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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Contents Part 1 -- Preliminary 1. Short title 2 2. Commencement 2 Part 2 -- General provisions about the Agreement 3. Terms used 3 4. Ratification and authorisation 3 5. State empowered under clause 21 3 6. Effect on other laws 3 Part 3 -- Provisions about access to the railway constructed under the Agreement Division 1 -- Railways (Access) Act 1998 modified 7. Modified Act applies in relation to Railway (BBI Rail Aus Pty Ltd) Agreement 5 8. Section 3 modified 5 9. Section 12B inserted 6 12B. Modification of Code for purposes of Railway (BBI Rail Aus Pty Ltd) Agreement 6 Division 2 -- Railways (Access) Code 2000 modified 10. Modified Code applies in relation to Railway (BBI Rail Aus Pty Ltd) Agreement 6 11. Section 3 modified 7 12. Section 55 inserted 7 24--1 page i Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Contents 55. Transitional provision -- Railway (BBI Rail Aus Pty Ltd) Agreement 7 13. Schedule 1 modified 8 14. Schedule 4 modified 8 Division 3 -- Expiry of Part 15. Expiry of Part 8 Schedule 1 -- Railway (BBI Rail Aus Pty Ltd) Agreement 2017 page ii Western Australia LEGISLATIVE ASSEMBLY Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 A Bill for An Act -- 1 • to ratify, and authorise the implementation of, an agreement 2 between the State and BBI Rail Aus Pty Ltd, Todd Petroleum 3 Mining Company Limited, Todd Offshore Limited and Todd 4 Minerals Limited relating to the development of a railway in the 5 Pilbara region of the State; and 6 • to modify the operation of the Railways (Access) Act 1998 and the 7 Railways (Access) Code 2000, and for incidental and other purposes. The Parliament of Western Australia enacts as follows: page 1 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Part 1 Preliminary s. 1 1 Part 1 -- Preliminary 2 1. Short title 3 This is the Railway (BBI Rail Aus Pty Ltd) Agreement Act 2017. 4 2. Commencement 5 This Act comes into operation as follows -- 6 (a) Part 1 -- on the day on which this Act receives the 7 Royal Assent; 8 (b) Part 2 and Schedule 1 -- on the day after that day; 9 (c) Part 3 -- on a day fixed by proclamation, and different 10 days may be fixed for different provisions. page 2 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 General provisions about the Agreement Part 2 s. 3 1 Part 2 -- General provisions about the Agreement 2 3. Terms used 3 In this Part -- 4 Agreement means the scheduled agreement or, if it is varied in 5 accordance with its terms, that agreement as varied from time to 6 time; 7 scheduled agreement means the agreement a copy of which is 8 set out in Schedule 1. 9 4. Ratification and authorisation 10 (1) The scheduled agreement is ratified. 11 (2) The implementation of the Agreement is authorised. 12 5. State empowered under clause 21 13 The State has power in accordance with clause 21 of the 14 Agreement. 15 6. Effect on other laws 16 (1) The Agreement operates and takes effect despite any enactment 17 or other law. 18 (2) If a provision of the scheduled agreement expressly or by 19 implication purports to modify or exclude the application or 20 operation of an enactment for a purpose or in relation to a 21 person or thing, the application or operation of the enactment is 22 modified or excluded for that purpose, or in relation to that 23 person or thing, to the extent or for the period mentioned in the 24 provision or necessary for the provision to have effect. 25 (3) To avoid doubt, it is declared that the provisions of the Public 26 Works Act 1902 section 96 do not apply to the railway 27 constructed pursuant to the Agreement. page 3 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Part 2 General provisions about the Agreement s. 6 1 (4) This section does not limit or otherwise affect the application of 2 the Government Agreements Act 1979. page 4 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Provisions about access to the railway constructed under the Part 3 Agreement Railways (Access) Act 1998 modified Division 1 s. 7 1 Part 3 -- Provisions about access to the railway 2 constructed under the Agreement 3 Division 1 -- Railways (Access) Act 1998 modified 4 7. Modified Act applies in relation to Railway (BBI Rail 5 Aus Pty Ltd) Agreement 6 The Railways (Access) Act 1998 applies as if amended as set out 7 in this Division in relation to the Railway (BBI Rail Aus Pty 8 Ltd) Agreement. 