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Western Australia Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 CONTENTS Part 1 -- Preliminary 1. Short title 3 2. Commencement 3 Part 2 -- Iron Ore (Mount Newman) Agreement Act 1964 amended 3. Act amended 4 4. Section 2 amended 4 5. Section 4D inserted 4 4D. Seventh Variation Agreement 4 6. Eighth Schedule inserted 5 Eighth Schedule -- Seventh Variation Agreement Part 3 -- Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended 7. Act amended 22 8. Section 3 amended 22 9. Section 5D inserted 22 5D. Fifth Variation Agreement 22 10. Sixth Schedule inserted 23 251--1 page i Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Contents Sixth Schedule -- Fifth Variation Agreement Part 4 -- Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended 11. Act amended 43 12. Section 2 amended 43 13. Section 8 inserted 43 8. Third Variation Agreement 43 14. Schedule 4 inserted 44 Schedule 4 -- Third Variation Agreement Part 5 -- Iron Ore (McCamey's Monster) Agreement Authorisation Act 1972 amended 15. Act amended 60 16. Section 10 inserted 60 10. Fifth Variation Agreement 60 17. Schedule 6 inserted 61 Schedule 6 -- Fifth Variation Agreement Part 6 -- Iron Ore (Marillana Creek) Agreement Act 1991 amended 18. Act amended 77 19. Section 3 amended 77 20. Section 10 inserted 77 10. Fourth Variation Agreement 77 21. Schedule 5 inserted 78 Schedule 5 -- Fourth Variation Agreement Part 7 -- Port Hedland iron ore processing projects Division 1 -- Termination agreement 22. Ratification and operation of termination agreement 96 page ii Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Contents Division 2 -- Repeal of Acts relating to the Port Hedland iron ore processing projects 23. Acts repealed 96 Schedule 1 -- Termination agreement page iii Western Australia LEGISLATIVE ASSEMBLY Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 A Bill for An Act -- • to amend these Acts -- • 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; and • to ratify an agreement between the State and BHP Billiton Direct Reduced Iron Pty. Ltd. and others that provides for the termination of an agreement made on 16 October 1995 and subsequently varied by an agreement made on 11 April 2000, between the State and BHP Billiton Direct Reduced Iron Pty. Ltd. (under its former name, BHP Direct Reduced Iron Pty. Ltd.); page 1 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 and • to repeal these Acts -- • the Iron Ore Beneficiation (BHP) Agreement Act 1996; • the Iron Ore - Direct Reduced Iron (BHP) Agreement Act 1996; • the Iron Ore Processing (BHP Minerals) Agreement Act 1994. The Parliament of Western Australia enacts as follows: page 2 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Preliminary Part 1 s. 1 1 Part 1 -- Preliminary 2 1. Short title 3 This is the Iron Ore Agreements Legislation (Amendment, 4 Termination and Repeals) Act 2011. 5 2. Commencement 6 This Act comes into operation as follows -- 7 (a) Part 1 --on the day on which this Act receives the Royal 8 Assent (assent day); 9 (b) the rest of the Act -- on the day after assent day. page 3 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 2 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 3 1 Part 2 -- Iron Ore (Mount Newman) Agreement 2 Act 1964 amended 3 3. Act amended 4 This Part amends the Iron Ore (Mount Newman) Agreement 5 Act 1964. 6 4. Section 2 amended 7 (1) In section 2 insert in alphabetical order: 8 9 the Seventh Variation Agreement means the 10 agreement a copy of which is set out in the Eighth 11 Schedule; 12 13 (2) In section 2 in the definition of the Agreement delete "Part 8 14 and the Sixth Variation Agreement;" and insert: 15 16 Part 8, the Sixth Variation Agreement and the Seventh 17 Variation Agreement; 18 19 5. Section 4D inserted 20 After section 4C insert: 21 22 4D. Seventh Variation Agreement 23 (1) The Seventh Variation Agreement is ratified. 24 (2) The implementation of the Seventh Variation 25 Agreement is authorised. 26 (3) Without limiting or otherwise affecting the application 27 of the Government Agreements Act 1979, the Seventh 28 Variation Agreement is to operate and take effect 29 despite any other Act or law. 30 page 4 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 2 s. 6 1 6. Eighth Schedule inserted 2 After the Seventh Schedule insert: 3 4 Eighth Schedule -- Seventh Variation Agreement 5 [s. 2] 6 2011 7 THE HONOURABLE COLIN JAMES BARNETT 8 PREMIER OF THE STATE OF WESTERN AUSTRALIA 9 AND 10 BHP BILLITON MINERALS PTY. LTD. 11 ACN 008 694 782 12 MITSUI-ITOCHU IRON PTY. LTD. 13 ACN 008 702 761 14 ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY. LTD. 15 ACN 009 256 259 16 ________________________________________________________________ 17 IRON ORE (MOUNT NEWMAN) AGREEMENT 1964 18 RATIFIED VARIATION AGREEMENT 19 ________________________________________________________________ 20 21 22 [Solicitor's details] page 5 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 2 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 6 1 THIS AGREEMENT is made this 7th day of November 2011 2 3 BETWEEN 4 5 THE HONOURABLE COLIN JAMES BARNETT MLA., Premier of the 6 State of Western Australia, acting for and on behalf of the said State and 7 instrumentalities thereof from time to time (State) 8 AND 9 BHP BILLITON MINERALS PTY. LTD. ACN 008 694 782 of Level 17, St 10 Georges Square, 225 St Georges Terrace, Perth, Western Australia, 11 MITSUI-ITOCHU IRON PTY. LTD. ACN 008 702 761 of Level 16, 12 Exchange Plaza, 2 The Esplanade, Perth, Western Australia and ITOCHU 13 MINERALS & ENERGY OF AUSTRALIA PTY. LTD. ACN 009 256 259 14 of Level 22, 221 St Georges Terrace, Perth, Western Australia (Joint 15 Venturers). 16 17 RECITALS: 18 A. The State and the Joint Venturers are now the parties to the agreement 19 dated 26 August 1964, approved by and scheduled to the Iron Ore 20 (Mount Newman) Agreement Act 1964 and which as subsequently 21 added to, varied or amended is referred to in this Agreement as the 22 "Principal Agreement". 23 B. The State and the Joint Venturers wish to vary the Principal 24 Agreement. 25 26 THE PARTIES AGREE AS FOLLOWS: 27 1. Interpretation 28 Subject to the context, the words and expressions used in this 29 Agreement have the same meanings respectively as they have in and 30 for the purpose of the Principal Agreement. page 6 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 2 s. 6 1 2. Ratification and Operation 2 (1) The State shall introduce and sponsor a Bill in the State Parliament of 3 Western Australia prior to 31 December 2011 or such later date as 4 may be agreed between the parties hereto to ratify this Agreement. 5 The State shall endeavour to secure the timely passage of such Bill as 6 an Act. 7 (2) The provisions of this Agreement other than this clause and clause 1 8 will not come into operation until the day after the day on which the 9 Bill referred to in subclause (1) has been passed by the State 10 Parliament of Western Australia and commences to operate as an Act. 11 (3) If by 30 June 2012 the said Bill has not commenced to operate as an 12 Act then, unless the parties hereto otherwise agree, this Agreement 13 will then cease and determine and no party hereto will have any claim 14 against any other party hereto with respect to any matter or thing 15 arising out of, done, performed, or omitted to be done or performed 16 under this Agreement. 17 (4) On the day after the day on which the said Bill commences to operate 18 as an Act all the provisions of this Agreement will operate and take 19 effect despite any enactment or other law. 20 3. Variation of Principal Agreement 21 The Principal Agreement is varied as follows: 22 (1) in clause 1 by inserting in the appropriate alphabetical positions the 23 following new definitions: 24 "Eligible Existing Tenure" means: 25 (a) (i) a miscellaneous licence or general purpose lease 26 granted to the Company under the Mining Act 1978; 27 or 28 (ii) a lease or easement granted to the Company under 29 the LAA, 30 and not clearly, to the satisfaction of the Minister, granted 31 under or pursuant to or held pursuant to this Agreement; or 32 (b) an application by the Company for the grant to it of a 33 tenement referred to in paragraph (a)(i) (which application page 7 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 2 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 6 1 has not clearly, to the satisfaction of the Minister, been made 2 under or pursuant to this Agreement) and as the context 3 requires the tenement granted pursuant to such an 4 application, 5 where that tenure was granted or that application was made (as the 6 case may be) on or before 1 October 2011; 7 "LAA" means the Land Administration Act 1997 (WA); 8 "Relevant Land", in relation to Eligible Existing Tenure or Special 9 Advance Tenure, means the land which is the subject of that Eligible 10 Existing Tenure or Special Advance Tenure, as the case may be; 11 "second variation date" means the date on which clause 3 of the 12 variation agreement made on or about 7 November 2011 between the 13 State and the Company comes into operation; 14 "Special Advance Tenure" means: 15 (a) a miscellaneous licence or general purpose lease requested 16 under clause 8(2b) to be granted to the Company under the 17 Mining Act 1978; or 18 (b) an easement or a lease requested under clause 8(2b) to be 19 granted to the Company under the LAA, 20 and as the context requires such tenure if granted; 21 (2) by inserting after clause 7C the following new clauses: 22 "Community development plan 23 7D. (1) In this Clause, the term "community and social 24 benefits" includes: 25 (a) assistance with skills development and 26 training opportunities to promote work 27 readiness and employment for persons 28 living in the Pilbara region of the said State; 29 (b) regional development activities in the 30 Pilbara region of the said State, including 31 partnerships and sponsorships; page 8 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 2 s. 6 1 (c) contribution to any community projects, 2 town services or facilities; and 3 (d) a regionally based workforce. 4 (2) The Company acknowledges the need for community 5 and social benefits flowing from this Agreement. 6 (3) The Company agrees that: 7 (a) it shall prepare a plan which describes the 8 Company's proposed strategies for 9 achieving community and social benefits in 10 connection with its activities under this 11 Agreement; and 12 (b) the Company shall, not later than 3 months 13 after the second variation date, submit to 14 the Minister the plan prepared under 15 paragraph (a) and confer with the Minister 16 in respect of the plan. 17 (4) The Minister shall within 2 months after receipt of a 18 plan submitted under subclause (3)(b), either notify 19 the Company that the Minister approves the plan as 20 submitted or notify the Company of changes which 21 the Minister requires be made to the plan. If the 22 Company is unwilling to accept the changes which 23 the Minister requires it shall notify the Minister to 24 that effect and either party may refer to arbitration 25 hereunder the question of the reasonableness of the 26 changes required by the Minister. 27 (5) The effect of an award made on an arbitration 28 pursuant to subclause (4) shall be that the relevant 29 plan submitted by the Company pursuant to 30 subclause (3)(b) shall, with such changes required by 31 the Minister under subclause (4) as the arbitrator 32 determines to be reasonable (with or without 33 modification by the arbitrator), be deemed to be the 34 plan approved by the Minister under this clause. page 9 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 2 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 6 1 (6) At least 3 months before the anticipated submission 2 of proposals relating to a proposed development 3 pursuant to any of Clauses 7A, 9A or 9E, the 4 Company must, unless the Minister otherwise 5 requires, give to the Minister information about how 6 the proposed development may affect the plan 7 approved or deemed to be approved by the Minister 8 under this Clause. This obligation operates in 9 relation to all proposals submitted on or after the date 10 that is 4 months after the date when a plan is first 11 approved or deemed to be approved under this 12 Clause. 13 (7) The Company shall at least annually report to the 14 Minister about the Company's implementation of the 15 plan approved or deemed to be approved by the 16 Minister under this Clause. 17 (8) At the request of either of them made at any time and 18 from time to time, the Minister and the Company 19 shall confer as to any amendments desired to any plan 20 approved or deemed to be approved by the Minister 21 under this Clause and may agree to amendment of the 22 plan or adoption of a new plan. Any such amended 23 plan or new plan will be deemed to be the plan 24 approved by the Minister under this Clause in respect 25 of the development to which it relates. 26 (9) During the currency of this Agreement, the Company 27 shall implement the plan approved or deemed to be 28 approved by the Minister under this Clause. 29 Local participation plan 30 7E. (1) In this Clause, the term "local industry participation 31 benefits" means: 32 (a) the use and training of labour available 33 within the said State; 34 (b) the use of the services of engineers, 35 surveyors, architects and other professional 36 consultants, experts, specialists, project page 10 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 2 s. 6 1 managers and contractors available within 2 the said State; and 3 (c) the procurement of works, materials, plant, 4 equipment and supplies from Western 5 Australian suppliers, manufacturers and 6 contractors. 7 (2) The Company acknowledges the need for local 8 industry participation benefits flowing from this 9 Agreement. 10 (3) The Company agrees that it shall, not later than 11 3 months after the second variation date, prepare and 12 provide to the Minister a plan which contains: 13 (a) a clear statement on the strategies which the 14 Company will use, and require a third party 15 as referred to in subclause (7) to use, to 16 maximise the uses and procurement 17 referred to in subclause (1); 18 (b) detailed information on the procurement 19 practices the Company will adopt, and 20 require a third party as referred to in 21 subclause (7) to adopt, in calling for tenders 22 and letting contracts for works, materials, 23 plant, equipment and supplies stages in 24 relation to a proposed development and 25 how such practices will provide fair and 26 reasonable opportunity for suitably 27 qualified Western Australian suppliers, 28 manufacturers and contractors to tender or 29 quote for works, materials, plant, 30 equipment and supplies; 31 (c) detailed information on the methods the 32 Company will use, and require a third party 33 as referred to in subclause (7) to use, to 34 have its respective procurement officers 35 promptly introduced to Western Australian 36 suppliers, manufacturers and contractors 37 seeking such introduction; and page 11 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 2 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 6 1 (d) details of the communication strategies the 2 Company will use, and require a third party 3 as referred to in subclause (7) to use, to 4 alert Western Australian engineers, 5 surveyors, architects and other professional 6 consultants, experts, specialists, project 7 managers and consultants and Western 8 Australian suppliers, manufacturers and 9 contractors to services opportunities and 10 procurement opportunities respectively as 11 referred to in subclause (1). 12 It is acknowledged by the Company that the strategies 13 of the Company referred to in subclause (3)(a) will 14 include strategies of the Company in relation to 15 supply of services, labour, works, materials, plant, 16 equipment or supplies for the purposes of this 17 Agreement. 18 (4) At the request of either of them made at any time and 19 from time to time, the Minister and the Company 20 shall confer as to any amendments desired to any plan 21 provided under this clause and may agree to the 22 amendment of the plan or the provision of a new plan 23 in substitution for the one previously provided. 24 (5) At least 6 months before the anticipated submission 25 of proposals relating to a proposed development 26 pursuant to any of Clauses 7A, 9A or 9E, the 27 Company must, unless the Minister otherwise 28 requires, give to the Minister information about the 29 implementation of the plan provided under this 30 Clause in relation to the proposed development. This 31 obligation operates in relation to all proposals 32 submitted on or after the date that is 7 months after 33 the date when a plan is first provided under this 34 Clause. 35 (6) During the currency of this Agreement the Company 36 shall implement the plan provided under this Clause. page 12 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 2 s. 6 1 (7) The Company shall: 2 (a) in every contract entered into with a third 3 party where the third party has an 4 obligation or right to procure the supply of 5 services, labour, works, materials, plant, 6 equipment or supplies for or in connection 7 with a proposed development, ensure that 8 the contract contains appropriate provisions 9 requiring the third party to undertake 10 procurement activities in accordance with 11 the plan provided under this Clause; and 12 (b) use reasonable endeavours to ensure that 13 the third party complies with those 14 provisions."; 15 (3) in clause 8: 16 (a) by inserting after paragraph (b)(ii) of subclause (1) the 17 following new paragraph: 18 "Notwithstanding clause 9C(2)(b)(iv), detailed proposals may 19 refer to activities on tenure which is proposed to be granted 20 pursuant to this paragraph (b) as if that tenure was granted 21 pursuant to this Agreement (but this does not limit the 22 powers or discretions of the Minister under this Agreement or 23 the Minister responsible for the administration of any 24 relevant Act with respect to the grant of the tenure);"; 25 (b) by inserting after subclause (2) the following new subclauses: 26 "Application for Eligible Existing Tenure to be held 27 pursuant to this Agreement 28 (2a) (a) The Minister may at the request of the 29 Company from time to time made during 30 the continuance of this Agreement approve 31 Eligible Existing Tenure becoming held 32 pursuant to this Agreement on such 33 conditions as the Minister sees fit 34 (including, without limitation and 35 notwithstanding the Mining Act 1978 and page 13 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 2 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 6 1 the LAA, as to the surrender of land, the 2 submission of detailed proposals and the 3 variation of the terms and conditions of the 4 Eligible Existing Tenure (including for the 5 Eligible Existing Tenure to be held 6 pursuant to this Agreement and for the 7 more efficient use of the Relevant Land)) 8 and the Minister may from time to time 9 vary such conditions in order to extend any 10 specified time for the doing of any thing or 11 otherwise with the agreement of the 12 Company. 13 (b) Eligible Existing Tenure the subject of an 14 approval by the Minister under this 15 subclause will be held by the Company 16 pursuant to this Agreement: 17 (i) if the Minister's approval was not 18 given subject to conditions, on and 19 from the date of the Minister's 20 notice of approval; 21 (ii) unless paragraph (iii) applies, if the 22 Minister's approval was given 23 subject to conditions, on the date 24 on which all such conditions have 25 been satisfied; and 26 (iii) if the Minister's approval was 27 given subject to a condition 28 requiring that the Company submit 29 detailed proposals in accordance 30 with this Agreement, on the later 31 of the date on which the Minister 32 approves proposals submitted in 33 discharge of that specified 34 condition and the date upon which 35 all other specified conditions have 36 been satisfied, but the Company is 37 authorised to implement any 38 approved proposal to the extent page 14 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 2 s. 6 1 such implementation is consistent 2 with the then terms and conditions 3 of the Eligible Existing Tenure 4 pending the satisfaction of any 5 conditions relating to the variation 6 of the terms or conditions of the 7 Eligible Existing Tenure. Where 8 this paragraph (iii) applies, prior to 9 any approval of proposals and 10 satisfaction of other conditions, the 11 relevant tenure will be treated for 12 (but only for) the purposes of 13 clause 9C(2)(b)(iv) as tenure held 14 pursuant to this Agreement. 