IRON ORE (MOUNT BRUCE) AGREEMENT ACT 1972 - FOURTH SCHEDULE

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IRON ORE (MOUNT BRUCE) AGREEMENT ACT 1972 - FOURTH SCHEDULE

— 2010 Variation Agreement

[s. 2]

[Heading inserted: No. 61 of 2010 s. 14.]

2010

THE HONOURABLE COLIN JAMES BARNETT
PREMIER OF THE STATE OF WESTERN AUSTRALIA

AND

MOUNT BRUCE MINING PTY. LTD.
ACN 008 714 010

IRON ORE (MOUNT BRUCE) AGREEMENT 1972

RATIFIED VARIATION AGREEMENT

[Solicitor’s details]

THIS AGREEMENT is made this 17th day of November 2010

BETWEEN

THE HONOURABLE COLIN JAMES BARNETT MLA., Premier of the State of Western Australia acting for and on behalf of the said State and instrumentalities thereof from time to time ( State )

AND

MOUNT BRUCE MINING PTY. LIMITED ACN 008 714 010 of Level 22, Central Park, 152-158 St Georges Terrace, Perth, Western Australia (Company) .

RECITALS

A. The State and the Company are the parties to the agreement dated 10 March 1972 ratified by and scheduled to the Iron Ore (Mount Bruce) Agreement Act 1972 and which as subsequently added to, varied or amended is referred to in this Agreement as the “ Principal Agreement ”.

B . The State and the Company wish to vary the Principal Agreement.

THE PARTIES AGREE AS FOLLOWS:

1. Subject to the context, the words and expressions used in this Agreement have the same meanings respectively as they have in and for the purpose of the Principal Agreement.

2 . The State shall introduce and sponsor a Bill in the Parliament of Western Australia to ratify this Agreement and shall endeavour to secure its passage as an Act prior to 31 December 2010 or such later date as the parties may agree.

3. (a) Clause 4 does not come into operation unless or until an Act passed in accordance with clause 2 ratifies this Agreement.

(b) If by 30 June 2011, or such later date as may be agreed pursuant to clause 2, clause 4 has not come into operation then unless the parties hereto otherwise agree this Agreement shall cease and determine and neither party shall have any claim against the other party with respect to any matter or thing arising out of or done or performed or omitted to be done or performed under this Agreement.

4. The Principal Agreement is hereby varied as follows:

(1) in clause 1:

(a) by deleting the current definitions of “direct shipping ore”, “fine ore”, “fines” and “f.o.b. revenue”;

(b) by inserting in the appropriate alphabetical positions the following new definitions:

“agreed or determined” means agreed between the Company and the Minister or, failing agreement within three months of the Minister giving notice to the Company that he requires the value of a quantity of iron ore to be agreed or determined, as determined by the Minister (following, if requested by the Company, consultation with the Company and its consultants in regard thereto) and in agreeing or determining a fair and reasonable market value of such iron ore assessed on an arm’s length basis the Company and/or the Minister as the case may be shall have regard to:

(i) in the case of iron ore initially sold at cost pursuant to paragraph (B) of the proviso to clause 12(1)(d), the prices for that type of iron ore prevailing at the time the price for such iron ore was agreed between the arm’s length purchaser referred to in paragraph (B)(iii) of that proviso and the seller in relation to the type of sale and the relevant international seaborne iron ore market into which such iron ore was sold and where prices beyond the deemed f.o.b. point are being considered the deductions mentioned in the definition of f.o.b. value; and

(ii) in any other case, the prices for that type of iron ore prevailing at the time the price for such iron ore was agreed between the Company and the purchaser in relation to the type of sale and the market into which such iron ore was sold and where prices beyond the deemed f.o.b. point are being considered the deductions mentioned in the definition of f.o.b. value;

“approved proposal” means a proposal approved or determined under this Agreement;

“beneficiated ore” means iron ore that has been concentrated or upgraded (otherwise than solely by crushing, screening, separating by hydrocycloning or a similar technology which uses primarily size as a criterion, washing, scrubbing, trommelling or drying or by a combination of 2 or more of those processes) by the Company in a plant constructed pursuant to a proposal approved pursuant to an Integration Agreement or in such other plant as is approved by the Minister after consultation with the Minister for Mines and “beneficiation” and “beneficiate” have corresponding meanings;

“deemed f.o.b. point” means on ship at the relevant loading port;

“deemed f.o.b. value” means an agreed or determined value of the iron ore as if the iron ore was sold f.o.b. at the deemed f.o.b. point as at:

(a) in the case of iron ore the property of the Company which is shipped out of the said State, the date of shipment; and

(b) in any other case, the date of sale, transfer of ownership, disposal or use as the case may be;

“EP Act” means the Environmental Protection Act 1986 (WA);

“fine ore” means iron ore (not being beneficiated ore) which is screened and will pass through a 6.3 millimetre mesh screen;

“f.o.b. value” means:

(i) subject to paragraph (ii), in the case of iron ore shipped and sold by the Company, the price which is payable for the iron ore by the purchaser thereof to the Company or an associated company or, where the Minister considers, following advice from the appropriate Government department, that the price payable in respect of the iron ore does not represent a fair and reasonable market value for that type of iron ore assessed on an arm’s length basis, such amount as is agreed or determined as representing such a fair and reasonable market value, less all export duties and export taxes payable to the Commonwealth on the export of the iron ore and all costs and charges properly incurred and payable by the Company from the time the iron ore shall be placed on ship at the relevant loading port to the time the same is delivered and accepted by the purchaser including:

(1) ocean freight;

(2) marine insurance;

(3) port and handling charges at the port of discharge;

(4) all costs properly incurred in delivering the iron ore from port of discharge to the smelter and evidenced by relevant invoices;

(5) all weighing sampling assaying inspection and representation costs;

(6) all shipping agency charges after loading on and departure of ship from the relevant loading port;

(7) all import taxes by the country of the port of discharge; and

(8) such other costs and charges as the Minister may in his discretion consider reasonable in respect of any shipment or sale;

(ii) in the case of iron ore initially sold at cost pursuant to paragraph (B) of the proviso to clause 12(1)(d), the price which is payable for the iron ore by the arm’s length purchaser as referred to in paragraph (B)(iii) of that proviso or, where the Minister considers, following advice from the appropriate Government department, that the price payable in respect of the iron ore does not represent a fair and reasonable market value for that type of iron ore assessed on an arm’s length basis in the relevant international seaborne iron ore market, such amount as is agreed or determined as representing such a fair and reasonable market value, less all duties, taxes, costs and charges referred to in paragraph (i) above;

(iii) in all other cases, the deemed f.o.b. value.

For the purpose of subparagraph (i) of this definition, it is acknowledged that the consideration payable in an arm’s length transaction for iron ore sold solely for testing purposes may be less than the fair and reasonable market value for that iron ore and in this circumstance where the Minister in his discretion is satisfied such consideration represents the entire consideration payable, the Minister shall be taken to be satisfied that such entire consideration represents the fair and reasonable market value;

“Government agreement” has the meaning given in the Government Agreements Act 1979 ;

“Integration Agreement” means:

(a) the agreement approved by and scheduled to the Iron Ore (Hamersley Range) Agreement Act 1963 , as from time to time added to, varied or amended; or

(b) the agreement approved by and scheduled to the Iron Ore (Robe River) Agreement Act 1964 , as from time to time added to, varied or amended; or

(c) the agreement approved by and scheduled to the Iron Ore (Hamersley Range) Agreement Act Amendment Act 1968 , as from time to time added to, varied or amended; or

(d) the agreement ratified by and scheduled to the Iron Ore (Mount Bruce) Agreement Act 1972 , as from time to time added to, varied or amended; or

(e) the agreement ratified by and scheduled to the Iron Ore (Hope Downs) Agreement Act 1992 , as from time to time added to, varied or amended; or

(f) the agreement ratified by and scheduled to the Iron Ore (Yandicoogina) Agreement Act 1996 , as from time to time added to, varied or amended; or

(g) the agreement approved by and scheduled to the Iron Ore (Mount Newman) Agreement Act 1964 , as from time to time added to, varied or amended; or

(h) the agreement approved by and scheduled to the Iron Ore (Mount Goldsworthy) Agreement Act 1964 , as from time to time added to, varied or amended; or

(i) the agreement ratified by and scheduled to the Iron Ore (Goldsworthy-Nimingarra) Agreement Act 1972 , as from time to time added to, varied or amended; or

(j) the agreement authorised by and as scheduled to the Iron Ore (McCamey’s Monster) Agreement Authorisation Act 1972 , as from time to time added to, varied or amended; or

(k) the agreement ratified by and scheduled to the Iron Ore (Marillana Creek) Agreement Act 1991 , as from time to time added to, varied or amended;

“Integration Proponent” means in relation to an Integration Agreement, “the Company” or “the Joint Venturers” as the case may be as defined in, and for the purpose of, that Integration Agreement;

“iron ore” includes, without limitation, beneficiated ore;

“laws relating to native title” means laws applicable from time to time in the said State in respect of native title and includes the Native Title Act 1993 (Commonwealth);

“loading port” means:

(a) the Port of Dampier; or

(b) Port Walcott; or

(d) any other port constructed after the variation date under an Integration Agreement; or

(e) such other port approved by the Minister at the request of the Company from time to time for the shipment of iron ore from the mineral lease;

“lump ore” means iron ore (not being beneficiated ore) which is screened and will not pass through a 6.3 millimetre mesh screen;

“Minister for Mines” means the Minister in the Government of the said State for the time being responsible (under whatsoever title) for the administration of the Mining Act 1978 (WA);

“Related Entity” means a company in which:

(a) as at 21 June 2010; and

(b) after 21 June 2010, with the approval of the Minister,

a direct or (through a subsidiary or subsidiaries within the meaning of the Corporations Act 2001 (Commonwealth)) indirect shareholding of 20% or more is held by:

(d) BHP Billiton Limited ABN 49 004 028 077; or

(e) those companies referred to in paragraphs (c) and (d) in aggregate;

“variation date” means the date on which clause 4 of the variation agreement made on or about 17 November 2010 between the State and the Company comes into operation;

“washing” means a process of separation by water using only size as a criterion;

(c) in the definition of “alternative investments” by deleting “or of corporations which are related to the Company for the purposes of the Companies (Western Australia) Code”;

(d) in the definition of “Company’s wharf” by inserting “and in clauses 12(1)(d) and 14(1) also any additional wharf constructed by the Company pursuant to this Agreement”;

(e) in the definition of “metallised agglomerates” by deleting “or iron ore concentrates”;

(f) in the definition of “mineral lease” by inserting “and any areas added to it pursuant to clause 20B” before the semi colon;

(g) in the definition of “secondary processing” by deleting “concentration or other beneficiation of iron ore other than by crushing or screening” and substituting “beneficiation of iron ore”;

(h) in the sentence beginning “marginal notes” by inserting “and clause headings” after “marginal notes”; and

(i) by inserting after that sentence the following new paragraphs:

“Nothing in this Agreement shall be construed:

(a) to exempt the Company from compliance with any requirement in connection with the protection of the environment arising out of or incidental to its activities under this Agreement that may be made by or under the EP Act; or

(b) to exempt the State or the Company from compliance with or to require the State or the Company to do anything contrary to any laws relating to native title or any lawful obligation or requirement imposed on the State or the Company as the case may be pursuant to any laws relating to native title; or

(2) by inserting after subclause (4) of clause 5 the following new subclauses:

“(4a) A proposal may with the consent of the Minister (except in relation to an Integration Agreement) and that of any parties concerned (being in respect of an Integration Agreement the Integration Proponent for that agreement) provide for the use by the Company of any works installations or facilities constructed or established under a Government agreement.