9 8. Section 3 modified 10 (1) In section 3(1) insert in alphabetical order: 11 12 Railway (BBI Rail Aus Pty Ltd) Agreement means the 13 Agreement as defined in the Railway (BBI Rail Aus Pty 14 Ltd) Agreement Act 2017 section 3; 15 16 (2) In section 3(1) in the definition of railways network before 17 paragraph (c) insert: 18 19 (cb) the railway constructed pursuant to the Railway 20 (BBI Rail Aus Pty Ltd) Agreement; and 21 22 (3) Before section 3(6) insert: 23 24 (5A) Subsections (3) and (4) do not apply to a siding or spur 25 line associated with the railway constructed pursuant to 26 the Railway (BBI Rail Aus Pty Ltd) Agreement. 27 page 5 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Part 3 Provisions about access to the railway constructed under the Agreement Division 2 Railways (Access) Code 2000 modified s. 9 1 9. Section 12B inserted 2 Before section 12 insert: 3 4 12B. Modification of Code for purposes of Railway (BBI 5 Rail Aus Pty Ltd) Agreement 6 (1) The Minister may, under this section, modify the Code 7 for the purposes of its application to the railway 8 constructed pursuant to the Railway (BBI Rail Aus Pty 9 Ltd) Agreement. 10 (2) If, after the Railway (BBI Rail Aus Pty Ltd) Agreement 11 Act 2017 section 9 has come into operation, the railway 12 constructed pursuant to the Railway (BBI Rail Aus Pty 13 Ltd) Agreement is expanded or extended (including by 14 the addition of a spur line), the Minister must, under 15 this section, modify the Code so that it applies to the 16 expansion or extension. 17 (3) Section 5 (where relevant) and sections 10 to 11A do 18 not apply to or in relation to a modification under this 19 section. 20 (4) Modifications under this section are to be made by 21 order published in the Gazette. 22 (5) Modifications under or for the purposes of 23 subsection (2) are not amendments of the Code for the 24 purposes of section 9(2) to (6) of this Act. 25 26 Division 2 -- Railways (Access) Code 2000 modified 27 10. Modified Code applies in relation to Railway (BBI Rail Aus 28 Pty Ltd) Agreement 29 The Railways (Access) Code 2000 applies as if amended as set 30 out in this Division in relation to the Railway (BBI Rail Aus Pty 31 Ltd) Agreement. page 6 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Provisions about access to the railway constructed under the Part 3 Agreement Railways (Access) Code 2000 modified Division 2 s. 11 1 11. Section 3 modified 2 (1) In section 3 insert in alphabetical order: 3 4 Railway (BBI Rail Aus Pty Ltd) Agreement means the 5 Agreement as defined in the Railway (BBI Rail Aus Pty 6 Ltd) Agreement Act 2017 section 3; 7 8 (2) In section 3 in the definition of railways network before 9 paragraph (c) insert: 10 11 (cb) the railway constructed pursuant to the Railway 12 (BBI Rail Aus Pty Ltd) Agreement; and 13 14 12. Section 55 inserted 15 At the end of Part 6 insert: 16 17 55. Transitional provision -- Railway (BBI Rail Aus 18 Pty Ltd) Agreement 19 Until the Regulator publishes in the Gazette notice of a 20 determination under Schedule 4 clause 3(1)(a)(iib), the 21 weighted average cost of capital for the railway 22 infrastructure referred to in that subparagraph is such 23 percentage as the Regulator fixes by notice published 24 in the Gazette under this section. 25 page 7 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Part 3 Provisions about access to the railway constructed under the Agreement Division 3 Expiry of Part s. 13 1 13. Schedule 1 modified 2 At the end of Schedule 1 insert: 3 4 Railway (BBI Rail Aus Pty Ltd) Agreement Route 5 54. All tracks that are part of the railway constructed pursuant to 6 the Railway (BBI Rail Aus Pty Ltd) Agreement. 7 8 14. Schedule 4 modified 9 Before Schedule 4 clause 3(1)(a)(ii) insert: 10 11 (iib) the railway infrastructure associated with 12 that part of the railways network described 13 in item 54 in that Schedule; and 14 15 Division 3 -- Expiry of Part 16 15. Expiry of Part 17 (1) In this section -- 18 ACL Undertaking Acceptance Date has the meaning given in 19 clause 16(1) of the Agreement. 