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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Railway and Port (The Pilbara Infrastructure
Pty Ltd) Agreement Bill 2004
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
Part 2 -- General provisions about the
Agreement
3. Terms used in this Part 3
4. Ratification and authorisation 3
5. State empowered under clause 23 3
6. Effect on other laws 3
Part 3 -- Provisions about access to the
railway constructed under the
Agreement
Division 1 -- Amendment of the Railways (Access)
Act 1998
7. Railways (Access) Act 1998 amended 4
8. Section 3 amended 4
9. Section 11B inserted 4
Division 2 -- Railways (Access) Code 2000
10. Railways (Access) Code 2000 amended 5
11. Section 3 amended 5
12. Section 53 inserted 6
13. Schedule 1 amended 6
14. Schedule 4 amended 6
page i
351--1B
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Bill 2004
Contents
Schedule 1 -- Railway and Port (The
Pilbara Infrastructure Pty Ltd)
Agreement 7
page ii
Western Australia
LEGISLATIVE COUNCIL
Railway and Port (The Pilbara Infrastructure
Pty Ltd) Agreement Bill 2004
A Bill for
An Act --
• to ratify, and authorise the implementation of, an agreement
between the State and The Pilbara Infrastructure Pty Ltd and
Fortescue Metals Group Ltd relating to the development of a
multi-user railway and multi-user port facilities in the Pilbara
region of the State;
• to amend the Railways (Access) Act 1998 and the Railways
(Access) Code 2000,
and for incidental and other purposes.
The Parliament of Western Australia enacts as follows:
page 1
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Bill 2004
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Railway and Port (The Pilbara
Infrastructure Pty Ltd) Agreement Act 2004.
5 2. Commencement
(1) Subject to subsection (2), this Act comes into operation on the
day on which it receives the Royal Assent.
(2) Part 3 comes into operation on a day fixed by proclamation.
page 2
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Bill 2004
General provisions about the Agreement Part 2
s. 3
Part 2 -- General provisions about the Agreement
3. Terms used in this Part
In this Part --
"scheduled agreement" means the agreement of which a copy
5 is set out in Schedule 1;
"the Agreement" means the scheduled agreement or, if it is
varied in accordance with its terms, that agreement as
varied from time to time.
4. Ratification and authorisation
10 (1) The scheduled agreement is ratified.
(2) The implementation of the Agreement is authorised.
5. State empowered under clause 23
The State has power in accordance with clause 23 of the
Agreement.
15 6. Effect on other laws
(1) The Agreement operates and takes effect despite any enactment
or other law.
(2) If a provision of the scheduled agreement expressly or by
implication purports to modify or exclude the application or
20 operation of an enactment for a purpose or in relation to a
person or thing, the application or operation of the enactment is
modified or excluded for that purpose, or in relation to that
person or thing, to the extent or for the period mentioned in the
provision or necessary for the provision to have effect.
25 (3) To avoid doubt, it is declared that the provisions of the Public
Works Act 1902 section 96 do not apply to the railway
constructed pursuant to the Agreement.
(4) This section does not limit or otherwise affect the application of
the Government Agreements Act 1979.
page 3
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Bill 2004
Part 3 Provisions about access to the railway constructed under the
Agreement
Division 1 Amendment of the Railways (Access) Act 1998
s. 7
Part 3 -- Provisions about access to the railway
constructed under the Agreement
Division 1 -- Amendment of the Railways (Access) Act 1998
7. Railways (Access) Act 1998 amended
5 The amendments in this Division are to the Railways (Access)
Act 1998*.
[* Reprinted as at 12 October 2001.
For subsequent amendments see Western Australian
Legislation Information Tables for 2003, Table 1, p. 323.]
10 8. Section 3 amended
Section 3(1) is amended as follows:
(a) by inserting in the appropriate alphabetical position --
"
"TPI Railway and Port Agreement" has the meaning
15 given to the term "the Agreement" in the Railway
and Port (The Pilbara Infrastructure Pty Ltd)
Agreement Act 2004 section 3.
";
(b) in the definition of "railways network" by deleting
20 "and" after paragraph (b) and inserting --
"
(ba) the railway constructed pursuant to the TPI
Railway and Port Agreement; and
".
25 9. Section 11B inserted
After section 11A the following section is inserted --
"
11B. Exception to sections 10 to 11A
(1) Sections 10 to 11A do not apply if, in making an
30 amendment to the Code, the Minister states that the
page 4
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Bill 2004
Provisions about access to the railway constructed under the Part 3
Agreement
Railways (Access) Code 2000 Division 2
s. 10
amendment is made under this section for the purpose
of the application of the Code to the railway
constructed pursuant to the TPI Railway and Port
Agreement.
5 (2) Subsection (1) does not apply to an amendment made
after the expiration of the period of 3 years after the
day of the coming into operation of the Railway and
Port (The Pilbara Infrastructure Pty Ltd) Agreement
Act 2004 section 13.
10 ".
Division 2 -- Railways (Access) Code 2000
10. Railways (Access) Code 2000 amended
The amendments in this Division are to the Railways (Access)
Code 2000*.
15 [* Published in Gazette 8 September 2000, p. 5123-81.
For subsequent amendments see Gazette 23 July 2004.]
11. Section 3 amended
Section 3 is amended as follows:
(a) by inserting in the appropriate alphabetical position --
20 "
"TPI Railway and Port Agreement" has the meaning
given to the term "the Agreement" in the Railway
and Port (The Pilbara Infrastructure Pty Ltd)
Agreement Act 2004 section 3.
25 ";
(b) in the definition of "railways network" by deleting
"and" after paragraph (b) and inserting --
"
(ba) the railway constructed pursuant to the TPI
30 Railway and Port Agreement; and
".
page 5
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Bill 2004
Part 3 Provisions about access to the railway constructed under the
Agreement
Division 2 Railways (Access) Code 2000
s. 12
12. Section 53 inserted
After section 52 the following section is inserted --
"
53. Further transitional provision
5 Until the Regulator publishes in the Gazette notice of a
determination under subparagraph (ia) of clause 3(1)(a)
of Schedule 4, the weighted average cost of capital for
the railway infrastructure referred to in that
subparagraph is such percentage as the Regulator fixes
10 by notice published in the Gazette under this section.
".
13. Schedule 1 amended
After Schedule 1 item 51 the following heading and item are
inserted --
15 "
TPI Railway and Port Agreement Route
52. All tracks that are part of the railway constructed pursuant to
the TPI Railway and Port Agreement.
".
20 14. Schedule 4 amended
Schedule 4 clause 3(1)(a) is amended by deleting "and" after
subparagraph (i) and inserting --
"
(ia) the railway infrastructure associated with
25 that part of the railways network described
in item 52 in that Schedule; and
".
page 6
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Bill 2004
Railway and Port (The Pilbara Infrastructure Pty Ltd) Schedule 1
Agreement
Schedule 1 -- Railway and Port (The Pilbara
Infrastructure Pty Ltd) Agreement
[s. 3]
2004
5 THE STATE OF WESTERN AUSTRALIA
and
THE PILBARA INFRASTRUCTURE PTY LTD
ACN 103 096 340
and
10 FORTESCUE METALS GROUP LTD
ACN 002 594 872
------------------------------------------------------------------------------------------------
RAILWAY AND PORT (THE PILBARA INFRASTRUCTURE PTY
LTD) AGREEMENT
15 ------------------------------------------------------------------------------------------------
20
State Solicitor's Office
Commercial and Conveyancing
25 141 St George's Terrace
Perth WA 6000
Telephone : (08) 9264 1888
page 7
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Bill 2004
Schedule 1 Railway and Port (The Pilbara Infrastructure Pty Ltd)
Agreement
THIS AGREEMENT is made this 10th day of November 2004
BETWEEN
THE HONOURABLE GEOFFREY IAN GALLOP, B.Ec., MA., MPhil.,
DPhil., M.L.A., Premier of the State of Western Australia, acting for and on
5 behalf of the said State and its instrumentalities from time to time (hereinafter
called "the State") of the first part,
THE PILBARA INFRASTRUCTURE PTY LTD ACN 103 096 340 of
Level 1, 46-50 Kings Park Road, West Perth, Western Australia (hereinafter
called "the Company" in which term shall be included its successors and
10 permitted assigns) of the second part, and
FORTESCUE METALS GROUP LTD ACN 002 594 872 of Level 1,
46-50 Kings Park Road, West Perth, Western Australia (hereinafter called
"the Guarantor") of the third part.
WHEREAS:
15 A. The Guarantor is investigating the feasibility of developing in the vicinity
of the Chichester Ranges in the Pilbara region of Western Australia a
project for the mining and sale, either within Australia or by export to
overseas purchasers, of iron ore from the said region and is negotiating
with the State a separate agreement to facilitate that mining development.
20 B. The Guarantor is also proceeding with detailed feasibility studies for the
Company to construct and operate a multi-user railway from in the
vicinity of the Chichester Ranges to multi-user port facilities within the
Port of Port Hedland, or to a location near the boundary of that port for
delivery to such port facilities by multi-user conveyor, and such multi-
25 user port facilities, for the shipping and export of iron ore products,
freight goods and other products.
C. The Company proposes that the railway, any facilities outside the port for
the transfer of iron ore products, freight goods and other products to the
port facilities, and the port facilities which are all to be constructed under
30 this Agreement will operate under open third party access arrangements
referred to in this Agreement.
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Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Bill 2004
Railway and Port (The Pilbara Infrastructure Pty Ltd) Schedule 1
Agreement
D. The State for the purpose of promoting development of the iron ore
industry and employment opportunity generally in Western Australia, and
for the purposes of promoting the development of multi-user
infrastructure facilities in the Pilbara region of Western Australia, has
5 agreed to assist the development of the above multi-user facilities upon
and subject to the terms of this Agreement.