15 Application for Special Advance Tenure to be granted 16 pursuant to this Agreement 17 (2b) Without limiting clause 8(1)(c), the Minister may 18 at the request of the Company from time to time 19 made during the continuance of this Agreement 20 approve Special Advance Tenure being granted to 21 the Company pursuant to this Agreement if: 22 (a) the Company proposes to submit detailed 23 proposals under this Agreement (other than 24 under clause 9E) to construct works 25 installations or facilities on the Relevant 26 Land and the Company's request is so far as 27 is practicable made, unless the Minister 28 approves otherwise, no less than 6 months 29 before the submission of those detailed 30 proposals; and 31 (b) the Minister is satisfied that it is necessary 32 and appropriate that Special Advance 33 Tenure, rather than tenure granted under or 34 pursuant to the other provisions of this 35 Agreement, be used for the purposes of the 36 proposed works installations or facilities on 37 the Relevant Land, page 15 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 2 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 6 1 and if the Minister does so approve: 2 (c) notwithstanding the Mining Act 1978 or the 3 LAA, the appropriate authority or 4 instrumentality of the State shall obtain the 5 consent of the Minister to the form and 6 substance of the Special Advance Tenure 7 prior to its grant (which for the avoidance 8 of doubt neither the State nor the Minister 9 is obliged to cause) to the Company; and 10 (d) if the Company does not submit detailed 11 proposals relating to construction of the 12 relevant works installations or facilities on 13 the Relevant Land within 24 months after 14 the date of the Minister's approval or such 15 later time subsequently allowed by the 16 Minister, or if submitted the Minister does 17 not approve such detailed proposals, the 18 Special Advance Tenure (if then granted) 19 shall be surrendered at the request of the 20 Minister. 21 (2c) The decisions of the Minister under 22 subclauses (2a) and (2b) shall not be referable to 23 arbitration and any approval of the Minister under 24 this clause shall not in any way limit, prejudice or 25 otherwise affect the exercise by the Minister of 26 the Minister's powers, or the performance of the 27 Minister's obligations, under this Agreement or 28 otherwise under the laws from time to time of the 29 said State."; 30 (c) in subclause (3), by deleting "subclause (2)" and substituting 31 "subclauses (2), (2a) and (2b)"; 32 (d) in subclause (3B), by deleting "subclause (1)" and inserting 33 "subclauses (1), (2a) and (2b)"; 34 (4) in clause 9(2) by: 35 (a) in paragraph (a), deleting "allow crossing places for roads 36 stock and other railways and"; and page 16 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 2 s. 6 1 (b) inserting after paragraph (a) the following new paragraph: 2 "Crossings over Railway 3 (aa) for the purposes of livestock and infrastructure such 4 as roads, railways, conveyors, pipelines, transmission 5 lines and other utilities proposed to cross the land the 6 subject of the Company's railway the Company shall: 7 (i) if applicable, give its consent to, or 8 otherwise facilitate the grant by the State or 9 any agency, instrumentality or other 10 authority of the State of any lease, licence 11 or other title over land the subject of the 12 Company's railway so long as such grant 13 does not in the Minister's opinion unduly 14 prejudice or interfere with the activities of 15 the Company under this Agreement; and 16 (ii) on reasonable terms and conditions allow 17 access for the construction and operation of 18 such crossings and associated 19 infrastructure, 20 provided that in forming his opinion under this 21 clause, the Minister must consult with the 22 Company;"; 23 (c) in paragraph (j), deleting subparagraphs (ii) and (iia) and 24 substituting the following paragraph: 25 "(ii) on fine ore sold or shipped separately as such at the 26 rate of: 27 (A) 5.625% of the f.o.b. value, for ore shipped 28 prior to or on 30 June 2012; 29 (B) 6.5% of the f.o.b. value, for ore shipped 30 during the period from 1 July 2012 to 31 30 June 2013 (inclusive of both dates); and 32 (C) 7.5% of the f.o.b. value, for ore shipped on 33 or after 1 July 2013;"; and page 17 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 2 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 6 1 (5) in clause 9E by: 2 (a) deleting in subclause (1) ""LAA" means the Land 3 Administration Act 1997 (WA)"; 4 (b) inserting after subclause (3)(c) the following new paragraph: 5 "(d) Without limiting subclause (9), the Minister may 6 waive the requirement under this clause for the 7 Company to obtain and to furnish the consent of a 8 title holder if the title holder has refused to give the 9 required consent and the Minister is satisfied that: 10 (i) the title holder's affected land is or was 11 subject to a miscellaneous licence granted 12 under the Mining Act 1978 for the purpose 13 of a railway to be constructed and operated 14 in accordance with this Agreement; and 15 (ii) in the Minister's opinion, the title holder's 16 refusal to give the required consent is not 17 reasonable in all the circumstances 18 including having regard to: 19 (A) the rights of the Company in 20 relation to the affected land as the 21 holder of the miscellaneous 22 licence, relative to its rights as the 23 holder of the sought Special 24 Railway Licence or Lateral Access 25 Road Licence (as the case may be); 26 and 27 (B) the terms of any agreement 28 between the Company and the title 29 holder."; 30 (c) deleting in subclause (4)(a) the comma after "the provisions 31 of this Agreement" and substituting "and"; and 32 (d) in subclause (7): 33 (i) deleting all words in paragraph (c) after "at the date 34 of such inclusion"; and page 18 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 2 s. 6 1 (ii) inserting after paragraph (k) the following new 2 paragraph: 3 "(l) The provisions of clause 9(2)(aa) shall 4 apply mutatis mutandis to any Railway or 5 Railway spur line constructed pursuant to 6 this clause.". page 19 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 2 Iron Ore (Mount Newman) Agreement Act 1964 amended s. 6 1 EXECUTED as a deed. 2 3 SIGNED by the HONOURABLE ) 4 COLIN JAMES BARNETT in the ) 5 presence of: ) 6 [Signature] [Signature] Signature of witness Peter Goodall Name of witness 7 8 EXECUTED by BHP BILLITON ) 9 MINERALS PTY. LTD. ACN 008 694 782 ) 10 in accordance with section 127(1) of ) 11 the Corporations Act ) 12 [Signature] [Signature] Signature of Director Signature of Secretary Uvashni Raman Robin Lees Full Name Full Name 13 page 20 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Mount Newman) Agreement Act 1964 amended Part 2 s. 6 1 EXECUTED by MITSUI-ITOCHU IRON ) 2 PTY. LTD ACN 008 702 761 ) 3 in accordance with section ) 4 127(1) of the Corporations Act ) 5 [Signature] [Signature] Signature of Director Signature of Secretary Ryuzo Nakamura Jiahe He Full Name Full Name 6 7 SIGNED by Shuzaburo Tsuchihashi ) 8 as attorney for ITOCHU MINERALS & ) 9 ENERGY OF AUSTRALIA PTY. LTD. ) 10 ACN 009 256 259 under power ) 11 of attorney dated 27 October 2011 ) 12 in the presence of: ) 13 [Signature] [Signature] Signature of witness Signature of Attorney Yasushi Fukumura Shuzaburo Tsuchihashi Name Name 14 page 21 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 3 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 7 1 Part 3 -- Iron Ore (Mount Goldsworthy) Agreement 2 Act 1964 amended 3 7. Act amended 4 This Part amends the Iron Ore (Mount Goldsworthy) Agreement 5 Act 1964. 6 8. Section 3 amended 7 (1) At the end of section 3 insert: 8 9 the fifth Variation Agreement means the agreement a 10 copy of which is set out in the Sixth Schedule. 11 12 (2) In section 3 in the definition of the fourth Variation Agreement 13 delete "Schedule." and insert: 14 15 Schedule; 16 17 9. Section 5D inserted 18 After section 5C insert: 19 20 5D. Fifth Variation Agreement 21 (1) The fifth Variation Agreement is ratified. 22 (2) The implementation of the fifth Variation Agreement is 23 authorised. 24 (3) Without limiting or otherwise affecting the application 25 of the Government Agreements Act 1979, the fifth 26 Variation Agreement is to operate and take effect 27 despite any other Act or law. 28 page 22 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 3 s. 10 1 10. Sixth Schedule inserted 2 After the Fifth Schedule insert: 3 4 Sixth Schedule -- Fifth Variation Agreement 5 [s. 3] 6 2011 7 THE HONOURABLE COLIN JAMES BARNETT 8 PREMIER OF THE STATE OF WESTERN AUSTRALIA 9 AND 10 BHP BILLITON MINERALS PTY. LTD. 11 ACN 008 694 782 12 MITSUI IRON ORE CORPORATION PTY. LTD. 13 ACN 050 157 456 14 ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY. LTD. 15 ACN 009 256 259 16 ________________________________________________________________ 17 IRON ORE (MOUNT GOLDSWORTHY) AGREEMENT 1964 18 RATIFIED VARIATION AGREEMENT 19 ________________________________________________________________ 20 21 22 [Solicitor's details] page 23 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 3 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 10 1 THIS AGREEMENT is made this 7th day of November 2011 2 3 BETWEEN 4 5 THE HONOURABLE COLIN JAMES BARNETT MLA., Premier of the 6 State of Western Australia, acting for and on behalf of the said State and 7 instrumentalities thereof from time to time (State) 8 9 AND 10 11 BHP BILLITON MINERALS PTY. LTD. ACN 008 694 782 of Level 17, St 12 Georges Square, 225 St Georges Terrace, Perth, Western Australia, MITSUI 13 IRON ORE CORPORATION PTY. LTD. ACN 050 157 456 of Level 16, 14 Exchange Plaza, 2 The Esplanade, Perth, Western Australia and ITOCHU 15 MINERALS & ENERGY OF AUSTRALIA PTY. LTD. ACN 009 256 259 16 of Level 22, Forrest Centre, 221 St Georges Terrace, Perth, Western Australia 17 (Joint Venturers). 18 19 RECITALS 20 A. The State and the Joint Venturers are now the parties to the agreement 21 dated 15 October 1964 approved by and scheduled to the Iron Ore 22 (Mount Goldsworthy) Agreement Act 1964 and which as subsequently 23 added to, varied or amended is referred to in this Agreement as the 24 "Principal Agreement". 25 B. The State and the Joint Venturers wish to vary the Principal 26 Agreement. 27 page 24 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 3 s. 10 1 THE PARTIES AGREE AS FOLLOWS: 2 1. Intepretation 3 Subject to the context, the words and expressions used in this 4 Agreement have the same meanings respectively as they have in and 5 for the purpose of the Principal Agreement. 6 2. Ratification and Operation 7 (1) The State shall introduce and sponsor a Bill in the State Parliament of 8 Western Australia prior to 31 December 2011 or such later date as 9 may be agreed between the parties hereto to ratify this Agreement. 10 The State shall endeavour to secure the timely passage of such Bill as 11 an Act. 12 (2) The provisions of this Agreement other than this clause and clause 1 13 will not come into operation until the day after the day on which the 14 Bill referred to in subclause (1) has been passed by the State 15 Parliament of Western Australia and commences to operate as an Act. 16 (3) If by 30 June 2012 the said Bill has not commenced to operate as an 17 Act then, unless the parties hereto otherwise agree, this Agreement 18 will then cease and determine and no party hereto will have any claim 19 against any other party hereto with respect to any matter or thing 20 arising out of, done, performed, or omitted to be done or performed 21 under this Agreement. 22 (4) On the day after the day on which the said Bill commences to operate 23 as an Act all the provisions of this Agreement will operate and take 24 effect despite any enactment or other law. 25 3. Variation of Principal Agreement 26 The Principal Agreement is varied as follows: 27 (1) in clause 1 by inserting in the appropriate alphabetical positions the 28 following new definitions: 29 "Eligible Existing Tenure" means: 30 (a) (i) a miscellaneous licence or general purpose lease 31 granted to the Joint Venturers under the Mining 32 Act 1978; or page 25 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 3 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 10 1 (ii) a lease or easement granted to the Joint Venturers 2 under the LAA, 3 and not clearly, to the satisfaction of the Minister, granted 4 under or pursuant to or held pursuant to this Agreement; or 5 (b) an application by the Joint Venturers for the grant to them of 6 a tenement referred to in paragraph (a)(i) (which application 7 has not clearly, to the satisfaction of the Minister, been made 8 under or pursuant to this Agreement) and as the context 9 requires the tenement granted pursuant to such an application, 10 where that tenure was granted or that application was made (as the 11 case may be) on or before 1 October 2011; 12 "LAA" means the Land Administration Act 1997 (WA); 13 "Relevant Land", in relation to Eligible Existing Tenure or Special 14 Advance Tenure, means the land which is the subject of that Eligible 15 Existing Tenure or Special Advance Tenure, as the case may be; 16 "second variation date" means the date on which clause 3 of the 17 variation agreement made on or about 7 November 2011 between the 18 State and the Joint Venturers comes into operation; 19 "Special Advance Tenure" means: 20 (a) a miscellaneous licence or general purpose lease requested 21 under clause 8(3b) to be granted to the Joint Venturers under 22 the Mining Act 1978; or 23 (b) an easement or a lease requested under clause 8(3b) to be 24 granted to the Joint Venturers under the LAA, 25 and as the context requires such tenure if granted; 26 (2) by inserting after clause 7C the following new clauses: 27 "Community development plan 28 7D. (1) In this Clause, the term "community and social 29 benefits" includes: 30 (a) assistance with skills development and 31 training opportunities to promote work page 26 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 3 s. 10 1 readiness and employment for persons 2 living in the Pilbara region of the said State; 3 (b) regional development activities in the 4 Pilbara region of the said State, including 5 partnerships and sponsorships; 6 (c) contribution to any community projects, 7 town services or facilities; and 8 (d) a regionally based workforce. 9 (2) The Joint Venturers acknowledge the need for 10 community and social benefits flowing from this 11 Agreement. 12 (3) The Joint Venturers agree that: 13 (a) they shall prepare a plan which describes 14 the Joint Venturers' proposed strategies for 15 achieving community and social benefits in 16 connection with their activities under this 17 Agreement; and 18 (b) the Joint Venturers shall, not later than 19 3 months after the second variation date, 20 submit to the Minister the plan prepared 21 under paragraph (a) and confer with the 22 Minister in respect of the plan. 23 (4) The Minister shall within 2 months after receipt of a 24 plan submitted under subclause (3)(b), either notify 25 the Joint Venturers that the Minister approves the 26 plan as submitted or notify the Joint Venturers of 27 changes which the Minister requires be made to the 28 plan. If the Joint Venturers are unwilling to accept 29 the changes which the Minister requires they shall 30 notify the Minister to that effect and either party may 31 refer to arbitration hereunder the question of the 32 reasonableness of the changes required by the 33 Minister. 34 (5) The effect of an award made on an arbitration 35 pursuant to subclause (4) shall be that the relevant page 27 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 3 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 10 1 plan submitted by the Joint Venturers pursuant to 2 subclause (3)(b) shall, with such changes required by 3 the Minister under subclause (4) as the arbitrator 4 determines to be reasonable (with or without 5 modification by the arbitrator), be deemed to be the 6 plan approved by the Minister under this clause. 7 (6) At least 3 months before the anticipated submission 8 of proposals relating to a proposed development 9 pursuant to any of Clauses 7A, 9E, 11 or 12, the Joint 10 Venturers must, unless the Minister otherwise 11 requires, give to the Minister information about how 12 the proposed development may affect the plan 13 approved or deemed to be approved by the Minister 14 under this Clause. This obligation operates in 15 relation to all proposals submitted on or after the date 16 that is 4 months after the date when a plan is first 17 approved or deemed to be approved under this 18 Clause. 19 (7) The Joint Venturers shall at least annually report to 20 the Minister about the Joint Venturers' 21 implementation of the plan approved or deemed to be 22 approved by the Minister under this Clause. 23 (8) At the request of either of them made at any time and 24 from time to time, the Minister and the Joint 25 Venturers shall confer as to any amendments desired 26 to any plan approved or deemed to be approved by 27 the Minister under this Clause and may agree to 28 amendment of the plan or adoption of a new plan. 29 Any such amended plan or new plan will be deemed 30 to be the plan approved by the Minister under this 31 Clause in respect of the development to which it 32 relates. 33 (9) During the currency of this Agreement, the Joint 34 Venturers shall implement the plan approved or 35 deemed to be approved by the Minister under this 36 Clause. page 28 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 3 s. 10 1 Local participation plan 2 7E. (1) In this Clause, the term "local industry participation 3 benefits" means: 4 (a) the use and training of labour available 5 within the said State; 6 (b) the use of the services of engineers, 7 surveyors, architects and other professional 8 consultants, experts, specialists, project 9 managers and contractors available within 10 the said State; and 11 (c) the procurement of works, materials, plant, 12 equipment and supplies from Western 13 Australian suppliers, manufacturers and 14 contractors. 15 (2) The Joint Venturers acknowledge the need for local 16 industry participation benefits flowing from this 17 Agreement. 18 (3) The Joint Venturers agree that they shall, not later 19 than 3 months after the second variation date, prepare 20 and provide to the Minister a plan which contains: 21 (a) a clear statement on the strategies which the 22 Joint Venturers will use, and require a third 23 party as referred to in subclause (7) to use, 24 to maximise the uses and procurement 25 referred to in subclause (1); 26 (b) detailed information on the procurement 27 practices the Joint Venturers will adopt, and 28 require a third party as referred to in 29 subclause (7) to adopt, in calling for tenders 30 and letting contracts for works, materials, 31 plant, equipment and supplies stages in 32 relation to a proposed development and 33 how such practices will provide fair and 34 reasonable opportunity for suitably 35 qualified Western Australian suppliers, page 29 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 3 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 10 1 manufacturers and contractors to tender or 2 quote for works, materials, plant, 3 equipment and supplies; 4 (c) detailed information on the methods the 5 Joint Venturers will use, and require a third 6 party as referred to in subclause (7) to use, 7 to have its respective procurement officers 8 promptly introduced to Western Australian 9 suppliers, manufacturers and contractors 10 seeking such introduction; and 11 (d) details of the communication strategies the 12 Joint Venturers will use, and require a third 13 party as referred to in subclause (7) to use, 14 to alert Western Australian engineers, 15 surveyors, architects and other professional 16 consultants, experts, specialists, project 17 managers and consultants and Western 18 Australian suppliers, manufacturers and 19 contractors to services opportunities and 20 procurement opportunities respectively as 21 referred to in subclause (1). 22 It is acknowledged by the Joint Venturers that the 23 strategies of the Joint Venturers referred to in 24 subclause (3)(a) will include strategies of the Joint 25 Venturers in relation to supply of services, labour, 26 works, materials, plant, equipment or supplies for the 27 purposes of this Agreement. 28 (4) At the request of either of them made at any time and 29 from time to time, the Minister and the Joint 30 Venturers shall confer as to any amendments desired 31 to any plan provided under this clause and may agree 32 to the amendment of the plan or the provision of a 33 new plan in substitution for the one previously 34 provided. 35 (5) At least 6 months before the anticipated submission 36 of proposals relating to a proposed development 37 pursuant to any of Clauses 7A, 9E, 11 or 12, the Joint page 30 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 3 s. 10 1 Venturers must, unless the Minister otherwise 2 requires, give to the Minister information about the 3 implementation of the plan provided under this 4 Clause in relation to the proposed development. This 5 obligation operates in relation to all proposals 6 submitted on or after the date that is 7 months after 7 the date when a plan is first provided under this 8 Clause. 9 (6) During the currency of this Agreement the Joint 10 Venturers shall implement the plan provided under 11 this Clause. 