20 (2) This Part expires at the end of the day immediately before the 21 ACL Undertaking Acceptance Date. 22 (3) The Minister must publish in the Gazette notice of the ACL 23 Undertaking Acceptance Date. 24 (4) The Interpretation Act 1984 section 37 applies, under section 39 25 of that Act, to the expiry of this Part subject to 26 clause 16(11)(d)(i) of the Agreement. page 8 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 Schedule 1 -- Railway (BBI Rail Aus Pty Ltd) 2 Agreement 2017 3 [s. 3] 4 2017 5 THE STATE OF WESTERN AUSTRALIA 6 and 7 BBI RAIL AUS PTY LTD 8 ABN 44 604 857 392 9 and 10 TODD PETROLEUM MINING COMPANY LIMITED 11 NZBN 9429040945767 12 TODD OFFSHORE LIMITED 13 NZBN 9429030115989 14 TODD MINERALS LIMITED 15 NZBN 9429030762596 16 17 RAILWAY (BBI RAIL AUS PTY LTD) AGREEMENT 2017 18 19 20 21 22 23 24 [Solicitor's details] 25 page 9 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 THIS AGREEMENT is made this 23 day of January 2017 2 BETWEEN 3 THE HONOURABLE COLIN JAMES BARNETT, MEc., M.L.A., Premier 4 of the State of Western Australia, acting for and on behalf of the said State and 5 its instrumentalities from time to time (hereinafter called "the State") of the 6 first part, 7 BBI RAIL AUS PTY LTD ABN 44 604 857 392 of Level 3, 151 Macquarie 8 Street, Sydney, New South Wales (hereinafter called "the Company" in which 9 term shall be included its successors and permitted assigns) of the second part, 10 and 11 TODD PETROLEUM MINING COMPANY LIMITED NZBN 12 9429040945767 of Level 15, The Todd Building, 95 Customhouse Quay, 13 Wellington, New Zealand, TODD OFFSHORE LIMITED NZBN 14 9429030115989 of Level 15, The Todd Building, 95 Customhouse Quay, 15 Wellington, New Zealand and TODD MINERALS LIMITED NZBN 16 9429030762596 of Level 15, The Todd Building, 95 Customhouse Quay, 17 Wellington, New Zealand (hereinafter each called "Guarantor" and 18 collectively "the Guarantors") of the third part. 19 WHEREAS: 20 A. The Guarantors and the Company are investigating the feasibility of 21 the Company constructing and operating a railway from the PIOP 22 mining area loading point to within the proposed Port of Balla Balla 23 on the Pilbara coast of Western Australia for the transport by the 24 Company of iron ore products to the Port with such railway having an 25 initial design capacity of not less than 50 million tonnes per annum. 26 B. The Company and associated companies are also investigating the 27 feasibility of constructing and operating iron ore train unloading, 28 materials handling, stockpiling and transhipment facilities at the Port 29 with such facilities having an initial design capacity of not less than 30 50 million tonnes per annum. 31 C. The State for the purposes of promoting development of the iron ore 32 industry and employment opportunity generally in Western Australia 33 and for the purpose of promoting the development of multi-user 34 infrastructure facilities in the Pilbara region of Western Australia has page 10 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 agreed to assist the development of the abovementioned railway and 2 associated facilities upon and subject to the terms of this Agreement. 3 D. For illustrative purposes and without limiting the terms of this 4 Agreement, the anticipated route and corridor for the railway and 5 associated facilities from the PIOP mining area loading point to the 6 Port is described by the indicative plan in Schedule 1 to this 7 Agreement. 8 NOW THIS AGREEMENT WITNESSES: 9 1. Definitions 10 In this Agreement subject to the context: 11 "Access Act" means the Railways (Access) Act 1998 (WA); 12 "Access Code" means the Railways (Access) Code 2000 (WA); 13 "Additional Infrastructure" means conveyors, stockpile areas, 14 blending and screening facilities, stackers, re-claimers and other 15 infrastructure reasonably required for the loading of iron ore products 16 onto the Railway for transport upon the Railway to the Port; 17 "advise", "apply", "approve", "approval", "consent", "certify", 18 "direct", "notice", "notify", "request", or "require", means advise, 19 apply, approve, approval, consent, certify, direct, notice, notify, 20 request or require in writing as the case may be and any inflexion or 21 derivation of any of those words has a corresponding meaning; 22 "approved proposal" means a proposal approved or deemed to be 23 approved under this Agreement; 24 "Australian Consumer Law" means