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

(3) in clause 5(5) by:

(a) inserting “(or where required to be assessed under Part IV of the EP Act within 2 months after the service on him of an authority under section 45(7) of the EP Act)” after “(2) months after receipt of the proposals”;

(b) inserting “, subject to the EP Act,” after “State shall as hereinafter permit”;

“The provisions of paragraphs (a) (except subparagraph (iv)), (b), (c) and the proviso to, and second sentence of, paragraph(d) of subclause (7) shall apply mutatis mutandis to such proposals provided that in his notice to the Company of his decision in respect of the proposals the Minister shall also be at liberty to specify in such notice such alterations to the proposals as are fair and reasonable having regard to the interests of the Company and any other party nominated as aforesaid (including participation in such development and use by another party or other parties nominated by the Minister).”;

(4) by deleting the heading to subclause (8) of clause 5 and renumbering that subclause as subclause (6a);

(5) by deleting subclause (7) of clause 5 and substituting the following new subclause:

“(7) (a) In respect of each proposal pursuant to subclause (3) of this clause the Minister shall:

(i) subject to the limitations set out below, refuse to approve the proposal (whether it requests the grant of new tenure or not) if the Minister is satisfied on reasonable grounds that it is not in the public interest for the proposal to be approved; or

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

(iii) defer consideration of or decision upon the same until such time as the Company submits a further proposal or proposals in respect of some other of the matters mentioned in subclause (3) not covered by the said proposal; or

(iv) require as a condition precedent to the giving of his approval to the said proposal that the Company make such alteration thereto or comply with such conditions in respect thereto as he thinks reasonable, and in such a case the Minister shall disclose his reasons for such conditions,

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

In considering whether to refuse to approve a proposal the Minister is to assess whether or not the implementation of the proposal by itself, or together with any one or more of the other submitted proposals, will:

(A) detrimentally affect economic and orderly development in the said State, including without limitation, infrastructure development in the said State; or

(B) be contrary to or inconsistent with the planning and development policies and objectives of the State; or

(D) detrimentally affect access to and use by others of the lands the subject of any grant or proposed grant to the Company.

The right to refuse to approve a proposal conferred by subparagraph (i) of paragraph (a) may only be exercised in respect of a proposal where the Minister is satisfied on reasonable grounds that a purpose of the proposal is the integrated use of works installations or facilities (as defined in subclause (7) of clause 20C for the purpose of that clause) as contemplated by clause 20C. It may not be so exercised in respect of a proposal if pursuant to clause 11B(5) the Minister, prior to the submission of the proposal, advised the Company in writing that the Minister has no public interest concerns (as defined in that clause) with the single preferred development (as referred to in clause 11B(5)(a)) the subject of the submitted proposals and those proposals are consistent (as to their substantive scope and content) with the information provided to the Minister pursuant to clause 11B(5) in respect of that single preferred development.

(b) The Minister shall within 2 months after receipt of proposals pursuant to subclause (3) give notice to the Company of his decision in respect to the proposals, PROVIDED THAT where a proposal is to be assessed under Part IV of the EP Act the Minister shall only give notice to the Company of his decision in respect to the proposal within 2 months after service on him of an authority under section 45(7) of the EP Act.

(c) If the decision of the Minister is as mentioned in either of subparagraphs (i), (iii) or (iv) of paragraph (a) the Minister shall afford the Company full opportunity to consult with him and should it so desire to submit new or revised proposals either generally or in respect to some particular matter.

(d) If the decision of the Minister is as mentioned in either of subparagraphs (iii) or (iv) of paragraph (a) and the Company considers that the decision is unreasonable the Company within 2 months after receipt of the notice mentioned in subclause (2) may elect to refer to arbitration in the manner hereinafter provided the question of the reasonableness of the decision PROVIDED THAT any requirement of the Minister pursuant to the proviso to paragraph (a) shall not be referable to arbitration hereunder. A decision of the Minister under subparagraph (i) of paragraph (a) of this subclause shall not be referable to arbitration under the Agreement.

(e) An award made on an arbitration pursuant to this subclause (7) shall (except as otherwise provided in subclause (5)) have the force and effect as follows:

(i) if by the award the dispute is decided against the Company then unless the Company within 3 months after delivery of the award gives notice to the Minister of its acceptance of the award this Agreement shall on the expiration of that period of 3 months cease and determine; and

(ii) if by the award the dispute is decided in favour of the Company then decision shall take effect as a notice by the Minister that he is so satisfied with and approves the mater or matters the subject of the arbitration.”;

(6) by inserting after subclause (13) of clause 5 the following new subclauses:

“(14) The Company shall implement the approved proposals in accordance with the terms thereof.

(15) Notwithstanding clause 46, the Minister may during the implementation of approved proposals approve variations to those proposals.”;

(7) in clause 7(1)(b) by:

(a) inserting “or cause to be granted” after “grant”;

(b) inserting after the paragraph beginning “at peppercorn rental” the following new paragraph:

“at commercial rentals, licence or easement fees as applicable – leases, licences or easements within the port (as defined in clause 1 or other port within which the Company is permitted to construct works installations or facilities”

(d) inserting “installations or facilities” after “Company reasonably requires for its works”;

(8) by inserting after subclause (4) of clause 7 the following new subclause;

“(4a) The provisions of subclauses (1) and (2) of this clause shall not operate so as to require the State to grant or vary, or cause to be granted or varied, any lease licence or other right or title until all processes necessary under any laws relating to native title to enable that grant or variation to proceed, have been completed.”;

(9) in clause 11(1) by:

(a) in paragraph (a) inserting “(other than under clause 20E)” after “activities beyond”; and

(b) in the second sentence:

(i) inserting “subclauses (3) to (6) hereof and of” after “provisions”; and

(ii) inserting “11A”, before “19”;

(10) by inserting after subclause (2) of clause 11 the following new subclauses:

“(3) A proposal may with the consent of the Minister (except in relation to an Integration Agreement) and that of any parties concerned (being in respect of an Integration Agreement the Integration Proponent for that agreement) provide for the use by the Company of any works installations or facilities constructed or established under a Government agreement.

(4) Each of the proposals pursuant to subclause (1) may with the approval of the Minister, or shall, if so required by the Minister, be submitted separately and in any order as to any matter or matters in respect of which such proposals are required to be submitted.

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

(6) The Company may withdraw its proposals pursuant to subclause (1) at any time before approval thereof, or where any decision in respect thereof is referred to arbitration as referred to in clause 11A, within 3 months after the award by notice to the Minister that it shall not be proceeding with the same.”;

(11) by inserting after clause 11 the following new subclauses:

“ Consideration of Company’s proposals under clause 11

11A. (1) In respect of each proposal pursuant to subclause (1) of clause 11 the Minister shall:

(a) subject to the limitations set out below, refuse to approve the proposal (whether it requests the grant of new tenure or not) if the Minister is satisfied on reasonable grounds that it is not in the public interest for the proposal to be approved; or

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

(c) defer consideration of or decision upon the same until such time as the Company submits a further proposal or proposals in respect of some other of the matters mentioned in clause 11(1) not covered by the said proposal; or

(d) require as a condition precedent to the giving of his approval to the said proposal that the Company make such alteration thereto or comply with such conditions in respect thereto as he thinks reasonable, and in such a case the Minister shall disclose his reasons for such conditions,

(i) detrimentally affect economic and orderly development in the said State, including without limitation, infrastructure development in the said State; or

(ii) be contrary to or inconsistent with the planning and development policies and objectives of the State; or

(iii) detrimentally affect the rights and interests of third parties; or

(iv) detrimentally affect access to and use by others of the lands the subject of any grant or proposed grant to the Company.

The right to refuse to approve a proposal conferred by paragraph (a) may only be exercised in respect of a proposal where the Minister is satisfied on reasonable grounds that a purpose of the proposal is the integrated use of works installations or facilities (as defined in subclause (7) of clause 20C for the purpose of that clause) as contemplated by clause 20C. It may not be so exercised in respect of a proposal if pursuant to clause 11B(5) the Minister, prior to the submission of the proposal, advised the Company in writing that the Minister has no public interest concerns (as defined in that clause) with the single preferred development (as referred to in clause 11B(5)(a)) the subject of the submitted proposals and those proposals are consistent (as to their substantive scope and content) with the information provided to the Minister pursuant to clause 11B(5) in respect of that single preferred development.

(2) The Minister shall within 2 months after receipt of proposals pursuant to clause 11(1) give notice to the Company of his decision in respect to the proposals, PROVIDED THAT where a proposal is to be assessed under Part IV of the EP Act the Minister shall only give notice to the Company of his decision in respect to the proposal within 2 months after service on him of an authority under section 45(7) of the EP Act.

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

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

(5) If by the award made on the arbitration pursuant to subclause (4) the dispute is decided in favour of the Company the decision shall take effect as a notice by the Minister that he is so satisfied with and approves the matter or matters the subject of the arbitration.

(6) The Company shall implement the approved proposals in accordance with the terms thereof.

(7) Notwithstanding clause 46, the Minister may during the implementation of approved proposals approve variations to those proposals.

Notification of possible proposals

11B.(1) If the Company, upon completion of a pre-feasibility study in respect of any matter that would require the submission and approval of proposals pursuant to this Agreement (being proposals which will have as their purpose, or one of their purposes, the integrated use of works installations or facilities as contemplated by clause 20C) for the matter to be undertaken, intends to further consider the matter with a view to possibly submitting such proposals it shall promptly notify the Minister in writing giving reasonable particulars of the relevant matter.

(2) Within one (1) month after receiving the notification the Minister may, if the Minister so wishes, inform the Company of the Minister’s views of the matter at that stage.

(3) If the Company is informed of the Minister’s views, it shall take them into account in deciding whether or not to proceed with its consideration of the matter and the submission of proposals.

(4) Neither the Minister’s response nor the Minister choosing not to respond shall in any way limit, prejudice or otherwise affect the exercise by the Minister of the Minister’s powers, or the performance of the Minister’s obligations, under this Agreement or otherwise under the laws from time to time of the said State.