NOW THIS AGREEMENT WITNESSES:
Definitions
1. In this Agreement subject to the context:
10 "Access Act" means the Railways (Access) Act 1998;
"Access Code" means the Railways (Access) Code 2000;
"Additional Infrastructure" means a conveyor, train unloading and other
infrastructure necessary for the transport of iron ore products, freight
goods or other products from the SRL Railway to the Company's Port
15 Facilities within the Port;
"advise", "apply", "approve", "approval", "consent", "certify",
"direct", "notice", "notify", "request", or "require", means advise,
apply, approve, approval, consent, certify, direct, notice, notify,
request or require in writing as the case may be and any inflexion or
20 derivation of any of those words has a corresponding meaning;
"approved proposal" means a proposal approved or deemed to be
approved under this Agreement;
"Commonwealth" means the Commonwealth of Australia and includes
the Government for the time being thereof;
25 "EP Act" means the Environmental Protection Act 1986;
"Government agreement" has the meaning given in the Government
Agreements Act 1979;
"iron ore products" includes iron ore of all grades and all products from
the processing of iron ore;
30 "LAA" means the Land Administration Act 1997;
"Lateral Access Roads" has the meaning given in clause 7(1);
"Lateral Access Road Licence" means a miscellaneous licence granted
pursuant to clause 14(1)(b) and according to the requirements of the
page 9
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Bill 2004
Schedule 1 Railway and Port (The Pilbara Infrastructure Pty Ltd)
Agreement
context describes the area of land from time to time the subject of that
licence;
"laws relating to native title" means laws applicable from time to time in
Western Australia in respect of native title and includes the Native
5 Title Act 1993 (Commonwealth);
"local government" means a local government established under the
Local Government Act 1995;
"Mining Act" means the Mining Act 1978;
"Mining Agreement" means the agreement intended to be made in
10 accordance with clause 38 for the purposes of assisting the
establishment of iron ore mining operations in the vicinity of the
Chichester Ranges;
"Minister" means the Minister in the Government of the State for the time
being responsible for the administration of the Act to ratify this
15 Agreement and pending the passing of that Act means the Minister for
the time being designated in a notice from the State to the Company
and includes the successors in office of the Minister;
"Minister for Mines" means the Minister in the Government of the State
for the time being responsible for the administration of the Mining
20 Act;
"month" means calendar month;
"person" or "persons" includes bodies corporate;
"Pilbara Iron Ore Railways" means each railway constructed under a
Government agreement which is located wholly or substantially in one
25 or more of the local government districts of Ashburton, East Pilbara,
Port Hedland and Roebourne at the date of this Agreement;
"Port" means the Port of Port Hedland;
"Port Additional Infrastructure" means that part of the Additional
Infrastructure (if any) which is or is to be located (as the case may be)
30 in the Port;
"Port Additional Infrastructure Area" means that part of the Port the
subject of a subsisting agreement pursuant to clause 8(1)(b)(i);
"Port Additional Infrastructure Licence" means the licence granted to
the Company under the Port Authorities Act as referred to in clause
35 14(7)(b) and according to the requirements of the context describes
the area from time to time the subject of that licence;
page 10
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Bill 2004
Railway and Port (The Pilbara Infrastructure Pty Ltd) Schedule 1
Agreement
"Port Authority" means the Port Hedland Port Authority, being the body
corporate established for the Port under the Port Authorities Act;
"Port Authorities Act" means the Port Authorities Act 1999;
"Port Facilities" means facilities (excluding the Port Railway and
5 Additional Infrastructure (if any)) necessary for the construction,
operation and maintenance of a ship loading terminal, which may
include train unloading, conveyor, stockpiling, ore blending, screening
and loading facilities and a wharf;
"Port Facilities Area" means that part of the Port the subject of a
10 subsisting agreement pursuant to clause 8(1)(a);
"Port Lease" means the lease granted to the Company under the Port
Authorities Act as referred to in clause 14(7)(a) and according to the
requirements of the context describes the area from time to time the
subject of that lease;
15 "Port Railway" means that part of the Railway (if any) which is or is to be
(as the case may be) located in the Port;
"Port Railway Area" means that part of the Port the subject of a
subsisting agreement pursuant to clause 8(1)(c);
"Port Railway Licence" means the licence granted to the Company under
20 the Port Authorities Act as referred to in clause 14(7)(c) and according
to the requirements of the context describes the area from time to time
the subject of that licence;
"Private Roads" means Lateral Access Roads and the Company's access
roads within the Railway Corridor;
25 "Project" means the construction and operation under this Agreement of
the Railway, access roads, the Lateral Access Roads, the Additional
Infrastructure (if any) and Port Facilities each approved pursuant to
proposals submitted under clause 10, the provision of access (as
defined in clause 16) to the Railway, the provision of rail transport
30 services over the Railway and access (as defined in clause 18) to the
Port Facilities and the Additional Infrastructure (if any);
"Rail Safety Act" means the Rail Safety Act 1998;
"Railway" means a standard gauge heavy haul railway initially from the
mining area to be developed under the Mining Agreement in the
35 vicinity of the Chichester Ranges in the Pilbara region of the said
State to the Company's Port Facilities within the Port or to a location
near the boundary of the Port together with all railway track,
page 11
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Bill 2004
Schedule 1 Railway and Port (The Pilbara Infrastructure Pty Ltd)
Agreement
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,
5 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
10 subject of approved proposals under clauses 10 and 11 of this
Agreement and includes any extension or enlargement thereof which
is the subject of approved proposals under clauses 12 or 13;
"Railway Corridor" means, prior to the grant of the Special Railway
Licence, the land for the route of the SRL Railway, access roads
15 (other than Lateral Access Roads) and such of the Additional
Infrastructure (if any) which is to be located outside the Port and
which is the subject of a subsisting agreement pursuant to clause 7(1)
and upon the grant of the Special Railway Licence the land the subject
of the Special Railway Licence less any portion of the Railway
20 Corridor surrendered by the Company from time to time under the
terms of the Special Railway Licence;
"Railway Operation Date" means the date of the first carriage of iron ore
products, freight goods or other products over the Railway (other than
for construction or commissioning purposes);
25 "said State" means the State of Western Australia;
"SRL Railway" means that part of the Railway which is or is to be (as the
case may be) located outside the Port;
"Special Railway Licence" means the miscellaneous licence for railway
and, if applicable, other purposes, granted to the Company pursuant to
30 clause 14(1)(a) and according to the requirements of the context
describes the area of land from time to time the subject of that licence;
"this Agreement", "hereof" and "hereunder" refer to this Agreement,
whether in its original form or as from time to time added to, varied or
amended; and
35 "Trade Practices Act" means the Trade Practices Act 1974
(Commonwealth).
page 12
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Bill 2004
Railway and Port (The Pilbara Infrastructure Pty Ltd) Schedule 1
Agreement
Interpretation
2. (1) In this Agreement:
(a) monetary references are references to Australian currency
unless otherwise specifically expressed;
5 (b) power given under any clause other than clause 30 to extend
any period or date shall be without prejudice to the power of the
Minister under clause 30;
(c) clause headings do not affect interpretation or construction;
(d) words in the singular shall include the plural and words in the
10 plural shall include the singular according to the requirements
of the context;
(e) one gender includes the other genders;
(f) a covenant or agreement by more than one person binds, and is
enforceable against, those persons jointly and each of them
15 severally;
(g) reference to an Act includes the amendments to that Act for the
time being in force and also any Act passed in substitution
therefor or in lieu thereof and the regulations for the time being
in force thereunder;
20 (h) reference to the Access Code includes the amendments to that
code for the time being in force and also any code established
or made in substitution therefor or in lieu thereof;
(i) reference in this Agreement to any other document includes
that document as from time to time added to, varied or amended
25 and notwithstanding any change in the identity of the parties;
(j) reference to a clause or schedule is a reference to a clause or
schedule to this Agreement, and a reference to a subclause or
paragraph is a reference to the subclause of the clause or
paragraph of the clause or subclause as the case may be in, or in
30 relation to, which the reference is made;
(k) "including" means "including, but not limited to"; and
(l) reference to a "person" includes a body corporate.
(2) Nothing in this Agreement shall be construed to exempt the State or
the Company from compliance with or to require the State or the
35 Company to do anything contrary to any law relating to native title or
any lawful obligation or requirement imposed on the State or the
page 13
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Bill 2004
Schedule 1 Railway and Port (The Pilbara Infrastructure Pty Ltd)
Agreement
Company as the case may be pursuant to any law relating to native
title.
(3) Nothing in this Agreement shall be construed to exempt the Company
from compliance with any requirement in connection with the
5 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.
Ratification and operation
3. (1) The State shall introduce and sponsor a Bill in the State Parliament of
10 Western Australia prior to 31 December 2004 or such later date as
may be agreed between the parties hereto to ratify this Agreement.
The State shall endeavour to secure the timely passage of such Bill as
an Act.
(2) The provisions of this Agreement other than this clause and clauses 1
15 and 2 will not come into operation until the Bill referred to in
subclause (1) has been passed by the State Parliament of Western
Australia and comes into operation as an Act and the Mining
Agreement is signed by all of the parties to it.
(3) If by 31 December 2005 the said Bill has not commenced to operate
20 as an Act or the Mining Agreement has not been signed by all of the
parties to it then, unless the parties hereto otherwise agree, this
Agreement will then cease and determine and no party hereto will
have any claim against any other party hereto with respect to any
matter or thing arising out of, done, performed, or omitted to be done
25 or performed under this Agreement.
(4) On the later of:
(a) the date on which the said Bill commences to operate as an Act;
and
(b) the date on which the Mining Agreement is signed by all of the
30 parties to it,
all the provisions of this Agreement will operate and take effect
despite any enactment or other law.
page 14
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Bill 2004
Railway and Port (The Pilbara Infrastructure Pty Ltd) Schedule 1
Agreement
Initial obligations of the State
4. The State shall subject to the adequate protection of the environment
(including flora and fauna) and the land affected (including
improvements thereon), and subject to the Company furnishing to the
5 Minister the written consents referred to in clause 7(3)(a), arrange for
the issue of requisite authority under the LAA to allow the Company
to enter upon Crown land as defined in the LAA (including, if
applicable, land the subject of a pastoral lease, but excluding land
within the Port) with plant and equipment to carry out all works to the
10 extent reasonably necessary for the purposes of undertaking its
obligations under clause 5(1).
Initial obligations of the Company
5. (1) The Company shall continue field and office geological, geophysical,
geotechnical, engineering and environmental investigations and
15 studies and marketing and finance studies and other matters necessary
for the purposes of clauses 7 and 8 and to enable it to finalise and to
submit to the Minister the detailed proposals referred to in clause 10.
(2) The Company shall keep the State fully informed in writing at
quarterly intervals from the later of the dates specified in clause 3(4)
20 as to the progress and results of its operations under subclause (1) and
supply to the Minister such information in relation thereto as the
Minister may request from time to time.
(3) The Company shall co-operate with the State and consult with the
representatives or officers of the State regarding matters referred to in
25 subclauses (1) and (2) and any other relevant studies in relation to
those subclauses that the Minister may wish the Company to
undertake.
Aboriginal Heritage Act 1972
6. For the purposes of this Agreement the Aboriginal Heritage Act 1972
30 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
35 time to time comprising "the Company" in their capacity as
page 15
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Bill 2004
Schedule 1 Railway and Port (The Pilbara Infrastructure Pty Ltd)
Agreement
such under the agreement made on 10 November 2004 between
The Honourable Geoffrey Ian Gallop, Premier of the State of
Western Australia acting for and on behalf of the said State and
its instrumentalities from time to time, The Pilbara
5 Infrastructure Pty Ltd ACN 103 096 340 and Fortescue Metals
Group Ltd ACN 002 594 872, in relation to the use or proposed
use of land pursuant to that agreement after and in accordance
with approved proposals under that agreement and in relation to
the use of that land before any such approval of proposals
10 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
15 "owner of any land";
(c) the insertion in section 18(3) of the words "or the Company as
the case may be" after the words "the owner";
(d) the insertion of the following sentences at the end of
section 18(3):
20 "
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
25 case may be under the abovementioned agreement of all of the
Company's submitted proposals thereunder for the Project (as
defined in 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
30 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".
35 The Company acknowledges that nothing in this clause 6 nor the
granting of any consents under section 18 of the Aboriginal Heritage
Act 1972 will constitute or is to be construed as constituting the
approval of any proposals submitted or to be submitted by the
page 16
Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Bill 2004
Railway and Port (The Pilbara Infrastructure Pty Ltd) Schedule 1
Agreement
Company under this Agreement or as the grant or promise of land
tenure for the purposes of this Agreement.