the Competition and Consumer 25 Act 2010 (Cth); 26 "Commonwealth" means the Commonwealth of Australia and 27 includes the Government for the time being thereof; 28 "EP Act" means the Environmental Protection Act 1986 (WA); 29 "Government agreement" has the meaning given in the Government 30 Agreements Act 1979 (WA); 31 "Government agreement product" means iron ore produced, or 32 products derived from the processing of iron ore produced, from page 11 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 mining tenements, or other titles, granted under or pursuant to, or held 2 pursuant to, a Government agreement; 3 "iron ore products" includes iron ore of all grades and all products 4 from the processing of iron ore; 5 "LAA" means the Land Administration Act 1997 (WA); 6 "LAA Minister" means the Minister for Lands, a body corporate 7 under section 7 of the LAA; 8 "Lateral Access Roads" has the meaning given in clause 7(1); 9 "Lateral Access Road Licence" means a miscellaneous licence 10 granted pursuant to clause 14(1)(b) or clause 14(2) as the case may be 11 and according to the requirements of the context describes the area of 12 land from time to time the subject of that licence; 13 "laws relating to native title" means laws applicable from time to 14 time in Western Australia in respect of native title and includes the 15 Native Title Act 1993 (Commonwealth); 16 "local government" means a local government established under the 17 Local Government Act 1995 (WA); 18 "Mining Act" means the Mining Act 1978 (WA); 19 "Minister" means the Minister in the Government of the State for the 20 time being responsible for the administration of the Act to ratify this 21 Agreement and pending the passing of that Act means the Minister for 22 the time being designated in a notice from the State to the Company 23 and includes the successors in office of the Minister; 24 "Minister for Mines" means the Minister in the Government of the 25 State for the time being responsible for the administration of the 26 Mining Act; 27 "month" means calendar month; 28 "Operative Date" has the meaning given to it in clause 3(2); 29 "Pilbara Iron Ore Railways" means each railway constructed under 30 a Government agreement which is located wholly or substantially in 31 one or more of the local government districts of Ashburton, East 32 Pilbara, Port Hedland and Roebourne at the date of this Agreement; page 12 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 "PIOP mining area" means the areas which, at the date of this 2 Agreement, are the subject of Mining Lease 47/1451 and Exploration 3 Licence 47/1560; 4 "PIOP mining area loading point" means the proposed northerly 5 end point of the conveyor system intended to be constructed upon the 6 land the subject of application for Miscellaneous Licence L47/733 7 and application for Miscellaneous Licence L47/753 by or for the 8 benefit of the PIOP mining area proponent; 9 "PIOP mining area proponent" means one or more project 10 proponents undertaking, or who propose to develop, an iron ore 11 mining project within the PIOP mining area; 12 "Port" means a port comprising the area or substantially the area 13 depicted in Schedule 5 hereto proposed to be described pursuant to 14 section 24 of the Port Authorities Act and constituted as the Port of 15 Balla Balla under the management and control of the Port Authority 16 and following any such establishment shall mean the area comprising 17 that port from time to time; 18 "Port Authorities Act" means the Port Authorities Act 1999 (WA); 19 "Port Authorities Minister" means the Minister in the Government 20 of the State for the time being responsible for the administration of 21 the Port Authorities Act; 22 "Port Authority" means the Pilbara Ports Authority, a body corporate 23 under the Port Authorities Act; 24 "Port Facilities" means the facilities (excluding the Port Railway and 25 associated access roads within the Port Railway Area) within the Port 26 for the unloading of iron ore products from the Railway and for the 27 transport of iron ore products and, with the consent of the Port 28 Authority, other products to a transhipment vessel loading wharf for 29 shipment from the Port; 30 "Port Railway" means that part of the Railway within the Port; 31 "Port Railway Area" means before the