to 6 this clause; and 7 8 (ii) at their own cost erect signposts and take 9 other steps that may be reasonable in the 10 circumstances to prevent any persons and 11 vehicles (other than those engaged upon 12 the Joint Venturers' activities and their 13 invitees and licensees) from using the 14 Private Roads; and 15 16 (iii) at any place where any Private Roads are 17 constructed by the Joint Venturers so as 18 to cross any railways or public roads 19 provide at their cost such reasonable 20 protection and signposting as may be 21 required by the Commissioner of Main 22 Roads or the Public Transport Authority 23 as the case may be. 24 25 (k) The provisions of clauses 9(2)(a) and (3) 26 regarding third party access as well as the 27 proviso to clause 9(2)(a) shall apply mutatis 28 mutandis to any Railway or Railway spur line 29 constructed pursuant to this clause except that 30 the Joint Venturers shall not be obliged to 31 transport any passengers upon any such 32 Railway or Railway spur line. 33 34 Aboriginal Heritage Act 1972 (WA) 35 36 (8) For the purposes of this clause the Aboriginal 37 Heritage Act 1972 (WA) applies as if it were modified 38 by: 39 40 (a) the insertion before the full stop at the end of 41 section 18(1) of the words: page 617 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 "and the expression "the Joint Venturers" 2 means the persons from time to time 3 comprising "the Joint Venturers" in their 4 capacity as such under the agreement approved 5 by and scheduled to the Iron Ore (Mount 6 Goldsworthy) Agreement Act 1964, as from 7 time to time added to, varied or amended in 8 relation to the use or proposed use of land 9 pursuant to clause 9E of that agreement after 10 and in accordance with approved proposals 11 under clause 9E of that agreement and in 12 relation to the use of that land before any such 13 approval of proposals where the Joint 14 Venturers have the requisite authority to enter 15 upon and so use the land"; 16 17 (b) the insertion in sections 18(2), 18(4), 18(5) and 18 18(7) of the words "or the Joint Venturers as 19 the case may be" after the words "owner of any 20 land"; 21 22 (c) the insertion in section 18(3) of the words "or 23 the Joint Venturers as the case may be" after 24 the words "the owner"; 25 26 (d) the insertion of the following sentences at the 27 end of section 18(3): 28 29 "In relation to a notice from the Joint Venturers 30 the conditions that the Minister may specify 31 can as appropriate include, among other 32 conditions, a condition restricting the Joint 33 Venturers' use of the relevant land to after the 34 approval or deemed approval as the case may 35 be under the abovementioned agreement of all 36 of the Joint Venturers' submitted initial 37 proposals thereunder for the Railway Operation 38 (as defined in clause 9E(1) of the 39 abovementioned agreement), or in the case of 40 additional proposals submitted or to be 41 submitted by the Joint Venturers to after the page 618 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 approval or deemed approval under that 2 agreement of such additional proposals, and to 3 the extent so approved. "; and 4 5 (e) the insertion in sections 18(2) and 18(5) of the 6 words "or it as the case may be" after the word 7 "he". 8 9 The Joint Venturers acknowledge that nothing in this 10 subclause (8) nor the granting of any consents under 11 section 18 of the Aboriginal Heritage Act 1972 (WA) 12 will constitute or is to be construed as constituting the 13 approval of any proposals submitted or to be submitted 14 by the Joint Venturers under this Agreement or as the 15 grant or promise of land tenure for the purposes of this 16 Agreement. 17 18 Taking of land for the purposes of this clause 19 20 (9) (a) The State is hereby empowered, as and for a 21 public work under Parts 9 and 10 of the LAA, to 22 take for the purposes of this clause any land 23 (other than any part of a Port) which in the 24 opinion of the Joint Venturers is necessary for 25 the relevant Railway Operation and which the 26 Minister determines is appropriate to be taken 27 for the relevant Railway Operation (except any 28 land the taking of which would be contrary to 29 the provisions of a Government agreement 30 entered into before the submission of the 31 proposals relating to the proposed taking) and 32 notwithstanding any other provisions of that Act 33 may license that land to the Joint Venturers. 34 35 (b) In applying Parts 9 and 10 of the LAA for the 36 purposes of this clause: 37 38 (i) "land" in that Act includes a legal or 39 equitable estate or interest in land; 40 page 619 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 (ii) sections 170, 171, 172, 173, 174, 175 and 2 184 of that Act do not apply; and 3 4 (iii) that Act applies as if it were modified in 5 section 177(2) by inserting - 6 (A) after "railway" the following - 7 "or land is being taken pursuant to 8 a Government agreement as 9 defined in section 2 of the 10 Government Agreements Act 1979 11 (WA)"; and 12 (B) after "that Act" the following - 13 "or that Agreement as the case 14 may be". 15 (c) The Joint Venturers shall pay to the State on 16 demand the costs of or incidental to any land 17 taken at the request of and on behalf of the 18 Joint Venturers including but not limited to any 19 compensation payable to any holder of native 20 title or of native title rights and interests in the 21 land. 22 23 Notification of Railway Operation Date 24 25 (10) (a) The Joint Venturers shall from the date occurring 26 6 months before the date for completion of 27 construction of a Railway specified in their time 28 program for the commencement and completion 29 of construction of that Railway submitted under 30 subclause (4)(a), keep the Minister fully 31 informed as to: 32 33 (i) the progress of that construction and its 34 likely completion and commissioning; 35 and 36 37 (ii) the likely Railway Operation Date. 38 page 620 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 (b) The Joint Venturers shall on the Railway 2 Operation Date notify the Minister that the first 3 carriage of iron ore, freight goods or other 4 products as the case may be over the Railway 5 (other than for construction or commissioning 6 purposes) has occurred. 7 8 (c) The Joint Venturers shall from the date 9 occurring 6 months before the date for 10 completion of construction of a Railway spur 11 line specified in their time program for the 12 commencement and completion of construction 13 of that spur line submitted under subclause 14 (5)(c) keep the Minister fully informed as to: 15 16 (i) the progress of that construction and its 17 likely completion and commissioning; 18 and 19 20 (ii) in respect of it, the likely Railway spur 21 line Operation Date. 22 23 (d) The Joint Venturers shall on the Railway spur 24 line Operation Date in respect of any Railway 25 spur line notify the Minister that the first 26 carriage of iron ore, freight goods or other 27 products as the case may be over such spur line 28 (other than for construction or commissioning 29 purposes) has occurred."; 30 (11) by inserting after clause 10(a) the following new paragraph: 31 "(aa) the purposes for which the Joint Venturers may in 32 accordance with paragraph (a) generate transmit and supply 33 electricity shall, without limiting paragraph (a), include the 34 purpose of supply to: 35 36 (i) "the Company" or "Joint Venturers" as the case may 37 be as defined in, and for the purpose of an Integration 38 Agreement, for its or their purposes thereunder; page 621 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 (ii) the holders from time to time of a Mining Act 1978 2 mining lease located in, or proximate to, the Pilbara 3 region of the said State which is held by a Related 4 Entity alone or with a third party or parties 5 (excluding any mining lease granted pursuant to, or 6 held under, a Government agreement) for the purpose 7 of their iron ore mining operations on that mining 8 lease; and 9 (iii) with the prior approval of the Minister, "the 10 Company" or "the Joint Venturers" as the case may 11 be as defined in, and for the purpose of a 12 Government agreement (excluding an Integration 13 Agreement) for the mining of iron ore in, or 14 proximate to, the Pilbara region of the said State for 15 the purpose of its or their operations under that 16 agreement;"; 17 18 (12) in clause 10(d)(i) by inserting "or held pursuant hereto" after 19 "granted hereunder or pursuant hereto"; 20 (13) in clause 10(e) by: 21 (a) inserting "or pursuant hereto" after "easement granted 22 hereunder"; and 23 (b) inserting "or held pursuant hereto" after "clause 20 hereof"; 24 (14) in clause 10(1) by: 25 (a) inserting "granted under or pursuant to this Agreement or 26 held pursuant to this Agreement" after "licence or other 27 title"; 28 (b) inserting "or held pursuant hereto" after the subsequent 3 29 references to "granted hereunder or pursuant hereto"; and page 622 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 (c) deleting "occupied by the Joint Venturers" and substituting 2 "the subject of any lease licence easement or other title 3 granted under or pursuant to this Agreement or held pursuant 4 to this Agreement"; 5 6 (15) by inserting after subclause (7) of clause 11 the following new 7 subclause:: 8 "(8) (a) If the Joint Venturers at any time during the 9 continuance of this Agreement desire to significantly 10 modify expand or otherwise vary their activities 11 within the second mineral lease beyond those 12 specified in any proposals approved or deemed to be 13 approved under this clause they shall give notice of 14 such desire to the Minister and within two months of 15 the giving of such notice shall submit to the Minister 16 detailed proposals in respect of all matters covered by 17 such notice and such of the other matters mentioned in 18 paragraph (a) of subclause (2) of this clause as the 19 Minister may require. 20 (b) The provisions of clause 7A(2) to (5) and 7B shall 21 apply mutatis mutandis to proposals pursuant to this 22 subclause."; 23 (16) in clause 12(3e) by: 24 (a) inserting "(except in relation to an Integration Agreement)" 25 after "agreement of the Minister"; and 26 (b) inserting "(being in respect of an Integration Agreement the 27 Integration Proponent for that Agreement)" after "third 28 parties concerned"; 29 (17) in clause 12(5) by deleting paragraphs (b) and (c) and substituting 30 the following paragraph: 31 "(b) The provisions of clauses 7A(2) to (5) and 7B shall apply 32 mutatis mutandis to proposals submitted pursuant to this 33 subclause."; page 623 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 (18) in the heading to clause 11 by deleting "Company" and 2 substituting "Joint Venturers"; 3 (19) by inserting after subclause (1) of clause 12A the following new 4 subclause: 5 "(1a) The provisions of subclause (1) of this clause shall not 6 operate so as to require the State to grant or vary, or 7 cause to be granted or varied, any lease licence or 8 other right or title until all processes necessary under 9 any laws relating to native title to enable that grant or 10 variation to proceed, have been completed."; 11 (20) in clause 19: 12 (a) by in the second sentence: 13 (i) deleting the first reference to "Company" and 14 substituting "Joint Venturers"; and 15 (ii) deleting "Company or its" and substituting "Joint 16 Venturers or their"; and 17 (b) inserting at its end the following new sentence: 18 "As a separate independent indemnity the Joint Venturers 19 will indemnify and keep indemnified the State and its 20 servants agents and contractors in respect of all actions suits 21 claims demands or costs of third parties arising out of or in 22 connection with any use, making available for use or other 23 activities of the Joint Venturers as referred to in clause 9C."; 24 (21) in clause 21(1) by inserting "or held pursuant hereto" after "granted 25 hereunder or pursuant hereto"; 26 (22) by deleting clause 28; and 27 (23) inserting after the Schedule the following new schedules: 28 29 page 624 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 "SECOND SCHEDULE 2 3 WESTERN AUSTRALIA 4 5 IRON ORE (MOUNT GOLDSWORTHY) AGREEMENT 6 ACT 1964 7 8 MINING ACT 1978 9 10 MISCELLANEOUS LICENCE FOR A RAILWAY AND 11 OTHER PURPOSES 12 13 14 No. MISCELLANEOUS LICENCE [ ] 15 16 WHEREAS by the Agreement (hereinafter called "the 17 Agreement") approved by and scheduled to the Iron Ore (Mount 18 Goldsworthy) Agreement Act 1964, as from time to time added to, 19 varied or amended, the State agreed to grant to [ ] (hereinafter 20 with their successors and permitted assigns called "the Joint 21 Venturers") a miscellaneous licence for the construction operation 22 and maintenance of a Railway (as defined in clause 9E(1) of the 23 Agreement and otherwise as provided in the Agreement) and, if 24 applicable, other purposes AND WHEREAS the Joint Venturers 25 pursuant to clause 9E(6)(a) of the Agreement have made 26 application for the said licence; 27 28 NOW in consideration of the rents reserved by and the provisions 29 of the Agreement and in pursuance of the Iron Ore (Mount 30 Goldsworthy) Agreement Act 1964, as from time to time added to, 31 varied or amended, the Joint Venturers are hereby granted by this 32 licence authority to conduct on the land the subject of this licence 33 as more particularly delineated and described from time to time in 34 the Schedule hereto all activities (including the taking of stone, 35 sand, clay and gravel, the provision of temporary accommodation 36 facilities for the railway workforce in accordance with the 37 Agreement and, subject to the Rights in Water and Irrigation Act 38 1914 (WA), the operation of water bores) necessary for the 39 planning, design, construction, commissioning, operation and 40 maintenance on the land the subject of this licence of the Railway 41 and Additional Infrastructure (as defined in clause 9E(1) of the page 625 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 Agreement) and access roads to be located on the land the subject 2 of this licence in accordance with the provisions of the Agreement 3 and proposals approved under the Agreement, for the term of 50 4 years from the date hereof (subject to the sooner determination of 5 the term upon the determination of the Agreement) and upon and 6 subject to the terms covenants and conditions set out in the 7 Agreement and the Mining Act 1978 as it applies to this licence, 8 and any amendments to the Agreement and the Mining Act 1978 9 from time to time and to the terms and conditions (if any) now or 10 hereafter endorsed hereon and the payment of rentals in respect of 11 this licence in accordance with clause 9E(6)(a)(i) of the Agreement 12 PROVIDED ALWAYS that this licence shall not be determined or 13 forfeited otherwise than in accordance with the Agreement. 14 15 In this licence: 16 17 - If the Joint Venturers be more than one the liability of the 18 Joint Venturers hereunder shall be joint and several. 19 20 - Reference to an Act includes all amendments to that Act 21 for the time being in force and also any Act passed in 22 substitution therefore or in lieu thereof and to the 23 regulations and by-laws of the time being in force 24 thereunder. 25 26 - Reference to "the Agreement" means such agreement as 27 from time to time added to, varied or amended. 28 29 - The terms "approved proposals", "Railway", "Railway 30 Operation Date", and "Railway spur line" have the 31 meanings given in the Agreement. 32 33 (i) ENDORSEMENTS AND CONDITIONS 34 35 Endorsements 36 37 1. This licence is granted in accordance with proposals 38 submitted on [ ], and approved by the Minister (as 39 defined in the Agreement) on [ ], under the Agreement. 40 page 626 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 2. The Joint Venturers are permitted to, in accordance with 2 approved proposals, take stone, sand, clay and gravel 3 from the land the subject of this licence for the 4 construction, operation and maintenance of the Railway 5 (including any Railway spur line) constructed within or 6 approved for construction within the area of land the 7 subject of this licence. 8 9 3. Notwithstanding the Mining Act 1978, no royalty shall be 10 payable under the Mining Act 1978 in respect of stone, 11 sand, clay and gravel which the Joint Venturers are 12 permitted by the Agreement to obtain from the land the 13 subject of this licence. 14 15 4. [Any further endorsement which the Minister for Mines 16 may, consistent with the provisions of the Agreement, 17 determines and thereafter impose in respect of this 18 licence including during the term of the Agreement.] 19 20 Conditions 21 22 1. (a) Except as provided in paragraph (b), the Joint 23 Venturers shall within 2 years after the Railway 24 Operation Date surrender in accordance with the 25 provisions of the Mining Act 1978 the area of 26 this licence down to a maximum of 100 metres 27 width or as otherwise approved by the Minister 28 (as defined in the Agreement) for the safe 29 operation of the Railway then constructed or 30 approved for construction under approved 31 proposals. 32 33 (b) Paragraph (a) shall not apply to land the subject 34 of this licence that was included in this licence 35 pursuant to clause 9E(6)(h) or clause 9E(6)(i) of 36 the Agreement. 37 38 2. The Joint Venturers shall as soon as possible after the 39 construction of a Railway spur line or of an expansion 40 or extension thereof as the case may be surrender in 41 accordance with the Mining Act 1978 the land the page 627 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 subject of this licence that was included in this licence 2 pursuant to clause 9E(6)(h) of the Agreement for the 3 purpose of such construction down to a maximum of 4 100 metres in width or as otherwise approved by the 5 Minister (as defined in the Agreement) for the safe 6 operation of that Railway spur line or expansion or 7 extension thereof as the case may be then constructed or 8 approved for construction under approved proposals. 9 10 3. [Any further conditions which the Minister for Mines 11 may, consistent with the provisions of the Agreement, 12 determines and thereafter impose in respect of this 13 licence including during the term of the Agreement.] 14 15 SCHEDULE 16 17 Land description 18 19 Locality: 20 Mineral Field 21 Area: 22 23 DATED at Perth this day of . 24 25 MINISTER FOR MINES 26 27 28 page 628 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 THIRD SCHEDULE 2 3 WESTERN AUSTRALIA 4 5 IRON ORE (MOUNT GOLDSWORTHY) AGREEMENT 6 ACT 1964 7 8 MINING ACT 1978 9 10 MISCELLANEOUS LICENCE FOR A LATERAL ACCESS 11 ROAD 12 13 14 No. MISCELLANEOUS LICENCE [ ] 15 16 WHEREAS by the Agreement (hereinafter called "the 17 Agreement") approved by and scheduled the Iron Ore (Mount 18 Goldsworthy) Agreement Act 1964, as from time to time added to, 19 varied or amended, the State agreed to grant to [ ] (hereinafter 20 with their successors and permitted assigns called "the Joint 21 Venturers") a miscellaneous licence for the construction use and 22 maintenance of a Lateral Access Road (as defined in the 23 Agreement) AND WHEREAS the Joint Venturers pursuant to 24 clause 9E(6)(a)(ii) of the Agreement have made application for the 25 said licence; 26 27 NOW in consideration of the rents reserved by and the provisions 28 of the Agreement and in pursuance of the Iron Ore (Mount 29 Goldsworthy) Agreement Act 1964, as from time to time added to, 30 varied or amended, the Joint Venturers are hereby authorised to 31 construct use and maintain a road on the land more particularly 32 delineated and described from time to time in the Schedule hereto 33 in accordance with the provisions of the Agreement and proposals 34 approved under the Agreement for a term of 4 years commencing 35 on the date hereof (subject to the sooner determination of the term 36 upon the cessation or determination of the Agreement) and for the 37 purposes and upon and subject to the terms covenants and 38 conditions set out in the Agreement and the Mining Act 1978 as it 39 applies to this licence, and any amendments to the Agreement and 40 the Mining Act 1978 from time to time and to the terms and 41 conditions (if any) now or hereafter endorsed hereon and the page 629 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 payment of rentals in respect of this licence in accordance with 2 clause 9E(6)(a)(ii) of the Agreement PROVIDED ALWAYS that 3 this licence shall not be determined or forfeited otherwise than in 4 accordance with the Agreement. 5 6 In this licence: 7 8 - If the Joint Venturers be more than one the liability of the 9 Joint Venturers hereunder shall be joint and several. 10 11 - Reference to an Act includes all amendments to that Act 12 for the time being in force and also any Act passed in 13 substitution therefore or in lieu thereof and to the 14 regulations and by-laws of the time being in force 15 thereunder. 16 17 - Reference to "the Agreement" means such agreement as 18 from time to time added to, varied or amended. 19 20 (ii) ENDORSEMENTS AND CONDITIONS 21 22 Endorsements 23 24 1. This licence is granted in accordance with proposals 25 submitted on [ ], and approved by the Minister (as 26 defined in the Agreement) on [ ], under the Agreement. 27 28 2. [Any further endorsement which the Minister for Mines 29 may, consistent with the provisions of the Agreement, 30 determines and thereafter impose in respect of this 31 licence including during the term of the Agreement.] 32 33 Conditions 34 35 [Such conditions which the Minister for Mines may, consistent 36 with the provisions of the Agreement, determines and thereafter 37 impose in respect of the licence, including during the term of the 38 Agreement.] 39 40 page 630 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 SCHEDULE 2 3 Description of land 4 5 Locality: 6 Mineral Field: 7 Area: 8 9 DATED at Perth this day of . 10 11 MINISTER FOR MINES 12 page 631 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 FOURTH SCHEDULE 2 3 WESTERN AUSTRALIA 4 5 IRON ORE (MOUNT GOLDSWORTHY) AGREEMENT 6 ACT 1964 7 8 MINING ACT 1978 9 10 MISCELLANEOUS LICENCE FOR A LATERAL ACCESS 11 ROAD 12 13 14 No. MISCELLANEOUS LICENCE [ ] 15 16 WHEREAS by the Agreement (hereinafter called "the 17 Agreement") approved by and scheduled the Iron Ore (Mount 18 Goldsworthy) Agreement Act 1964, as from time to time added to, 19 varied or amended, the State agreed to grant to [ ] (hereinafter 20 with their successors and permitted assigns called "the Joint 21 Venturers") a miscellaneous licence for the construction use and 22 maintenance of a Lateral Access Road (as defined in the 23 Agreement) AND WHEREAS the Joint Venturers pursuant to 24 clause 9E(6)(b) of the Agreement have made application for the 25 said licence; 26 27 NOW in consideration of the rents reserved by and the provisions 28 of the Agreement and in pursuance of the Iron Ore (Mount 29 Goldsworthy) Agreement Act 1964, as from time to time added to, 30 varied or amended, the Joint Venturers are hereby authorised to 31 construct use and maintain a road on the land more particularly 32 delineated and described from time to time in the Schedule hereto 33 in accordance with the provisions of the Agreement and proposals 34 approved under the Agreement for a term of 4 years commencing 35 on the date hereof (subject to the sooner determination of the term 36 upon the cessation or determination of the Agreement) and for the 37 purposes and upon and subject to the terms covenants and 38 conditions set out in the Agreement and the Mining Act 1978 as it 39 applies to this licence, and any amendments to the Agreement and 40 the Mining Act 1978 from time to time and to the terms and 41 conditions (if any) now or hereafter endorsed hereon and the page 632 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 payment of rentals in respect of this licence in accordance with 2 clause 9E(6)(b) of the Agreement PROVIDED ALWAYS that this 3 licence shall not be determined or forfeited otherwise than in 4 accordance with the Agreement. 5 6 In this licence: 7 8 - If the Joint Venturers be more than one the liability of the 9 Joint Venturers hereunder shall be joint and several. 10 11 - Reference to an Act includes all amendments to that Act 12 for the time being in force and also any Act passed in 13 substitution therefore or in lieu thereof and to the 14 regulations and by-laws of the time being in force 15 thereunder. 16 17 - Reference to "the Agreement" means such agreement as 18 from time to time added to, varied or amended. 19 20 (iii) ENDORSEMENTS AND CONDITIONS 21 22 Endorsements 23 24 1. This licence is granted in accordance with proposals 25 submitted on [ ], and approved by the Minister (as 26 defined in the Agreement) on [ ], under the Agreement. 27 28 2. [Any further endorsement which the Minister for Mines 29 may, consistent with the provisions of the Agreement, 30 determines and thereafter impose in respect of this 31 licence including during the term of the Agreement.] 32 33 Conditions 34 35 [Such conditions which the Minister for Mines may, consistent 36 with the provisions of the Agreement, determines and thereafter 37 impose in respect of the licence, including during the term of the 38 Agreement.] 39 40 page 633 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 SCHEDULE 2 3 Description of land 4 5 Locality: 6 Mineral Field: 7 Area: 8 9 DATED at Perth this day of . 10 11 MINISTER FOR MINES" 12 13 page 634 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 8 s. 33 1 EXECUTED as a deed. 2 3 SIGNED by THE HONOURABLE ) 4 COLIN JAMES BARNETT ) [Signature] 5 in the presence of: ) 6 [Signature] STEPHEN WOOD 7 8 9 10 EXECUTED by BHP BILLITON ) 11 MINERALS PTY. LTD. ACN 008 694 ) 12 782 in accordance with section 127(1) of ) 13 the Corporations Act ) 14 [Signature] [Signature] Signature of Director Signature of Director/Company Secretary 15 STEWART HART ROBIN B LEES Name of Director Name of Director/Company Secretary 16 17 18 19 EXECUTED by MITSUI IRON ORE ) 20 CORPORATION PTY. LTD. ACN ) 21 050 157 456 in accordance with section ) 22 127(1) of the Corporations Act ) 23 [Signature] [Signature] Signature of Director Signature of Director/Company Secretary 24 RYUZO NAKAMURA GAVIN PETER PATTERSON Name of Director Name of Director/Company Secretary 25 26 page 635 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 8 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 33 1 Signed by Shuzaburo Tsuchihashi as ) 2 attorney for ITOCHU MINERALS & ) 3 ENERGY OF AUSTRALIA PTY. ) 4 LTD. ACN 009 256 259 under power ) 5 of attorney dated 12 November 2010 ) 6 in the presence of: ) 7 [Signature] [Signature] Signature of witness Shuzaburo Tsuchihashi 8 YASUSHI FUKUMURA Name of witness (print) 9 10 page 636 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 34 1 Part 9 -- Iron Ore (Goldsworthy-Nimingarra) 2 Agreement Act 1972 amended 3 34. Act amended 4 This Part amends the Iron Ore (Goldsworthy-Nimingarra) 5 Agreement Act 1972. 6 35. Section 2 amended 7 (1) In section 2 insert in alphabetical order: 8 9 the Second Variation Agreement means the agreement 10 a copy of which is set out in Schedule 3. 11 12 (2) In section 2 in the definition of the Joint Venturers delete 13 "Agreement." and insert: 14 15 Agreement; 16 17 36. Sections 6 and 7 inserted 18 After section 5 insert: 19 20 6. Second Variation Agreement 21 (1) The Second Variation Agreement is ratified. 22 (2) The implementation of the Second Variation 23 Agreement is authorised. 24 (3) Without limiting or otherwise affecting the application 25 of the Government Agreements Act 1979, the Second 26 Variation Agreement is to operate and take effect 27 despite any other Act or law. page 637 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 37 1 7. State empowered under clause 16C(9)(a) 2 The State has power in accordance with 3 clause 16C(9)(a) of the Agreement. 4 5 37. Schedule 3 inserted 6 After Schedule 2 insert: 7 page 638 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 Schedule 3 -- Second Variation Agreement 2 [s. 2] 3 2010 4 5 6 7 THE HONOURABLE COLIN JAMES BARNETT 8 PREMIER OF THE STATE OF WESTERN AUSTRALIA 9 10 AND 11 12 BHP BILLITON MINERALS PTY. LTD. 13 ACN 008 694 782 14 15 MITSUI IRON ORE CORPORATION PTY. LTD. 16 ACN 050 157 456 17 18 ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY. LTD. 19 ACN 009 256 259 20 21 22 ________________________________________________________________ 23 24 IRON ORE (GOLDSWORTHY-NIMINGARRA) AGREEMENT 1972 25 26 RATIFIED VARIATION AGREEMENT 27 ________________________________________________________________ 28 29 30 31 [Solicitor's details] 32 33 34 35 36 37 38 39 40 page 639 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 THIS AGREEMENT is made this 17th day of November 2010 2 3 4 BETWEEN 5 6 7 THE HONOURABLE COLIN JAMES BARNETT MLA., Premier of the 8 State of Western Australia, acting for and on behalf of the said State and 9 instrumentalities thereof from time to time (State) 10 11 AND 12 13 BHP BILLITON MINERALS PTY. LTD. ACN 008 694 782 of Level 17, St 14 Georges Square, 225 St Georges Terrace, Perth, Western Australia, MITSUI 15 IRON ORE CORPORATION PTY. LTD. ACN 050 157 456, of Level 16, 16 Exchange Plaza, 2 The Esplanade, Perth, Western Australia and ITOCHU 17 MINERALS & ENERGY OF AUSTRALIA PTY. LTD. ACN 009 256 259 18 of Level 22, Forrest Centre, 221 St Georges Terrace, Perth, Western Australia 19 (Joint Venturers). 20 21 22 RECITALS 23 24 A. The State and the Joint Venturers are now the parties to the agreement 25 dated 12 April 1972 approved by and scheduled to the Iron Ore 26 (Goldsworthy-Nimingarra) Agreement Act 1972 and which as 27 subsequently added to, varied or amended is referred to in this Agreement 28 as the "Principal Agreement". 29 B. The State and the Joint Venturers wish to vary the Principal Agreement. 30 31 32 THE PARTIES AGREE AS FOLLOWS: 33 34 1. Subject to the context, the words and expressions used in this Agreement 35 have the same meanings respectively as they have in and for the purpose 36 of the Principal Agreement. 37 2. The State shall sponsor a Bill in the Parliament of Western Australia to 38 ratify this Agreement and shall endeavour to secure its passage as an Act 39 prior to 31 December 2010 or such later date as the parties may agree. page 640 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 3. (a) Clause 4 does not come into operation unless or until an Act passed 2 in accordance with clause 2 ratifies this Agreement. 3 (b) If by 30 June 2011, or such later date has may be agreed pursuant 4 to clause 2, clause 4 has not come into operation then unless the 5 parties hereto otherwise agree this Agreement shall cease and 6 determine and neither party shall have any claim against the other 7 party with respect to any matter or thing arising out of or done or 8 performed or omitted to be done or performed under this 9 Agreement. 10 4. The Principal Agreement is varied as follows: 11 (1) in clause 1: 12 (a) by deleting the existing definitions of "beneficiated ore", 13 "deemed f.o.b. value", "fine ore" and "lump ore"; 14 (b) by inserting in the appropriate alphabetical positions the 15 following new definitions: 16 "approved proposal" means a proposal approved or 17 determined under this Agreement; 18 "beneficiated ore" means iron ore that has been concentrated 19 or upgraded (otherwise than solely by crushing, screening, 20 separating by hydrocycloning or a similar technology which 21 uses primarily size as a criterion, washing, scrubbing, 22 trommelling or drying or by a combination of 2 or more of 23 those processes) by the Joint Venturers in a plant constructed 24 pursuant to a proposal approved pursuant to an Integration 25 Agreement or in such other plant as is approved by the 26 Minister after consultation with the Minister for Mines and 27 "beneficiation" and "beneficiate" have corresponding 28 meanings; 29 "deemed f.o.b. value" means an agreed or determined value 30 of the iron ore as if the iron ore was sold f.o.b. at the deemed 31 f.o.b. point as at: page 641 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 (a) in the case of iron ore the property of the Joint 2 Venturers which is shipped out of the said State, the 3 date of shipment; and 4 (b) in any other case, the date of sale, transfer of 5 ownership, disposal or use as the case may be; 6 "EP Act" means the Environmental Protection Act 1986 7 (WA); 8 "fine ore" means iron ore (not being beneficiated ore) which 9 is screened and will pass through a 6.3 millimetre mesh 10 screen; 11 "Government agreement" has the meaning given in the 12 Government Agreements Act 1979 (WA); 13 "Integration Agreement" means: 14 (a) the agreement approved by and scheduled to the Iron 15 Ore (Hamersley Range) Agreement Act 1963, as from 16 time to time added to, varied or amended; or 17 (b) the agreement approved by and scheduled to the Iron 18 Ore (Robe River) Agreement Act 1964, as from time 19 to time added to, varied or amended; or 20 (c) the agreement approved by and scheduled to the Iron 21 Ore (Hamersley Range) Agreement Act Amendment 22 Act 1968, as from time to time added to, varied or 23 amended; or 24 (d) the agreement ratified by and scheduled to the Iron 25 Ore (Mount Bruce) Agreement Act 1972, as from time 26 to time added to, varied or amended; or 27 (e) the agreement ratified by and scheduled to the Iron 28 Ore (Hope Downs) Agreement Act 1992, as from time 29 to time added to, varied or amended; or page 642 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 (f) the agreement ratified by and scheduled to the Iron 2 Ore (Yandicoogina) Agreement Act 1996, as from 3 time to time added to, varied or amended; or 4 (g) the agreement approved by and scheduled to the Iron 5 Ore (Mount Newman) Agreement Act 1964, as from 6 time to time added to, varied or amended; or 7 (h) the agreement approved by and scheduled to the Iron 8 Ore (Mount Goldsworthy) Agreement Act 1964, as 9 from time to time added to, varied or amended; or 10 (i) the agreement ratified by and scheduled to the Iron 11 Ore (Goldsworthy-Nimingarra) Agreement Act 1972, 12 as from time to time added to, varied or amended; or 13 (j) the agreement authorised by and as scheduled to the 14 Iron Ore (McCamey's Monster) Agreement 15 Authorisation Act 1972, as from time to time added to, 16 varied or amended; or 17 (k) the agreement ratified by and scheduled to the Iron 18 Ore (Marillana Creek) Agreement Act 1991, as from 19 time to time added to, varied or amended; 20 "Integration Proponent" means in relation to an Integration 21 Agreement, "the Company" or "the Joint Venturers" as the 22 case may be as defined in, and for the purpose of, that 23 Integration Agreement; 24 "iron ore" includes, without limitation, beneficiated ore; 25 "laws relating to native title" means laws applicable from 26 time to time in the said State in respect of native title and 27 includes the Native Title Act 1993 (Commonwealth); 28 "loading port" means: 29 (a) the Port of Dampier; or 30 (b) Port Walcott; or page 643 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 (c) the Port of Port Hedland; or 2 (d) any other port constructed after the variation date 3 under an Integration Agreement; or 4 (e) such other port approved by the Minister at the 5 request of the Joint Venturers from time to time for 6 the shipment of iron ore from the mineral lease; 7 "lump ore" means iron ore (not being beneficiated ore) 8 which is screened and will not pass through a 6.3 millimetre 9 mesh screen; 10 "Minister for Mines" means the Minister in the Government 11 of the said State for the time being responsible (under 12 whatsoever title) for the administration of the Mining Act 13 1904 and the Mining Act 1978; 14 "Related Entity" means a company in which: 15 (a) as at 21 June 2010; and 16 (b) after 21 June 2010, with the approval of the Minister, 17 a direct or (through a subsidiary or subsidiaries within the 18 meaning of the Corporations Act 2001 (Commonwealth)) 19 indirect shareholding of 20% or more is held by: 20 21 (c) Rio Tinto Limited ABN 96 004 458 404; or 22 23 (d) BHP Billiton Limited ABN 49 004 028 077; or 24 (e) those companies referred to in paragraphs (c) and (d) 25 in aggregate; 26 "said State" means the State of Western Australia; 27 "variation date" means the date on which clause 4 of the 28 variation agreement made on or about 17 November 2010 29 between the State and the Joint Venturers comes into 30 operation; page 644 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 (c) in the definition of "agreed or determined" by: 2 (i) inserting "(following, if requested by the Joint 3 Venturers, consultation with the Joint Venturers and 4 their consultants in regard thereto)" after "as 5 determined by the Minister"; 6 (ii) deleting "assessed at" and substituting "assessed on"; 7 and 8 (iii) deleting all the words after "shall have regard to" and 9 substituting a colon followed by: 10 11 "(i) in the case of iron ore initially sold at cost 12 pursuant to the proviso to clause 13, the prices 13 for that type of iron ore prevailing at the time 14 the price for such iron ore was agreed between 15 the arm's length purchaser referred to in 16 paragraph (iii) of that proviso and the seller in 17 relation to the type of sale and the relevant 18 international seaborne iron ore market into 19 which such iron ore was sold and where prices 20 beyond the deemed f.o.b. point are being 21 considered the deductions mentioned in the 22 definition of f.o.b. value; and 23 24 (ii) in any other case, the prices for that type of iron 25 ore prevailing at the time the price for such iron 26 ore was agreed between the Joint Venturers and 27 the purchaser in relation to the type of sale and 28 the market into which such iron ore was sold 29 and where prices beyond the deemed f.o.b. 30 point are being considered the deductions 31 mentioned in the definition of f.o.b. value;" 32 (d) in the definition of "deemed f.o.b. point" by deleting "Joint 33 Venturers' wharf" and substituting "relevant loading port"; 34 (e) in the definition of "f.o.b. value" by: 35 (i) in paragraph (i): page 645 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 (A) inserting "subject to paragraph (ii)," before "in 2 the case of"; 3 (B) deleting "assessed at" and substituting "assessed 4 on"; 5 (C) deleting "Joint Venturers' wharf" and 6 substituting "relevant loading port"; and 7 (D) inserting "after loading on and departure of ship 8 from the relevant loading port" before the semi 9 colon at the end of subparagraph (6); 10 (ii) renumbering paragraph (ii) as paragraph (iii); and 11 (iii) inserting after paragraph (i) the following new 12 paragraph: 13 "(ii) in the case of iron ore initially sold at cost 14 pursuant to the proviso to clause 13, the price 15 which is payable for the iron ore by the arm's 16 length purchaser as referred to in paragraph (iii) 17 of that proviso or, where the Minister 18 considers, following advice from the 19 appropriate Government department, that the 20 price payable in respect of the iron ore does not 21 represent a fair and reasonable market value for 22 that type of iron ore assessed on an arm's length 23 basis in the relevant international seaborne iron 24 ore market, such amount as is agreed or 25 determined as representing such a fair and 26 reasonable market value, less all duties, taxes, 27 costs and charges referred to in paragraph (i) 28 above"; 29 (f) in the definition of "Joint Venturers' wharf" by inserting 30 "and in clause 13 also any additional wharf constructed by 31 the Joint Venturers pursuant to this Agreement" before the 32 semi colon; 33 page 646 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 (g) in the definition of "mineral lease" by inserting "(and any 2 areas added to it pursuant to clause 9A)" after "clause 9(1)"; 3 (h) in the definition of "secondary processing" by deleting 4 "concentration or other beneficiation of iron ore other than 5 by crushing or screening" and substituting "beneficiation of 6 iron ore"; 7 (i) in the sentence commencing "marginal notes" by inserting 8 "and clause headings" after "marginal notes"; and 9 (j) by inserting at the end of clause 1 the following new 10 sentences: 11 "Words in the singular shall include the plural and words in 12 the plural shall include the singular according to the 13 requirements of the context. 14 Nothing in this Agreement shall be construed: 15 (a) to exempt the Joint Venturers from compliance with 16 any requirement in connection with the protection of 17 the environment arising out of or incidental to their 18 activities under this Agreement that may be made by 19 or under the EP Act; or 20 (b) to exempt the State or the Joint Venturers from 21 compliance with or to require the State or the Joint 22 Venturers to do anything contrary to any laws relating 23 to native title or any lawful obligation or requirement 24 imposed on the State or the Joint Venturers as the case 25 may be pursuant to any laws relating to native title; or 26 (c) to exempt the Joint Venturers from compliance with 27 the provisions of the Aboriginal Heritage Act 1972 28 (WA)."; page 647 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 (2) by deleting clause 8 and substituting the following new clauses: 2 "Additional Proposals 3 8. (1) If the Joint Venturers, at any time during the 4 continuance of this Agreement after the variation date, 5 desire to significantly modify, expand or otherwise 6 vary their activities carried on pursuant to this 7 Agreement (other than under clause 16C) beyond 8 those activities specified in any proposals approved 9 pursuant to clause 7 they shall give notice of such 10 desire to the Minister and within 2 months thereafter 11 shall submit to the Minister detailed proposals in 12 respect of all matters covered by such notice and such 13 of the other matters mentioned in clause 6(1)(a) as the 14 Minister may require. 15 (2) A proposal may with the consent of the Minister 16 (except in relation to an Integration Agreement) and 17 that of any parties concerned (being in respect of an 18 Integration Agreement the Integration Proponent for 19 that agreement) provide for the use by the Joint 20 Venturers of any works installations or facilities 21 constructed or established under a Government 22 agreement. 23 (3) Each of the proposals pursuant to subclause (1) may 24 with the approval of the Minister, or shall if so 25 required by the Minister, be submitted separately and 26 in any order as to any matter or matters in respect of 27 which such proposals are required to be submitted. 28 (4) At the time when the Joint Venturers submit the said 29 proposals they shall submit to the Minister details of 30 any services (including any elements of the project 31 investigations, design and management) and any 32 works materials, plant, equipment and supplies that 33 they propose to consider obtaining from or having 34 carried out or permitting to be obtained from or 35 carried out outside Australia together with their page 648 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 reasons therefor and shall, if required by the Minister, 2 consult with the Minister with respect thereto. 3 (5) The Joint Venturers may withdraw their proposals 4 pursuant to subclause (1) at any time before approval 5 thereof, or where any decision in respect thereof is 6 referred to arbitration as referred to in clause 8A, 7 within 3 months after the award by notice to the 8 Minister that they shall not be proceeding with the 9 same. 10 11 Consideration of Joint Venturers' proposals under clause 8 12 13 8A. (1) In respect of each proposal pursuant to subclause (1) of 14 clause 8 the Minister shall: 15 16 (a) subject to the limitations set out below, refuse to 17 approve the proposal (whether it requests the grant of 18 new tenure or not) if the Minister is satisfied on 19 reasonable grounds that it is not in the public interest 20 for the proposal to be approved; or 21 22 (b) approve of the proposal without qualification or 23 reservation; or 24 25 (c) defer consideration of or decision upon the same until 26 such time as the Joint Venturers submit a further 27 proposal or proposals in respect of some other of the 28 matters mentioned in clause 8(1) not covered by the 29 said proposal; or 30 31 (d) require as a condition precedent to the giving of his 32 approval to the said proposal that the Joint Venturers 33 make such alteration thereto or comply with such 34 conditions in respect thereto as he thinks reasonable, 35 and in such a case the Minister shall disclose his 36 reasons for such conditions, 37 38 PROVIDED ALWAYS that where implementation of any 39 proposals hereunder has been approved pursuant to the page 649 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 EP Act subject to conditions or procedures, any approval or 2 decision of the Minister under this clause shall if the case so 3 requires incorporate a requirement that the Joint Venturers 4 make such alterations to the proposals as may be necessary 5 to make them accord with those conditions or procedures. 6 7 In considering whether to refuse to approve a proposal the 8 Minister is to assess whether or not the implementation of 9 the proposal by itself, or together with any one or more of 10 the other submitted proposals, will: 11 12 (i) detrimentally affect economic and orderly 13 development in the said State, including without 14 limitation, infrastructure development in the said 15 State; or 16 17 (ii) be contrary to or inconsistent with the planning and 18 development policies and objectives of the State; or 19 20 (iii) detrimentally affect the rights and interests of third 21 parties; or 22 23 (iv) detrimentally affect access to and use by others of the 24 lands the subject of any grant or proposed grant to the 25 Joint Venturers. 26 27 The right to refuse to approve a proposal conferred by 28 paragraph (a) may only be exercised in respect of a proposal 29 where the Minister is satisfied on reasonable grounds that a 30 purpose of the proposal is the integrated use of works 31 installations or facilities (as defined in subclause (7) of 32 clause 16A for the purpose of that clause) as contemplated 33 by clause 16A. It may not be so exercised in respect of a 34 proposal if pursuant to clause 8B(5) the Minister, prior to the 35 submission of the proposal, advised the Joint Venturers in 36 writing that the Minister has no public interest concerns (as 37 defined in that clause) with the single preferred development 38 (as referred to in clause 8B(5)(a)) the subject of the 39 submitted proposals and those proposals are consistent (as to 40 their substantive scope and content) with the information page 650 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 provided to the Minister pursuant to clause 8B(5) in respect 2 of that single preferred development. 3 4 (2) The Minister shall within 2 months after receipt of proposals 5 pursuant to clause 8(1) give notice to the Joint Venturers of 6 his decision in respect to the proposals, PROVIDED THAT 7 where a proposal is to be assessed under Part IV of the EP 8 Act the Minister shall only give notice to the Joint Venturers 9 of his decision in respect to the proposal within 2 months 10 after service on him of an authority under section 45(7) of 11 the EP Act. 12 13 (3) If the decision of the Minister is as mentioned in either of 14 paragraphs (a), (c) or (d) of subclause (1) the Minister shall 15 afford the Joint Venturers full opportunity to consult with 16 him and should they so desire to submit new or revised 17 proposals either generally or in respect to some particular 18 matter. 