Railway Corridor
7. (1) As soon as practicable during its studies under clause 5, and from time
5 to time during those studies as required by either the Company or the
State, the Company shall consult with the Minister to seek the
agreement of the Minister as to:
(a) where the SRL Railway will begin and end;
(b) a route for the SRL Railway, access roads to be within the
10 Railway Corridor and Additional Infrastructure (if any) which
is to be located outside the Port and the land required for that
route;
(c) if Additional Infrastructure is to be located outside the Port, the
nature and capacity of such Additional Infrastructure; and
15 (d) the routes of, and the land required for, roads outside the
Railway Corridor for access to it to construct the SRL 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
20 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 SRL
Railway, the access roads which are to be within the Railway Corridor
and the relevant Additional Infrastructure (if any) along the centreline
25 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. The provisions of clause 35 shall not apply to this subclause.
(2) If the date by which the Company must submit detailed proposals
30 under clause 10(1) is extended or varied by the Minister pursuant to
clause 30, any agreement made pursuant to subclause (1) 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.
35 (3) The Company acknowledges that it shall be responsible for liaising
with every title holder in respect of the land affected and for obtaining
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Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Bill 2004
Schedule 1 Railway and Port (The Pilbara Infrastructure Pty Ltd)
Agreement
in a form and substance acceptable to the Minister all consents of each
such title holder to, and all statutory consents required in respect of
the land affected for:
(a) the issue of requisite authority under the LAA pursuant to
5 clause 4 and the undertaking of the matters referred to in
clause 5(1);
(b) the grant of the Special Railway Licence for the construction,
operation and maintenance within the Railway Corridor of the
SRL Railway, access roads to be within the Railway Corridor
10 and Additional Infrastructure (if any) to be located outside the
Port; and
(c) 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 clause 7(1),
15 in accordance with this Agreement. For the purposes of this
subclause (3), "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 or petroleum right (as defined in the LAA) in respect
of any part of the affected land, a person who holds a lease or licence
20 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
25 any part of the affected land is vested, immediately before in respect
of paragraph (a) the grant of the authority referred to therein and in
respect of paragraphs (b) and (c) the provision of such consents to the
Minister as referred to in clause 10(5)(b).
(4) The parties acknowledge that, at the date of this Agreement, due to
30 possible constraints on availability of land within the Port for the
Railway, it is not settled whether the Railway will continue into the
Port or whether it will cease at a point outside the Port, in which case
the Company intends to construct a conveyor, train unloading and
other infrastructure in order to transport iron ore products, freight
35 goods or other products as the case may be from the Railway to within
the Port. It is the preference of the State and the Company that the
Railway continue into the Port and the Company shall proceed on that
basis if there is land available within the Port for the Railway.
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Port Facilities
8. (1) As soon as practicable during its studies under clause 5, and from time
to time during those studies as required by either the Company or the
State, the Company shall consult with the Minister to seek the
5 agreement of the Minister as to:
(a) an area of the Port to be the subject of the Port Lease and in
which the Port Facilities are to be constructed;
(b) if there is to be any Port Additional Infrastructure:
(i) an area of the Port (which may be or include part of the
10 Port Facilities Area) to be the subject of the Port
Additional Infrastructure Licence and in which the Port
Additional Infrastructure is to be constructed; and
(ii) the nature and characteristics of the Port Additional
Infrastructure, including the capacity of the Port
15 Additional Infrastructure;
(c) if any part of the Railway is to be in the Port, an area of the Port
to be the subject of the Port Railway Licence and in which that
part of the Railway and access roads to be located within the
Port Railway Area are to be constructed; and
20 (d) the nature and characteristics of the Port Facilities, including
the capacity of the Port Facilities.
(2) If the date by which the Company must submit detailed proposals
under clause 10(1) is extended or varied by the Minister pursuant to
clause 30, any agreement made pursuant to subclause (1) before such
25 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.
(3) The provisions of clause 35 shall not apply to this clause.
Community development plan
30 9. (1) In this clause, the term "community and social benefits" includes:
(a) training and guaranteed employment for indigenous and non-
indigenous persons living in the Pilbara region of the said State;
(b) regional development and local procurement of goods and
services;
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Agreement
(c) contribution to community services and facilities; and
(d) a regionally based workforce.
(2) The Company acknowledges the need for community and social
benefits flowing from this Agreement.
5 (3) The Company agrees that, prior to the time at which it submits any
proposals pursuant to clause 10, and, if required by the Minister, prior
to the time at which it submits any additional proposals pursuant to
clause 12 or 13, it shall:
(a) consult with the relevant local government or local
10 governments with respect to the need for community and social
benefits in relation to the developments proposed;
(b) following such consultation, prepare a plan which describes the
Company's proposed strategies for achieving community and
social benefits in connection with the developments proposed,
15 and such plan shall include a process for regular consultation by
the Company with the relevant local government or local
governments in respect of the strategies; and
(c) submit to the Minister the plan prepared pursuant to
subclause (3)(b) and confer with the Minister in respect of the
20 plan.
(4) The Minister shall within one month after receipt of a plan submitted
under subclause (3)(c), either notify the Company that the Minister
approves the plan as submitted or notify the Company of changes
which the Minister requires be made to the plan. If the Company is
25 unwilling to accept the changes which the Minister requires it shall
notify the Minister to that effect and either party may refer to
arbitration hereunder the question of the reasonableness of the
changes required by the Minister.
(5) The effect of an award made on an arbitration pursuant to
30 subclause (4) shall be that the plan submitted by the Company
pursuant to subclause (3)(c) shall, with such changes required by the
Minister under subclause (4) as the arbitrator determines to be
reasonable (with or without modification by the arbitrator), be deemed
to be the plan approved by the Minister under this clause.
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(6) During the continuance of this Agreement, the Company shall
implement the plan approved or deemed to be approved by the
Minister under this clause.
(7) The Company shall report to the Minister about the results of its
5 periodic ongoing consultation with the relevant local government or
local governments in accordance with the plan approved or deemed to
be approved by the Minister under this clause and as soon as
practicable after each such consultation takes place.
(8) At the request of either of them made at any time and from time to
10 time, the Minister and the Company shall confer as to any
amendments desired to any plan approved or deemed to be approved
by the Minister under this clause and may agree to amendment of the
plan or adoption of a new plan. Any such amended plan or new plan
will be deemed to be the plan approved by the Minister under this
15 clause.
Company to submit proposals
10. (1) 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 clauses 7(1) and 8(1) and approval
20 of a plan as referred to in clause 9, submit to the Minister by
31 December 2005 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
25 any works are to be situated) with respect to undertaking of the
Project, 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:
30 (a) the SRL Railway including fencing (if any) and crossing places
within the Railway Corridor and the matters referred to in
subclause (2)(a);
(b) Port Facilities within the Port Facilities Area;
(c) if any part of the Railway is to be in the Port, the Port Railway
35 within the Port Railway Area including fencing (if any) and
crossing places within the Port Railway Area and the matters
referred to in subclause (2)(a);
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(d) Additional Infrastructure (if any) both within the Railway
Corridor and the Port Additional Infrastructure Area;
(e) temporary accommodation and ancillary facilities for the
railway workforce on, or in the vicinity of, the Railway
5 Corridor and housing and other appropriate facilities elsewhere
for the Company's workforce;
(f) water supply;
(g) energy supplies;
(h) access roads within the Railway Corridor, the Port Railway
10 Area and the Port Additional Infrastructure Area (as the case
may be) and Lateral Access Roads within the routes for those
roads agreed between the Minister and the Company pursuant
to clause 7(1) or 8(1) (as the case may be);
(i) any other works, services or facilities desired by the Company;
15 and
(j) 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.
20 (2) (a) Proposals as to the matters specified in subclause (1)(a) and
(1)(c) must provide for the Railway to have:
(i) a capacity which enables the transport of not less than
70 million tonnes of iron ore products per annum over the
Railway; and
25 (ii) either without modifications or with modifications which
are technically feasible at a reasonable cost, such
characteristics as enable:
(A) rail operations of the kind carried out on the
Pilbara Iron Ore Railways to be carried out on the
30 Railway, and vice versa; and
(B) connection of the Railway to any one or more of
the Pilbara Iron Ore Railways.
(b) Proposals pursuant to subclause (1) must specify the matters
agreed for the purpose pursuant to clauses 7(1) and 8(1) and
35 must not be contrary to or inconsistent with such agreed
matters.
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(3) Each of the proposals pursuant to subclause (1) 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 paragraphs (a) to (j) of subclause (1), and until all of its
5 proposals under this clause 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 clause in respect of the subject matter of the
withdrawn proposal.
10 (4) 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 clause), submit to the
Minister details of any services (including any elements of the project
investigations, design and management) and any works, materials,
15 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.
20 (5) At the time when the Company submits the last of the said proposals
pursuant to this clause, it shall:
(a) furnish to the Minister's reasonable satisfaction evidence of:
(i) the financial capability of the Company to undertake the
operations to which the said proposals refer;
25 (ii) 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;
(iii) all arrangements and agreements it has at that time made
or proposes to make in respect of access (as defined in
30 clause 16) to the Railway or in respect of transport of any
iron ore products, freight goods or other products over
the Railway, and in respect of access (as defined in clause
18) to the Port Facilities and the Additional Infrastructure
(if any); and
35 (iv) the readiness of the Company to embark upon and
proceed to carry out the operations referred to in the said
proposals; and
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(b) furnish to the Minister the written consents referred to in
clause 7(3)(b) and 7(3)(c).
Consideration of proposals
11. (1) In respect of each proposal pursuant to clause 10(1) the Minister shall
5 subject to the EP Act:
(a) approve of the proposal without qualification or reservation; or
(b) 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 10(1)
10 not covered by the said proposal or until such time as
clause 10(5) has been complied with by the Company; or
(c) 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 (having
15 regard to the circumstances including the overall development
of and the use by others as well as the Company of all or any of
the facilities proposed to be provided) thinks reasonable and in
such a case the Minister shall disclose his reasons for such
conditions,
20 PROVIDED ALWAYS that where implementation of any proposals
hereunder have been approved pursuant to the EP Act subject to
conditions or procedures, any approval or decision of the Minister
under this clause shall if the case so requires incorporate a
requirement that the Company make such alterations to the proposals
25 as may be necessary to make them accord with those conditions or
procedures.
(2) The Minister shall within 2 months after the later of:
(a) receipt of proposals pursuant to clause 10(1);
(b) where the proposals are to be assessed under Part IV of the
30 EP Act, service on the Minister of an authority under
section 45(7) of the EP Act; and
(c) where a proposal will or may require the State to do any act
which affects any native title rights and interests, completion of
all processes required by laws relating to native title to be
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undertaken by the State before that act may be done by the
State,
give notice to the Company of his decision in respect to the proposals.
(3) If the decision of the Minister is as mentioned in either of
5 paragraphs (b) or (c) 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
10 paragraphs (b) or (c) 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
15 the Minister pursuant to the proviso to subclause (1) shall not be
referable to arbitration hereunder.
(5) An award made on an arbitration pursuant to subclause (4) shall have
force and effect as follows:
(a) if by the award the dispute is decided against the Company then
20 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; or
(b) if by the award the dispute is decided in favour of the Company
25 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) Notwithstanding any provision of this Agreement (other than
clause 30) or that any matter required to be agreed pursuant to
30 clauses 7(1) and 8(1) has not been agreed, or that the plan required to
be approved pursuant to clause 9 has not been approved, or that under
this clause any proposals of the Company are approved by the
Minister or determined by arbitration award, unless each and every
proposal and matter required pursuant to clause 10 is so approved or
35 determined by 31 December 2006 then the Minister may give to the
Company 12 months notice of intention to determine this Agreement
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and unless before the expiration of the said 12 months period all the
detailed proposals and matters are so approved or determined this
Agreement shall on the expiration of that period cease and determine
subject however to the provisions of clause 32.