grant of the Port Railway 32 Lease that part or those parts (as the case may be) of the Port the 33 subject of a subsisting agreement pursuant to clause 8(1)(a) and after 34 the grant of the Port Railway Lease, that area or those areas (as the 35 case may be) of the Port from time to time the subject of that lease; page 13 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 "Port Railway Lease" means: 2 (a) a lease granted to the Company pursuant to the Port 3 Authorities Act in respect of all or part of the area or areas (as 4 the case may be) comprising the Port Railway Area 5 immediately prior to such grant and which lease provides for 6 the operation and maintenance of the Port Railway, and the 7 use and maintenance of the access roads to be used by the 8 Company in operating and maintaining the Port Railway, 9 within the area or areas (as the case may be) of the Port the 10 subject of that lease and the term of which lease ends at the 11 same time as the Special Railway Licence; and 12 (b) according to the requirements of the context describes the 13 area or areas (as the case may be) from time to time the 14 subject of that lease; 15 "Private Roads" means Lateral Access Roads and the Company's 16 access roads within the Railway Corridor; 17 "Project" means the construction and operation under this 18 Agreement, and in accordance with approved proposals, of the SRL 19 Railway, associated infrastructure within the Railway Corridor 20 including access roads and Additional Infrastructure (if any), and of 21 the Lateral Access Roads; 22 "Rail Safety Act" means the Rail Safety National Law (WA) Act 2015 23 (WA); 24 "Railway" means a standard gauge heavy haul railway initially from 25 the PIOP mining area loading point to the area on which the Port 26 Facilities are or will be located for the transport of iron ore products 27 to the Port together with all railway track, associated track structures 28 including sidings, turning loops, over or under track structures, 29 supports (including supports for equipment or items associated with 30 the use of a railway) tunnels, bridges, train control systems, signalling 31 systems, switch and other gear, communication systems, electric 32 traction infrastructure, buildings (excluding office buildings, housing 33 and freight centres), workshops and associated plant, machinery and 34 equipment and including rolling stock maintenance facilities, terminal 35 yards, depots, culverts and weigh bridges, which railway is or is to be 36 (as the case may be) the subject of approved proposals under 37 clauses 11 and 12 of this Agreement and includes any expansion or page 14 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 extension thereof outside the Port which is the subject of additional 2 proposals approved in accordance with clause 13 and any expansion 3 or extension thereof within the Port which has been approved under 4 the provisions of the Port Railway Lease; 5 "Railway Corridor" means, prior to the grant of the Special Railway 6 Licence, the land for the route of the SRL Railway, access roads 7 (other than Lateral Access Roads), Additional Infrastructure (if any), 8 temporary accommodation facilities for the railway workforce, water 9 bores and areas from which stone, sand, clay and gravel may be taken, 10 which land is the subject of a subsisting agreement pursuant to 11 clause 7(1) and after the grant of the Special Railway Licence the land 12 from time to time the subject of the Special Railway Licence; 13 "Railway Operation Date" means the date of the first carriage of 14 iron ore products over the initial railway line from the PIOP mining 15 area loading point to the Port Facilities (other than for construction or 16 commissioning purposes); 17 "said State" means the State of Western Australia; 18 "Special Railway Licence" means the miscellaneous licence for 19 railway and, if applicable, other purposes, granted to the Company 20 pursuant to clause 14(1)(a), as varied in accordance with clause 14(8) 21 and according to the requirements of the context describes the area of 22 land from time to time the subject of that licence; 23 "SRL Railway" means that part of the Railway which is or is to be 24 (as the case may be) located outside the Port; 25 "SRL Railway spur line" means a standard gauge heavy