19 20 (4) If the decision of the Minister is as mentioned in either of 21 paragraphs (c) or (d) of subclause (1) and the Joint Venturers 22 consider that the decision is unreasonable the Joint Venturers 23 within 2 months after receipt of the notice mentioned in 24 subclause (2) may elect to refer to arbitration in the manner 25 hereinafter provided the question of the reasonableness of 26 the decision PROVIDED THAT any requirement of the 27 Minister pursuant to the proviso to subclause (1) shall not be 28 referable to arbitration hereunder. A decision of the Minister 29 under paragraph (a) of subclause (1) shall not be referable to 30 arbitration under this Agreement. 31 32 (5) If by the award made on the arbitration pursuant to subclause 33 (4) the dispute is decided in favour of the Joint Venturers the 34 decision shall take effect as a notice by the Minister that he 35 is so satisfied with and approves the matter or matters the 36 subject of the arbitration. 37 38 (6) The Joint Venturers shall implement the approved proposals 39 in accordance with the terms thereof. 40 page 651 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 (7) Notwithstanding clause 40, the Minister may during the 2 implementation of approved proposals approve variations to 3 those proposals. 4 5 Notification of possible proposals 6 7 8B. (1) If the Joint Venturers, upon completion of a pre-feasibility 8 study in respect of any matter that would require the 9 submission and approval of proposals pursuant to this 10 Agreement (being proposals which will have as this purpose, 11 or one of their purposes, the integrated use of works 12 installations or facilities as contemplated by clause 16A) for 13 the matter to be undertaken, intend to further consider the 14 matter with a view to possibly submitting such proposals 15 they shall promptly notify the Minister in writing giving 16 reasonable particulars of the relevant matter. 17 18 (2) Within one (1) month after receiving the notification the 19 Minister may, if the Minister so wishes, inform the Joint 20 Venturers of the Minister's views of the matter at that stage. 21 22 (3) If the Joint Venturers are informed of the Minister's views, 23 they shall take them into account in deciding whether or not 24 to proceed with their consideration of the matter and the 25 submission of proposals. 26 27 (4) Neither the Minister's response nor the Minister choosing not 28 to respond shall in any way limit, prejudice or otherwise 29 affect the exercise by the Minister of the Minister's powers, 30 or the performance of the Minister's obligations, under this 31 Agreement or otherwise under the laws from time to time of 32 the said State. 33 34 (5) (a) This subclause applies where the Joint Venturers have 35 settled upon a single preferred development a purpose 36 of which is the integrated use of works installations or 37 facilities (as defined in subclause (7) of clause 16A 38 for the purpose of that clause) as contemplated by 39 clause 16A. 40 page 652 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 (b) For the purpose of this subclause "public interest 2 concerns" means any concern that implementation of 3 the single preferred development or any part of it will: 4 5 (i) detrimentally affect economic and orderly 6 development in the said State, including 7 without limitation, infrastructure development 8 in the said State; or 9 10 (ii) be contrary to or inconsistent with the planning 11 and development policies and objectives of the 12 State; or 13 14 (iii) detrimentally affect the rights and interests of 15 third parties; or 16 17 (iv) detrimentally affect access to and use by others 18 of lands the subject of any grant or proposed 19 grant to the Joint Venturers. 20 21 (c) At any time prior to submission of proposals the Joint 22 Venturers may give to the Minister notice of their 23 single preferred development and request the Minister 24 to confirm that the Minister has no public interest 25 concerns with that single preferred development. 26 27 (d) The Joint Venturers shall furnish to the Minister with 28 their notice reasonable particulars of the single 29 preferred development including, without limitation: 30 31 (i) as to the matters that would be required to be 32 addressed in submitted proposals; and 33 34 (ii) their progress in undertaking any feasibility or 35 other studies or matters to be completed before 36 submission of proposals; and 37 38 (iii) their timetable for obtaining required statutory 39 and other approvals in relation to the 40 submission and approval of proposals; and 41 page 653 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 (iv) their tenure requirements. 2 3 (e) If so required by the Minister, the Joint Venturers will 4 provide to the Minister such further information 5 regarding the single preferred development as the 6 Minister may require from time to time for the purpose 7 of considering the Joint Venturers' request and also 8 consult with the Minister or representatives or officers 9 of the State in regard to the single preferred 10 development. 11 12 (f) Within 2 months after receiving the notice (or if the 13 Minister requests further information, within 2 months 14 after the provision of that information) the Minister 15 must advise the Joint Venturers: 16 17 (i) that the Minister has no public interest concerns 18 with the single preferred development; or 19 20 (ii) that he is not then in a position to advise that he 21 has no public interest concerns with the single 22 preferred development and the Minister's 23 reasons in that regard. 24 25 (g) If the Minister gives the advice mentioned in 26 paragraph (f)(ii) the Joint Venturers may, should they 27 so desire, give a further request to the Minister in 28 respect of a revised or alternate single preferred 29 development and the provisions of this subclause shall 30 apply mutatis mutandis thereto."; 31 (3) by inserting after clause 9 the following new clauses: 32 "Additional areas 33 9A. (1) Notwithstanding the provisions of the Mining Act 34 1904 or the Mining Act 1978 the Joint Venturers may 35 from time to time during the currency of this 36 Agreement apply to the Minister for areas held by the 37 Joint Venturers or an associated company under a 38 mining tenement granted under the Mining Act 1978 page 654 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 to be included in the mineral lease referred to in 2 clause 9(1) but so that the total area of that mineral 3 lease, the mining lease referred to in clause 9(2), any 4 land that may be included in that mineral lease or 5 mining lease pursuant to this Agreement and of any 6 other mineral lease or mining lease granted under or 7 pursuant to this Agreement (as aggregated) shall not at 8 any time exceed 777 square kilometres. The Minister 9 shall confer with the Minister for Mines in regard to 10 any such application and if they approve the 11 application the Minister for Mines shall upon the 12 surrender of the relevant mining tenement include the 13 area the subject thereof in the relevant mineral lease 14 by endorsement subject to such of the conditions of 15 the surrendered mining tenement as the Minister for 16 Mines determines but otherwise subject to the same 17 terms covenants and conditions as apply to the 18 relevant mineral lease (with such apportionment of 19 rents as is necessary) and notwithstanding that the 20 survey of such additional land has not been completed 21 but subject to correction to accord with the survey 22 when completed at the Joint Venturers' expense. 23 (2) The Minister may approve, upon application by the 24 Joint Venturers from time to time, for the total area 25 referred to in subclause (1) to be increased up to a 26 limit not exceeding 1,000 square kilometres. 27 (3) The Joint Venturers shall not mine or carry out other 28 activities (other than exploration, bulk sampling and 29 testing) on any area or areas added to a mineral lease 30 pursuant to subclause (1) of this clause unless and 31 until proposals with respect thereto are approved or 32 determined pursuant to the subsequent provisions of 33 this clause. 34 (4) If the Joint Venturers desire to commence mining of 35 iron ore or to carry out any other activities (other than 36 as aforesaid) on the said areas they shall give notice of 37 such desire to the Minister and shall within 2 months 38 of the date of such notice (or thereafter within such page 655 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 extended time as the Minister may allow as 2 hereinafter provided) and subject to the provisions of 3 this Agreement submit to the Minister to the fullest 4 extent reasonably practicable their detailed proposals 5 (which proposals shall include plans where practicable 6 and specifications where reasonably required by the 7 Minister) with respect to such mining or other 8 activities as additional proposals pursuant to clause 8. 9 Blending of iron ore 10 11 9B. (1) The Joint Venturers may blend iron ore mined from 12 the mineral lease with any: 13 14 (a) iron ore mined from a mining tenement or other 15 mining title granted under, or pursuant to, an 16 Integration Agreement; or 17 18 (b) iron ore mined from a Mining Act 1978 mining 19 lease located in, or proximate to, the Pilbara 20 region of the said State which is held by a 21 Related Entity alone or with a third party or 22 parties (excluding any mining lease granted 23 pursuant to, or held under, a Government 24 agreement); or 25 26 (c) with the prior approval of the Minister, iron ore 27 mined in, or proximate to, the Pilbara region of 28 the said State under a Government agreement 29 (excluding an Integration Agreement); or 30 31 (d) with the prior approval of the Minister, iron ore 32 mined by a third party from a Mining Act 1978 33 mining lease located in, or proximate to, the 34 Pilbara region of the said State (excluding 35 under a Government agreement) which has 36 been purchased by an Integration Proponent 37 from the third party. page 656 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 (2) The authority given under subclause (1) is subject to 2 the Minister being reasonably satisfied that there are 3 in place adequate systems and controls for the correct 4 apportionment of the quantities of iron ore being 5 blended as between each of the sources referred to in 6 subclause (1), which systems and controls monitor 7 production, processing, transportation, stockpiling and 8 shipping of all such iron ore. If at any time the 9 Minister ceases to be so satisfied he may, after 10 consulting the Joint Venturers and provided the Joint 11 Venturers have not within three (3) months after the 12 commencement of such consultation addressed the 13 matters of concern to the Minister to his satisfaction, 14 by notice in writing to the Joint Venturers suspend the 15 above authority in respect of the relevant blending 16 arrangements until he is again satisfied in terms of this 17 subclause (2). 18 (3) If any blending of iron ore occurs as contemplated by 19 this clause, then for the purposes of clauses 33(1) and 20 (2), a portion of the iron ore so blended being equal to 21 the proportion that the amount of iron ore from the 22 mineral lease used in the admixture of iron ore bears 23 to the total amount of iron ore so blended, shall be 24 deemed to be produced from the mineral lease."; 25 (4) in clause 11(1) by: 26 (a) deleting "clause 7" and substituting "clauses 7 or 8A"; 27 (b) inserting "or cause to be granted" after "grant"; 28 (c) deleting "or to a company nominated by the Joint Venturers 29 and approved by the Minister (referred to in this clause as 30 "the nominated company") in fee simple or"; 31 (d) deleting paragraph (ii) and substituting the following new 32 subparagraph: page 657 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 "(ii) at commercial rentals, licence or easement fees as 2 applicable - leases, licences or easements within the 3 Port of Port Hedland;"; 4 (e) inserting the ", the Port Authorities Act 1999 (WA)" after 5 "1926"; and 6 (f) inserting "installations or facilities" before "and operations 7 hereunder"; 8 (5) by inserting after subclause (6) of clause 11 the following new 9 subclause: 10 11 "(6a) The provisions of subclauses (1) and (4) of this clause shall 12 not operate so as to require the State to grant or vary, or 13 cause to be granted or varied, any lease licence or other right 14 or title until all processes necessary under any laws relating 15 to native title to enable that grant or variation to proceed, 16 have been completed."; 17 (6) by deleting clause 13 and substituting the following new clause: 18 "13. The Joint Venturers shall ship, or procure the shipment of, 19 all iron ore mined from the mineral lease, and sold: 20 21 (a) from the Joint Venturers' wharf; or 22 23 (b) from any other wharf in a loading port which wharf 24 has been constructed under an Integration 25 Agreement; or 26 27 (c) with the Minister's approval given before submission 28 of proposals in that regard, from any other wharf in a 29 loading port which wharf has been constructed under 30 another Government agreement (excluding the 31 Integration Agreements), 32 33 and use their best endeavours to obtain therefor the best 34 price possible having regard to market conditions from time 35 to time prevailing PROVIDED THAT iron ore from the 36 mineral lease may be sold by the Joint Venturers prior to or page 658 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 at the time of the shipment under this Agreement at a price 2 equal to the production costs in respect of that iron ore up to 3 the point of sale, if: 4 5 (i) the Minister is notified before the time of shipment 6 that the sale is to be made at cost, providing details of 7 the proposed sale; and 8 9 (ii) the Minister is notified of the proposed arm's length 10 purchaser in the relevant international seaborne iron 11 ore market of the iron ore the subject of the proposed 12 sale at cost; and 13 14 (iii) there is included in the return lodged pursuant to 15 clause 33(2) particulars of the transaction in which 16 the ore sold at cost was subsequently purchased in 17 the relevant international seaborne iron ore market by 18 an arm's length purchaser specifying the purchaser, 19 the seller, the price and the date when the sale was 20 agreed between the arm's length purchaser and the 21 seller; and 22 23 (iv) the arm's length purchaser referred to in paragraph 24 (iii) above is not then a designated purchaser as 25 referred to below. 26 27 If required by notice in writing from the Minister, the Joint 28 Venturers must provide the Minister within 30 days after 29 receiving the notice with evidence that the transaction as 30 included in the return pursuant to paragraph (iii) above was a 31 sale in the relevant international seaborne iron ore market to 32 an independent participant in that market. If no evidence is 33 provided or the Minister is not so satisfied on the evidence 34 provided or other information obtained, the Minister may by 35 notice to the Joint Venturers designate the purchaser to be a 36 designated purchaser and that designation will remain in 37 force unless and until lifted by further notice from the 38 Minister to the Joint Venturers. For the avoidance of doubt 39 and without limiting the Minister's discretion above, the 40 parties acknowledge that marketing entities forming part of a 41 corporate group that includes the majority Joint Venturer (or page 659 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 part of a parallel corporate group if that Joint Venturer is part 2 of a dual-listed corporate structure) are not independent 3 participants for the purposes of this subclause."; 4 (7) by inserting after clause 16 the following new clauses: 5 "Integrated use of works installations or facilities under the 6 Integration Agreements 7 8 16A. (1) Subject to subclauses (2) to (7) of this clause and to 9 the other provisions of this Agreement, the Joint 10 Venturers may during the continuance of this 11 Agreement: 12 13 (a) use any existing or new works installations or 14 facilities constructed or held: 15 16 (i) under this Agreement; or 17 18 (ii) under any other Integration Agreement 19 which are made available for such use 20 and during the continuance of such 21 Integration Agreement; or 22 23 (iii) with the approval of the Minister, under a 24 Government agreement (excluding an 25 Integration Agreement) which are made 26 available for such use and during the 27 continuance of that agreement, 28 29 (wholly or in part) in the activities of the Joint 30 Venturers carried on by them pursuant to this 31 Agreement including, without limitation, as 32 part of those activities, transporting by railway 33 and shipping from a loading port and 34 undertaking any ancillary and incidental 35 activities in doing so (including, without 36 limitation, blending permitted by clause 9B) of: 37 38 (A) iron ore mined from a Mining Act 1978 39 mining lease located in, or proximate to, page 660 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 the Pilbara region of the said State which 2 is held by a Related Entity alone or with a 3 third party or parties (excluding any 4 mining lease granted pursuant to, or held 5 under, a Government agreement); 6 7 (B) with the prior approval of the Minister, 8 iron ore mined in, or proximate to, the 9 Pilbara region of the said State under a 10 Government agreement (excluding an 11 Integration Agreement); 12 13 (C) with the prior approval of the Minister, 14 iron ore mined by a third party from a 15 Mining Act 1978 mining lease located in, 16 or proximate to, the Pilbara region of the 17 said State (excluding under a 18 Government agreement) which has been 19 purchased by the Joint Venturers from the 20 third party; 21 22 (D) iron ore mined under an Integration 23 Agreement; 24 25 (b) make any existing or new works installations or 26 facilities constructed or held under this 27 Agreement available for use (wholly or partly) 28 by another Integration Proponent during the 29 continuance of its Integration Agreement in the 30 activities of that Integration Proponent carried 31 on by it pursuant to its Integration Agreement 32 including, without limitation, as part of those 33 activities, transporting by railway and shipping 34 from a loading port and undertaking any 35 ancillary and incidental activities in doing so 36 (including, without limitation, blending 37 permitted by that Integration Agreement) of: 38 39 (i) iron ore mined from a Mining Act 1978 40 mining lease located in, or proximate to, 41 the Pilbara region of the said State which page 661 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 is held by a Related Entity alone or with a 2 third party or parties (excluding any 3 mining lease granted pursuant to, or held 4 under, a Government agreement); 5 6 (ii) with the prior approval of the Minister (as 7 defined in that Integration Agreement), 8 iron ore mined in, or proximate to, the 9 Pilbara region of the said State under a 10 Government agreement (excluding an 11 Integration Agreement); 12 13 (iii) with the prior approval of the Minister (as 14 defined in that Integration Agreement), 15 iron ore mined by a third party from a 16 Mining Act 1978 mining lease located in, 17 or proximate to, the Pilbara region of the 18 said State (excluding under a 19 Government agreement) which has been 20 purchased by that Integration Proponent 21 from the third party; 22 23 (iv) iron ore mined under an Integration 24 Agreement; 25 26 (c) make any existing or new works installations or 27 facilities constructed or held under this 28 Agreement available for use (wholly or partly) 29 in connection with operations under: 30 31 (i) a Mining Act 1978 mining lease located 32 in, or proximate to, the Pilbara region of 33 the said State, for iron ore, which is held 34 by a Related Entity alone or with a third 35 party or parties (excluding any mining 36 lease granted pursuant to, or held under a 37 Government agreement); or 38 39 (ii) with the approval of the Minister, a 40 Government agreement (other than an 41 Integration Agreement) for the mining of page 662 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 iron ore in, or proximate to, the Pilbara 2 region of the said State; 3 4 (d) subject to subclause (2), under this Agreement 5 and for the purpose of any use or making 6 available for use referred to in paragraph (a), 7 (b) or (c) connect any existing or new works 8 installations or facilities constructed or held 9 under this Agreement to any existing or new 10 works installations or facilities constructed or 11 held under another Integration Agreement; 12 13 (e) subject to subclause (2), under this Agreement 14 and for the purpose of any use or making 15 available for use referred to in paragraph (a), 16 (b) or (c) or making of any connection referred 17 to in paragraph (d) construct new works 18 installations or facilities and expand modify or 19 otherwise vary any existing and new works 20 installations or facilities constructed or held 21 under this Agreement; 22 23 (f) allow a railway or rail spur line (not being a 24 railway or rail spur line constructed or held 25 under an Integration Agreement) to be 26 connected to a railway or rail spur line or other 27 works installations or facilities constructed or 28 held under this Agreement for the delivery of 29 iron ore to an Integration Proponent for 30 transport by railway and shipping from a 31 loading port (together with any ancillary and 32 incidental activities in doing so) as part of its 33 activities under its Integration Agreement; and 34 35 (g) allow an electricity transmission line (not being 36 an electricity transmission line constructed or 37 held under an Integration Agreement) to be 38 connected to an electricity transmission line 39 constructed or held under this Agreement for 40 the supply of electricity permitted to be made 41 under an Integration Agreement. page 663 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 2 (2) (a) A connection referred to in clause (1)(d) or 3 construction, expansion, modification or other 4 variation referred to in subclause (1)(e) by the 5 Joint Venturers shall, to the extent not already 6 authorised under this Agreement as at the 7 variation date, be regarded as a significant 8 modification expansion or other variation of the 9 Joint Venturers' activities carried on by them 10 pursuant to this Agreement and may only be 11 made in accordance with proposals submitted 12 and approved or determined under this 13 Agreement in accordance with clauses 8 and 14 8A or clause 16C as the case may require and 15 otherwise in compliance with the provisions of 16 this Agreement and the laws from time to time 17 of the said State. For the avoidance of doubt, 18 the parties acknowledge that any use or making 19 available for use contemplated by subclause 20 (1)(a), (1)(b) or (1)(c) shall not otherwise than 21 as required by this paragraph (a) require the 22 submission and approval of further proposals 23 under this Agreement. 24 25 (b) The Joint Venturers shall not be entitled to: 26 27 (i) submit proposals to construct any new 28 port or to establish harbour or port works 29 installations or facilities, or to expand 30 modify or otherwise vary harbour or 31 works installations or facilities otherwise 32 than at or near the town of Port Hedland 33 within the boundaries of the Port of Port 34 Hedland; or 35 36 (ii) generate and supply power, take and 37 supply water or dispose of water 38 otherwise than in accordance with the 39 other clauses of this Agreement and 40 subject to any restrictions contained in 41 those clauses; or page 664 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 2 (iii) without limiting subparagraphs (i) and 3 (ii) submit proposals to construct or 4 establish works installations or facilities 5 of a type, or to make expansions, 6 modifications or other variations of 7 works installations or facilities of a type, 8 which in the Minister's reasonable 9 opinion this Agreement, immediately 10 before the variation date, did not permit 11 or contemplate the Joint Venturers 12 constructing, establishing or making as 13 the case may be otherwise than for 14 integration use as contemplated by 15 subclauses (1)(a), (1)(b) or (1)(c) or as 16 permitted by clause 16C; or 17 18 (iv) submit proposals to make a connection as 19 referred to in subclause (1)(d) or a 20 construction, expansion, modification or 21 other variation as referred to in subclause 22 (1)(e) otherwise than on tenure granted 23 under or pursuant to this Agreement from 24 time to time or held pursuant to this 25 Agreement from time to time; or 26 27 (v) submit proposals to make a connection 28 referred to in subclause (1)(d) or a 29 construction, expansion, modification or 30 other variation as referred to in subclause 31 (1)(e) for the purpose of use as 32 contemplated by subclause (1)(c)(i), if in 33 the reasonable opinion of the Minister the 34 activity which is the subject of the 35 proposals would give to the holder or 36 holders of the relevant Mining Act 1978 37 mining lease the benefit of rights or 38 powers granted to the Joint Venturers 39 under this Agreement, over and above the 40 right of access to and use of the relevant 41 works, installations or facilities; or page 665 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 2 (vi) submit proposals to make a connection as 3 referred to in subclause (1)(d) or a 4 construction, expansion, modification or 5 other variation as referred to in subclause 6 (1)(e) for the purpose of use as 7 contemplated by subclause (1)(c) and 8 involving the grant of tenure without the 9 prior approval of the Minister; or 10 11 (vii) submit proposals to assign, sublet, 12 transfer or dispose of any works 13 installations or facilities constructed or 14 held under this Agreement or any leases, 15 licences, easements or other titles under 16 or pursuant to this Agreement for any 17 purpose referred to in this clause. 18 19 (c) Notwithstanding the provisions of clauses 8A 20 and 16C, the Minister may defer consideration 21 of, or a decision upon, a proposal submitted by 22 the Joint Venturers for a connection as referred 23 to in subclause (1)(d) or a construction, 24 expansion, modification or other variation as 25 referred to in subclause (1)(e), for the purpose 26 of use or making available for use as referred to 27 in subclauses (1)(a) or (1)(b), until relevant 28 corresponding proposals under the relevant 29 Integration Agreement have been submitted 30 and those proposals can be approved under that 31 Integration Agreement concurrently with the 32 Minister's approval under this Agreement of the 33 Joint Venturers' proposal. 34 35 (3) Any use or making available for use as referred to in 36 subclause (1), or submission of proposals as referred 37 to in subclause (2), in respect of a Related Entity 38 shall be subject to the Joint Venturers first 39 confirming with the Minister that the Minister is 40 satisfied that the relevant company is a Related 41 Entity. page 666 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 2 (4) The Joint Venturers shall give the Minister prior 3 written notice of any significant change (other than a 4 temporary one for maintenance or to respond to an 5 emergency) proposed in their use, or in their making 6 available for use, works, installations or facilities as 7 referred to in this clause: 8 9 (a) from that authorised under this Agreement 10 immediately before the variation date; and 11 12 (b) subsequently from that previously notified to 13 the Minister under this subclause, 14 15 as soon as practicable before such change occurs. 16 17 The Joint Venturers shall also keep the Minister fully 18 informed with respect to any proposed connection as 19 referred to in subclause (1)(f) or (1)(g) or request of 20 them for such connection to be allowed. 21 22 (5) Nothing in this Agreement shall be construed to: 23 24 (a) exempt another Integration Proponent from 25 complying with, or the application of, the 26 provisions of its Integration Agreement; or 27 28 (b) restrict the Joint Venturers' rights under clause 29 39. 30 31 For the avoidance of doubt the approval of proposals 32 under this Agreement shall not be construed as 33 authorising another Integration Proponent to 34 undertake any activities under this Agreement or 35 under another Integration Agreement. 36 37 (6) Nothing in this clause shall be construed to exempt 38 the Joint Venturers from complying with, or the 39 application of, the other provisions of this Agreement 40 including, without limitation, clause 39 and of 41 relevant laws from time to time of the said State. page 667 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 2 (7) For the purpose of this clause "works installations or 3 facilities" means any: 4 5 (a) harbour or port works installations or facilities 6 including, without limitation, stockpiles, 7 reclaimers, conveyors and wharves; 8 9 (b) railway or rail spur lines; 10 11 (c) track structures and systems associated with the 12 operation and maintenance of a railway 13 including, without limitation, sidings, train 14 control and signalling systems, maintenance 15 workshops and terminal yards; 16 17 (d) train loading and unloading works installations 18 or facilities; 19 20 (e) conveyors; 21 22 (f) private roads; 23 24 (g) mine aerodrome and associated aerodrome 25 works installations and facilities; 26 27 (h) iron ore mining, crushing, screening, 28 beneficiation or other processing works 29 installations or facilities; 30 31 (i) mine administration buildings including, 32 without limitation, offices, workshops and 33 medical facilities; 34 35 (j) borrow pits; 36 37 (k) accommodation and ancillary facilities 38 including, without limitation, construction 39 camps and in townsites constructed pursuant to 40 and held under any Integration Agreement; 41 page 668 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 (l) water, sewerage, electricity, gas and 2 telecommunications works installations and 3 facilities including, without limitation, 4 pipelines, transmission lines and cables; and 5 6 (m) any other works installations or facilities 7 approved of by the Minister for the purpose of 8 this clause. 9 10 Transfer of rights to shared works installations or facilities 11 12 16B. (1) For the purposes of this clause "Relevant 13 Infrastructure" means any works installations or 14 facilities (as defined in clause 16A(7)): 15 16 (a) constructed or held under another Integration 17 Agreement; 18 19 (b) which the Joint Venturers are using in their 20 activities pursuant to this Agreement; 21 22 (c) which the Minister is satisfied (after consulting 23 with the Joint Venturers and the Integration 24 Proponent for that other Integration 25 Agreement): 26 27 (i) are no longer required by that other 28 Integration Proponent to carry on its 29 activities pursuant to its Integration 30 Agreement because of the cessation of 31 the Integration Proponent's mining 32 operations in respect of which such 33 Relevant Infrastructure was constructed 34 or held or because of any other reason 35 acceptable to the Minister; and 36 37 (ii) are required by the Joint Venturers to 38 continue to carry on their activities 39 pursuant to this Agreement; and 40 page 669 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 (d) in respect of which that other Integration 2 Proponent has notified the Minister it consents 3 to the Joint Venturers submitting proposals as 4 referred to in subclause (2). 5 6 (2) The Joint Venturers may as an additional proposal 7 pursuant to clause 8 propose: 8 9 (a) that they be granted a lease licence or other title 10 over the Relevant Infrastructure pursuant to this 11 Agreement subject to and conditional upon the 12 other Integration Proponent surrendering 13 wholly or in part (and upon such terms as the 14 Minister considers reasonable including any 15 variation of terms to address environmental 16 issues) its lease licence or other title over the 17 Relevant Infrastructure; or 18 19 (b) that the other Integration Proponent's lease 20 licence or other title (not being a mineral lease, 21 mining lease or other right to mine title granted 22 under a Government agreement, the Mining 23 Act 1904 or the Mining Act 1978) to the 24 Relevant Infrastructure be transferred to this 25 Agreement (to be held by the Joint Venturers 26 pursuant to this Agreement) with such 27 surrender of land from it and variations of its 28 terms as the Minister considers reasonable for 29 that title to be held under this Agreement 30 including, without limitation, to address 31 environmental issues and outstanding 32 obligations of that other Integration Proponent 33 under its Integration Agreement in respect of 34 that Relevant Infrastructure. 35 36 The provisions of clause 8A shall mutatis mutandis 37 apply to any such additional proposal. In addition the 38 Joint Venturers acknowledge that the Minister may 39 require variations of the other Integration Agreement 40 and/or proposals under it or of this Agreement in page 670 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 order to give effect to the matters contemplated by 2 this clause. 3 4 (3) This clause shall cease to apply in the event the State 5 gives any notice of default to the Joint Venturers 6 pursuant to clause 35 and while such notice remains 7 unsatisfied. 8 9 Miscellaneous Licences for Railways 10 11 16C. (1) In this clause subject to the context: 12 13 "Additional Infrastructure" means: 14 15 (a) Train Loading Infrastructure; 16 17 (b) Train Unloading Infrastructure; 18 19 (c) a conveyor, train unloading and other 20 infrastructure necessary for the transport of iron 21 ore, freight goods or other products from the 22 Railway (directly or indirectly) to port facilities 23 within a loading port, 24 25 in each case located outside a Port; 26 27 "LAA" means the Land Administration Act 1997 28 (WA); 29 30 "Lateral Access Roads" has the meaning given in 31 subclause (3)(a)(iv); 32 33 "Lateral Access Road Licence" means a 34 miscellaneous licence granted pursuant to subclause 35 (6)(a)(ii) or subclause (6)(b) as the case may be and 36 according to the requirements of the context 37 describes the area of land from time to time the 38 subject of that licence; 39 page 671 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 "Port" means any port the subject of the Port 2 Authorities Act 1999 (WA) or the Shipping and 3 Pilotage Act 1967 (WA); 4 5 "Private Roads" means Lateral Access Roads and the 6 Joint Venturers' access roads within a Railway 7 Corridor; 8 9 "Rail Safety Act" means the Rail Safety Act 1998 10 (WA); 11 12 "Railway" means a standard gauge heavy haul 13 railway or railway spur line, located or to be located 14 as the case may be in, or proximate to, the Pilbara 15 region of the said State (but outside the boundaries 16 of a Port) for the transport of iron ore, freight goods 17 and other products together with all railway track, 18 associated track structures including sidings, turning 19 loops, over or under track structures, supports 20 (including supports for equipment or items associated 21 with the use of a railway) tunnels, bridges, train 22 control systems, signalling systems, switch and other 23 gear, communication systems, electric traction 24 infrastructure, buildings (excluding office buildings, 25 housing and freight centres), workshops and 26 associated plant, machinery and equipment and 27 including rolling stock maintenance facilities, 28 terminal yards, depots, culverts and weigh bridges 29 which railway is or is to be (as the case may be) the 30 subject of approved proposals under subclause (4) 31 and includes any expansion or extension thereof 32 outside a Port which is the subject of additional 33 proposals approved in accordance with subclause (5); 34 35 "Railway Corridor" means, prior to the grant of a 36 Special Railway Licence, the land for the route of the 37 Railway the subject of that licence, access roads 38 (other than Lateral Access Roads), areas from which 39 stone, sand, clay and gravel may be taken, temporary 40 accommodation facilities for the railway workforce, 41 water bores and Additional Infrastructure (if any) page 672 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 which is the subject of a subsisting agreement 2 pursuant to subclause (3)(a) and after the grant of the 3 Special Railway Licence the land from time to time 4 the subject of that Special Railway Licence; 5 6 "Railway Operation" means the construction and 7 operation under this Agreement of the relevant 8 Railway and associated access roads and Additional 9 Infrastructure (if any) within the relevant Railway 10 Corridor and of the associated Lateral Access Roads, 11 in accordance with approved proposals; 12 13 "Railway spur line" means a standard gauge heavy 14 haul railway spur line located or to be located in, or 15 proximate to, the Pilbara region of the said State (but 16 outside a Port) connecting to a Railway for the 17 transport of iron ore, freight goods and other products 18 upon the Railway to (directly or indirectly) a loading 19 port; 20 21 "Railway Operation Date" means the date of the first 22 carriage of iron ore, freight goods or other products 23 over the relevant Railway (other than for construction 24 or commissioning purposes); 25 26 "Railway spur line Operation Date" means the date of 27 the first carriage of iron ore, freight goods or other 28 products over the relevant Railway spur line (other 29 than for construction or commissioning purposes); 30 31 "Special Railway Licence" means the relevant 32 miscellaneous licence for railway and, if applicable, 33 other purposes, granted to the Joint Venturers 34 pursuant to subclause (6)(a)(i) as varied in 35 accordance with subclause (6)(h) or subclause (6)(i) 36 and according to the requirements of the context 37 describes the area of land from time to time the 38 subject of that licence; 39 40 "Train Loading Infrastructure" means conveyors, 41 stockpile areas, blending and screening facilities, page 673 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 stackers, re-claimers and other infrastructure 2 reasonably required for the loading of iron ore, 3 freight goods or other products onto the relevant 4 Railway for transport (directly or indirectly) to a 5 loading port; and 6 7 "Train Unloading Infrastructure" means train 8 unloading infrastructure reasonably required for the 9 unloading of iron ore from the Railway to be 10 processed, or blended with other iron ore, at 11 processing or blending facilities in the vicinity of that 12 train unloading infrastructure and with the resulting 13 iron ore products then loaded on to the Railway for 14 transport (directly or indirectly) to a loading port. 15 16 Joint Venturers to obtain prior Ministerial in-principle 17 approval 18 19 (2) (a) If the Joint Venturers wish, from time to time 20 during the continuance of this Agreement, to 21 proceed under this clause with a plan to 22 develop a Railway they shall give notice 23 thereof to the Minister and furnish to the 24 Minister with that notice an outline of their 25 plan. 26 27 (b) The Minister shall within one month of a notice 28 under paragraph (a) advise the Joint Venturers 29 whether or not he approves in-principle the 30 proposed plan. The Minister shall afford the 31 Joint Venturers full opportunity to consult with 32 him in respect of any decision of the Minister 33 under this paragraph. 34 35 (c) The Minister's in-principle approval in respect 36 of a proposed plan shall lapse if the Joint 37 Venturers have not submitted detailed 38 proposals to the Minister in respect of that plan 39 in accordance with this clause within 18 40 months of the Minister's in-principle approval. 41 page 674 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 Railway Corridor 2 3 (3) (a) If the Minister gives in-principle approval to a 4 plan of the Joint Venturers to develop a 5 Railway they shall consult with the Minister to 6 seek the agreement of the Minister as to: 7 8 (i) where the Railway will begin and end; 9 and 10 11 (ii) a route for the Railway, access roads to 12 be within the Railway Corridor and the 13 land required for that route as well as 14 Additional Infrastructure (if any) 15 including, without limitation, areas from 16 which stone, sand, clay and gravel may 17 be taken, temporary accommodation 18 facilities for the railway workforce and 19 water bores; and 20 21 (iii) in respect of Additional Infrastructure (if 22 any) the nature and capacity of such 23 Additional Infrastructure; and 24 25 (iv) the routes of, and the land required for, 26 roads outside the Railway Corridor (and 27 also outside a Port) for access to it to 28 construct the Railway (such roads as 29 agreed being "Lateral Access Roads"). 30 31 In seeking such agreement, regard shall be had 32 to achieving a balance between engineering 33 matters including costs, the nature and use of 34 any lands concerned and interests therein and 35 the costs of acquiring the land (all of which 36 shall be borne by the Joint Venturers). The 37 parties acknowledge the intention is for the 38 Joint Venturers to construct the Railway, the 39 access roads for the construction and 40 maintenance of the Railway which are to be 41 within the Railway Corridor and the relevant page 675 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 Additional Infrastructure (if any) along the 2 centreline of the Railway Corridor subject to 3 changes in that alignment to the extent 4 necessary to avoid heritage, environmental or 5 poor ground conditions that are not identified 6 during preliminary investigation work, and 7 recognise the width of the Railway Corridor 8 may need to vary along its route to 9 accommodate Additional Infrastructure (if 10 any), access roads, areas from which stone, 11 sand, clay and gravel may be taken, temporary 12 accommodation facilities for the railway 13 workforce and water bores. The provisions of 14 clause 45 shall not apply to this subclause. 15 16 (b) If the date by which the Joint Venturers must 17 submit detailed proposals under subclause 18 (4)(a) (as referred to in subclause (2)(c)) is 19 extended or varied by the Minister pursuant to 20 clause 44, any agreement made pursuant to 21 paragraph (a) before such date is extended or 22 varied shall unless the Minister notifies the 23 Joint Venturers otherwise be deemed to be at 24 an end and neither party shall have any claim 25 against the other in respect of it. 26 27 (c) The Joint Venturers acknowledge that they 28 shall be responsible for liaising with every title 29 holder in respect of the land affected and for 30 obtaining in a form and substance acceptable to 31 the Minister all unconditional and irrevocable 32 consents of each such title holder to, and all 33 statutory consents required in respect of the 34 land affected for: 35 36 (i) the grant of the Special Railway Licence 37 for the construction, operation and 38 maintenance within the Railway Corridor 39 of the Railway, access roads and 40 Additional Infrastructure (if any) to be 41 within the Railway Corridor; and page 676 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 (ii) the grant of Lateral Access Road 2 Licences for the construction, use and 3 maintenance of Lateral Access Roads 4 over the routes for the Lateral Access 5 Roads agreed pursuant to paragraph (a); 6 and 7 8 (iii) the inclusion of additional land in the 9 Special Railway Licence as referred to in 10 subclause (6)(h) or subclause (6)(i), 11 12 in accordance with this clause. For the 13 purposes of this subclause (3)(c), "title holder" 14 means a management body (as defined in the 15 LAA) in respect of any part of the affected 16 land, a person who holds a mining, petroleum 17 or geothermal energy right (as defined in the 18 LAA) in respect of any part of the affected 19 land, a person who holds a lease or licence 20 under the LAA in respect of any part of the 21 affected land, a person who holds any other 22 title granted under or pursuant to a Government 23 agreement in respect of any part of the affected 24 land, a person who holds a lease or licence in 25 respect of any part of the affected land under 26 any other Act applying in the said State and a 27 person in whom any part of the affected land is 28 vested, immediately before the provision of 29 such consents to the Minister as referred to in 30 subclause (4)(e)(ii) (including as applying 31 pursuant to subclause 5(d)). 32 33 Joint Venturers to submit proposals for Railway 34 35 (4) (a) The Joint Venturers shall, subject to the EP 36 Act, the provisions of this Agreement, 37 agreement at that time subsisting in respect of 38 the matters required to be agreed pursuant to 39 subclause 3(a), submit to the Minister by the 40 latest date applying under subclause (2)(c) to 41 the fullest extent reasonably practicable their page 677 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 detailed proposals (including plans where 2 practicable and specifications where reasonably 3 required by the Minister and any other details 4 normally required by a local government in 5 whose area any works are to be situated) with 6 respect to the undertaking of the relevant 7 Railway Operation, which proposals shall 8 include the location, area, layout, design, 9 materials and time program for the 10 commencement and completion of construction 11 or the provision (as the case may be) of each of 12 the following matters namely: 13 14 (i) the Railway including fencing (if any) 15 and crossing places within the Railway 16 Corridor; 17 18 (ii) Additional Infrastructure (if any) within 19 the Railway Corridor; 20 21 (iii) temporary accommodation and ancillary 22 temporary facilities for the railway 23 workforce on, or in the vicinity of, the 24 Railway Corridor and housing and other 25 appropriate facilities elsewhere for the 26 Joint Venturers' workforce; 27 28 (iv) water supply; 29 30 (v) energy supplies; 31 32 (vi) access roads within the Railway Corridor 33 and Lateral Access Roads both along the 34 routes for those roads agreed between the 35 Minister and the Joint Venturers pursuant 36 to subclause 3(a); 37 38 (vii) any other works, services or facilities 39 desired by the Joint Venturers; and 40 page 678 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 (viii) use of local labour, professional services, 2 manufacturers, suppliers contractors and 3 materials and measures to be taken with 4 respect to the engagement and training of 5 employees by the Joint Venturers, their 6 agents and contractors. 7 8 (b) Proposals pursuant to paragraph (a) must 9 specify the matters agreed for the purpose 10 pursuant to subclause (3)(a) and must not be 11 contrary to or inconsistent with such agreed 12 matters. 