(4) (a) This subclause applies where the Company has settled upon a single preferred development a purpose of which is the integrated use of works installations or facilities (as defined in subclause (7) of clause 20C for the purpose of that clause) as contemplated by clause 20C.

(b) For the purpose of this subclause “public interest concerns” means any concern that implementation of the single preferred development or any part of it will:

(i) detrimentally affect economic and orderly development in the said State, including without limitation, infrastructure development in the said State; or

(ii) be contrary to or inconsistent with the planning and development policies and objectives of the State; or

(iii) detrimentally affect the rights and interests of third parties; or

(iv) detrimentally affect access to and use by others of lands the subject of any grant or proposed grant to the Company.

(c) At any time prior to submission of proposals the Company may give to the Minister notice of its single preferred development and request the Minister to confirm that the Minister has no public interest concerns with that single preferred development.

(d) The Company shall furnish to the Minister with its notice reasonable particulars of the single preferred development including, without limitation:

(i) as to the matters that would be required to be addressed in submitted proposals; and

(ii) its progress in undertaking any feasibility or other studies or matters to be completed before submission of proposals; and

(iii) its timetable for obtaining required statutory and other approvals in relation to the submission and approval of proposals; and

(iv) its tenure requirements.

(e) If so required by the Minister, the Company will provide to the Minister such further information regarding the single preferred development as the Minister may require from time to time for the purpose of considering the Company’s request and also consult with the Minister or representatives or officers of the State in regard to the single preferred development.

(f) Within 2 months after receiving the notice (or if the Minister requests further information, within 2 months after the provision of that information) the Minister must advise the Company:

(i) that the Minister has no public interest concerns with the single preferred development; or

(ii) that he is not then in a position to advise that he has no public interest concerns with the single preferred development and the Minister’s reasons in that regard.

(g) If the Minister gives the advice mentioned in paragraph (f)(ii) the Company may, should it so desire, give a further request to the Minister in respect of a revised or alternate single preferred development and the provisions of this subclause shall apply mutatis mutandis thereto.”;

(12) in clause 12(1) by deleting paragraph (d) and substituting the following new paragraphs:

“(d) ship, or procure the shipment of, all iron ore mined from the mineral lease, and sold:

(i) from the Company’s wharf; or

(ii) from any other wharf in a loading port which wharf has been constructed under an Integration Agreement; or

(iii) with the Minister’s approval given before submission of proposals in that regard, from any other wharf in a loading port which wharf has been constructed under another Government agreement (excluding the Integration Agreements),

and use its best endeavours to obtain therefor the best price possible having regard to market conditions from time to time prevailing PROVIDED THAT:

(A) this paragraph shall not apply to iron ore used for the production of iron ore concentrates or in a plant for the production of metallised agglomerates or steel in any part of the said State lying north of the twenty sixth parallel of latitude; and

(B) iron ore from the mineral lease may be sold by the Company prior to or at the time of the shipment under this Agreement at a price equal to the production costs in respect of that iron ore up to the point of sale, if:

(i) the Minister is notified before the time of shipment that the sale is to be made at cost, providing details of the proposed sale; and

(ii) the Minister is notified of the proposed arm’s length purchaser in the relevant international seaborne iron ore market of the iron ore the subject of the proposed sale at cost; and

(iii) there is included in the return lodged pursuant to clause 12(1)(i) particulars of the transaction in which the ore sold at cost was subsequently purchased in the relevant international seaborne iron ore market by an arm’s length purchaser specifying the purchaser, the seller, the price and the date when the sale was agreed between the arm’s length purchaser and the seller; and

(iv) the arm’s length purchaser referred to in (iii) above is not then a designated purchaser as referred to in subclause (1)(da);

Designated purchaser

(da) if required by notice in writing from the Minister, provide the Minister within 30 days after receiving the notice with evidence that the transaction as included in the return pursuant to paragraph (B)(iii) of subclause (1)(d) was a sale in the relevant international seaborne iron ore market to an independent participant in that market. If no evidence is provided or the Minister is not so satisfied on the evidence provided or other information obtained, the Minister may by notice to the Company designate the purchaser to be a designated purchaser and that designation will remain in force unless and until lifted by further notice from the Minister to the Company. For the avoidance of doubt, the parties acknowledge that marketing entities forming part of the corporate group including the Company (or part of the parallel corporate group if the Company is part of a dual-listed corporate structure) are not independent participants for the purposes of this subclause;”;

(13) in paragraph (h) of clause 12(1) by deleting all the words after “(solely for testing purposes)” and substituting the following:

“(i) on lump ore and on fine ore not sold or shipped separately as such at the rate of 7.5% of the f.o.b. value;

(ii) on fine ore sold or shipped separately as such at the rate of 5.625% of the f.o.b. value;

(iii) on beneficiated ore at the rate of 5% of the f.o.b. value; and

(iv) and on all other iron ore at the rate of 7.5% of the f.o.b. value.

Where beneficiated ore is produced from an admixture of iron ore from the mineral lease and other iron ore a portion (and a portion only) of beneficiated ore so produced being equal to the proportion that the amount of iron in the iron ore from the mineral lease used in the production of beneficiated ore bears to the total amount of iron in the iron ore so used shall be deemed to be produced from iron ore from the mineral lease.

Where for the purpose of determining f.o.b. value it is necessary to convert an amount or price to Australian currency, the conversion is to be calculated using a rate (excluding forward hedge or similar contract rates) that has been approved by the Minister at the request of the Company and in the absence of such request as determined by the Minister to be a reasonable rate for the purpose.

The provisions of regulation 85AA (Effect of GST etc on royalties) of the Mining Regulations 1981 (WA) shall apply mutatis mutandis to the calculation of royalties under this clause.”;

(14) in clause 12(1)(i) by:

(a) inserting “and also showing such other information in relation to the abovementioned iron ore as the Minister may from time to time reasonably require in regard to, and to assist in verifying, the calculation of royalties in accordance with paragraph (h),” after “due date of the return”; and

(b) deleting all the words after “calculated on the basis of” and substituting a colon followed by:

“(i) in the case of iron ore initially sold at cost pursuant to paragraph (B) of the proviso to subclause (1)(d), at the price notified pursuant to paragraph (B)(iii) of that proviso;

(ii) in any other case, invoices or provisional invoices (as the case may be) rendered by the Company to the purchaser (which invoices the Company shall render without delay simultaneously furnishing copies thereof to the Minister) of such iron ore or on the basis of estimates as agreed or determined,

and shall from time to time in the next following appropriate return and payment make (by the return and by cash) all such necessary adjustments (and give to the Minister full details thereof) when the f.o.b. value shall have been finally calculated, agreed or determined;”;

(15) by deleting paragraph (l) of clause 12(1) and substituting the following new paragraph:

“(l) permit the Minister or his nominee to inspect at all reasonable times the books, records, accounts, documents (including contracts), data, and information of the Company stored by any means relating to any shipment or sale of iron ore the subject of royalty hereunder and to take copies or extracts (in whatever form) therefrom and for the purpose of determining the f.o.b. value in respect of any shipment sale transfer or other disposal or use or production of iron ore the subject of royalty hereunder the Company will take reasonable steps (i) to provide the Minister with current prices for iron ore and other details and information that may be required by the Minister for the purpose of agreeing or determining the f.o.b. value and (ii) to satisfy the State either by certificate of a competent independent party acceptable to the State or otherwise to the Minister’s reasonable satisfaction as to all relevant weights and analyses and will give due regard to any objection or representation made by the Minister or the Minister’s nominee as to any particular weight or assay of iron ore which may affect the amount of royalty payable hereunder;”;

(16) by in clause 12(1) deleting the full stop at the end of paragraph (o), substituting a semi colon and inserting the following new paragraph:

“ Production of books etc in Perth

(p) shall cause to be produced in Perth in the said State all books, records, accounts, documents (including contracts), data and information of the kind referred to in paragraph (l) to enable the exercise of rights by the Minister or the Minister’s nominee under paragraph (l), regardless of the location in which or by whom those books, records, accounts, documents (including contracts), data and information are stored from time to time.”;

(17) by inserting after clause 20 the following new clauses:

“Blending of iron ore

20A. (1) The Company may blend iron ore mined from the mineral lease with any:

(a) iron ore mined from a mining tenement or other mining title granted under, or pursuant to, an Integration Agreement; or

(b) iron ore mined from a Mining Act 1978 mining lease located in, or proximate to, the Pilbara region of the said State which is held by a Related Entity alone or with a third party or parties (excluding any mining lease granted pursuant to, or held under, a Government agreement); or

(c) with the prior approval of the Minister, iron ore mined in, or proximate to, the Pilbara region of the said State under a Government agreement (excluding an Integration Agreement); or

(d) with the prior approval of the Minister, iron ore mined by a third party from a Mining Act 1978 mining lease located in, or proximate to, the Pilbara region of the said State (excluding under a Government agreement) which has been purchased by an Integration Proponent from the third party.

(2) The authority given under subclause (1) is subject to the Minister being reasonably satisfied that there are in place adequate systems and controls for the correct apportionment of the quantities of iron ore being blended as between each of the sources referred to in subclause (1), which systems and controls monitor production, processing, transportation, stockpiling and shipping of all such iron ore. If at any time the Minister ceases to be so satisfied he may, after consulting the Company and provided the Company has not within three (3) months after the commencement of such consultation addressed the matters of concern to the Minister to his satisfaction, by notice in writing to the Company suspend the above authority in respect of the relevant blending arrangements until he is again satisfied in terms of this subclause (2).

(3) If any blending of iron ore occurs as contemplated by this clause, then for the purposes of paragraphs (h) and (i) of clause 12(1), a portion of the iron ore so blended being equal to the proportion that the amount of iron ore from the mineral lease used in the admixture of iron ore bears to the total amount of iron ore so blended, shall be deemed to be produced from the mineral lease.

Additional areas

20B. (1) Notwithstanding the provisions of the Mining Act or the Mining Act 1978 the Company may from time to time during the currency of this Agreement apply to the Minister for areas held by the Company or an associated company under a mining tenement granted under the Mining Act 1978 to be included in the mineral lease but so that the total area of the mineral lease, any land that may be included in the mineral lease pursuant to this Agreement and of any other mineral lease or mining lease granted under or pursuant to this Agreement (as aggregated) shall not at any time exceed 777 square kilometres. The Minister shall confer with the Minister for Mines in regard to any such application and if they approve the application the Minister for Mines shall upon the surrender of the relevant mining tenement include the area the subject thereof in the mineral lease by endorsement subject to such of the conditions of the surrendered mining tenement as the Minister for Mines determines but otherwise subject to the same terms covenants and conditions as apply to the mineral lease (with such apportionment of rents as is necessary) and notwithstanding that the survey of such additional land has not been completed but subject to correction to accord with the survey when completed at the Company’s expense.