haul railway 26 spur line of any length from a mine, or in the vicinity of a mine, in the 27 Pilbara region of the said State connecting to the SRL Railway (and 28 whether to the initial railway line the subject of approved proposals 29 under clauses 11 and 12 or to an expansion or extension thereof which 30 is the subject of additional proposals approved in accordance with 31 clause 13) for the transport of iron ore products upon the Railway to 32 the Port; 33 "SRL Railway spur line Operation Date" means in respect of a SRL 34 Railway spur line, the date of the first carriage of iron ore products 35 over that spur line (other than for construction or commissioning 36 purposes); and page 15 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 "this Agreement", "hereof" and "hereunder" refer to this 2 Agreement, whether in its original form or as from time to time added 3 to, varied or amended. 4 2. Interpretation 5 (1) In this Agreement: 6 (a) monetary references are references to Australian currency 7 unless otherwise specifically expressed; 8 (b) power given under any clause other than clause 28 to extend 9 any period or date shall be without prejudice to the power of 10 the Minister under clause 28; 11 (c) clause headings do not affect interpretation or construction; 12 (d) words in the singular shall include the plural and words in the 13 plural shall include the singular according to the requirements 14 of the context; 15 (e) one gender includes the other genders; 16 (f) a covenant or agreement by more than one person binds, and 17 is enforceable against, those persons jointly and each of them 18 severally; 19 (g) reference to an Act includes the amendments to that Act for 20 the time being in force and also any Act passed in 21 substitution therefor or in lieu thereof and the regulations for 22 the time being in force thereunder; 23 (h) reference to the Access Code includes the amendments to that 24 code for the time being in force and also any code established 25 or made in substitution therefor or in lieu thereof; 26 (i) reference in this Agreement to any other document includes 27 that document as from time to time added to, varied or 28 amended and notwithstanding any change in the identity of 29 the parties; 30 (j) reference to a clause or schedule is a reference to a clause or 31 schedule to this Agreement, and a reference to a subclause or 32 paragraph is a reference to the subclause of the clause or page 16 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 paragraph of the clause or subclause as the case may be in, or 2 in relation to, which the reference is made; 3 (k) "including" means "including, but not limited to"; and 4 (l) reference to a "person" includes a body corporate. 5 (2) Nothing in this Agreement shall be construed to exempt the State or 6 the Company from compliance with or to require the State or the 7 Company to do anything contrary to any law relating to native title or 8 any lawful obligation or requirement imposed on the State or the 9 Company as the case may be pursuant to any law relating to native 10 title. 11 (3) Nothing in this Agreement shall be construed to exempt the Company 12 from compliance with any requirement in connection with the 13 protection of the environment arising out of or incidental to its 14 activities under this Agreement that may be made by or under the EP 15 Act. 16 3. Ratification and operation 17 (1) This Agreement, other than this clause and clauses 1 and 2, does not 18 come into operation except in accordance with subclause (2). 19 (2) This Agreement, other than this clause and clauses 1 and 2, comes 20 into operation on the day after the date on which it is ratified by an 21 Act of the Parliament of Western Australia (Operative Date) unless, 22 before that day, it terminates under subclause (4). 