13 14 (c) Each of the proposals pursuant to paragraph (a) 15 may with the approval of the Minister, or must 16 if so required by the Minister, be submitted 17 separately and in any order as to the matter or 18 matters mentioned in one or more of 19 subparagraphs (i) to (viii) of paragraph (a) and 20 until all of its proposals under this subclause 21 have been approved the Joint Venturers may 22 withdraw and may resubmit any proposal but 23 the withdrawal of any proposal shall not affect 24 the obligations of the Joint Venturers to submit 25 a proposal under this subclause in respect of the 26 subject matter of the withdrawn proposal. 27 28 (d) The Joint Venturers shall, whenever any of the 29 following matters referred to in this subclause 30 are proposed by the Joint Venturers (whether 31 before or during the submission of proposals 32 under this subclause), submit to the Minister 33 details of any services (including any elements 34 of the project investigations, design and 35 management) and any works, materials, plant, 36 equipment and supplies that they propose to 37 consider obtaining from or having carried out 38 or permitting to be obtained from or carried out 39 outside Australia, together with their reasons 40 therefor and shall, if required by the Minister 41 consult with the Minister with respect thereto. page 679 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 (e) At the time when the Joint Venturers submits 2 the last of the said proposals pursuant to this 3 subclause, they shall: 4 5 (i) furnish to the Minister's reasonable 6 satisfaction evidence of all accreditations 7 under the Rail Safety Act which are 8 required to be held by the Joint Venturers 9 or any other person for the construction 10 of the Railway; and 11 12 (ii) furnish to the Minister the written 13 consents referred to in subclause (3)(c)(i) 14 and (3)(c)(ii). 15 16 (f) The provisions of clause 8A shall apply mutatis 17 mutandis to detailed proposals submitted under 18 this subclause. 19 20 Additional Railway Proposals 21 22 (5) (a) If the Joint Venturers at any time during the 23 currency of a Special Railway Licence desire to 24 construct a Railway spur line (connecting to the 25 Railway the subject of that Special Railway 26 Licence) or desire to significantly modify, 27 expand or otherwise vary their activities within 28 the land the subject of the Special Railway 29 Licence that are the subject of this Agreement 30 and that may be carried on by them pursuant to 31 this Agreement (other than by the construction 32 of a Railway spur line) beyond those activities 33 specified in any approved proposals for that 34 Railway, they shall give notice of such desire to 35 the Minister and furnish to the Minister with 36 that notice an outline of their proposals in 37 respect thereto (including, without limitation, 38 such matters mentioned in subclause (4)(a) as 39 are relevant or as the Minister otherwise 40 requires). 41 page 680 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 (b) If the notice relates to a Railway spur line, or to 2 the construction of Train Loading Infrastructure 3 or Train Unloading Infrastructure on land 4 outside the then Railway Corridor, the Minister 5 shall within one month of receipt of such notice 6 advise the Joint Venturers whether or not he 7 approves in-principle the proposed construction 8 of such spur line, Train Loading Infrastructure 9 or Train Unloading Infrastructure. If the 10 Minister gives in-principle approval the Joint 11 Venturers may (but not otherwise) submit 12 detailed proposals in respect thereof provided 13 that the provisions of subclause (3) shall 14 mutatis mutandis apply prior to submission of 15 detailed proposals in respect thereof. 16 17 (c) Subject to the EP Act, the provisions of this 18 Agreement and agreement at that time 19 subsisting in respect of any matters required to 20 be agreed pursuant to subclause (4)(a) (as 21 referred to in paragraph (b)), the Joint 22 Venturers shall submit to the Minister within a 23 reasonable timeframe, as determined by the 24 Minister after receipt of the notice referred to in 25 paragraph (a) (or in the case of a notice referred 26 to in paragraph (b) the giving of the Minister's 27 in-principle consent as referred to in that 28 paragraph), detailed proposals in respect of the 29 proposed construction of such Railway spur 30 line, Train Loading Infrastructure, Train 31 Unloading Infrastructure or other proposed 32 modification, expansion or variation of their 33 activities including such of the matters 34 mentioned in subclause (4)(a) as the Minister 35 may require. 36 37 (d) The provisions of subclause (4) (with the date 38 for submission of proposals being read as the 39 date or time determined by the Minister under 40 paragraph (c) and the reference in subclause 41 (4)(e)(ii) to subclause (3)(c)(i) being read as a page 681 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 reference to subclause (3)(c)(iii)) and of clause 2 8A shall mutatis mutandis apply to detailed 3 proposals submitted pursuant to this subclause. 4 5 Grant of Tenure 6 7 (6) (a) On application made by the Joint Venturers to 8 the Minister in such manner as the Minister 9 may determine, not later than 3 months after all 10 their proposals submitted pursuant to subclause 11 (4)(a) have been approved or deemed to be 12 approved and the Joint Venturers have 13 complied with the provisions of subclause 14 (4)(e), the State notwithstanding the Mining 15 Act 1978 shall cause to be granted to the Joint 16 Venturers: 17 18 (i) a miscellaneous licence to conduct within 19 the Railway Corridor and in accordance 20 with their approved proposals all 21 activities (including the taking of stone, 22 sand, clay and gravel, the provision of 23 temporary accommodation facilities for 24 the railway workforce and, subject to the 25 Rights in Water and Irrigation Act 1914 26 (WA), the operation of water bores) 27 necessary for the planning, design, 28 construction, commissioning, operation 29 and maintenance within the Railway 30 Corridor of the Railway, access roads and 31 Additional Infrastructure (if any) ("the 32 Special Railway Licence") such licence 33 to be granted under and subject to, except 34 as otherwise provided in this Agreement, 35 the Mining Act 1978 in the form of Part 36 Three of the Schedule hereto and subject 37 to such terms and conditions as the 38 Minister for Mines may from time to time 39 consider reasonable and at a rental 40 calculated in accordance with the Mining 41 Act 1978: page 682 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 (A) prior to the Railway Operation 2 Date, as if the width of the 3 Railway Corridor were 100 4 metres; and 5 6 (B) on and from the Railway 7 Operation Date, at the rentals 8 from time to time prescribed 9 under the Mining Act 1978; and 10 11 (ii) a miscellaneous licence or licences to 12 allow the construction, use and 13 maintenance of Lateral Access Roads 14 within the routes agreed for those Lateral 15 Access Roads under subclause (3)(a) 16 (each a "Lateral Access Road Licence"), 17 each such licence to be granted under and 18 subject to, except as otherwise provided 19 in this Agreement, the Mining Act 1978 20 in the form of Part Four of the Schedule 21 hereto and subject to such terms and 22 conditions as the Minister for Mines may 23 from time to time consider reasonable 24 and at the rentals from time to time 25 prescribed under the Mining Act 1978. 26 27 (b) On application made by the Joint Venturers to 28 the Minister in such manner as the Minister 29 may determine, not later than 3 months after 30 their proposals submitted pursuant to subclause 31 (5)(a) for the construction of Lateral Access 32 Roads for access to the Railway Corridor to 33 construct a Railway spur line have been 34 approved or deemed to be approved and the 35 Joint Venturers have complied with the 36 provisions of subclause (4)(e) (as applying 37 pursuant to subclause (5)(d)), the State 38 notwithstanding the Mining Act 1978 shall 39 cause to be granted to the Joint Venturers a 40 miscellaneous licence or licences to allow the 41 construction, use and maintenance of Lateral page 683 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 Access Roads within the routes agreed for 2 those Lateral Access Roads under subclause 3 (3)(a)) (as applying pursuant to subclause 4 (5)(b)) (each a "Lateral Access Road Licence"), 5 each such licence to be granted under and 6 subject to, except as otherwise provided in this 7 Agreement, the Mining Act 1978 in the form of 8 Part Five of the Schedule hereto and subject to 9 such terms and conditions as the Minister for 10 Mines may from time to time consider 11 reasonable and at the rentals from time to time 12 prescribed under the Mining Act 1978. 13 14 (c) Notwithstanding the Mining Act 1978, the term 15 of the Special Railway Licence shall, subject to 16 the sooner determination thereof on the 17 cessation or sooner determination of this 18 Agreement, be for a period of 50 years 19 commencing on the date of grant thereof. 20 21 (d) Notwithstanding the Mining Act 1978, the term 22 of any Lateral Access Road Licence shall, 23 subject to the sooner determination thereof on 24 the cessation or sooner determination of this 25 Agreement, be for a period of 4 years 26 commencing on the date of grant thereof. 27 28 (e) Notwithstanding the Mining Act 1978, and 29 except as required to do so by the terms of the 30 Special Railway Licence, the Joint Venturers 31 shall not be entitled to surrender the Special 32 Railway Licence or any Lateral Access Road 33 Licence or any part or parts of them without the 34 prior consent of the Minister. 35 36 (f) (i) The Joint Venturers may in accordance 37 with approved proposals take stone, sand, 38 clay and gravel from the Railway 39 Corridor for the construction, operation 40 and maintenance of the Railway page 684 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 constructed within or approved for 2 construction within the Railway Corridor. 3 4 (ii) Notwithstanding the Mining Act 1978 no 5 royalty shall be payable under the Mining 6 Act 1978 in respect of stone, sand, clay 7 and gravel which the Joint Venturers are 8 permitted by subparagraph (i) to obtain 9 from the land the subject of the Special 10 Railway Licence. 11 12 (g) For the purposes of this Agreement and without 13 limiting the operation of paragraphs (a) to (f) 14 inclusive above, the application of the Mining 15 Act 1978 and the regulations made thereunder 16 are specifically modified; 17 18 (i) in section 91(1) by: 19 20 (A) deleting "the mining registrar or 21 the warden, in accordance with 22 section 42 (as read with section 23 92)" and substituting "the 24 Minister"; 25 26 (B) deleting "any person" and 27 substituting " the Joint Venturers 28 (as defined in the agreement 29 ratified by and scheduled to the 30 Iron Ore (Goldsworthy- 31 Nimingarra) Agreement Act 1972, 32 as from time to time added to, 33 varied or amended)"; 34 35 (C) deleting "for any one or more of 36 the purposes prescribed" and 37 substituting "for the purpose 38 specified in clause 16C(6)(a)(i), 39 clause 16C(6)(a)(ii) or clause 40 16C(6)(b), of the agreement 41 ratified by and scheduled page 685 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 to the Iron Ore (Goldsworthy- 2 Nimingarra) Agreement Act 1972, 3 as from time to time added to, 4 varied or amended"; 5 6 (ii) in section 91(3)(a), by deleting 7 "prescribed form" and substituting "form 8 required by the agreement ratified by and 9 scheduled to the Iron Ore (Goldsworthy- 10 Nimingarra) Agreement Act 1972, as 11 from time to time added to, varied or 12 amended"; 13 14 (iii) by deleting sections 91(6), 91(9), 91(10) 15 and 91B; 16 17 (iv) in section 92, by deleting "Sections 41, 18 42, 44, 46, 46A, 47 and 52 apply," and 19 inserting "Section 46A (excluding in 20 subsection (2)(a) "the mining registrar, 21 the warden or") applies," and by deleting 22 "in those provisions" and inserting "in 23 that provision"; 24 25 (v) by deleting the full stop at the end of the 26 section 94(1) and inserting, "except to the 27 extent otherwise provided in, or to the 28 extent that such terms and conditions are 29 inconsistent with, the agreement ratified 30 by and scheduled to the Iron Ore 31 (Goldsworthy-Nimingarra) Agreement 32 Act 1972, as from time to time added to, 33 varied or amended"; 34 35 (vi) by deleting sections 94(2), (3) and (4); 36 37 (vii) in section 96(1), by inserting after 38 "miscellaneous licence" the words "(not 39 being a miscellaneous licence granted 40 pursuant to the agreement ratified by and 41 scheduled to the Iron Ore (Goldsworthy- page 686 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 Nimingarra) Agreement Act 1972, as 2 from time to time added to, varied or 3 amended"; 4 5 (viii) by deleting mining regulations 37(2), 6 37(3), 42 and 42A; and 7 8 (ix) by inserting at the beginning of mining 9 regulations 41(c) and (f) the words 10 "subject to the agreement ratified by and 11 scheduled to the Iron Ore (Goldsworthy- 12 Nimingarra) Agreement Act 1972, as 13 from time to time added to, varied or 14 amended". 15 16 (h) If additional proposals are approved in 17 accordance with subclause (5) for the 18 construction of a Railway spur line outside the 19 then Railway Corridor, the Minister for Mines 20 shall include the area of land within which such 21 construction is to occur in the Special Railway 22 Licence by endorsement. The area of such land 23 may be included notwithstanding that the 24 survey of the land has not been completed but 25 subject to correction to accord with the survey 26 when completed at the Joint Venturers' 27 expense. 28 29 (i) If additional proposals are approved in 30 accordance with subclause (5) for the 31 construction of Train Loading Infrastructure or 32 Train Unloading Infrastructure outside the then 33 Railway Corridor, the Minister for Mines shall 34 include the area of such land within which such 35 infrastructure is approved for construction in 36 the Special Railway Licence by endorsement. 37 The area of such land may be included 38 notwithstanding that the survey of the land has 39 not been completed but subject to correction to 40 accord with the survey when completed at the 41 Joint Venturers' expense. page 687 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 2 (j) The provisions of this subclause shall not 3 operate so as to require the State to cause a 4 Special Railway Licence or a Lateral Access 5 Road Licence to be granted or any land 6 included in the Special Railway Licence as 7 mentioned above until all processes necessary 8 under any laws relating to native title to enable 9 that grant or inclusion of land to proceed, have 10 been completed. 11 12 Construction and operation of Railway 13 14 (7) (a) Subject to and in accordance with approved 15 proposals, the Rail Safety Act and the grant of 16 the relevant Special Railway Licence and any 17 associated Lateral Access Road Licences the 18 Joint Venturers shall in a proper and 19 workmanlike manner and in accordance with 20 recognised standards for railways of a similar 21 nature operating under similar conditions 22 construct the Railway and associated 23 Additional Infrastructure and access roads 24 within the Railway Corridor and shall also 25 construct inter alia any necessary sidings, 26 crossing points, bridges, signalling switches 27 and other works and appurtenances and provide 28 for crossings and (where appropriate and 29 required by the Minister) grade separation or 30 other protective devices including flashing 31 lights and boom gates at places where the 32 Railway crosses or intersects with major roads 33 or existing railways. 34 35 (b) The Joint Venturers shall while the holder of a 36 Special Railway Licence: 37 38 (i) keep the Railway the subject of that 39 licence in an operable state; and 40 page 688 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 (ii) ensure that the Railway the subject of that 2 licence is operated in a safe and proper 3 manner in compliance with all applicable 4 laws from time to time; and 5 6 (iii) without limiting subparagraph (ii) ensure 7 that the obligations imposed under the 8 Rail Safety Act on an owner and an 9 operator (as those terms are therein 10 defined) are complied with in connection 11 with the Railway the subject of that 12 licence. 13 14 Nothing in this Agreement shall be construed to 15 exempt the Joint Venturers or any other person 16 from compliance with the Rail Safety Act or 17 limit its application to the Joint Venturers' 18 operations generally (except as otherwise may 19 be provided in that Act or regulations made 20 under it). 21 22 (c) The Joint Venturers shall provide crossings for 23 livestock and also for any roads, other railways, 24 conveyors, pipelines and other utilities which 25 exist at the date of grant of the relevant Special 26 Railway Licence or in respect of land 27 subsequently included in it at the date of such 28 inclusion and the Joint Venturers shall on 29 reasonable terms and conditions allow such 30 crossings for roads, railways, conveyors, 31 pipelines and other utilities which may be 32 constructed for future needs and which may be 33 required to cross a Railway constructed 34 pursuant to this clause. 35 36 (d) Subject to clause 16B, the Joint Venturers shall 37 at all times be the holder of Special Railway 38 Licences and Lateral Access Road Licences 39 granted pursuant to this clause and (without 40 limiting clause 31 but subject to clause 16B) 41 shall at all times own manage and control the page 689 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 use of each Railway the subject of a Special 2 Railway Licence held by the Joint Venturers. 3 4 (e) The Joint Venturers shall not be entitled to 5 exclusive possession of the land the subject of a 6 Special Railway Licence or Lateral Access 7 Road Licence granted pursuant to this clause to 8 the intent that the State, the Minister, the 9 Minister for Mines and any persons authorised 10 by any of them from time to time shall be 11 entitled to enter upon the land or any part of it 12 at all reasonable times and on reasonable notice 13 with all necessary vehicles, plant and 14 equipment and for purposes related to this 15 Agreement or such other purposes as they think 16 fit but in doing so shall be subject to the 17 reasonable directions of the Joint Venturers so 18 as not to unreasonably interfere with the Joint 19 Venturers' operations. 20 21 (f) The Joint Venturers' ownership of a Railway 22 constructed pursuant to this clause shall not 23 give them an interest in the land underlying it. 24 25 (g) The Joint Venturers shall not at any time 26 without the prior consent of the Minister 27 dismantle, sell or otherwise dispose of any part 28 or parts of any Railway constructed pursuant to 29 this clause, or permit this to occur, other than 30 for the purpose of maintenance, repair, upgrade 31 or renewal. 32 33 (h) The Joint Venturers shall, subject to and in 34 accordance with approved proposals, in a 35 proper and workmanlike manner, construct any 36 Additional Infrastructure, access roads, Lateral 37 Access Roads and other works approved for 38 construction under this clause. 39 40 (i) The Joint Venturers shall while the holder of a 41 Special Railway Licence at all times keep and page 690 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 maintain in good repair and working order and 2 condition (which obligation includes, where 3 necessary, replacing or renewing all parts 4 which are worn out or in need of replacement 5 or renewal due to their age or condition) the 6 Railway, access roads and Additional 7 Infrastructure (if any) the subject of that licence 8 and all such other works installations plant 9 machinery and equipment for the time being 10 the subject of this Agreement and used in 11 connection with the operation use and 12 maintenance of that Railway, access roads and 13 Additional Infrastructure (if any). 14 15 (j) Subject to clause 16B, the Joint Venturers 16 shall: 17 18 (i) be responsible for the cost of construction 19 and maintenance of all Private Roads 20 constructed pursuant to this clause; and 21 22 (ii) at their own cost erect signposts and take 23 other steps that may be reasonable in the 24 circumstances to prevent any persons and 25 vehicles (other than those engaged upon 26 the Joint Venturers' activities and their 27 invitees and licensees) from using the 28 Private Roads; and 29 30 (iii) at any place where any Private Roads are 31 constructed by the Joint Venturers so as 32 to cross any railways or public roads 33 provide at their cost such reasonable 34 protection and signposting as may be 35 required by the Commissioner of Main 36 Roads or the Public Transport Authority 37 as the case may be. 38 39 (k) The provisions of clause 12A shall apply 40 mutatis mutandis to any Railway or Railway 41 spur line constructed pursuant to this clause page 691 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 except that the Joint Venturers shall not be 2 obliged to transport passengers upon any such 3 Railway or Railway spur line. 4 5 Aboriginal Heritage Act 1972 (WA) 6 7 (8) For the purposes of this clause the Aboriginal Heritage 8 Act 1972 (WA) applies as if it were modified by: 9 10 (a) the insertion before the full stop at the end of 11 section 18(1) of the words: 12 13 "and the expression "the Joint Venturers" 14 means the persons from time to time 15 comprising "the Joint Venturers" in their 16 capacity as such under the agreement ratified 17 by and scheduled to the Iron Ore 18 (Goldsworthy-Nimingarra) Agreement Act 19 1972, as from time to time added to, varied or 20 amended in relation to the use or proposed use 21 of land pursuant to clause 16C of that 22 agreement after and in accordance with 23 approved proposals under clause 16C of that 24 agreement and in relation to the use of that land 25 before any such approval of proposals where 26 the Joint Venturers have the requisite authority 27 to enter upon and so use the land"; 28 29 (b) the insertion in sections 18(2), 18(4), 18(5) and 30 18(7) of the words "or the Joint Venturers as 31 the case may be" after the words "owner of any 32 land"; 33 34 (c) the insertion in section 18(3) of the words "or 35 the Joint Venturers as the case may be" after 36 the words "the owner"; 37 38 (d) the insertion of the following sentences at the 39 end of section 18(3): 40 page 692 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 "In relation to a notice from the Joint Venturers 2 the conditions that the Minister may specify 3 can as appropriate include, among other 4 conditions, a condition restricting the Joint 5 Venturers' use of the relevant land to after the 6 approval or deemed approval as the case may 7 be under the abovementioned agreement of all 8 of the Joint Venturers submitted initial 9 proposals thereunder for the Railway Operation 10 (as defined in clause 16C(1) of the 11 abovementioned agreement), or in the case of 12 additional proposals submitted or to be 13 submitted by the Joint Venturers to after the 14 approval or deemed approval under that 15 agreement of such additional proposals, and to 16 the extent so approved. "; and 17 18 (e) the insertion in sections 18(2) and 18(5) of the 19 words "or it as the case may be" after the word 20 "he". 21 22 The Joint Venturers acknowledge that nothing in this 23 subclause (8) nor the granting of any consents under 24 section 18 of the Aboriginal Heritage Act 1972 (WA) 25 will constitute or is to be construed as constituting the 26 approval of any proposals submitted or to be submitted 27 by the Joint Venturers under this Agreement or as the 28 grant or promise of land tenure for the purposes of this 29 Agreement. 30 31 Taking of land for the purposes of this clause 32 33 (9) (a) The State is hereby empowered, as and for a 34 public work under Parts 9 and 10 of the LAA, 35 to take for the purposes of this clause any land 36 (other than any part of a Port) which in the 37 opinion of the Joint Venturers are necessary for 38 the relevant Railway Operation and which the 39 Minister determines is appropriate to be taken 40 for the relevant Railway Operation (except any 41 land the taking of which would be contrary to page 693 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 the provisions of a Government agreement 2 entered into before the submission of the 3 proposals relating to the proposed taking) and 4 notwithstanding any other provisions of that 5 Act may license that land to the Joint 6 Venturers. 7 8 (b) In applying Parts 9 and 10 of the LAA for the 9 purposes of this clause: 10 11 (i) "land" in that Act includes a legal or 12 equitable estate or interest in land; 13 14 (ii) sections 170, 171, 172, 173, 174, 175 and 15 184 of that Act do not apply; and 16 17 (iii) that Act applies as if it were modified in 18 section 177(2) by inserting - 19 (A) after "railway" the following - 20 "or land is being taken pursuant to 21 a Government agreement as 22 defined in section 2 of the 23 Government Agreements Act 1979 24 (WA)"; and 25 (B) after "that Act" the following - 26 "or that Agreement as the case 27 may be". 28 29 (c) The Joint Venturers shall pay to the State on 30 demand the costs of or incidental to any land 31 taken at the request of and on behalf of the 32 Joint Venturers including but not limited to any 33 compensation payable to any holder of native 34 title or of native title rights and interests in the 35 land. 36 page 694 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 Notification of Railway Operation Date 2 3 (10) (a) The Joint Venturers shall from the date 4 occurring 6 months before the date for 5 completion of construction of a Railway 6 specified in their time program for the 7 commencement and completion of construction 8 of that Railway submitted under subclause 9 (4)(a), keep the Minister fully informed as to: 10 11 (i) the progress of that construction and its 12 likely completion and commissioning; 13 and 14 15 (ii) the likely Railway Operation Date. 16 17 (b) The Joint Venturers shall on the Railway 18 Operation Date notify the Minister that the first 19 carriage of iron ore, freight goods or other 20 products as the case may be over the Railway 21 (other than for construction or commissioning 22 purposes) has occurred. 23 24 (c) The Joint Venturers shall from the date 25 occurring 6 months before the date for 26 completion of construction of a Railway spur 27 line specified in their time program for the 28 commencement and completion of construction 29 of that spur line submitted under subclause 30 (5)(c) keep the Minister fully informed as to: 31 32 (i) the progress of that construction and its 33 likely completion and commissioning; 34 and 35 36 (ii) in respect of it, the likely Railway spur 37 line Operation Date. 38 39 (d) The Joint Venturers shall on the Railway spur 40 line Operation Date in respect of any Railway 41 spur line notify the Minister that the first page 695 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 carriage of iron ore, freight goods or other 2 products as the case may be over such spur line 3 (other than for construction or commissioning 4 purposes) has occurred."; 5 6 (8) by inserting after subclause (1) of clause 18 the following new 7 subclause: 8 "(1a) To the extent determined by the Minister and subject to the 9 provisions of the laws from time to time of the said State 10 governing the generation, supply and transmission of 11 electricity, the Joint Venturers may subject to and in 12 accordance with approved proposals generate transmit and 13 supply electricity for the purpose of supply to: 14 15 (a) "the Company" or "Joint Venturers" as the case may be 16 as defined in, and for the purpose of an Integration 17 Agreement, for its or their purposes thereunder; 18 19 (b) the holders from time to time of a Mining Act 1978 20 mining lease located in, or proximate to, the Pilbara 21 region of the said State which is held by a Related 22 Entity alone or with a third party or parties (excluding 23 any mining lease granted pursuant to, or held under, a 24 Government agreement) for the purpose of their iron 25 ore mining operations on that mining lease; and 26 27 (c) with the prior approval of the Minister, "the Company" 28 or "the Joint Venturers" as the case may be as defined 29 in, and for the purpose of a Government agreement 30 (excluding an Integration Agreement) for the mining 31 of iron ore in, or proximate to, the Pilbara region of the 32 said State for the purpose of its or their operations 33 under that agreement." ; 34 (9) by deleting clause 23; 35 (10) in clause 33(1) by: 36 (a) deleting paragraph (iv); and page 696 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 (b) after paragraph (v), inserting the following new paragraphs: 2 "Where beneficiated ore is produced from an admixture of 3 iron ore from the mineral lease and iron ore from elsewhere, 4 a portion (and a portion only) of the beneficiated ore so 5 produced being equal to the proportion that the amount of 6 the iron in the iron ore from the mineral lease used in the 7 production of that beneficiated ore bears to the total amount 8 of iron in the iron ore so used shall be deemed to be 9 produced from iron ore from the mineral lease. 10 Where for the purpose of determining f.o.b. value it is 11 necessary to convert an amount or price to Australian 12 currency, the conversion is to be calculated using a rate 13 (excluding forward hedge or similar contract rates) that has 14 been approved by the Minister at the request of the Joint 15 Venturers and in the absence of such request as determined 16 by the Minister to be a reasonable rate for the purpose. 17 The provisions of regulation 85AA (Effect of GST etc. on 18 royalties) of the Mining Regulations 1981 (WA) shall apply 19 mutatis mutandis to the calculation of royalties under this 20 subclause."; 21 (11) in clause 33(2) by: 22 (a) inserting ", and also showing such other information in 23 relation to the abovementioned iron ore as the Minister may 24 from time to time reasonably require in regard to, and to 25 assist in verifying, the calculation of royalties in accordance 26 with subclause (1)" after "the due date of return"; and 27 (b) deleting all the words after "calculated on the basis of" and 28 substituting a colon followed by: 29 30 "(i) in the case of iron ore initially sold at cost pursuant to 31 the proviso to clause 13, at the price notified pursuant 32 to paragraph (iii) of that proviso: 33 34 (ii) in any other case, invoices or provisional invoices (as 35 the case may be) rendered by the Joint Venturers to page 697 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 the purchaser (which invoices the Joint Venturers 2 shall render without delay simultaneously furnishing 3 copies thereof to the Minister) of such iron ore or on 4 the basis of estimates as agreed or determined, 5 and shall from time to time in the next following appropriate 6 return and payment make (by the return and by cash) all 7 such necessary adjustments (and give to the Minister full 8 details thereof) when the f.o.b. value shall have been finally 9 calculated, agreed or determined."; 10 (12) by deleting clause 33(3) and substituting the following new 11 subclauses: 12 "(3) The Joint Venturers shall permit the Minister or his nominee 13 to inspect at all reasonable times the books, records, 14 accounts, documents (including contracts), data and 15 information of the Joint Venturers stored by any means 16 relating to any shipment or sale of iron ore the subject of 17 royalty hereunder and to take copies or extracts (in whatever 18 form) therefrom and for the purpose of determining the f.o.b. 19 value in respect of any shipment sale transfer or other 20 disposal or use or production of iron ore the subject of 21 royalty hereunder the Joint Venturers will take reasonable 22 steps (i) to provide the Minister with current prices for iron 23 ore outside and within the Commonwealth and other details 24 and information that may be required by the Minister for the 25 purpose of agreeing or determining the f.o.b. value and (ii) 26 to satisfy the State either by certificate of a competent 27 independent party acceptable to the State or otherwise to the 28 Minister's reasonable satisfaction as to all relevant weights 29 and analyses and will give due regard to any objection or 30 representation made by the Minister or his nominee as to any 31 particular weight or assay as iron ore which may affect the 32 amount of royalty payable hereunder. 33 (3a) The Joint Venturers shall cause to be produced in Perth in 34 the said State all books, records, accounts, documents 35 (including contracts), data and information of the kind 36 referred to in subclause (3) to enable the exercise of rights 37 by the Minister or the Minister's nominee under subclause page 698 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 (3), regardless of the location in which or by whom those 2 books, records, accounts, documents (including contracts), 3 data and information are stored from time to time."; 4 (13) by deleting clause 33(4); 5 (14) in clause 34 by inserting "or pursuant hereto or held pursuant 6 hereto" after "granted hereunder"; 7 (15) in clause 35 by: 8 (a) inserting "granted hereunder or pursuant hereto or held 9 pursuant hereto" after "licence or other title"; 10 (b) inserting "or held pursuant hereto" after the 2 subsequent 11 references to "granted hereunder or pursuant hereto"; and 12 (c) inserting "or held pursuant hereto" after "mineral lease as 13 permitted"; and 14 (d) deleting "occupied by the Joint Venturers" and substituting 15 "the subject of any lease licence easement or other title 16 granted hereunder or pursuant hereto or held pursuant 17 hereto"; 18 (16) in clause 36(a) by inserting "or held pursuant hereto" after "granted 19 hereunder or pursuant hereto"; 20 (17) by inserting the following sentence at the end of clause 38: 21 "As a separate independent indemnity the Joint Venturers will 22 indemnify and keep indemnified the State and its servants agents 23 and contractors in respect of all actions suits claims demands or 24 costs of third parties arising out of or in connection with any use, 25 making available for use or other activities of the Joint Venturers 26 as referred to in clause 16A."; 27 (18) in clause 39(3)(a) by inserting "or held pursuant hereto" after 28 "granted hereunder or pursuant hereto"; page 699 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 (19) in clause 40(1) by inserting "or held pursuant hereto" after "granted 2 hereunder or pursuant hereto"; and 3 (20) by inserting after Part Two of the Schedule the following new 4 Parts: 5 6 page 700 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 "PART THREE 2 3 WESTERN AUSTRALIA 4 5 IRON ORE (GOLDSWORTHY-NIMINGARRA) 6 AGREEMENT ACT 1972 7 8 MINING ACT 1978 9 10 MISCELLANEOUS LICENCE FOR A RAILWAY 11 AND OTHER PURPOSES 12 13 14 No. MISCELLANEOUS LICENCE [ ] 15 16 WHEREAS by the Agreement (hereinafter called "the 17 Agreement") ratified by and scheduled to the Iron Ore 18 (Goldsworthy-Nimingarra) Agreement Act 1972, as from time to 19 time added to, varied or amended, the State agreed to grant to 20 [ ] (hereinafter with their successors and permitted assigns 21 called "the Joint Venturers") a miscellaneous licence for the 22 construction operation and maintenance of a Railway (as defined 23 in clause 16C(1) of the Agreement and otherwise as provided in 24 the Agreement) and, if applicable, other purposes AND 25 WHEREAS the Joint Venturers pursuant to clause 16C(6)(a) of 26 the Agreement have made application for the said licence; 27 28 NOW in consideration of the rents reserved by and the provisions 29 of the Agreement and in pursuance of the Iron Ore (Goldsworthy- 30 Nimingarra) Agreement Act 1972, as from time to time added to, 31 varied or amended, the Joint Venturers are hereby granted by this 32 licence authority to conduct on the land the subject of this licence 33 as more particularly delineated and described from time to time in 34 the Schedule hereto all activities (including the taking of stone, 35 sand, clay and gravel, the provision of temporary accommodation 36 facilities for the railway workforce in accordance with the 37 Agreement and, subject to the Rights in Water and Irrigation Act 38 1914 (WA), the operation of water bores) necessary for the 39 planning, design, construction, commissioning, operation and 40 maintenance on the land the subject of this licence of the Railway 41 and Additional Infrastructure (as defined in clause 16C(1) of the page 701 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 Agreement) and access roads to be located on the land the subject 2 of this licence in accordance with the provisions of the Agreement 3 and proposals approved under the Agreement, for the term of 50 4 years from the date hereof (subject to the sooner determination of 5 the term upon the determination of the Agreement) and upon and 6 subject to the terms covenants and conditions set out in the 7 Agreement and the Mining Act 1978 as it applies to this licence, 8 and any amendments to the Agreement and the Mining Act 1978 9 from time to time and to the terms and conditions (if any) now or 10 hereafter endorsed hereon and the payment of rentals in respect of 11 this licence in accordance with clause 16C(6)(a)(i) of the 12 Agreement PROVIDED ALWAYS that this licence shall not be 13 determined or forfeited otherwise than in accordance with the 14 Agreement. 15 16 In this licence: 17 18 - If the Joint Venturers be more than one the liability of the 19 Joint Venturers hereunder shall be joint and several. 20 21 - Reference to an Act includes all amendments to that Act for 22 the time being in force and also any Act passed in 23 substitution therefore or in lieu thereof and to the regulations 24 and by-laws of the time being in force thereunder. 25 26 - Reference to "the Agreement" means such agreement as 27 from time to time added to, varied or amended. 28 29 - The terms "approved proposals", "Railway", "Railway 30 Operation Date", and "Railway spur line" have the meanings 31 given in the Agreement. 32 33 ENDORSEMENTS AND CONDITIONS 34 35 Endorsements 36 37 1. This licence is granted in accordance with proposals 38 submitted on [ ], and approved by the Minister (as defined 39 in the Agreement) on [ ], under the Agreement. 40 page 702 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 2. The Joint Venturers are permitted to, in accordance with 2 approved proposals, take stone, sand, clay and gravel from 3 the land the subject of this licence for the construction, 4 operation and maintenance of the Railway (including any 5 Railway spur line) constructed within or approved for 6 construction within the area of land the subject of this 7 licence. 8 9 3. Notwithstanding the Mining Act 1978, no royalty shall be 10 payable under the Mining Act 1978 in respect of stone, sand, 11 clay and gravel which the Joint Venturers are permitted by 12 the Agreement to obtain from the land the subject of this 13 licence. 14 15 4. [Any further endorsement which the Minister for Mines 16 may, consistent with the provisions of the Agreement, 17 determines and thereafter impose in respect of this licence 18 including during the term of the Agreement.] 19 20 Conditions 21 22 1. (a) Except as provided in paragraph (b), the Joint 23 Venturers shall within 2 years after the Railway 24 Operation Date surrender in accordance with the 25 provisions of the Mining Act 1978 the area of this 26 licence down to a maximum of 100 metres width or as 27 otherwise approved by the Minister (as defined in the 28 Agreement) for the safe operation of the Railway then 29 constructed or approved for construction under 30 approved proposals. 31 32 (b) Paragraph (a) shall not apply to land the subject of this 33 licence that was included in this licence pursuant to 34 clause 16C(6)(h) or clause 16C(6)(i) of the 35 Agreement. 36 37 2. The Joint Venturers shall as soon as possible after the 38 construction of a Railway spur line or of an expansion or 39 extension thereof as the case may be surrender in accordance 40 with the Mining Act 1978 the land the subject of this licence 41 that was included in this licence pursuant to clause 16C(6)(h) page 703 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 of the Agreement for the purpose of such construction down 2 to a maximum of 100 metres in width or as otherwise 3 approved by the Minister (as defined in the Agreement) for 4 the safe operation of that Railway spur line or expansion or 5 extension thereof as the case may be then constructed or 6 approved for construction under approved proposals. 7 8 3. [Any further conditions which the Minister for Mines may, 9 consistent with the provisions of the Agreement, determines 10 and thereafter impose in respect of this licence including 11 during the term of the Agreement.] 12 13 SCHEDULE 14 15 Land description 16 17 Locality: 18 Mineral Field 19 Area: 20 21 DATED at Perth this day of . 22 23 MINISTER FOR MINES 24 25 page 704 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 PART FOUR 2 3 WESTERN AUSTRALIA 4 5 IRON ORE (GOLDSWORTHY-NIMINGARRA) 6 AGREEMENT ACT 1972 7 8 MINING ACT 1978 9 10 MISCELLANEOUS LICENCE FOR A LATERAL ACCESS 11 ROAD 12 13 14 No. MISCELLANEOUS LICENCE [ ] 15 16 WHEREAS by the Agreement (hereinafter called "the 17 Agreement") ratified and scheduled to the Iron Ore (Goldsworthy- 18 Nimingarra) Agreement Act 1972, as from time to time added to, 19 varied or amended, the State agreed to grant to [ ] 20 (hereinafter with their successors and permitted assigns called "the 21 Joint Venturers") a miscellaneous licence for the construction use 22 and maintenance of a Lateral Access Road (as defined in the 23 Agreement) AND WHEREAS the Joint Venturers pursuant to 24 clause 16C(6)(a)(ii) of the Agreement have made application for 25 the said licence; 26 27 NOW in consideration of the rents reserved by and the provisions 28 of the Agreement and in pursuance of the Iron Ore (Goldsworthy- 29 Nimingarra) Agreement Act 1972,, as from time to time added to, 30 varied or amended, the Joint Venturers are hereby authorised to 31 construct use and maintain a road on the land more particularly 32 delineated and described from time to time in the Schedule hereto 33 in accordance with the provisions of the Agreement and proposals 34 approved under the Agreement for a term of 4 years commencing 35 on the date hereof (subject to the sooner determination of the term 36 upon the cessation or determination of the Agreement) and for the 37 purposes and upon and subject to the terms covenants and 38 conditions set out in the Agreement and the Mining Act 1978 as it 39 applies to this licence, and any amendments to the Agreement and 40 the Mining Act 1978 from time to time and to the terms and 41 conditions (if any) now or hereafter endorsed hereon and the page 705 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 payment of rentals in respect of this licence in accordance with 2 clause 16C(6)(a)(ii) of the Agreement PROVIDED ALWAYS that 3 this licence shall not be determined or forfeited otherwise than in 4 accordance with the Agreement. 5 6 In this licence: 7 8 - If the Joint Venturers be more than one the liability of the 9 Joint Venturers hereunder shall be joint and several. 10 11 - Reference to an Act includes all amendments to that Act for 12 the time being in force and also any Act passed in 13 substitution therefore or in lieu thereof and to the regulations 14 and by-laws of the time being in force thereunder. 15 16 - Reference to "the Agreement" means such agreement as 17 from time to time added to, varied or amended. 18 19 ENDORSEMENTS AND CONDITIONS 20 21 Endorsements 22 23 1. This licence is granted in accordance with proposals 24 submitted on [ ], and approved by the Minister (as defined 25 in the Agreement) on [ ], under the Agreement. 26 27 2. [Any further endorsement which the Minister for Mines 28 may, consistent with the provisions of the Agreement, 29 determines and thereafter impose in respect of this licence 30 including during the term of the Agreement.] 31 32 Conditions 33 34 [Such conditions which the Minister for Mines may, consistent 35 with the provisions of the Agreement, determines and thereafter 36 impose in respect of the licence, including during the term of the 37 Agreement.] 38 39 page 706 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 SCHEDULE 2 3 Description of land 4 5 Locality: 6 Mineral Field: 7 Area: 8 9 DATED at Perth this day of . 10 11 MINISTER FOR MINES 12 13 14 15 page 707 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 PART FIVE 2 3 WESTERN AUSTRALIA 4 5 IRON ORE (GOLDSWORTHY-NIMINGARRA) 6 AGREEMENT ACT 1972 7 8 MINING ACT 1978 9 10 MISCELLANEOUS LICENCE FOR A LATERAL ACCESS 11 ROAD 12 13 14 No. MISCELLANEOUS LICENCE [ ] 15 16 WHEREAS by the Agreement (hereinafter called "the 17 Agreement") ratified by and scheduled to the Iron Ore 18 (Goldsworthy-Nimingarra) Agreement Act 1972, as from time to 19 time added to, varied or amended, the State agreed to grant to 20 [ ] (hereinafter with their successors and permitted assigns 21 called "the Joint Venturers") a miscellaneous licence for the 22 construction use and maintenance of a Lateral Access Road (as 23 defined in the Agreement) AND WHEREAS the Joint Venturers 24 pursuant to clause 16C(6)(b) of the Agreement have made 25 application for the said licence; 26 27 NOW in consideration of the rents reserved by and the provisions 28 of the Agreement and in pursuance of the Iron Ore (Goldsworthy- 29 Nimingarra) Agreement Act 1972, as from time to time added to, 30 varied or amended, the Joint Venturers are hereby authorised to 31 construct use and maintain a road on the land more particularly 32 delineated and described from time to time in the Schedule hereto 33 in accordance with the provisions of the Agreement and proposals 34 approved under the Agreement for a term of 4 years commencing 35 on the date hereof (subject to the sooner determination of the term 36 upon the cessation or determination of the Agreement) and for the 37 purposes and upon and subject to the terms covenants and 38 conditions set out in the Agreement and the Mining Act 1978 as it 39 applies to this licence, and any amendments to the Agreement and 40 the Mining Act 1978 from time to time and to the terms and 41 conditions (if any) now or hereafter endorsed hereon and the page 708 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 payment of rentals in respect of this licence in accordance with 2 clause 16C(6)(b) of the Agreement PROVIDED ALWAYS that 3 this licence shall not be determined or forfeited otherwise than in 4 accordance with the Agreement. 5 6 In this licence: 7 8 - If the Joint Venturers be more than one the liability of the 9 Joint Venturers hereunder shall be joint and several. 10 11 - Reference to an Act includes all amendments to that Act for 12 the time being in force and also any Act passed in 13 substitution therefore or in lieu thereof and to the regulations 14 and by-laws of the time being in force thereunder. 15 16 - Reference to "the Agreement" means such agreement as 17 from time to time added to, varied or amended. 