(2) The Minister may approve, upon application by the Company from time to time, for the total area referred to in subclause (1) to be increased up to a limit not exceeding 1,000 square kilometres.

(3) The Company shall not mine or carry out other activities (other than exploration, bulk sampling and testing) on any area or areas added to the mineral lease pursuant to subclause (1) of this clause unless and until proposals with respect thereto are approved or determined pursuant to the subsequent provisions of this clause.

(4) If the Company desires to commence mining of iron ore or to carry out any other activities (other than as aforesaid) on the said areas it shall give notice of such desire to the Minister and shall within 2 months of the date of such notice (or thereafter within such extended time as the Minister may allow as hereinafter provided) and subject to the provisions of this Agreement submit to the Minister to the fullest extent reasonably practicable its detailed proposals (which proposals shall include plans where practicable and specifications where reasonably required by the Minister) with respect to such mining or other activities as additional proposals pursuant to clause 11.

Integrated use of works, installations or facilities under the Integration Agreements

20C. (1) Subject to subclauses (2) to (7) of this clause and to the other provisions of this Agreement, the Company may during the continuance of this Agreement:

(a) use any existing or new works installations or facilities constructed or held:

(i) under this Agreement; or

(ii) under any other Integration Agreement which are made available for such use and during the continuance of such Integration Agreement; or

(iii) with the approval of the Minister, under a Government agreement (excluding an Integration Agreement) which are made available for such use and during the continuance of that agreement,

(wholly or in part) in the activities of the Company carried on by it pursuant to this Agreement including, without limitation, as part of those activities, transporting by railway and shipping from a loading port and undertaking any ancillary and incidental activities in doing so (including, without limitation, blending permitted by clause 20A) of:

(A) iron ore mined from a Mining Act 1978 mining lease located in, or proximate to, the Pilbara region of the said State which is held by a Related Entity alone or with a third party or parties (excluding any mining lease granted pursuant to, or held under, a Government agreement);

(B) with the prior approval of the Minister, iron ore mined in, or proximate to, the Pilbara region of the said State under a Government agreement (excluding an Integration Agreement);

(C) with the prior approval of the Minister, iron ore mined by a third party from a Mining Act 1978 mining lease located in, or proximate to, the Pilbara region of the said State (excluding under a Government agreement) which has been purchased by the Company from the third party;

(D) iron ore mined under an Integration Agreement;

(b) make any existing or new works installations or facilities constructed or held under this Agreement available for use (wholly or partly) by another Integration Proponent during the continuance of its Integration Agreement in the activities of that Integration Proponent carried on by it pursuant to its Integration Agreement including, without limitation, as part of those activities, transporting by railway and shipping from a loading port and undertaking any ancillary and incidental activities in doing so (including, without limitation, blending permitted by that Integration Agreement) of:

(i) iron ore mined from a Mining Act 1978 mining lease located in, or proximate to, the Pilbara region of the said State which is held by a Related Entity alone or with a third party or parties (excluding any mining lease granted pursuant to, or held under, a Government agreement);

(ii) with the prior approval of the Minister (as defined in that Integration Agreement), iron ore mined in, or proximate to, the Pilbara region of the said State under a Government agreement (excluding an Integration Agreement);

(iii) with the prior approval of the Minister (as defined in that Integration Agreement), iron ore mined by a third party from a Mining Act 1978 mining lease located in, or proximate to, the Pilbara region of the said State (excluding under a Government agreement) which has been purchased by that Integration Proponent from the third party;

(iv) iron ore mined under an Integration Agreement;

(c) make any existing or new works installations or facilities constructed or held under this Agreement available for use (wholly or partly) in connection with operations under:

(i) a Mining Act 1978 mining lease located in, or proximate to, the Pilbara region of the said State, for iron ore, which is held by a Related Entity alone or with a third party or parties (excluding any mining lease granted pursuant to, or held under a Government agreement); or

(ii) with the approval of the Minister, a Government agreement (other than an Integration Agreement) for the mining of iron ore in, or proximate to, the Pilbara region of the said State;

(d) subject to subclause (2), under this Agreement and for the purpose of any use or making available for use referred to in paragraph (a), (b) or (c) connect any existing or new works installations or facilities constructed or held under this Agreement to any existing or new works installations or facilities constructed or held under another Integration Agreement;

(e) subject to subclause (2), under this Agreement and for the purpose of any use or making available for use referred to in paragraph (a), (b) or (c) or making of any connection referred to in paragraph (d) construct new works installations or facilities and expand modify or otherwise vary any existing and new works installations or facilities constructed or held under this Agreement;

(f) allow a railway or rail spur line (not being a railway or rail spur line constructed or held under an Integration Agreement) to be connected to a railway or rail spur line or other works installations or facilities constructed or held under this Agreement for the delivery of iron ore to an Integration Proponent for transport by railway and shipping from a loading port (together with any ancillary and incidental activities in doing so) as part of its activities under its Integration Agreement; and

(g) allow an electricity transmission line (not being an electricity transmission line constructed or held under an Integration Agreement) to be connected to an electricity transmission line constructed or held under this Agreement for the supply of electricity permitted to be made under an Integration Agreement.

(2) (a) A connection referred to in clause (1)(d) or construction, expansion, modification or other variation referred to in subclause (1)(e) by the Company shall, to the extent not already authorised under this Agreement as at the variation date, be regarded as a significant modification expansion or other variation of the Company’s activities carried on by it pursuant to this Agreement and may only be made in accordance with proposals submitted and approved or determined under this Agreement in accordance with clauses 11 and 11A or clause 20E as the case may require and otherwise in compliance with the provisions of this Agreement and the laws from time to time of the said State. For the avoidance of doubt, the parties acknowledge that any use or making available for use contemplated by subclause (1)(a), (1)(b) or (1)(c) shall not otherwise than as required by this paragraph (a) require the submission and approval of further proposals under this Agreement.

(b) The Company shall not be entitled to:

(i) submit proposals to develop a port or harbour otherwise than as permitted by clause 5 or to establish harbour or port works installations or facilities, or to expand modify or otherwise vary harbour or works installations or facilities other than within the boundaries of the port (as defined by clause 1) or as permitted by clause 5; or

(ii) generate and supply power, take and supply water or dispose of water otherwise than in accordance with the other clauses of this Agreement and subject to any restrictions contained in those clauses; or

(iii) without limiting subparagraphs (i) and (ii) submit proposals to construct or establish works installations or facilities of a type, or to make expansions, modifications or other variations of works installations or facilities of a type, which in the Minister’s reasonable opinion this Agreement, immediately before the variation date, did not permit or contemplate the Company constructing, establishing or making as the case may be otherwise than for integration use as contemplated by subclauses (1)(a), (1)(b) or (1)(c) or as permitted by clause 20E; or

(iv) submit proposals to make a connection as referred to in subclause (1)(d) or a construction, expansion, modification or other variation as referred to in subclause (1)(e) otherwise than on tenure granted under or pursuant to this Agreement from time to time or held pursuant to this Agreement from time to time; or

(v) submit proposals to make a connection referred to in subclause (1)(d) or a construction, expansion, modification or other variation as referred to in subclause (1)(e) for the purpose of use as contemplated by subclause (1)(c)(i), if in the reasonable opinion of the Minister the activity which is the subject of the proposals would give to the holder or holders of the relevant Mining Act 1978 mining lease the benefit of rights or powers granted to the Company under this Agreement, over and above the right of access to and use of the relevant works, installations or facilities; or

(vi) submit proposals to make a connection as referred to in subclause (1)(d) or a construction, expansion, modification or other variation as referred to in subclause (1)(e) for the purpose of use as contemplated by subclause (1)(c) and involving the grant of tenure without the prior approval of the Minister; or

(vii) submit proposals to assign, sublet, transfer or dispose of any works installations or facilities constructed or held under this Agreement or any leases, licences, easements or other titles under or pursuant to this Agreement for any purpose referred to in this clause.

(c) Notwithstanding the provisions of clauses 11A and 20E, the Minister may defer consideration of, or a decision upon, a proposal submitted by the Company for a connection as referred to in subclause (1)(d) or a construction, expansion, modification or other variation as referred to in subclause (1)(e), for the purpose of use or making available for use as referred to in subclauses (1)(a) or (1)(b), until relevant corresponding proposals under the relevant Integration Agreement have been submitted and those proposals can be approved under that Integration Agreement concurrently with the Minister’s approval under this Agreement of the Company’s proposal.

(3) Any use or making available for use as referred to in subclause (1), or submission of proposals as referred to in subclause (2), in respect of a Related Entity shall be subject to the Company first confirming with the Minister that the Minister is satisfied that the relevant company is a Related Entity.

(4) The Company shall give the Minister prior written notice of any significant change (other than a temporary one for maintenance or to respond to an emergency) proposed in its use, or in it making available for use, works, installations or facilities as referred to in this clause:

(a) from that authorised under this Agreement immediately before the variation date; and

(b) subsequently from that previously notified to the Minister under this subclause,

as soon as practicable before such change occurs.

The Company shall also keep the Minister fully informed with respect to any proposed connection as referred to in subclause (1)(f) or (1)(g) or request of the Company for such connection to be allowed.

(5) Nothing in this Agreement shall be construed to:

(a) exempt another Integration Proponent from complying with, or the application of, the provisions of its Integration Agreement; or

(b) restrict the Company’s rights under clause 43.

For the avoidance of doubt the approval of proposals under this Agreement shall not be construed as authorising another Integration Proponent to undertake any activities under this Agreement or under another Integration Agreement.

(6) Nothing in this clause shall be construed to exempt the Company from complying with, or the application of, the other provisions of this Agreement including, without limitation, clause 43 and of relevant laws from time to time of the said State.

(7) For the purpose of this clause “works installations or facilities” means any:

(a) harbour or port works installations or facilities including, without limitation, stockpiles, reclaimers, conveyors and wharves;

(b) railway or rail spur lines;

(c) track structures and systems associated with the operation and maintenance of a railway including, without limitation, sidings, train control and signalling systems, maintenance workshops and terminal yards;

(d) train loading and unloading works installations or facilities;

(e) conveyors;

(f) private roads;

(g) mine aerodrome and associated aerodrome works installations and facilities;

(h) iron ore mining, crushing, screening, beneficiation or other processing works installations or facilities;

(i) mine administration buildings including, without limitation, offices, workshops and medical facilities;

(j) borrow pits;

(k) accommodation and ancillary facilities including, without limitation, construction camps and in townsites constructed pursuant to and held under any Integration Agreement;

(l) water, sewerage, electricity, gas and telecommunications works installations and facilities including, without limitation, pipelines, transmission lines and cables; and

(m) any other works installations or facilities approved of by the Minister for the purpose of this clause.