5 (7) Subject to and in accordance with the EP Act and any approvals and
licences required under that Act the Company shall implement the
approved proposals in accordance with the terms thereof so that the
Railway, the Lateral Access Roads, the Additional Infrastructure (if
any) and the Port Facilities are constructed and operational within 3
10 years of the approval of the proposals.
(8) Notwithstanding clause 28, the Minister may during the
implementation of approved proposals approve variations to those
proposals.
(9) The Minister may extend the periods set forth in clause 10(1) and
15 subclause (7) of this clause (in addition to any extension granted under
clauses 29 and 30) upon request of the Company for such reasonable
period or periods as the Minister considers appropriate to enable the
Company to comply with laws relating to native title.
Additional proposals
20 12. (1) Subject to clause 13, if the Company at any time during the
continuance of this Agreement desires to construct outside the Port a
spur line connecting to the SRL Railway or desires to significantly
modify, expand or otherwise vary its activities that are the subject of
this Agreement and that may be carried on by it pursuant to this
25 Agreement (other than by the construction of a spur line) beyond
those activities specified in any approved proposals 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 such
matters mentioned in clause 10(1) as are relevant or as the Minister
30 otherwise requires).
(2) If the notice relates to a spur line, the provisions of clauses 4, 5, 7 and
9 shall mutatis mutandis apply prior to submission of detailed
proposals in respect thereof.
(3) Subject to the EP Act, the provisions of this Agreement and agreement
35 at that time subsisting in respect of any matters required to be agreed
pursuant to clause 7(1) as referred to in subclause (2), and approval of
a plan as referred to in clause 9, the Company shall submit to the
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Minister within a reasonable timeframe, as determined by the Minister
after receipt of the notice referred to in subclause (1), detailed
proposals in respect of the proposed construction of such spur line or
the proposed modification, expansion or variation of its activities
5 including such of the matters mentioned in clause 10(1) as the
Minister may require.
(4) The provisions of clause 10 (other than subclause 5(a)) and clause 11
(other than subclauses (5)(a), (6) and (7) of clause 11) shall mutatis
mutandis apply to detailed proposals submitted pursuant to this clause
10 with the proviso that the Company may withdraw such proposals at
any time before approval thereof or, where any decision of the
Minister in respect thereof is referred to arbitration, within 3 months
after the award by notice to the Minister that it shall not be proceeding
with the same. Subject to and in accordance with the EP Act and any
15 approvals or licences required under that Act, the Company shall
implement approved proposals pursuant to this clause in accordance
with the terms thereof.
Expansion of Project within the Port
13. (1) The Company shall not:
20 (a) increase the capacity of Port Facilities or of Port Additional
Infrastructure or of that part of the Railway within the Port as
the case may be above that specified in approved proposals; or
(b) change the nature and characteristics of Port Facilities or Port
Additional Infrastructure from that specified in approved
25 proposals; or
(c) otherwise significantly modify, expand or vary its activities
within the Port that are the subject of this Agreement and that
may be carried on by it pursuant to this Agreement beyond
those specified in approved proposals,
30 without the prior consent of the Minister and approval of detailed
proposals in regard thereto in accordance with this clause.
(2) (a) If the Company desires to do anything mentioned in subclause
(1) it shall give notice thereof to the Minister and furnish to the
Minister with that notice an outline of its proposals in respect
35 thereto (including such matters mentioned in paragraphs (e) -
(g), (i) and (j) of clause 10(1) or as the Minister otherwise
requires).
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(b) The Minister shall within one month of a notice under
paragraph (a) of this subclause advise the Company whether or
not he approves in principle the proposed action by the
Company so notified. An approval by the Minister under this
5 subclause may be given subject to conditions including
conditions as to the matters referred to in clauses 8(1)(b)(ii) and
8(1)(d) provided that any such condition shall not without the
consent of the Company require variations of:
(i) the term of the Special Railway Licence, Lateral Access
10 Road Licences, the Port Lease, the Port Infrastructure
Licence or the Port Railway Licence;
(ii) the rentals payable under any lease or licence granted
under or pursuant to this Agreement; or
(iii) this Agreement.
15 The Minister shall afford the Company full opportunity to
consult with him in respect of any decision of the Minister
under this subclause.
(3) (a) If the Minister approves in principle the proposed action of the
Company the Company shall within 18 months or such longer
20 period as the Minister may from time to time allow of that
approval submit to the Minister detailed proposals in respect
thereof in accordance with any conditions of that approval,
otherwise that approval shall lapse.
(b) The Company acknowledges that the provisions of clause 9
25 must be complied with before the Company submits its detailed
proposals and that notwithstanding the plan required to be
approved pursuant to clause 9 has not been approved, the
Minister's in-principle approval will lapse as provided in
paragraph (a) if the Company's detailed proposals are not
30 submitted within the time required by that paragraph.
(c) The provisions of clause 12(4) shall apply to detailed proposals
submitted pursuant to this subclause.
(4) On and after approval or determination of any such proposal pursuant
to subclause (3)(c) the provisions of this clause shall apply mutatis
35 mutandis to any subsequent desires of the Company referred to in
subclause (1).
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Grant of Licences and Lease
14. (1) 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 clause 10(1) have been approved or
5 deemed to be approved and the Company has complied with the
provisions of clause 10(5), the State notwithstanding the Mining Act
shall cause to be granted to the Company:
(a) a miscellaneous licence to conduct within the Railway Corridor
and in accordance with its approved proposals all activities
10 (excluding the taking of stone, sand, clay and gravel) necessary
for the planning, design, construction, commissioning,
operation and maintenance within the Railway Corridor of the
SRL Railway, access roads and such of the Additional
Infrastructure (if any) which is to be located outside the Port
15 ("the Special Railway Licence") such licence to be granted
under and subject to, except as otherwise provided in this
Agreement, the Mining Act in the form of Schedule 1 hereto
and subject to such terms and conditions as the Minister for
Mines may from time to time consider reasonable and at a
20 rental calculated in accordance with the Mining Act:
(i) prior to the Railway Operation Date, as if the width of the
Railway Corridor were 100 metres; and
(ii) on and from the Railway Operation Date, at the rentals
from time to time prescribed under the Mining Act; and
25 (b) 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 clause 7(1) (each a
"Lateral Access Road Licence"), each such licence to be
granted under and subject to, except as otherwise provided in
30 this Agreement, the Mining Act in the form of Schedule 2
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.
(2) Notwithstanding the Mining Act, the term of the Special Railway
35 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.
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(3) Notwithstanding the Mining Act, 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.
5 (4) Notwithstanding the Mining Act, 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.
10 (5) For the purposes of this Agreement and without limiting the operation
of subclauses (1) to (4) above and subclause (6), the application of the
Mining Act and the regulations made thereunder are specifically
modified;
(a) in section 91(1) by:
15 (i) deleting "the mining registrar or the warden, in
accordance with section 42 (as read with section 92)" and
substituting "the Minister";
(ii) deleting "any person" and substituting "the Company"
(as defined in the agreement made on 10 November 2004
20 between The Honourable Geoffrey Ian Gallop, Premier
of the State of Western Australia acting for and on behalf
of the said State and its instrumentalities from time to
time, The Pilbara Infrastructure Pty Ltd
ACN 103 096 340 and Fortescue Metals Group Ltd
25 ACN 002 594 872)";
(iii) deleting "for any one or more of the purposes prescribed"
and substituting "for the purpose specified in
clause 14(1)(a), or for the purpose specified in
clause 14(1)(b), of the agreement made on
30 10 November 2004 between The Honourable Geoffrey
Ian Gallop, Premier of the State of Western Australia
acting for and on behalf of the said State and its
instrumentalities from time to time, The Pilbara
Infrastructure Pty Ltd ACN 103 096 340 and Fortescue
35 Metals Group Ltd ACN 002 594 872";
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(b) in section 91(3)(a), by deleting "prescribed form" and
substituting "form required by the agreement made on
10 November 2004 between The Honourable Geoffrey Ian
Gallop, Premier of the State of Western Australia acting for and
5 on behalf of the said State and its instrumentalities from time to
time, The Pilbara Infrastructure Pty Ltd ACN 103 096 340 and
Fortescue Metals Group Ltd ACN 002 594 872";
(c) by deleting sections 91(6), 91(9), 91(10) and 91B;
(d) in section 92, by deleting "Sections 41, 42, 44, 46, 46A, 47 and
10 52(1a) 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";
(e) by deleting the full stop at the end of the section 94(1) and
15 inserting, "except to the extent otherwise provided in, or to the
extent that such terms and conditions are inconsistent with, the
agreement made on 10 November 2004 between
The Honourable Geoffrey Ian Gallop, Premier of the State of
Western Australia acting for and on behalf of the said State and
20 its instrumentalities from time to time, The Pilbara
Infrastructure Pty Ltd ACN 103 096 340 and Fortescue Metals
Group Ltd ACN 002 594 872.";
(f) by deleting sections 94(2), (3) and (4);
(g) in section 96(1), by inserting after "miscellaneous licence" the
25 words "(not being a miscellaneous licence granted pursuant to
the agreement made on 10 November 2004 between The
Honourable Geoffrey Ian Gallop, Premier of the State of
Western Australia acting for and on behalf of the said State and
its instrumentalities from time to time, The Pilbara
30 Infrastructure Pty Ltd ACN 103 096 340 and Fortescue Metals
Group Ltd ACN 002 594 872)";
(h) by deleting mining regulations 37(2), 37(3), 42 and 42A; and
(i) by inserting at the beginning of mining regulations 41(c) and (f)
the words "subject to the agreement made on
35 10 November 2004 between The Honourable Geoffrey Ian
Gallop, Premier of the State of Western Australia acting for and
on behalf of the said State and its instrumentalities from time to
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time, The Pilbara Infrastructure Pty Ltd ACN 103 096 340 and
Fortescue Metals Group Ltd ACN 002 594 872.".
(6) If any spur line to the SRL Railway is the subject of additional
proposals approved in accordance with clause 12, the Minister shall
5 include such spur line in the Special Railway Licence by endorsement.
(7) On application 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 clause 10(1) have been approved or deemed to
be approved and the Company has complied with the provisions of
10 clause 10(5), the State shall arrange to have the Port Authority grant to
the Company under the Port Authorities Act:
(a) a lease to allow in accordance with its approved proposals the
construction, operation and maintenance within the Port
Facilities Area of the Port Facilities ("Port Lease"); and
15 (b) if there is to be any Port Additional Infrastructure, a licence to
allow in accordance with its approved proposals the
construction, operation and maintenance within the Port
Additional Infrastructure Area of the Port Additional
Infrastructure and access roads ("Port Additional
20 Infrastructure Licence"); or
(c) if any part of the Railway is to be in the Port, a licence to allow
in accordance with its approved proposals the construction,
operation and maintenance within the Port Railway Area of the
Railway and access roads ("Port Railway Licence"),
25 each for a term which commences on the date of grant thereof and
which ends at the same time as the Special Railway Licence and on
such terms and conditions including rental as shall be reasonable and
as are consistent with the terms of this Agreement and with approved
proposals.