18 19 ENDORSEMENTS AND CONDITIONS 20 21 Endorsements 22 23 1. This licence is granted in accordance with proposals 24 submitted on [ ], and approved by the Minister (as defined 25 in the Agreement) on [ ], under the Agreement. 26 27 2. [Any further endorsement which the Minister for Mines 28 may, consistent with the provisions of the Agreement, 29 determines and thereafter impose in respect of this licence 30 including during the term of the Agreement.] 31 32 Conditions 33 34 [Such conditions which the Minister for Mines may, consistent 35 with the provisions of the Agreement, determines and thereafter 36 impose in respect of the licence, including during the term of the 37 Agreement.] 38 39 page 709 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 SCHEDULE 2 3 Description of land 4 5 Locality: 6 Mineral Field: 7 Area: 8 9 DATED at Perth this day of . 10 11 MINISTER FOR MINES". 12 page 710 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended Part 9 s. 43 1 EXECUTED as a deed. 2 3 SIGNED by THE HONOURABLE ) 4 COLIN JAMES BARNETT ) [Signature] 5 in the presence of: ) 6 [Signature] STEPHEN WOOD 7 8 9 10 EXECUTED by BHP BILLITON ) 11 MINERALS PTY. LTD. ACN 008 ) 12 694 782 in accordance with section 127(1) ) 13 of the Corporations Act ) 14 [Signature] [Signature] Signature of Director Signature of Director/Company Secretary 15 STEWART HART ROBIN B LEES Name of Director Name of Director/Company Secretary 16 17 18 19 EXECUTED by MITSUI IRON ORE ) 20 CORPORATION PTY. LTD. ACN ) 21 050 157 456 in accordance with section ) 22 127(1) of the Corporations Act ) 23 [Signature] [Signature] Signature of Director Signature of Director/Company Secretary 24 RYUZO NAKAMURA GAVIN PETER PATTERSON Name of Director Name of Director/Company Secretary 25 26 page 711 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 9 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 43 1 Signed by Shuzaburo Tsuchihashi as ) 2 attorney for ITOCHU MINERALS & ) 3 ENERGY OF AUSTRALIA PTY. ) 4 LTD. ACN 009 256 259 under power ) 5 of attorney dated 12 November 2010 ) 6 in the presence of: ) 7 [Signature] [Signature] Signature of witness Shuzaburo Tsuchihashi 8 YASUSHI FUKUMURA Name of witness (print) 9 page 712 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Authorisation Act Part 10 1972 amended s. 38 1 Part 10 -- Iron Ore (McCamey's Monster) Agreement 2 Authorisation Act 1972 amended 3 38. Act amended 4 This Part amends the Iron Ore (McCamey's Monster) 5 Agreement Authorisation Act 1972. 6 39. Section 2A inserted 7 After section 1 insert: 8 9 2A. Term used: current Agreement 10 In this Act -- 11 current Agreement means the agreement referred to in 12 section 2 as varied from time to time. 13 14 40. Section 3 amended 15 (1) In section 3 delete "When" and insert: 16 17 (1) When 18 19 (2) At the end of section 3 insert: 20 21 (2) To avoid doubt, it is declared that the provisions of the 22 Public Works Act 1902 section 96 do not apply to a 23 railway constructed under the current Agreement. 24 page 713 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Authorisation Act 1972 amended s. 41 1 41. Sections 4, 5 and 6 amended 2 In sections 4(3), 5(3) and 6(4) delete "section 3," and insert: 3 4 section 3(1), 5 6 42. Sections 8 and 9 inserted 7 After section 7 insert: 8 9 8. Fourth Variation Agreement 10 (1) The agreement (fourth Variation Agreement) a copy 11 of which is set out in Schedule 5 is ratified. 12 (2) The implementation of the fourth Variation Agreement 13 is authorised. 14 (3) Without limiting or otherwise affecting the application 15 of the Government Agreements Act 1979, the fourth 16 Variation Agreement is to operate and take effect 17 despite any other Act or law. 18 9. State empowered under clause 11E(9)(a) 19 The State has power in accordance with 20 clause 11E(9)(a) of the current Agreement. 21 22 43. Schedule 5 inserted 23 After Schedule 4 insert: page 714 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 Schedule 5 -- Fourth Variation Agreement 2 [s. 8] 3 2010 4 5 6 7 8 9 THE HONOURABLE COLIN JAMES BARNETT 10 PREMIER OF THE STATE OF WESTERN AUSTRALIA 11 12 13 AND 14 15 16 BHP IRON ORE (JIMBLEBAR) PTY. LTD. 17 ACN 009 114 210 18 19 20 21 22 23 24 25 IRON ORE (McCAMEY'S MONSTER) AGREEMENT 1972 26 27 RATIFIED VARIATION AGREEMENT 28 29 30 31 32 [Solicitor's details] 33 34 35 36 37 38 39 40 page 715 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 THIS AGREEMENT is made this 17th day of November 2010 2 3 4 BETWEEN 5 6 THE HONOURABLE COLIN JAMES BARNETT MLA., Premier of the 7 State of Western Australia acting for and on behalf of the said State and its 8 instrumentalities from time to time (State) 9 10 AND 11 12 BHP IRON ORE (JIMBLEBAR) PTY. LTD. ACN 009 114 210 of Level 17, 13 St Georges Square, 225 St Georges Terrace, Perth, Western Australia 14 (Company). 15 16 17 RECITALS 18 A. The State and the Company are now the parties to the agreement 19 authorised by and as scheduled to the Iron Ore (McCamey's Monster) 20 Agreement Authorisation Act 1972 and which as subsequently added to, 21 varied or amended is referred to in this Agreement as the "Principal 22 Agreement". 23 24 B. The State and the Company wish to vary the Principal Agreement. 25 26 27 THE PARTIES AGREE AS FOLLOWS: 28 29 1. Subject to the context, the words and expressions used in this Agreement 30 have the same meanings respectively as they have in and for the purpose 31 of the Principal Agreement. 32 2. The State shall sponsor a Bill in the Parliament of Western Australia to 33 ratify this Agreement and shall endeavour to secure its passage as an Act 34 prior to 31 December 2010 or such later date as the parties may agree. 35 3. (a) Clause 4 does not come into operation unless or until an Act passed 36 in accordance with clause 2 ratifies this Agreement. page 716 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 (b) If by 30 June 2011, or such later date as may be agreed pursuant to 2 clause 2, clause 4 has not come into operation then unless the 3 parties hereto otherwise agree this Agreement shall cease and 4 determine and neither party shall have any claim against the other 5 party with respect to any matter or thing arising out of or done or 6 performed or omitted to be done or performed under this 7 Agreement. 8 9 4. The Principal Agreement is varied as follows: 10 11 (1) in clause 1: 12 13 (a) by deleting the current definitions of "approved proposals", 14 "direct shipping ore", "fine ore", "fines", "f.o.b. revenue", 15 "iron ore" and "Minister for Minerals and Energy" and; 16 17 (b) by inserting in the appropriate alphabetical positions the 18 following new definitions: 19 20 "agreed or determined" means agreed between the Joint 21 Venturers and the Minister or, failing agreement within three 22 months of the Minister giving notice to the Joint Venturers 23 that he requires the value of a quantity of iron ore to be 24 agreed or determined, as determined by the Minister 25 (following, if requested by the Joint Venturers, consultation 26 with the Joint Venturers and their consultants in regard 27 thereto) and in agreeing or determining a fair and reasonable 28 market value of such iron ore assessed on an arm's length 29 basis the Joint Venturers and/or the Minister as the case may 30 be shall have regard to: 31 32 (i) in the case of iron ore initially sold at cost pursuant to 33 the proviso to clause 11(10), the prices for that type of 34 iron ore prevailing at the time the price for such iron 35 ore was agreed between the arm's length purchaser 36 referred to in paragraph (iii) of that proviso and the 37 seller in relation to the type of sale and the relevant 38 international seaborne iron ore market into which 39 such iron ore was sold and where prices beyond the 40 deemed f.o.b. point are being considered the page 717 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 deductions mentioned in the definition of f.o.b. value; 2 and 3 4 (ii) in any other case, the prices for that type of iron ore 5 prevailing at the time the price for such iron ore was 6 agreed between the Joint Venturers and the purchaser 7 in relation to the type of sale and the market into 8 which such iron ore was sold and where prices 9 beyond the deemed f.o.b. point are being considered 10 the deductions mentioned in the definition of f.o.b. 11 value; 12 13 "approved proposal" means a proposal approved or 14 determined under this Agreement; 15 16 "beneficiated ore" means iron ore that has been concentrated 17 or upgraded (otherwise than solely by crushing, screening, 18 separating by hydrocycloning or a similar technology which 19 uses primarily size as a criterion, washing, scrubbing, 20 trommelling or drying or by a combination of 2 or more of 21 those processes) by the Joint Venturers in a plant constructed 22 pursuant to a proposal approved pursuant to an Integration 23 Agreement or in such other plant as is approved by the 24 Minister after consultation with the Minister for Mines and 25 "beneficiation" and "beneficiate" have corresponding 26 meanings; 27 28 "deemed f.o.b. point" means on ship at the relevant loading 29 port; 30 31 "deemed f.o.b. value" means an agreed or determined value 32 of the iron ore as if the iron ore was sold f.o.b. at the deemed 33 f.o.b. point as at: 34 35 (a) in the case of iron ore the property of the Joint 36 Venturers which is shipped out of the said State, the 37 date of shipment; and 38 39 (b) in any other case, the date of sale, transfer of 40 ownership, disposal or use as the case may be; page 718 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 "EP Act" means the Environmental Protection Act 1986 2 (WA); 3 "fine ore" means iron ore (not being beneficiated ore) which 4 is screened and will pass through a 6.3 millimetre mesh 5 screen; 6 7 "f.o.b. value" means: 8 9 (i) subject to paragraph (ii), in the case of iron ore 10 products shipped and sold by the Joint Venturers, the 11 price which is payable for the iron ore products by the 12 purchaser thereof to the Joint Venturers or an 13 associated company or, where the Minister considers, 14 following advice from the appropriate Government 15 department, that the price payable in respect of the 16 iron ore products does not represent a fair and 17 reasonable market value for those types of iron ore 18 products assessed on an arm's length basis, such 19 amount as is agreed or determined as representing 20 such a fair and reasonable market value, less all export 21 duties and export taxes payable to the Commonwealth 22 on the export of the iron ore products and all costs and 23 charges properly incurred and payable by the Joint 24 Venturers from the time the iron ore products shall be 25 placed on ship at the relevant loading port to the time 26 the same is delivered and accepted by the purchaser 27 including: 28 29 (1) ocean freight; 30 31 (2) marine insurance; 32 33 (3) port and handling charges at the port of 34 discharge; 35 36 (4) all costs properly incurred in delivering the iron 37 ore products from port of discharge to the 38 smelter and evidenced by relevant invoices; 39 page 719 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 (5) all weighing sampling assaying inspection and 2 representation costs; 3 4 (6) all shipping agency charges after loading on 5 and departure of ship from the relevant loading 6 port; 7 8 (7) all import taxes by the country of the port of 9 discharge; and 10 11 (8) such other costs and charges as the Minister 12 may in his discretion consider reasonable in 13 respect of any shipment or sale; 14 15 (ii) in the case of iron ore initially sold at cost pursuant to 16 the proviso to clause 11(10), the price which is 17 payable for the iron ore by the arm's length purchaser 18 as referred to in paragraph (iii) of that proviso or, 19 where the Minister considers, following advice from 20 the appropriate Government department, that the price 21 payable in respect of the iron ore does not represent a 22 fair and reasonable market value for that type of iron 23 ore assessed on an arm's length basis in the relevant 24 international seaborne iron ore market, such amount 25 as is agreed or determined as representing such a fair 26 and reasonable market value, less all duties, taxes, 27 costs and charges referred to in paragraph (i) above; 28 and 29 30 (iii) in all other cases, the deemed f.o.b. value. 31 32 For the purpose of subparagraph (i) of this definition, it is 33 acknowledged that the consideration payable in an arm's 34 length transaction for iron ore products sold solely for testing 35 purposes may be less than the fair and reasonable market 36 value for those iron ore products and in this circumstance 37 where the Minister in his discretion is satisfied such 38 consideration represents the entire consideration payable, the 39 Minister shall be taken to be satisfied that such entire 40 consideration represents the fair and reasonable market 41 value; page 720 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 "Government agreement" has the meaning given in the 2 Government Agreements Act 1979 (WA); 3 4 "Integration Agreement" means: 5 6 (a) the agreement approved by and scheduled to the Iron 7 Ore (Hamersley Range) Agreement Act 1963, as from 8 time to time added to, varied or amended; or 9 10 (b) the agreement approved by and scheduled to the Iron 11 Ore (Robe River) Agreement Act 1964, as from time 12 to time added to, varied or amended; or 13 14 (c) the agreement approved by and scheduled to the Iron 15 Ore (Hamersley Range) Agreement Act Amendment 16 Act 1968, as from time to time added to, varied or 17 amended; or 18 19 (d) the agreement ratified by and scheduled to the Iron 20 Ore (Mount Bruce) Agreement Act 1972, as from time 21 to time added to, varied or amended; or 22 23 (e) the agreement ratified by and scheduled to the Iron 24 Ore (Hope Downs) Agreement Act 1992, as from time 25 to time added to, varied or amended; or 26 27 (f) the agreement ratified by and scheduled to the Iron 28 Ore (Yandicoogina) Agreement Act 1996, as from 29 time to time added to, varied or amended; or 30 31 (g) the agreement approved by and scheduled to the Iron 32 Ore (Mount Newman) Agreement Act 1964, as from 33 time to time added to, varied or amended; or 34 35 (h) the agreement approved by and scheduled to the Iron 36 Ore (Mount Goldsworthy) Agreement Act 1964, as 37 from time to time added to, varied or amended; or 38 39 (i) the agreement ratified by and scheduled to the Iron 40 Ore (Goldsworthy-Nimingarra) Agreement Act 1972, 41 as from time to time added to, varied or amended; or page 721 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 2 (j) the agreement authorised by and as scheduled to the 3 Iron Ore (McCamey's Monster) Agreement 4 Authorisation Act 1972, as from time to time added to, 5 varied or amended; or 6 7 (k) the agreement ratified by and scheduled to the Iron 8 Ore (Marillana Creek) Agreement Act 1991, as from 9 time to time added to, varied or amended; 10 11 "Integration Proponent" means in relation to an Integration 12 Agreement, "the Company" or "the Joint Venturers" as the 13 case may be as defined in, and for the purpose of, that 14 Integration Agreement; 15 16 "iron ore" includes, without limitation, beneficiated ore; 17 18 "laws relating to native title" means laws applicable from 19 time to time in the said State in respect of native title and 20 includes the Native Title Act 1993 (Commonwealth); 21 22 "loading port" means: 23 24 (a) the Port of Dampier; or 25 26 (b) Port Walcott; or 27 28 (c) the Port of Port Hedland; or 29 30 (d) any other port constructed after the variation date 31 under an Integration Agreement; or 32 33 (e) such other port approved by the Minister at the 34 request of the Joint Venturers from time to time for 35 the shipment of iron ore from the mineral lease; 36 37 "lump ore" means iron ore (not being beneficiated ore) 38 which is screened and will not pass through a 6.3 millimetre 39 mesh screen; 40 page 722 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 "Mount Newman Agreement" means the agreement 2 approved by and scheduled to the Iron Ore (Mount Newman) 3 Agreement Act 1964, as from time to time added to, varied 4 or amended; 5 6 "Minister for Mines" means the Minister in the Government 7 of the said State for the time being responsible for the 8 administration of the Mining Act 1904 and the Mining Act 9 1978; 10 11 "Related Entity" means a company in which: 12 13 (a) as at 21 June 2010; and 14 15 (b) after 21 June 2010, with the approval of the Minister, 16 17 a direct or (through a subsidiary or subsidiaries within the 18 meaning of the Corporations Act 2001 (Commonwealth)) 19 indirect shareholding of 20% or more is held by: 20 21 (c) Rio Tinto Limited ABN 96 004 458 404; or 22 23 (d) BHP Billiton Limited ABN 49 004 028 077; or 24 25 (e) those companies referred to in paragraphs (c) and (d) 26 in aggregate; 27 28 "variation date" means the date on which clause 4 of the 29 variation agreement made on or about 17 November 2010 30 between the State and the Joint Venturers comes into 31 operation; 32 33 "washing" means a process of separation by water using 34 only size as a criterion; 35 (c) in the definition of "Joint Venturers' wharf" by inserting 36 "and in clauses 11(10) and 23(2)(a) also any additional 37 wharf constructed by the Joint Venturers pursuant to this 38 Agreement" before the semi colon; page 723 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 (d) in the definition of "metallised agglomerates" by deleting "or 2 iron ore concentrates"; 3 4 (e) in the definition of "mineral lease" by inserting "and any 5 areas added to it pursuant to clause 11B" before the semi 6 colon; and 7 8 (f) in the definition of "secondary processing" by deleting "the 9 concentration or other beneficiation of iron ore otherwise 10 than by washing crushing or screening or any combination 11 thereof" and substituting "the beneficiation of iron ore"; 12 13 (2) in clause 2: 14 15 (a) by inserting in subclause (1)(c) "and clause headings" after 16 "marginal notes"; and 17 18 (b) by inserting after subclause (3) the following new subclause: 19 20 "(4) Nothing in this Agreement shall be construed: 21 22 (a) to exempt the Joint Venturers from compliance 23 with any requirement in connection with the 24 protection of the environment arising out of or 25 incidental to their activities under this 26 Agreement that may be made by or under the 27 EP Act; or 28 29 (b) to exempt the State or the Joint Venturers from 30 compliance with or to require the State or the 31 Joint Venturers to do anything contrary to any 32 laws relating to native title or any lawful 33 obligation or requirement imposed on the State 34 or the Joint Venturers as the case may be 35 pursuant to any laws relating to native title; or 36 37 (c) to exempt the Joint Venturers from compliance 38 with the provisions of the Aboriginal Heritage 39 Act 1972 (WA)."; 40 page 724 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 (3) in clause 5 by deleting "Minister for Minerals and Energy" in 2 paragraphs (d), (e) and (f) and substituting "Minister for Mines"; 3 4 (4) in clause 9(1): 5 6 (a) by inserting "after the variation date" after "this Agreement"; 7 8 (b) by inserting "significantly" before "modify"; 9 10 (c) by inserting "carried on pursuant to this Agreement" after 11 "vary their activities"; 12 13 (d) by inserting "(other than under clauses 9C, 11A or 11E)" 14 after "any approved proposals"; and 15 16 (e) by deleting the last sentence and substituting the following 17 sentence: 18 "The provisions of clause 7(5) shall apply mutatis mutandis 19 to detailed proposals submitted pursuant to this subclause."; 20 (5) by renumbering subclauses (2) and (3) of clause 9 as (6) and (7) 21 respectively; 22 23 (6) by inserting after subclause (1) of clause 9 the following new 24 subclauses: 25 26 "(2) A proposal may with the consent of the Minister (except in 27 relation to an Integration Agreement) and that of any parties 28 concerned (being in respect of an Integration Agreement the 29 Integration Proponent for that agreement) provide for the use 30 by the Joint Venturers of any works installations or facilities 31 constructed or established under a Government agreement. 32 33 (3) Each of the proposals pursuant to subclause (1) may with the 34 approval of the Minister, or shall if so required by the 35 Minister, be submitted separately and in any order as to any 36 matter or matters in respect of which such proposals are 37 required to be submitted. 38 page 725 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 (4) At the time when the Joint Venturers submit the said 2 proposals they shall submit to the Minister details of any 3 services (including any elements of the project 4 investigations, design and management) and any works 5 materials, plant, equipment and supplies that they propose to 6 consider obtaining from or having carried out or permitting 7 to be obtained from or carried out outside Australia together 8 with their reasons therefor and shall, if required by the 9 Minister, consult with the Minister with respect thereto. 10 11 (5) The Joint Venturers may withdraw their proposals pursuant 12 to subclause (1) at any time before approval thereof, or 13 where any decision in respect thereof is referred to 14 arbitration as referred to in clause 9A, within 3 months after 15 the award by notice to the Minister that they shall not be 16 proceeding with the same."; 17 18 (7) by renumbering clause 9A as clause 9C and in subclause (4) 19 deleting "Clauses 7 and 8" and substituting "clauses 9(2) to (5) and 20 clause 9A"; 21 22 (8) by inserting after clause 9 the following new clauses: 23 24 "Consideration of Joint Venturers' proposals under clause 9 25 26 9A. (1) In respect of each proposal pursuant to subclause (1) 27 of clause 9 the Minister shall: 28 29 (a) subject to the limitations set out below, refuse 30 to approve the proposal (whether it requests the 31 grant of new tenure or not) if the Minister is 32 satisfied on reasonable grounds that it is not in 33 the public interest for the proposals to be 34 approved; or 35 36 (b) approve of the proposal without qualification or 37 reservation; or 38 39 (c) defer consideration of or decision upon the 40 same until such time as the Joint Venturers page 726 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 submit a further proposal or proposals in 2 respect of some other of the matters mentioned 3 in clause 9(1) not covered by the said proposal; 4 or 5 6 (d) require as a condition precedent to the giving of 7 his approval to the said proposal that the Joint 8 Venturers make such alteration thereto or 9 comply with such conditions in respect thereto 10 as he thinks reasonable, and in such a case the 11 Minister shall disclose his reasons for such 12 conditions, 13 14 PROVIDED ALWAYS that where implementation of 15 any proposals hereunder has been approved pursuant 16 to the EP Act subject to conditions or procedures, any 17 approval or decision of the Minister under this clause 18 shall if the case so requires incorporate a requirement 19 that the Joint Venturers make such alterations to the 20 proposals as may be necessary to make them accord 21 with those conditions or procedures. 22 23 In considering whether to refuse to approve a 24 proposal the Minister is to assess whether or not the 25 implementation of the proposal by itself, or together 26 with any one or more of the other submitted 27 proposals, will: 28 29 (i) detrimentally affect economic and orderly 30 development in the said State, including 31 without limitation, infrastructure development 32 in the said State; or 33 34 (ii) be contrary to or inconsistent with the planning 35 and development policies and objectives of the 36 State; or 37 38 (iii) detrimentally affect the rights and interests of 39 third parties; or 40 page 727 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 (iv) detrimentally affect access to and use by others 2 of the lands the subject of any grant or proposed 3 grant to the Joint Venturers. 4 5 The right to refuse to approve a proposal conferred by 6 paragraph (a) may only be exercised in respect of a 7 proposal where the Minister is satisfied on reasonable 8 grounds that a purpose of the proposal is the 9 integrated use of works installations or facilities (as 10 defined in subclause (7) of clause 11C for the purpose 11 of that clause) as contemplated by clause 11C. It may 12 not be so exercised in respect of a proposal if pursuant 13 to clause 9B(5) the Minister, prior to the submission 14 of the proposal, advised the Joint Venturers in writing 15 that the Minister has no public interest concerns (as 16 defined in that clause) with the single preferred 17 development (as referred to in clause 9B(5)(a)) the 18 subject of the submitted proposals and those proposals 19 are consistent (as to their substantive scope and 20 content) with the information provided to the Minister 21 pursuant to clause 9B(5) in respect of that single 22 preferred development. 23 24 (2) The Minister shall within 2 months after receipt of 25 proposals pursuant to clause 9(1) give notice to the 26 Joint Venturers of his decision in respect to the 27 proposals, PROVIDED THAT where a proposal is to 28 be assessed under Part IV of the EP Act the Minister 29 shall only give notice to the Joint Venturers of his 30 decision in respect to the proposal within 2 months 31 after service on him of an authority under section 32 45(7) of the EP Act. 33 34 (3) If the decision of the Minister is as mentioned in either 35 of paragraphs (a), (c) or (d) of subclause (1) the 36 Minister shall afford the Joint Venturers full 37 opportunity to consult with him and should they so 38 desire to submit new or revised proposals either 39 generally or in respect to some particular matter. 40 page 728 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 (4) If the decision of the Minister is as mentioned in either 2 of paragraphs (c) or (d) of subclause (1) and the Joint 3 Venturers consider that the decision is unreasonable 4 the Joint Venturers within 2 months after receipt of the 5 notice mentioned in subclause (2) may elect to refer to 6 arbitration in the manner hereinafter provided the 7 question of the reasonableness of the decision 8 PROVIDED THAT any requirement of the Minister 9 pursuant to the proviso to subclause (1) shall not be 10 referable to arbitration hereunder. A decision of the 11 Minister under paragraph (a) of subclause (1) shall not 12 be referable to arbitration under this Agreement. 13 14 (5) If by the award made on the arbitration pursuant to 15 subclause (4) the dispute is decided in favour of the 16 Joint Venturers the decision shall take effect as a 17 notice by the Minister that he is so satisfied with and 18 approves the matter or matters the subject of the 19 arbitration. 20 21 (6) The Joint Venturers shall implement the approved 22 proposals in accordance with the terms thereof. 23 24 (7) Notwithstanding clause 45, the Minister may during 25 the implementation of approved proposals approve 26 variations to those proposals. 27 28 Notification of possible proposals 29 30 9B. (1) If the Joint Venturers, upon completion of a pre- 31 feasibility study in respect of any matter that would 32 require the submission and approval of proposals 33 pursuant to this Agreement (being proposals which 34 will have as their purpose, or one of their purposes, the 35 integrated use of works installations or facilities as 36 contemplated by clause 11C) for the matter to be 37 undertaken, intends to further consider the matter with 38 a view to possibly submitting such proposals they shall 39 promptly notify the Minister in writing giving 40 reasonable particulars of the relevant matter. 41 page 729 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 (2) Within one (1) month after receiving the notification 2 the Minister may, if the Minister so wishes, inform the 3 Joint Venturers of the Minister's views of the matter at 4 that stage. 5 6 (3) If the Joint Venturers are informed of the Minister's 7 views, they shall take them into account in deciding 8 whether or not to proceed with their consideration of 9 the matter and the submission of proposals. 10 11 (4) Neither the Minister's response nor the Minister 12 choosing not to respond shall in any way limit, 13 prejudice or otherwise affect the exercise by the 14 Minister of the Minister's powers, or the performance 15 of the Minister's obligations, under this Agreement or 16 otherwise under the laws from time to time of the said 17 State. 18 19 (5) (a) This subclause applies where the Joint 20 Venturers have settled upon a single preferred 21 development a purpose of which is the 22 integrated use of works installations or facilities 23 (as defined in subclause (7) of clause 11C for 24 the purpose of that clause) as contemplated by 25 clause 11C. 26 27 (b) For the purpose of this subclause "public 28 interest concerns" means any concern that 29 implementation of the single preferred 30 development or any part of it will: 31 32 (i) detrimentally affect economic and 33 orderly development in the said State, 34 including without limitation, 35 infrastructure development in the said 36 State; or 37 38 (ii) be contrary to or inconsistent with the 39 planning and development policies and 40 objectives of the State; or 41 page 730 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 (iii) detrimentally affect the rights and 2 interests of third parties; or 3 4 (iv) detrimentally affect access to and use by 5 others of lands the subject of any grant or 6 proposed grant to the Joint Venturers. 7 (c) At any time prior to submission of proposals the 8 Joint Venturers may give to the Minister notice 9 of their single preferred development and 10 request the Minister to confirm that the Minister 11 has no public interest concerns with that single 12 preferred development. 13 14 (d) The Joint Venturers shall furnish to the Minister 15 with their notice reasonable particulars of the 16 single preferred development including, without 17 limitation: 18 19 (i) as to the matters that would be required 20 to be addressed in submitted proposals; 21 and 22 23 (ii) their progress in undertaking any 24 feasibility or other studies or matters to 25 be completed before submission of 26 proposals; and 27 28 (iii) their timetable for obtaining required 29 statutory and other approvals in relation 30 to the submission and approval of 31 proposals; and 32 33 (iv) their tenure requirements. 34 35 (e) If so required by the Minister, the Joint 36 Venturers will provide to the Minister such 37 further information regarding the single 38 preferred development as the Minister may 39 require from time to time for the purpose of 40 considering the Joint Venturers' request and also 41 consult with the Minister or representatives or page 731 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 officers of the State in regard to the single 2 preferred development. 3 4 (f) Within 2 months after receiving the notice (or if 5 the Minister requests further information, within 6 2 months after the provision of that information) 7 the Minister must advise the Joint Venturers: 8 9 (i) that the Minister has no public interest 10 concerns with the single preferred 11 development; or 12 13 (ii) that he is not then in a position to advise 14 that he has no public interest concerns 15 with the single preferred development and 16 the Minister's reasons in that regard. 17 18 (g) If the Minister gives the advice mentioned in 19 paragraph (f)(ii) the Joint Venturers may, 20 should they so desire, give a further request to 21 the Minister in respect of a revised or alternate 22 single preferred development and the provisions 23 of this subclause shall apply mutatis mutandis 24 thereto."; 25 26 (9) in clause 11(2) by deleting "Minister for Minerals and Energy" and 27 substituting "Minister for Mines"; 28 29 (10) by inserting after subclause (8) of clause 11 the following new 30 subclauses: 31 32 "Blending of iron ore 33 34 (9) (a) The Joint Venturers may blend iron ore mined from 35 the mineral lease with any: 36 37 (i) iron ore mined from a mining tenement or 38 other mining title granted under, or pursuant to, 39 an Integration Agreement; or 40 page 732 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 (ii) iron ore mined from a Mining Act 1978 mining 2 lease located in, or proximate to, the Pilbara 3 region of the said State which is held by a 4 Related Entity alone or with a third party or 5 parties (excluding any mining lease granted 6 pursuant to, or held under, a Government 7 agreement); or 8 9 (iii) with the prior approval of the Minister, iron ore 10 mined in, or proximate to, the Pilbara region of 11 the said State under a Government agreement 12 (excluding an Integration Agreement); or 13 14 (iv) with the prior approval of the Minister, iron ore 15 mined by a third party from a Mining Act 1978 16 mining lease located in, or proximate to, the 17 Pilbara region of the said State (excluding 18 under a Government agreement) which has 19 been purchased by an Integration Proponent 20 from the third party. 21 22 (b) The authority given under paragraph (a) is subject to 23 the Minister being reasonably satisfied that there are 24 in place adequate systems and controls for the correct 25 apportionment of the quantities of iron ore being 26 blended as between each of the sources referred to in 27 paragraph (a), which systems and controls monitor 28 production, processing, transportation, stockpiling and 29 shipping of all such iron ore. If at any time the 30 Minister ceases to be so satisfied he may, after 31 consulting the Joint Venturers and provided the Joint 32 Venturers have not within three (3) months after the 33 commencement of such consultation addressed the 34 matters of concern to the Minister to his satisfaction, 35 by notice in writing to the Joint Venturers suspend the 36 above authority in respect of the relevant blending 37 arrangements until he is again satisfied in terms of 38 this paragraph (b). 39 40 (c) If any blending of iron ore occurs as contemplated by 41 this subclause, then for the purposes of clauses 31(1) page 733 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 and (2), a portion of the iron ore so blended being 2 equal to the proportion that the amount of iron ore 3 from the mineral lease used in the admixture of iron 4 ore bears to the total amount of iron ore so blended, 5 shall be deemed to be produced from the mineral 6 lease. 7 8 Shipment of and price for iron ore 9 10 (10) Throughout the continuance of this Agreement the Joint 11 Venturers shall ship, or procure the shipment of, all iron ore 12 mined from the mineral lease, and sold: 13 14 (a) from the Joint Venturers' wharf; or 15 16 (b) from any other wharf in a loading port which wharf 17 has been constructed under an Integration Agreement; 18 or 19 20 (c) with the Minister's approval given before submission 21 of proposals in that regard, from any other wharf in a 22 loading port which wharf has been constructed under 23 another Government agreement (excluding the 24 Integration Agreements), 25 26 and use their best endeavours to obtain therefor the best 27 price possible having regard to market conditions from time 28 to time prevailing PROVIDED THAT iron ore from the 29 mineral lease may be sold by the Joint Venturers prior to or 30 at the time of the shipment under this Agreement at a price 31 equal to the production costs in respect of that iron ore up to 32 the point of sale, if: 33 34 (i) the Minister is notified before the time of shipment 35 that the sale is to be made at cost, providing details of 36 the proposed sale; and 37 38 (ii) the Minister is notified of the proposed arm's length 39 purchaser in the relevant international seaborne iron 40 ore market of the iron ore the subject of the proposed 41 sale at cost; and page 734 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 2 (iii) there is included in the return lodged pursuant to 3 clause 31(2) particulars of the transaction in which the 4 ore sold at cost was subsequently purchased in the 5 relevant international seaborne iron ore market by an 6 arm's length purchaser specifying the purchaser, the 7 seller, the price and the date when the sale was agreed 8 between the arm's length purchaser and the seller; and 9 10 (iv) the arm's length purchaser referred to in (iii) above is 11 not then a designated purchaser as referred to below. 12 13 If required by notice in writing from the Minister, the Joint 14 Venturers must provide the Minister within 30 days after receiving 15 the notice with evidence that the transaction as included in the 16 return pursuant to paragraph (iii) above was a sale in the relevant 17 international seaborne iron ore market to an independent 18 participant in that market. If no evidence is provided or the 19 Minister is not so satisfied on the evidence provided or other 20 information obtained, the Minister may by notice to the Joint 21 Venturers designate the purchaser to be a designated purchaser and 22 that designation will remain in force unless and until lifted by 23 further notice from the Minister to the Joint Venturers. For the 24 avoidance of doubt and without limiting the Minister discretion 25 above, the parties acknowledge that marketing entities forming part 26 of a corporate group that includes the majority Joint Venturer (or 27 part of a parallel corporate group if that Joint Venturer is part of a 28 dual-listed corporate structure) are not independent participants for 29 the purposes of this subclause."; 30 31 (11) in subclause (7) of clause 11A by deleting paragraphs (b) and (c) 32 and substituting the following new paragraph: 33 34 "(b) The provisions of clauses 7(2), 7(5), 9(2) to (5) and 9A shall 35 apply to detailed proposals submitted pursuant to this 36 subclause."; 37 page 735 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 (12) by inserting after clause 11A the following new clauses: 2 "Additional areas 3 4 11B. (1) Notwithstanding the provisions of the Mining Act 5 1904 or the Mining Act 1978 the Joint Venturers may 6 from time to time during the currency of this 7 Agreement apply to the Minister for areas held by the 8 Joint Venturers or an associated company under a 9 mining tenement granted under the Mining Act 1978 10 to be included in the mineral lease but so that the total 11 area of the mineral lease, any land that may be 12 included in the mineral lease pursuant to this 13 Agreement and of any other mineral lease or mining 14 lease granted under or pursuant to this Agreement (as 15 aggregated) shall not at any time exceed 777 square 16 kilometres. The Minister shall confer with the 17 Minister for Mines in regard to any such application 18 and if they approve the application the Minister for 19 Mines shall upon the surrender of the relevant mining 20 tenement include the area the subject thereof in the 21 mineral lease by endorsement subject to such of the 22 conditions of the surrendered mining tenement as the 23 Minister for Mines determines but otherwise subject 24 to the same terms covenants and conditions as apply 25 to the mineral lease (with such apportionment of rents 26 as is necessary) and notwithstanding that the survey of 27 such additional land has not been completed but 28 subject to correction to accord with the survey when 29 completed at the Joint Venturers' expense. 30 31 (2) The Minister may approve, upon application by the 32 Joint Venturers from time to time, for the total area 33 referred to in subclause (1) to be increased up to a 34 limit not exceeding 1,000 square kilometres. 35 36 (3) The Joint Venturers shall not mine or carry out other 37 activities (other than exploration, bulk sampling and 38 testing) on any area or areas added to the mineral 39 lease pursuant to subclause (1) of this clause unless 40 and until proposals with respect thereto are approved page 736 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 or determined pursuant to the subsequent provisions 2 of this clause. 3 4 (4) If the Joint Venturers desire to commence mining of 5 iron ore or to carry out any other activities (other than 6 as aforesaid) on the said areas they shall give notice 7 of such desire to the Minister and shall within 2 8 months of the date of such notice (or thereafter within 9 such extended time as the Minister may allow as 10 hereinafter provided) and subject to the provisions of 11 this Agreement submit to the Minister to the fullest 12 extent reasonably practicable their detailed proposals 13 (which proposals shall include plans where practicable 14 and specifications where reasonably required by the 15 Minister) with respect to such mining or other 16 activities as additional proposals pursuant to clauses 9 17 or 11A as the case may be. 18 19 Integrated use of works installations or facilities under the 20 Integration Agreements 21 22 11C. (1) Subject to subclauses (2) to (7) of this clause and to 23 the other provisions of this Agreement, the Joint 24 Venturers may during the continuance of this 25 Agreement: 26 27 (a) use any existing or new works installations or 28 facilities constructed or held: 29 30 (i) under this Agreement; or 31 32 (ii) under any other Integration Agreement 33 which are made available for such use 34 and during the continuance of such 35 Integration Agreement; or 36 37 (iii) with the approval of the Minister, under a 38 Government agreement (excluding an 39 Integration Agreement) which are made 40 available for such use and during the 41 continuance of that agreement, page 737 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 2 (wholly or in part) in the activities of the Joint 3 Venturers carried on by them pursuant to this 4 Agreement including, without limitation, as part 5 of those activities, transporting by railway and 6 shipping from a loading port and undertaking 7 any ancillary and incidental activities in doing 8 so (including, without limitation, blending 9 permitted by clause 11(9)) of: 10 11 (A) iron ore mined from a Mining Act 1978 12 mining lease located in, or proximate to, 13 the Pilbara region of the said State which 14 is held by a Related Entity alone or with 15 a third party or parties (excluding any 16 mining lease granted pursuant to, or held 17 under, a Government agreement); 18 19 (B) with the prior approval of the Minister, 20 iron ore mined in, or proximate to, the 21 Pilbara region of the said State under a 22 Government agreement (excluding an 23 Integration Agreement); 24 25 (C) with the prior approval of the Minister, 26 iron ore mined by a third party from a 27 Mining Act 1978 mining lease located in, 28 or proximate to, the Pilbara region of the 29 said State (excluding under a 30 Government agreement) which has been 31 purchased by the Joint Venturers from 32 the third party; 33 34 (D) iron ore mined under an Integration 35 Agreement; 36 37 (b) make any existing or new works installations or 38 facilities constructed or held under this 39 Agreement available for use (wholly or partly) 40 by another Integration Proponent during the 41 continuance of its Integration Agreement in the page 738 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 activities of that Integration Proponent carried 2 on by it pursuant to its Integration Agreement 3 including, without limitation, as part of those 4 activities, transporting by railway and shipping 5 from a loading port and undertaking any 6 ancillary and incidental activities in doing so 7 (including, without limitation, blending 8 permitted by that Integration Agreement) of: 9 10 (i) iron ore mined from a Mining Act 1978 11 mining lease located in, or proximate to, 12 the Pilbara region of the said State which 13 is held by a Related Entity alone or with 14 a third party or parties (excluding any 15 mining lease granted pursuant to, or held 16 under, a Government agreement); 17 18 (ii) with the prior approval of the Minister 19 (as defined in that Integration 20 Agreement), iron ore mined in, or 21 proximate to, the Pilbara region of the 22 said State under a Government agreement 23 (excluding an Integration Agreement); 24 25 (iii) with the prior approval of the Minister 26 (as defined in the Integration 27 Agreement), iron ore mined by a third 28 party from a Mining Act 1978 mining 29 lease located in, or proximate to, the 30 Pilbara region of the said State 31 (excluding under a Government 32 agreement) which has been purchased by 33 that Integration Proponent from the third 34 party; 35 36 (iv) iron ore mined under an Integration 37 Agreement; 38 39 (c) make any existing or new works installations or 40 facilities constructed or held under this page 739 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 Agreement available for use (wholly or partly) 2 in connection with operations under: 3 4 (i) a Mining Act 1978 mining lease located 5 in, or proximate to, the Pilbara region of 6 the said State, for iron ore, which is held 7 by a Related Entity alone or with a third 8 party or parties (excluding any mining 9 lease granted pursuant to, or held under a 10 Government agreement); or 11 12 (ii) with the approval of the Minister, a 13 Government agreement (other than an 14 Integration Agreement) for the mining of 15 iron ore in, or proximate to, the Pilbara 16 region of the said State; 17 18 (d) subject to subclause (2), under this Agreement 19 and for the purpose of any use or making 20 available for use referred to in paragraph (a), 21 (b) or (c) connect any existing or new works 22 installations or facilities constructed or held 23 under this Agreement to any existing or new 24 works installations or facilities constructed or 25 held under another Integration Agreement; 26 27 (e) subject to subclause (2), under this Agreement 28 and for the purpose of any use or making 29 available for use referred to in paragraph (a), 30 (b) or (c) or making of any connection referred 31 to in paragraph (d) construct new works 32 installations or facilities and expand modify or 33 otherwise vary any existing and new works 34 installations or facilities constructed or held 35 under this Agreement; 36 37 (f) allow a railway or rail spur line (not being a 38 railway or rail spur line constructed or held 39 under an Integration Agreement) to be 40 connected to a railway or rail spur line or other 41 works installations or facilities constructed or page 740 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 held under this Agreement for the delivery of 2 iron ore to an Integration Proponent for 3 transport by railway and shipping from a 4 loading port (together with any ancillary and 5 incidental activities in doing so) as part of its 6 activities under its Integration Agreement; and 7 8 (g) allow an electricity transmission line (not being 9 an electricity transmission line constructed or 10 held under an Integration Agreement) to be 11 connected to an electricity transmission line 12 constructed or held under this Agreement for 13 the supply of electricity permitted to be made 14 under an Integration Agreement. 