Transfer of rights to shared works installations or facilities

20D. (1) For the purposes of this clause “Relevant Infrastructure” means any works installations or facilities (as defined in clause 20C(7)):

(a) constructed or held under another Integration Agreement;

(b) which the Company is using in its activities pursuant to this Agreement;

(c) which the Minister is satisfied (after consulting with the Company and the Integration Proponent for that other Integration Agreement):

(i) are no longer required by that other Integration Proponent to carry on its activities pursuant to its Integration Agreement because of the cessation of the Integration Proponent’s mining operations in respect of which such Relevant Infrastructure was constructed or held or because of any other reason acceptable to the Minister; and

(ii) are required by the Company to continue to carry on its activities pursuant to this Agreement; and

(d) in respect of which that other Integration Proponent has notified the Minister it consents to the Company submitting proposals as referred to in subclause (2).

(2) The Company may as an additional proposal pursuant to clause 11 propose:

(a) that it be granted a lease licence or other title over the Relevant Infrastructure pursuant to this Agreement subject to and conditional upon the other Integration Proponent surrendering wholly or in part (and upon such terms as the Minister considers reasonable including any variation of terms to address environmental issues) its lease licence or other title over the Relevant Infrastructure; or

(b) that the other Integration Proponent’s lease licence or other title (not being a mineral lease, mining lease or other right to mine title granted under a Government agreement, the Mining Act 1904 or the Mining Act 1978 ) to the Relevant Infrastructure be transferred to this Agreement (to be held by the Company pursuant to this Agreement) with such surrender of land from it and variations of its terms as the Minister considers reasonable for that title to be held under this Agreement including, without limitation, to address environmental issues and outstanding obligations of that other Integration Proponent under its Integration Agreement in respect of that Relevant Infrastructure.

The provisions of clause 11A shall mutatis mutandis apply to any such additional proposal. In addition the Company acknowledges that the Minister may require variations of the other Integration Agreement and/or proposals under it or of this Agreement in order to give effect to the matters contemplated by this clause.

(3) This clause shall cease to apply in the event the State gives any notice of default to the Company pursuant to clause 21 and while such notice remains unsatisfied .

Miscellaneous Licences for Railways

20E. (1) In this clause subject to the context:

“Additional Infrastructure” means:

(a) Train Loading Infrastructure;

(b) Train Unloading Infrastructure;

(c) a conveyor, train unloading and other infrastructure necessary for the transport of iron ore, freight goods or other products from the Railway (directly or indirectly) to port facilities within a loading port,

in each case located outside a Port;

“LAA” means the Land Administration Act 1997 (WA);

“Lateral Access Roads” has the meaning given in subclause (3)(a)(iv));

“Lateral Access Road Licence” means a miscellaneous licence granted pursuant to subclause (6)(a)(ii) or subclause (6)(b) as the case may be and according to the requirements of the context describes the area of land from time to time the subject of that licence;

“Port” means any port the subject of the Port Authorities Act 1999 (WA) or the Shipping and Pilotage Act 1967 (WA);

“Private Roads” means Lateral Access Roads and the Company’s access roads within a Railway Corridor;

“Rail Safety Act” means the Rail Safety Act 1998 (WA);

“Railway” means a standard gauge heavy haul railway or railway spur line, located or to be located as the case may be in, or proximate to, the Pilbara region of the said State (but outside the boundaries of a Port) for the transport of iron ore, freight goods and other products together with all railway track, associated track structures including sidings, turning loops, over or under track structures, supports (including supports for equipment or items associated with the use of a railway) tunnels, bridges, train control systems, signalling systems, switch and other gear, communication systems, electric traction infrastructure, buildings (excluding office buildings, housing and freight centres), workshops and associated plant, machinery and equipment and including rolling stock maintenance facilities, terminal yards, depots, culverts and weigh bridges which railway is or is to be (as the case may be) the subject of approved proposals under subclause (4) and includes any expansion or extension thereof outside a Port which is the subject of additional proposals approved in accordance with subclause (5);

“Railway Corridor” means, prior to the grant of a Special Railway Licence, the land for the route of the Railway the subject of that licence, access roads (other than Lateral Access Roads), areas from which stone, sand, clay and gravel may be taken, temporary accommodation facilities for the railway workforce, water bores and Additional Infrastructure (if any) which is the subject of a subsisting agreement pursuant to subclause (3)(a) and after the grant of the Special Railway Licence the land from time to time the subject of that Special Railway Licence;

“Railway Operation” means the construction and operation under this Agreement of the relevant Railway and associated access roads and Additional Infrastructure (if any) within the relevant Railway Corridor and of the associated Lateral Access Roads, in accordance with approved proposals;

“Railway spur line” means a standard gauge heavy haul railway spur line located or to be located in, or proximate to, the Pilbara region of the said State (but outside a Port) connecting to a Railway for the transport of iron ore, freight goods and other products upon the Railway to (directly or indirectly) a loading port;

“Railway Operation Date” means the date of the first carriage of iron ore, freight goods or other products over the relevant Railway (other than for construction or commissioning purposes);

“Railway spur line Operation Date” means the date of the first carriage of iron ore, freight goods or other products over the relevant Railway spur line (other than for construction or commissioning purposes);

“Special Railway Licence” means the relevant miscellaneous licence for railway and, if applicable, other purposes, granted to the Company pursuant to subclause (6)(a)(i) as varied in accordance with subclause (6)(h) or subclause (6)(i) and according to the requirements of the context describes the area of land from time to time the subject of that licence;

“Train Loading Infrastructure” means conveyors, stockpile areas, blending and screening facilities, stackers, re-claimers and other infrastructure reasonably required for the loading of iron ore, freight goods or other products onto the relevant Railway for transport (directly or indirectly) to a loading port; and

“Train Unloading Infrastructure” means train unloading infrastructure reasonably required for the unloading of iron ore from the Railway to be processed, or blended with other iron ore, at processing or blending facilities in the vicinity of that train unloading infrastructure and with the resulting iron ore products then loaded on to the Railway for transport (directly or indirectly) to a loading port.

Company to obtain prior Ministerial in-principle approval

(2) (a) If the Company wishes, from time to time during the continuance of this Agreement, to proceed under this clause with a plan to develop a Railway it shall give notice thereof to the Minister and furnish to the Minister with that notice an outline of its plan.

(b) The Minister shall within one month of a notice under paragraph (a) advise the Company whether or not he approves in-principle the proposed plan. The Minister shall afford the Company full opportunity to consult with him in respect of any decision of the Minister under this paragraph.

(c) The Minister’s in-principle approval in respect of a proposed plan shall lapse if the Company has not submitted detailed proposals to the Minister in respect of that plan in accordance with this clause within 18 months of the Minister’s in-principle approval.

Railway Corridor

(3) (a) If the Minister gives in-principle approval to a plan of the Company to develop a Railway it shall consult with the Minister to seek the agreement of the Minister as to:

(i) where the Railway will begin and end; and

(ii) a route for the Railway, access roads to be within the Railway Corridor and the land required for that route as well as Additional Infrastructure (if any) including, without limitation, areas from which stone, sand, clay and gravel may be taken, temporary accommodation facilities for the railway workforce and water bores; and

(iii) in respect of Additional Infrastructure (if any) the nature and capacity of such Additional Infrastructure; and

(iv) the routes of, and the land required for, roads outside the Railway Corridor (and also outside a Port) for access to it to construct the Railway (such roads as agreed being “Lateral Access Roads”).

In seeking such agreement, regard shall be had to achieving a balance between engineering matters including costs, the nature and use of any lands concerned and interests therein and the costs of acquiring the land (all of which shall be borne by the Company) . The parties acknowledge the intention is for the Company to construct the Railway, the access roads for the construction and maintenance of the Railway which are to be within the Railway Corridor and the relevant Additional Infrastructure (if any) along the centreline of the Railway Corridor subject to changes in that alignment to the extent necessary to avoid heritage, environmental or poor ground conditions that are not identified during preliminary investigation work, and recognise the width of the Railway Corridor may need to vary along its route to accommodate Additional Infrastructure (if any), access roads, areas from which stone, sand, clay and gravel may be taken, temporary accommodation facilities for the railway workforce and water bores. The provisions of clause 53 shall not apply to this subclause.

(b) If the date by which the Company must submit detailed proposals under subclause (4)(a) (as referred to in subclause (2)(c)) is extended or varied by the Minister pursuant to clause 52, any agreement made pursuant to paragraph (a) before such date is extended or varied shall unless the Minister notifies the Company otherwise be deemed to be at an end and neither party shall have any claim against the other in respect of it.

(c) The Company acknowledges that it shall be responsible for liaising with every title holder in respect of the land affected and for obtaining in a form and substance acceptable to the Minister all unconditional and irrevocable consents of each such title holder to, and all statutory consents required in respect of the land affected for:

(i) the grant of the Special Railway Licence for the construction, operation and maintenance within the Railway Corridor of the Railway, access roads and Additional Infrastructure (if any) to be within the Railway Corridor; and

(ii) the grant of Lateral Access Road Licences for the construction, use and maintenance of Lateral Access Roads over the routes for the Lateral Access Roads agreed pursuant to paragraph (a); and

(iii) the inclusion of additional land in the Special Railway Licence as referred to in subclause (6)(h) or subclause (6)(i),

in accordance with this clause. For the purposes of this subclause (3)(c), “title holder” means a management body (as defined in the LAA) in respect of any part of the affected land, a person who holds a mining, petroleum or geothermal energy right (as defined in the LAA) in respect of any part of the affected land, a person who holds a lease or licence under the LAA in respect of any part of the affected land, a person who holds any other title granted under or pursuant to a Government agreement in respect of any part of the affected land, a person who holds a lease or licence in respect of any part of the affected land under any other Act applying in the said State and a person in whom any part of the affected land is vested, immediately before the provision of such consents to the Minister as referred to in subclause (4)(e)(ii) (including as applying pursuant to subclause 5(d)).

Company to submit proposals for Railway

(4) (a) The Company shall, subject to the EP Act, the provisions of this Agreement, agreement at that time subsisting in respect of the matters required to be agreed pursuant to subclause 3(a), submit to the Minister by the latest date applying under subclause (2)(c) to the fullest extent reasonably practicable its detailed proposals (including plans where practicable and specifications where reasonably required by the Minister and any other details normally required by a local government in whose area any works are to be situated) with respect to the undertaking of the relevant Railway Operation, which proposals shall include the location, area, layout, design, materials and time program for the commencement and completion of construction or the provision (as the case may be) of each of the following matters namely:

(i) the Railway including fencing (if any) and crossing places within the Railway Corridor;

(ii) Additional Infrastructure (if any) within the Railway Corridor;

(iii) temporary accommodation and ancillary temporary facilities for the railway workforce on, or in the vicinity of, the Railway Corridor and housing and other appropriate facilities elsewhere for the Company’s workforce;

(iv) water supply;

(v) energy supplies;

(vi) access roads within the Railway Corridor and Lateral Access Roads both along the routes for those roads agreed between the Minister and the Company pursuant to subclause 3(a);

(vii) any other works, services or facilities desired by the Company; and

(viii) use of local labour, professional services, manufacturers, suppliers contractors and materials and measures to be taken with respect to the engagement and training of employees by the Company, its agents and contractors.