12 (7) The Joint Venturers shall: 13 (a) in every contract entered into with a third 14 party where the third party has an 15 obligation or right to procure the supply of 16 services, labour, works, materials, plant, 17 equipment or supplies for or in connection 18 with a proposed development, ensure that 19 the contract contains appropriate provisions 20 requiring the third party to undertake 21 procurement activities in accordance with 22 the plan provided under this Clause; and 23 (b) use reasonable endeavours to ensure that 24 the third party complies with those 25 provisions."; 26 (3) by inserting after clause 8(2)(b)(ii) the following new paragraph: 27 "notwithstanding clause 9C(2)(b)(iv), detailed proposals may refer to 28 activities on tenure which is proposed to be granted pursuant to this 29 paragraph (b) as if that tenure was granted pursuant to this Agreement 30 (but this does not limit the powers or discretions of the Minister under 31 this Agreement or the Minister responsible for the administration of 32 any relevant Act with respect to the grant of the tenure);"; page 31 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 3 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 10 1 (4) by inserting after clause 8(3) the following new subclauses: 2 "Application for Eligible Existing Tenure to be held pursuant to 3 this Agreement 4 (3a) (a) The Minister may at the request of the Joint 5 Venturers from time to time made during the 6 continuance of this Agreement approve Eligible 7 Existing Tenure becoming held pursuant to this 8 Agreement on such conditions as the Minister sees fit 9 (including, without limitation and notwithstanding the 10 Mining Act 1978 and the LAA, as to the surrender of 11 land, the submission of detailed proposals and the 12 variation of the terms and conditions of the Eligible 13 Existing Tenure (including for the Eligible Existing 14 Tenure to be held pursuant to this Agreement and for 15 the more efficient use of the Relevant Land)) and the 16 Minister may from time to time vary such conditions 17 in order to extend any specified time for the doing of 18 any thing or otherwise with the agreement of the Joint 19 Venturers. 20 (b) Eligible Existing Tenure the subject of an approval by 21 the Minister under this subclause will be held by the 22 Joint Venturers pursuant to this Agreement: 23 (i) if the Minister's approval was not given 24 subject to conditions, on and from the date 25 of the Minister's notice of approval; 26 (ii) unless paragraph (iii) applies, if the 27 Minister's approval was given subject to 28 conditions, on the date on which all such 29 conditions have been satisfied; and 30 (iii) if the Minister's approval was given subject 31 to a condition requiring that the Joint 32 Venturers submit detailed proposals in 33 accordance with this Agreement, on the 34 later of the date on which the Minister 35 approves proposals submitted in discharge 36 of that specified condition and the date 37 upon which all other specified conditions page 32 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 3 s. 10 1 have been satisfied, but the Joint Venturers 2 are authorised to implement any approved 3 proposal to the extent such implementation 4 is consistent with the then terms and 5 conditions of the Eligible Existing Tenure 6 pending the satisfaction of any conditions 7 relating to the variation of the terms or 8 conditions of the Eligible Existing Tenure. 9 Where this paragraph (iii) applies, prior to 10 any approval of proposals and satisfaction 11 of other conditions, the relevant tenure will 12 be treated for (but only for) the purposes of 13 clause 9C(2)(b)(iv) as tenure held pursuant 14 to this Agreement. 15 Application for Special Advance Tenure to be granted pursuant 16 to this Agreement 17 (3b) Without limiting clause 8(2)(c), the Minister may at the 18 request of the Joint Venturers from time to time made 19 during the continuance of this Agreement approve Special 20 Advance Tenure being granted to the Joint Venturers 21 pursuant to this Agreement if: 22 (a) the Joint Venturers propose to submit detailed 23 proposals under this Agreement (other than under 24 clause 9E) to construct works installations or 25 facilities on the Relevant Land and the Joint 26 Venturers' request is so far as is practicable made, 27 unless the Minister approves otherwise, no less than 28 6 months before the submission of those detailed 29 proposals; and 30 (b) the Minister is satisfied that it is necessary and 31 appropriate that Special Advance Tenure, rather than 32 tenure granted under or pursuant to the other 33 provisions of this Agreement, be used for the 34 purposes of the proposed works installations or 35 facilities on the Relevant Land, page 33 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 3 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 10 1 and if the Minister does so approve: 2 (c) notwithstanding the Mining Act 1978 or the LAA, the 3 appropriate authority or instrumentality of the State 4 shall obtain the consent of the Minister to the form 5 and substance of the Special Advance Tenure prior to 6 its grant (which for the avoidance of doubt neither the 7 State nor the Minister is obliged to cause) to the Joint 8 Venturers as tenants in common in equal shares; and 9 (d) if the Joint Venturers do not submit detailed 10 proposals relating to construction of the relevant 11 works installations or facilities on the Relevant Land 12 within 24 months after the date of the Minister's 13 approval or such later time subsequently allowed by 14 the Minister, or if submitted the Minister does not 15 approve such detailed proposals, the Special Advance 16 Tenure (if then granted) shall be surrendered at the 17 request of the Minister. 18 (3c) The decisions of the Minister under subclauses (3a) and 19 (3b) shall not be referable to arbitration and any approval of 20 the Minister under this clause shall not in any way limit, 21 prejudice or otherwise affect the exercise by the Minister of 22 the Minister's powers, or the performance of the Minister's 23 obligations, under this Agreement or otherwise under the 24 laws from time to time of the said State."; 25 (5) in subclauses (4) and (4a) of clause 8 by deleting "subclause (2)" and 26 substituting "subclauses (2), (3a) and (3b)"; 27 (6) in clause 8(5) by: 28 (a) deleting "and" after the semicolon at the end of paragraph (e); 29 (b) inserting "and" after the semicolon at the end of 30 paragraph (f); and page 34 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 3 s. 10 1 (c) inserting after paragraph (f) the following new paragraph: 2 "Reservation of land within the Port of Port Hedland for 3 leases 4 (g) without limiting the State's obligations under 5 clause 8(2)(b), shall ensure that the land within the 6 areas coloured red and green on the plan marked 'Plan 7 D' (initialled by or on behalf of the parties hereto for 8 the purposes of identification) is reserved until 9 31 December 2030 for the purposes of the Port 10 Authority granting from time to time to the Joint 11 Venturers in accordance with proposals approved or 12 determined under clauses 7B, 11 or 12 leases of that 13 reserved land: 14 (i) at commercial rental; and 15 (ii) upon such other terms and conditions as 16 approved by the Minister responsible for 17 the Port Authorities Act (acting with the 18 concurrence of the Minister) including as to 19 the facilitation and allowance on reasonable 20 terms and conditions of future crossings of 21 the land within the area coloured green on 22 the plan marked 'Plan D' so long as such 23 crossings do not unduly prejudice or 24 interfere with the operations of the Joint 25 Venturers under this Agreement, 26 provided that this obligation to ensure reservation of 27 the land shall cease: 28 (iii) if the Joint Venturers do not submit detailed 29 proposals prior to 31 December 2013 (or 30 such later date prior to 31 December 2014 31 as the Minister may allow) under and in 32 accordance with clause 7B, 11 or 12 33 relating to the construction of at least a two 34 berth wharf facility and associated jetty 35 within the area the subject of the 36 reservation; page 35 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 3 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 10 1 (iv) if a lease or leases are granted to the Joint 2 Venturers as contemplated by this clause in 3 relation to a two berth wharf facility and 4 associated jetty development, in respect of 5 the land within the areas coloured red and 6 green on the plan marked 'Plan D' that are 7 subject to such lease or leases or laterally 8 adjacent to the area of the lease or leases; 9 and 10 (v) progressively thereafter if a lease is granted 11 as contemplated by this clause, or any 12 existing lease relating to the wharf facility 13 is varied, to accommodate additional 14 berths, in respect of the land within the area 15 coloured red on the plan marked 'Plan D' 16 that is subject to such lease (including as 17 varied) or laterally adjacent to the area of 18 the lease (including as varied). 19 The parties agree that clause 24 shall not apply to this 20 paragraph (g)."; 21 (7) in clause 9(2)(a) by deleting "allow crossing places for roads stock 22 and other railways and also"; 23 (8) by inserting after clause 9(2)(a) the following new paragraph: 24 "Crossings over Railway 25 (aa) for the purposes of livestock and infrastructure such as roads, 26 railways, conveyors, pipelines, transmission lines and other 27 utilities proposed to cross the land the subject of the Joint 28 Venturers' railway the Joint Venturers shall: 29 (i) if applicable, give their consent to, or otherwise 30 facilitate the grant by the State or any agency, 31 instrumentality or other authority of the State of any 32 lease, licence or other title over land the subject of the 33 Joint Venturers' railway so long as such grant does 34 not in the Minister's opinion unduly prejudice or 35 interfere with the activities of the Joint Venturers 36 under this Agreement; and page 36 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 3 s. 10 1 (ii) on reasonable terms and conditions allow access for 2 the construction and operation of such crossings and 3 associated infrastructure, 4 provided that in forming his opinion under this clause, the 5 Minister must consult with the Joint Venturers;"; 6 (9) by deleting clause 9(2)(j)(ii) and substituting the following new 7 subparagraph: 8 "(ii) on fine ore sold or shipped separately as such at the rate of: 9 (A) 5.625% of the f.o.b. value, for ore shipped prior to or 10 on 30 June 2012; 11 (B) 6.5% of the f.o.b. value, for ore shipped during the 12 period from 1 July 2012 to 30 June 2013 (inclusive of 13 both dates); and 14 (C) 7.5% of the f.o.b. value, for ore shipped on or after 15 1 July 2013;"; 16 (10) by deleting clause 9(2)(j)(iia); 17 (11) by inserting after clause 9D the following new clause: 18 "Transfer of rights to section of Goldsworthy-Nimingarra 19 Railway 20 9DA (1) The Joint Venturers may as an additional proposal 21 pursuant to clause 7A propose that they be granted a 22 lease under the LAA and pursuant to this Agreement 23 over the section of the railway held pursuant to the 24 agreement ratified by the Iron Ore 25 (Goldsworthy-Nimingarra) Agreement Act 1972 that 26 is: 27 (a) near the Port of Port Hedland; and 28 (b) west of the intersection of that railway with the 29 railway constructed pursuant to the agreement 30 approved by the Iron Ore (Mount Newman) 31 Agreement Act 1964, page 37 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 3 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 10 1 subject to and conditional upon the Joint Venturers 2 (as defined in the former agreement) surrendering 3 wholly or in part (and upon such terms as the 4 Minister considers reasonable) its lease or leases over 5 that section of railway. 6 (2) The provisions of clause 7B shall mutatis mutandis 7 apply to any such additional proposal, except that the 8 Minister's right to refuse to approve a proposal under 9 clause 7B(1) does not apply to a proposal 10 contemplated by this clause. 11 (3) The Joint Venturers acknowledge that the lease 12 referred to in subclause (1) will on reasonable terms 13 and conditions allow for crossings relating to the 14 proposed Boodarie industrial estate infrastructure 15 corridor (including the grant of tenure and rights 16 reasonably necessary for infrastructure and utilities 17 proposed to be constructed and operated within such 18 corridor)."; 19 (12) in clause 9E by: 20 (a) deleting in subclause (1) ""LAA" means the Land 21 Administration Act 1997 (WA)"; 22 (b) inserting after subclause (3)(c) the following new paragraph: 23 "(d) Without limiting subclause (9), the Minister may 24 waive the requirement under this clause for the Joint 25 Venturers to obtain and to furnish the consent of a 26 title holder if the title holder has refused to give the 27 required consent and the Minister is satisfied that: 28 (i) the title holder's affected land is or was 29 subject to a miscellaneous licence granted 30 under the Mining Act 1978 for the purpose 31 of a railway to be constructed and operated 32 in accordance with this Agreement; and 33 (ii) in the Minister's opinion, the title holder's 34 refusal to give the required consent is not page 38 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 3 s. 10 1 reasonable in all the circumstances 2 including having regard to 3 (A) the rights of the Joint Venturers in 4 relation to the affected land as the 5 holders of the miscellaneous 6 licence, relative to their rights as 7 the holders of the sought Special 8 Railway Licence or Lateral Access 9 Road Licence (as the case may be); 10 and 11 (B) the terms of any agreement 12 between the Joint Venturers and 13 the title holder."; 14 (c) deleting in subclause (4)(a) the comma after "the provisions 15 of this Agreement" and substituting "and"; and 16 (d) in subclause (7): 17 (i) deleting all words in paragraph (c) after "at the date 18 of such inclusion"; and 19 (ii) inserting after paragraph (k) the following new 20 paragraph: 21 "(1) The provisions of clause 9(2)(aa) shall apply 22 mutatis mutandis to any Railway or Railway 23 spur line constructed pursuant to this 24 clause."; 25 (13) in clause 12 by: 26 (a) in subclause (1), deleting the definition of "approved 27 production limit under this clause"; 28 (b) in subclause (5)(a): 29 (i) deleting "Subject to subclauses (6) to (9) of this 30 Clause if" and substituting "If"; and 31 (ii) deleting "produce more than the approved production 32 limit under this Clause or to"; and page 39 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 3 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 10 1 (c) deleting subclauses (6), (7), (8) and (9) and substituting the 2 following new subclause: 3 "(6) For the avoidance of doubt, nothing in this clause 12 4 requires the Joint Venturers to seek or obtain the 5 Minister's approval or consent (by submitting 6 proposals or otherwise) to a mere increase in 7 production limits."; and 8 (14) by deleting clause 12A. page 40 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended Part 3 s. 10 1 EXECUTED as a deed. 2 3 SIGNED by the HONOURABLE ) 4 COLIN JAMES BARNETT ) 5 in the presence of: ) 6 [Signature] [Signature] Signature of witness Peter Goodall Name of witness 7 8 EXECUTED by BHP BILLITON ) 9 MINERALS PTY. LTD. ACN 008 694 782 ) 10 in accordance with section 127(1) of ) 11 the Corporations Act ) 12 [Signature] [Signature] Signature of Director Signature of Secretary Uvashni Raman Robin Lees Full Name Full Name 13 page 41 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 3 Iron Ore (Mount Goldsworthy) Agreement Act 1964 amended s. 10 1 EXECUTED by MITSUI IRON ORE ) 2 CORPORATION PTY. LTD ) 3 ACN 050 157 456 in accordance with section ) 4 127(1) of the Corporations Act ) 5 [Signature] [Signature] Signature of Director Signature of Secretary Ryuzo Nakamura Jiahe He Full Name Full Name 6 7 SIGNED by Shuzaburo Tsuchihashi ) 8 as attorney for ITOCHU MINERALS & ) 9 ENERGY OF AUSTRALIA PTY. LTD. ) 10 ACN 009 256 259 under power ) 11 of attorney dated 27 October 2011 ) 12 in the presence of: ) 13 [Signature] [Signature] Signature of witness Signature of Attorney Yasushi Fukumura Shuzaburo Tsuchihashi Name Name 14 page 42 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 Part 4 amended s. 11 1 Part 4 -- Iron Ore (Goldsworthy-Nimingarra) 2 Agreement Act 1972 amended 3 11. Act amended 4 This Part amends the Iron Ore (Goldsworthy-Nimingarra) 5 Agreement Act 1972. 6 12. Section 2 amended 7 (1) In section 2 insert in alphabetical order: 8 9 the Third Variation Agreement means the agreement a 10 copy of which is set out in Schedule 4. 11 12 (2) In section 2 in the definition of the Second Variation 13 Agreement delete "Schedule 3." and insert: 14 15 Schedule 3; 16 17 13. Section 8 inserted 18 After section 7 insert: 19 20 8. Third Variation Agreement 21 (1) The Third Variation Agreement is ratified. 22 (2) The implementation of the Third Variation Agreement 23 is authorised. 24 (3) Without limiting or otherwise affecting the application 25 of the Government Agreements Act 1979, the Third 26 Variation Agreement is to operate and take effect 27 despite any other Act or law. 28 page 43 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 4 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 14 1 14. Schedule 4 inserted 2 After Schedule 3 insert: 3 4 Schedule 4 -- Third Variation Agreement 5 [s. 2] 6 2011 7 THE HONOURABLE COLIN JAMES BARNETT 8 PREMIER OF THE STATE OF WESTERN AUSTRALIA 9 AND 10 BHP BILLITON MINERALS PTY. LTD. 11 ACN 008 694 782 12 MITSUI IRON ORE CORPORATION PTY. LTD. 13 ACN 050 157 456 14 ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY. LTD. 15 ACN 009 256 259 16 ________________________________________________________________ 17 IRON ORE (GOLDSWORTHY-NIMINGARRA) AGREEMENT 1972 18 RATIFIED VARIATION AGREEMENT 19 ________________________________________________________________ 20 21 22 [Solicitor's details] page 44 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 Part 4 amended s. 14 1 THIS AGREEMENT is made this 7th day of November 2011 2 3 BETWEEN 4 5 THE HONOURABLE COLIN JAMES BARNETT MLA., Premier of the 6 State of Western Australia, acting for and on behalf of the said State and 7 instrumentalities thereof from time to time (State) 8 AND 9 BHP BILLITON MINERALS PTY. LTD. ACN 008 694 782 of Level 17, St 10 Georges Square, 225 St Georges Terrace, Perth, Western Australia, MITSUI 11 IRON ORE CORPORATION PTY. LTD. ACN 050 157 456, of Level 16, 12 Exchange Plaza, 2 The Esplanade, Perth, Western Australia and ITOCHU 13 MINERALS & ENERGY OF AUSTRALIA PTY. LTD. ACN 009 256 259 14 of Level 22, Forrest Centre, 221 St Georges Terrace, Perth, Western Australia 15 (Joint Venturers). 16 17 RECITALS: 18 A. The State and the Joint Venturers are now the parties to the agreement 19 dated 12 April 1972 approved by and scheduled to the Iron Ore 20 (Goldsworthy-Nimingarra) Agreement Act 1972 and which as 21 subsequently added to, varied or amended is referred to in this 22 Agreement as the "Principal Agreement". 23 B. The State and the Joint Venturers wish to vary the Principal 24 Agreement. 25 26 THE PARTIES AGREE AS FOLLOWS: 27 1. Interpretation 28 Subject to the context, the words and expressions used in this 29 Agreement have the same meanings respectively as they have in and 30 for the purpose of the Principal Agreement. page 45 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 4 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 14 1 2. Ratification and Operation 2 (1) The State shall introduce and sponsor a Bill in the State Parliament of 3 Western Australia prior to 31 December 2011 or such later date as 4 may be agreed between the parties hereto to ratify this Agreement. 5 The State shall endeavour to secure the timely passage of such Bill as 6 an Act. 7 (2) The provisions of this Agreement other than this clause and clause 1 8 will not come into operation until the day after the day on which the 9 Bill referred to in subclause (1) has been passed by the State 10 Parliament of Western Australia and commences to operate as an Act. 11 (3) If by 30 June 2012 the said Bill has not commenced to operate as an 12 Act then, unless the parties hereto otherwise agree, this Agreement 13 will then cease and determine and no party hereto will have any claim 14 against any other party hereto with respect to any matter or thing 15 arising out of, done, performed, or omitted to be done or performed 16 under this Agreement. 17 (4) On the day after the day on which the said Bill commences to operate 18 as an Act all the provisions of this Agreement will operate and take 19 effect despite any enactment or other law. 20 3. Variation of Principal Agreement 21 The Principal Agreement is varied as follows: 22 (1) in clause 1 by inserting in the appropriate alphabetical positions the 23 following new definitions: 24 "Eligible Existing Tenure" means: 25 (a) (i) a miscellaneous licence or general purpose lease 26 granted to the Joint Venturers under the Mining 27 Act 1978; or 28 (ii) a lease or easement granted to the Joint Venturers 29 under the LAA, 30 and not clearly, to the satisfaction of the Minister, granted 31 under or pursuant to or held pursuant to this Agreement; or page 46 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 Part 4 amended s. 14 1 (b) an application by the Joint Venturers for the grant to them of 2 a tenement referred to in paragraph (a)(i) (which application 3 has not clearly, to the satisfaction of the Minister, been made 4 under or pursuant to this Agreement) and as the context 5 requires the tenement granted pursuant to such an application, 6 where that tenure was granted or that application was made (as the 7 case may be) on or before 1 October 2011; 8 "LAA" means the Land Administration Act 1997 (WA); 9 "Relevant Land", in relation to Eligible Existing Tenure or Special 10 Advance Tenure, means the land which is the subject of that Eligible 11 Existing Tenure or Special Advance Tenure, as the case may be; 12 "second variation date" means the date on which clause 3 of the 13 variation agreement made on or about 7 November 2011 between the 14 State and the Joint Venturers comes into operation; 15 "Special Advance Tenure" means: 16 (a) a miscellaneous licence or general purpose lease requested 17 under clause 11(5b) to be granted to the Joint Venturers under 18 the Mining Act 1978; or 19 (b) an easement or a lease requested under clause 11(5b) to be 20 granted to the Joint Venturers under the LAA, 21 and as the context requires such tenure if granted; 22 (2) by inserting after clause 8B the following new clauses: 23 "Community development plan 24 8C. (1) In this Clause, the term "community and social 25 benefits" includes: 26 (a) assistance with skills development and 27 training opportunities to promote work 28 readiness and employment for persons 29 living in the Pilbara region of the said State; 30 (b) regional development activities in the 31 Pilbara region of the said State, including 32 partnerships and sponsorships; page 47 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 4 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 14 1 (c) contribution to any community projects, 2 town services or facilities; and 3 (d) a regionally based workforce. 