15 16 (2) (a) A connection referred to in subclause (1)(d) or 17 construction, expansion, modification or other 18 variation referred to in subclause (1)(e) by the 19 Joint Venturers shall, to the extent not already 20 authorised under this Agreement as at the 21 variation date, be regarded as a significant 22 modification expansion or other variation of the 23 Joint Venturers' activities carried on by them 24 pursuant to this Agreement and may only be 25 made in accordance with proposals submitted 26 and approved or determined under this 27 Agreement in accordance with clauses 9 and 9A 28 or clauses 11A or 11E as the case may require 29 and otherwise in compliance with the 30 provisions of this Agreement and the laws from 31 time to time of the said State. For the avoidance 32 of doubt, the parties acknowledge that any use 33 or making available for use contemplated by 34 subclause (1)(a), (1)(b) or (1)(c) shall not 35 otherwise than as required by this paragraph (a) 36 require the submission and approval of further 37 proposals under this Agreement. 38 page 741 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 (b) The Joint Venturers shall not be entitled to: 2 3 (i) submit proposals to construct any new 4 port or to establish harbour or port works 5 installations or facilities, or to expand 6 modify or otherwise vary harbour or 7 works installations or facilities otherwise 8 than in accordance with their rights (if 9 any) under this Agreement as those rights 10 stood immediately prior to the variation 11 date; or 12 13 (ii) generate and supply power, take and 14 supply water or dispose of water 15 otherwise than in accordance with the 16 other clauses of this Agreement and 17 subject to any restrictions contained in 18 those clauses; or 19 20 (iii) without limiting subparagraphs (i) and 21 (ii) submit proposals to construct or 22 establish works installations or facilities 23 of a type, or to make expansions, 24 modifications or other variations of 25 works installations or facilities of a type, 26 which in the Minister's reasonable 27 opinion this Agreement, immediately 28 before the variation date, did not permit 29 or contemplate the Joint Venturers 30 constructing, establishing or making as 31 the case may be otherwise than for 32 integration use as contemplated by 33 subclauses (1)(a), (1)(b) or (1)(c) or as 34 permitted by clause 11E; or 35 36 (iv) submit proposals to make a connection as 37 referred to in subclause (1)(d) or a 38 construction, expansion, modification or 39 other variation as referred to in subclause 40 (1)(e) otherwise than on tenure granted 41 under or pursuant to this Agreement from page 742 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 time to time or held pursuant to this 2 Agreement from time to time; or 3 4 (v) submit proposals to make a connection 5 referred to in subclause (1)(d) or a 6 construction, expansion, modification or 7 other variation as referred to in subclause 8 (1)(e) for the purpose of use as 9 contemplated by subclause (1)(c)(i), if in 10 the reasonable opinion of the Minister 11 the activity which is the subject of the 12 proposals would give to the holder or 13 holders of the relevant Mining Act 1978 14 mining lease the benefit of rights or 15 powers granted to the Joint Venturers 16 under this Agreement, over and above 17 the right of access to and use of the 18 relevant works, installations or facilities; 19 or 20 21 (vi) submit proposals to make a connection as 22 referred to in subclause (1)(d) or a 23 construction, expansion, modification or 24 other variation as referred to in subclause 25 (1)(e) for the purpose of use as 26 contemplated by subclause (1)(c) and 27 involving the grant of tenure without the 28 prior approval of the Minister; or 29 30 (vii) submit proposals to assign, sublet, transfer 31 or dispose of any works installations or 32 facilities constructed or held under this 33 Agreement or any leases, licences, 34 easements or other titles under or pursuant 35 to this Agreement for any purpose referred 36 to in this clause. 37 38 (c) Notwithstanding the provisions of clauses 9B, 39 11B, and 11E, the Minister may defer 40 consideration of, or a decision upon, a proposal 41 submitted by the Joint Venturers for a page 743 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 connection as referred to in subclause (1)(d) or 2 a construction, expansion, modification or other 3 variation as referred to in subclause (1)(e), for 4 the purpose of use or making available for use 5 as referred to in subclauses (1)(a) or (1)(b), 6 until relevant corresponding proposals under 7 the relevant Integration Agreement have been 8 submitted and those proposals can be approved 9 under that Integration Agreement concurrently 10 with the Minister's approval under this 11 Agreement of the Joint Venturers' proposal. 12 13 (3) Any use or making available for use as referred to in 14 subclause (1), or submission of proposals as referred 15 to in subclause (2), in respect of a Related Entity shall 16 be subject to the Joint Venturers first confirming with 17 the Minister that the Minister is satisfied that the 18 relevant company is a Related Entity. 19 20 (4) The Joint Venturers shall give the Minister prior 21 written notice of any significant change (other than a 22 temporary one for maintenance or to respond to an 23 emergency) proposed in their use, or in their making 24 available for use, works, installations or facilities as 25 referred to in this clause: 26 27 (a) from that authorised under this Agreement 28 immediately before the variation date; and 29 30 (b) subsequently from that previously notified to 31 the Minister under this subclause, 32 33 as soon as practicable before such change occurs. 34 35 The Joint Venturers shall also keep the Minister fully 36 informed with respect to any proposed connection as 37 referred to in subclause (1)(f) or (1)(g) or request of 38 the Joint Venturers for such connection to be allowed. 39 page 744 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 (5) Nothing in this Agreement shall be construed to: 2 3 (a) exempt another Integration Proponent from 4 complying with, or the application of, the 5 provisions of its Integration Agreement; or 6 7 (b) restrict the Joint Venturers' rights under clause 8 40. 9 10 For the avoidance of doubt the approval of proposals 11 under this Agreement shall not be construed as 12 authorising another Integration Proponent to 13 undertake any activities under this Agreement or 14 under another Integration Agreement. 15 16 (6) Nothing in this clause shall be construed to exempt 17 the Joint Venturers from complying with, or the 18 application of, the other provisions of this Agreement 19 including, without limitation, clause 40 and of 20 relevant laws from time to time of the said State. 21 22 (7) For the purpose of this clause "works installations or 23 facilities" means any: 24 25 (a) harbour or port works installations or facilities 26 including, without limitation, stockpiles, 27 reclaimers, conveyors and wharves; 28 29 (b) railway or rail spur lines; 30 31 (c) track structures and systems associated with the 32 operation and maintenance of a railway 33 including, without limitation, sidings, train 34 control and signalling systems, maintenance 35 workshops and terminal yards; 36 37 (d) train loading and unloading works installations 38 or facilities; 39 40 (e) conveyors; 41 page 745 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 (f) private roads; 2 3 (g) mine aerodrome and associated aerodrome 4 works installations and facilities; 5 6 (h) iron ore mining, crushing, screening, 7 beneficiation or other processing works 8 installations or facilities; 9 10 (i) mine administration buildings including, 11 without limitation, offices, workshops and 12 medical facilities; 13 14 (j) borrow pits; 15 16 (k) accommodation and ancillary facilities 17 including, without limitation, construction 18 camps and in townsites constructed pursuant to 19 and held under any Integration Agreement; 20 21 (l) water, sewerage, electricity, gas and 22 telecommunications works installations and 23 facilities including, without limitation, 24 pipelines, transmission lines and cables; and 25 26 (m) any other works installations or facilities 27 approved of by the Minister for the purpose of 28 this clause. 29 30 Transfer of rights to shared works installations or facilities 31 32 11D. (1) For the purposes of this clause "Relevant 33 Infrastructure" means any works installations or 34 facilities (as defined in clause 11C(7)): 35 36 (a) constructed or held under another Integration 37 Agreement; 38 39 (b) which the Joint Venturers are using in their 40 activities pursuant to this Agreement; 41 page 746 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 (c) which the Minister is satisfied (after consulting 2 with the Joint Venturers and the Integration 3 Proponent for that other Integration 4 Agreement): 5 6 (i) are no longer required by that other 7 Integration Proponent to carry on its 8 activities pursuant to its Integration 9 Agreement because of the cessation of 10 the Integration Proponent's mining 11 operations in respect of which such 12 Relevant Infrastructure was constructed 13 or held or because of any other reason 14 acceptable to the Minister; and 15 16 (ii) are required by the Joint Venturers to 17 continue to carry on their activities 18 pursuant to this Agreement; and 19 20 (d) in respect of which that other Integration 21 Proponent has notified the Minister it consents 22 to the Joint Venturers submitting proposals as 23 referred to in subclause (2). 24 25 (2) The Joint Venturers may as an additional proposal 26 pursuant to clause 9 propose: 27 28 (a) that they be granted a lease licence or other title 29 over the Relevant Infrastructure pursuant to this 30 Agreement subject to and conditional upon the 31 other Integration Proponent surrendering 32 wholly or in part (and upon such terms as the 33 Minister considers reasonable including any 34 variation of terms to address environmental 35 issues) its lease licence or other title over the 36 Relevant Infrastructure; or 37 38 (b) that the other Integration Proponent's lease 39 licence or other title (not being a mineral lease, 40 mining lease or other right to mine title granted 41 under a Government agreement, the Mining Act page 747 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 1904 or the Mining Act 1978) to the Relevant 2 Infrastructure be transferred to this Agreement 3 (to be held by the Joint Venturers pursuant to 4 this Agreement) with such surrender of land 5 from it and variations of its terms as the 6 Minister considers reasonable for that title to be 7 held under this Agreement including, without 8 limitation, to address environmental issues and 9 outstanding obligations of that other Integration 10 Proponent under its Integration Agreement in 11 respect of that Relevant Infrastructure. 12 13 The provisions of clause 9A shall mutatis mutandis 14 apply to any such additional proposal. In addition the 15 Joint Venturers acknowledge that the Minister may 16 require variations of the other Integration Agreement 17 and/or proposals under it or of this Agreement in 18 order to give effect to the matters contemplated by 19 this clause. 20 21 (3) This clause shall cease to apply in the event the State 22 gives any notice of default to the Joint Venturers 23 pursuant to clause 42(1) and while such notice 24 remains unsatisfied. 25 26 Miscellaneous Licences for Railways 27 28 11E. (1) In this clause subject to the context: 29 30 "Additional Infrastructure" means: 31 32 (a) Train Loading Infrastructure; 33 34 (b) Train Unloading Infrastructure; 35 36 (c) a conveyor, train unloading and other 37 infrastructure necessary for the transport of iron 38 ore, freight goods or other products from the 39 Railway (directly or indirectly) to port facilities 40 within a loading port, 41 page 748 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 in each case located outside a Port; 2 3 "LAA" means the Land Administration Act 1997 4 (WA); 5 6 "Lateral Access Roads" has the meaning given in 7 subclause (3)(a)(iv); 8 9 "Lateral Access Road Licence" means a miscellaneous 10 licence granted pursuant to subclause (6)(a)(ii) or 11 subclause (6)(b) as the case may be and according to 12 the requirements of the context describes the area of 13 land from time to time the subject of that licence; 14 15 "Port" means any port the subject of the Port 16 Authorities Act 1999 (WA) or the Shipping and 17 Pilotage Act 1967 (WA); 18 19 "Private Roads" means Lateral Access Roads and the 20 Joint Venturers' access roads within a Railway 21 Corridor; 22 23 "Rail Safety Act" means the Rail Safety Act 1998 24 (WA); 25 26 "Railway" means a standard gauge heavy haul railway 27 or railway spur line, located or to be located as the 28 case may be in, or proximate to, the Pilbara region of 29 the said State (but outside the boundaries of a Port) 30 for the transport of iron ore, freight goods and other 31 products together with all railway track, associated 32 track structures including sidings, turning loops, over 33 or under track structures, supports (including supports 34 for equipment or items associated with the use of a 35 railway) tunnels, bridges, train control systems, 36 signalling systems, switch and other gear, 37 communication systems, electric traction 38 infrastructure, buildings (excluding office buildings, 39 housing and freight centres), workshops and 40 associated plant, machinery and equipment and 41 including rolling stock maintenance facilities, terminal page 749 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 yards, depots, culverts and weigh bridges which 2 railway is or is to be (as the case may be) the subject 3 of approved proposals under subclause (4) and 4 includes any expansion or extension thereof outside a 5 Port which is the subject of additional proposals 6 approved in accordance with subclause (5); 7 8 "Railway Corridor" means, prior to the grant of a 9 Special Railway Licence, the land for the route of the 10 Railway the subject of that licence, access roads (other 11 than Lateral Access Roads), areas from which stone, 12 sand, clay and gravel may be taken, temporary 13 accommodation facilities for the railway workforce, 14 water bores and Additional Infrastructure (if any) 15 which is the subject of a subsisting agreement 16 pursuant to subclause (3)(a) and after the grant of the 17 Special Railway Licence the land from time to time 18 the subject of that Special Railway Licence; 19 20 "Railway Operation" means the construction and 21 operation under this Agreement of the relevant 22 Railway and associated access roads and Additional 23 Infrastructure (if any) within the relevant Railway 24 Corridor and of the associated Lateral Access Roads, 25 in accordance with approved proposals; 26 27 "Railway spur line" means a standard gauge heavy 28 haul railway spur line located or to be located in, or 29 proximate to, the Pilbara region of the said State (but 30 outside a Port) connecting to a Railway for the 31 transport of iron ore, freight goods and other products 32 upon the Railway to (directly or indirectly) a loading 33 port; 34 35 "Railway Operation Date" means the date of the first 36 carriage of iron ore, freight goods or other products 37 over the relevant Railway (other than for construction 38 or commissioning purposes); 39 40 "Railway spur line Operation Date" means the date of 41 the first carriage of iron ore, freight goods or other page 750 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 products over the relevant Railway spur line (other 2 than for construction or commissioning purposes); 3 4 "Special Railway Licence" means the relevant 5 miscellaneous licence for railway and, if applicable, 6 other purposes, granted to the Joint Venturers pursuant 7 to subclause (6)(a)(i) as varied in accordance with 8 subclause (6)(h) or subclause (6)(i) and according to 9 the requirements of the context describes the area of 10 land from time to time the subject of that licence; 11 12 "Train Loading Infrastructure" means conveyors, 13 stockpile areas, blending and screening facilities, 14 stackers, re-claimers and other infrastructure 15 reasonably required for the loading of iron ore, freight 16 goods or other products onto the relevant Railway for 17 transport (directly or indirectly) to a loading port; and 18 19 "Train Unloading Infrastructure" means train 20 unloading infrastructure reasonably required for the 21 unloading of iron ore from the Railway to be 22 processed, or blended with other iron ore, at 23 processing or blending facilities in the vicinity of that 24 train unloading infrastructure and with the resulting 25 iron ore products then loaded on to the Railway for 26 transport (directly or indirectly) to a loading port. 27 28 Joint Venturers to obtain prior Ministerial in-principle 29 approval 30 31 (2) (a) If the Joint Venturers wish, from time to time 32 during the continuance of this Agreement, to 33 proceed under this clause with a plan to develop 34 a Railway they shall give notice thereof to the 35 Minister and furnish to the Minister with that 36 notice an outline of their plan. 37 38 (b) The Minister shall within one month of a notice 39 under paragraph (a) advise the Joint Venturers 40 whether or not he approves in-principle the 41 proposed plan. The Minister shall afford the page 751 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 Joint Venturers full opportunity to consult with 2 him in respect of any decision of the Minister 3 under this paragraph. 4 5 (c) The Minister's in-principle approval in respect 6 of a proposed plan shall lapse if the Joint 7 Venturers have not submitted detailed proposals 8 to the Minister in respect of that plan in 9 accordance with this clause within 18 months of 10 the Minister's in-principle approval. 11 12 Railway Corridor 13 14 (3) (a) If the Minister gives in-principle approval to a 15 plan of the Joint Venturers to develop a Railway 16 they shall consult with the Minister to seek the 17 agreement of the Minister as to: 18 19 (i) where the Railway will begin and end; 20 and 21 22 (ii) a route for the Railway, access roads to 23 be within the Railway Corridor and the 24 land required for that route as well as 25 Additional Infrastructure (if any) 26 including, without limitation, areas from 27 which stone, sand, clay and gravel may 28 be taken, temporary accommodation 29 facilities for the railway workforce and 30 water bores; and 31 32 (iii) in respect of Additional Infrastructure (if 33 any) the nature and capacity of such 34 Additional Infrastructure; and 35 36 (iv) the routes of, and the land required for, 37 roads outside the Railway Corridor (and 38 also outside a Port) for access to it to 39 construct the Railway (such roads as 40 agreed being "Lateral Access Roads"). 41 page 752 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 In seeking such agreement, regard shall be had 2 to achieving a balance between engineering 3 matters including costs, the nature and use of 4 any lands concerned and interests therein and 5 the costs of acquiring the land (all of which 6 shall be borne by the Joint Venturers). The 7 parties acknowledge the intention is for the 8 Joint Venturers to construct the Railway, the 9 access roads for the construction and 10 maintenance of the Railway which are to be 11 within the Railway Corridor and the relevant 12 Additional Infrastructure (if any) along the 13 centreline of the Railway Corridor subject to 14 changes in that alignment to the extent 15 necessary to avoid heritage, environmental or 16 poor ground conditions that are not identified 17 during preliminary investigation work, and 18 recognise the width of the Railway Corridor 19 may need to vary along its route to 20 accommodate Additional Infrastructure (if any), 21 access roads, areas from which stone, sand, clay 22 and gravel may be taken, temporary 23 accommodation facilities for the railway 24 workforce and water bores. The provisions of 25 clause 49 shall not apply to this subclause. 26 27 (b) If the date by which the Joint Venturers must 28 submit detailed proposals under subclause (4)(a) 29 (as referred to in subclause (2)(c)) is extended or 30 varied by the Minister pursuant to clause 46, any 31 agreement made pursuant to paragraph (a) 32 before such date is extended or varied shall 33 unless the Minister notifies the Joint Venturers 34 otherwise be deemed to be at an end and neither 35 party shall have any claim against the other in 36 respect of it. 37 38 (c) The Joint Venturers acknowledge that they 39 shall be responsible for liaising with every title 40 holder in respect of the land affected and for 41 obtaining in a form and substance acceptable to page 753 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 the Minister all unconditional and irrevocable 2 consents of each such title holder to, and all 3 statutory consents required in respect of the 4 land affected for: 5 6 (i) the grant of the Special Railway Licence 7 for the construction, operation and 8 maintenance within the Railway 9 Corridor of the Railway, access roads 10 and Additional Infrastructure (if any) to 11 be within the Railway Corridor; and 12 13 (ii) the grant of Lateral Access Road 14 Licences for the construction, use and 15 maintenance of Lateral Access Roads 16 over the routes for the Lateral Access 17 Roads agreed pursuant to paragraph (a); 18 and 19 20 (iii) the inclusion of additional land in the 21 Special Railway Licence as referred to in 22 subclause (6)(h) or subclause (6)(i), 23 24 in accordance with this clause. For the 25 purposes of this subclause (3)(c), "title holder" 26 means a management body (as defined in the 27 LAA) in respect of any part of the affected land, 28 a person who holds a mining, petroleum or 29 geothermal energy right (as defined in the 30 LAA) in respect of any part of the affected land, 31 a person who holds a lease or licence under the 32 LAA in respect of any part of the affected land, 33 a person who holds any other title granted 34 under or pursuant to a Government agreement 35 in respect of any part of the affected land, a 36 person who holds a lease or licence in respect 37 of any part of the affected land under any other 38 Act applying in the said State and a person in 39 whom any part of the affected land is vested, 40 immediately before the provision of such 41 consents to the Minister as referred to in page 754 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 subclause (4)(e)(ii) (including as applying 2 pursuant to subclause 5(d)). 3 4 Joint Venturers to submit proposals for Railway 5 6 (4) (a) The Joint Venturers shall, subject to the EP Act, 7 the provisions of this Agreement, agreement at 8 that time subsisting in respect of the matters 9 required to be agreed pursuant to subclause 10 3(a), submit to the Minister by the latest date 11 applying under subclause (2)(c) to the fullest 12 extent reasonably practicable their detailed 13 proposals (including plans where practicable 14 and specifications where reasonably required by 15 the Minister and any other details normally 16 required by a local government in whose area 17 any works are to be situated) with respect to the 18 undertaking of the relevant Railway Operation, 19 which proposals shall include the location, area, 20 layout, design, materials and time program for 21 the commencement and completion of 22 construction or the provision (as the case may 23 be) of each of the following matters namely: 24 25 (i) the Railway including fencing (if any) 26 and crossing places within the Railway 27 Corridor; 28 29 (ii) Additional Infrastructure (if any) within 30 the Railway Corridor; 31 32 (iii) temporary accommodation and ancillary 33 temporary facilities for the railway 34 workforce on, or in the vicinity of, the 35 Railway Corridor and housing and other 36 appropriate facilities elsewhere for the 37 Joint Venturers' workforce; 38 39 (iv) water supply; 40 41 (v) energy supplies; page 755 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 2 (vi) access roads within the Railway Corridor 3 and Lateral Access Roads both along the 4 routes for those roads agreed between the 5 Minister and the Joint Venturers pursuant 6 to subclause 3(a); 7 8 (vii) any other works, services or facilities 9 desired by the Joint Venturers; and 10 11 (viii) use of local labour, professional services, 12 manufacturers, suppliers contractors and 13 materials and measures to be taken with 14 respect to the engagement and training of 15 employees by the Joint Venturers, their 16 agents and contractors. 17 18 (b) Proposals pursuant to paragraph (a) must specify 19 the matters agreed for the purpose pursuant to 20 subclause (3)(a) and must not be contrary to or 21 inconsistent with such agreed matters. 22 23 (c) Each of the proposals pursuant to paragraph (a) 24 may with the approval of the Minister, or must if 25 so required by the Minister, be submitted 26 separately and in any order as to the matter or 27 matters mentioned in one or more of 28 subparagraphs (i) to (viii) of paragraph (a) and 29 until all of its proposals under this subclause 30 have been approved the Joint Venturers may 31 withdraw and may resubmit any proposal but the 32 withdrawal of any proposal shall not affect the 33 obligations of the Joint Venturers to submit a 34 proposal under this subclause in respect of the 35 subject matter of the withdrawn proposal. 36 37 (d) The Joint Venturers shall, whenever any of the 38 following matters referred to in this subclause 39 are proposed by the Joint Venturers (whether 40 before or during the submission of proposals 41 under this subclause), submit to the Minister page 756 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 details of any services (including any elements 2 of the project investigations, design and 3 management) and any works, materials, plant, 4 equipment and supplies that they propose to 5 consider obtaining from or having carried out or 6 permitting to be obtained from or carried out 7 outside Australia, together with their reasons 8 therefor and shall, if required by the Minister 9 consult with the Minister with respect thereto. 10 11 (e) At the time when the Joint Venturers submit the 12 last of the said proposals pursuant to this 13 subclause, they shall: 14 15 (i) furnish to the Minister's reasonable 16 satisfaction evidence of all accreditations 17 under the Rail Safety Act which are 18 required to be held by the Joint Venturers 19 or any other person for the construction of 20 the Railway; and 21 22 (ii) furnish to the Minister the written 23 consents referred to in subclause (3)(c)(i) 24 and (3)(c)(ii). 25 26 (f) The provisions of clause 9A shall apply mutatis 27 mutandis to detailed proposals submitted under 28 this subclause. 29 30 Additional Railway Proposals 31 32 (5) (a) If the Joint Venturers at any time during the currency of 33 a Special Railway Licence desire to construct a 34 Railway spur line (connecting to the Railway the 35 subject of that Special Railway Licence) or desire to 36 significantly modify, expand or otherwise vary their 37 activities within the land the subject of the Special 38 Railway Licence that are the subject of this Agreement 39 and that may be carried on by them pursuant to this 40 Agreement (other than by the construction of a Railway 41 spur line) beyond those activities specified in any page 757 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 approved proposals for that Railway, they shall give 2 notice of such desire to the Minister and furnish to the 3 Minister with that notice an outline of their proposals in 4 respect thereto (including, without limitation, such 5 matters mentioned in subclause (4)(a) as are relevant or 6 as the Minister otherwise requires). 7 8 (b) If the notice relates to a Railway spur line, or to the 9 construction of Train Loading Infrastructure or Train 10 Unloading Infrastructure on land outside the then 11 Railway Corridor, the Minister shall within one month 12 of receipt of such notice advise the Joint Venturers 13 whether or not he approves in-principle the proposed 14 construction of such spur line, Train Loading 15 Infrastructure or Train Unloading Infrastructure. If the 16 Minister gives in-principle approval the Joint Venturers 17 may (but not otherwise) submit detailed proposals in 18 respect thereof provided that the provisions of 19 subclause (3) shall mutatis mutandis apply prior to 20 submission of detailed proposals in respect thereof. 21 22 (c) Subject to the EP Act, the provisions of this Agreement 23 and agreement at that time subsisting in respect of any 24 matters required to be agreed pursuant to subclause 25 (3)(a) (as referred to in paragraph (b)), the Joint 26 Venturers shall submit to the Minister within a 27 reasonable timeframe, as determined by the Minister 28 after receipt of the notice referred to in paragraph (a) 29 (or in the case of a notice referred to in paragraph (b) 30 the giving of the Minister's in-principle consent as 31 referred to in that paragraph), detailed proposals in 32 respect of the proposed construction of such Railway 33 spur line, Train Loading Infrastructure, Train 34 Unloading Infrastructure or other proposed 35 modification, expansion or variation of its activities 36 including such of the matters mentioned in subclause 37 (4)(a) as the Minister may require. 38 39 (d) The provisions of subclause (4) (with the date for 40 submission of proposals being read as the date or time 41 determined by the Minister under paragraph (c) and the page 758 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 reference in subclause (4)(e)(ii) to subclause (3)(c)(i) 2 being read as a reference to subclause (3)(c)(iii)) and of 3 clause 9A shall mutatis mutandis apply to detailed 4 proposals submitted pursuant to this subclause. 5 6 Grant of Tenure 7 8 (6) (a) On application made by the Joint Venturers to the 9 Minister in such manner as the Minister may 10 determine, not later than 3 months after all their 11 proposals submitted pursuant to subclause (4)(a) have 12 been approved or deemed to be approved and the 13 Joint Venturers have complied with the provisions of 14 subclause (4)(e), the State notwithstanding the Mining 15 Act 1978 shall cause to be granted to the Joint 16 Venturers: 17 18 (i) a miscellaneous licence to conduct within the 19 Railway Corridor and in accordance with their 20 approved proposals all activities (including the 21 taking of stone, sand, clay and gravel, the 22 provision of temporary accommodation facilities 23 for the railway workforce and, subject to the 24 Rights in Water and Irrigation Act 1914 (WA), 25 the operation of water bores) necessary for the 26 planning, design, construction, commissioning, 27 operation and maintenance within the Railway 28 Corridor of the Railway, access roads and 29 Additional Infrastructure (if any) ("the Special 30 Railway Licence") such licence to be granted 31 under and subject to, except as otherwise 32 provided in this Agreement, the Mining Act 33 1978 in the form of the Second Schedule hereto 34 and subject to such terms and conditions as the 35 Minister for Mines may from time to time 36 consider reasonable and at a rental calculated in 37 accordance with the Mining Act 1978: 38 39 (A) prior to the Railway Operation Date, as 40 if the width of the Railway Corridor 41 were 100 metres; and page 759 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 2 (B) on and from the Railway Operation Date, 3 at the rentals from time to time 4 prescribed under the Mining Act 1978; 5 and 6 7 (ii) a miscellaneous licence or licences to allow the 8 construction, use and maintenance of Lateral 9 Access Roads within the routes agreed for those 10 Lateral Access Roads under subclause (3)(a) 11 (each a "Lateral Access Road Licence"), each 12 such licence to be granted under and subject to, 13 except as otherwise provided in this Agreement, 14 the Mining Act 1978 in the form of the Third 15 Schedule hereto and subject to such terms and 16 conditions as the Minister for Mines may from 17 time to time consider reasonable and at the 18 rentals from time to time prescribed under the 19 Mining Act 1978. 20 21 (b) On application made by the Joint Venturers to the 22 Minister in such manner as the Minister may 23 determine, not later than 3 months after their 24 proposals submitted pursuant to subclause (5)(a) for 25 the construction of Lateral Access Roads for access to 26 the Railway Corridor to construct a Railway spur line 27 have been approved or deemed to be approved and the 28 Joint Venturers have complied with the provisions of 29 subclause (4)(e) (as applying pursuant to subclause 30 (5)(d)), the State notwithstanding the Mining Act 31 1978 shall cause to be granted to the Joint Venturers a 32 miscellaneous licence or licences to allow the 33 construction, use and maintenance of Lateral Access 34 Roads within the routes agreed for those Lateral 35 Access Roads under subclause (3)(a)) (as applying 36 pursuant to subclause (5)(b)) (each a "Lateral Access 37 Road Licence"), each such licence to be granted under 38 and subject to, except as otherwise provided in this 39 Agreement, the Mining Act 1978 in the form of the 40 Fourth Schedule hereto and subject to such terms and 41 conditions as the Minister for Mines may from time to page 760 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 time consider reasonable and at the rentals from time 2 to time prescribed under the Mining Act 1978. 3 4 (c) Notwithstanding the Mining Act 1978, the term of the 5 Special Railway Licence shall, subject to the sooner 6 determination thereof on the cessation or sooner 7 determination of this Agreement, be for a period of 50 8 years commencing on the date of grant thereof. 9 10 (d) Notwithstanding the Mining Act 1978, the term of any 11 Lateral Access Road Licence shall, subject to the 12 sooner determination thereof on the cessation or 13 sooner determination of this Agreement, be for a 14 period of 4 years commencing on the date of grant 15 thereof. 16 17 (e) Notwithstanding the Mining Act 1978, and except as 18 required to do so by the terms of the Special Railway 19 Licence, the Joint Venturers shall not be entitled to 20 surrender the Special Railway Licence or any Lateral 21 Access Road Licence or any part or parts of them 22 without the prior consent of the Minister. 23 24 (f) (i) The Joint Venturers may in accordance with 25 approved proposals take stone, sand, clay and 26 gravel from the Railway Corridor for the 27 construction, operation and maintenance of the 28 Railway constructed within or approved for 29 construction within the Railway Corridor. 30 31 (ii) Notwithstanding the Mining Act 1978 no 32 royalty shall be payable under the Mining Act 33 1978 in respect of stone, sand, clay and gravel 34 which the Joint Venturers are permitted by 35 subparagraph (i) to obtain from the land the 36 subject of the Special Railway Licence. 37 38 (g) For the purposes of this Agreement and without 39 limiting the operation of paragraphs (a) to (f) inclusive 40 above, the application of the Mining Act 1978 and the 41 regulations made thereunder are specifically modified; page 761 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 2 (i) in section 91(1) by: 3 4 (A) deleting "the mining registrar or the 5 warden, in accordance with section 42 6 (as read with section 92)" and 7 substituting "the Minister"; 8 9 (B) deleting "any person" and substituting 10 "the Joint Venturers (as defined in the 11 agreement authorised by and as 12 scheduled to the Iron Ore (McCamey's 13 Monster) Agreement Authorisation Act 14 1972, as from time to time added to, 15 varied or amended)"; 16 17 (C) deleting "for any one or more of the 18 purposes prescribed" and substituting 19 "for the purpose specified in clause 20 11E(6)(a)(i), clause 11E(6)(a)(ii) or 21 clause 11E(6)(b), of the agreement 22 authorised by and as scheduled to the 23 Iron Ore (McCamey's Monster) 24 Agreement Authorisation Act 1972, as 25 from time to time added to, varied or 26 amended"; 27 28 (ii) in section 91(3)(a), by deleting "prescribed 29 form" and substituting "form required by the 30 agreement authorised by and as scheduled to 31 the Iron Ore (McCamey's Monster) Agreement 32 Authorisation Act 1972, as from time to time 33 added to, varied or amended"; 34 35 (iii) by deleting sections 91(6), 91(9), 91(10) and 36 91B; 37 38 (iv) in section 92, by deleting "Sections 41, 42, 44, 39 46, 46A, 47 and 52 apply," and inserting 40 "Section 46A (excluding in subsection (2)(a) 41 "the mining registrar, the warden or") applies," page 762 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 and by deleting "in those provisions" and 2 inserting "in that provision"; 3 4 (v) by deleting the full stop at the end of the 5 section 94(1) and inserting, "except to the 6 extent otherwise provided in, or to the extent 7 that such terms and conditions are inconsistent 8 with, the agreement authorised by and as 9 scheduled to the Iron Ore (McCamey's 10 Monster) Agreement Authorisation Act 1972, as 11 from time to time added to, varied or 12 amended"; 13 14 (vi) by deleting sections 94(2), (3) and (4); 15 16 (vii) in section 96(1), by inserting after 17 "miscellaneous licence" the words "(not being a 18 miscellaneous licence granted pursuant to the 19 agreement authorised by and as scheduled to 20 the Iron Ore (McCamey's Monster) Agreement 21 Authorisation Act 1972, as from time to time 22 added to, varied or amended"; 23 24 (viii) by deleting mining regulations 37(2), 37(3), 42 25 and 42A; and 26 27 (ix) by inserting at the beginning of mining 28 regulations 41(c) and (f) the words "subject to 29 the agreement authorised by and as scheduled 30 to the Iron Ore (McCamey's Monster) 31 Agreement Authorisation Act 1972, as from 32 time to time added to, varied or amended". 33 34 (h) If additional proposals are approved in accordance with 35 subclause (5) for the construction of a Railway spur line 36 outside the then Railway Corridor, the Minister for Mines 37 shall include the area of land within which such construction 38 is to occur in the Special Railway Licence by endorsement. 39 The area of such land may be included notwithstanding that 40 the survey of the land has not been completed but subject to page 763 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 correction to accord with the survey when completed at the 2 Joint Venturers' expense. 3 4 (i) If additional proposals are approved in accordance with 5 subclause (5) for the construction of Train Loading 6 Infrastructure or Train Unloading Infrastructure outside the 7 then Railway Corridor, the Minister for Mines shall include 8 the area of such land within which such infrastructure is 9 approved for construction in the Special Railway Licence by 10 endorsement. The area of such land may be included 11 notwithstanding that the survey of the land has not been 12 completed but subject to correction to accord with the survey 13 when completed at the Joint Venturers' expense. 14 15 (j) The provisions of this subclause shall not operate so as to 16 require the State to cause a Special Railway Licence or a 17 Lateral Access Road Licence to be granted or any land 18 included in the Special Railway Licence as mentioned above 19 until all processes necessary under any laws relating to 20 native title to enable that grant or inclusion of land to 21 proceed, have been completed. 22 23 Construction and operation of Railway 24 page 764 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 2 (7) (a) Subject to and in accordance with approved proposals, the 3 Rail Safety Act and the grant of the relevant Special Railway 4 Licence and any associated Lateral Access Road Licences 5 the Joint Venturers shall in a proper and workmanlike 6 manner and in accordance with recognised standards for 7 railways of a similar nature operating under similar 8 conditions construct the Railway and associated Additional 9 Infrastructure and access roads within the Railway Corridor 10 and shall also construct inter alia any necessary sidings, 11 crossing points, bridges, signalling switches and other works 12 and appurtenances and provide for crossings and (where 13 appropriate and required by the Minister) grade separation or 14 other protective devices including flashing lights and boom 15 gates at places where the Railway crosses or intersects with 16 major roads or existing railways. 17 18 (b) The Joint Venturers shall while the holder of a Special 19 Railway Licence: 20 21 (i) keep the Railway the subject of that licence in an 22 operable state; and 23 24 (ii) ensure that the Railway the subject of that licence is 25 operated in a safe and proper manner in compliance 26 with all applicable laws from time to time; and 27 28 (iii) without limiting subparagraph (ii) ensure that the 29 obligations imposed under the Rail Safety Act on an 30 owner and an operator (as those terms are therein 31 defined) are complied with in connection with the 32 Railway the subject of that licence. 33 34 Nothing in this Agreement shall be construed to exempt the 35 Joint Venturers or any other person from compliance with 36 the Rail Safety Act or limit its application to the Joint 37 Venturers' operations generally (except as otherwise may be 38 provided in that Act or regulations made under it). 39 40 (c) The Joint Venturers shall provide crossings for livestock and 41 also for any roads, other railways, conveyors, pipelines and page 765 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 other utilities which exist at the date of grant of the relevant 2 Special Railway Licence or in respect of land subsequently 3 included in it at the date of such inclusion and the Joint 4 Venturers shall on reasonable terms and conditions allow 5 such crossings for roads, railways, conveyors, pipelines and 6 other utilities which may be constructed for future needs and 7 which may be required to cross a Railway constructed 8 pursuant to this clause. 9 10 (d) Subject to clause 11D, the Joint Venturers shall at all times 11 be the holder of Special Railway Licences and Lateral 12 Access Road Licences granted pursuant to this clause and 13 (without limiting clause 40A but subject to clause 11D) shall 14 at all times own manage and control the use of each Railway 15 the subject of a Special Railway Licence held by the Joint 16 Venturers. 17 18 (e) The Joint Venturers shall not be entitled to exclusive 19 possession of the land the subject of a Special Railway 20 Licence or Lateral Access Road Licence granted pursuant to 21 this clause to the intent that the State, the Minister, the 22 Minister for Mines and any persons authorised by any of 23 them from time to time shall be entitled to enter upon the 24 land or any part of it at all reasonable times and on 25 reasonable notice with all necessary vehicles, plant and 26 equipment and for purposes related to this Agreement or 27 such other purposes as they think fit but in doing so shall be 28 subject to the reasonable directions of the Joint Venturers so 29 as not to unreasonably interfere with the Joint Venturers' 30 operations. 31 32 (f) The Joint Venturers' ownership of a Railway constructed 33 pursuant to this clause shall not give them an interest in the 34 land underlying it. 35 36 (g) The Joint Venturers shall not at any time without the prior 37 consent of the Minister dismantle, sell or otherwise dispose 38 of any part or parts of any Railway constructed pursuant to 39 this clause, or permit this to occur, other than for the purpose 40 of maintenance, repair, upgrade or renewal. 41 page 766 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 (h) The Joint Venturers shall, subject to and in accordance with 2 approved proposals, in a proper and workmanlike manner, 3 construct any Additional Infrastructure, access roads, Lateral 4 Access Roads and other works approved for construction 5 under this clause. 6 7 (i) The Joint Venturers shall while the holder of a Special 8 Railway Licence at all times keep and maintain in good 9 repair and working order and condition (which obligation 10 includes, where necessary, replacing or renewing all parts 11 which are worn out or in need of replacement or renewal due 12 to their age or condition) the Railway, access roads and 13 Additional Infrastructure (if any) the subject of that licence 14 and all such other works installations plant machinery and 15 equipment for the time being the subject of this Agreement 16 and used in connection with the operation use and 17 maintenance of that Railway, access roads and Additional 18 Infrastructure (if any). 19 20 (j) Subject to clause 11D, the Joint Venturers shall: 21 22 (i) be responsible for the cost of construction and 23 maintenance of all Private Roads constructed pursuant 24 to this clause; and 25 26 (ii) at their own cost erect signposts and take other steps 27 that may be reasonable in the circumstances to 28 prevent any persons and vehicles (other than those 29 engaged upon the Joint Venturers' activities and their 30 invitees and licensees) from using the Private Roads; 31 and 32 33 (iii) at any place where any Private Roads are constructed 34 by the Joint Venturers so as to cross any railways or 35 public roads provide at their cost such reasonable 36 protection and signposting as may be required by the 37 Commissioner of Main Roads or the Public Transport 38 Authority as the case may be. 39 40 (k) The provisions of clauses 19(2a) and (3) regarding third 41 party access shall apply mutatis mutandis to any Railway or page 767 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 Railway spur line constructed pursuant to this clause except 2 that the Joint Venturers shall not be obliged to transport 3 passengers upon any such Railway or Railway spur line. 4 5 Aboriginal Heritage Act 1972 (WA) 6 7 (8) For the purposes of this clause the Aboriginal Heritage Act 1972 8 (WA) applies as if it were modified by: 9 10 (a) the insertion before the full stop at the end of section 18(1) 11 of the words: 12 13 "and the expression "the Joint Venturers" means the persons 14 from time to time comprising "the Joint Venturers" in their 15 capacity as such under the agreement authorised by and 16 scheduled to the Iron Ore (McCamey's Monster) Agreement 17 Authorisation Act 1972, as from time to time added to, 18 varied or amended in relation to the use or proposed use of 19 land pursuant to clause 11E of that agreement after and in 20 accordance with approved proposals under clause 11E of that 21 agreement and in relation to the use of that land before any 22 such approval of proposals where the Joint Venturers have 23 the requisite authority to enter upon and so use the land"; 24 25 (b) the insertion in sections 18(2), 18(4), 18(5) and 18(7) of the 26 words "or the Joint Venturers as the case may be" after the 27 words "owner of any land"; 28 29 (c) the insertion in section 18(3) of the words "or the Joint 30 Venturers as the case may be" after the words "the owner"; 31 32 (d) the insertion of the following sentences at the end of section 33 18(3): 34 35 "In relation to a notice from the Joint Venturers the 36 conditions that the Minister may specify can as appropriate 37 include, among other conditions, a condition restricting the 38 Joint Venturers' use of the relevant land to after the approval 39 or deemed approval as the case may be under the 40 abovementioned agreement of all of the Joint Venturers' 41 submitted initial proposals thereunder for the Railway page 768 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 Operation (as defined in clause 11E(1) of the 2 abovementioned agreement), or in the case of additional 3 proposals submitted or to be submitted by the Joint 4 Venturers to after the approval or deemed approval under 5 that agreement of such additional proposals, and to the extent 6 so approved. "; and 7 8 (e) the insertion in sections 18(2) and 18(5) of the words "or it 9 as the case may be" after the word "he". 