(b) Proposals pursuant to paragraph (a) must specify the matters agreed for the purpose pursuant to subclause (3)(a) and must not be contrary to or inconsistent with such agreed matters.

(c) Each of the proposals pursuant to paragraph (a) may with the approval of the Minister, or must if so required by the Minister, be submitted separately and in any order as to the matter or matters mentioned in one or more of subparagraphs (i) to (viii) of paragraph (a) and until all of its proposals under this subclause have been approved the Company may withdraw and may resubmit any proposal but the withdrawal of any proposal shall not affect the obligations of the Company to submit a proposal under this subclause in respect of the subject matter of the withdrawn proposal.

(d) The Company shall, whenever any of the following matters referred to in this subclause are proposed by the Company (whether before or during the submission of proposals under this subclause), submit to the Minister details of any services (including any elements of the project investigations, design and management) and any works, materials, plant, equipment and supplies that it proposes to consider obtaining from or having carried out or permitting to be obtained from or carried out outside Australia, together with its reasons therefor and shall, if required by the Minister consult with the Minister with respect thereto.

(e) At the time when the Company submits the last of the said proposals pursuant to this subclause, it shall:

(i) furnish to the Minister’s reasonable satisfaction evidence of all accreditations under the Rail Safety Act which are required to be held by the Company or any other person for the construction of the Railway; and

(ii) furnish to the Minister the written consents referred to in subclause (3)(c)(i) and (3)(c)(ii).

(f) The provisions of clause 11A shall apply mutatis mutandis to detailed proposals submitted under this subclause.

Additional Railway Proposals

(5) (a) If the Company at any time during the currency of a Special Railway Licence desires to construct a Railway spur line (connecting to the Railway the subject of that Special Railway Licence) or desires to significantly modify, expand or otherwise vary its activities within the land the subject of the Special Railway Licence that are the subject of this Agreement and that may be carried on by it pursuant to this Agreement (other than by the construction of a Railway spur line) beyond those activities specified in any approved proposals for that Railway, it shall give notice of such desire to the Minister and furnish to the Minister with that notice an outline of its proposals in respect thereto (including, without limitation, such matters mentioned in subclause (4)(a) as are relevant or as the Minister otherwise requires).

(b) If the notice relates to a Railway spur line, or to the construction of Train Loading Infrastructure or Train Unloading Infrastructure on land outside the then Railway Corridor, the Minister shall within one month of receipt of such notice advise the Company whether or not he approves in-principle the proposed construction of such spur line, Train Loading Infrastructure or Train Unloading Infrastructure. If the Minister gives in-principle approval the Company may (but not otherwise) submit detailed proposals in respect thereof provided that the provisions of subclause (3) shall mutatis mutandis apply prior to submission of detailed proposals in respect thereof.

(c) Subject to the EP Act, the provisions of this Agreement and agreement at that time subsisting in respect of any matters required to be agreed pursuant to subclause (3)(a) (as referred to in paragraph (b)), the Company shall submit to the Minister within a reasonable timeframe, as determined by the Minister after receipt of the notice referred to in paragraph (a) (or in the case of a notice referred to in paragraph (b) the giving of the Minister’s in-principle consent as referred to in that paragraph), detailed proposals in respect of the proposed construction of such Railway spur line, Train Loading Infrastructure, Train Unloading Infrastructure or other proposed modification, expansion or variation of its activities including such of the matters mentioned in subclause (4)(a) as the Minister may require.

(d) The provisions of subclause (4) (with the date for submission of proposals being read as the date or time determined by the Minister under paragraph (c) and the reference in subclause (4)(e)(ii) to subclause (3)(c)(i) being read as a reference to subclause (3)(c)(iii)) and of clause 11A shall mutatis mutandis apply to detailed proposals submitted pursuant to this subclause.

Grant of Tenure

(6) (a) On application made by the Company to the Minister in such manner as the Minister may determine, not later than 3 months after all its proposals submitted pursuant to subclause (4)(a) have been approved or deemed to be approved and the Company has complied with the provisions of subclause (4)(e), the State notwithstanding the Mining Act 1978 shall cause to be granted to the Company:

(i) a miscellaneous licence to conduct within the Railway Corridor and in accordance with its approved proposals all activities (including the taking of stone, sand, clay and gravel, the provision of temporary accommodation facilities for the railway workforce and, subject to the Rights in Water and Irrigation Act 1914 (WA), the operation of water bores) necessary for the planning, design, construction, commissioning, operation and maintenance within the Railway Corridor of the Railway, access roads and Additional Infrastructure (if any) (“the Special Railway Licence”) such licence to be granted under and subject to, except as otherwise provided in this Agreement, the Mining Act 1978 in the form of the Third Schedule hereto and subject to such terms and conditions as the Minister for Mines may from time to time consider reasonable and at a rental calculated in accordance with the Mining Act 1978 :

(A) prior to the Railway Operation Date, as if the width of the Railway Corridor were 100 metres; and

(B) on and from the Railway Operation Date, at the rentals from time to time prescribed under the Mining Act 1978 ; and

(ii) a miscellaneous licence or licences to allow the construction, use and maintenance of Lateral Access Roads within the routes agreed for those Lateral Access Roads under subclause (3)(a) (each a “Lateral Access Road Licence”), each such licence to be granted under and subject to, except as otherwise provided in this Agreement, the Mining Act 1978 in the form of the Fourth Schedule hereto and subject to such terms and conditions as the Minister for Mines may from time to time consider reasonable and at the rentals from time to time prescribed under the Mining Act 1978 .

(b) On application made by the Company to the Minister in such manner as the Minister may determine, not later than 3 months after its proposals submitted pursuant to subclause (5)(a) for the construction of Lateral Access Roads for access to the Railway Corridor to construct a Railway spur line have been approved or deemed to be approved and the Company has complied with the provisions of subclause (4)(e) (as applying pursuant to subclause (5)(d)), the State notwithstanding the Mining Act 1978 shall cause to be granted to the Company a miscellaneous licence or licences to allow the construction, use and maintenance of Lateral Access Roads within the routes agreed for those Lateral Access Roads under subclause (3)(a)) (as applying pursuant to subclause (5)(b)) (each a “Lateral Access Road Licence”), each such licence to be granted under and subject to, except as otherwise provided in this Agreement, the Mining Act 1978 in the form of the Fifth Schedule hereto and subject to such terms and conditions as the Minister for Mines may from time to time consider reasonable and at the rentals from time to time prescribed under the Mining Act 1978 .

(c) Notwithstanding the Mining Act 1978 , the term of the Special Railway Licence shall, subject to the sooner determination thereof on the cessation or sooner determination of this Agreement, be for a period of 50 years commencing on the date of grant thereof.

(d) Notwithstanding the Mining Act 1978 , the term of any Lateral Access Road Licence shall, subject to the sooner determination thereof on the cessation or sooner determination of this Agreement, be for a period of 4 years commencing on the date of grant thereof.

(e) Notwithstanding the Mining Act 1978 , and except as required to do so by the terms of the Special Railway Licence, the Company shall not be entitled to surrender the Special Railway Licence or any Lateral Access Road Licence or any part or parts of them without the prior consent of the Minister.

(f) (i) The Company may in accordance with approved proposals take stone, sand, clay and gravel from the Railway Corridor for the construction, operation and maintenance of the Railway constructed within or approved for construction within the Railway Corridor.

(ii) Notwithstanding the Mining Act 1978 no royalty shall be payable under the Mining Act in respect of stone, sand, clay and gravel which the Company is permitted by subparagraph (i) to obtain from the land the subject of the Special Railway Licence.

(g) For the purposes of this Agreement and without limiting the operation of paragraphs (a) to (f) inclusive above, the application of the Mining Act 1978 and the regulations made thereunder are specifically modified;

(i) in section 91(1) by:

(A) deleting “the mining registrar or the warden, in accordance with section 42 (as read with section 92)” and substituting “the Minister”;

(B) deleting “any person” and substituting “the Company (as defined in the agreement ratified by and scheduled to the Iron Ore (Mount Bruce) Agreement Act 1972 , as from time to time added to, varied or amended)”;

(C) deleting “for any one or more of the purposes prescribed” and substituting “for the purpose specified in clause 20E(6)(a)(i), clause 20E(6)(a)(ii) or clause 20E(6)(b), of the agreement ratified by and scheduled to the Iron Ore (Mount Bruce) Agreement Act 1972 , as from time to time added to, varied or amended”;

(ii) in section 91(3)(a), by deleting “prescribed form” and substituting “form required by the agreement ratified by and scheduled to the Iron Ore (Mount Bruce) Agreement Act 1972 , as from time to time added to, varied or amended”;

(iii) by deleting sections 91(6), 91(9), 91(10) and 91B;

(iv) in section 92, by deleting “Sections 41, 42, 44, 46, 46A, 47 and 52 apply,” and inserting “Section 46A (excluding in subsection (2)(a) “the mining registrar, the warden or”) applies,” and by deleting “in those provisions” and inserting “in that provision”;

(v) by deleting the full stop at the end of the section 94(1) and inserting, “except to the extent otherwise provided in, or to the extent that such terms and conditions are inconsistent with, the agreement ratified by and scheduled to the Iron Ore (Mount Bruce) Agreement Act 1972 , as from time to time added to, varied or amended”;

(vi) by deleting sections 94(2), (3) and (4);

(vii) in section 96(1), by inserting after “miscellaneous licence” the words “(not being a miscellaneous licence granted pursuant to the agreement ratified by and scheduled to the Iron Ore (Mount Bruce) Agreement Act 1972 , as from time to time added to, varied or amended”;

(viii) by deleting mining regulations 37(2), 37(3), 42 and 42A; and

(ix) by inserting at the beginning of mining regulations 41(c) and (f) the words “subject to the agreement ratified by and scheduled to the Iron Ore (Mount Bruce) Agreement Act 1972 , as from time to time added to, varied or amended”.

(h) If additional proposals are approved in accordance with subclause (5) for the construction of a Railway spur line outside the then Railway Corridor, the Minister for Mines shall include the area of land within which such construction is to occur in the Special Railway Licence by endorsement. The area of such land may be included notwithstanding that the survey of the land has not been completed but subject to correction to accord with the survey when completed at the Company’s expense.

(i) If additional proposals are approved in accordance with subclause (5) for the construction of Train Loading Infrastructure or Train Unloading Infrastructure outside the then Railway Corridor, the Minister for Mines shall include the area of such land within which such infrastructure is approved for construction in the Special Railway Licence by endorsement. The area of such land may be included notwithstanding that the survey of the land has not been completed but subject to correction to accord with the survey when completed at the Company’s expense.