4 (2) The Joint Venturers acknowledge the need for 5 community and social benefits flowing from this 6 Agreement. 7 (3) The Joint Venturers agree that: 8 (a) they shall prepare a plan which describes 9 the Joint Venturers' proposed strategies for 10 achieving community and social benefits in 11 connection with their activities under this 12 Agreement; and 13 (b) the Joint Venturers shall, not later than 14 3 months after the second variation date, 15 submit to the Minister the plan prepared 16 under paragraph (a) and confer with the 17 Minister in respect of the plan. 18 (4) The Minister shall within 2 months after receipt of a 19 plan submitted under subclause (3)(b), either notify 20 the Joint Venturers that the Minister approves the 21 plan as submitted or notify the Joint Venturers of 22 changes which the Minister requires be made to the 23 plan. If the Joint Venturers are unwilling to accept 24 the changes which the Minister requires they shall 25 notify the Minister to that effect and either party may 26 refer to arbitration hereunder the question of the 27 reasonableness of the changes required by the 28 Minister. 29 (5) The effect of an award made on an arbitration 30 pursuant to subclause (4) shall be that the relevant 31 plan submitted by the Joint Venturers pursuant to 32 subclause (3)(b) shall, with such changes required by 33 the Minister under subclause (4) as the arbitrator 34 determines to be reasonable (with or without 35 modification by the arbitrator), be deemed to be the 36 plan approved by the Minister under this clause. page 48 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 Part 4 amended s. 14 1 (6) At least 3 months before the anticipated submission 2 of proposals relating to a proposed development 3 pursuant to Clauses 8 or 16C, the Joint Venturers 4 must, unless the Minister otherwise requires, give to 5 the Minister information about how the proposed 6 development may affect the plan approved or deemed 7 to be approved by the Minister under this Clause. 8 This obligation operates in relation to all proposals 9 submitted on or after the date that is 4 months after 10 the date when a plan is first approved or deemed to be 11 approved under this Clause. 12 (7) The Joint Venturers shall at least annually report to 13 the Minister about the Joint Venturers' 14 implementation of the plan approved or deemed to be 15 approved by the Minister under this Clause. 16 (8) At the request of either of them made at any time and 17 from time to time, the Minister and the Joint 18 Venturers shall confer as to any amendments desired 19 to any plan approved or deemed to be approved by 20 the Minister under this Clause and may agree to 21 amendment of the plan or adoption of a new plan. 22 Any such amended plan or new plan will be deemed 23 to be the plan approved by the Minister under this 24 Clause in respect of the development to which it 25 relates. 26 (9) During the currency of this Agreement, the Joint 27 Venturers shall implement the plan approved or 28 deemed to be approved by the Minister under this 29 Clause. 30 Local participation plan 31 8D. (1) In this Clause, the term "local industry participation 32 benefits" means: 33 (a) the use and training of labour available 34 within the said State; 35 (b) the use of the services of engineers, 36 surveyors, architects and other professional page 49 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 4 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 14 1 consultants, experts, specialists, project 2 managers and contractors available within 3 the said State; and 4 (c) the procurement of works, materials, plant, 5 equipment and supplies from Western 6 Australian suppliers, manufacturers and 7 contractors. 8 (2) The Joint Venturers acknowledge the need for local 9 industry participation benefits flowing from this 10 Agreement. 11 (3) The Joint Venturers agree that they shall, not later 12 than 3 months after the second variation date, prepare 13 and provide to the Minister a plan which contains: 14 (a) a clear statement on the strategies which the 15 Joint Venturers will use, and require a third 16 party as referred to in subclause (7) to use, 17 to maximise the uses and procurement 18 referred to in subclause (1); 19 (b) detailed information on the procurement 20 practices the Joint Venturers will adopt, and 21 require a third party as referred to in 22 subclause (7) to adopt, in calling for tenders 23 and letting contracts for works, materials, 24 plant, equipment and supplies stages in 25 relation to a proposed development and 26 how such practices will provide fair and 27 reasonable opportunity for suitably 28 qualified Western Australian suppliers, 29 manufacturers and contractors to tender or 30 quote for works, materials, plant, 31 equipment and supplies; 32 (c) detailed information on the methods the 33 Joint Venturers will use, and require a third 34 party as referred to in subclause (7) to use, 35 to have its respective procurement officers 36 promptly introduced to Western Australian page 50 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 Part 4 amended s. 14 1 suppliers, manufacturers and contractors 2 seeking such introduction; and 3 (d) details of the communication strategies the 4 Joint Venturers will use, and require a third 5 party as referred to in subclause (7) to use, 6 to alert Western Australian engineers, 7 surveyors, architects and other professional 8 consultants, experts, specialists, project 9 managers and consultants and Western 10 Australian suppliers, manufacturers and 11 contractors to services opportunities and 12 procurement opportunities respectively as 13 referred to in subclause (1). 14 It is acknowledged by the Joint Venturers that the 15 strategies of the Joint Venturers referred to in 16 subclause (3)(a) will include strategies of the Joint 17 Venturers in relation to supply of services, labour, 18 works, materials, plant, equipment or supplies for the 19 purposes of this Agreement. 20 (4) At the request of either of them made at any time and 21 from time to time, the Minister and the Joint 22 Venturers shall confer as to any amendments desired 23 to any plan provided under this clause and may agree 24 to the amendment of the plan or the provision of a 25 new plan in substitution for the one previously 26 provided. 27 (5) At least 6 months before the anticipated submission 28 of proposals relating to a proposed development 29 pursuant to Clauses 8 or 16C, the Joint Venturers 30 must, unless the Minister otherwise requires, give to 31 the Minister information about the implementation of 32 the plan provided under this Clause in relation to the 33 proposed development. This obligation operates in 34 relation to all proposals submitted on or after the date 35 that is 7 months after the date when a plan is first 36 provided under this Clause. page 51 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 4 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 14 1 (6) During the currency of this Agreement the Joint 2 Venturers shall implement the plan provided under 3 this Clause. 4 (7) The Joint Venturers shall: 5 (a) in every contract entered into with a third 6 party where the third party has an 7 obligation or right to procure the supply of 8 services, labour, works, materials, plant, 9 equipment or supplies for or in connection 10 with a proposed development, ensure that 11 the contract contains appropriate provisions 12 requiring the third party to undertake 13 procurement activities in accordance with 14 the plan provided under this Clause; and 15 (b) use reasonable endeavours to ensure that 16 the third party complies with those 17 provisions."; 18 (3) by inserting after clause 11(3) the following new subclause: 19 "(3a) Notwithstanding clause 16A(2)(b)(iv), detailed proposals 20 may refer to activities on tenure which is proposed to be 21 granted pursuant to subclause (1) as if that tenure was granted 22 pursuant to this Agreement (but this does not limit the powers 23 or discretions of the Minister under this Agreement or the 24 Minister responsible for the administration of any relevant 25 Act with respect to the grant of the tenure)."; 26 (4) by inserting after clause 11(5) the following new subclauses: 27 "Application for Eligible Existing Tenure to be held pursuant to 28 this Agreement 29 (5a) (a) The Minister may at the request of the Joint 30 Venturers from time to time made during the 31 continuance of this Agreement approve Eligible 32 Existing Tenure becoming held pursuant to this 33 Agreement on such conditions as the Minister sees fit 34 (including, without limitation and notwithstanding the 35 Mining Act 1978 and the LAA, as to the surrender of page 52 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 Part 4 amended s. 14 1 land, the submission of detailed proposals and the 2 variation of the terms and conditions of the Eligible 3 Existing Tenure (including for the Eligible Existing 4 Tenure to be held pursuant to this Agreement and for 5 the more efficient use of the Relevant Land)) and the 6 Minister may from time to time vary such conditions 7 in order to extend any specified time for the doing of 8 any thing or otherwise with the agreement of the Joint 9 Venturers. 10 (b) Eligible Existing Tenure the subject of an approval by 11 the Minister under this subclause will be held by the 12 Joint Venturers pursuant to this Agreement: 13 (i) if the Minister's approval was not given 14 subject to conditions, on and from the date 15 of the Minister's notice of approval; 16 (ii) unless paragraph (iii) applies, if the 17 Minister's approval was given subject to 18 conditions, on the date on which all such 19 conditions have been satisfied; and 20 (iii) if the Minister's approval was given subject 21 to a condition requiring that the Joint 22 Venturers submit detailed proposals in 23 accordance with this Agreement, on the 24 later of the date on which the Minister 25 approves proposals submitted in discharge 26 of that specified condition and the date 27 upon which all other specified conditions 28 have been satisfied, but the Joint Venturers 29 are authorised to implement any approved 30 proposal to the extent such implementation 31 is consistent with the then terms and 32 conditions of the Eligible Existing Tenure 33 pending the satisfaction of any conditions 34 relating to the variation of the terms or 35 conditions of the Eligible Existing Tenure. 36 Where this paragraph (iii) applies, prior to 37 any approval of proposals and satisfaction page 53 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 4 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 14 1 of other conditions, the relevant tenure will 2 be treated for (but only for) the purposes of 3 clause 16A(2)(b)(iv) as tenure held 4 pursuant to this Agreement. 5 Application for Special Advance Tenure to be granted pursuant 6 to this Agreement 7 (5b) Without limiting clause 11(4), the Minister may at the 8 request of the Joint Venturers from time to time made during 9 the continuance of this Agreement approve Special Advance 10 Tenure being granted to the Joint Venturers pursuant to this 11 Agreement if: 12 (a) the Joint Venturers propose to submit detailed 13 proposals under this Agreement (other than under 14 clause 16C) to construct works installations or 15 facilities on the Relevant Land and the Joint 16 Venturers' request is so far as is practicable made, 17 unless the Minister approves otherwise, no less than 18 6 months before the submission of those detailed 19 proposals; and 20 (b) the Minister is satisfied that it is necessary and 21 appropriate that Special Advance Tenure, rather than 22 tenure granted under or pursuant to the other 23 provisions of this Agreement, be used for the 24 purposes of the proposed works installations or 25 facilities on the Relevant Land, 26 and if the Minister does so approve: 27 (c) notwithstanding the Mining Act 1978 or the LAA, the 28 appropriate authority or instrumentality of the State 29 shall obtain the consent of the Minister to the form 30 and substance of the Special Advance Tenure prior to 31 its grant (which for the avoidance of doubt neither the 32 State nor the Minister is obliged to cause) to the Joint 33 Venturers as tenants in common in equal shares; and 34 (d) if the Joint Venturers do not submit detailed 35 proposals relating to construction of the relevant 36 works installations or facilities on the Relevant Land page 54 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 Part 4 amended s. 14 1 within 24 months after the date of the Minister's 2 approval or such later time subsequently allowed by 3 the Minister, or if submitted the Minister does not 4 approve such detailed proposals, the Special Advance 5 Tenure (if then granted) shall be surrendered at the 6 request of the Minister. 7 (5c) The decisions of the Minister under subclauses (5a) and (5b) 8 shall not be referable to arbitration and any approval of the 9 Minister under this clause shall not in any way limit, 10 prejudice or otherwise affect the exercise by the Minister of 11 the Minister's powers, or the performance of the Minister's 12 obligations, under this Agreement or otherwise under the 13 laws from time to time of the said State."; 14 (5) in clause 11 by: 15 (a) deleting in subclause (6) "subclause (5)" and substituting 16 "subclauses (5), (5a) and (5b); and 17 (b) deleting in subclause (6a) "and (4)" and substituting ", (4), 18 (5a) and (5b)"; 19 (6) in clause 12A by deleting " allow crossing places for roads stock and 20 other railways and also"; 21 (7) by inserting after clause 12A the following new clause: 22 "Crossings over Railway 23 12B. For the purposes of livestock and infrastructure such as 24 roads, railways, conveyors, pipelines, transmission lines and 25 other utilities proposed to cross the land the subject of the 26 railway of the Joint Venturers, the Joint Venturers shall: 27 (a) if applicable, give their consent to, or otherwise 28 facilitate the grant by the State or any agency, 29 instrumentality or other authority of the State of any 30 lease, licence or other title over land the subject of the 31 railway so long as such grant does not in the 32 Minister's opinion unduly prejudice or interfere with 33 the activities of the Joint Venturers under this 34 Agreement; and page 55 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 4 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 14 1 (b) on reasonable terms and conditions allow access for 2 the construction and operation of such crossings and 3 associated infrastructure, 4 provided that in forming his opinion under this clause, the 5 Minister must consult with the Joint Venturers."; 6 (8) by inserting after clause 16B the following new clause: 7 "Transfer of rights to section of Goldsworthy-Nimingarra 8 Railway 9 16BA. The Joint Venturers may surrender their lease or leases over 10 the section of the railway held pursuant to this Agreement 11 that is described in clause 9DA of the agreement approved 12 by the Iron Ore (Mount Goldsworthy) Agreement Act 1964 13 in accordance with and as contemplated by that clause."; 14 (9) in clause 16C by: 15 (a) deleting in subclause (1) ""LAA" means the Land 16 Administration Act 1997 (WA)"; 17 (b) inserting after subclause (3)(c) the following new paragraph: 18 "(d) Without limiting subclause (9), the Minister may 19 waive the requirement under this clause for the Joint 20 Venturers to obtain and to furnish the consent of a 21 title holder if the title holder has refused to give the 22 required consent and the Minister is satisfied that: 23 (i) the title holder's affected land is or was 24 subject to a miscellaneous licence granted 25 under the Mining Act 1978 for the purpose 26 of a railway to be constructed and operated 27 in accordance with this Agreement; and 28 (ii) in the Minister's opinion, the title holder's 29 refusal to give the required consent is not 30 reasonable in all the circumstances 31 including having regard to: 32 (A) the rights of the Joint Venturers in 33 relation to the affected land as the page 56 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 Part 4 amended s. 14 1 holders of the miscellaneous 2 licence, relative to their rights as 3 the holders of the sought Special 4 Railway Licence or Lateral Access 5 Road Licence (as the case may be); 6 and 7 (B) the terms of any agreement 8 between the Joint Venturers and 9 title holder."; 10 (c) deleting in subclause (4)(a) the comma after "the provisions 11 of this Agreement" and substituting "and"; and 12 (d) in subclause (7): 13 (i) deleting all words in paragraph (c) after "at the date 14 of such inclusion"; and 15 (ii) inserting after paragraph (k) the following new 16 paragraph: 17 "(l) The provisions of clause 12B shall apply 18 mutatis mutandis to any Railway or 19 Railway spur line constructed pursuant to 20 this clause."; and 21 (10) by deleting clause 33(1)(ii) and substituting the following paragraph: 22 "(ii) on fine ore sold or shipped separately as such at the rate of: 23 (A) 5.625% of the f.o.b. value, for ore shipped prior to or 24 on 30 June 2012; 25 (B) 6.5% of the f.o.b. value, for ore shipped during the 26 period from 1 July 2012 to 30 June 2013 (inclusive of 27 both dates); and 28 (C) 7.5% of the f.o.b. value, for ore shipped on or after 29 1 July 2013;". 30 page 57 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 4 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 amended s. 14 1 EXECUTED as a deed. 2 3 SIGNED by the HONOURABLE ) 4 COLIN JAMES BARNETT in the ) 5 presence of: ) 6 [Signature] [Signature] Signature of witness Peter Goodall Name of witness 7 8 EXECUTED by BHP BILLITON ) 9 MINERALS PTY. LTD. ACN 008 694 782 ) 10 in accordance with section 127(1) of ) 11 the Corporations Act ) 12 [Signature] [Signature] Signature of Director Signature of Secretary Uvashni Raman Robin Lees Full Name Full Name 13 page 58 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 Part 4 amended s. 14 1 EXECUTED by MITSUI IRON ORE ) 2 CORPORATION PTY. LTD ) 3 ACN 050 157 456 in accordance with section ) 4 127(1) of the Corporations Act ) 5 [Signature] [Signature] Signature of Director Signature of Secretary Ryuzo Nakamura Jiahe He Full Name Full Name 6 7 SIGNED by Shuzaburo Tsuchihashi ) 8 as attorney for ITOCHU MINERALS & ) 9 ENERGY OF AUSTRALIA PTY. LTD. ) 10 ACN 009 256 259 under power ) 11 of attorney dated 27 October 2011 ) 12 in the presence of: ) 13 [Signature] [Signature] Signature of witness Signature of Attorney Yasushi Fukumura Shuzaburo Tsuchihashi Name Name 14 page 59 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 5 Iron Ore (McCamey's Monster) Agreement Authorisation Act 1972 amended s. 15 1 Part 5 -- Iron Ore (McCamey's Monster) Agreement 2 Authorisation Act 1972 amended 3 15. Act amended 4 This Part amends the Iron Ore (McCamey's Monster) 5 Agreement Authorisation Act 1972. 6 16. Section 10 inserted 7 After section 9 insert: 8 9 10. Fifth Variation Agreement 10 (1) The agreement (fifth Variation Agreement) a copy of 11 which is set out in Schedule 6 is ratified. 12 (2) The implementation of the fifth Variation Agreement is 13 authorised. 14 (3) Without limiting or otherwise affecting the application 15 of the Government Agreements Act 1979, the fifth 16 Variation Agreement is to operate and take effect 17 despite any other Act or law. 18 page 60 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (McCamey's Monster) Agreement Authorisation Act Part 5 1972 amended s. 17 1 17. Schedule 6 inserted 2 After Schedule 5 insert: 3 4 Schedule 6 -- Fifth Variation Agreement 5 [s. 10] 6 2011 7 THE HONOURABLE COLIN JAMES BARNETT 8 PREMIER OF THE STATE OF WESTERN AUSTRALIA 9 AND 10 BHP IRON ORE (JIMBLEBAR) PTY. LTD. 11 ACN 009 114 210 12 ________________________________________________________________ 13 IRON ORE (McCAMEY'S MONSTER) AGREEMENT 1972 14 RATIFIED VARIATION AGREEMENT 15 ________________________________________________________________ 16 17 18 19 20 21 [Solicitor's details] page 61 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 5 Iron Ore (McCamey's Monster) Agreement Authorisation Act 1972 amended s. 17 1 THIS AGREEMENT is made this 7th day of November 2011 2 3 BETWEEN 4 5 THE HONOURABLE COLIN JAMES BARNETT MLA., Premier of the 6 State of Western Australia, acting for and on behalf of the said State and 7 instrumentalities thereof from time to time (State) 8 AND 9 BHP IRON ORE (JIMBLEBAR) PTY. LTD. ACN 009 114 210 of Level 17, 10 St Georges Square, 225 St Georges Terrace, Perth, Western Australia 11 (Company). 