10 11 The Joint Venturers acknowledge that nothing in this subclause (8) 12 nor the granting of any consents under section 18 of the Aboriginal 13 Heritage Act 1972 (WA) will constitute or is to be construed as 14 constituting the approval of any proposals submitted or to be 15 submitted by the Joint Venturers under this Agreement or as the 16 grant or promise of land tenure for the purposes of this Agreement. 17 18 Taking of land for the purposes of this clause 19 20 (9) (a) The State is hereby empowered, as and for a public work 21 under Parts 9 and 10 of the LAA, to take for the purposes of 22 this clause any land (other than any part of a Port) which in 23 the opinion of the Joint Venturers is necessary for the 24 relevant Railway Operation and which the Minister 25 determines is appropriate to be taken for the relevant 26 Railway Operation (except any land the taking of which 27 would be contrary to the provisions of a Government 28 agreement entered into before the submission of the 29 proposals relating to the proposed taking) and 30 notwithstanding any other provisions of that Act may license 31 that land to the Joint Venturers. 32 33 (b) In applying Parts 9 and 10 of the LAA for the purposes of 34 this clause: 35 36 (i) "land" in that Act includes a legal or equitable estate 37 or interest in land; 38 39 (ii) sections 170, 171, 172, 173, 174, 175 and 184 of that 40 Act do not apply; and 41 page 769 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 (iii) that Act applies as if it were modified in section 2 177(2) by inserting - 3 (A) after "railway" the following - 4 "or land is being taken pursuant to a Government 5 agreement as defined in section 2 of the Government 6 Agreements Act 1979 (WA)"; and 7 (B) after "that Act" the following - 8 "or that Agreement as the case may be". 9 10 (c) The Joint Venturers shall pay to the State on demand the 11 costs of or incidental to any land taken at the request of and 12 on behalf of the Joint Venturers including but not limited to 13 any compensation payable to any holder of native title or of 14 native title rights and interests in the land. 15 16 Notification of Railway Operation Date 17 18 (10) (a) The Joint Venturers shall from the date occurring 6 months 19 before the date for completion of construction of a Railway 20 specified in their time program for the commencement and 21 completion of construction of that Railway submitted under 22 subclause (4)(a), keep the Minister fully informed as to: 23 24 (i) the progress of that construction and its likely 25 completion and commissioning; and 26 27 (ii) the likely Railway Operation Date. 28 29 (b) The Joint Venturers shall on the Railway Operation Date 30 notify the Minister that the first carriage of iron ore, freight 31 goods or other products as the case may be over the Railway 32 (other than for construction or commissioning purposes) has 33 occurred. 34 35 (c) The Joint Venturers shall from the date occurring 6 months 36 before the date for completion of construction of a Railway page 770 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 spur line specified in their time program for the 2 commencement and completion of construction of that spur 3 line submitted under subclause (5)(c) keep the Minister fully 4 informed as to: 5 6 (i) the progress of that construction and its likely 7 completion and commissioning; and 8 9 (ii) in respect of it, the likely Railway spur line Operation 10 Date. 11 12 (d) The Joint Venturers shall on the Railway spur line Operation 13 Date in respect of any Railway spur line notify the Minister 14 that the first carriage of iron ore, freight goods or other 15 products as the case may be over such spur line (other than 16 for construction or commissioning purposes) has occurred."; 17 18 (13) in clause 13(2)(ii) by deleting all the words after "the rental 19 payable thereunder shall be" and substituting "a commercial 20 rental"; 21 22 (14) by inserting after subclause (2) of clause 13 the following new 23 subclause: 24 25 "(2a) The provisions of subclauses (1) and (2) of this clause shall 26 not operate so as to require the State to grant or vary, or 27 cause to be granted or varied, any lease licence or other right 28 or title until all processes necessary under any laws relating 29 to native title to enable that grant or variation to proceed, 30 have been completed."; 31 32 (15) by deleting clause 19(4). 33 34 (16) by deleting clause 26; 35 36 (17) in clause 31(1): 37 38 (a) by deleting "The" and substituting "Subject to subclause 39 (1a), the"; 40 page 771 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 (b) by in paragraph (a): 2 3 (i) deleting "direct shipping ore" and substituting "lump 4 ore"; 5 6 (ii) deleting "and fines"; 7 8 (iii) deleting "or fines are" and substituting "is"; and 9 10 (iv) deleting "f.o.b. revenue (computed at the rate of 11 exchange prevailing on the date of receipt by the Joint 12 Venturers of the purchase price of such iron ore 13 products)" and substituting "f.o.b. value"; 14 15 (c) by in paragraph (aa) deleting "f.o.b. revenue" in both 16 subparagraphs (i) and (ii) and substituting "f.o.b. value"; 17 18 (d) by in paragraph (ab): 19 20 (i) deleting "and fines"; 21 22 (ii) deleting "or fines are" and substituting "is"; and 23 24 (iii) deleting "f.o.b. revenue (computed as mentioned in 25 paragraph (a) of this clause aforesaid)" and 26 substituting "f.o.b. value"; 27 28 (e) by in paragraph (ac): 29 30 (i) deleting "iron ore concentrates" and substituting 31 "beneficiated ore"; and 32 33 (ii) deleting "f.o.b. revenue (computed as mentioned in 34 paragraph (a) of this subclause)" and substituting 35 "f.o.b. value"; 36 37 (f) by in paragraph (b): 38 39 (i) deleting "3¾%" and substituting "7.5%"; and 40 page 772 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 (ii) deleting "f.o.b. revenue (computed as mentioned in 2 paragraph (a) of this subclause)" and substituting 3 "f.o.b. value"; and 4 5 (g) inserting after paragraph (h) and the following new 6 paragraphs: 7 8 "Where beneficiated ore is produced from an admixture of 9 iron ore from the mineral lease and other iron ore a portion 10 (and a portion only) of the beneficiated ore so produced 11 being equal to the proportion that the amount of iron in the 12 iron ore from the mineral lease used in the production of that 13 beneficiated ore bears to the total amount of iron in the iron 14 ore so used shall be deemed to be produced from iron ore 15 from the mineral lease. 16 17 Where for the purpose of determining f.o.b. value it is 18 necessary to convert an amount or price to Australian 19 currency, the conversion is to be calculated using a rate 20 (excluding forward hedge or similar contract rates) that has 21 been approved by the Minister at the request of the Joint 22 Venturers and in the absence of such request as determined 23 by the Minister to be a reasonable rate for the purpose. 24 25 The provisions of regulation 85AA (Effect of GST etc on 26 royalties) of the Mining Regulations 1981 (WA) shall apply 27 mutatis mutandis to the calculation of royalties under this 28 clause."; 29 30 (18) by inserting after subclause (1) of clause 31 the following new 31 subclause: 32 33 (1a) The Joint Venturers shall be relieved from liability to pay 34 royalty under this Agreement on iron ore products 35 purchased, shipped and sold by the Company (as defined in 36 the Mount Newman Agreement) if and to the extent that 37 royalty on such iron ore products has been paid in 38 accordance with clause 9(2)(ja) of the Mount Newman 39 Agreement. 40 page 773 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 (19) in clause 31(2): 2 3 (a) by inserting "and also showing such other information in 4 relation to the abovementioned iron ore as the Minister may 5 from time to time reasonably require in regard to, and to 6 assist in verifying, the calculation of royalties in accordance 7 with subclause (1)" after "due date of the return"; and 8 9 (b) deleting all the words after "calculated on the basis of" and 10 substituting a colon followed by: 11 12 "(i) in the case of iron ore initially sold at cost pursuant to 13 the proviso to clause 11(10), at the price notified 14 pursuant to paragraph (iii) of that proviso; 15 16 (ii) in any other case, invoices or provisional invoices (as 17 the case may be) rendered by the Joint Venturers to 18 the purchaser (which invoices the Joint Venturers 19 shall render without delay simultaneously furnishing 20 copies thereof to the Minister) of such iron ore or on 21 the basis of estimates as agreed or determined, and 22 23 and shall from time to time in the next following appropriate 24 return and payment make (by the return and by cash) all 25 such necessary adjustments (and give to the Minister full 26 details thereof) when the f.o.b. value shall have been finally 27 calculated, agreed or determined."; and 28 29 (c) deleting all references to "Minister for Minerals and Energy" 30 and substituting "Minister for Mines"; 31 32 (20) in clause 31(3): 33 34 (a) in paragraph (a) 35 36 (i) by in subparagraph (i)(A) deleting "and other 37 documents of the Joint Venturers relative to the Joint 38 Venturers' operations hereunder and" and substituting 39 ", documents, data and information of the Joint 40 Venturers stored by any means relating"; 41 page 774 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 (ii) by in subparagraph (i)(B) inserting "(in whatever 2 form)" after "copies" and by deleting "and other 3 documents" and substituting ", documents, data and 4 information"; and 5 6 (iii) by deleting all references to "Minister for Minerals 7 and Energy" and substituting "Minister for Mines"; 8 9 (b) in paragraph (b) by deleting all references to "Minister for 10 Minerals and Energy" and substituting "Minister for Mines"; 11 and 12 (c) by inserting a new paragraph (c) as follows: 13 14 "(c) The Joint Venturers shall cause to be produced in 15 Perth in the said State all books, records, accounts, 16 documents (including contracts), data and information 17 of the kind referred to in paragraph (a) to enable the 18 exercise of rights by the Minister for Mines or the 19 Minister's nominee under paragraph (a), regardless of 20 the location in which or by whom those books, 21 records, accounts, documents (including contracts), 22 data and information are stored from time to time."; 23 24 (21) by inserting after clause 40 the following new clause: 25 26 " Subcontracting 27 28 40A. Without affecting the liabilities of the parties under this 29 Agreement each of the State and the Joint Venturers will have the 30 right from time to time to entrust to third parties the carrying out of 31 any portions of the activities which it is authorised or obliged to 32 carry out hereunder."; 33 34 (22) in clause 42(1) by: 35 36 (a) in paragraph (a) inserting "granted hereunder or pursuant 37 hereto or held pursuant hereto" after "easement or other 38 title"; and 39 page 775 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 (b) in paragraph (c), and in the paragraph following it, inserting 2 "or held pursuant hereto" after "granted hereunder or 3 pursuant hereto"; 4 5 (23) in clause 42(2) by deleting "occupied by the Joint Venturers" and 6 substituting "the subject of any lease licence easement or other title 7 granted under or pursuant to this Agreement or held pursuant to 8 this Agreement"; 9 10 (24) in clause 43(1)(a) by inserting "or held pursuant hereto" after 11 "granted hereunder or pursuant hereto"; 12 13 (25) in clause 43(2) by inserting "or pursuant hereto or held pursuant 14 hereto" after "grant made hereunder"; 15 16 (26) by inserting the following sentence at the end of clause 44: 17 18 "As a separate independent indemnity the Joint Venturers will 19 indemnify and keep indemnified the State and its servants agents 20 and contractors in respect of all actions suits claims demands or 21 costs of third parties arising out of or in connection with any use, 22 making available for use or other activities of the Joint Venturers 23 as referred to in clause 11C."; 24 25 (27) in clause 45(1) by inserting "or held pursuant hereto" after "granted 26 hereunder or pursuant hereto"; and 27 28 (28) by inserting after the Schedule the following new schedules: 29 30 31 page 776 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 " SECOND SCHEDULE 2 3 WESTERN AUSTRALIA 4 5 IRON ORE (McCAMEY'S MONSTER) AGREEMENT 6 AUTHORISATION ACT 1972 7 8 MINING ACT 1978 9 10 MISCELLANEOUS LICENCE FOR A RAILWAY AND OTHER 11 PURPOSES 12 13 14 No. MISCELLANEOUS LICENCE [ ] 15 16 WHEREAS by the Agreement (hereinafter called "the Agreement") authorised 17 by and as scheduled to the Iron Ore (McCamey's Monster) Agreement 18 Authorisation Act 1972, as from time to time added to, varied or amended, the 19 State agreed to grant to [ ] (hereinafter with their successors and 20 permitted assigns called "the Joint Venturers") a miscellaneous licence for the 21 construction operation and maintenance of a Railway (as defined in clause 22 11E(1) of the Agreement and otherwise as provided in the Agreement) and, if 23 applicable, other purposes AND WHEREAS the Joint Venturers pursuant to 24 clause 11E(6)(a) of the Agreement have made application for the said licence; 25 26 NOW in consideration of the rents reserved by and the provisions of the 27 Agreement and in pursuance of the Iron Ore (McCamey's Monster) Agreement 28 Authorisation Act 1972, as from time to time added to, varied or amended, the 29 Joint Venturers are hereby granted by this licence authority to conduct on the 30 land the subject of this licence as more particularly delineated and described 31 from time to time in the Schedule hereto all activities (including the taking of 32 stone, sand, clay and gravel, the provision of temporary accommodation 33 facilities for the railway workforce in accordance with the Agreement and, 34 subject to the Rights in Water and Irrigation Act 1914 (WA), the operation of 35 water bores) necessary for the planning, design, construction, commissioning, 36 operation and maintenance on the land the subject of this licence of the Railway 37 and Additional Infrastructure (as defined in clause 11E(1) of the Agreement) 38 and access roads to be located on the land the subject of this licence in 39 accordance with the provisions of the Agreement and proposals approved under 40 the Agreement, for the term of 50 years from the date hereof (subject to the 41 sooner determination of the term upon the determination of the Agreement) and page 777 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 upon and subject to the terms covenants and conditions set out in the Agreement 2 and the Mining Act 1978 as it applies to this licence, and any amendments to the 3 Agreement and the Mining Act 1978 from time to time and to the terms and 4 conditions (if any) now or hereafter endorsed hereon and the payment of rentals 5 in respect of this licence in accordance with clause 11E(6)(a)(i) of the 6 Agreement PROVIDED ALWAYS that this licence shall not be determined or 7 forfeited otherwise than in accordance with the Agreement. 8 9 In this licence: 10 11 - If the Joint Venturers be more than one the liability of the Joint 12 Venturers hereunder shall be joint and several. 13 14 - Reference to an Act includes all amendments to that Act for the time 15 being in force and also any Act passed in substitution therefore or in 16 lieu thereof and to the regulations and by-laws of the time being in 17 force thereunder. 18 19 - Reference to "the Agreement" means such agreement as from time to 20 time added to, varied or amended. 21 22 - The terms "approved proposals", "Railway", "Railway Operation 23 Date", and "Railway spur line" have the meanings given in the 24 Agreement. 25 26 ENDORSEMENTS AND CONDITIONS 27 28 Endorsements 29 30 1. This licence is granted in accordance with proposals submitted on 31 [ ], and approved by the Minister (as defined in the Agreement) on 32 [ ], under the Agreement. 33 34 2. The Joint Venturers are permitted to, in accordance with approved 35 proposals, take stone, sand, clay and gravel from the land the subject 36 of this licence for the construction, operation and maintenance of the 37 Railway (including any Railway spur line) constructed within or 38 approved for construction within the area of land the subject of this 39 licence. 40 page 778 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 3. Notwithstanding the Mining Act 1978, no royalty shall be payable 2 under the Mining Act 1978 in respect of stone, sand, clay and gravel 3 which the Joint Venturers are permitted by the Agreement to obtain 4 from the land the subject of this licence. 5 6 4. [Any further endorsement which the Minister for Mines may, 7 consistent with the provisions of the Agreement, determines and 8 thereafter impose in respect of this licence including during the term 9 of the Agreement.] 10 11 Conditions 12 13 1. (a) Except as provided in paragraph (b), the Joint Venturers 14 shall within 2 years after the Railway Operation Date 15 surrender in accordance with the provisions of the Mining 16 Act 1978 the area of this licence down to a maximum of 100 17 metres width or as otherwise approved by the Minister (as 18 defined in the Agreement) for the safe operation of the 19 Railway then constructed or approved for construction under 20 approved proposals. 21 22 (b) Paragraph (a) shall not apply to land the subject of this 23 licence that was included in this licence pursuant to clause 24 11E(6)(h) or clause 11E(6)(i) of the Agreement. 25 26 2. The Joint Venturers shall as soon as possible after the construction of 27 a Railway spur line or of an expansion or extension thereof as the 28 case may be surrender in accordance with the Mining Act 1978 the 29 land the subject of this licence that was included in this licence 30 pursuant to clause 11E(6)(h) of the Agreement for the purpose of 31 such construction down to a maximum of 100 metres in width or as 32 otherwise approved by the Minister (as defined in the Agreement) for 33 the safe operation of that Railway spur line or expansion or extension 34 thereof as the case may be then constructed or approved for 35 construction under approved proposals. 36 37 3. [Any further conditions which the Minister for Mines may, consistent 38 with the provisions of the Agreement, determines and thereafter 39 impose in respect of this licence including during the term of the 40 Agreement.] 41 page 779 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 SCHEDULE 2 3 Land description 4 5 Locality: 6 Mineral Field 7 Area: 8 9 DATED at Perth this day of . 10 11 MINISTER FOR MINES 12 page 780 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 THIRD SCHEDULE 2 3 WESTERN AUSTRALIA 4 5 IRON ORE (McCAMEY'S MONSTER) AGREEMENT 6 AUTHORISATION ACT 1972 7 8 MINING ACT 1978 9 10 MISCELLANEOUS LICENCE FOR A LATERAL ACCESS ROAD 11 12 13 No. MISCELLANEOUS LICENCE [ ] 14 15 WHEREAS by the Agreement (hereinafter called "the Agreement") authorised 16 by and as scheduled to the Iron Ore (McCamey's Monster) Agreement 17 Authorisation Act 1972, as from time to time added to, varied or amended, the 18 State agreed to grant to [ ] (hereinafter with their successors and 19 permitted assigns called "the Joint Venturers") a miscellaneous licence for the 20 construction use and maintenance of a Lateral Access Road (as defined in the 21 Agreement) AND WHEREAS the Joint Venturers pursuant to clause 22 11E(6)(a)(ii) of the Agreement have made application for the said licence; 23 24 NOW in consideration of the rents reserved by and the provisions of the 25 Agreement and in pursuance of the Iron Ore (McCamey's Monster) Agreement 26 Authorisation Act 1972, as from time to time added to, varied or amended, the 27 Joint Venturers are hereby authorised to construct use and maintain a road on 28 the land more particularly delineated and described from time to time in the 29 Schedule hereto in accordance with the provisions of the Agreement and 30 proposals approved under the Agreement for a term of 4 years commencing on 31 the date hereof (subject to the sooner determination of the term upon the 32 cessation or determination of the Agreement) and for the purposes and upon and 33 subject to the terms covenants and conditions set out in the Agreement and the 34 Mining Act 1978 as it applies to this licence, and any amendments to the 35 Agreement and the Mining Act 1978 from time to time and to the terms and 36 conditions (if any) now or hereafter endorsed hereon and the payment of rentals 37 in respect of this licence in accordance with clause 11E(6)(a)(ii) of the 38 Agreement PROVIDED ALWAYS that this licence shall not be determined or 39 forfeited otherwise than in accordance with the Agreement. 40 page 781 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 In this licence: 2 3 - If the Joint Venturers be more than one the liability of the Joint 4 Venturers hereunder shall be joint and several. 5 6 - Reference to an Act includes all amendments to that Act for the time 7 being in force and also any Act passed in substitution therefore or in 8 lieu thereof and to the regulations and by-laws of the time being in 9 force thereunder. 10 11 - Reference to "the Agreement" means such agreement as from time to 12 time added to, varied or amended. 13 14 ENDORSEMENTS AND CONDITIONS 15 16 Endorsements 17 18 1. This licence is granted in accordance with proposals submitted on 19 [ ], and approved by the Minister (as defined in the Agreement) on 20 [ ], under the Agreement. 21 22 2. [Any further endorsement which the Minister for Mines may, 23 consistent with the provisions of the Agreement, determines and 24 thereafter impose in respect of this licence including during the term 25 of the Agreement.] 26 27 Conditions 28 29 [Such conditions which the Minister for Mines may, consistent with the 30 provisions of the Agreement, determines and thereafter impose in respect of the 31 licence, including during the term of the Agreement.] 32 33 page 782 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 SCHEDULE 2 3 Description of land 4 5 Locality: 6 Mineral Field: 7 Area: 8 9 DATED at Perth this day of . 10 11 MINISTER FOR MINES 12 page 783 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 FOURTH SCHEDULE 2 3 WESTERN AUSTRALIA 4 5 IRON ORE (McCAMEY'S MONSTER) AGREEMENT 6 AUTHORISATION ACT 1972 7 8 MINING ACT 1978 9 10 MISCELLANEOUS LICENCE FOR A LATERAL ACCESS ROAD 11 12 13 No. MISCELLANEOUS LICENCE [ ] 14 15 WHEREAS by the Agreement (hereinafter called "the Agreement") authorised 16 by and as scheduled to the Iron Ore (McCamey's Monster) Agreement 17 Authorisation Act 1972, as from time to time added to, varied or amended, the 18 State agreed to grant to [ ] (hereinafter with their successors and 19 permitted assigns called "the Joint Venturers") a miscellaneous licence for the 20 construction use and maintenance of a Lateral Access Road (as defined in the 21 Agreement) AND WHEREAS the Joint Venturers pursuant to clause 11E(6)(b) 22 of the Agreement have made application for the said licence; 23 24 NOW in consideration of the rents reserved by and the provisions of the 25 Agreement and in pursuance of the Iron Ore (McCamey's Monster) Agreement 26 Authorisation Act 1972, as from time to time added to, varied or amended, the 27 Joint Venturers are hereby authorised to construct use and maintain a road on 28 the land more particularly delineated and described from time to time in the 29 Schedule hereto in accordance with the provisions of the Agreement and 30 proposals approved under the Agreement for a term of 4 years commencing on 31 the date hereof (subject to the sooner determination of the term upon the 32 cessation or determination of the Agreement) and for the purposes and upon and 33 subject to the terms covenants and conditions set out in the Agreement and the 34 Mining Act 1978 as it applies to this licence, and any amendments to the 35 Agreement and the Mining Act 1978 from time to time and to the terms and 36 conditions (if any) now or hereafter endorsed hereon and the payment of rentals 37 in respect of this licence in accordance with clause 11E(6)(b) of the Agreement 38 PROVIDED ALWAYS that this licence shall not be determined or forfeited 39 otherwise than in accordance with the Agreement. 40 page 784 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 In this licence: 2 3 - If the Joint Venturers be more than one the liability of the Joint 4 Venturers hereunder shall be joint and several. 5 6 - Reference to an Act includes all amendments to that Act for the time 7 being in force and also any Act passed in substitution therefore or in 8 lieu thereof and to the regulations and by-laws of the time being in 9 force thereunder. 10 11 - Reference to "the Agreement" means such agreement as from time to 12 time added to, varied or amended. 13 14 ENDORSEMENTS AND CONDITIONS 15 16 Endorsements 17 18 1. This licence is granted in accordance with proposals submitted on 19 [ ], and approved by the Minister (as defined in the Agreement) on 20 [ ], under the Agreement. 21 22 2. [Any further endorsement which the Minister for Mines may, 23 consistent with the provisions of the Agreement, determines and 24 thereafter impose in respect of this licence including during the term 25 of the Agreement.] 26 27 Conditions 28 29 [Such conditions which the Minister for Mines may, consistent with the 30 provisions of the Agreement, determines and thereafter impose in respect of the 31 licence, including during the term of the Agreement.] 32 33 page 785 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 10 Iron Ore (McCamey's Monster) Agreement Act 1972 amended s. 43 1 SCHEDULE 2 3 Description of land 4 5 Locality: 6 Mineral Field: 7 Area: 8 9 DATED at Perth this day of . 10 11 MINISTER FOR MINES ". 12 page 786 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (McCamey's Monster) Agreement Act 1972 amended Part 10 s. 43 1 EXECUTED as a deed. 2 3 SIGNED by THE HONOURABLE ) 4 COLIN JAMES BARNETT ) [Signature] 5 in the presence of: ) 6 [Signature] STEPHEN WOOD 7 8 9 10 EXECUTED by BHP IRON ORE ) 11 (JIMBLEBAR) PTY. LTD. CAN ) 12 009 114 210 in accordance with section ) 13 127(1) of the Corporations Act ) 14 [Signature] [Signature] Signature of Director Signature of Director/Company Secretary 15 STEWART HART ROBIN B LEES Name of Director Name of Director/Company Secretary 16 page 787 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 44 1 Part 11 -- Iron Ore (Marillana Creek) Agreement 2 Act 1991 amended 3 44. Act amended 4 This Part amends the Iron Ore (Marillana Creek) Agreement 5 Act 1991. 6 45. Section 7 inserted 7 After section 6 insert: 8 9 7. Variation of Agreement about size of ore products 10 and applicable royalties 11 (1) In this section -- 12 Agreement means the agreement a copy of which is set 13 out in Schedule 1 -- 14 (a) as varied in accordance with its provisions 15 before 1 July 2010; and 16 (b) as varied by these agreements -- 17 (i) the First Variation Agreement; 18 (ii) the Second Variation Agreement; 19 and 20 (c) as varied by the Iron Ore Agreements 21 Legislation Amendment Act 2010 Part 4. 22 (2) Clause 1 of the Agreement is varied -- 23 (a) by deleting the definitions of "fine ore" and 24 "lump ore"; 25 (b) by inserting in alphabetical order -- 26 27 "fine ore" means iron ore (not being beneficiated ore or 28 pisolite fine ore) which is screened and will pass through a 29 6.3 millimetre mesh screen; page 788 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 45 1 "lump ore" means iron ore (not being beneficiated ore or 2 pisolite fine ore) which is screened and will not pass through 3 a 6.3 millimetre mesh screen; 4 "pisolite fine ore" means iron ore (not being beneficiated 5 ore) derived from channel iron ore deposits that appear to be 6 chemically precipitated sedimentary deposits comprised of a 7 pisolitic texture of hematite grains rimmed with goethite in a 8 goethitic matrix and: 9 (a) having a product gross loss on ignition of 8.5% or 10 greater; and 11 (b) which is screened and will pass through a 12 9.5 millimetre mesh screen; 13 14 (3) Clause 13(1) of the Agreement is varied -- 15 (a) in paragraph (ab) after "lump ore" by 16 inserting -- 17 18 and on fine ore and pisolite fine ore where such fine 19 ore and pisolite fine ore is not sold or shipped 20 separately as such 21 22 (b) in paragraph (ac) after "fine ore" by inserting -- 23 24 and on pisolite fine ore sold or shipped separately as 25 such 26 27 (4) Clause 13(1)(ab) and (ac) of the Agreement as varied 28 by subsection (3) operate and take effect despite -- 29 (a) any other provision of the Agreement; and 30 (b) any other agreement or instrument; and 31 (c) any other Act or law. 32 (5) Nothing in this section affects the amount of royalty 33 payable under clause 13 of the Agreement in respect of 34 any period before 1 July 2010. 35 page 789 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 46 1 46. Section 3 amended 2 (1) In section 3 insert in alphabetical order: 3 4 Third Variation Agreement means the agreement a 5 copy of which is set out in Schedule 4. 6 7 (2) In section 3 in the definition of Second Variation Agreement 8 delete "Schedule 3." and insert: 9 10 Schedule 3; 11 12 47. Section 4 amended 13 After section 4(3) insert: 14 15 (4) To avoid doubt, it is declared that the provisions of the 16 Public Works Act 1902 section 96 do not apply to a 17 railway constructed under the Agreement. 18 19 48. Sections 8 and 9 inserted 20 Before Schedule 1 insert: 21 22 8. Third Variation Agreement 23 (1) The Third Variation Agreement is ratified. 24 (2) The implementation of the Third Variation Agreement 25 is authorised. 26 (3) Without limiting or otherwise affecting the application 27 of the Government Agreements Act 1979, the Third page 790 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 Variation Agreement is to operate and take effect 2 despite any other Act or law. 3 9. State empowered under clause 14C(9)(a) 4 The State has power in accordance with 5 clause 14C(9)(a) of the Agreement. 6 7 49. Schedule 4 inserted 8 After Schedule 3 insert: page 791 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 Schedule 4 -- Third Variation Agreement 2 [s. 3] 3 2010 4 5 6 7 THE HONOURABLE COLIN JAMES BARNETT 8 PREMIER OF THE STATE OF WESTERN AUSTRALIA 9 10 AND 11 12 BHP BILLITON MINERALS PTY. LTD. 13 ACN 008 694 782 14 15 ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY. LTD. 16 ACN 009 256 259 17 18 MITSUI IRON ORE CORPORATION PTY. LTD. 19 ACN 050 157 456 20 21 22 23 24 25 IRON ORE (MARILLANA CREEK) AGREEMENT 1991 26 27 RATIFIED VARIATION AGREEMENT 28 29 30 31 32 [Solicitor's details] 33 34 35 36 37 38 39 page 792 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 THIS AGREEMENT is made this 17th day of November 2010 2 3 BETWEEN 4 5 6 THE HONOURABLE COLIN JAMES BARNETT MLA., Premier of the 7 State of Western Australia acting for and on behalf of the said State and its 8 instrumentalities from time to time (State) 9 10 AND 11 12 BHP BILLITON MINERALS PTY. LTD. ACN 008 694 782 of Level 17, St 13 Georges Square, 225 St Georges Terrace, Perth, Western Australia, ITOCHU 14 MINERALS & ENERGY OF AUSTRALIA PTY. LTD. ACN 009 256 259 15 of Level 22, 221 St Georges Terrace, Perth, Western Australia and MITSUI 16 IRON ORE CORPORATION PTY. LTD. ACN 050 157 456 of Level 16, 17 Exchange Plaza, 2 The Esplanade, Perth, Western Australia (Joint Venturers). 18 19 RECITALS 20 21 A. The State and the Joint Venturers are now the parties to the agreement 22 dated 20 December 1990 ratified by and scheduled to the Iron Ore 23 (Marillana Creek) Agreement Act 1991 and which as subsequently added 24 to, varied or amended is referred to in this Agreement as the "Principal 25 Agreement". 26 27 B. The State and the Joint Venturers wish to vary the Principal Agreement. 28 29 THE PARTIES AGREE AS FOLLOWS: 30 1. Subject to the context, the words and expressions used in this Agreement 31 have the same meanings respectively as they have in and for the purpose 32 of the Principal Agreement. 33 2. The State shall sponsor a Bill in the Parliament of Western Australia to 34 ratify this Agreement and shall endeavour to secure its passage as an Act 35 prior to 31 December 2010 or such later date as the parties may agree. page 793 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 3. (a) Clause 4 does not come into operation unless or until an Act passed 2 in accordance with clause 2 ratifies this Agreement. 3 (b) If by 30 June 2011, or such later date as may be agreed pursuant to 4 clause 2, clause 4 has not come into operation then unless the 5 parties hereto otherwise agree this Agreement shall cease and 6 determine and neither party shall have any claim against the other 7 party with respect to any matter or thing done or performed or 8 omitted to be done or performed under this Agreement. 9 4. The Principal Agreement is varied as follows: 10 11 (1) in clause 1: 12 13 (a) by deleting the existing definitions of "beneficiated ore" and 14 "loading port"; 15 16 (b) by inserting in the appropriate alphabetical positions the 17 following new definitions: 18 19 "associated company" means: 20 21 (a) any company having a paid up capital of not less than 22 $2,000,000 notified in writing by the Company to the 23 Minister which is incorporated in the United 24 Kingdom, the United States of America or Australia 25 and which: 26 27 (i) is a subsidiary of the Company within the 28 meaning of the term "subsidiary" in section 46 29 of the Corporations Act 2001 30 (Commonwealth); 31 32 (ii) holds directly or indirectly not less than 20% of 33 the issued ordinary share capital of the 34 Company; 35 36 (iii) is promoted by the Company or by any 37 company that holds directly or indirectly not 38 less than 20% of the issued ordinary share 39 capital of the Company for all or any of the page 794 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 purposes of this Agreement and in which the 2 Company or such other company holds not less 3 than 20% of the issued ordinary share capital; 4 5 (iv) is a related body corporate (within the meaning 6 of the term "related body corporate" in section 7 9 of the Corporations Act 2001 8 (Commonwealth)) of the Company or of any 9 company in which the Company holds not less 10 than 20% of the issued ordinary capital; and 11 12 (b) any other company approved in writing by the 13 Minister for the purpose of this Agreement which is 14 associated directly or indirectly with the Company in 15 its business or operations under this Agreement; 16 17 "beneficiated ore" means iron ore that has been concentrated 18 or upgraded (otherwise than solely by crushing, screening, 19 separating by hydrocycloning or a similar technology which 20 uses primarily size as a criterion, washing, scrubbing, 21 trommelling or drying or by a combination of 2 or more of 22 those processes) by the Company in a plant constructed 23 pursuant to a proposal approved pursuant to an Integration 24 Agreement or in such other plant as is approved by the 25 Minister after consultation with the Minister for Mines and 26 "beneficiation" and "beneficiate" have corresponding 27 meanings; 28 29 "Government agreement" has the meaning given in the 30 Government Agreements Act 1979 (WA); 31 32 "Integration Agreement" means: 33 34 (a) the agreement approved by and scheduled to the Iron 35 Ore (Hamersley Range) Agreement Act 1963, as from 36 time to time added to, varied or amended; or 37 38 (b) the agreement approved by and scheduled to the Iron 39 Ore (Robe River) Agreement Act 1964, as from time 40 to time added to, varied or amended; or page 795 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 2 (c) the agreement approved by and scheduled to the Iron 3 Ore (Hamersley Range) Agreement Act Amendment 4 Act 1968, as from time to time added to, varied or 5 amended; or 6 7 (d) the agreement ratified by and scheduled to the Iron 8 Ore (Mount Bruce) Agreement Act 1972, as from time 9 to time added to, varied or amended; or 10 11 (e) the agreement ratified by and scheduled to the Iron 12 Ore (Hope Downs) Agreement Act 1992, as from time 13 to time added to, varied or amended; or 14 15 (f) the agreement ratified by and scheduled to the Iron 16 Ore (Yandicoogina) Agreement Act 1996, as from 17 time to time added to, varied or amended; or 18 19 (g) the agreement approved by and scheduled to the Iron 20 Ore (Mount Newman) Agreement Act 1964, as from 21 time to time added to, varied or amended; or 22 23 (h) the agreement approved by and scheduled to the Iron 24 Ore (Mount Goldsworthy) Agreement Act 1964, as 25 from time to time added to, varied or amended; or 26 27 (i) the agreement ratified by and scheduled to the Iron 28 Ore (Goldsworthy-Nimingarra) Agreement Act 1972, 29 as from time to time added to, varied or amended; or 30 31 (j) the agreement authorised by and as scheduled to the 32 Iron Ore (McCamey's Monster) Agreement 33 Authorisation Act 1972, as from time to time added 34 to, varied or amended; or 35 36 (k) the agreement ratified by and scheduled to the Iron 37 Ore (Marillana Creek) Agreement Act 1991, as from 38 time to time added to, varied or amended; 39 page 796 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 "Integration Proponent" means in relation to an Integration 2 Agreement, "the Company" or "the Joint Venturers" as the 3 case may be as defined in, and for the purpose of, that 4 Integration Agreement; 5 6 "laws relating to native title" means laws applicable from 7 time to time in the said State in respect of native title and 8 includes the Native Title Act 1993 (Commonwealth); 9 10 "loading port" means: 11 12 (a) the Port of Dampier; or 13 14 (b) Port Walcott; or 15 16 (c) the Port of Port Hedland; or 17 18 (d) any other port constructed after the variation date 19 under an Integration Agreement; or 20 21 (e) such other port approved by the Minister at the 22 request of the Company from time to time for the 23 shipment of iron ore from the mining lease; 24 25 "Related Entity" means a company in which: 26 27 (a) as at 21 June 2010; and 28 29 (b) after 21 June 2010, with the approval of the Minister, 30 31 a direct or (through a subsidiary or subsidiaries within the 32 meaning of the Corporations Act 2001 (Commonwealth)) 33 indirect shareholding of 20% or more is held by: 34 (c) Rio Tinto Limited ABN 96 004 458 404; or 35 36 (d) BHP Billiton Limited ABN 49 004 028 077; or 37 (e) those companies referred to in paragraphs (c) and (d) 38 in aggregate; 39 page 797 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 "variation date" means the date on which clause 4 of the 2 variation agreement made on or about 17 November 2010 3 between the State and the Company comes into operation; 4 5 (c) in the definition of "agreed or determined" by 6 7 (a) inserting "(following, if required by the Company, 8 consultation with the Company and its consultants in 9 regard thereto) after "as determined by the Minister"; 10 11 (b) deleting "assessed at" and substituting "assessed on"; 12 and 13 14 (c) deleting all the words after "shall have regard to" and 15 substituting a colon followed by: 16 17 "(i) in the case of iron ore initially sold at cost 18 pursuant to the proviso to clause 12(10), the 19 prices for that type of iron ore prevailing at the 20 time the price for such iron ore was agreed 21 between the arm's length purchaser referred to 22 in paragraph (iii) of that proviso and the seller 23 in relation to the type of sale and the relevant 24 international seaborne iron ore market into 25 which such iron ore was sold and where prices 26 beyond the deemed f.o.b. point are being 27 considered the deductions mentioned in the 28 definition of f.o.b. value; and 29 30 (ii) in any other case, the prices for that type of iron 31 ore prevailing at the time the price for such iron 32 ore was agreed between the Company and the 33 purchaser in relation to the type of sale and the 34 market into which such iron ore was sold and 35 where prices beyond the deemed f.o.b. point are 36 being considered the deductions mentioned in 37 the definition of f.o.b. value"; 38 (d) in the definition of "deemed f.o.b. point" by inserting 39 "relevant" before "loading port"; 40 page 798 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 (e) in the definition of "f.o.b. value" by: 2 3 (i) in paragraph (i): 4 5 (A) inserting "subject to paragraph (ii)," before "in 6 the case of"; 7 8 (B) deleting "assessed at" and substituting "assessed 9 on"; and 10 11 (C) inserting "relevant" before each reference to 12 "loading port"; 13 14 (ii) renumbering paragraph (ii) as paragraph (iii); and 15 16 (iii) inserting after paragraph (i) the following new 17 paragraph: 18 19 "(ii) in the case of iron ore initially sold at cost 20 pursuant to the proviso to clause 12(10), the 21 price which is payable for the iron ore by the 22 arm's length purchaser as referred to in 23 paragraph (iii) of that proviso or, where the 24 Minister considers, following advice from the 25 appropriate Government department, that the 26 price payable in respect of the iron ore does not 27 represent a fair and reasonable market value for 28 that type of iron ore assessed on an arm's length 29 basis in the relevant international seaborne iron 30 ore market, such amount as is agreed or 31 determined as representing such a fair and 32 reasonable market value, less all duties, taxes, 33 costs and charges referred to in paragraph (i) 34 above"; 35 36 (f) in the definition of "iron ore", by inserting ", without 37 limitation," before "beneficiated"; 38 (g) in the definition of "mining lease" by inserting "and includes 39 any areas added to it pursuant to clause 12A" before the semi 40 colon; page 799 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 2 (2) by inserting after subclause (2) of clause 2 the following new 3 subclause: 4 5 "(3) Nothing in this Agreement shall be construed: 6 7 (a) to exempt the Company from compliance with any 8 requirement in connection with the protection of the 9 environment arising out of or incidental to its 10 activities under this Agreement that may be made by 11 or under the EP Act; or 12 13 (b) to exempt the State or the Company from compliance 14 with or to require the State or the Company to do 15 anything contrary to any laws relating to native title or 16 any lawful obligation or requirement imposed on the 17 State or the Company as the case may be pursuant to 18 any laws relating to native title; or 19 20 (c) to exempt the Company from compliance with the 21 provisions of the Aboriginal Heritage Act 1972 22 (WA)."; 23 24 (3) in clause 10(1) by inserting "(other than under clause 14C)" after 25 "pursuant to this Agreement"; 26 27 (4) by deleting subclause (2) of clause 10 and inserting the following 28 new subclauses: 29 30 "(2) A proposal may with the consent of the Minister (except in 31 relation to an Integration Agreement) and that of any parties 32 concerned (being in respect of an Integration Agreement the 33 Integration Proponent for that agreement) provide for the use 34 by the Company of any works installations or facilities 35 constructed or established under a Government agreement. 36 37 (3) Each of the proposals pursuant to subclause (1) may with the 38 approval of the Minister, or shall if so required by the 39 Minister, be submitted separately and in any order as to any page 800 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 matter or matters in respect of which such proposals are 2 required to be submitted. 3 4 (4) At the time when the Company submits the said proposals it 5 shall submit to the Minister details of any services (including 6 any elements of the project investigations, design and 7 management) and any works materials, plant, equipment and 8 supplies that it proposes to consider obtaining from or 9 having carried out or permitting to be obtained from or 10 carried out outside Australia together with its reasons 11 therefor and shall, if required by the Minister, consult with 12 the Minister with respect thereto. 13 14 (5) The Company may withdraw its proposals pursuant to 15 subclause (1) at any time before approval thereof, or where 16 any decision in respect thereof is referred to arbitration as 17 referred to in clause 10A, within 3 months after the award by 18 notice to the Minister that it shall not be proceeding with the 19 same."; 20 21 (5) by inserting after clause 10 the following new clauses: 22 23 "Consideration of Company's proposals under clause 10 24 25 10A. (1) In respect of each proposal pursuant to subclause (1) 26 of clause 10 the Minister shall: 27 28 (a) subject to the limitations set out below, refuse to 29 approve the proposal (whether it requests the 30 grant of new tenure or not) if the Minister is 31 satisfied on reasonable grounds that it is not in 32 the public interest for the proposal to be 33 approved; or 34 35 (b) approve of the proposal without qualification or 36 reservation; or 37 38 (c) defer consideration of or decision upon the 39 same until such time as the Company submits a 40 further proposal or proposals in respect of some page 801 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 other of the matters mentioned in clause 10(1) 2 not covered by the said proposal; or 3 4 (d) require as a condition precedent to the giving of 5 his approval to the said proposal that the 6 Company make such alteration thereto or 7 comply with such conditions in respect thereto 8 as he thinks reasonable, and in such a case the 9 Minister shall disclose his reasons for such 10 conditions, 11 12 PROVIDED ALWAYS that where implementation of 13 any proposals hereunder has been approved pursuant 14 to the EP Act subject to conditions or procedures, any 15 approval or decision of the Minister under this clause 16 shall if the case so requires incorporate a requirement 17 that the Company make such alterations to the 18 proposals as may be necessary to make them accord 19 with those conditions or procedures. 20 21 In considering whether to refuse to approve a proposal 22 the Minister is to assess whether or not the 23 implementation of the proposal by itself, or together 24 with any one or more of the other submitted 25 proposals, will: 26 27 (i) detrimentally affect economic and orderly 28 development in the said State, including 29 without limitation, infrastructure development 30 in the said State; or 31 32 (ii) be contrary to or inconsistent with the planning 33 and development policies and objectives of the 34 State; or 35 36 (iii) detrimentally affect the rights and interests of 37 third parties; or 38 (iv) detrimentally affect access to and use by others 39 of the lands the subject of any grant or proposed 40 grant to the Company. page 802 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 2 The right to refuse to approve a proposal conferred by 3 paragraph (a) may only be exercised in respect of a 4 proposal where the Minister is satisfied on reasonable 5 grounds that a purpose of the proposal is the 6 integrated use of works installations or facilities (as 7 defined in subclause (7) of clause 14A for the purpose 8 of that clause) as contemplated by clause 14A. It may 9 not be so exercised in respect of a proposal if pursuant 10 to clause 10B(5) the Minister, prior to the submission 11 of the proposal, advised the Company in writing that 12 the Minister has no public interest concerns (as 13 defined in that clause) with the single preferred 14 development (as referred to in clause 10B(5)(a)) the 15 subject of the submitted proposals and those proposals 16 are consistent (as to their substantive scope and 17 content) with the information provided to the Minister 18 pursuant to clause 10B(5) in respect of that single 19 preferred development. 