30 (8) The State shall ensure that the Port Authority does not:
(a) charge the Company a rental on a basis which is different from
the basis on which the Port Authority charges other users of the
Port for rentals; or
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(b) impose on the Company charges (other than rentals) for
services or matters (including for port enhancement) which are
different from charges which the Port Authority imposes on
other users of the Port for the same services or matters,
5 except:
(c) where and to the extent that such a difference can be
commercially justified by the Port Authority on reasonable
grounds; or
(d) where, in any particular case of a difference between a rental or
10 charge imposed on the Company and a rental or charge imposed
on another user of the Port, the rental or charge which the Port
Authority imposes upon that other user is required to be
imposed at a particular rate or level due to a legally binding
obligation owed by the Port Authority to the other user which is
15 in existence at the date of this Agreement and the Port
Authority is not subject to a similar obligation owed to the
Company;
(e) where the differences in the charge reasonably and consistently
recognize the contribution to common user infrastructure by
20 another user and where the monies raised by such charges,
together with all interest earned on that money, less the
proportion of the dividend payable by the Port Authority from
time to time under section 84 of the Port Authorities Act and of
the tax equivalent sum payable by the Port Authority from time
25 to time under the State Enterprises (Commonwealth Tax
Equivalents) Act 1996, are applied, or will be applied, to the
provision of further common user infrastructure.
Construction and Operation of Railway and Additional Infrastructure
15. (1) Subject to and in accordance with approved proposals, the Rail Safety
30 Act and the State having assured to the Company all necessary rights
over Crown land (as defined in the LAA) available for the purpose 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
35 associated access roads within the Railway Corridor and the Port
Railway Area 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
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Agreement
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.
(2) The Company shall during the continuance of this Agreement:
5 (a) keep the Railway and any Additional Infrastructure constructed
under this Agreement in operation;
(b) ensure that the Railway and any Additional Infrastructure
constructed under this Agreement are operated in a safe and
proper manner in compliance with all applicable laws from time
10 to time; and
(c) without limiting subclause (2)(b) or clause 19, 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 and (from such time as the
15 Access Act and the Access Code apply to the Railway) ensure
that the obligations imposed under the Access Act and the
Access Code on a railway owner (as that term is therein
defined) are complied with in connection with the Railway,
and nothing in this Agreement shall be construed to exempt the
20 Company or any other person from compliance with the Rail Safety
Act and (from such time as they apply as referred to in clause 16(2))
the Access Act and the Access Code, or limit their application to the
Company's operations generally.
(3) The Company shall provide crossings for livestock and also for any
25 roads, other railways, conveyors, pipelines and other utilities which
now exist 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 the Railway.
30 (4) In relation to its use of the Railway when transporting passengers or
carrying iron ore products, freight goods or other products, the
Company shall not be deemed to be a common carrier at law or
otherwise.
(5) The Company shall at all times be the holder of the Special Railway
35 Licence, Lateral Access Road Licences, the Port Additional
Infrastructure Licence and the Port Railway Licence and (without
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limiting clause 34) shall at all times own manage and control the use
of the Railway and all Additional Infrastructure constructed under this
Agreement.
(6) The Company shall not be entitled to exclusive possession of the land
5 the subject of the Special Railway Licence or any Lateral Access
Road Licence 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,
10 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.
(7) The Company's ownership of the Railway and Additional
15 Infrastructure constructed under this Agreement shall not give it an
interest in the land underlying them.
(8) 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 the
Railway or Additional Infrastructure constructed under this
20 Agreement, or permit this to occur, other than for the purpose of
maintenance, repair, upgrade or renewal.
(9) The Company shall use all reasonable endeavours to ensure that,
during the continuance of this Agreement, the Railway has or could
have, with modifications which are technically feasible at a reasonable
25 cost, such characteristics as enable:
(a) rail operations of the kind carried out on the Pilbara Iron Ore
Railways to be carried out on the Railway, and vice versa; and
(b) connection of the Railway to any one or more of the Pilbara
Iron Ore Railways.
30 (10) The Company shall, subject to and in accordance with approved
proposals, in a proper and workmanlike manner, construct any
Additional Infrastructure approved for construction under this
Agreement and associated access roads and the Lateral Access Roads.
(11) The Company shall:
35 (a) be responsible for the cost of construction and maintenance of
all Private Roads;
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(b) at its own cost erect signposts and take other steps that may be
reasonable in the circumstances to prevent any persons and
vehicles (other than those engaged upon the Company's
activities and its invitees and licensees and persons who have
5 rights under the Access Act and the Access Code to use those
roads) from using the Private Roads; and
(c) 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
10 required by the Commissioner of Main Roads or the Public
Transport Authority as the case may be.
(12) During the continuance of this Agreement the Company shall not
trade in iron ore products.
Access Obligations for Railway
15 16. (1) For the purposes of this clause:
(a) "access" includes use by persons of the Railway and the
Company's access roads within the Railway Corridor and
within the Port Railway Area but does not, for the purposes
of subclause 5(c) or (7)(a) include use of the Company's
20 rolling stock, rolling stock maintenance facilities, office
buildings, housing, freight centres, terminal yards and
depots or other facilities which are not railway
infrastructure (as that term is defined in the Access Act);
(b) "Access Date" means the date on which all of the documents
25 and matters referred to in subclause (8)(c) are approved or
determined under the relevant section of the Access Act or
of the Access Code;
(c) "agreement" includes an agreement, commitment or
arrangement which is binding or takes effect when made
30 and an agreement, commitment or arrangement which
becomes binding or takes effect during the currency of this
Agreement with the giving of notice, lapse of time,
occurrence of any event, passing of any date or for any
other reason;
35 (d) "railway owner" has the same meaning as in the Access Act;
(e) "Regulator" has the same meaning as in the Access Act; and
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(f) "year" means the period of 12 months commencing on the
Railway Operation Date or any subsequent period of
12 months during the continuance of this Agreement.
(2) (a) The State and the Company intend that the Access Act and the
5 Access Code shall apply to the Railway as soon as possible
after the Railway is constructed but before the Railway
Operation Date.
(b) The Company shall from the date occurring 6 months before the
date for completion of construction of the Railway specified in
10 its time program for the commencement and completion of
construction of the Railway submitted under clause 10(1), keep
the Minister fully informed as to:
(i) the progress of that construction and its likely
completion; and
15 (ii) the likely Railway Operation Date.
(c) The Company shall on the Railway Operation Date notify the
Minister that the first carriage of iron ore products, freight
goods or other products as the case may be over the Railway
(other than for construction or commissioning purposes) has
20 occurred.
(3) The Company acknowledges that one of the intentions of the State and
the Company in entering into this Agreement is that the Access Act
and the Access Code apply to and in respect of the Railway (but not to
the Company's rolling stock, rolling stock maintenance facilities,
25 office buildings, housing, freight centres, terminal yards and depots
and any other facilities which are not railway infrastructure (as that
term is defined in the Access Act) and access roads of the Company
within the Railway Corridor and within the Port Railway Area. The
Company:
30 (a) acknowledges that the State shall from time to time be entitled
to make such legislative changes as are necessary to achieve
that purpose; and
(b) shall do all such things as the Minister reasonably requests for
the purposes of the Access Code applying and continuing to
35 apply to and in respect of the Railway which are not
inconsistent with this Agreement.
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(4) During the period prior to the Access Date:
(a) subject to subclause (4)(b), no agreement for access to the
Railway or provision of rail transport services over the Railway
(including for purposes of transport of iron ore products, freight
5 goods or other products) shall be made without the prior
consent of the Minister; and
(b) one or more agreements for access to the Railway or provision
of rail transport services over the Railway for the purposes of
the transport of iron ore products may be made without the prior
10 consent of the Minister, but such agreements:
(i) shall only be entered into by the Company;
(ii) shall not, either alone or when taken together, allow or
provide for the transport (whether by the Company or any
other person using the Railway) of more than 45 million
15 tonnes of iron ore products over the Railway in any year
during the currency of this Agreement; and
(iii) shall comply with subclause (5).
(5) The Company shall ensure that each agreement for access to the
Railway or provision of rail transport services over the Railway
20 entered into prior to the Access Date:
(a) does not and will not in any way prevent alteration of practices
or methods of operation in relation to control and management
of the Railway and its use (including in respect of allocation
and management of the use of train paths on the Railway and
25 management of train control and operating standards for the
Railway) to the extent necessary to comply with obligations of
a railway owner in connection with the Railway under the
Access Act and the Access Code after the Access Date
(including obligations to comply with train management
30 guidelines in connection with the Railway from time to time
approved or determined under section 43 of the Access Code
and directions given under that section, statements of policy in
connection with the Railway from time to time approved or
determined under section 44 of the Access Code and an
35 arrangement from time to time approved, and directions from
time to time given, under section 29 of the Access Act for or to
the railway owner in respect of the Railway);
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(b) without limiting subclause (5)(a):
(i) does not and will not in any way limit the discretion of
the Regulator in approving, determining or giving a
direction in respect of train management guidelines in
5 connection with the Railway under section 43 of the
Access Code or approving or determining a statement of
policy in connection with the Railway under section 44 of
the Access Code or under section 29 of the Access Act
approving an arrangement for or issuing a direction to the
10 railway owner in respect of the Railway; and
(ii) provides that, if any provision of the agreement is
inconsistent with a provision of the Access Act or the
Access Code in effect as at the Access Date (other than a
provision in Schedule 4 of the Access Code), or
15 inconsistent with any statement, document, determination
or other requirement issued, made, approved or
determined under either or both of the Access Act and the
Access Code as at the Access Date, the relevant provision
of the Access Act or the Access Code or the statement,
20 document, determination or other requirement (as the
case may be) shall prevail over the provision of the
agreement to the extent of that inconsistency;
(c) does not impose on the Company obligations, or create in
favour of any other person any interest, in relation to use of the
25 Railway (including in relation to allocation of train paths on the
Railway and management of train control for the Railway)
which may in effect preclude other entities from access to the
Railway in accordance with the Access Act and the Access
Code;
30 (d) would, if that agreement were an "access agreement" within the
meaning of the Access Code, comply with sections 17(1)(a),
17(1)(c) and 36(2)(c) of the Access Code; and
(e) is, with effect from the Access Date, altered to comply with and
to be consistent with the Access Act and the Access Code
35 (except Schedule 4 of the Access Code) as at that time and with
each statement, document, determination and other requirement
at that time issued, made, approved or determined under the
Access Act or the Access Code as if the agreement were an
access agreement (as that term is defined in the Access Code).
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Agreement
(6) Without limiting clause 36, the Company must, during the currency of
this Agreement, consult with and keep the State fully informed
concerning any steps that the Company proposes to take or is taking,
or concerning any steps which the Company is aware any other person
5 proposes to take or is taking, to have the Railway made subject to
Part IIIA of the Trade Practices Act.
(7) The Company shall:
(a) use all reasonable endeavours to promote access to, and attract
customers for, the Railway; and
10 (b) not without the prior consent of the Minister enter into or allow
to be entered into any agreement or arrangement, or otherwise
adopt any practice, whereby the Railway is connected to
another railway for the purpose of running rolling stock in a
circuit over them, or whereby the Railway otherwise does not or
15 cannot accommodate traffic moving in both directions.