23 (3) The State must introduce in the Parliament of Western Australia 24 before 30 September 2017, or a later date agreed between the parties 25 to this Agreement, a Bill to ratify this Agreement and must endeavour 26 to secure its passage as an Act. 27 (4) If by 30 March 2018 or such later date agreed between the parties to 28 this Agreement, this Agreement has not been ratified by an Act of the 29 Parliament of Western Australia then, unless the parties otherwise 30 agree, this Agreement terminates on that date and no party hereto will 31 have any claim against any other party hereto with respect to any 32 matter or thing arising out of, done, performed or omitted to be done 33 or performed under this Agreement. page 17 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 4. Initial obligations of the State 2 (1) The State shall subject to subclause (3) and the adequate protection of 3 the environment (including flora and fauna) and the land affected 4 (including improvements thereon) arrange for the issue of requisite 5 authority under any one or both of (as determined by the State in its 6 discretion): 7 (a) section 91 of the LAA; or 8 (b) section 182 of the LAA, 9 to allow the Company to enter upon Crown land (within the meaning 10 of the LAA and including, if applicable, land the subject of a pastoral 11 lease but excluding land within the Port) to carry out all works to the 12 extent reasonably necessary for the purposes of undertaking its 13 obligations under clause 5(1) (including as applying pursuant to 14 clause 13(2)). 15 (2) For the purposes of paragraph (b) of subclause (1), section 182 of the 16 LAA shall apply as if the Project (including a significant 17 modification, expansion or other variation of it for which proposals 18 are required pursuant to clause 13) is a proposed public work for 19 which the LAA Minister is under that section authorised to take 20 interests in land within the meaning of that section. 21 (3) The Company acknowledges that it shall be responsible for obtaining 22 all consents of each person whose consent the LAA Minister (acting 23 with the concurrence of the Minister in respect of any such Crown 24 land the subject of a Government agreement) requires for the grant of 25 any requisite authority referred to in subclause (1) and in a form and 26 substance acceptable to the LAA Minister. 27 5. Initial obligations of the Company 28 (1) The Company shall continue field and office geological, geophysical, 29 geotechnical, engineering and environmental investigations and 30 studies and marketing and finance studies and other matters necessary 31 for the purposes of clauses 7 and 8 and to enable it to finalise and to 32 submit to the Minister the detailed proposals referred to in clause 11. 33 (2) The Company shall keep the State fully informed in writing at 34 quarterly intervals from the Operative Date as to the progress and 35 results of its operations under subclause (1) and supply to the Minister page 18 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 such information in relation thereto as the Minister may request from 2 time to time. 3 (3) The Company shall co-operate with the State and consult with the 4 representatives or officers of the State regarding matters referred to in 5 subclauses (1) and (2) and any other relevant studies in relation to 6 those subclauses that the Minister may wish the Company to 7 undertake. 8 6. Aboriginal Heritage Act 1972 (WA) 9 For the purposes of this Agreement the Aboriginal Heritage Act 1972 10 (WA) applies as if it were modified by: 11 (a) the insertion before the full stop at the end of section 18(1) of 12 the words: 13 "and the expression "the Company" means the persons from 14 time to time comprising "the Company" in its capacity as 15 such under the agreement made on or about 23 January 2017 16 between The Honourable Colin James Barnett, Premier of the 17 State of Western Australia acting for and on behalf of the said 18 State and its instrumentalities from time to time, BBI Rail 19 Aus Pty Ltd ABN 44 604 857 392, Todd Petroleum Mining 20 Company Limited NZBN 9429040945767, Todd Offshore 21 Limited NZBN 9429030115989 and Todd Minerals Limited 22 NZBN 9429030762596, as varied from time to time, in 23 relation to the use or proposed use of land pursuant to that 24 agreement after and in accordance with approved proposals 25 under that agreement and in relation to the use of that land 26 before any such approval of proposals where the Company 27 has the requisite authority to enter upon and so use the land"; 28 (b) the insertion in sections 18(2), 18(4), 18(5) and 18(7) of the 29 words "or the Company as the case may be" after the words 30 "owner of any land"; 31 (c) the insertion in section 18(3) of the words "or the Company 32 as the case may be" after