20 21 (2) The Minister shall within 2 months after receipt of 22 proposals pursuant to clause 10(1) give notice to the 23 Company of his decision in respect to the proposals, 24 PROVIDED THAT where a proposal is to be assessed 25 under Part IV of the EP Act the Minister shall only 26 give notice to the Company of his decision in respect 27 to the proposal within 2 months after service on him 28 of an authority under section 45(7) of the EP Act. 29 30 (3) If the decision of the Minister is as mentioned in 31 either of paragraphs (a), (c) or (d) of subclause (1) the 32 Minister shall afford the Company full opportunity to 33 consult with him and should it so desire to submit new 34 or revised proposals either generally or in respect to 35 some particular matter. 36 37 (4) If the decision of the Minister is as mentioned in 38 either of paragraphs (c) or (d) of subclause (1) and the 39 Company considers that the decision is unreasonable 40 the Company within 2 months after receipt of the page 803 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 notice mentioned in subclause (2) may elect to refer to 2 arbitration in the manner hereinafter provided the 3 question of the reasonableness of the decision 4 PROVIDED THAT any requirement of the Minister 5 pursuant to the proviso to subclause (1) shall not be 6 referable to arbitration hereunder. A decision of the 7 Minister under paragraph (a) of subclause (1) shall not 8 be referable to arbitration under this Agreement. 9 10 (5) If by the award made on the arbitration pursuant to 11 subclause (4) the dispute is decided in favour of the 12 Company the decision shall take effect as a notice by 13 the Minister that he is so satisfied with and approves 14 the matter or matters the subject of the arbitration. 15 16 (6) The Company shall implement the approved proposals 17 in accordance with the terms thereof. 18 19 (7) Notwithstanding clause 31, the Minister may during 20 the implementation of approved proposals approve 21 variations to those proposals. 22 23 Notification of possible proposals 24 25 10B. (1) If the Company, upon completion of a pre-feasibility 26 study in respect of any matter that would require the 27 submission and approval of proposals pursuant to this 28 Agreement (being proposals which will have as their 29 purpose, or one of their purposes, the integrated use of 30 works installations or facilities as contemplated by 31 clause 14A) for the matter to be undertaken, intends to 32 further consider the matter with a view to possibly 33 submitting such proposals it shall promptly notify the 34 Minister in writing giving reasonable particulars of 35 the relevant matter. 36 37 (2) Within one (1) month after receiving the notification 38 the Minister may, if the Minister so wishes, inform the 39 Company of the Minister's views of the matter at that 40 stage. page 804 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 2 (3) If the Company is informed of the Minister's views, it 3 shall take them into account in deciding whether or 4 not to proceed with its consideration of the matter and 5 the submission of proposals. 6 7 (4) Neither the Minister's response nor the Minister 8 choosing not to respond shall in any way limit, 9 prejudice or otherwise affect the exercise by the 10 Minister of the Minister's powers, or the performance 11 of the Minister's obligations, under this Agreement or 12 otherwise under the laws from time to time of the said 13 State. 14 15 (5) (a) This subclause applies where the Company has 16 settled upon a single preferred development a 17 purpose of which is the integrated use of works 18 installations or facilities (as defined in 19 subclause (7) of clause 14A for the purpose of 20 that clause) as contemplated by clause 14A. 21 22 (b) For the purpose of this subclause "public 23 interest concerns" means any concern that 24 implementation of the single preferred 25 development or any part of it will: 26 27 (i) detrimentally affect economic and 28 orderly development in the said State, 29 including without limitation, 30 infrastructure development in the said 31 State; or 32 33 (ii) be contrary to or inconsistent with the 34 planning and development policies and 35 objectives of the State; or 36 37 (iii) detrimentally affect the rights and 38 interests of third parties; or 39 page 805 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 (iv) detrimentally affect access to and use by 2 others of lands the subject of any grant 3 or proposed grant to the Company 4 5 (c) At any time prior to submission of proposals 6 the Company may give to the Minister notice 7 of its single preferred development and request 8 the Minister to confirm that the Minister has no 9 public interest concerns with that single 10 preferred development. 11 12 (d) The Company shall furnish to the Minister with 13 its notice reasonable particulars of the single 14 preferred development including, without 15 limitation: 16 17 (i) as to the matters that would be required 18 to be addressed in submitted proposals; 19 and 20 21 (ii) its progress in undertaking any 22 feasibility or other studies or matters to 23 be completed before submission of 24 proposals; and 25 26 (iii) its timetable for obtaining required 27 statutory and other approvals in relation 28 to the submission and approval of 29 proposals; and 30 31 (iv) its tenure requirements. 32 33 (e) If so required by the Minister, the Company 34 will provide to the Minister such further 35 information regarding the single preferred 36 development as the Minister may require from 37 time to time for the purpose of considering the 38 Company's request and also consult with the 39 Minister or representatives or officers of the page 806 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 State in regard to the single preferred 2 development. 3 4 (f) Within 2 months after receiving the notice (or 5 if the Minister requests further information, 6 within 2 months after the provision of that 7 information) the Minister must advise the 8 Company: 9 10 (i) that the Minister has no public interest 11 concerns with the single preferred 12 development; or 13 14 (ii) that he is not then in a position to advise 15 that he has no public interest concerns 16 with the single preferred development 17 and the Minister's reasons in that regard. 18 19 (g) If the Minister gives the advice mentioned in 20 paragraph (f)(ii) the Company may, should it 21 so desire, give a further request to the Minister 22 in respect of a revised or alternate single 23 preferred development and the provisions of 24 this subclause shall apply mutatis mutandis 25 thereto"; 26 27 (6) in clause 11(8)(b) by deleting "subclause (2) of Clause 10" and 28 substituting "clauses 10(2) to (5) and 10A"; 29 30 (7) by inserting after clause 12(8) the following new subclauses: 31 32 "Blending of iron ore 33 34 (9) (a) The Company may blend iron ore mined from the 35 mining lease with any: 36 37 (i) iron ore mined from a mining tenement or other 38 mining title granted under, or pursuant to, an 39 Integration Agreement; or 40 page 807 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 (ii) iron ore mined from a Mining Act 1978 mining 2 lease located in, or proximate to, the Pilbara 3 region of the said State which is held by a 4 Related Entity alone or with a third party or 5 parties (excluding any mining lease granted 6 pursuant to, or held under, a Government 7 agreement); or 8 9 (iii) with the prior approval of the Minister, iron ore 10 mined in, or proximate to, the Pilbara region of 11 the said State under a Government agreement 12 (excluding an Integration Agreement); or 13 14 (iv) with the prior approval of the Minister, iron ore 15 mined by a third party from a Mining Act 1978 16 mining lease located in, or proximate to, the 17 Pilbara region of the said State (excluding 18 under a Government agreement) which has 19 been purchased by an Integration Proponent 20 from the third party. 21 22 (b) The authority given under paragraph (a) is subject to 23 the Minister being reasonably satisfied that there are 24 in place adequate systems and controls for the correct 25 apportionment of the quantities of iron ore being 26 blended as between each of the sources referred to in 27 paragraph (a), which systems and controls monitor 28 production, processing, transportation, stockpiling and 29 shipping of all such iron ore. If at any time the 30 Minister ceases to be so satisfied he may, after 31 consulting the Company and provided the Company 32 has not within three (3) months after the 33 commencement of such consultation addressed the 34 matters of concern to the Minister to his satisfaction, 35 by notice in writing to the Company suspend the 36 above authority in respect of the relevant blending 37 arrangements until he is again satisfied in terms of this 38 paragraph (b). 39 page 808 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 (c) If any blending of iron ore occurs as contemplated by this 2 subclause, then for the purposes of clause 13(1) and (2), a 3 portion of the iron ore so blended being equal to the proportion 4 that the amount of iron ore from the mining lease used in the 5 admixture of iron ore bears to the total amount of iron ore so 6 blended, shall be deemed to be produced from the mining lease. 7 8 Shipment of and price for iron ore 9 10 (10) The Company shall during the continuance of this Agreement ship, 11 or procure the shipment of, all iron ore mined from the mining 12 lease and sold: 13 14 (a) from a wharf in a loading port which has been constructed 15 under an Integration Agreement; or 16 17 (b) with the Minister's approval given before submission of 18 proposals in that regard, from any other wharf in a loading 19 port which wharf has been constructed under another 20 Government agreement (excluding the Integration 21 Agreements), 22 23 and use its best endeavours to obtain for all iron ore from the 24 mining lease the best price possible having regard to market 25 conditions from time to time prevailing PROVIDED THAT iron 26 ore from the mining lease may be sold by the Company prior to or 27 at the time of the shipment under this Agreement at a price equal to 28 the production costs in respect of that iron ore up to the point of 29 sale, if: 30 31 (i) the Minister is notified before the time of shipment 32 that the sale is to be made at cost, providing details of 33 the proposed sale; and 34 35 (ii) the Minister is notified of the proposed arm's length 36 purchaser in the relevant international seaborne iron 37 ore market of the iron ore the subject of the proposed 38 sale at cost; and 39 page 809 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 (iii) there is included in the return lodged pursuant to 2 clause 13(2)(a) particulars of the transaction in which 3 the ore sold at cost was subsequently purchased in the 4 relevant international seaborne iron ore market by an 5 arm's length purchaser specifying the purchaser, the 6 seller, the price and the date when the sale was agreed 7 between the arm's length purchaser and the seller; and 8 9 (iv) the arm's length purchaser referred to in (iii) above is 10 not then a designated purchaser as referred to below. 11 12 If required by notice in writing from the Minister, the Company 13 must provide the Minister within 30 days after receiving the notice 14 with evidence that the transaction as included in the return pursuant 15 to subparagraph (iii) above was a sale in the relevant international 16 seaborne iron ore market to an independent participant in that 17 market. If no evidence is provided or the Minister is not so 18 satisfied on the evidence provided or other information obtained, 19 the Minister may by notice to the Company designate the purchaser 20 to be a designated purchaser and that designation will remain in 21 force unless and until lifted by further notice from the Minister to 22 the Company. For the avoidance of doubt, the parties 23 acknowledge that marketing entities forming part of the corporate 24 group including the Company (or part of the parallel corporate 25 group if the Company is part of a dual-listed corporate structure) 26 are not independent participants for the purposes of this 27 subclause"; 28 29 (8) by inserting after clause 12 the following new clause: 30 31 "Additional areas 32 33 12A. (1) Notwithstanding the provisions of the Mining Act 34 1904 or the Mining Act 1978 the Company may from 35 time to time during the currency of this Agreement 36 apply to the Minister for areas held by the Company 37 or an associated company under a mining tenement 38 granted under the Mining Act 1978 to be included in 39 the mining lease but so that the total area of the 40 mining lease, any land that may be included in the page 810 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 mining lease pursuant to this Agreement and of any 2 other mineral lease or mining lease granted under or 3 pursuant to this Agreement (as aggregated) shall not 4 at any time exceed 777 square kilometres. The 5 Minister shall confer with the Minister for Mines in 6 regard to any such application and if they approve the 7 application the Minister for Mines shall upon the 8 surrender of the relevant mining tenement include the 9 area the subject thereof in the mining lease by 10 endorsement subject to such of the conditions of the 11 surrendered mining tenement as the Minister for 12 Mines determines but otherwise subject to the same 13 terms covenants and conditions as apply to the mining 14 lease (with such apportionment of rents as is 15 necessary) and notwithstanding that the survey of 16 such additional land has not been completed but 17 subject to correction to accord with the survey when 18 completed at the Company's expense. 19 20 (2) The Minister may approve, upon application by the 21 Company from time to time, for the total area referred 22 to in subclause (1) to be increased up to a limit not 23 exceeding 1,000 square kilometres. 24 25 (3) The Company shall not mine or carry out other 26 activities (other than exploration, bulk sampling and 27 testing) on any area or areas added to the mining lease 28 pursuant to subclause (1) of this clause unless and 29 until proposals with respect thereto are approved or 30 determined pursuant to the subsequent provisions of 31 this clause. 32 33 (4) If the Company desires to commence mining of iron 34 ore or to carry out any other activities (other than as 35 aforesaid) on the said areas it shall give notice of such 36 desire to the Minister and shall within 2 months of the 37 date of such notice (or thereafter within such extended 38 time as the Minister may allow as hereinafter 39 provided) and subject to the provisions of this 40 Agreement submit to the Minister to the fullest extent page 811 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 reasonably practicable its detailed proposals (which 2 proposals shall include plans where practicable and 3 specifications where reasonably required by the 4 Minister) with respect to such mining or other 5 activities as additional proposals pursuant to clauses 6 10 or 11 as the case may be."; 7 8 (9) in clause 13(1): 9 10 (a) in paragraph (b) by deleting "5.625%" and substituting 11 "7.5%"; and 12 13 (b) by inserting after paragraph (b) the following new 14 paragraphs: 15 "Where beneficiated ore is produced from an admixture of 16 iron ore from the mining lease and iron ore from elsewhere, 17 a portion (and a portion only) of the beneficiated ore so 18 produced being equal to the proportion that the amount of 19 the iron in the iron ore from the mining lease used in the 20 production of that beneficiated ore bears to the total amount 21 of iron in the iron ore so used shall be deemed to be 22 produced from iron ore from the mining lease. 23 Where for the purpose of determining f.o.b. value it is 24 necessary to convert an amount or price to Australian 25 currency, the conversion is to be calculated using a rate 26 (excluding forward hedge or similar contract rates) that has 27 been approved by the Minister at the request of the Company 28 and in the absence of such request as determined by the 29 Minister to be a reasonable rate for the purpose. 30 The provisions of regulation 85AA (Effect of GST etc on 31 royalties) of the Mining Regulations 1981(WA) shall apply 32 mutatis mutandis to the calculation of royalties under this 33 subclause."; 34 35 (10) in clause 13(2) by: 36 (a) in paragraph (a): 37 page 812 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 (i) inserting ", and also showing such other information 2 in relation to the abovementioned ore as the Minister 3 may from time to time reasonably require in regard 4 to, and to assist in verifying, the calculation of 5 royalties in accordance with subclause (1)," after 6 "the due date of return"; and 7 8 (ii) deleting all the words after "calculated on the basis 9 of "and substituting a colon followed by: 10 11 (i) in the case of iron ore initially sold at cost 12 pursuant to the proviso to clause 12(10), at 13 the price notified pursuant to paragraph (iii) 14 of that proviso; 15 (ii) in any other case, invoices or provisional 16 invoices (as the case may be) rendered by the 17 Company to the purchaser (which invoices 18 the Company shall render without delay 19 simultaneously furnishing copies thereof to 20 the Minister) of such iron ore or on the basis 21 of estimates as agreed or determined, 22 23 and shall from time to time in the next following 24 appropriate return and payment make (by the return 25 and by cash) all such necessary adjustments (and 26 give to the Minister full details thereof) when the 27 f.o.b. value shall have been finally calculated, agreed 28 or determined"; 29 30 (b) in paragraph (b): 31 32 (i) by deleting "books of account and records of the 33 Company including contracts relative" and 34 substituting "books, records, accounts, documents 35 (including contracts), data and information of the 36 Company stored by any means relating"; 37 38 (ii) by inserting "(in whatever form)" after "copies or 39 extracts"; and 40 page 813 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 (iii) by inserting "the subject of royalty" before the two 2 references to "hereunder"; 3 4 (c) by inserting "and" after the semicolon at the end of 5 paragraph (c); and 6 7 (d) by inserting after paragraph (c) the following new 8 paragraph: 9 10 "(d) cause to be produced in Perth in the said State all 11 books, records, accounts, documents (including 12 contracts), data and information of the kind referred to 13 in paragraph (b), to enable the exercise of rights by 14 the Minister or the Minister's nominee under 15 paragraph (b), regardless of the location in which or 16 by whom those books, records, accounts, documents 17 (including contracts), data and information are stored 18 from time to time."; 19 20 (11) in clause 14(4) by deleting "subclauses (1), (2), (3) and (4) of 21 Clause 8" and substituting "clauses 10(2) to (5) and 10A"; 22 23 (12) by inserting after clause 14 the following new clauses: 24 25 "Integrated use of works installations or facilities under the 26 Integration Agreements 27 28 14A. (1) Subject to subclauses (2) to (7) of this clause and to 29 the other provisions of this Agreement, the Company 30 may during the continuance of this Agreement: 31 32 (a) use any existing or new works installations or 33 facilities constructed or held: 34 35 (i) under this Agreement; or 36 37 (ii) under any other Integration Agreement 38 which are made available for such use 39 and during the continuance of such 40 Integration Agreement; or page 814 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 2 (iii) with the approval of the Minister, under a 3 Government agreement (excluding an 4 Integration Agreement) which are made 5 available for such use and during the 6 continuance of that agreement, 7 8 (wholly or in part) in the activities of the Company 9 carried on by it pursuant to this Agreement including, 10 without limitation, as part of those activities, 11 transporting by railway and shipping from a loading 12 port and undertaking any ancillary and incidental 13 activities in doing so (including, without limitation, 14 blending permitted by clause 12(9)) of: 15 16 (A) iron ore mined from a Mining Act 1978 mining 17 lease located in, or proximate to, the Pilbara 18 region of the said State which is held by a 19 Related Entity alone or with a third party or 20 parties (excluding any mining lease granted 21 pursuant to, or held under, a Government 22 agreement); 23 24 (B) with the prior approval of the Minister, iron ore 25 mined in, or proximate to, the Pilbara region of 26 the said State under a Government agreement 27 (excluding an Integration Agreement); 28 29 (C) with the prior approval of the Minister, iron ore 30 mined by a third party from a Mining Act 1978 31 mining lease located in, or proximate to, the 32 Pilbara region of the said State (excluding 33 under a Government agreement) which has 34 been purchased by the Company from the third 35 party; 36 37 (D) iron ore mined under an Integration 38 Agreement; 39 page 815 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 (b) make any existing or new works installations or 2 facilities constructed or held under this Agreement 3 available for use (wholly or partly) by another 4 Integration Proponent during the continuance of its 5 Integration Agreement in the activities of that 6 Integration Proponent carried on by it pursuant to its 7 Integration Agreement including, without limitation, 8 as part of those activities, transporting by railway and 9 shipping from a loading port and undertaking any 10 ancillary and incidental activities in doing so 11 (including, without limitation, blending permitted by 12 that Integration Agreement) of: 13 14 (i) iron ore mined from a Mining Act 1978 15 mining lease located in, or proximate to, the 16 Pilbara region of the said State which is held 17 by a Related Entity alone or with a third party 18 or parties (excluding any mining lease granted 19 pursuant to, or held under, a Government 20 agreement); 21 22 (ii) with the prior approval of the Minister (as 23 defined in that Integration Agreement), iron 24 ore mined in, or proximate to, the Pilbara 25 region of the said State under a Government 26 agreement (excluding an Integration 27 Agreement); 28 29 (iii) with the prior approval of the Minister (as 30 defined in that Integration Agreement), iron 31 ore mined by a third party from a Mining Act 32 1978 mining lease located in, or proximate to, 33 the Pilbara region of the said State (excluding 34 under a Government agreement) which has 35 been purchased by that Integration Proponent 36 from the third party; 37 38 (iv) iron ore mined under an Integration 39 Agreement; 40 page 816 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 (c) make any existing or new works installations or 2 facilities constructed or held under this Agreement 3 available for use (wholly or partly) in connection with 4 operations under: 5 6 (i) a Mining Act 1978 mining lease located in, or 7 proximate to, the Pilbara region of the said 8 State, for iron ore, which is held by a Related 9 Entity alone or with a third party or parties 10 (excluding any mining lease granted pursuant 11 to, or held under a Government agreement); or 12 13 (ii) with the approval of the Minister, a 14 Government agreement (other than an 15 Integration Agreement) for the mining of iron 16 ore in, or proximate to, the Pilbara region of 17 the said State; 18 19 (d) subject to subclause (2), under this Agreement and for 20 the purpose of any use or making available for use 21 referred to in paragraph (a), (b) or (c) connect any 22 existing or new works installations or facilities 23 constructed or held under this Agreement to any 24 existing or new works installations or facilities 25 constructed or held under another Integration 26 Agreement; 27 28 (e) subject to subclause (2), under this Agreement and for 29 the purpose of any use or making available for use 30 referred to in paragraph (a), (b) or (c) or making of 31 any connection referred to in paragraph (d) construct 32 new works installations or facilities and expand 33 modify or otherwise vary any existing and new works 34 installations or facilities constructed or held under this 35 Agreement; 36 37 (f) allow a railway or rail spur line (not being a railway 38 or rail spur line constructed or held under an 39 Integration Agreement) to be connected to a railway or 40 rail spur line or other works installations or facilities page 817 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 constructed or held under this Agreement for the 2 delivery of iron ore to an Integration Proponent for 3 transport by railway and shipping from a loading port 4 (together with any ancillary and incidental activities in 5 doing so) as part of its activities under its Integration 6 Agreement; and 7 8 (g) allow an electricity transmission line (not being an 9 electricity transmission line constructed or held under 10 an Integration Agreement) to be connected to an 11 electricity transmission line constructed or held under 12 this Agreement for the supply of electricity permitted 13 to be made under an Integration Agreement. 14 15 (2) (a) A connection referred to in clause (1)(d) or 16 construction, expansion, modification or other 17 variation referred to in subclause (1)(e) by the 18 Company shall, to the extent not already authorised 19 under this Agreement as at the variation date, be 20 regarded as a significant modification expansion or 21 other variation of the Company's activities carried on 22 by it pursuant to this Agreement and may only be 23 made in accordance with proposals submitted and 24 approved or determined under this Agreement in 25 accordance with clauses 10 and 10A or clause 14C as 26 the case may require and otherwise in compliance 27 with the provisions of this Agreement and the laws 28 from time to time of the said State. For the avoidance 29 of doubt, the parties acknowledge that any use or 30 making available for use contemplated by subclause 31 (1)(a), (1)(b) or (1)(c) shall not otherwise than as 32 required by this paragraph (a) require the submission 33 and approval of further proposals under this 34 Agreement. 35 36 (b) The Company shall not be entitled to: 37 38 (i) submit proposals to construct any port or to 39 establish harbour or port works installations or 40 facilities, or to expand modify or otherwise page 818 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 vary harbour or works installations or facilities; 2 or 3 4 (ii) generate and supply power, take and supply 5 water or dispose of water otherwise than in 6 accordance with the other clauses of this 7 Agreement and subject to any restrictions 8 contained in those clauses; or 9 10 (iii) without limiting subparagraphs (i) and (ii) 11 submit proposals to construct or establish works 12 installations or facilities of a type, or to make 13 expansions, modifications or other variations of 14 works installations or facilities of a type, which 15 in the Minister's reasonable opinion this 16 Agreement, immediately before the variation 17 date, did not permit or contemplate the 18 Company constructing, establishing or making 19 as the case may be otherwise than for 20 integration use as contemplated by subclauses 21 (1)(a), (1)(b) or (1)(c) or as permitted by clause 22 14C; or 23 24 (iv) submit proposals to make a connection as 25 referred to in subclause (1)(d) or a construction, 26 expansion, modification or other variation as 27 referred to in subclause (1)(e) otherwise than on 28 tenure granted under or pursuant to this 29 Agreement from time to time or held pursuant to 30 this Agreement from time to time; or 31 32 (v) submit proposals to make a connection referred 33 to in subclause (1)(d) or a construction, 34 expansion, modification or other variation as 35 referred to in subclause (1)(e) for the purpose of 36 use as contemplated by subclause (1)(c)(i), if in 37 the reasonable opinion of the Minister the 38 activity which is the subject of the proposals 39 would give to the holder or holders of the 40 relevant Mining Act 1978 mining lease the page 819 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 benefit of rights or powers granted to the 2 Company under this Agreement, over and above 3 the right of access to and use of the relevant 4 works installations or facilities; or 5 6 (vi) submit proposals to make a connection as 7 referred to in subclause (1)(d) or a construction, 8 expansion, modification or other variation as 9 referred to in subclause (1)(e) for the purpose of 10 use as contemplated by subclause (1)(c) and 11 involving the grant of tenure without the prior 12 approval of the Minister; or 13 14 (vii) submit proposals to assign, sublet, transfer or 15 dispose of any works installations or facilities 16 constructed or held under this Agreement or any 17 leases, licences, easements or other titles under 18 or pursuant to this Agreement for any purpose 19 referred to in this clause. 20 21 (c) Notwithstanding the provisions of clauses 10A or 22 14C, the Minister may defer consideration of, or a 23 decision upon, a proposal submitted by the Company 24 for a connection as referred to in subclause (1)(d) or a 25 construction, expansion, modification or other 26 variation as referred to in subclause (1)(e), for the 27 purpose of use or making available for use as referred 28 to in subclauses (1)(a) or (1)(b), until relevant 29 corresponding proposals under the relevant 30 Integration Agreement have been submitted and those 31 proposals can be approved under that Integration 32 Agreement concurrently with the Minister's approval 33 under this Agreement of the Company's proposal. 34 35 (3) Any use or making available for use as referred to in 36 subclause (1), or submission of proposals as referred to in 37 subclause (2), in respect of a Related Entity shall be subject 38 to the Company first confirming with the Minister that the 39 Minister is satisfied that the relevant company is a Related 40 Entity. page 820 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 2 (4) The Company shall give the Minister prior written notice of 3 any significant change (other than a temporary one for 4 maintenance or to respond to an emergency) proposed in its 5 use, or in it making available for use, works, installations or 6 facilities as referred to in this clause: 7 8 (a) from that authorised under this Agreement 9 immediately before the variation date; and 10 11 (b) subsequently from that previously notified to the 12 Minister under this subclause, 13 14 as soon as practicable before such change occurs. 15 16 The Company shall also keep the Minister fully informed 17 with respect to any proposed connection as referred to in 18 subclause (1)(f) or (1)(g) or request of the Company for such 19 connection to be allowed. 20 21 (5) Nothing in this Agreement shall be construed to: 22 23 (a) exempt another Integration Proponent from 24 complying with, or the application of, the provisions 25 of its Integration Agreement; or 26 27 (b) restrict the Company's rights under clause 30. 28 29 For the avoidance of doubt the approval of proposals under 30 this Agreement shall not be construed as authorising 31 another Integration Proponent to undertake any activities 32 under this Agreement or under another Integration 33 Agreement. 34 35 (6) Nothing in this clause shall be construed to exempt the 36 Company from complying with, or the application of, the 37 other provisions of this Agreement including, without 38 limitation, clause 30 and of relevant laws from time to time 39 of the said State. 40 page 821 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 (7) For the purpose of this clause "works installations or 2 facilities" means any: 3 4 (a) harbour or port works installations or facilities 5 including, without limitation, stockpiles, reclaimers, 6 conveyors and wharves; 7 8 (b) railway or rail spur lines; 9 10 (c) track structures and systems associated with the 11 operation and maintenance of a railway including, 12 without limitation, sidings, train control and signalling 13 systems, maintenance workshops and terminal yards; 14 15 (d) train loading and unloading works installations or 16 facilities; 17 18 (e) conveyors; 19 20 (f) private roads; 21 22 (g) mine aerodrome and associated aerodrome works 23 installations and facilities; 24 25 (h) iron ore mining, crushing, screening, beneficiation or 26 other processing works installations or facilities; 27 28 (i) mine administration buildings including, without 29 limitation, offices, workshops and medical facilities; 30 31 (j) borrow pits; 32 33 (k) accommodation and ancillary facilities including, 34 without limitation, construction camps and in 35 townsites constructed pursuant to and held under any 36 Integration Agreement; 37 38 (l) water, sewerage, electricity, gas and 39 telecommunications works installations and facilities page 822 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 including, without limitation, pipelines, transmission 2 lines and cables; and 3 4 (m) any other works installations or facilities approved of 5 by the Minister for the purpose of this clause. 6 7 8 Transfer of rights to shared works installations or facilities 9 10 14B. (1) For the purposes of this clause "Relevant 11 Infrastructure" means any works installations or 12 facilities (as defined in clause 14A(7)): 13 14 (a) constructed or held under another Integration 15 Agreement; 16 17 (b) which the Company is using in its activities 18 pursuant to this Agreement; 19 20 (c) which the Minister is satisfied (after consulting 21 with the Company and the Integration 22 Proponent for that other Integration 23 Agreement): 24 25 (i) are no longer required by that other 26 Integration Proponent to carry on its 27 activities pursuant to its Integration 28 Agreement because of the cessation of 29 the Integration Proponent's mining 30 operations in respect of which such 31 Relevant Infrastructure was constructed 32 or held or because of any other reason 33 acceptable to the Minister; and 34 35 (ii) are required by the Company to continue 36 to carry on its activities pursuant to this 37 Agreement; and 38 39 (d) in respect of which that other Integration 40 Proponent has notified the Minister it consents page 823 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 to the Company submitting proposals as 2 referred to in subclause (2). 3 4 (2) The Company may as an additional proposal pursuant 5 to clause 10 propose: 6 7 (a) that it be granted a lease licence or other title 8 over the Relevant Infrastructure pursuant to this 9 Agreement subject to and conditional upon the 10 other Integration Proponent surrendering wholly 11 or in part (and upon such terms as the Minister 12 considers reasonable including any variation of 13 terms to address environmental issues) its lease 14 licence or other title over the Relevant 15 Infrastructure; or 16 17 (b) that the other Integration Proponent's lease 18 licence or other title (not being a mineral lease, 19 mining lease or other right to mine title granted 20 under a Government agreement, the Mining Act 21 1904 or the Mining Act 1978) to the Relevant 22 Infrastructure be transferred to this Agreement 23 (to be held by the Company pursuant to this 24 Agreement) with such surrender of land from it 25 and variations of its terms as the Minister 26 considers reasonable for that title to be held 27 under this Agreement including, without 28 limitation, to address environmental issues and 29 outstanding obligations of that other Integration 30 Proponent under its Integration Agreement in 31 respect of that Relevant Infrastructure. 32 33 The provisions of clause 10A shall mutatis mutandis 34 apply to any such additional proposal. In addition the 35 Company acknowledges that the Minister may require 36 variations of the other Integration Agreement and/or 37 proposals under it or of this Agreement in order to give 38 effect to the matters contemplated by this clause. 39 page 824 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 (3) This clause shall cease to apply in the event the State 2 gives any notice of default to the Company pursuant to 3 clause 34(1) and while such notice remains 4 unsatisfied. 5 6 Miscellaneous Licences for Railways 7 8 14C. (1) In this clause subject to the context: 9 10 "Additional Infrastructure" means: 11 12 (a) Train Loading Infrastructure; 13 14 (b) Train Unloading Infrastructure; 15 16 (c) a conveyor, train unloading and other infrastructure 17 necessary for the transport of iron ore, freight goods 18 or other products from the Railway (directly or 19 indirectly) to port facilities within a loading port, 20 21 in each case located outside a Port; 22 23 "LAA" means the Land Administration Act 1997 (WA); 24 25 "Lateral Access Roads" has the meaning given in subclause 26 (3)(a)(iv); 27 28 "Lateral Access Road Licence" means a miscellaneous 29 licence granted pursuant to subclause (6)(a)(ii) or subclause 30 (6)(b) as the case may be and according to the requirements 31 of the context describes the area of land from time to time 32 the subject of that licence; 33 "Port" means any port the subject of the Port Authorities Act 34 1999 (WA) or the Shipping and Pilotage Act 1967 (WA); 35 36 "Private Roads" means Lateral Access Roads and the 37 Company's access roads within a Railway Corridor; 38 39 "Rail Safety Act" means the Rail Safety Act 1998 (WA); 40 page 825 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 "Railway" means a standard gauge heavy haul railway or 2 railway spur line, located or to be located as the case may be 3 in, or proximate to, the Pilbara region of the said State (but 4 outside the boundaries of a Port) for the transport of iron 5 ore, freight goods and other products together with all 6 railway track, associated track structures including sidings, 7 turning loops, over or under track structures, supports 8 (including supports for equipment or items associated with 9 the use of a railway) tunnels, bridges, train control systems, 10 signalling systems, switch and other gear, communication 11 systems, electric traction infrastructure, buildings (excluding 12 office buildings, housing and freight centres), workshops 13 and associated plant, machinery and equipment and 14 including rolling stock maintenance facilities, terminal 15 yards, depots, culverts and weigh bridges which railway is 16 or is to be (as the case may be) the subject of approved 17 proposals under subclause (4) and includes any expansion or 18 extension thereof outside a Port which is the subject of 19 additional proposals approved in accordance with subclause 20 (5); 21 22 "Railway Corridor" means, prior to the grant of a Special 23 Railway Licence, the land for the route of the Railway the 24 subject of that licence, access roads (other than Lateral 25 Access Roads), areas from which stone, sand, clay and 26 gravel may be taken, temporary accommodation facilities 27 for the railway workforce, water bores and Additional 28 Infrastructure (if any) which is the subject of a subsisting 29 agreement pursuant to subclause (3)(a) and after the grant of 30 the Special Railway Licence the land from time to time the 31 subject of that Special Railway Licence; 32 "Railway Operation" means the construction and operation 33 under this Agreement of the relevant Railway and associated 34 access roads and Additional Infrastructure (if any) within 35 the relevant Railway Corridor and of the associated Lateral 36 Access Roads, in accordance with approved proposals; 37 38 "Railway spur line" means a standard gauge heavy haul 39 railway spur line located or to be located in, or proximate to, 40 the Pilbara region of the said State (but outside a Port) page 826 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 connecting to a Railway for the transport of iron ore, freight 2 goods and other products upon the Railway to (directly or 3 indirectly) a loading port; 4 5 "Railway Operation Date" means the date of the first 6 carriage of iron ore, freight goods or other products over the 7 relevant Railway (other than for construction or 8 commissioning purposes); 9 10 "Railway spur line Operation Date" means the date of the 11 first carriage of iron ore, freight goods or other products 12 over the relevant Railway spur line (other than for 13 construction or commissioning purposes); 14 15 "Special Railway Licence" means the relevant 16 miscellaneous licence for railway and, if applicable, other 17 purposes, granted to the Company pursuant to subclause 18 (6)(a)(i) as varied in accordance with subclause (6)(h) or 19 subclause (6)(i) and according to the requirements of the 20 context describes the area of land from time to time the 21 subject of that licence; 22 23 "Train Loading Infrastructure" means conveyors, stockpile 24 areas, blending and screening facilities, stackers, re-claimers 25 and other infrastructure reasonably required for the loading 26 of iron ore, freight goods or other products onto the relevant 27 Railway for transport (directly or indirectly) to a loading 28 port; and 29 30 "Train Unloading Infrastructure" means train unloading 31 infrastructure reasonably required for the unloading of iron 32 ore from the Railway to be processed, or blended with other 33 iron ore, at processing or blending facilities in the vicinity of 34 that train unloading infrastructure and with the resulting iron 35 ore products then loaded on to the Railway for transport 36 (directly or indirectly) to a loading port. 37 page 827 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 Company to obtain prior Ministerial in-principle approval 2 3 (2) (a) If the Company wishes, from time to time during the 4 continuance of this Agreement, to proceed under this 5 clause with a plan to develop a Railway it shall give 6 notice thereof to the Minister and furnish to the 7 Minister with that notice an outline of its plan. 8 9 (b) The Minister shall within one month of a notice under 10 paragraph (a) advise the Company whether or not he 11 approves in-principle the proposed plan. The Minister 12 shall afford the Company full opportunity to consult 13 with him in respect of any decision of the Minister 14 under this paragraph. 15 16 (c) The Minister's in-principle approval in respect of a 17 proposed plan shall lapse if the Company has not 18 submitted detailed proposals to the Minister in respect 19 of that plan in accordance with this clause within 18 20 months of the Minister's in-principle approval. 21 22 Railway Corridor 23 24 (3) (a) If the Minister gives in-principle approval to a plan of 25 the Company to develop a Railway it shall consult 26 with the Minister to seek the agreement of the 27 Minister as to: 28 29 (i) where the Railway will begin and end; and 30 31 (ii) a route for the Railway, access roads to be 32 within the Railway Corridor and the land 33 required for that route as well as Additional 34 Infrastructure (if any) including, without 35 limitation, areas from which stone, sand, clay 36 and gravel may be taken, temporary 37 accommodation facilities for the railway 38 workforce and water bores; and 39 page 828 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 (iii) in respect of Additional Infrastructure (if any) 2 the nature and capacity of such Additional 3 Infrastructure; and 4 5 (iv) the routes of, and the land required for, roads 6 outside the Railway Corridor (and also outside 7 a Port) for access to it to construct the Railway 8 (such roads as agreed being "Lateral Access 9 Roads"). 10 11 In seeking such agreement, regard shall be had to 12 achieving a balance between engineering matters 13 including costs, the nature and use of any lands 14 concerned and interests therein and the costs of 15 acquiring the land (all of which shall be borne by the 16 Company). The parties acknowledge the intention is 17 for the Company to construct the Railway, the access 18 roads for the construction and maintenance of the 19 Railway which are to be within the Railway Corridor 20 and the relevant Additional Infrastructure (if any) 21 along the centreline of the Railway Corridor subject to 22 changes in that alignment to the extent necessary to 23 avoid heritage, environmental or poor ground 24 conditions that are not identified during preliminary 25 investigation work, and recognise the width of the 26 Railway Corridor may need to vary along its route to 27 accommodate Additional Infrastructure (if any), 28 access roads, areas from which stone, sand, clay and 29 gravel may be taken, temporary accommodation 30 facilities for the railway workforce and water bores. 31 The provisions of clause 41 shall not apply to this 32 subclause. 33 34 (b) If the date by which the Company must submit 35 detailed proposals under subclause (4)(a) (as referred 36 to in subclause (2)(c)) is extended or varied by the 37 Minister pursuant to clause 33, any agreement made 38 pursuant to paragraph (a) before such date is extended 39 or varied shall unless the Minister notifies the 40 Company otherwise be deemed to be at an end and page 829 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 neither party shall have any claim against the other in 2 respect of it. 3 4 (c) The Company acknowledges that it shall be 5 responsible for liaising with every title holder in 6 respect of the land affected and for obtaining in a form 7 and substance acceptable to the Minister all 8 unconditional and irrevocable consents of each such 9 title holder to, and all statutory consents required in 10 respect of the land affected for: 11 12 (i) the grant of the Special Railway Licence for the 13 construction, operation and maintenance within 14 the Railway Corridor of the Railway, access 15 roads and Additional Infrastructure (if any) to 16 be within the Railway Corridor; and 17 18 (ii) the grant of Lateral Access Road Licences for 19 the construction, use and maintenance of 20 Lateral Access Roads over the routes for the 21 Lateral Access Roads agreed pursuant to 22 paragraph (a); and 23 24 (iii) the inclusion of additional land in the Special 25 Railway Licence as referred to in subclause 26 (6)(h) or subclause (6)(i), 27 28 in accordance with this clause. For the purposes of 29 this subclause (3)(c), "title holder" means a 30 management body (as defined in the LAA) in respect 31 of any part of the affected land, a person who holds a 32 mining, petroleum or geothermal energy right (as 33 defined in the LAA) in respect of any part of the 34 affected land, a person who holds a lease or licence 35 under the LAA in respect of any part of the affected 36 land, a person who holds any other title granted under 37 or pursuant to a Government agreement in respect of 38 any part of the affected land, a person who holds a 39 lease or licence in respect of any part of the affected 40 land under any other Act applying in the said State page 830 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 and a person in whom any part of the affected land is 2 vested, immediately before the provision of such 3 consents to the Minister as referred to in subclause 4 (4)(e)(ii) (including as applying pursuant to subclause 5 5(d)). 