(8) The Company shall:
(a) ensure that the publication referred to in section 6 of the Access
Code is prepared and made available for purchase no later than
7 days after the Access Act and the Access Code apply to the
20 Railway;
(b) ensure the submission to the Regulator of the arrangement for
the railway owner in respect of the Railway required to be
approved by the Regulator under section 29 of the Access Act,
each of the statements in connection with the Railway required
25 to be prepared and submitted to the Regulator under sections
43(3), 44(2), 46(1) and 47(1) of the Access Code and any other
document the subject of a notice from the Minister to the
Company, being a document which the Access Act or the
Access Code requires to be submitted by a railway owner to the
30 Regulator, no later than 7 days after the Access Act and the
Access Code apply to the Railway or such earlier date specified
in the Access Act or the Access Code (as the case may be) for
preparation and submission of such arrangement or statements;
and
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(c) conduct itself in such a manner as to, and do all such things as
are reasonable to, facilitate the approval or determination of:
(i) train management guidelines in connection with the
Railway under section 43 of the Access Code;
5 (ii) statements of policy in connection with the Railway
under section 44 of the Access Code;
(iii) costing principles in connection with the Railway under
section 46 of the Access Code;
(iv) over-payment rules in connection with the Railway under
10 section 47 of the Access Code;
(v) an arrangement referred to in section 29(1) of the Access
Act for the railway owner in respect of the Railway; and
(vi) any other document or matter the subject of a notice from
the Minister to the Company, being a document or matter
15 which the Access Act or the Access Code requires be
approved or determined in connection with a railway
owner,
as soon as possible after the Access Act and the Access Code
apply to the Railway. Nothing in this subclause shall be taken
20 to exempt the railway owner in respect of the Railway from any
obligation or requirement of the railway owner under the
Access Act or the Access Code.
Construction and Operation of Port Facilities
17. (1) Subject to and in accordance with approved proposals the Company
25 shall:
(a) construct the Port Facilities within the Port Facilities Area in a
proper and workmanlike manner and in accordance with
recognised standards for port facilities of a similar nature
operating under similar conditions;
30 (b) keep the Port Facilities in operation; and
(c) ensure the Port Facilities are operated in a safe and proper
manner in compliance with all applicable laws.
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Agreement
(2) The Company shall at all times be the holder of the Port Lease and
(without limiting clause 34) shall at all times manage and control the
use of the Port Facilities.
(3) The Company shall not at any time without prior consent of the
5 Minister dismantle, sell or otherwise dispose of any part or parts of the
Port Facilities constructed under this Agreement, or permit this to
occur other than for the purpose of maintenance, repair, upgrade or
renewal.
Access Obligations for Port Facilities and Additional Infrastructure
10 18. (1) For the purposes of this clause:
(a) "access" includes use by persons of the services provided by
Port Facilities and Additional Infrastructure constructed
under this Agreement;
(b) "Access Date" means the day on which the access regime
15 referred to in subclause (2) is approved by the Minister;
(c) "agreement" includes an agreement, commitment or
arrangement which is binding or takes effect when made
and an agreement, commitment or arrangement which
becomes binding or takes effect during the currency of this
20 Agreement with the giving of notice, lapse of time,
occurrence of any event, passing of any date or for any
other reason;
(d) "Government Agreement Product" means iron ore produced,
or products derived from the processing of iron ore
25 produced, from mining tenements or other titles granted
under or pursuant to a Government agreement in existence
at the date of this Agreement; and
(e) "year" means the period of 12 months commencing on the
Railway Operation Date or any subsequent period of
30 12 months during the continuance of this Agreement.
(2) Prior to the time at which iron ore products, freight goods or other
products are first shipped from the Port Facilities constructed under
this Agreement, the Company must have in place, and thereafter
during the currency of this Agreement maintain, an access regime that
35 is approved by the Minister which provides for access to the Port
Facilities and any Additional Infrastructure that is constructed under
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this Agreement. When considering whether an access regime
proposed by the Company under this clause is acceptable, the Minister
shall have regard to the principles for access contained in section 6(4)
of the Competition Principles Agreement made on 11 April 1995
5 between the Commonwealth, New South Wales, Victoria,
Queensland, Western Australia, South Australia, Tasmania, the
Australian Capital Territory and the Northern Territory.
(3) During the continuance of this Agreement, the Company shall
implement and comply with the access regime approved by the
10 Minister under subclause (2).
(4) During the period prior to the commencement of an access regime
approved by the Minister under subclause (1), subject to
subclause (9):
(a) and subject to subclause (4)(b), no agreement for access to or
15 use by any person of Port Facilities or Additional Infrastructure
constructed under this Agreement shall be made without the
prior consent of the Minister (including for purposes of
shipping of iron ore products, freight goods or other products);
(b) one or more agreements for access to Port Facilities and
20 Additional Infrastructure constructed under this Agreement for
the purposes of shipping or transport (as applicable) of iron ore
products may be made without the prior consent of the Minister,
but such agreements:
(i) shall only be entered into by the Company;
25 (ii) shall not, either alone or when taken together, allow or
provide for the shipping (whether by the Company or any
other person using Port Facilities or Additional
Infrastructure constructed under this Agreement) of more
than 45 million tonnes of iron ore products from the Port
30 in any year during the currency of this Agreement; and
(iii) shall comply with subclause (5);
and
(c) in the event the capacity of the Port Facilities is expanded to
exceed 45 million tonnes per annum, the Company shall,
35 subject to subclause (4)(a), provide persons, or ensure that
persons are provided, with access to Port Facilities and
Additional Infrastructure constructed under this Agreement on
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Schedule 1 Railway and Port (The Pilbara Infrastructure Pty Ltd)
Agreement
reasonable terms and conditions (having regard to the cost of
the Port Facilities or the Additional Infrastructure (as the case
may be) to the Company).
(5) The Company shall ensure that each agreement for access to the Port
5 Facilities or Additional Infrastructure constructed under this
Agreement which is entered into prior to the Access Date:
(a) does not and will not prevent alteration of practices or methods
of operation in relation to control and management of the Port
Facilities and Additional Infrastructure constructed under this
10 Agreement and their use (including in respect of allocation of
berthing priority) to the extent necessary to comply with the
obligations of the Company under the access regime approved
by the Minister under subclause (2);
(b) without limiting subclause (5)(a), provides that, where any
15 provision of the agreement is inconsistent with a provision of
the access regime approved by the Minister under subclause (2),
the relevant provision of the access regime shall prevail over the
provision of the agreement to the extent of that inconsistency;
(c) does not impose on the Company obligations, or create in
20 favour of any other person any interest, in relation to access to
the Port Facilities or the Additional Infrastructure constructed
under this Agreement which may in effect preclude other
entities from access to the Port Facilities or the Additional
Infrastructure constructed under this Agreement in accordance
25 with the access regime approved by the Minister under
subclause (2); and
(d) is, with effect from the Access Date, altered to comply with and
to be consistent with the access regime approved by the
Minister under subclause (2).
30 (6) Without limiting clause 36, the Company must, during the currency of
this Agreement, consult with and keep the State fully informed
concerning any steps that the Company proposes to take or is taking,
or concerning any steps which the Company is aware any other person
proposes to take or is taking, to have Port Facilities or Additional
35 Infrastructure constructed under this Agreement made subject to
Part IIIA of the Trade Practices Act.
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(7) The Company shall use all reasonable endeavours to promote access
to, and attract customers for, Port Facilities and Additional
Infrastructure constructed under this Agreement.
(8) Subject to clauses 9 and 13 the Company shall, provided such
5 investment can be justified commercially, invest in additional
infrastructure to expand the capacity of Port Facilities and Additional
Infrastructure constructed under this Agreement to accommodate
demand for access. The Company shall from time to time consult
with the Minister at the Minister's request with respect to such
10 investment and provide the Minister with such information and
documents as the Minister requests to review whether such investment
can be justified commercially. In the event of disagreement between
the Minister and the Company with respect to whether any particular
investment proposed can be justified commercially, it may be referred
15 by either party to arbitration hereunder as a dispute between the
Company and the State. Nothing in this clause limits the discretion of
the Minister in approving an access regime under subclause (2), or
limits the provisions of any access regime so approved.
(9) The Port Facilities may not at any time, unless the Minister's prior
20 consent is given, be subject to an agreement for shipping of
Government Agreement Product.
(10) Nothing in this Agreement shall be taken to limit the rights of the
State to regulate access to the Port, Port Facilities and Additional
Infrastructure in the future, or the Company's obligations to comply in
25 respect of any such regulation.
Compliance with Laws
19. (1) In the construction operation maintenance and use of any work
installation plant machinery equipment service or facility provided or
controlled by the Company, the Company shall throughout the
30 continuance of this Agreement comply with and observe the
provisions hereof and subject thereto the laws for the time being in
force in the said State.
(2) The Company shall be responsible for obtaining such leases,
authorities, permits and licences as it shall require for the obtaining of
35 stone, sand, clay and gravel for the construction of the Railway, the
Lateral Access Roads, Additional Infrastructure (if any) and the Port
Facilities.
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Maintenance
20. Throughout the continuance of this Agreement the Company shall at
all times keep and maintain in good repair and working order and
condition (which obligation includes, where necessary, replacing or
5 renewing all parts which are worn out or in need of replacement or
renewal due to their age or condition) the Railway, Additional
Infrastructure (if any), and the Port Facilities and all such other works
installations plant machinery and equipment for the time being the
subject of this Agreement.
10 Use of local labour professional services and materials
21. (1) Except as otherwise agreed by the Minister the Company shall, for the
purposes of this Agreement:
(a) except in those cases where the Company can demonstrate it is
not reasonable and economically practicable so to do, use
15 labour available within the said State (using all reasonable
endeavours to ensure that as many as possible of the workforce
be recruited from the Pilbara region) or if such labour is not
available then, except as aforesaid, use labour otherwise
available within Australia;
20 (b) as far as it is reasonable and economically practicable so to do,
use the services of engineers, surveyors, architects and other
professional consultants experts and specialists, project
managers, manufacturers, suppliers and contractors resident and
available within the said State, or if such services are not
25 available within the said State, then, as far as practicable as
aforesaid, use the services of such persons otherwise available
within Australia;
(c) during design and when preparing specifications, calling for
tenders and letting contracts for works, materials, plant,
30 equipment and supplies (which shall at all times, except where
it is impracticable so to do, use or be based upon Australian
Standards and Codes) ensure that suitably qualified Western
Australian and Australian suppliers, manufacturers and
contractors are given fair and reasonable opportunity to tender
35 or quote;
(d) give proper consideration and, where possible, preference to
Western Australian suppliers, manufacturers and contractors
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when letting contracts or placing orders for works, materials,
plant, equipment and supplies where price, quality, delivery and
service are equal to or better than that obtainable elsewhere or,
subject to the foregoing, give that consideration and, where
5 possible, preference to other Australian suppliers,
manufacturers and contracts; and
(e) if, notwithstanding the foregoing provisions of this subclause, a
contract is to be let or an order is to be placed with other than a
Western Australian or Australian supplier, manufacturer or
10 contractor, give proper consideration and, where possible,
preference to tenders, arrangements or proposals that include
Australian participation where price, delivery and service are
otherwise equal or better.
(2) Except as otherwise agreed by the Minister, the Company shall, in
15 every contract entered into with a third party for the supply of
services, labour, works, materials, plant, equipment or supplies for the
purposes of this Agreement require as a condition thereof that such
third party shall undertake the same obligations as are referred to in
subclause (1) and shall report to the Company concerning such third
20 party's implementation of that condition.