12 13 RECITALS: 14 A. The State and the Company are now the parties to the agreement 15 authorised by and scheduled to the Iron Ore (McCamey's Monster) 16 Agreement Authorisation Act 1972 and which as subsequently added 17 to, varied or amended is referred to in this Agreement as the 18 "Principal Agreement". 19 B. The State and the Company wish to vary the Principal Agreement. 20 21 THE PARTIES AGREE AS FOLLOWS: 22 1. Interpretation 23 Subject to the context, the words and expressions used in this 24 Agreement have the same meanings respectively as they have in and 25 for the purpose of the Principal Agreement. 26 2. Ratification and Operation 27 (1) The State shall introduce and sponsor a Bill in the State Parliament of 28 Western Australia prior to 31 December 2011 or such later date as 29 may be agreed between the parties hereto to ratify this Agreement. page 62 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (McCamey's Monster) Agreement Authorisation Act Part 5 1972 amended s. 17 1 The State shall endeavour to secure the timely passage of such Bill as 2 an Act. 3 (2) The provisions of this Agreement other than this clause and clause 1 4 will not come into operation until the day after the day on which the 5 Bill referred to in subclause (1) has been passed by the State 6 Parliament of Western Australia and commences to operate as an Act. 7 (3) If by 30 June 2012 the said Bill has not commenced to operate as an 8 Act then, unless the parties hereto otherwise agree, this Agreement 9 will then cease and determine and no party hereto will have any claim 10 against any other party hereto with respect to any matter or thing 11 arising out of, done, performed, or omitted to be done or performed 12 under this Agreement. 13 (4) On the day after the day on which the said Bill commences to operate 14 as an Act all the provisions of this Agreement will operate and take 15 effect despite any enactment or other law. 16 3. Variation of Principal Agreement 17 The Principal Agreement is varied as follows: 18 (1) in clause 1 by inserting in the appropriate alphabetical positions the 19 following new definitions: 20 "Eligible Existing Tenure" means: 21 (a) (i) a miscellaneous licence or general purpose lease 22 granted to the Joint Venturers under the Mining 23 Act 1978; or 24 (ii) a lease or easement granted to the Joint Venturers 25 under the LAA; 26 and not clearly, to the satisfaction of the Minister, granted 27 under or pursuant to or held pursuant to this Agreement; or 28 (b) an application by the Joint Venturers for the grant to them of 29 a tenement referred to in paragraph (a)(i) (which application 30 has not clearly, to the satisfaction of the Minister, been made page 63 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 5 Iron Ore (McCamey's Monster) Agreement Authorisation Act 1972 amended s. 17 1 under or pursuant to this Agreement) and as the context 2 requires the tenement granted pursuant to such an application, 3 where that tenure was granted or that application was made (as the 4 case may be) on or before 1 October 2011; 5 "LAA" means the Land Administration Act 1997 (WA); 6 "Relevant Land", in relation to Eligible Existing Tenure or Special 7 Advance Tenure, means the land which is the subject of that Eligible 8 Existing Tenure or Special Advance Tenure, as the case may be; 9 "second variation date" means the date on which clause 3 of the 10 variation agreement made on or about 7 November 2011 between the 11 State and the Joint Venturers comes into operation; 12 "Special Advance Tenure" means: 13 (a) a miscellaneous licence or general purpose lease requested 14 under clause 13(2b) to be granted to the Joint Venturers under 15 the Mining Act 1978; or 16 (b) an easement or a lease requested under clause 13(2b) to be 17 granted to the Joint Venturers under the LAA, 18 and as the context requires such tenure if granted; 19 (2) in clause 9 by: 20 (a) in subclause (1): 21 (i) deleting "Subject to Clause 11A, if" and substituting 22 "If"; and 23 (ii) deleting ", 11A"; and 24 (b) in subclause (6), deleting "or Clause 11A"; page 64 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (McCamey's Monster) Agreement Authorisation Act Part 5 1972 amended s. 17 1 (3) by inserting after clause 9B the following new clauses: 2 "Community development plan 3 9BA. (1) In this Clause, the term "community and social 4 benefits" includes: 5 (a) assistance with skills development and 6 training opportunities to promote work 7 readiness and employment for persons 8 living in the Pilbara region of the said State; 9 (b) regional development activities in the 10 Pilbara region of the said State, including 11 partnerships and sponsorships; 12 (c) contribution to any community projects, 13 town services or facilities; and 14 (d) a regionally based workforce. 15 (2) The Joint Venturers acknowledge the need for 16 community and social benefits flowing from this 17 Agreement. 18 (3) The Joint Venturers agree that: 19 (a) they shall prepare a plan which describes 20 the Joint Venturers' proposed strategies for 21 achieving community and social benefits in 22 connection with their activities under this 23 Agreement; and 24 (b) the Joint Venturers shall, not later than 25 3 months after the second variation date, 26 submit to the Minister the plan prepared 27 under paragraph (a) and confer with the 28 Minister in respect of the plan. 29 (4) The Minister shall within 2 months after receipt of a 30 plan submitted under subclause (3)(b), either notify 31 the Joint Venturers that the Minister approves the 32 plan as submitted or notify the Joint Venturers of 33 changes which the Minister requires be made to the page 65 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 5 Iron Ore (McCamey's Monster) Agreement Authorisation Act 1972 amended s. 17 1 plan. If the Joint Venturers are unwilling to accept 2 the changes which the Minister requires they shall 3 notify the Minister to that effect and either party may 4 refer to arbitration hereunder the question of the 5 reasonableness of the changes required by the 6 Minister. 7 (5) The effect of an award made on an arbitration 8 pursuant to subclause (4) shall be that the relevant 9 plan submitted by the Joint Venturers pursuant to 10 subclause (3)(b) shall, with such changes required by 11 the Minister under subclause (4) as the arbitrator 12 determines to be reasonable (with or without 13 modification by the arbitrator), be deemed to be the 14 plan approved by the Minister under this clause. 15 (6) At least 3 months before the anticipated submission 16 of proposals relating to a proposed development 17 pursuant to Clauses 9 or 11E, the Joint Venturers 18 must, unless the Minister otherwise requires, give to 19 the Minister information about how the proposed 20 development may affect the plan approved or deemed 21 to be approved by the Minister under this Clause. 22 This obligation operates in relation to all proposals 23 submitted on or after the date that is 4 months after 24 the date when a plan is first approved or deemed to be 25 approved under this Clause. 26 (7) The Joint Venturers shall at least annually report to 27 the Minister about the Joint Venturers' 28 implementation of the plan approved or deemed to be 29 approved by the Minister under this Clause. 30 (8) At the request of either of them made at any time and 31 from time to time, the Minister and the Joint 32 Venturers shall confer as to any amendments desired 33 to any plan approved or deemed to be approved by 34 the Minister under this Clause and may agree to 35 amendment of the plan or adoption of a new plan. 36 Any such amended plan or new plan will be deemed 37 to be the plan approved by the Minister under this page 66 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (McCamey's Monster) Agreement Authorisation Act Part 5 1972 amended s. 17 1 Clause in respect of the development to which it 2 relates. 3 (9) During the currency of this Agreement, the Joint 4 Venturers shall implement the plan approved or 5 deemed to be approved by the Minister under this 6 Clause. 7 Local participation plan 8 9BB. (1) In this Clause, the term "local industry participation 9 benefits" means: 10 (a) the use and training of labour available 11 within the said State; 12 (b) the use of the services of engineers, 13 surveyors, architects and other professional 14 consultants, experts, specialists, project 15 managers and contractors available within 16 the said State; and 17 (c) the procurement of works, materials, plant, 18 equipment and supplies from Western 19 Australian suppliers, manufacturers and 20 contractors. 21 (2) The Joint Venturers acknowledge the need for local 22 industry participation benefits flowing from this 23 Agreement. 24 (3) The Joint Venturers agree that they shall, not later 25 than 3 months after the second variation date, prepare 26 and provide to the Minister a plan which contains: 27 (a) a clear statement on the strategies which the 28 Joint Venturers will use, and require a third 29 party as referred to in subclause (7) to use, 30 to maximise the uses and procurement 31 referred to in subclause (1); 32 (b) detailed information on the procurement 33 practices the Joint Venturers will adopt, and 34 require a third party as referred to in page 67 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 5 Iron Ore (McCamey's Monster) Agreement Authorisation Act 1972 amended s. 17 1 subclause (7) to adopt, in calling for tenders 2 and letting contracts for works, materials, 3 plant, equipment and supplies stages in 4 relation to a proposed development and 5 how such practices will provide fair and 6 reasonable opportunity for suitably 7 qualified Western Australian suppliers, 8 manufacturers and contractors to tender or 9 quote for works, materials, plant, 10 equipment and supplies; 11 (c) detailed information on the methods the 12 Joint Venturers will use, and require a third 13 party as referred to in subclause (7) to use, 14 to have its respective procurement officers 15 promptly introduced to Western Australian 16 suppliers, manufacturers and contractors 17 seeking such introduction; and 18 (d) details of the communication strategies the 19 Joint Venturers will use, and require a third 20 party as referred to in subclause (7) to use, 21 to alert Western Australian engineers, 22 surveyors, architects and other professional 23 consultants, experts, specialists, project 24 managers and consultants and Western 25 Australian suppliers, manufacturers and 26 contractors to services opportunities and 27 procurement opportunities respectively as 28 referred to in subclause (1). 29 It is acknowledged by the Joint Venturers that the 30 strategies of the Joint Venturers referred to in 31 subclause (3)(a) will include strategies of the Joint 32 Venturers in relation to supply of services, labour, 33 works, materials, plant, equipment or supplies for the 34 purposes of this Agreement. 35 (4) At the request of either of them made at any time and 36 from time to time, the Minister and the Joint 37 Venturers shall confer as to any amendments desired page 68 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (McCamey's Monster) Agreement Authorisation Act Part 5 1972 amended s. 17 1 to any plan provided under this clause and may agree 2 to the amendment of the plan or the provision of a 3 new plan in substitution for the one previously 4 provided. 5 (5) At least 6 months before the anticipated submission 6 of proposals relating to a proposed development 7 pursuant to Clauses 9 or 11E, the Joint Venturers 8 must, unless the Minister otherwise requires, give to 9 the Minister information about the implementation of 10 the plan provided under this Clause in relation to the 11 proposed development. This obligation operates in 12 relation to all proposals submitted on or after the date 13 that is 7 months after the date when a plan is first 14 provided under this Clause. 15 (6) During the currency of this Agreement the Joint 16 Venturers shall implement the plan provided under 17 this Clause. 18 (7) The Joint Venturers shall: 19 (a) in every contract entered into with a third 20 party where the third party has an 21 obligation or right to procure the supply of 22 services, labour, works, materials, plant, 23 equipment or supplies for or in connection 24 with a proposed development, ensure that 25 the contract contains appropriate provisions 26 requiring the third party to undertake 27 procurement activities in accordance with 28 the plan provided under this Clause; and 29 (b) use reasonable endeavours to ensure that 30 the third party complies with those 31 provisions."; 32 (4) by deleting clause 11A; 33 (5) in clause 11B(4) by deleting "clauses 9 or 11A as the case may be" 34 and substituting "clause 9"; page 69 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 5 Iron Ore (McCamey's Monster) Agreement Authorisation Act 1972 amended s. 17 1 (6) in clause 11C(2)(a) by deleting "clauses 11A or" and substituting 2 "clause"; 3 (7) in clause 11E by: 4 (a) deleting in subclause (1) ""LAA" means the Land 5 Administration Act 1997 (WA)"; 6 (b) inserting after subclause (3)(c) the following new paragraph: 7 "(d) Without limiting subclause (9), the Minister may 8 waive the requirement under this clause for the Joint 9 Venturers to obtain and to furnish the consent of a 10 title holder if the title holder has refused to give the 11 required consent and the Minister is satisfied that: 12 (i) the title holder's affected land is or was 13 subject to a miscellaneous licence granted 14 under the Mining Act 1978 for the purpose 15 of a railway to be constructed and operated 16 in accordance with this Agreement; and 17 (ii) in the Minister's opinion, the title holder's 18 refusal to give the required consent is not 19 reasonable in all the circumstances 20 including having regard to: 21 (A) the rights of the Joint Venturers in 22 relation to the affected land as the 23 holders of the miscellaneous 24 licence, relative to their rights as 25 the holders of the sought Special 26 Railway Licence or Lateral Access 27 Road Licence (as the case may be); 28 and 29 (B) the terms of any agreement 30 between the Joint Venturers and 31 the the title holder."; 32 (c) deleting in subclause (4)(a) the comma after "the provisions 33 of this Agreement" and substituting "and"; and page 70 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (McCamey's Monster) Agreement Authorisation Act Part 5 1972 amended s. 17 1 (d) in subclause (7): 2 (i) deleting all words in paragraph (c) after "at the date 3 of such inclusion"; and 4 (ii) inserting after paragraph (k) the following new 5 paragraph: 6 "(l) The provisions of clause 19(2aa) shall 7 apply mutatis mutandis to any Railway or 8 Railway spur line constructed pursuant to 9 this clause."; 10 (8) in clause 13 by: 11 (a) inserting at the end of subclause (1) the following new 12 paragraph: 13 "Notwithstanding clause 11C(2)(b)(iv), detailed proposals 14 may refer to activities on tenure which is proposed to be 15 granted pursuant to this subclause as if that tenure was 16 granted pursuant to this Agreement (but this does not limit 17 the powers or discretions of the Minister under this 18 Agreement or the Minister responsible for the administration 19 of any relevant Act with respect to the grant of the tenure)."; 20 (b) renumbering subclause (2a) as subclause (2d) and inserting 21 the following new subclauses before the renumbered 22 subclause (2d): 23 "Application for Eligible Existing Tenure to be held 24 pursuant to this Agreement 25 (2a) (a) The Minister may at the request of the Joint 26 Venturers from time to time made during 27 the continuance of this Agreement approve 28 Eligible Existing Tenure becoming held 29 pursuant to this Agreement on such 30 conditions as the Minister sees fit 31 (including, without limitation and 32 notwithstanding the Mining Act 1978 and 33 the LAA, as to the surrender of land, the 34 submission of detailed proposals and the page 71 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 5 Iron Ore (McCamey's Monster) Agreement Authorisation Act 1972 amended s. 17 1 variation of the terms and conditions of the 2 Eligible Existing Tenure (including for the 3 Eligible Existing Tenure to be held 4 pursuant to this Agreement and for the 5 more efficient use of the Relevant Land)) 6 and the Minister may from time to time 7 vary such conditions in order to extend any 8 specified time for the doing of any thing or 9 otherwise with the agreement of the Joint 10 Venturers. 11 (b) Eligible Existing Tenure the subject of an 12 approval by the Minister under this 13 subclause will be held by the Joint 14 Venturers pursuant to this Agreement: 15 (i) if the Minister's approval was not 16 given subject to conditions, on and 17 from the date of the Minister's 18 notice of approval; 19 (ii) unless paragraph (iii) applies, if the 20 Minister's approval was given 21 subject to conditions, on the date 22 on which all such conditions have 23 been satisfied; and 24 (iii) if the Minister's approval was 25 given subject to a condition 26 requiring that the Joint Venturers 27 submit detailed proposals in 28 accordance with this Agreement, 29 on the later of the date on which 30 the Minister approves proposals 31 submitted in discharge of that 32 specified condition and the date 33 upon which all other specified 34 conditions have been satisfied, but 35 the Joint Venturers are authorised 36 to implement any approved 37 proposal to the extent such page 72 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (McCamey's Monster) Agreement Authorisation Act Part 5 1972 amended s. 17 1 implementation is consistent with 2 the then terms and conditions of 3 the Eligible Existing Tenure 4 pending the satisfaction of any 5 conditions relating to the variation 6 of the terms or conditions of the 7 Eligible Existing Tenure. Where 8 this paragraph (iii) applies, prior to 9 any approval of proposals and 10 satisfaction of other conditions, the 11 relevant tenure will be treated for 12 (but only for) the purposes of 13 clause 11C(2)(b)(iv) as tenure held 14 pursuant to this Agreement. 15 Application for Special Advance Tenure to be granted 16 pursuant to this Agreement 17 (2b) The Minister may at the request of the Joint 18 Venturers from time to time made during the 19 continuance of this Agreement approve Special 20 Advance Tenure being granted to the Joint Venturers 21 pursuant to this Agreement if: 22 (a) the Joint Venturers propose to submit 23 detailed proposals under this Agreement 24 (other than under clause 11E) to construct 25 works installations or facilities on the 26 Relevant Land and the Joint Venturers' 27 request is so far as is practicable made, 28 unless the Minister approves otherwise, no 29 less than 6 months before the submission of 30 those detailed proposals; and 31 (b) the Minister is satisfied that it is necessary 32 and appropriate that Special Advance 33 Tenure, rather than tenure granted under or 34 pursuant to the other provisions of this 35 Agreement, be used for the purposes of the 36 proposed works installations or facilities on 37 the Relevant Land, page 73 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 5 Iron Ore (McCamey's Monster) Agreement Authorisation Act 1972 amended s. 17 1 and if the Minister does so approve: 2 (c) notwithstanding the Mining Act 1978 or the 3 LAA, the appropriate authority or 4 instrumentality of the State shall obtain the 5 consent of the Minister to the form and 6 substance of the Special Advance Tenure 7 prior to its grant (which for the avoidance 8 of doubt neither the State nor the Minister 9 is obliged to cause) to the Joint Venturers; 10 and 11 (d) if the Joint Venturers do not submit detailed 12 proposals relating to construction of the 13 relevant works installations or facilities on 14 the Relevant Land within 24 months after 15 the date of the Minister's approval or such 16 later time subsequently allowed by the 17 Minister, or if submitted the Minister does 18 not approve such detailed proposals, the 19 Special Advance Tenure (if then granted) 20 shall be surrendered at the request of the 21 Minister. 