(j) The provisions of this subclause shall not operate so as to require the State to cause a Special Railway Licence or a Lateral Access Road Licence to be granted or any land included in the Special Railway Licence as mentioned above until all processes necessary under any laws relating to native title to enable that grant or inclusion of land to proceed, have been completed.

Construction and operation of Railway

(7) (a) Subject to and in accordance with approved proposals, the Rail Safety Act and the grant of the relevant Special Railway Licence and any associated Lateral Access Road Licences the Company shall in a proper and workmanlike manner and in accordance with recognised standards for railways of a similar nature operating under similar conditions construct the Railway and associated Additional Infrastructure and access roads within the Railway Corridor and shall also construct inter alia any necessary sidings, crossing points, bridges, signalling switches and other works and appurtenances and provide for crossings and (where appropriate and required by the Minister) grade separation or other protective devices including flashing lights and boom gates at places where the Railway crosses or intersects with major roads or existing railways.

(b) The Company shall while the holder of a Special Railway Licence:

(i) keep the Railway the subject of that licence in an operable state; and

(ii) ensure that the Railway the subject of that licence is operated in a safe and proper manner in compliance with all applicable laws from time to time; and

(iii) without limiting subparagraph (ii) ensure that the obligations imposed under the Rail Safety Act on an owner and an operator (as those terms are therein defined) are complied with in connection with the Railway the subject of that licence.

Nothing in this Agreement shall be construed to exempt the Company or any other person from compliance with the Rail Safety Act or limit its application to the Company’s operations generally (except as otherwise may be provided in that Act or regulations made under it).

(c) The Company shall provide crossings for livestock and also for any roads, other railways, conveyors, pipelines and other utilities which exist at the date of grant of the relevant Special Railway Licence or in respect of land subsequently included in it at the date of such inclusion and the Company shall on reasonable terms and conditions allow such crossings for roads, railways, conveyors, pipelines and other utilities which may be constructed for future needs and which may be required to cross a Railway constructed pursuant to this clause.

(d) Subject to clause 20D, the Company shall at all times be the holder of Special Railway Licences and Lateral Access Road Licences granted pursuant to this clause and (without limiting clause 28 but subject to clause 20D) shall at all times own manage and control the use of each Railway the subject of a Special Railway Licence held by the Company.

(e) The Company shall not be entitled to exclusive possession of the land the subject of a Special Railway Licence or Lateral Access Road Licence granted pursuant to this clause to the intent that the State, the Minister, the Minister for Mines and any persons authorised by any of them from time to time shall be entitled to enter upon the land or any part of it at all reasonable times and on reasonable notice with all necessary vehicles, plant and equipment and for purposes related to this Agreement or such other purposes as they think fit but in doing so shall be subject to the reasonable directions of the Company so as not to unreasonably interfere with the Company’s operations.

(f) The Company’s ownership of a Railway constructed pursuant to this clause shall not give it an interest in the land underlying it.

(g) The Company shall not at any time without the prior consent of the Minister dismantle, sell or otherwise dispose of any part or parts of any Railway constructed pursuant to this clause, or permit this to occur, other than for the purpose of maintenance, repair, upgrade or renewal.

(h) The Company shall, subject to and in accordance with approved proposals, in a proper and workmanlike manner, construct any Additional Infrastructure, access roads, Lateral Access Roads and other works approved for construction under this clause.

(i) The Company shall while the holder of a Special Railway Licence at all times keep and maintain in good repair and working order and condition (which obligation includes, where necessary, replacing or renewing all parts which are worn out or in need of replacement or renewal due to their age or condition) the Railway, access roads and Additional Infrastructure (if any) the subject of that licence and all such other works installations plant machinery and equipment for the time being the subject of this Agreement and used in connection with the operation use and maintenance of that Railway, access roads and Additional Infrastructure (if any).

(j) Subject to clause 20D, the Company shall:

(i) be responsible for the cost of construction and maintenance of all Private Roads constructed pursuant to this clause; and

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

(iii) at any place where any Private Roads are constructed by the Company so as to cross any railways or public roads provide at its cost such reasonable protection and signposting as may be required by the Commissioner of Main Roads or the Public Transport Authority as the case may be.

(k) The provisions of clause 12(1)(a) and (2) as well as the provision to clause 12(1)(a) shall apply mutatis mutandis to any Railway or Railway spur line constructed pursuant to the clause except that the Company shall not be obliged to transport passengers upon any such Railway or Railway spur line.

Aboriginal Heritage Act 1972 (WA)

(8) For the purposes of this clause the Aboriginal Heritage Act 1972 (WA) applies as if it were modified by:

(a) the insertion before the full stop at the end of section 18(1) of the words:

“and the expression “the Company” means the persons from time to time comprising “the Company” in their capacity as such under the agreement ratified by and scheduled to the Iron Ore (Mount Bruce) Agreement Act 1972 , as from time to time added to, varied or amended in relation to the use or proposed use of land pursuant to clause 20E of that agreement after and in accordance with approved proposals under clause 20E of that agreement and in relation to the use of that land before any such approval of proposals where the Company has the requisite authority to enter upon and so use the land”;

(b) the insertion in sections 18(2), 18(4), 18(5) and 18(7) of the words “or the Company as the case may be” after the words “owner of any land”;

(d) the insertion of the following sentences at the end of section 18(3):

“In relation to a notice from the Company the conditions that the Minister may specify can as appropriate include, among other conditions, a condition restricting the Company’s use of the relevant land to after the approval or deemed approval as the case may be under the abovementioned agreement of all of the Company’s submitted initial proposals thereunder for the Railway Operation (as defined in clause 20E(1) of the abovementioned agreement), or in the case of additional proposals submitted or to be submitted by the Company to after the approval or deemed approval under that agreement of such additional proposals, and to the extent so approved.”; and

(e) the insertion in sections 18(2) and 18(5) of the words “or it as the case may be” after the word “he”.

The Company acknowledges that nothing in this subclause (8) nor the granting of any consents under section 18 of the Aboriginal Heritage Act 1972 (WA) will constitute or is to be construed as constituting the approval of any proposals submitted or to be submitted by the Company under this Agreement or as the grant or promise of land tenure for the purposes of this Agreement.

Taking of land for the purposes of this clause

(9) (a) The State is hereby empowered, as and for a public work under Parts 9 and 10 of the LAA, to take for the purposes of this clause any land (other than any part of a Port) which in the opinion of the Company is necessary for the relevant Railway Operation and which the Minister determines is appropriate to be taken for the relevant Railway Operation (except any land the taking of which would be contrary to the provisions of a Government agreement entered into before the submission of the proposals relating to the proposed taking) and notwithstanding any other provisions of that Act may license that land to the Company.

(b) In applying Parts 9 and 10 of the LAA for the purposes of this clause:

(i) “land” in that Act includes a legal or equitable estate or interest in land;

(ii) sections 170, 171, 172, 173, 174, 175 and 184 of that Act do not apply; and

(iii) that Act applies as if it were modified in section 177(2) by inserting -

(A) after “railway” the following-

“or land is being taken pursuant to a Government agreement as defined in section 2 of the Government Agreements Act 1979 (WA)”; and

(B) after “that Act” the following -

“or that Agreement as the case may be”.

(c) The Company shall pay to the State on demand the costs of or incidental to any land taken at the request of and on behalf of the Company including but not limited to any compensation payable to any holder of native title or of native title rights and interests in the land.

Notification of Railway Operation Date

(10) (a) The Company shall from the date occurring 6 months before the date for completion of construction of a Railway specified in its time program for the commencement and completion of construction of that Railway submitted under subclause (4)(a), keep the Minister fully informed as to:

(i) the progress of that construction and its likely completion and commissioning; and

(ii) the likely Railway Operation Date.

(b) The Company shall on the Railway Operation Date notify the Minister that the first carriage of iron ore, freight goods or other products as the case may be over the Railway (other than for construction or commissioning purposes) has occurred.

(c) The Company shall from the date occurring 6 months before the date for completion of construction of a Railway spur line specified in its time program for the commencement and completion of construction of that spur line submitted under subclause (5)(c) keep the Minister fully informed as to:

(i) the progress of that construction and its likely completion and commissioning; and

(ii) in respect of it, the likely Railway spur line Operation Date.

(d) The Company shall on the Railway spur line Operation Date in respect of any Railway spur line notify the Minister that the first carriage of iron ore, freight goods or other products as the case may be over such spur line (other than for construction or commissioning purposes) has occurred.”;

(18) in clause 21 by:

(a) inserting “granted under or pursuant to this Agreement or held pursuant to this Agreement” after “licence or other title”;

(b) inserting “or held pursuant hereto” after the subsequent 2 references to “granted hereunder or pursuant hereto”; and

(c) deleting “occupied by the Company” and substituting “the subject of any lease licence easement or other title granted under or pursuant to this Agreement or held pursuant to this Agreement”;

(19) in clause 22(i) by inserting “or held pursuant hereto” after “granted hereunder or pursuant hereto”;

(20) in clause 23 by inserting “or pursuant hereto or held pursuant hereto” after “granted hereunder”;

(21) by deleting clause 30;

(22) in clause 41(A)(1) by:

(a) in paragraph (a):

(a) deleting “31st day of December 1991” and substituting “31 December 2012”;

(b) deleting “31st day of December 1994” and substituting “31 December 2015”; and

(b) in paragraph (b) deleting “31st day of December 1991” and substituting “31 December 2012”.