(3) The Company shall:
(a) in respect of developments the subject or to be the subject (as
the case may be) of proposals submitted under clause 10,
submit a report to the Minister at quarterly intervals from the
25 later of the dates specified in clause 3(4) to the date of the first
submission of proposals under clause 10 and thereafter at
monthly intervals until commissioning of the Railway and the
Port Facilities and thereafter as requested by the Minister from
time to time; and
30 (b) in respect of developments the subject or to be the subject (as
the case may be) of proposals submitted under clause 12 or 13,
submit a report to the Minister at quarterly intervals from the
date on which it gives notice under clause 12(1) or 13(2)(a) as
the case may be to the date of the first submission of proposals
35 in connection with that notice under clause 12 or 13 as the case
may be and thereafter at monthly intervals until commissioning
of the developments the subject of the proposals approved
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Agreement
pursuant to clause 12 or 13 as the case may be and thereafter as
requested by the Minister from time to time,
concerning its implementation of the provisions of this clause,
together with a copy of any report received by the Company pursuant
5 to subclause (2) during that month or longer period as the case may be
PROVIDED THAT the Minister may agree that any such reports need
not be provided in respect of contracts of such kind or value as the
Minister may from time to time determine.
(4) The Company shall keep the Minister informed on a regular basis as
10 determined by the Minister from time to time or otherwise as
reasonably required by the Minister during the currency of this
Agreement of any services (including any elements of the project
investigations, design and management) and any works, materials,
plant, equipment and supplies that it may be proposing to obtain from
15 or have carried out or permit to be obtained from or carried out
outside Australia, together with its reasons therefor and shall, as and
when required by the Minister, consult with the Minister with respect
thereto.
No discriminatory charges
20 22. Except as provided in this Agreement the State must not impose, nor
shall it permit or authorise any of its agencies or instrumentalities or
any local government or other authority of the State to impose,
discriminatory taxes, rates or charges of any nature whatsoever on or
in respect of the titles, property or other assets, products, materials or
25 services used or produced by or through the activities of the Company
in the conduct of the Project nor will the State take or permit to be
taken by any such State authority any other discriminatory action
which would deprive the Company of full enjoyment of the rights
granted or intended to be granted under this Agreement. In the
30 application of this clause the conferral of rights upon parties to
Government agreements shall be disregarded.
Taking of land for the purposes of this Agreement
23. (1) The State is hereby empowered, as and for a public work under Parts 9
and 10 of the LAA and the Public Works Act 1902, to take for the
35 purposes of this Agreement any land (other than any part of the Port)
which in the opinion of the Company is necessary for the Project and
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which the Minister determines is appropriate to be taken for the
Project (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
5 notwithstanding any other provisions of those Acts may license that
land to the Company.
(2) In applying Parts 9 and 10 of the LAA and the Public Works Act 1902
for the purposes of this Clause -
(a) "land" in those Acts includes a legal or equitable estate or
10 interest in land;
(b) sections 170, 171, 172, 173, 174, 175 and 184 of the LAA do
not apply; and
(c) the LAA applies as if it were modified in section 177(2) by
inserting -
15 (i) 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
20 "; and
(ii) after "that Act" the following -
" or that Agreement as the case may be ".
(3) 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
25 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.
No taking of land
24. Subject to the performance by the Company of its obligations under
30 this Agreement, but without limiting clause 15(3) the State shall not,
during the currency of this Agreement, without the consent of the
Company, take or suffer or permit to be taken by any State
instrumentality or by any local authority or other authority of the State
any of the works, installations, plant, equipment or other property for
35 the time being belonging to the Company and the subject of or used
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for the purpose of this Agreement or any of the works on the lands the
subject of the Special Railway Licence and, without such consent
(which shall not be unreasonably withheld), the State shall not create
or grant or permit or suffer to be created or granted by any
5 instrumentality or authority of the State as aforesaid any road, right-
of-way, water right or easement of any nature or kind whatsoever over
or in respect of any such lands which may unduly prejudice or
interfere with the Company's activities under this Agreement.
Commonwealth licences and consents
10 25. (1) The Company shall from time to time make application to the
Commonwealth or to the Commonwealth constituted agency,
authority or instrumentality concerned for the grant to it of any licence
or consent under the laws of the Commonwealth necessary to enable
or permit the Company to enter into this Agreement and to perform
15 any of its obligations hereunder.
(2) On request by the Company the State shall make representations to the
Commonwealth or to the Commonwealth constituted agency,
authority or instrumentality concerned for the grant to the Company of
any licence or consent mentioned in subclause (1).
20 Zoning
26. The State shall ensure after consultation with the relevant local
governments that the lands the subject of the Special Railway Licence
or a Lateral Access Road Licence shall be and remain zoned for use or
otherwise protected during the currency of this Agreement so that the
25 activities of the Company hereunder may be undertaken and carried
out thereon without any interference or interruption by the State or
any State agency or instrumentality or by any local government or
other authority of the State on the ground that such activities are
contrary to any zoning by-law, regulation or order.
30 Assignment
27. (1) Subject to the provisions of this clause the Company may at any time
with the consent of the Minister assign, mortgage, charge, sublet or
dispose of to any person the whole or any part of the rights of the
Company hereunder (including to ownership of the Railway and the
35 Additional Infrastructure (if any) and its right to or as the holder of the
Special Railway Licence, a Lateral Access Road Licence, the Port
Lease, the Port Additional Infrastructure Licence or the Port Railway
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Licence and of the obligations of the Company hereunder subject
however in the case of an assignment or disposition to the assignee or
disponee (as the case may be) executing in favour of the State (unless
the Minister otherwise determines) a deed of covenant in a form to be
5 approved by the Minister to comply with observe and perform the
provisions hereof on the part of the Company to be complied with,
observed or performed in regard to the matter or matters the subject of
such assignment or disposition.
(2) Notwithstanding anything contained in or anything done under or
10 pursuant to subclause (1) the Company will at all times during the
currency of this Agreement be and remain liable for the due and
punctual performance and observance of all the covenants and
agreements on its part contained in this Agreement PROVIDED
THAT the Minister may agree to release the Company from such
15 liability where the Minister considers such release will not be contrary
to the interests of the State.
(3) Notwithstanding the provision of the Mining Act insofar as the same
may apply:
(a) no assignment, mortgage, charge, sublease or disposition made
20 or given of or over the Special Railway Licence or any other
licence granted pursuant to this Agreement in accordance with
the provisions of subclause (1) and the terms of consent
thereunder; and
(b) no transfer, assignment, mortgage or sublease made or given in
25 exercise of any power contained in any such mortgage or
charge,
shall require any approval or consent other than such consent as may
be necessary under subclause (1) and no equitable mortgage or charge
shall be rendered ineffectual by the absence of any approval or
30 consent (otherwise than as required by this clause) or because the
same is not registered under the provisions of the Mining Act.
Variation or determination
28. (1) The parties to this Agreement may from time to time by agreement in
writing add to, substitute for, cancel or vary all or any of the
35 provisions of this Agreement for the purpose of more efficiently or
satisfactorily implementing or facilitating any of the objects of this
Agreement.
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(2) The Minister shall cause any agreement made pursuant to
subclause (1) to be laid on the Table of each House of Parliament
within 12 sitting days next following its execution.
(3) Either House may, within 12 sitting days of that House after the
5 agreement has been laid before it, pass a resolution disallowing the
agreement, but if after the last day on which the agreement might have
been disallowed neither House has passed such a resolution the
agreement shall have effect from and after that last day.
(4) The parties may at any time by mutual agreement determine this
10 Agreement, PROVIDED THAT no matter in connection with a failure
by the parties to agree under this subclause (4) shall be referable to
arbitration hereunder.
Force majeure
29. This Agreement shall be deemed to be made subject to any delays in
15 the performance of the obligations under this Agreement and to the
temporary suspension of continuing obligations under this Agreement
that may be caused by or arise from circumstances beyond the power
and control of the party responsible for the performance of those
obligations including (without limiting the generality of the foregoing)
20 delays or any such temporary suspension as aforesaid caused by or
arising from act of God, force majeure, earthquakes, floods, storms,
tempest, washaways, fire (unless caused by the actual fault or privity
of the party responsible for such performance) act of war, act of public
enemies, riots, civil commotions, strikes, lockouts, stoppages, restraint
25 of labour or other similar acts (whether partial or general), acts or
omissions of the Commonwealth, shortages of labour or essential
materials, reasonable failure to secure contractors, delays of
contractors, factors due to overall world economic conditions or
factors due to action taken by or on behalf of any government or
30 governmental authority (other than the State or any authority of the
State) or factors that could not reasonably have been foreseen
PROVIDED ALWAYS that the party whose performance of
obligations is affected by any of the said causes must promptly give
notice to the other party or parties of the event or events and shall use
35 its best endeavours to minimise the effects of such causes as soon as
possible after the occurrence.
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Power to extend periods
30. Notwithstanding any provision of this Agreement, the Minister may at
the request of the Company from time to time extend or further extend
any period or vary or further vary any date referred to in this
5 Agreement for such period or to such later date as the Minister thinks
fit, whether or not the period to be extended has expired or the date to
be varied has passed.
Determination of Agreement
31. (1) If:
10 (a) (i) the Company makes default which the State considers
material in the due performance or observance of any of
the covenants or obligations of the Company in this
Agreement or in the Special Railway Licence, a Lateral
Access Road Licence, the Port Lease, the Port Additional
15 Infrastructure Licence or the Port Railway Licence; or
(ii) the Company abandons or repudiates this Agreement or
abandons or repudiates its activities under this
Agreement,
and such matter is not remedied within a period of 180 days
20 after notice is given by the State as provided in subclause (2) or
if the matter is referred to arbitration, then within the period
mentioned in subclause (3); or
(b) the Company goes into liquidation (other than a voluntary
liquidation for the purpose of reconstruction) and unless within
25 3 months from the date of such liquidation the interest of the
Company is assigned to an assignee approved by the Minister
under clause 27,
the State may by notice to the Company determine this Agreement.
(2) The notice to be given by the State to the Company in terms of
30 subclause (1)(a) must specify the nature of the default or other ground
so entitling the State to exercise such right of determination and where
appropriate and known to the State the party or parties responsible
therefor and shall be given to the Company and all such assignees,
mortgagees, chargees and disponees for the time being of the
35 Company's said rights to or in favour of whom or by whom an
assignment, mortgage, charge or disposition has been effected in
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terms of clause 27 whose name and address for service of notice has
previously been notified to the State by the Company or, any such
assignee, mortgagee, chargee or disponee.
(3) (a) If the Company contests the alleged default or other ground
5 referred to in subclause (1)(a) the Company shall within 60 days
after notice given by the State as provided in subclause (2) refer
the matter in dispute to arbitration.
(b) If the question is decided against the Company, the Company
must comply with the arbitration award within a reasonable
10 time to be fixed by that award PROVIDED THAT if the
arbitrator finds that there was a bona fide dispute and that the
Company was not dilatory in pursuing the arbitration, the time
for compliance with the arbitration award shall not be less than
90 days from the date of such award.
15 (4) If the default referred to in subclause (1)(a) has not been remedied
within a period of 180 days after receipt of the notice referred to in
that subclause or within the time fixed by the arbitration award as
aforesaid the State instead of determining this Agreement as aforesaid
because of such default may itself remedy such default or cause the
20 same to be remedied (for which purpose the State by agents workmen
or otherwise shall have full power to enter upon lands occupied by the
Company and to make use of all plant, machinery, equipment and
installations thereon) and the actual costs and expenses incurred by the
State in remedying or causing to be remedied such default shall be a
25 debt payable by the Company to the State on demand.