22 (2c) The decisions of the Minister under subclauses (2a) 23 and (2b) shall not be referable to arbitration and any 24 approval of the Minister under this clause shall not in 25 any way limit, prejudice or otherwise affect the 26 exercise by the Minister of the Minister's powers, or 27 the performance of the Minister's obligations, under 28 this Agreement or otherwise under the laws from time 29 to time of the said State."; 30 (c) in the renumbered subclause (2d), deleting "and (2)" and 31 inserting ", (2), (2a) and (2b)"; 32 (9) in clause 19(2) by: 33 (a) deleting all words in subclause (2) after "other railways 34 which now exist"; and page 74 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (McCamey's Monster) Agreement Authorisation Act Part 5 1972 amended s. 17 1 (b) inserting after subclause (2) the following new subclause: 2 "Crossings over Railway 3 (2aa) For the purposes of livestock and infrastructure such 4 as roads, railways, conveyors, pipelines, transmission 5 lines and other utilities proposed to cross the land the 6 subject of the Joint Venturers' said railway the Joint 7 Venturers shall: 8 (a) if applicable, give their consent to, or 9 otherwise facilitate the grant by the State or 10 any agency, instrumentality or other 11 authority of the State of any lease, licence 12 or other title over land the subject of the 13 said railway so long as such grant does not 14 in the Minister's opinion unduly prejudice 15 or interfere with the activities of the Joint 16 Venturers under this Agreement; and 17 (b) on reasonable terms and conditions allow 18 access for the construction and operation of 19 such crossings and associated 20 infrastructure, 21 provided that in forming his opinion under this 22 clause, the Minister must consult with the Joint 23 Venturers;"; and 24 (10) in clause 31(1), by deleting paragraphs (aa) and (ab) and substituting 25 the following paragraph: 26 "(ab) on iron ore products being fine ore where such fine 27 ore is sold or shipped separately as such - at the rate 28 of: 29 (i) 5.625% of the f.o.b. value, for ore shipped 30 prior to or on 30 June 2012; 31 (ii) 6.5% of the f.o.b. value, for ore shipped 32 during the period from 1 July 2012 to 33 30 June 2013 (inclusive of both dates); and 34 (iii) 7.5% of the f.o.b. value, for ore shipped on 35 or after 1 July 2013;". page 75 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 5 Iron Ore (McCamey's Monster) Agreement Authorisation Act 1972 amended s. 17 1 EXECUTED as a deed. 2 3 SIGNED by the HONOURABLE ) 4 COLIN JAMES BARNETT ) 5 in the presence of: ) 6 [Signature] [Signature] Signature of witness Peter Goodall Name of witness 7 8 EXECUTED by BHP IRON ORE ) 9 (JIMBLEBAR) PTY LTD ) 10 ACN 009 114 210 ) 11 in accordance with section 127(1) of ) 12 the Corporations Act ) 13 [Signature] [Signature] Signature of Director Signature of Secretary Uvashni Raman Robin Lees Full Name Full Name 14 page 76 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 6 s. 18 1 Part 6 -- Iron Ore (Marillana Creek) Agreement 2 Act 1991 amended 3 18. Act amended 4 This Part amends the Iron Ore (Marillana Creek) Agreement 5 Act 1991. 6 19. Section 3 amended 7 (1) At the end of section 3 insert: 8 9 Fourth Variation Agreement means the agreement a 10 copy of which is set out in Schedule 5. 11 12 (2) In section 3 in the definition of Third Variation Agreement 13 delete "Schedule 4." and insert: 14 15 Schedule 4; 16 17 20. Section 10 inserted 18 After section 9 insert: 19 20 10. 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. 28 page 77 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 6 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 21 1 21. Schedule 5 inserted 2 After Schedule 4 insert: 3 4 Schedule 5 -- Fourth Variation Agreement 5 [s. 3] 6 2011 7 THE HONOURABLE COLIN JAMES BARNETT 8 PREMIER OF THE STATE OF WESTERN AUSTRALIA 9 AND 10 BHP BILLITON MINERALS PTY. LTD. 11 ACN 008 694 782 12 ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY. LTD. 13 ACN 009 256 259 14 MITSUI IRON ORE CORPORATION PTY. LTD. 15 ACN 050 157 456 16 ________________________________________________________________ 17 IRON ORE (MARILLANA CREEK) AGREEMENT 1991 18 RATIFIED VARIATION AGREEMENT 19 ________________________________________________________________ 20 21 22 [Solicitor's Details] page 78 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 6 s. 21 1 THIS AGREEMENT is made this 7th day of November 2011 2 3 BETWEEN 4 5 THE HONOURABLE COLIN JAMES BARNETT MLA., Premier of the 6 State of Western Australia, acting for and on behalf of the said State and 7 instrumentalities thereof from time to time (State) 8 AND 9 BHP BILLITON MINERALS PTY. LTD. ACN 008 694 782 of Level 17, St 10 Georges Square, 225 St Georges Terrace, Perth, Western Australia, ITOCHU 11 MINERALS & ENERGY OF AUSTRALIA PTY. LTD. ACN 009 256 259 12 of Level 22, 221 St Georges Terrace, Perth, Western Australia and MITSUI 13 IRON ORE CORPORATION PTY. LTD. ACN 050 157 456 of Level 24, 14 221 St Georges Terrace, Perth, Western Australia (Joint Venturers). 15 16 RECITALS: 17 A. The State and the Joint Venturers are now the parties to the agreement 18 dated 20 December 1990 ratified by and scheduled to the Iron Ore 19 (Marillana Creek) Agreement Act 1991 and which as subsequently 20 added to, varied or amended is referred to in this Agreement as the 21 "Principal Agreement". 22 B. The State and the Joint Venturers wish to vary the Principal 23 Agreement. 24 25 THE PARTIES AGREE AS FOLLOWS: 26 1. Interpretation 27 Subject to the context, the words and expressions used in this 28 Agreement have the same meanings respectively as they have in and 29 for the purpose of the Principal Agreement. page 79 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 6 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 21 1 2. Ratification and Operation 2 (1) The State shall introduce and sponsor a Bill in the State Parliament of 3 Western Australia prior to 31 December 2011 or such later date as 4 may be agreed between the parties hereto to ratify this Agreement. 5 The State shall endeavour to secure the timely passage of such Bill as 6 an Act. 7 (2) The provisions of this Agreement other than this clause and clause 1 8 will not come into operation until the day after the day on which the 9 Bill referred to in subclause (1) has been passed by the State 10 Parliament of Western Australia and commences to operate as an Act. 11 (3) If by 30 June 2012 the said Bill has not commenced to operate as an 12 Act then, unless the parties hereto otherwise agree, this Agreement 13 will then cease and determine and no party hereto will have any claim 14 against any other party hereto with respect to any matter or thing 15 arising out of, done, performed, or omitted to be done or performed 16 under this Agreement. 17 (4) On the day after the day on which the said Bill commences to operate 18 as an Act all the provisions of this Agreement will operate and take 19 effect despite any enactment or other law. 20 3. Variation of Principal Agreement 21 The Principal Agreement is varied as follows: 22 (1) in clause 1 by inserting in the appropriate alphabetical positions the 23 following new definitions: 24 "Eligible Existing Tenure" means: 25 (a) (i) a miscellaneous licence or general purpose lease 26 granted to the Company under the Mining Act; or 27 (ii) a lease or easement granted to the Company under 28 the LAA, 29 and not clearly, to the satisfaction of the Minister, granted 30 under or pursuant to or held pursuant to this Agreement; or 31 (b) an application by the Company for the grant to it of a 32 tenement referred to in paragraph (a)(i) (which application 33 has not clearly, to the satisfaction of the Minister, been made page 80 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 6 s. 21 1 under or pursuant to this Agreement) and as the context 2 requires the tenement granted pursuant to such an 3 application, 4 where that tenure was granted or that application was made (as the 5 case may be) on or before 1 October 2011; 6 "LAA " means the Land Administration Act 1997 (WA); 7 "Relevant Land", in relation to Eligible Existing Tenure or Special 8 Advance Tenure, means the land which is the subject of that Eligible 9 Existing Tenure or Special Advance Tenure, as the case may be; 10 "second variation date" means the date on which clause 3 of the 11 variation agreement made on or about 7 November 2011 between the 12 State and the Company comes into operation; 13 "Special Advance Tenure" means: 14 (a) a miscellaneous licence or general purpose lease requested 15 under clause 22(2b) to be granted to the Company under the 16 Mining Act; or 17 (b) an easement or a lease requested under clause 22(2b) to be 18 granted to the Company under the LAA, 19 and as the context requires such tenure if granted; 20 (2) in clause 10(1) by deleting "produce more than 5,500,000 tonnes of 21 iron ore per annum for transportation from the mining lease or to"; 22 (3) by inserting after clause 10B the following new clauses: 23 "Community development plan 24 10C. (1) In this Clause, the term "community and social 25 benefits" includes: 26 (a) assistance with skills development and 27 training opportunities to promote work 28 readiness and employment for persons 29 living in the Pilbara region of the said State; 30 (b) regional development activities in the 31 Pilbara region of the said State, including 32 partnerships and sponsorships; page 81 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 6 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 21 1 (c) contribution to any community projects, 2 town services or facilities; and 3 (d) a regionally based workforce. 4 (2) The Company acknowledges the need for community 5 and social benefits flowing from this Agreement. 6 (3) The Company agrees that: 7 (a) it shall prepare a plan which describes the 8 Company's proposed strategies for 9 achieving community and social benefits in 10 connection with its activities under this 11 Agreement; and 12 (b) the Company shall, not later than 3 months 13 after the second variation date, submit to 14 the Minister the plan prepared under 15 paragraph (a) and confer with the Minister 16 in respect of the plan. 17 (4) The Minister shall within 2 months after receipt of a 18 plan submitted under subclause (3)(b), either notify 19 the Company that the Minister approves the plan as 20 submitted or notify the Company of changes which 21 the Minister requires be made to the plan. If the 22 Company is unwilling to accept the changes which 23 the Minister requires it shall notify the Minister to 24 that effect and either party may refer to arbitration 25 hereunder the question of the reasonableness of the 26 changes required by the Minister. 27 (5) The effect of an award made on an arbitration 28 pursuant to subclause (4) shall be that the relevant 29 plan submitted by the Company pursuant to 30 subclause (3)(b) shall, with such changes required by 31 the Minister under subclause (4) as the arbitrator 32 determines to be reasonable (with or without 33 modification by the arbitrator), be deemed to be the 34 plan approved by the Minister under this clause. page 82 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 6 s. 21 1 (6) At least 3 months before the anticipated submission 2 of proposals relating to a proposed development 3 pursuant to any of Clauses 10, 11 or 14C, the 4 Company must, unless the Minister otherwise 5 requires, give to the Minister information about how 6 the proposed development may affect the plan 7 approved or deemed to be approved by the Minister 8 under this Clause. This obligation operates in 9 relation to all proposals submitted on or after the date 10 that is 4 months after the date when a plan is first 11 approved or deemed to be approved under this 12 Clause. 13 (7) The Company shall at least annually report to the 14 Minister about the Company's implementation of the 15 plan approved or deemed to be approved by the 16 Minister under this Clause. 17 (8) At the request of either of them made at any time and 18 from time to time, the Minister and the Company 19 shall confer as to any amendments desired to any plan 20 approved or deemed to be approved by the Minister 21 under this Clause and may agree to amendment of the 22 plan or adoption of a new plan. Any such amended 23 plan or new plan will be deemed to be the plan 24 approved by the Minister under this Clause in respect 25 of the development to which it relates. 26 (9) During the currency of this Agreement, the Company 27 shall implement the plan approved or deemed to be 28 approved by the Minister under this Clause. 29 Local participation plan 30 10D. (1) In this Clause, the term "local industry participation 31 benefits" means: 32 (a) the use and training of labour available 33 within the said State; 34 (b) the use of the services of engineers, 35 surveyors, architects and other professional 36 consultants, experts, specialists, project page 83 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 6 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 21 1 managers and contractors available within 2 the said State; and 3 (c) the procurement of works, materials, plant, 4 equipment and supplies from Western 5 Australian suppliers, manufacturers and 6 contractors. 7 (2) The Company acknowledges the need for local 8 industry participation benefits flowing from this 9 Agreement. 10 (3) The Company agrees that it shall, not later than 11 3 months after the second variation date, prepare and 12 provide to the Minister a plan which contains: 13 (a) a clear statement on the strategies which the 14 Company will use, and require a third party 15 as referred to in subclause (7) to use, to 16 maximise the uses and procurement 17 referred to in subclause (1); 18 (b) detailed information on the procurement 19 practices the Company will adopt, and 20 require a third party as referred to in 21 subclause (7) to adopt, in calling for tenders 22 and letting contracts for works, materials, 23 plant, equipment and supplies stages in 24 relation to a proposed development and 25 how such practices will provide fair and 26 reasonable opportunity for suitably 27 qualified Western Australian suppliers, 28 manufacturers and contractors to tender or 29 quote for works, materials, plant, 30 equipment and supplies; 31 (c) detailed information on the methods the 32 Company will use, and require a third party 33 as referred to in subclause (7) to use, to 34 have its respective procurement officers 35 promptly introduced to Western Australian 36 suppliers, manufacturers and contractors 37 seeking such introduction; and page 84 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 6 s. 21 1 (d) details of the communication strategies the 2 Company will use, and require a third party 3 as referred to in subclause (7) to use, to 4 alert Western Australian engineers, 5 surveyors, architects and other professional 6 consultants, experts, specialists, project 7 managers and consultants and Western 8 Australian suppliers, manufacturers and 9 contractors to services opportunities and 10 procurement opportunities respectively as 11 referred to in subclause (1). 12 It is acknowledged by the Company that the strategies 13 of the Company referred to in subclause (3)(a) will 14 include strategies of the Company in relation to 15 supply of services, labour, works, materials, plant, 16 equipment or supplies for the purposes of this 17 Agreement. 18 (4) At the request of either of them made at any time and 19 from time to time, the Minister and the Company 20 shall confer as to any amendments desired to any plan 21 provided under this clause and may agree to the 22 amendment of the plan or the provision of a new plan 23 in substitution for the one previously provided. 24 (5) At least 6 months before the anticipated submission 25 of proposals relating to a proposed development 26 pursuant to any of Clauses 10, 11 or 14C, the 27 Company must, unless the Minister otherwise 28 requires, give to the Minister information about the 29 implementation of the plan provided under this 30 Clause in relation to the proposed development. This 31 obligation operates in relation to all proposals 32 submitted on or after the date that is 7 months after 33 the date when a plan is first provided under this 34 Clause. 35 (6) During the currency of this Agreement the Company 36 shall implement the plan provided under this Clause. page 85 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 6 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 21 1 (7) The Company shall: 2 (a) in every contract entered into with a third 3 party where the third party has an 4 obligation or right to procure the supply of 5 services, labour, works, materials, plant, 6 equipment or supplies for or in connection 7 with a proposed development, ensure that 8 the contract contains appropriate provisions 9 requiring the third party to undertake 10 procurement activities in accordance with 11 the plan provided under this Clause; and 12 (b) use reasonable endeavours to ensure that 13 the third party complies with those 14 provisions."; 15 (4) in clause 11 by: 16 (a) in subclause (1), deleting the definition of "approved 17 production limit under this Clause"; 18 (b) in subclause (2): 19 (i) deleting "produce iron ore under this Agreement for 20 transportation in any calendar year in excess of the 21 approved production limit nor shall" and substituting 22 "increase"; 23 (ii) deleting "exceed" and substituting "above"; 24 (c) in subclause 3, deleting "the approved production limit under 25 this Clause or"; 26 (d) deleting subclause (5); 27 (e) in subclause (8)(a): 28 (i) deleting "approved production limit or"; and 29 (ii) deleting ", in respect of a consent in relation to a 30 proposed increase in the approved mine workforce,"; 31 and page 86 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 6 s. 21 1 (f) inserting after subclause (8) a new subclause as follows: 2 "(9) For the avoidance of doubt, nothing in this clause 11 3 requires the Company to seek or obtain the 4 Minister's approval or consent (by submitting 5 proposals or otherwise) to a mere increase in 6 production limits."; 7 (5) in clause 13(1) by: 8 (a) deleting paragraph (aa); and 9 (b) deleting paragraph (ac) and substituting the following 10 paragraph: 11 "(ac) on fine ore and on pisolite fine ore sold or shipped 12 separately as such at the rate of: 13 (i) 5.625% of the f.o.b. value, for ore shipped 14 prior to or on 30 June 2012; 15 (ii) 6.5% of the f.o.b. value, for ore shipped 16 during the period from 1 July 2012 to 17 30 June 2013 (inclusive of both dates); and 18 (iii) 7.5% of the f.o.b. value, for ore shipped on 19 or after 1 July 2013;"; 20 (6) in clause 14C by: 21 (a) deleting in subclause (1) ""LAA" means the Land 22 Administration Act 1997 (WA)"; 23 (b) inserting after subclause (3)(c) the following new paragraph: 24 "(d) Without limiting subclause (9), the Minister may 25 waive the requirement under this clause for the 26 Company to obtain and to furnish the consent of a 27 title holder if the title holder has refused to give the 28 required consent and the Minister is satisfied that: 29 (i) the title holder's affected land is or was 30 subject to a miscellaneous licence granted 31 under the Mining Act 1978 for the purpose page 87 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 6 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 21 1 of a railway to be constructed and operated 2 in accordance with this Agreement; and 3 (ii) in the Minister's opinion, the title holder's 4 refusal to give the required consent is not 5 reasonable in all the circumstances 6 including having regard to: 7 (A) the rights of the Company in 8 relation to the affected land as the 9 holder of the miscellaneous 10 licence, relative to its rights as the 11 holder of the sought Special 12 Railway Licence or Lateral Access 13 Road Licence (as the case may be); 14 and 15 (B) the terms of any agreement 16 between the Company and the title 17 holder."; 18 (c) deleting in subclause (4)(a) the comma after "the provisions 19 of this Agreement" and substituting "and"; and 20 (d) in subclause (7): 21 (i) deleting all words in paragraph (c) after "at the date 22 of such inclusion"; and 23 (ii) inserting after paragraph (k) the following new 24 paragraph: 25 "(l) The provisions of clause 23A shall apply 26 mutatis mutandis to any Railway or 27 Railway spur line constructed pursuant to 28 this clause."; 29 (7) in clause 21(2)(a) by deleting "the approved production limit or"; page 88 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 6 s. 21 1 (8) in clause 22 by: 2 (a) inserting at the end of subclause (1) the following new 3 paragraph: 4 "Notwithstanding clause 14A(2)(b)(iv), detailed proposals 5 may refer to activities on tenure which is proposed to be 6 granted pursuant to this subclause (1) as if that tenure was 7 granted pursuant to this Agreement (but this does not limit 8 the powers or discretions of the Minister under this 9 Agreement or the Minister responsible for the administration 10 of any relevant Act with respect to the grant of the tenure)."; 11 (b) in subclause (2) inserting after "The provisions of this 12 subclause" the words "and subclauses (2a) and (2b)"; 13 (c) renumbering subclause (2a) as subclause (2d) and inserting 14 the following new subclauses before the renumbered 15 subclause (2d): 16 "Application for Eligible Existing Tenure to be held 17 pursuant to this Agreement 18 (2a) (a) The Minister may at the request of the 19 Company from time to time made during 20 the continuance of this Agreement 21 approve Eligible Existing Tenure 22 becoming held pursuant to this Agreement 23 on such conditions as the Minister sees fit 24 (including, without limitation and 25 notwithstanding the Mining Act and the 26 LAA, as to the surrender of land, the 27 submission of detailed proposals and the 28 variation of the terms and conditions of 29 the Eligible Existing Tenure (including for 30 the Eligible Existing Tenure to be held 31 pursuant to this Agreement and for the 32 more efficient use of the Relevant Land)) 33 and the Minister may from time to time 34 vary such conditions in order to extend 35 any specified time for the doing of any 36 thing or otherwise with the agreement of 37 the Company. page 89 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 6 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 21 1 (b) Eligible Existing Tenure the subject of an 2 approval by the Minister under this 3 subclause will be held by the Company 4 pursuant to this Agreement: 5 (i) if the Minister's approval was not 6 given subject to conditions, on and 7 from the date of the Minister's 8 notice of approval; 9 (ii) unless paragraph (iii) applies, if the 10 Minister's approval was given 11 subject to conditions, on the date 12 on which all such conditions have 13 been satisfied; and 14 (iii) if the Minister's approval was 15 given subject to a condition 16 requiring that the Company submit 17 detailed proposals in accordance 18 with this Agreement, on the later 19 of the date on which the Minister 20 approves proposals submitted in 21 discharge of that specified 22 condition and the date upon which 23 all other specified conditions have 24 been satisfied, but the Company is 25 authorised to implement any 26 approved proposal to the extent 27 such implementation is consistent 28 with the then terms and conditions 29 of the Eligible Existing Tenure 30 pending the satisfaction of any 31 conditions relating to the variation 32 of the terms or conditions of the 33 Eligible Existing Tenure. Where 34 this paragraph (iii) applies, prior to 35 any approval of proposals and 36 satisfaction of other conditions, the 37 relevant tenure will be treated for 38 (but only for) the purposes of page 90 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 6 s. 21 1 clause 14A(2)(b)(iv) as tenure held 2 pursuant to this Agreement. 