(23) in clause 41(A)(5) by:

(a) in paragraph (a) deleting “by the company of alternative investments” and substituting “of an alternative project”; and

(b) in paragraph (b):

(i) deleting “the investments” and substituting “, or cause to be implemented, the alternative project”; and

(ii) deleting “those investments” and substituting “that alternative project”;

(24) by inserting after subclause (5) of clause 41A the following new subclause:

“(6) For the purposes of subclause (5) “alternative project” means:

(a) a project to establish and operate within the said State plant for the production of steel;

(b) a project to establish and operate within the said State plant which processes and adds value to minerals mined in the said State; or

(c) any other project within the said State which the Minister approves as providing to the State benefits equivalent to a project to establish and operate plant for the production of steel,

to be undertaken by:

(d) the Company (excluding a project referred to in paragraph (a)): or

(e) a related body corporate or related bodies corporate (within the meaning of the Corporations Act 2001 (Cwth) of the Company solely or in conjunction with the Company; or

(f) a joint venture in which the Company or its related body corporate has a majority participating interest; or

(g) any other third person or persons which the Company and the Minister accept as having the requisite financial and technical capacity and expertise to undertake solely, or in conjunction with the Company, the relevant project referred to in paragraph (a), (b) or (c).”;

(25) by inserting the following sentence at the end of clause 42:

“As a separate independent indemnity the Company will indemnify and keep indemnified the State and its servants agents and contractors in respect of all actions suits claims demands or costs of third parties arising out of or in connection with any use, making available for use or other activities of the Company as referred to in clause 20C.”;

(26) in clause 44 inserting “or held pursuant hereto” after “hereunder or pursuant hereto”;

(27) in clause 46 by inserting “or held pursuant hereto” after “granted hereunder or pursuant hereto”; and

(28) inserting after the Second Schedule the following new schedules:

“ THIRD SCHEDULE

WESTERN AUSTRALIA

IRON ORE (MOUNT BRUCE) AGREEMENT ACT 1972

MINING ACT 1978

MISCELLANEOUS LICENCE FOR A RAILWAY AND OTHER PURPOSES

No. MISCELLANEOUS LICENCE [ ]

WHEREAS by the Agreement (hereinafter called “the Agreement”) ratified by and scheduled to the Iron Ore (Mount Bruce) Agreement Act 1972 , as from time to time added to, varied or amended, the State agreed to grant to [ ] (hereinafter with its successors and permitted assigns called “the Company”) a miscellaneous licence for the construction operation and maintenance of a Railway (as defined in clause 20E(1) of the Agreement and otherwise as provided in the Agreement) and, if applicable, other purposes AND WHEREAS the Company pursuant to clause 20E(6)(a) of the Agreement has made application for the said licence;

NOW in consideration of the rents reserved by and the provisions of the Agreement and in pursuance of the Iron Ore (Mount Bruce) Agreement Act 1972 , as from time to time added to, varied or amended, the Company is hereby granted by this licence authority to conduct on the land the subject of this licence as more particularly delineated and described from time to time in the Schedule hereto all activities (including the taking of stone, sand, clay and gravel, the provision of temporary accommodation facilities for the railway workforce in accordance with the Agreement and, subject to the Rights in Water and Irrigation Act 1914 (WA), the operation of water bores) necessary for the planning, design, construction, commissioning, operation and maintenance on the land the subject of this licence of the Railway and Additional Infrastructure (as defined in clause 20E(1) of the Agreement) and access roads to be located on the land the subject of this licence in accordance with the provisions of the Agreement and proposals approved under the Agreement, for the term of 50 years from the date hereof (subject to the sooner determination of the term upon the determination of the Agreement) and upon and subject to the terms covenants and conditions set out in the Agreement and the Mining Act 1978 as it applies to this licence, and any amendments to the Agreement and the Mining Act 1978 from time to time and to the terms and conditions (if any) now or hereafter endorsed hereon and the payment of rentals in respect of this licence in accordance with clause 20E(6)(a)(i) of the Agreement PROVIDED ALWAYS that this licence shall not be determined or forfeited otherwise than in accordance with the Agreement.

In this licence:

- If the Company be more than one the liability of the Company hereunder shall be joint and several.

- Reference to an Act includes all amendments to that Act for the time being in force and also any Act passed in substitution therefore or in lieu thereof and to the regulations and by-laws of the time being in force thereunder.

- Reference to “the Agreement” means such agreement as from time to time added to, varied or amended.

- The terms “approved proposals”, “Railway”, “Railway Operation Date”, and “Railway spur line” have the meanings given in the Agreement.

ENDORSEMENTS AND CONDITIONS

Endorsements

1. This licence is granted in accordance with proposals submitted on [ ], and approved by the Minister (as defined in the Agreement) on [ ], under the Agreement.

2. The Company is permitted to, in accordance with approved proposals, take stone, sand, clay and gravel from the land the subject of this licence for the construction, operation and maintenance of the Railway (including any Railway spur line) constructed within or approved for construction within the area of land the subject of this licence.

3. Notwithstanding the Mining Act 1978 , no royalty shall be payable under the Mining Act 1978 in respect of stone, sand, clay and gravel which the Company is permitted by the Agreement to obtain from the land the subject of this licence.

4. [Any further endorsement which the Minister for Mines may, consistent with the provisions of the Agreement, determines and thereafter impose in respect of this licence including during the term of the Agreement.]

Conditions

1. (a) Except as provided in paragraph (b), the Company shall within 2 years after the Railway Operation Date surrender in accordance with the provisions of the Mining Act 1978 the area of this licence down to a maximum of 100 metres width or as otherwise approved by the Minister (as defined in the Agreement) for the safe operation of the Railway then constructed or approved for construction under approved proposals.

(b) Paragraph (a) shall not apply to land the subject of this licence that was included in this licence pursuant to clause 20E(6)(h) or clause 20E(6)(i) of the Agreement.

2. The Company shall as soon as possible after the construction of a Railway spur line or of an expansion or extension thereof as the case may be surrender in accordance with the Mining Act 1978 the land the subject of this licence that was included in this licence pursuant to clause 20E(6)(h) of the Agreement for the purpose of such construction down to a maximum of 100 metres in width or as otherwise approved by the Minister (as defined in the Agreement) for the safe operation of that Railway spur line or expansion or extension thereof as the case may be then constructed or approved for construction under approved proposals.

3. [Any further conditions which the Minister for Mines may, consistent with the provisions of the Agreement, determines and thereafter impose in respect of this licence including during the term of the Agreement.]

SCHEDULE

Land description

Locality:

Mineral Field

Area:

DATED at Perth this day of .

MINISTER FOR MINES

FOURTH SCHEDULE

WESTERN AUSTRALIA

IRON ORE (MOUNT BRUCE) AGREEMENT ACT 1972

MINING ACT 1978

MISCELLANEOUS LICENCE FOR A LATERAL ACCESS ROAD

No. MISCELLANEOUS LICENCE [ ]

WHEREAS by the Agreement (hereinafter called “the Agreement”) ratified by and scheduled to the Iron Ore (Mount Bruce) Agreement Act 1972 , as from time to time added to, varied or amended, the State agreed to grant to [ ] (hereinafter with its successors and permitted assigns called “the Company”) a miscellaneous licence for the construction use and maintenance of a Lateral Access Road (as defined in the Agreement) AND WHEREAS the Company pursuant to clause 20E(6)(a)(ii) of the Agreement has made application for the said licence;

NOW in consideration of the rents reserved by and the provisions of the Agreement and in pursuance of the Iron Ore (Mount Bruce) Agreement Act 1972 , as from time to time added to, varied or amended, the Company is hereby authorised to construct use and maintain a road on the land more particularly delineated and described from time to time in the Schedule hereto in accordance with the provisions of the Agreement and proposals approved under the Agreement for a term of 4 years commencing on the date hereof (subject to the sooner determination of the term upon the cessation or determination of the Agreement) and for the purposes and upon and subject to the terms covenants and conditions set out in the Agreement and the Mining Act 1978 as it applies to this licence, and any amendments to the Agreement and the Mining Act 1978 from time to time and to the terms and conditions (if any) now or hereafter endorsed hereon and the payment of rentals in respect of this licence in accordance with clause 20E(6)(a)(ii) of the Agreement PROVIDED ALWAYS that this licence shall not be determined or forfeited otherwise than in accordance with the Agreement.

In this licence:

- If the Company be more than one the liability of the Company hereunder shall be joint and several.

- Reference to “the Agreement” means such agreement as from time to time added to, varied or amended.

ENDORSEMENTS AND CONDITIONS

Endorsements

1. This licence is granted in accordance with proposals submitted on [ ], and approved by the Minister (as defined in the Agreement) on [ ], under the Agreement.

2. [Any further endorsement which the Minister for Mines may, consistent with the provisions of the Agreement, determines and thereafter impose in respect of this licence including during the term of the Agreement.]

Conditions

[Such conditions which the Minister for Mines may, consistent with the provisions of the Agreement, determines and thereafter impose in respect of the licence, including during the term of the Agreement.]

SCHEDULE

Description of land

Locality:

Mineral Field:

Area:

DATED at Perth this day of .

MINISTER FOR MINES

FIFTH SCHEDULE

WESTERN AUSTRALIA

IRON ORE (MOUNT BRUCE) AGREEMENT ACT 1972

MINING ACT 1978

MISCELLANEOUS LICENCE FOR A LATERAL ACCESS ROAD

No. MISCELLANEOUS LICENCE [ ]

WHEREAS by the Agreement (hereinafter called “the Agreement”) ratified by and scheduled to the Iron Ore (Mount Bruce) Agreement Act 1972 , as from time to time added to, varied or amended, the State agreed to grant to [ ] (hereinafter with its successors and permitted assigns called “the Company”) a miscellaneous licence for the construction use and maintenance of a Lateral Access Road (as defined in the Agreement) AND WHEREAS the Company pursuant to clause 20E(6)(b) of the Agreement has made application for the said licence;

NOW in consideration of the rents reserved by and the provisions of the Agreement and in pursuance of the Iron Ore (Mount Bruce) Agreement Act 1972 , as from time to time added to, varied or amended, the Company is hereby authorised to construct use and maintain a road on the land more particularly delineated and described from time to time in the Schedule hereto in accordance with the provisions of the Agreement and proposals approved under the Agreement for a term of 4 years commencing on the date hereof (subject to the sooner determination of the term upon the cessation or determination of the Agreement) and for the purposes and upon and subject to the terms covenants and conditions set out in the Agreement and the Mining Act 1978 as it applies to this licence, and any amendments to the Agreement and the Mining Act 1978 from time to time and to the terms and conditions (if any) now or hereafter endorsed hereon and the payment of rentals in respect of this licence in accordance with clause 20E(6)(b) of the Agreement PROVIDED ALWAYS that this licence shall not be determined or forfeited otherwise than in accordance with the Agreement.

In this licence:

- If the Company be more than one the liability of the Company hereunder shall be joint and several.

- Reference to “the Agreement” means such agreement as from time to time added to, varied or amended.

ENDORSEMENTS AND CONDITIONS

Endorsements

1. This licence is granted in accordance with proposals submitted on [ ], and approved by the Minister (as defined in the Agreement) on [ ], under the Agreement.

Conditions

SCHEDULE

Description of land

Locality:

Mineral Field:

Area:

DATED at Perth this day of .

MINISTER FOR MINES ”

EXECUTED as a deed.

SIGNED by THE HONOURABLE )
COLIN JAMES BARNETT ) [Signature]

in the presence of: )

[Signature]

STEPHEN WOOD

THE COMMON SEAL of MOUNT )
BRUCE MINING PTY. LIMITED ) [C.S.]
ACN 008 714 010 was hereunto affixed by )

authority of the Directors in the presence of: )

[Signature]

ALAN DAVIES

Director

[Signature]

HELEN FERNIHOUGH

Secretary

[Fourth Schedule inserted: No. 61 of 2010 s. 14.]

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[Signature]		ALAN DAVIES
Director
[Signature]		HELEN FERNIHOUGH
Secretary