Effect of cessation or determination of Agreement
32. (1) On the cessation or determination of this Agreement:
(a) except as otherwise agreed by the Minister the rights of the
Company to, in or under this Agreement and the rights of the
30 Company or any mortgagee or chargee to or in the Railway,
Additional Infrastructure and Port Facilities constructed under
this Agreement or to, in or under the Special Railway Licence,
Lateral Access Road Licences (if still current), the Port Lease,
the Port Additional Infrastructure Licence, and the Port Railway
35 Licence, shall thereupon cease and determine but without
prejudice to the liability of any of the parties hereto in respect
of any antecedent breach or default under this Agreement or in
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respect of any guarantee or indemnity given under this
Agreement;
(b) the Company shall forthwith pay to the State all money which
may then have become payable or accrued due; and
5 (c) save as aforesaid and as otherwise provided in this Agreement
none of the parties shall have any claim against the other of
them with respect to any matter or thing in or arising out of this
Agreement.
(2) Upon the cessation or determination of this Agreement:
10 (a) the Minister may by notice to the Company require the
Company to, at the Company's cost, remove the SRL Railway
and any Additional Infrastructure from the Railway Corridor
and return the land in the Railway Corridor to a condition as
near as possible to the condition that land was in prior to the
15 grant of authority under the LAA in respect of the land as
contemplated by clause 4; and
(b) (i) the Port Facilities, that part of the Railway which is in the
Port and the Port Additional Infrastructure constructed
under this Agreement shall become and remain the
20 absolute property of the Port Authority; and
(ii) unless the Minister gives notice under subclause (2)(a),
the SRL Railway and Additional Infrastructure located
outside the Port shall become and remain the absolute
property of the State,
25 without the payment of any compensation or consideration to
the Company or any other party and freed and discharged from
all mortgages and other encumbrances and the Company shall
do and execute all such deeds, documents and other acts,
matters and things (including surrenders) as the State may
30 reasonably require to give effect to the provisions of this
subclause.
Indemnity
33. The Company shall indemnify and keep indemnified the State and its
servants agents and contractors in respect of all actions suits claims
35 demands or costs of third parties arising out of or in connection with
any work carried out by or on behalf of the Company pursuant to this
Agreement or relating to its activities hereunder or arising out of or in
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Agreement
connection with the construction maintenance or use by the Company
or its servants agents contractors or assignees of the Company's works
or services the subject of this Agreement or the plant apparatus or
equipment installed in connection therewith PROVIDED THAT
5 subject to the provisions of any relevant Act such indemnity will not
apply in circumstances where the State, its servants, agents, or
contractors are negligent in carrying out work for the Company
pursuant to this Agreement.
Subcontracting
10 34. Without affecting the liabilities of the parties under this Agreement
each of the State and the Company will have the right from time to
time to entrust to third parties the carrying out as their agent of any
portions of the activities which it is authorised or obliged to carry out
hereunder.
15 Arbitration
35. (1) Except as provided in this Agreement, any dispute or difference
between the State and the Company arising out of or in connection
with this Agreement, the construction of this Agreement or as to the
rights duties or liabilities of either of them under this Agreement or as
20 to any matter to be agreed upon between them under this Agreement
must, in default of agreement between them and in the absence of any
provision in this Agreement to the contrary, be referred to and settled
by arbitration under the provisions of the Commercial Arbitration
Act 1985 and each party may be represented before the arbitrator by a
25 duly qualified legal practitioner or other representative.
(2) Except where otherwise provided in this Agreement, the provisions of
this clause will not apply to any case where the State, the Minister or
any other Minister in the Government of the State is by this
Agreement given either expressly or impliedly a discretionary power.
30 (3) The arbitrator of any submission to arbitration under this Agreement is
hereby empowered upon the application of either the State or the
Company, to grant in the name of the Minister any interim extension
of any period or variation of any date referred to herein which having
regard to the circumstances may reasonably be required in order to
35 preserve the rights of that party or of the parties to the arbitration and
an award may in the name of the Minister grant any further extension
or variation for that purpose.
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Consultation
36. The Company must during the currency of this Agreement consult
with and keep the State fully informed on a confidential basis
concerning any action that the Company proposes to take with any
5 third party (including the Commonwealth or any Commonwealth
constituted agency, authority, instrumentality or other body) which
might significantly affect the overall interest of the State under this
Agreement.
Notices
10 37. Any notice consent or other writing authorised or required by this
Agreement to be given or sent by the State to the Company or to the
Guarantor will be deemed to have been duly given or sent if signed by
the Minister or by any senior officer of the Public Service of the State
acting by the direction of the Minister and forwarded by prepaid post
15 or handed to the Company or to the Guarantor as the case may be at
its address hereinbefore set forth or other address in Western Australia
nominated by the Company, or by the Guarantor as the case may be,
to the Minister and by the Company or by the Guarantor to the State if
signed on its behalf by any person or persons authorised by the
20 Company or by its solicitors, or by the Guarantor or by its solicitors as
the case may be, as notified to the State from time to time and
forwarded by prepaid post or handed to the Minister and except in the
case of personal service any such notice consent or writing shall be
deemed to have been duly given or sent on the day on which it would
25 be delivered in the ordinary course of post.
Mining Agreement
38. The State and the Guarantor shall negotiate the terms and conditions
of the Mining Agreement and will use all reasonable endeavours to
enter into the agreement by not later than 31 January 2005 or as soon
30 thereafter as is practicable. The provisions of clause 35 shall not
apply to this clause.
Guarantee of the Company's performance
39. Notwithstanding any addition to or deletion or variation of the
provisions of this Agreement or any time or other indulgence granted
35 by the State or by the Minister to the Company whether or not notice
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Agreement
thereof is given to the Guarantor by the State, the Guarantor hereby
guarantees to the State the due performance by the Company of all of
the Company's obligations to be performed hereunder. The Minister
may agree to release the Guarantor from this guarantee where the
5 Minister is reasonably satisfied that the Company has the financial
capacity to perform its obligations under this Agreement. Except as
provided in a release given under this clause, the guarantee given
under this clause 39 shall continue notwithstanding the cessation or
determination of this Agreement.
10 Term of Agreement
40. (1) Subject to the provisions of clause 11(6) and clauses 31 and 32, this
Agreement shall expire on the expiration or sooner determination or
surrender of the Special Railway Licence.
(2) Unless this Agreement has already determined, at any time after
15 1 January 2045, at the request of the Company, the State will confer
with the Company with respect to agreeing to commence negotiations
for a new agreement. The provisions of clause 35 shall not apply to
this clause.
Applicable law
20 41. This Agreement is to be interpreted according to the law for the time
being in force in the State of Western Australia.
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SCHEDULE 1
WESTERN AUSTRALIA
RAILWAY AND PORT (THE PILBARA INFRASTRUCTURE PTY
LTD) AGREEMENT ACT
5 MINING ACT 1978
MISCELLANEOUS LICENCE FOR A RAILWAY AND
OTHER PURPOSES
No.
WHEREAS by the Agreement (hereinafter called "the Agreement") ratified by
10 the Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Act [date]
the State agreed to grant to The Pilbara Infrastructure Pty Ltd ACN 103 096 340
of Level 1, 46-50 Kings Park Road, West Perth, Western Australia (hereinafter
with its successors and permitted assigns called "the Company") a
miscellaneous licence for the construction operation and maintenance of the
15 SRL Railway (as defined in the Agreement and otherwise as provided in the
Agreement) and, if applicable, other purposes AND WHEREAS the Company
pursuant to clause 14(1) of the Agreement has made application for the said
licence;
NOW in consideration of the rents reserved by and the provisions of the
20 Agreement and in pursuance of the Railway and Port (The Pilbara Infrastructure
Pty Ltd) Agreement Act [date] 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
(excluding the taking of stone, sand, clay and gravel) necessary for the
25 planning, design, construction, commissioning, operation and maintenance on
the land the subject of this licence of the SRL Railway and Additional
Infrastructure (as defined in 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
30 50 years from the date hereof (subject to the sooner determination or cessation
of the Agreement) and upon and subject to the terms covenants and conditions
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Agreement
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
5 clause 14(1)(a) 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
10 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 therefor or in
lieu thereof and to the regulations and by-laws of the time being in
force thereunder.
15 ENDORSEMENTS
1. [The area of this licence to be reduced as soon as possible after
construction of the SRL Railway to a minimum of 80-100 metres in
width or as otherwise approved by the Minister for the safe operation of a
railway line and access roads.]
20 2. [Any further conditions or stipulations as the Minister for Mines may,
consistent with the provisions of the Agreement, determine and thereafter
impose in respect of this licence including during the term of the
Agreement.]
SCHEDULE
25 Land description
DATED at Perth this day of .
30 MINISTER FOR MINES
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SCHEDULE 2
WESTERN AUSTRALIA
RAILWAY AND PORT (THE PILBARA INFRASTRUCTURE PTY
LTD) AGREEMENT ACT
5 MINING ACT 1978
MISCELLANEOUS LICENCE FOR A LATERAL ACCESS ROAD
No.
WHEREAS by the Agreement (hereinafter called "the Agreement") ratified by
the Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Act [date]
10 the State agreed to grant to The Pilbara Infrastructure Pty Ltd ACN 103 096 340
of Level 1, 46-50 Kings Park Road, West Perth, Western Australia (hereinafter
with its successors and permitted assigns called "the Company") a
miscellaneous licence for the construction use and maintenance of the Lateral
Access Roads (as defined in the Agreement) AND WHEREAS the Company
15 pursuant to clause 14(1) 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 Railway and Port (The Pilbara Infrastructure
Pty Ltd) Agreement Act [date] the Company is hereby authorised to construct
20 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 or
cessation of the Agreement and for the purposes and upon and subject to the
25 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 14(1)(b) of the Agreement PROVIDED
30 ALWAYS that this licence shall not be determined or forfeited otherwise than
in accordance with the Agreement.
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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
5 being in force and also any Act passed in substitution therefor or in
lieu thereof and to the regulations and by-laws of the time being in
force thereunder.
ENDORSEMENTS
1. [Land to be surveyed at Company's cost]
10 2. [Any further terms and conditions or stipulations as the Minister for
Mines may, consistent with the provisions of the Agreement, determine
and thereafter impose in respect of the licence, including during the term
of the Agreement.]
SCHEDULE
15 Description of land
DATED at Perth this day of .
20
MINISTER FOR MINES
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IN WITNESS WHEREOF this Agreement has been executed by or on behalf of
the parties hereto the day and year first hereinbefore mentioned.
5
SIGNED by the HONOURABLE GEOFFREY IAN ) [Signature]
GALLOP in the presence of: )
)
Witness: [Signature]
10 Name: CLIVE MORRIS BROWN
15
THE COMMON SEAL of THE PILBARA ) [C.S.]
INFRASTRUCTURE PTY LTD ACN 103 096 340 was )
hereunto affixed in accordance with its constitution in the )
presence of: )
Director: [Signature]
20 Name: WILLIAM GRAEME ROWLEY
Director/Secretary: [Signature]
Name: ROD CAMPBELL
25
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Schedule 1 Railway and Port (The Pilbara Infrastructure Pty Ltd)
Agreement
THE COMMON SEAL of FORTESCUE METALS ) [C.S]
GROUP LTD ACN 002 594 872 was hereunto affixed in )
accordance with its constitution in the presence of: )
Director: [Signature]
5 Name: WILLIAM GRAEME ROWLEY
Director/Secretary: [Signature]
Name: ROD CAMPBELL
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