3 Application for Special Advance Tenure to be granted 4 pursuant to this Agreement 5 (2b) The Minister may at the request of the Company from 6 time to time made during the continuance of this 7 Agreement approve Special Advance Tenure being 8 granted to the Company pursuant to this Agreement 9 if: 10 (a) the Company proposes to submit detailed 11 proposals under this Agreement (other than 12 under clause 14C) to construct works 13 installations or facilities on the Relevant 14 Land and the Company's request is so far as 15 is practicable made, unless the Minister 16 approves otherwise, no less than 6 months 17 before the submission of those detailed 18 proposals; and 19 (b) the Minister is satisfied that it is necessary 20 and appropriate that Special Advance 21 Tenure, rather than tenure granted under or 22 pursuant to the other provisions of this 23 Agreement, be used for the purposes of the 24 proposed works installations or facilities on 25 the Relevant Land, 26 and if the Minister does so approve: 27 (c) notwithstanding the Mining Act or the 28 LAA, the appropriate authority or 29 instrumentality of the State shall obtain the 30 consent of the Minister to the form and 31 substance of the Special Advance Tenure 32 prior to its grant (which for the avoidance 33 of doubt neither the State nor the Minister 34 is obliged to cause) to the Company; and 35 (d) if the Company does not submit detailed 36 proposals relating to construction of the page 91 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 6 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 21 1 relevant works installations or facilities on 2 the Relevant Land within 24 months after 3 the date of the Minister's approval or such 4 later time subsequently allowed by the 5 Minister, or if submitted the Minister does 6 not approve such detailed proposals, the 7 Special Advance Tenure (if then granted) 8 shall be surrendered at the request of the 9 Minister. 10 (2c) The decisions of the Minister under subclauses (2a) 11 and (2b) shall not be referable to arbitration and any 12 approval of the Minister under this clause shall not in 13 any way limit, prejudice or otherwise affect the 14 exercise by the Minister of the Minister's powers, or 15 the performance of the Minister's obligations, under 16 this Agreement or otherwise under the laws from time 17 to time of the said State."; 18 (d) in the renumbered subclause (2d), deleting "subclause (1)" 19 and substituting "subclauses (1), (2a) and (2b)"; 20 (9) in clause 23(2) by deleting all words in the subclause after " railways 21 which now exist"; and 22 (10) by inserting after clause 23 the following new clause: 23 "23A. Crossings over Rail Spur 24 For the purposes of livestock and infrastructure such as 25 roads, railways, conveyors, pipelines, transmission lines and 26 other utilities proposed to cross the land the subject of the 27 rail spur referred to in clause 23 the Company shall: 28 (a) if applicable, give its consent to, or otherwise 29 facilitate the grant by the State or any agency, 30 instrumentality or other authority of the State of any 31 lease, licence or other title over land the subject of the 32 rail spur so long as such grant does not in the 33 Minister's opinion unduly prejudice or interfere with 34 the activities of the Company under this Agreement; 35 and page 92 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 6 s. 21 1 (b) on reasonable terms and conditions allow access for 2 the construction and operation of such crossings and 3 associated infrastructure, 4 provided that in forming his opinion under this clause, the 5 Minister must consult with the Company.". page 93 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 6 Iron Ore (Marillana Creek) Agreement Act 1991 amended s. 21 1 EXECUTED as a deed. 2 3 SIGNED by the HONOURABLE ) 4 COLIN JAMES BARNETT ) 5 in the presence of: ) 6 [Signature] [Signature] Signature of witness Peter Goodall Name of witness 7 8 EXECUTED by BHP BILLITON ) 9 MINERALS PTY. LTD. ACN 008 694 782 ) 10 in accordance with section 127(1) of ) 11 the Corporations Act ) 12 [Signature] [Signature] Signature of Director Signature of Secretary Uvashni Raman Robin Lees Full Name Full Name 13 page 94 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Iron Ore (Marillana Creek) Agreement Act 1991 amended Part 6 s. 21 1 EXECUTED by MITSUI IRON ORE ) 2 CORPORATION PTY. LTD ) 3 ACN 050 157 456 in accordance with section ) 4 127(1) of the Corporations Act ) 5 [Signature] [Signature] Signature of Director Signature of Secretary Ryuzo Nakamura Jiahe He Full Name Full Name 6 7 SIGNED by Shuzaburo Tsuchihashi ) 8 as attorney for ITOCHU MINERALS & ) 9 ENERGY OF AUSTRALIA PTY. LTD. ) 10 ACN 009 256 259 under power ) 11 of attorney dated 27 October 2011 ) 12 in the presence of: ) 13 [Signature] [Signature] Signature of witness Signature of Attorney Yasushi Fukumura Shuzaburo Tsuchihashi Name Name 14 page 95 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Part 7 Port Hedland iron ore processing projects Division 1 Termination agreement s. 22 1 Part 7 -- Port Hedland iron ore processing projects 2 Division 1 -- Termination agreement 3 22. Ratification and operation of termination agreement 4 (1) In this section -- 5 termination agreement means the agreement a copy of which is 6 set out in Schedule 1. 7 (2) The termination agreement is ratified. 8 (3) Without limiting or otherwise affecting the application of the 9 Government Agreements Act 1979, the termination agreement is 10 to operate and take effect despite any other Act or law. 11 Division 2 -- Repeal of Acts relating to the Port Hedland iron 12 ore processing projects 13 23. Acts repealed 14 These Acts are repealed: 15 (a) the Iron Ore Beneficiation (BHP) Agreement Act 1996; 16 (b) the Iron Ore - Direct Reduced Iron (BHP) Agreement 17 Act 1996; 18 (c) the Iron Ore Processing (BHP Minerals) Agreement 19 Act 1994. page 96 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Termination agreement Schedule 1 1 Schedule 1 -- Termination agreement 2 [s. 22] 3 2011 4 THE STATE OF WESTERN AUSTRALIA 5 and 6 BHP BILLITON DIRECT REDUCED IRON PTY. LTD. 7 ACN 058 025 960 8 and 9 BHP BILLITON MINERALS PTY. LTD. 10 ACN 008 694 782 11 MITSUI IRON ORE CORPORATION PTY. LTD. 12 ACN 050 157 456 13 ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY. LTD. 14 ACN 009 256 259 15 ________________________________________________________________ 16 IRON ORE BENEFICIATION (BHP) AGREEMENT 1996 17 TERMINATION AGREEMENT 18 ________________________________________________________________ 19 20 21 [Solicitor's details] page 97 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Schedule 1 Termination agreement 1 THIS AGREEMENT is made this 7th day of November 2011 2 3 BETWEEN 4 5 THE HONOURABLE COLIN JAMES BARNETT, MEc., M.L.A., Premier 6 of the State of Western Australia, acting for and on behalf of the said State and 7 its instrumentalities from time to time (hereinafter called "the State") of the 8 first part, 9 10 BHP BILLITON DIRECT REDUCED IRON PTY. LTD. ACN 058 025 960 11 of Level 17, St Georges Square, 225 St Georges Terrace, Perth, Western 12 Australia (hereinafter called "the Company" in which term shall be included its 13 successors and permitted assigns) of the second part, 14 15 BHP BILLITON MINERALS PTY. LTD. ACN 008 694 782 of Level 17, St 16 Georges Square, 225 St Georges Terrace, Perth, Western Australia, MITSUI 17 IRON ORE CORPORATION PTY. LTD. ACN 050 157 456 of Level 16, 18 Exchange Plaza, 2 The Esplanade, Perth, Western Australia and ITOCHU 19 MINERALS & ENERGY OF AUSTRALIA PTY. LTD. ACN 009 256 259 20 of Level 22, Forrest Centre, 221 St Georges Terrace, Perth, Western Australia 21 (hereinafter called "Joint Venturers" in which term shall be included their 22 successors and permitted assigns) of the third part. 23 24 WHEREAS: 25 26 A. The State and the Company are the parties to the agreement dated 27 16 October 1995, which agreement was ratified by the Iron Ore 28 Beneficiation (BHP) Agreement Act 1996 (WA), as varied by an 29 agreement dated 11 April 2000 which was ratified by the Acts 30 Amendment (Iron Ore Agreements) Act 2000. The first mentioned 31 agreement as so varied is referred to in this Agreement as "the 32 Beneficiation Agreement". page 98 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Termination agreement Schedule 1 1 B. The State and the Joint Venturers are now the parties to the agreement 2 dated 15 October 1964 approved by and scheduled to the Iron Ore 3 (Mount Goldsworthy) Agreement Act 1964 and which as subsequently 4 added to, varied or amended is referred to in this Agreement as the 5 "Mount Goldsworthy Agreement". 6 C. The State and the Company wish to terminate the Beneficiation 7 Agreement in the manner and on the terms set out in this Agreement, 8 including the transfer to the Joint Venturers of rights in respect of 9 certain land relating to the Beneficiation Agreement on the terms set 10 out in this Agreement. 11 12 NOW THIS AGREEMENT WITNESSES: 13 1. Definitions 14 In this Agreement subject to the context: 15 "Beneficiation Agreement Minister" means the Minister in the 16 Government of the State for the time being responsible for the 17 administration of the Beneficiation Agreement; 18 "Boodarie GPLs" means the general purpose leases granted under the 19 Mining Act and held by the Company as at the date of this Agreement 20 as described in schedule A and "Boodarie GPL" means as the context 21 requires any or a particular one of them and includes any tenement or 22 title which is a renewal, replacement or successor of or which is 23 granted in lieu of or in substitution for, any of them; 24 "EP Act" means the Environmental Protection Act 1986 (WA); 25 "Goldsworthy-Nimingarra Agreement" means the agreement 26 ratified by and scheduled to the Iron Ore (Goldsworthy-Nimingarra) 27 Agreement Act 1972 (WA), as from time to time added to, varied or 28 amended; 29 "Land Administration Act" means the Land Administration 30 Act 1997 (WA); 31 "laws relating to native title" means laws applicable from time to 32 time in Western Australia in respect of native title and includes the 33 Native Title Act 1993 (Commonwealth); page 99 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Schedule 1 Termination agreement 1 "Mining Act" means the Mining Act 1978 (WA); 2 "Minister" means the Minister in the Government of the State for the 3 time being responsible for the administration of the Act to ratify this 4 Agreement and pending the passing of that Act means the Minister for 5 the time being designated in a notice from the State to the Company 6 and includes the successors in office of the Minister; 7 "Minister for Mines" means the Minister in the Government of the 8 State for the time being responsible for the administration of the 9 Mining Act; 10 "Minister for Environment" means the Minister in the Government 11 of the State for the time being responsible for the administration of the 12 EP Act; 13 "Ministerial Statement" means the Statement That a Proposal May 14 be Implemented (Pursuant to the Provisions of the Environmental 15 Protection Act 1986) number 393 entitled "Hot Briquetted Iron 16 Project, Port Hedland (899) BHP Direct Reduced Iron Pty Ltd" and 17 issued by the then Minister for Environment on 4 September 1995; 18 "Mount Goldsworthy Agreement Minister" means the Minister in 19 the Government of the State for the time being responsible for the 20 administration of the Mount Goldsworthy Agreement; 21 "Operative Date" has the meaning given in clause 3(4); 22 "PEP Agreement" means the agreement ratified by the Pilbara 23 Energy Project Agreement Act 1994 (WA), as from time to time 24 added to, varied or amended; 25 "PEP Joint Venturers" means the Joint Venturers as defined in the 26 PEP Agreement; 27 "Port Authorities Act" means the Port Authorities Act 1999 (WA); 28 "Port Authority" means the Port Hedland Port Authority established 29 by the Port Authorities Act; 30 "Surrender GPLs" means the general purpose leases granted under 31 the Mining Act and held by the Company as at the date of this 32 Agreement as described in Schedule B; and page 100 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Termination agreement Schedule 1 1 "this Agreement", "hereof" and "hereunder" refer to this 2 Agreement, whether in its original form or as from time to time added 3 to, varied or amended; 4 "Utah Jild lease" means registered lease K693814L of the land the 5 subject of Deposited Plan 59462 being portion of Lot 370 on 6 Deposited Plan 35619, part of the land in Crown Land Title Volume 7 LR3118 Folio 753 granted to the Company by the Port Authority 8 under the Port Authorities Act and pursuant to the Beneficiation 9 Agreement; and 10 "Water Agreement" means the Water Supply Agreement dated 11 8 February 2000 between the Water Corporation and BHP Iron Ore 12 Pty Ltd. 13 2. Interpretation 14 (1) In this Agreement: 15 (a) clause headings do not affect interpretation or construction; 16 (b) words in the singular shall include the plural and words in the 17 plural shall include the singular according to the requirements 18 of the context; 19 (c) one gender includes the other genders; 20 (d) a covenant or agreement by more than one person binds, and 21 is enforceable against, those persons jointly and each of them 22 severally; 23 (e) reference to an Act includes the amendments to that Act for 24 the time being in force and also any Act passed in 25 substitution therefor or in lieu thereof and the regulations for 26 the time being in force thereunder; 27 (f) reference in this Agreement to any other document includes 28 that document as from time to time added to, varied or 29 amended and notwithstanding any change in the identity of 30 the parties; 31 (g) reference to a clause or schedule is a reference to a clause or 32 schedule to this Agreement, and a reference to a subclause or 33 paragraph is a reference to the subclause of the clause or page 101 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Schedule 1 Termination agreement 1 paragraph of the clause or subclause as the case may be in, or 2 in relation to, which the reference is made; and 3 (h) "including" means "including, but not limited to". 4 (2) Nothing in this Agreement shall be construed to exempt the State or 5 the Company from compliance with or to require the State or the 6 Company to do anything contrary to any law relating to native title or 7 any lawful obligation or requirement imposed on the State or the 8 Company as the case may be pursuant to any law relating to native 9 title. The provisions of this Agreement shall not operate so as to 10 require the State or the Port Authority to grant or vary, or cause to be 11 granted or varied, any lease licence or other right or title until all 12 processes necessary under any laws relating to native title to enable 13 that grant or variation to proceed, have been completed. 14 (3) Nothing in this Agreement shall be construed to exempt the Company 15 from compliance with any requirement in connection with the 16 protection of the environment arising out of or incidental to its 17 activities under this Agreement that may be made by or under the EP 18 Act. 19 3. Ratification and operation 20 (1) The State shall introduce and sponsor a Bill in the State Parliament of 21 Western Australia prior to 31 December 2011 or such later date as 22 may be agreed between the parties hereto to ratify this Agreement. 23 The State shall endeavour to secure the timely passage of such Bill as 24 an Act. 25 (2) The provisions of this Agreement other than this clause and clauses 1 26 and 2 will not come into operation until the day after the day on 27 which the Bill referred to in subclause (1) has been passed by the 28 State Parliament of Western Australia and commences to operate as 29 an Act. 30 (3) If by 30 June 2012 the said Bill has not commenced to operate as an 31 Act then, unless the parties hereto otherwise agree, this Agreement 32 will then cease and determine and no party hereto will have any claim 33 against any other party hereto with respect to any matter or thing 34 arising out of, done, performed, or omitted to be done or performed 35 under this Agreement. page 102 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Termination agreement Schedule 1 1 (4) On the day after the day on which the said Bill commences to operate 2 as an Act ("Operative Date") all the provisions of this Agreement 3 will operate and take effect despite any enactment or other law. 4 4. Termination of Agreement 5 (1) Subject to subclause (2), the Beneficiation Agreement is hereby 6 terminated with effect on and from the Operative Date and, except as 7 otherwise provided in this Agreement, neither the State nor the 8 Company shall have any claim against the other with respect to any 9 matter or thing in or arising out of the Beneficiation Agreement. 10 (2) Notwithstanding subclause (1), the Company shall remain liable for 11 any antecedent breach or default under the Beneficiation Agreement 12 and in respect of any indemnity given under the Beneficiation 13 Agreement. 14 (3) (a) On and from the Operative Date: 15 (i) for the avoidance of doubt, the holder of the Boodarie 16 GPLs and the Surrender GPLs shall cease to have the 17 benefit of any rights and privileges conferred by the 18 Beneficiation Agreement; and 19 (ii) each of the Boodarie GPLs is varied by deleting the 20 following condition which it contains: 21 "The construction and operation of the 22 project and measures to protect the 23 environment being carried out generally in 24 accordance with detailed proposals 25 submitted and approved under Clauses 6 26 and 7 of the Iron Ore Processing (BHP 27 Minerals) Agreement Act 1994". 28 (b) The Joint Venturers and the Company acknowledge that the 29 Minister for Environment has given the requisite approval for 30 the purposes of condition 3-1 of the Ministerial Statement 31 and has made the requisite nomination under section 38(7) of 32 the EP Act in respect of the passing of responsibility for the 33 proposal the subject of the Ministerial Statement to the Joint 34 Venturers. page 103 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Schedule 1 Termination agreement 1 (c) As soon as practicable after the Operative Date, the Company 2 shall make application under the Mining Act to transfer the 3 Boodarie GPLs to the Joint Venturers and the State shall, 4 notwithstanding section 276 of the Duties Act 2008 (WA) and 5 without otherwise affecting the application of that Act, cause 6 the Boodarie GPLs to be transferred to the Joint Venturers 7 and: 8 (i) upon and from the date such transfers are registered 9 under the Mining Act the Boodarie GPLs shall be 10 held by the Joint Venturers pursuant to the Mount 11 Goldsworthy Agreement for the purposes of the 12 Mount Goldsworthy Agreement; and 13 (ii) as soon as practicable after the date such transfers are 14 registered under the Mining Act: 15 (A) the Company shall unconditionally 16 surrender the Surrender GPLs; and 17 (B) in respect of each Boodarie GPL listed in 18 Schedule C, the Joint Venturers shall 19 unconditionally surrender that portion of 20 the Boodarie GPL described in Schedule C. 21 Section 114C of the Mining Act applies in respect of any 22 land formerly the subject of a tenement surrendered pursuant 23 to subparagraph (A) or (B) as if the reference in that section 24 to "former holder" includes the Joint Venturers. 25 (d) Notwithstanding the Mining Act and without limiting the 26 operation of clause 21(1) of the Mount Goldsworthy 27 Agreement, the Minister for Mines, acting with the 28 concurrence of the Mount Goldsworthy Agreement Minister, 29 may on and from the Operative Date from time to time make, 30 vary or cancel such conditions in respect of the Boodarie 31 GPLs as the Minister for Mines considers reasonable. 