6 7 Company to submit proposals for Railway 8 9 (4) (a) The Company shall, subject to the EP Act, the 10 provisions of this Agreement, agreement at that time 11 subsisting in respect of the matters required to be 12 agreed pursuant to subclause 3(a), submit to the 13 Minister by the latest date applying under subclause 14 (2)(c) to the fullest extent reasonably practicable its 15 detailed proposals (including plans where practicable 16 and specifications where reasonably required by the 17 Minister and any other details normally required by a 18 local government in whose area any works are to be 19 situated) with respect to the undertaking of the 20 relevant Railway Operation, which proposals shall 21 include the location, area, layout, design, materials 22 and time program for the commencement and 23 completion of construction or the provision (as the 24 case may be) of each of the following matters namely: 25 26 (i) the Railway including fencing (if any) and 27 crossing places within the Railway Corridor; 28 29 (ii) Additional Infrastructure (if any) within the 30 Railway Corridor; 31 (iii) temporary accommodation and ancillary 32 temporary facilities for the railway workforce 33 on, or in the vicinity of, the Railway Corridor 34 and housing and other appropriate facilities 35 elsewhere for the Company's workforce; 36 37 (iv) water supply; 38 39 (v) energy supplies; 40 page 831 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 (vi) access roads within the Railway Corridor and 2 Lateral Access Roads both along the routes for 3 those roads agreed between the Minister and 4 the Company pursuant to subclause 3(a); 5 6 (vii) any other works, services or facilities desired 7 by the Company; and 8 9 (viii) use of local labour, professional services, 10 manufacturers, suppliers contractors and 11 materials and measures to be taken with respect 12 to the engagement and training of employees 13 by the Company, its agents and contractors. 14 15 (b) Proposals pursuant to paragraph (a) must specify the 16 matters agreed for the purpose pursuant to subclause 17 (3)(a) and must not be contrary to or inconsistent with 18 such agreed matters. 19 20 (c) Each of the proposals pursuant to paragraph (a) may 21 with the approval of the Minister, or must if so 22 required by the Minister, be submitted separately and 23 in any order as to the matter or matters mentioned in 24 one or more of subparagraphs (i) to (viii) of paragraph 25 (a) and until all of its proposals under this subclause 26 have been approved the Company may withdraw and 27 may resubmit any proposal but the withdrawal of any 28 proposal shall not affect the obligations of the 29 Company to submit a proposal under this subclause in 30 respect of the subject matter of the withdrawn 31 proposal. 32 33 (d) The Company shall, whenever any of the following 34 matters referred to in this subclause are proposed by 35 the Company (whether before or during the 36 submission of proposals under this subclause), submit 37 to the Minister details of any services (including any 38 elements of the project investigations, design and 39 management) and any works, materials, plant, 40 equipment and supplies that it proposes to consider page 832 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 obtaining from or having carried out or permitting to 2 be obtained from or carried out outside Australia, 3 together with its reasons therefor and shall, if required 4 by the Minister consult with the Minister with respect 5 thereto. 6 7 (e) At the time when the Company submits the last of the 8 said proposals pursuant to this subclause, it shall: 9 10 (i) furnish to the Minister's reasonable satisfaction 11 evidence of all accreditations under the Rail 12 Safety Act which are required to be held by the 13 Company or any other person for the 14 construction of the Railway; and 15 16 (ii) furnish to the Minister the written consents 17 referred to in subclause (3)(c)(i) and (3)(c)(ii). 18 19 (f) The provisions of clause 10A shall apply mutatis 20 mutandis to detailed proposals submitted under this 21 subclause. 22 23 Additional Railway Proposals 24 25 (5) (a) If the Company at any time during the currency of a 26 Special Railway Licence desires to construct a 27 Railway spur line (connecting to the Railway the 28 subject of that Special Railway Licence) or desires to 29 significantly modify, expand or otherwise vary its 30 activities within the land the subject of the Special 31 Railway Licence that are the subject of this 32 Agreement and that may be carried on by it pursuant 33 to this Agreement (other than by the construction of a 34 Railway spur line) beyond those activities specified in 35 any approved proposals for that Railway, it shall give 36 notice of such desire to the Minister and furnish to the 37 Minister with that notice an outline of its proposals in 38 respect thereto (including, without limitation, such 39 matters mentioned in subclause (4)(a) as are relevant 40 or as the Minister otherwise requires). page 833 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 2 (b) If the notice relates to a Railway spur line, or to the 3 construction of Train Loading Infrastructure or Train 4 Unloading Infrastructure on land outside the then 5 Railway Corridor, the Minister shall within one month 6 of receipt of such notice advise the Company whether 7 or not he approves in-principle the proposed 8 construction of such spur line, Train Loading 9 Infrastructure or Train Unloading Infrastructure. If 10 the Minister gives in-principle approval the Company 11 may (but not otherwise) submit detailed proposals in 12 respect thereof provided that the provisions of 13 subclause (3) shall mutatis mutandis apply prior to 14 submission of detailed proposals in respect thereof. 15 16 (c) Subject to the EP Act, the provisions of this 17 Agreement and agreement at that time subsisting in 18 respect of any matters required to be agreed pursuant 19 to subclause (3)(a) (as referred to in paragraph (b)), 20 the Company shall submit to the Minister within a 21 reasonable timeframe, as determined by the Minister 22 after receipt of the notice referred to in paragraph (a) 23 (or in the case of a notice referred to in paragraph (b) 24 the giving of the Minister's in-principle consent as 25 referred to in that paragraph), detailed proposals in 26 respect of the proposed construction of such Railway 27 spur line, Train Loading Infrastructure, Train 28 Unloading Infrastructure or other proposed 29 modification, expansion or variation of its activities 30 including such of the matters mentioned in subclause 31 (4)(a) as the Minister may require. 32 33 (d) The provisions of subclause (4) (with the date for 34 submission of proposals being read as the date or time 35 determined by the Minister under paragraph (c) and 36 the reference in subclause (4)(e)(ii) to subclause 37 (3)(c)(i) being read as a reference to subclause 38 (3)(c)(iii)) and of clause 10A shall mutatis mutandis 39 apply to detailed proposals submitted pursuant to this 40 subclause. page 834 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 2 Grant of Tenure 3 4 (6) (a) On application made by the Company to the Minister 5 in such manner as the Minister may determine, not 6 later than 3 months after all its proposals submitted 7 pursuant to subclause (4)(a) have been approved or 8 deemed to be approved and the Company has 9 complied with the provisions of subclause (4)(e), the 10 State notwithstanding the Mining Act 1978 shall 11 cause to be granted to the Company: 12 13 (i) a miscellaneous licence to conduct within the 14 Railway Corridor and in accordance with its 15 approved proposals all activities (including the 16 taking of stone, sand, clay and gravel, the 17 provision of temporary accommodation 18 facilities for the railway workforce and, subject 19 to the Rights in Water and Irrigation Act 1914 20 (WA), the operation of water bores) necessary 21 for the planning, design, construction, 22 commissioning, operation and maintenance 23 within the Railway Corridor of the Railway, 24 access roads and Additional Infrastructure (if 25 any) ("the Special Railway Licence") such 26 licence to be granted under and subject to, 27 except as otherwise provided in this 28 Agreement, the Mining Act 1978 in the form of 29 the Second Schedule hereto and subject to such 30 terms and conditions as the Minister for Mines 31 may from time to time consider reasonable and 32 at a rental calculated in accordance with the 33 Mining Act 1978: 34 35 (A) prior to the Railway Operation Date, as 36 if the width of the Railway Corridor 37 were 100 metres; and 38 39 (B) on and from the Railway Operation Date, 40 at the rentals from time to time page 835 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 prescribed under the Mining Act 1978; 2 and 3 4 (ii) a miscellaneous licence or licences to allow the 5 construction, use and maintenance of Lateral 6 Access Roads within the routes agreed for those 7 Lateral Access Roads under subclause (3)(a) 8 (each a "Lateral Access Road Licence"), each 9 such licence to be granted under and subject to, 10 except as otherwise provided in this Agreement, 11 the Mining Act 1978 in the form of the Third 12 Schedule hereto and subject to such terms and 13 conditions as the Minister for Mines may from 14 time to time consider reasonable and at the 15 rentals from time to time prescribed under the 16 Mining Act 1978. 17 18 (b) On application made by the Company to the Minister 19 in such manner as the Minister may determine, not 20 later than 3 months after its proposals submitted 21 pursuant to subclause (5)(a) for the construction of 22 Lateral Access Roads for access to the Railway 23 Corridor to construct a Railway spur line have been 24 approved or deemed to be approved and the Company 25 has complied with the provisions of subclause (4)(e) 26 (as applying pursuant to subclause (5)(d)), the State 27 notwithstanding the Mining Act 1978 shall cause to be 28 granted to the Company a miscellaneous licence or 29 licences to allow the construction, use and 30 maintenance of Lateral Access Roads within the 31 routes agreed for those Lateral Access Roads under 32 subclause (3)(a)) (as applying pursuant to subclause 33 (5)(b)) (each a "Lateral Access Road Licence"), each 34 such licence to be granted under and subject to, except 35 as otherwise provided in this Agreement, the Mining 36 Act 1978 in the form of the Fourth Schedule hereto 37 and subject to such terms and conditions as the 38 Minister for Mines may from time to time consider 39 reasonable and at the rentals from time to time 40 prescribed under the Mining Act 1978. page 836 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 2 (c) Notwithstanding the Mining Act 1978, the term of the 3 Special Railway Licence shall, subject to the sooner 4 determination thereof on the cessation or sooner 5 determination of this Agreement, be for a period of 50 6 years commencing on the date of grant thereof. 7 8 (d) Notwithstanding the Mining Act 1978, the term of any 9 Lateral Access Road Licence shall, subject to the 10 sooner determination thereof on the cessation or 11 sooner determination of this Agreement, be for a 12 period of 4 years commencing on the date of grant 13 thereof. 14 15 (e) Notwithstanding the Mining Act 1978, and except as 16 required to do so by the terms of the Special Railway 17 Licence, the Company shall not be entitled to 18 surrender the Special Railway Licence or any Lateral 19 Access Road Licence or any part or parts of them 20 without the prior consent of the Minister. 21 22 (f) (i) The Company may in accordance with 23 approved proposals take stone, sand, clay and gravel 24 from the Railway Corridor for the construction, 25 operation and maintenance of the Railway 26 constructed within or approved for construction within 27 the Railway Corridor. 28 29 (ii) Notwithstanding the Mining Act 1978 no 30 royalty shall be payable under the Mining Act 31 1978 in respect of stone, sand, clay and gravel 32 which the Company is permitted by 33 subparagraph (i) to obtain from the land the 34 subject of the Special Railway Licence. 35 36 (g) For the purposes of this Agreement and without 37 limiting the operation of paragraphs (a) to (f) inclusive 38 above, the application of the Mining Act 1978 and the 39 regulations made thereunder are specifically modified; 40 page 837 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 (i) in section 91(1) by: 2 3 (A) deleting "the mining registrar or the 4 warden, in accordance with section 42 5 (as read with section 92)" and 6 substituting "the Minister"; 7 8 (B) deleting "any person" and substituting 9 "the Company (as defined in the 10 agreement ratified by and scheduled to 11 the Iron Ore (Marillana Creek) 12 Agreement Act 1991, as from time to 13 time added to, varied or amended)"; 14 15 (C) deleting "for any one or more of the 16 purposes prescribed" and substituting 17 "for the purpose specified in clause 18 14C(6)(a)(i), clause 14C(6)(a)(ii) or 19 clause 14C(6)(b), of the agreement 20 ratified by and scheduled to the Iron Ore 21 (Marillana Creek) Agreement Act 1991, 22 as from time to time added to, varied or 23 amended"; 24 25 (ii) in section 91(3)(a), by deleting "prescribed 26 form" and substituting "form required by the 27 agreement ratified by and scheduled to the Iron 28 Ore (Marillana Creek) Agreement Act 1991, as 29 from time to time added to, varied or 30 amended"; 31 32 (iii) by deleting sections 91(6), 91(9), 91(10) and 33 91B; 34 35 (iv) in section 92, by deleting "Sections 41, 42, 44, 36 46, 46A, 47 and 52 apply," and inserting 37 "Section 46A (excluding in subsection (2)(a) 38 "the mining registrar, the warden or") applies," 39 and by deleting "in those provisions" and 40 inserting "in that provision"; page 838 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 2 (v) by deleting the full stop at the end of the 3 section 94(1) and inserting, "except to the 4 extent otherwise provided in, or to the extent 5 that such terms and conditions are inconsistent 6 with, the agreement ratified by and scheduled 7 to the Iron Ore (Marillana Creek) Agreement 8 Act 1991, as from time to time added to, varied 9 or amended"; 10 11 (vi) by deleting sections 94(2), (3) and (4); 12 13 (vii) in section 96(1), by inserting after 14 "miscellaneous licence" the words "(not being a 15 miscellaneous licence granted pursuant to the 16 agreement ratified by and scheduled to the Iron 17 Ore (Marillana Creek) Agreement Act 1991, as 18 from time to time added to, varied or 19 amended"; 20 21 (viii) by deleting mining regulations 37(2), 37(3), 42 22 and 42A; and 23 24 (ix) by inserting at the beginning of mining 25 regulations 41(c) and (f) the words "subject to 26 the agreement ratified by and scheduled to the 27 Iron Ore (Marillana Creek) Agreement Act 28 1991, as from time to time added to, varied or 29 amended". 30 31 (h) If additional proposals are approved in accordance 32 with subclause (5) for the construction of a Railway 33 spur line outside the then Railway Corridor, the 34 Minister for Mines shall include the area of land 35 within which such construction is to occur in the 36 Special Railway Licence by endorsement. The area of 37 such land may be included notwithstanding that the 38 survey of the land has not been completed but subject 39 to correction to accord with the survey when 40 completed at the Company's expense. page 839 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 2 (i) If additional proposals are approved in accordance 3 with subclause (5) for the construction of Train 4 Loading Infrastructure or Train Unloading 5 Infrastructure outside the then Railway Corridor, the 6 Minister for Mines shall include the area of such land 7 within which such infrastructure is approved for 8 construction in the Special Railway Licence by 9 endorsement. The area of such land may be included 10 notwithstanding that the survey of the land has not 11 been completed but subject to correction to accord 12 with the survey when completed at the Company's 13 expense. 14 15 (j) The provisions of this subclause shall not operate so 16 as to require the State to cause a Special Railway 17 Licence or a Lateral Access Road Licence to be 18 granted or any land included in the Special Railway 19 Licence as mentioned above until all processes 20 necessary under any laws relating to native title to 21 enable that grant or inclusion of land to proceed, have 22 been completed. 23 24 Construction and operation of Railway 25 26 (7) (a) Subject to and in accordance with approved proposals, 27 the Rail Safety Act and the grant of the relevant 28 Special Railway Licence and any associated Lateral 29 Access Road Licences the Company shall in a proper 30 and workmanlike manner and in accordance with 31 recognised standards for railways of a similar nature 32 operating under similar conditions construct the 33 Railway and associated Additional Infrastructure and 34 access roads within the Railway Corridor and shall 35 also construct inter alia any necessary sidings, 36 crossing points, bridges, signalling switches and other 37 works and appurtenances and provide for crossings 38 and (where appropriate and required by the Minister) 39 grade separation or other protective devices including 40 flashing lights and boom gates at places where the page 840 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 Railway crosses or intersects with major roads or 2 existing railways. 3 4 (b) The Company shall while the holder of a Special 5 Railway Licence: 6 7 (i) keep the Railway the subject of that licence in 8 an operable state; and 9 10 (ii) ensure that the Railway the subject of that 11 licence is operated in a safe and proper manner 12 in compliance with all applicable laws from 13 time to time; and 14 15 (iii) without limiting subparagraph (ii) ensure that 16 the obligations imposed under the Rail Safety 17 Act on an owner and an operator (as those 18 terms are therein defined) are complied with in 19 connection with the Railway the subject of that 20 licence. 21 22 Nothing in this Agreement shall be construed 23 to exempt the Company or any other person 24 from compliance with the Rail Safety Act or 25 limit its application to the Company's 26 operations generally (except as otherwise may 27 be provided in that Act or regulations made 28 under it). 29 30 (c) The Company shall provide crossings for livestock 31 and also for any roads, other railways, conveyors, 32 pipelines and other utilities which exist at the date of 33 grant of the relevant Special Railway Licence or in 34 respect of land subsequently included in it at the date 35 of such inclusion and the Company shall on 36 reasonable terms and conditions allow such crossings 37 for roads, railways, conveyors, pipelines and other 38 utilities which may be constructed for future needs 39 and which may be required to cross a Railway 40 constructed pursuant to this clause. page 841 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 2 (d) Subject to clause 14B, the Company shall at all times 3 be the holder of Special Railway Licences and Lateral 4 Access Road Licences granted pursuant to this clause 5 and (without limiting clause 39 but subject to clause 6 14B) shall at all times own manage and control the 7 use of each Railway the subject of a Special Railway 8 Licence held by the Company. 9 10 (e) The Company shall not be entitled to exclusive 11 possession of the land the subject of a Special 12 Railway Licence or Lateral Access Road Licence 13 granted pursuant to this clause to the intent that the 14 State, the Minister, the Minister for Mines and any 15 persons authorised by any of them from time to time 16 shall be entitled to enter upon the land or any part of it 17 at all reasonable times and on reasonable notice with 18 all necessary vehicles, plant and equipment and for 19 purposes related to this Agreement or such other 20 purposes as they think fit but in doing so shall be 21 subject to the reasonable directions of the Company so 22 as not to unreasonably interfere with the Company's 23 operations. 24 25 (f) The Company's ownership of a Railway constructed 26 pursuant to this clause shall not give it an interest in 27 the land underlying it. 28 29 (g) The Company shall not at any time without the prior 30 consent of the Minister dismantle, sell or otherwise 31 dispose of any part or parts of any Railway 32 constructed pursuant to this clause, or permit this to 33 occur, other than for the purpose of maintenance, 34 repair, upgrade or renewal. 35 36 (h) The Company shall, subject to and in accordance with 37 approved proposals, in a proper and workmanlike 38 manner, construct any Additional Infrastructure, 39 access roads, Lateral Access Roads and other works 40 approved for construction under this clause. page 842 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 2 (i) The Company shall while the holder of a Special 3 Railway Licence at all times keep and maintain in 4 good repair and working order and condition (which 5 obligation includes, where necessary, replacing or 6 renewing all parts which are worn out or in need of 7 replacement or renewal due to their age or condition) 8 the Railway, access roads and Additional 9 Infrastructure (if any) the subject of that licence and 10 all such other works installations plant machinery and 11 equipment for the time being the subject of this 12 Agreement and used in connection with the operation 13 use and maintenance of that Railway, access roads and 14 Additional Infrastructure (if any). 15 16 (j) Subject to clause 14B, the Company shall: 17 18 (i) be responsible for the cost of construction and 19 maintenance of all Private Roads constructed 20 pursuant to this clause; and 21 22 (ii) at its own cost erect signposts and take other 23 steps that may be reasonable in the 24 circumstances to prevent any persons and 25 vehicles (other than those engaged upon the 26 Company's activities and its invitees and 27 licensees) from using the Private Roads; and 28 29 (iii) at any place where any Private Roads are 30 constructed by the Company so as to cross any 31 railways or public roads provide at its cost such 32 reasonable protection and signposting as may 33 be required by the Commissioner of Main 34 Roads or the Public Transport Authority as the 35 case may be. 36 37 (k) The provisions of clauses 23(3) and 23(6) regarding 38 third party access as well as of clause 23(4) shall 39 apply mutatis mutandis to any Railway or Railway 40 spur line constructed pursuant to this clause except page 843 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 that the Company shall not be obliged to transport 2 passengers upon any such Railway or Railway spur 3 line. 4 5 Aboriginal Heritage Act 1972 (WA) 6 7 (8) For the purposes of this clause the Aboriginal Heritage Act 8 1972 (WA) applies as if it were modified by: 9 10 (a) the insertion before the full stop at the end of 11 section 18(1) of the words: 12 13 "and the expression "the Company" means the persons 14 from time to time comprising "the Company" in their 15 capacity as such under the agreement ratified by and 16 scheduled to the Iron Ore (Marillana Creek) 17 Agreement Act 1991, as from time to time added to, 18 varied or amended in relation to the use or proposed 19 use of land pursuant to clause 14C of that agreement 20 after and in accordance with approved proposals 21 under clause 14C of that agreement and in relation to 22 the use of that land before any such approval of 23 proposals where the Company has the requisite 24 authority to enter upon and so use the land"; 25 (b) the insertion in sections 18(2), 18(4), 18(5) and 18(7) 26 of the words "or the Company as the case may be" 27 after the words "owner of any land"; 28 29 (c) the insertion in section 18(3) of the words "or the 30 Company as the case may be" after the words "the 31 owner"; 32 33 (d) the insertion of the following sentences at the end of 34 section 18(3): 35 36 "In relation to a notice from the Company the 37 conditions that the Minister may specify can as 38 appropriate include, among other conditions, a 39 condition restricting the Company's use of the relevant 40 land to after the approval or deemed approval as the page 844 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 case may be under the abovementioned agreement of 2 all of the Company's submitted initial proposals 3 thereunder for the Railway Operation (as defined in 4 clause 14C(1) of the abovementioned agreement), or 5 in the case of additional proposals submitted or to be 6 submitted by the Company to after the approval or 7 deemed approval under that agreement of such 8 additional proposals, and to the extent so approved."; 9 and 10 11 (e) the insertion in sections 18(2) and 18(5) of the words 12 "or it as the case may be" after the word "he". 13 14 The Company acknowledges that nothing in this 15 subclause (8) nor the granting of any consents under 16 section 18 of the Aboriginal Heritage Act 1972 (WA) 17 will constitute or is to be construed as constituting the 18 approval of any proposals submitted or to be 19 submitted by the Company under this Agreement or as 20 the grant or promise of land tenure for the purposes of 21 this Agreement. 22 23 Taking of land for the purposes of this clause 24 25 (9) (a) The State is hereby empowered, as and for a public 26 work under Parts 9 and 10 of the LAA, to take for the 27 purposes of this clause any land (other than any part 28 of a Port) which in the opinion of the Company is 29 necessary for the relevant Railway Operation and 30 which the Minister determines is appropriate to be 31 taken for the relevant Railway Operation (except any 32 land the taking of which would be contrary to the 33 provisions of a Government agreement entered into 34 before the submission of the proposals relating to the 35 proposed taking) and notwithstanding any other 36 provisions of that Act may license that land to the 37 Company. 38 39 (b) In applying Parts 9 and 10 of the LAA for the 40 purposes of this clause: page 845 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 2 (i) "land" in that Act includes a legal or equitable 3 estate or interest in land; 4 5 (ii) sections 170, 171, 172, 173, 174, 175 and 184 6 of that Act do not apply; and 7 8 (iii) that Act applies as if it were modified in section 9 177(2) by inserting - 10 (A) after "railway" the following - 11 "or land is being taken pursuant to a 12 Government agreement as defined in 13 section 2 of the Government Agreements 14 Act 1979 (WA)"; and 15 (B) after "that Act" the following - 16 "or that Agreement as the case may be". 17 (c) The Company shall pay to the State on demand the 18 costs of or incidental to any land taken at the request 19 of and on behalf of the Company including but not 20 limited to any compensation payable to any holder of 21 native title or of native title rights and interests in the 22 land. 23 24 Notification of Railway Operation Date 25 26 (10) (a) The Company shall from the date occurring 6 months 27 before the date for completion of construction of a 28 Railway specified in its time program for the 29 commencement and completion of construction of that 30 Railway submitted under subclause (4)(a), keep the 31 Minister fully informed as to: 32 33 (i) the progress of that construction and its likely 34 completion and commissioning; and 35 36 (ii) the likely Railway Operation Date. 37 page 846 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 (b) The Company shall on the Railway Operation Date 2 notify the Minister that the first carriage of iron ore, 3 freight goods or other products as the case may be 4 over the Railway (other than for construction or 5 commissioning purposes) has occurred. 6 7 (c) The Company shall from the date occurring 6 months 8 before the date for completion of construction of a 9 Railway spur line specified in its time program for the 10 commencement and completion of construction of that 11 spur line submitted under subclause (5)(c) keep the 12 Minister fully informed as to: 13 14 (i) the progress of that construction and its likely 15 completion and commissioning; and 16 17 (ii) in respect of it, the likely Railway spur line 18 Operation Date. 19 20 (d) The Company shall on the Railway spur line 21 Operation Date in respect of any Railway spur line 22 notify the Minister that the first carriage of iron ore, 23 freight goods or other products as the case may be 24 over such spur line (other than for construction or 25 commissioning purposes) has occurred."; 26 27 (13) by inserting after subclause (3) of clause 18 the following new 28 subclause: 29 30 "(3a) To the extent determined by the Minister and subject to the 31 provisions of the laws from time to time of the said State 32 governing the generation, supply and transmission of 33 electricity, the Company may subject to and in accordance 34 with approved proposals generate transmit and supply 35 electricity for the purpose of supply to: 36 37 (a) "the Company" or "Joint Venturers" as the case 38 may be as defined in, and for the purpose of an 39 Integration Agreement, for its or their purposes 40 thereunder; page 847 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 2 (b) the holders from time to time of a Mining Act 1978 3 mining lease located in, or proximate to, the Pilbara 4 region of the said State which is held by a Related 5 Entity alone or with a third party or parties 6 (excluding any mining lease granted pursuant to, or 7 held under, a Government agreement) for the 8 purpose of their iron ore mining operations on that 9 mining lease; and 10 11 (c) with the prior approval of the Minister, "the 12 Company" or "the Joint Venturers" as the case may 13 be as defined in, and for the purpose of a 14 Government agreement (excluding an Integration 15 Agreement) for the mining of iron ore in, or 16 proximate to, the Pilbara region of the said State 17 for the purpose of its or their operations under that 18 agreement. "; 19 20 (14) by inserting after subclause (2) of clause 22 the following new 21 subclause. 22 23 "(2a) The provisions of subclause (1) of this clause shall not 24 operate so as to require the State to grant or vary, or 25 cause to be granted or varied, any lease licence or 26 other right or title until all processes necessary under 27 any laws relating to native title to enable that grant or 28 variation to proceed, have been completed"; 29 30 (15) by deleting clause 23(5); 31 32 (16) in clause 30(3) (a) by inserting "or held pursuant to this 33 Agreement" after "under or pursuant to this Agreement"; 34 35 (17) in clause 31(1) by inserting "or held pursuant to this Agreement" 36 after "granted under or pursuant to this Agreement"; 37 38 (18) in clause 34(1)(a)(i) by inserting "granted under or pursuant to this 39 Agreement or held pursuant to this Agreement" after "grant or 40 other title"; page 848 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 2 (19) in clause 34(4) by deleting "occupied by the Company" and 3 substituting "the subject of any lease licence easement or other title 4 granted under or pursuant to this Agreement or held pursuant to 5 this Agreement"; 6 7 (20) in clause 35(1)(a) by inserting "or held pursuant hereto" after 8 "granted hereunder or pursuant hereto"; 9 10 (21) in clause 35(2) by inserting "or held pursuant to this Agreement" 11 after "under or pursuant to this Agreement"; 12 13 (22) by deleting clause 36; and 14 15 (23) by inserting the following sentence at the end of clause 37: 16 17 "As a separate independent indemnity the Company will indemnify 18 and keep indemnified the State and its servants agents and 19 contractors in respect of all actions suits claims demands or costs 20 of third parties arising out of or in connection with any use, making 21 available for use or other activities of the Company as referred to 22 in clause 14A."; and 23 24 (24) inserting after the Schedule the following new schedules: 25 26 27 page 849 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 " SECOND SCHEDULE 2 3 WESTERN AUSTRALIA 4 5 IRON ORE (MARILLANA CREEK) AGREEMENT ACT 1991 6 7 MINING ACT 1978 8 9 MISCELLANEOUS LICENCE FOR A RAILWAY AND OTHER 10 PURPOSES 11 12 13 No. MISCELLANEOUS LICENCE [ ] 14 15 WHEREAS by the Agreement (hereinafter called "the Agreement") ratified by 16 and scheduled to the Iron Ore (Marillana Creek) Agreement Act 1991, as from 17 time to time added to, varied or amended, the State agreed to grant to [ ] 18 (hereinafter with its successors and permitted assigns called "the Company") a 19 miscellaneous licence for the construction operation and maintenance of a 20 Railway (as defined in clause 14C(1) of the Agreement and otherwise as 21 provided in the Agreement) and, if applicable, other purposes AND WHEREAS 22 the Company pursuant to clause 14C(6)(a) of the Agreement has made 23 application for the said licence; 24 25 NOW in consideration of the rents reserved by and the provisions of the 26 Agreement and in pursuance of the Iron Ore (Marillana Creek) Agreement Act 27 1991, as from time to time added to, varied or amended, the Company is hereby 28 granted by this licence authority to conduct on the land the subject of this 29 licence as more particularly delineated and described from time to time in the 30 Schedule hereto all activities (including the taking of stone, sand, clay and 31 gravel, the provision of temporary accommodation facilities for the railway 32 workforce in accordance with the Agreement and, subject to the Rights in Water 33 and Irrigation Act 1914 (WA), the operation of water bores) necessary for the 34 planning, design, construction, commissioning, operation and maintenance on 35 the land the subject of this licence of the Railway and Additional Infrastructure 36 (as defined in clause 14C(1) of the Agreement) and access roads to be located 37 on the land the subject of this licence in accordance with the provisions of the 38 Agreement and proposals approved under the Agreement, for the term of 50 39 years from the date hereof (subject to the sooner determination of the term upon 40 the determination of the Agreement) and upon and subject to the terms page 850 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 covenants and conditions set out in the Agreement and the Mining Act 1978 as 2 it applies to this licence, and any amendments to the Agreement and the Mining 3 Act 1978 from time to time and to the terms and conditions (if any) now or 4 hereafter endorsed hereon and the payment of rentals in respect of this licence 5 in accordance with clause 14C(6)(a)(i) of the Agreement PROVIDED 6 ALWAYS that this licence shall not be determined or forfeited otherwise than 7 in accordance with the Agreement. 8 9 In this licence: 10 11 - If the Company be more than one the liability of the Company 12 hereunder shall be joint and several. 13 14 - Reference to an Act includes all amendments to that Act for the time 15 being in force and also any Act passed in substitution therefore or in 16 lieu thereof and to the regulations and by-laws of the time being in 17 force thereunder. 18 19 - Reference to "the Agreement" means such agreement as from time to 20 time added to, varied or amended. 21 22 - The terms "approved proposals", "Railway", "Railway Operation 23 Date", and "Railway spur line" have the meanings given in the 24 Agreement. 25 26 ENDORSEMENTS AND CONDITIONS 27 28 Endorsements 29 30 1. This licence is granted in accordance with proposals submitted on 31 [ ], and approved by the Minister (as defined in the Agreement) on 32 [ ], under the Agreement. 33 34 2. The Company is permitted to, in accordance with approved proposals, 35 take stone, sand, clay and gravel from the land the subject of this 36 licence for the construction, operation and maintenance of the Railway 37 (including any Railway spur line) constructed within or approved for 38 construction within the area of land the subject of this licence. page 851 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 3. Notwithstanding the Mining Act 1978, no royalty shall be payable 2 under the Mining Act 1978 in respect of stone, sand, clay and gravel 3 which the Company is permitted by the Agreement to obtain from the 4 land the subject of this licence. 5 6 4. [Any further endorsement which the Minister for Mines may, 7 consistent with the provisions of the Agreement, determines and 8 thereafter impose in respect of this licence including during the term 9 of the Agreement.] 10 11 Conditions 12 13 1. (a) Except as provided in paragraph (b), the Company shall 14 within 2 years after the Railway Operation Date surrender in 15 accordance with the provisions of the Mining Act 1978 the 16 area of this licence down to a maximum of 100 metres width 17 or as otherwise approved by the Minister (as defined in the 18 Agreement) for the safe operation of the Railway then 19 constructed or approved for construction under approved 20 proposals. 21 22 (b) Paragraph (a) shall not apply to land the subject of this 23 licence that was included in this licence pursuant to clause 24 14C(6)(h) or clause 14C(6)(i) of the Agreement. 25 26 2. The Company shall as soon as possible after the construction of a 27 Railway spur line or of an expansion or extension thereof as the case 28 may be surrender in accordance with the Mining Act 1978 the land 29 the subject of this licence that was included in this licence pursuant 30 to clause 14C(6)(h) of the Agreement for the purpose of such 31 construction down to a maximum of 100 metres in width or as 32 otherwise approved by the Minister (as defined in the Agreement) for 33 the safe operation of that Railway spur line or expansion or extension 34 thereof as the case may be then constructed or approved for 35 construction under approved proposals. 36 37 3. [Any further conditions which the Minister for Mines may, consistent 38 with the provisions of the Agreement, determines and thereafter 39 impose in respect of this licence including during the term of the 40 Agreement.] page 852 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 SCHEDULE 2 3 Land description 4 5 Locality: 6 Mineral Field 7 Area: 8 9 DATED at Perth this day of . 10 11 MINISTER FOR MINES 12 page 853 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 THIRD SCHEDULE 2 3 WESTERN AUSTRALIA 4 5 IRON ORE (MARILLANA CREEK) AGREEMENT ACT 1991 6 7 MINING ACT 1978 8 9 MISCELLANEOUS LICENCE FOR A LATERAL ACCESS ROAD 10 11 12 No. MISCELLANEOUS LICENCE [ ] 13 14 WHEREAS by the Agreement (hereinafter called "the Agreement") ratified by 15 and scheduled to the Iron Ore (Marillana Creek) Agreement Act 1991, as from 16 time to time added to, varied or amended, the State agreed to grant to [ ] 17 (hereinafter with its successors and permitted assigns called "the Company") a 18 miscellaneous licence for the construction use and maintenance of a Lateral 19 Access Road (as defined in the Agreement) AND WHEREAS the Company 20 pursuant to clause 14C(6)(a)(ii) of the Agreement has made application for the 21 said licence; 22 23 NOW in consideration of the rents reserved by and the provisions of the 24 Agreement and in pursuance of the Iron Ore (Marillana Creek) Agreement Act 25 1991, as from time to time added to, varied or amended, the Company is hereby 26 authorised to construct use and maintain a road on the land more particularly 27 delineated and described from time to time in the Schedule hereto in accordance 28 with the provisions of the Agreement and proposals approved under the 29 Agreement for a term of 4 years commencing on the date hereof (subject to the 30 sooner determination of the term upon the cessation or determination of the 31 Agreement) and for the purposes and upon and subject to the terms covenants 32 and conditions set out in the Agreement and the Mining Act 1978 as it applies to 33 this licence, and any amendments to the Agreement and the Mining Act 1978 34 from time to time and to the terms and conditions (if any) now or hereafter 35 endorsed hereon and the payment of rentals in respect of this licence in 36 accordance with clause 14C(6)(a)(ii) of the Agreement PROVIDED ALWAYS 37 that this licence shall not be determined or forfeited otherwise than in 38 accordance with the Agreement. 39 page 854 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 In this licence: 2 3 - If the Company be more than one the liability of the Company 4 hereunder shall be joint and several. 5 6 - Reference to an Act includes all amendments to that Act for the time 7 being in force and also any Act passed in substitution therefore or in 8 lieu thereof and to the regulations and by-laws of the time being in 9 force thereunder. 10 11 - Reference to "the Agreement" means such agreement as from time to 12 time added to, varied or amended. 13 14 ENDORSEMENTS AND CONDITIONS 15 16 Endorsements 17 18 1. This licence is granted in accordance with proposals submitted on 19 [ ], and approved by the Minister (as defined in the Agreement) on 20 [ ], under the Agreement. 21 22 2. [Any further endorsement which the Minister for Mines may, 23 consistent with the provisions of the Agreement, determines and 24 thereafter impose in respect of this licence including during the term 25 of the Agreement.] 26 27 Conditions 28 29 [Such conditions which the Minister for Mines may, consistent with the 30 provisions of the Agreement, determines and thereafter impose in respect of the 31 licence, including during the term of the Agreement.] 32 page 855 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 SCHEDULE 2 3 Description of land 4 5 Locality: 6 Mineral Field: 7 Area: 8 9 DATED at Perth this day of . 10 11 MINISTER FOR MINES 12 13 page 856 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 FOURTH SCHEDULE 2 3 WESTERN AUSTRALIA 4 5 IRON ORE (MARILLANA CREEK) AGREEMENT ACT 1991 6 7 MINING ACT 1978 8 9 MISCELLANEOUS LICENCE FOR A LATERAL ACCESS ROAD 10 11 12 No. MISCELLANEOUS LICENCE [ ] 13 14 WHEREAS by the Agreement (hereinafter called "the Agreement") ratified by 15 and scheduled to the Iron Ore (Marillana Creek) Agreement Act 1991, as from 16 time to time added to, varied or amended, the State agreed to grant to [ ] 17 (hereinafter with its successors and permitted assigns called "the Company") a 18 miscellaneous licence for the construction use and maintenance of a Lateral 19 Access Road (as defined in the Agreement) AND WHEREAS the Company 20 pursuant to clause 14C(6)(b) of the Agreement has made application for the said 21 licence; 22 23 NOW in consideration of the rents reserved by and the provisions of the 24 Agreement and in pursuance of the Iron Ore (Marillana Creek) Agreement Act 25 1991, as from time to time added to, varied or amended, the Company is hereby 26 authorised to construct use and maintain a road on the land more particularly 27 delineated and described from time to time in the Schedule hereto in accordance 28 with the provisions of the Agreement and proposals approved under the 29 Agreement for a term of 4 years commencing on the date hereof (subject to the 30 sooner determination of the term upon the cessation or determination of the 31 Agreement) and for the purposes and upon and subject to the terms covenants 32 and conditions set out in the Agreement and the Mining Act 1978 as it applies to 33 this licence, and any amendments to the Agreement and the Mining Act 1978 34 from time to time and to the terms and conditions (if any) now or hereafter 35 endorsed hereon and the payment of rentals in respect of this licence in 36 accordance with clause 14C(6)(b) of the Agreement PROVIDED ALWAYS 37 that this licence shall not be determined or forfeited otherwise than in 38 accordance with the Agreement. 39 page 857 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 In this licence: 2 3 - If the Company be more than one the liability of the Company 4 hereunder shall be joint and several. 5 6 - Reference to an Act includes all amendments to that Act for the time 7 being in force and also any Act passed in substitution therefore or in 8 lieu thereof and to the regulations and by-laws of the time being in 9 force thereunder. 10 11 - Reference to "the Agreement" means such agreement as from time to 12 time added to, varied or amended. 13 14 ENDORSEMENTS AND CONDITIONS 15 16 Endorsements 17 18 1. This licence is granted in accordance with proposals submitted on 19 [ ], and approved by the Minister (as defined in the Agreement) on 20 [ ], under the Agreement. 21 22 2. [Any further endorsement which the Minister for Mines may, 23 consistent with the provisions of the Agreement, determines and 24 thereafter impose in respect of this licence including during the term 25 of the Agreement.] 26 27 Conditions 28 29 [Such conditions which the Minister for Mines may, consistent with the 30 provisions of the Agreement, determines and thereafter impose in respect of the 31 licence, including during the term of the Agreement.] 32 page 858 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 SCHEDULE 2 3 Description of land 4 5 Locality: 6 Mineral Field: 7 Area: 8 9 DATED at Perth this day of . 10 11 MINISTER FOR MINES" 12 page 859 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Part 11 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 49 1 EXECUTED as a deed. 2 3 SIGNED by THE HONOURABLE ) 4 COLIN JAMES BARNETT ) [Signature] 5 in the presence of: ) 6 [Signature] STEPHEN WOOD 7 8 9 10 EXECUTED by BHP BILLITON ) 11 MINERALS PTY. LTD. ACN 008 ) 12 694 782 in accordance with section ) 13 127(1) of the Corporations Act ) 14 15 [Signature] [Signature] Signature of Director Signature of Director/Company Secretary 16 STEWART HART ROBIN B LEES Name of Director Name of Director/Company Secretary 17 18 19 20 EXECUTED by MITSUI IRON ORE ) 21 CORPORATION PTY. LTD. ACN ) 22 050 157 456 in accordance with section ) 23 127(1) of the Corporations Act ) 24 [Signature] [Signature] Signature of Director Signature of Director/Company Secretary 25 RYUZO NAKAMURA GAVIN PETER PATTERSON Name of Director Name of Director/Company Secretary 26 27 page 860 Iron Ore Agreements Legislation Amendment Bill (No. 2) 2010 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 11 s. 49 1 Signed by Shuzaburo Tsuchihashi as ) 2 attorney for ITOCHU MINERALS & ) 3 ENERGY OF AUSTRALIA PTY. ) 4 LTD. ACN 009 256 259 under power ) 5 of attorney dated 12 November 2010 ) 6 in the presence of: ) 7 [Signature] [Signature] Signature of witness Shuzaburo Tsuchihashi 8 YASUSHI FUKUMURA Name of witness (print) 9
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