32 (e) (i) The Joint Venturers and the Company acknowledge 33 that with the Company's consent plant, facilities and 34 other works have been constructed upon the land the 35 subject of the Boodarie GPLs by other persons, 36 including the PEP Joint Venturers pursuant to page 104 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Termination agreement Schedule 1 1 proposals approved under the PEP Agreement, and 2 that such plant, facilities and other works continue to 3 be operated by and for the benefit of those other 4 persons or their successors or assigns. 5 (ii) Upon the request of the Mount Goldsworthy 6 Agreement Minister and subject to the prior transfer 7 of the Boodarie GPLs to the Joint Venturers as 8 referred to in subclause (3)(c), the Company and the 9 Joint Venturers shall: 10 (A) facilitate the grant under the Land 11 Administration Act of any lease that is 12 reasonably necessary for the plant, facilities 13 or other works identified in Plan C in 14 Schedule D by: 15 (I) surrendering those portions of the 16 Boodarie GPLs: 17 (i) described in Schedule D; 18 and 19 (ii) such further areas as are 20 reasonably required for the 21 operation of the plant, 22 facilities or other works 23 identified in Plan C for 24 which an easement or 25 licence is not reasonably 26 sufficient; and 27 (II) if reasonably required, on 28 reasonable terms and conditions 29 allowing the relevant third party 30 access to the land the subject of 31 any such lease and (if applicable) 32 consenting to the grant to the 33 relevant third party of an easement 34 or licence under the Land 35 Administration Act; and page 105 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Schedule 1 Termination agreement 1 (B) facilitate (including if necessary by the 2 Joint Venturers giving their consent where 3 it is requested) the grant under the Land 4 Administration Act of any licences or 5 easements that are reasonably necessary for 6 other plant, facilities and other works 7 referred to in subparagraph (i). 8 (iii) The Company and the Joint Venturers acknowledge 9 that the State proposes to develop an industrial estate 10 proximate to the land the subject of the Boodarie 11 GPLs and an infrastructure corridor connecting the 12 industrial estate to the Port of Port Hedland along or 13 in the vicinity of the indicative corridor alignment set 14 out in Plan D in Schedule E and the Company and 15 Joint Venturers agree: 16 (A) to use their best and continuing endeavours 17 to facilitate as soon as practicable the 18 identification of and their agreement to the 19 optimal infrastructure corridor area along or 20 in the vicinity of the indicative corridor 21 alignment having regard to the planned 22 operations of the Joint Venturers in relation 23 to the land the subject of the Boodarie 24 GPLs and the planned requirements of the 25 industrial estate and associated corridor 26 (such agreed area being "the Boodarie 27 Industrial Estate Corridor Area"); and 28 (B) that upon the request of the Mount 29 Goldsworthy Agreement Minister and 30 subject to the prior transfer of the Boodarie 31 GPLs to the Joint Venturers as referred to 32 in subclause 3(c), the Company and Joint 33 Venturers shall facilitate the establishment 34 and operation of the infrastructure corridor 35 within the Boodarie Industrial Estate 36 Corridor Area including by: 37 (I) the Joint Venturers surrendering 38 any Boodarie GPLs to the extent page 106 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Termination agreement Schedule 1 1 that they relate to land within the 2 Boodarie Industrial Estate Corridor 3 Area; 4 (II) giving their consent (if applicable) 5 to the grant of tenure or other 6 rights for the construction and 7 operation of infrastructure and 8 utilities within the Boodarie 9 Industrial Estate Corridor Area; 10 and 11 (III) on reasonable terms and conditions 12 facilitating and allowing such 13 crossings for the infrastructure 14 corridor and any future 15 infrastructure and utilities within 16 the Boodarie Industrial Estate 17 Corridor Area that may be required 18 including in relation to the railway 19 and associated facilities currently 20 held pursuant to the 21 Goldsworthy-Nimingarra 22 Agreement, 23 and the State agrees that immediately after 24 the Joint Venturers surrender the Boodarie 25 GPLs to the extent referred to in 26 subparagraph (I) it shall grant or cause the 27 relevant agency, instrumentality or other 28 authority of the State to grant appropriate 29 and adequate tenure and access rights to the 30 Joint Venturers in respect of any works, 31 installations or facilities of the Joint 32 Venturers located within the Boodarie 33 Industrial Estate Corridor Area and that 34 continue to be required for the purposes of 35 the Mount Goldsworthy Agreement and 36 that such tenure shall be held by the Joint 37 Venturers pursuant to the Mount 38 Goldsworthy Agreement for the purposes 39 of the Mount Goldsworthy Agreement. page 107 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Schedule 1 Termination agreement 1 (iv) The Joint Venturers further acknowledge that the 2 Boodarie GPLs relate to land that is located 3 proximate to the Port of Port Hedland and of strategic 4 importance and that the State and third parties may in 5 the future wish to construct and operate infrastructure 6 such as roads, railways, conveyors, pipelines, 7 transmission lines and other utilities on such land and 8 to have access to such land for such purposes and in 9 light of this acknowledgment the Joint Venturers 10 shall: 11 (A) if applicable, give their consent to, or 12 otherwise facilitate the grant by the State or 13 any agency, instrumentality or other 14 authority of the State, of any lease, licence 15 or other title over land the subject of the 16 Boodarie GPLs so long as such grant does 17 not unduly prejudice or interfere with the 18 operations of the Joint Venturers under the 19 Mount Goldsworthy Agreement; and 20 (B) on reasonable terms and conditions allow 21 access for the construction and operation of 22 such infrastructure. 23 (v) The State acknowledges that the Joint Venturers plan 24 to develop under the Mount Goldsworthy Agreement 25 a conveyor and associated infrastructure corridor 26 connecting planned stockpile facilities to be located 27 upon the Boodarie GPLs to planned port facilities 28 within the Port of Port Hedland upon the land 29 described in Plan E in Schedule F and the State 30 agrees, subject to and in accordance with any 31 proposals approved or determined in that regard 32 under the Mount Goldsworthy Agreement, to cause 33 the Port Authority to grant from time to time to the 34 Joint Venturers easements under the Port Authorities 35 Act over so much of the described land as the Joint 36 Venturers reasonably require: 37 (i) at commercial rental; and page 108 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Termination agreement Schedule 1 1 (ii) upon such other terms and conditions as 2 approved by the Minister responsible for 3 the Port Authorities Act (acting with the 4 concurrence of the Mount Goldsworthy 5 Agreement Minister) including as to the 6 facilitation and allowance on reasonable 7 terms and conditions of future crossings of 8 the corridor and the future location of 9 infrastructure and utilities within the 10 corridor so long as such crossings, 11 infrastructure or utilities do not unduly 12 prejudice or interfere with the operations of 13 the Joint Venturers under the Mount 14 Goldsworthy Agreement. 15 The State's obligation under this paragraph (v) shall 16 cease upon the cessation of the State's obligation 17 under clause 8(5)(g) of the Mount Goldsworthy 18 Agreement. 19 (vi) The Joint Venturers agree to surrender general 20 purpose leases 45/65 and 45/69 (each being a 21 Boodarie GPL) immediately prior to the Port 22 Authority granting to them an easement under the 23 Port Authorities Act in respect of the land the subject 24 of general purpose leases 45/65 and 45/69 (or such 25 lesser area as may be agreed between the Joint 26 Venturers and the Port Authority) and the Joint 27 Venturers acknowledge that such easement shall be: 28 (i) at commercial rental; and 29 (ii) upon such other terms and conditions as 30 approved by the Minister responsible for 31 the Port Authorities Act (acting with the 32 concurrence of the Mount Goldsworthy 33 Agreement Minister) including as to the 34 facilitation and allowance on reasonable 35 terms and conditions of future crossings of 36 the land the subject of that easement and 37 the future location of infrastructure and 38 utilities upon that land so long as such page 109 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Schedule 1 Termination agreement 1 crossings, infrastructure or utilities do not 2 unduly prejudice or interfere with the 3 operations of the Joint Venturers under the 4 Mount Goldsworthy Agreement, 5 and from the date such easement is registered under 6 the Transfer of Land Act 1893 (WA) the easement 7 shall be held by the Joint Venturers pursuant to the 8 Mount Goldsworthy Agreement for the purposes of: 9 (iii) the Mount Goldsworthy Agreement; and 10 (iv) performing their obligations (to the extent 11 not then performed) under subclause (5) 12 and the EP Act and the Ministerial 13 Statement generally to the extent such 14 obligations are referable to that land. 15 (f) The State shall cause an endorsement to be made in the 16 register maintained under section 103F of the Mining Act that 17 the provisions of this subclause apply to the Boodarie GPLs. 18 (4) (a) On and from the Operative Date and subject to paragraph (b), 19 the Utah Jild lease shall continue in force subject to its terms 20 and conditions and for the avoidance of doubt the holder of 21 the Utah Jild lease shall cease to have the benefit of any rights 22 and privileges conferred by the Beneficiation Agreement. 23 (b) For the purposes of clause 3.1(b) of the Utah Jild lease the 24 Beneficiation Agreement Minister has approved and the Port 25 Authority has consented to the Company allowing the Joint 26 Venturers to use the land the subject of that lease for the 27 purposes of: 28 (i) performing their obligations under subclause (5) and 29 the EP Act and the Ministerial Statement generally to 30 the extent such obligations are referable to that land; 31 (ii) constructing a section of railway in accordance with 32 proposals dated 27 May 2011 and entitled "Project 33 Proposals for Goldsworthy Rail Infrastructure 34 Expansion" submitted by the Joint Venturers under 35 the Mount Goldsworthy Agreement; and page 110 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Termination agreement Schedule 1 1 (iii) conducting studies relevant to the formulation and 2 submission of detailed proposals under the Mount 3 Goldsworthy Agreement in respect of that land. 4 (c) Within 3 months after the Operative Date, the Joint Venturers 5 shall make application to the State for the grant of a lease in 6 respect of the land the subject of the Utah Jild lease (or such 7 lesser area of that land as may be agreed between the Joint 8 Venturers and the Port Authority) and, subject to the prior 9 surrender of the Utah Jild lease by the Company, the State 10 shall cause the Port Authority to grant to the Joint Venturers a 11 lease under the Port Authorities Act of that land: 12 (i) at commercial rental; and 13 (ii) upon such other terms and conditions (including as to 14 the assumption by the Joint Venturers of liabilities of 15 the Company under or in relation to the Utah Jild 16 lease) as approved by the Minister responsible for the 17 Port Authorities Act (acting with the concurrence of 18 the Mount Goldsworthy Agreement Minister), 19 and from the date such lease is registered under the Transfer 20 of Land Act 1893 (WA) the lease shall be held by the Joint 21 Venturers pursuant to the Mount Goldsworthy Agreement 22 for the purposes of: 23 (iii) the Mount Goldsworthy Agreement; and 24 (iv) performing their obligations (to the extent not then 25 performed) under subclause (5) and the EP Act and 26 the Ministerial Statement generally to the extent such 27 obligations are referable to that land. 28 (d) On and from the Operative Date the proposals referred to in 29 subclause (4)(b)(ii) are approved for the purposes of 30 clause 7B(1) of the Mount Goldsworthy Agreement, but only 31 to the extent that they relate to construction of the relevant 32 section of railway. 33 (5) Upon the transfer of the Boodarie GPLs to the Joint Venturers as 34 referred to in subclause (3)(c), the Joint Venturers shall in accordance page 111 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Schedule 1 Termination agreement 1 with the EP Act, the Ministerial Statement and (to the extent required 2 by the Port Authority) the Utah Jild lease forthwith: 3 (a) decommission and remove plant, facilities and other works 4 established by the Company upon the land the subject of the 5 Boodarie GPLs and the Utah Jild lease in accordance with 6 and to the extent contemplated by the decommissioning plan 7 prepared in accordance with clause 8 of the Ministerial 8 Statement; and 9 (b) rehabilitate the land affected by the construction, operation 10 and removal of such works in accordance with and to the 11 extent contemplated by the rehabilitation plan prepared in 12 accordance with clause 8 of the Ministerial Statement. 13 (6) For the avoidance of doubt, termination of the Beneficiation 14 Agreement effected pursuant to clause 4(1) shall not affect the 15 operation of the Water Agreement. 16 (7) (a) On and from the Operative Date the Joint Venturers will 17 indemnify and keep indemnified the State and its employees, 18 agents and contractors in respect of all actions, suits, claims, 19 demands or costs of third parties arising out of or in 20 connection with any work carried out by the Company 21 pursuant to the Beneficiation Agreement or relating to its 22 operations under the Beneficiation Agreement or arising out 23 of or in connection with the construction, maintenance or 24 use by the Company or its employees, agents, contractors or 25 assignees of the Company's works or services the subject of 26 the Beneficiation Agreement or the plant, apparatus or 27 equipment installed in connection with the Beneficiation 28 Agreement. 29 (b) The Joint Venturers will indemnify and keep indemnified the 30 State and its employees, agents and contractors in respect of 31 all actions, suits, claims, demands or costs of third parties 32 arising out of or in connection with any work carried out by 33 the Joint Venturers or their employees, agents, contractors or 34 assignees on or subsequent to the Operative Date in relation 35 to their obligations under clause 4(5) of this Agreement. 36 (c) The indemnities in paragraphs (a) and (b) shall remain in 37 force for a period ending on the date which is 20 years after: page 112 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Termination agreement Schedule 1 1 (i) the date agreed between the State and the Joint 2 Venturers; or 3 (ii) if the parties fail to agree a date under paragraph (i), 4 the date determined by the State, 5 as being the date upon which the Joint Venturers have 6 performed their obligations under subclause (5). 7 (d) The Joint Venturers acknowledge that clause 19 of the Mount 8 Goldsworthy Agreement applies in relation to their use, 9 making available for use or any other activities of the Joint 10 Venturers upon or in relation to the land the subject of any of 11 the Boodarie GPLs, the Utah Jild lease and the lease 12 contemplated by subclause (4)(c) for the purposes of the 13 Mount Goldsworthy Agreement and any tenure and access 14 rights granted to the Joint Venturers as contemplated by 15 subclauses (3)(e)(iii) and (v) for the purposes of the Mount 16 Goldsworthy Agreement. 17 5. Capacity of Joint Venturers 18 The Joint Venturers enter into this Agreement in their capacity as the "Joint 19 Venturers" as defined in, and for the purpose of, the Mount Goldsworthy 20 Agreement save that in respect the obligations contained in 21 clause 4(3)(e)(iii) the Joint Venturers accept such obligations also in their 22 capacity as the "Joint Venturers" as defined in, and for the purpose of, the 23 Goldsworthy-Nimingarra Agreement. page 113 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Schedule 1 Termination agreement 1 SCHEDULE A 2 Boodarie GPLs 3 (to be transferred to the Joint Venturers pursuant to clause 4(3)(c)) 4 General Purpose Leases 45/62, 45/63, 45/64, 45/65, 45/66, 45/67, 45/68, 45/69, 5 45/70, 45/71, 45/72, 45/73, 45/74, 45/75, 45/76, 45/77, 45/78, 45/79, 45/80, 6 45/81, 45/82, 45/83, 45/84, 45/85, 45/86, 45/87, 45/88, 45/89, 45/90, 45/91, 7 45/92, 45/93, 45/94, 45/95, 45/96, 45/97, 45/98, 45/99, 45/100, 45/101, 45/102, 8 45/103, 45/104, 45/105, 45/106, 45/107, 45/108, 45/109, 45/110, 45/111, 9 45/112, 45/113, 45/114, 45/115, 45/116, 45/117, 45/118, 45/119, 45/120, 10 45/121, 45/122, 45/123, 45/124, 45/125, 45/126, 45/127, 45/128, 45/129, 11 45/130, 45/131, 45/132, 45/133, 45/134, 45/135, 45/136, 45/137, 45/138, 12 45/139, 45/140, 45/141, 45/142, 45/143, 45/144, 45/145, 45/146, 45/147, 13 45/148, 45/149, 45/150, 45/151, 45/152, 45/153, 45/154, 45/155, 45/156, 14 45/157, 45/158, 45/159, 45/160, 45/161, 45/162, 45/163, 45/164, 45/165, 15 45/166, 45/167, 45/168, 45/169, 45/170, 45/171, 45/172, 45/173, 45/174, 16 45/175, 45/176, 45/177, 45/178, 45/179, 45/180, 45/181, 45/182, 45/183, 17 45/184, 45/185, 45/186, 45/187, 45/189, 45/190, 45/191, 45/192, 45/193, 18 45/194, 45/197, 45/198, 45/199, 45/200, 45/220, 45/221, 45/222, 45/223, 19 45/224, 45/235, 45/236, 45/237, 45/238, 45/239, 45/240, 45/241, 45/242, 20 45/243, 45/244, 45/245, 45/246, 45/247, 45/248, 45/249, 45/250, 45/251, 21 45/252, 45/253, 45/254, 45/255, 45/256 22 SCHEDULE B 23 Surrender GPLs 24 (to be surrendered by the Company pursuant to clause 4(3)(c)(ii)(A)) 25 26 General Purpose Leases, 45/188, 45/195, 45/196, 45/201, 45/202, 45/203, 27 45/204, 45/205, 45/207, 45/208,45/209, 45/210, 45/211 page 114 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Termination agreement Schedule 1 1 SCHEDULE C 2 Portions of Boodarie GPLs to be surrendered pursuant to 3 clause 4(3)(c)(ii)(B) Boodarie GPL Portion to be surrendered G45/181 That portion of GPL 45/181 shown on Plan "A" G45/187 That portion of GPL 45/187 shown on Plan "A" G45/189 That portion of GPL 45/189 shown on Plan "A" G45/190 That portion of GPL 45/190 shown on Plan "A" G45/194 That portion of GPL 45/194 shown on Plan "A" G45/197 That portion of GPL 45/197 shown on Plan "A" G45/198 That portion of GPL 45/198 shown on Plan "A" G45/199 That portion of GPL 45/199 shown on Plan "A" G45/200 That portion of GPL 45/200 shown on Plan "A" G45/241 That portion of GPL 45/241 shown on Plan "B" page 115 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Schedule 1 Termination agreement 1 Plan "A" 2 page 116 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Termination agreement Schedule 1 1 Plan "B" 2 page 117 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Schedule 1 Termination agreement 1 SCHEDULE D 2 Portions of Boodarie GPLs to be surrendered pursuant to 3 clause 4(3)(e)(ii)(A)(I)(i) Boodarie GPL Portion to be surrendered G45/78 That portion of GPL 45/78 shown on Plan "C" G45/79 That portion of GPL 45/79 shown on Plan "C" G45/89 That portion of GPL 45/89 shown on Plan "C" G45/90 That portion of GPL 45/90 shown on Plan "C" G45/102 That portion of GPL 45/102 shown on Plan "C" 4 page 118 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Termination agreement Schedule 1 1 Plan "C" 2 page 119 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Schedule 1 Termination agreement 1 SCHEDULE E 2 Proposed Boodarie Industrial Estate Corridor - Indicative Corridor 3 Alignment 4 Plan "D" 5 page 120 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Termination agreement Schedule 1 1 SCHEDULE F 2 Joint Venturers' planned conveyor and associated infrastructure corridor 3 Plan "E" 4 page 121 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Schedule 1 Termination agreement 1 EXECUTED as a deed. 2 3 SIGNED by the HONOURABLE ) 4 COLIN JAMES BARNETT ) 5 in the presence of: ) 6 [Signature] [Signature] Signature of witness Peter Goodall Name of witness 7 8 EXECUTED by BHP BILLITON DIRECT ) 9 REDUCED IRON PTY. LTD. ACN 058 025 ) 10 960 in accordance with section 127(1) of ) 11 the Corporations Act ) 12 [Signature] [Signature] Signature of Director Signature of Secretary Uvashni Raman Robin Lees Full Name Full Name 13 page 122 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Termination agreement Schedule 1 1 EXECUTED by BHP BILLITON ) 2 MINERALS PTY. LTD. ACN 008 694 782 ) 3 in accordance with section 127(1) of ) 4 the Corporations Act ) 5 [Signature] [Signature] Signature of Director Signature of Secretary Uvashni Raman Robin Lees Full Name Full Name 6 7 EXECUTED by MITSUI IRON ORE ) 8 CORPORATION PTY. LTD ) 9 ACN 050 157 456 in accordance with section ) 10 127(1) of the Corporations Act ) 11 [Signature] [Signature] Signature of Director Signature of Secretary Ryuzo Nakamura Jiahe He Full Name Full Name 12 page 123 Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Bill 2011 Schedule 1 Termination agreement 1 SIGNED by Shuzaburo Tsuchihashi ) 2 as attorney for ITOCHU MINERALS & ) 3 ENERGY OF AUSTRALIA PTY. LTD. ) 4 ACN 009 256 259 under power ) 5 of attorney dated 27 October 2011 ) 6 in the presence of: ) 7 [Signature] [Signature] Signature of witness Signature of Attorney Yasushi Fukumura Shuzaburo Tsuchihashi Name Name 8
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