the words "the owner"; page 19 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 (d) the insertion of the following sentences at the end of 2 section 18(3): 3 "In relation to a notice from the Company the conditions that 4 the Minister may specify can as appropriate include, among 5 other conditions, a condition restricting the Company's use of 6 the relevant land to after the approval or deemed approval as 7 the case may be under the abovementioned agreement of all 8 of the Company's submitted initial proposals thereunder for 9 the Project (as defined in the abovementioned agreement), or 10 in the case of additional proposals submitted or to be 11 submitted by the Company to after the approval or deemed 12 approval under that agreement of such additional proposals, 13 and to the extent so approved. "; and 14 (e) the insertion in sections 18(2) and 18(5) of the words "or it as 15 the case may be" after the word "he". 16 The Company acknowledges that nothing in this clause 6 nor the 17 granting of any consents under section 18 of the Aboriginal Heritage 18 Act 1972 (WA) will constitute or is to be construed as constituting the 19 approval of any proposals submitted or to be submitted by the 20 Company under this Agreement or as the grant or promise of land 21 tenure for the purposes of this Agreement. 22 7. Railway Corridor 23 (1) As soon as practicable during its studies under clause 5, and from 24 time to time during those studies as required by either the Company 25 or the State, the Company shall consult with the Minister to seek the 26 agreement of the Minister as to: 27 (a) where the SRL Railway will begin and end; 28 (b) a route for the SRL Railway and access roads to be within the 29 Railway Corridor and the land required for that route, as well 30 as for Additional Infrastructure (if any), temporary 31 accommodation facilities for the railway workforce, water 32 bores and areas from which stone, sand, clay and gravel may 33 be taken; and 34 (c) the routes of, and the land required for, roads outside the 35 Railway Corridor for access to it to construct the SRL page 20 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 Railway (such roads as agreed being "Lateral Access 2 Roads"). 3 In seeking such agreement, regard shall be had to achieving a balance 4 between engineering matters including costs, the nature and use of 5 any lands concerned and interests therein and the costs of acquiring 6 the land (all of which shall be borne by the Company). The parties 7 acknowledge the intention is for the Company to construct the SRL 8 Railway, and the access roads for the construction and maintenance of 9 the SRL Railway which are to be within the Railway Corridor, along 10 the centreline of the Railway Corridor, subject to changes in that 11 alignment to the extent necessary to avoid heritage, environmental or 12 poor ground conditions that are not identified during preliminary 13 investigation work, and recognise the width of the Railway Corridor 14 must be no more than 500 metres unless otherwise agreed by the 15 Minister having regarding to the need for the Railway Corridor to 16 vary along its route to accommodate associated infrastructure, 17 including access roads, temporary accommodation facilities for the 18 railway workforce, water bores and areas from which stone, sand, 19 clay and gravel may be taken. The provisions of clause 33 shall not 20 apply to this subclause. 21 (2) If the date by which the Company must submit detailed proposals 22 under clause 11(1) is extended or varied by the Minister pursuant to 23 clause 28, any agreement made pursuant to subclause (1) before such 24 date is extended or varied shall, unless the Minister notifies the 25 Company otherwise, be deemed to be at an end and neither party shall 26 have any claim against the other in respect of it. 27 (3) The Company acknowledges that it shall be responsible for liaising 28 with every title holder in respect of the land affected and for obtaining 29 in a form and substance acceptable to the Minister all unconditional 30 and irrevocable consents of each such title holder to, and all statutory 31 consents required in respect of the land affected for: 32 (a) the grant of the Special Railway Licence for the construction, 33 operation and maintenance within the Railway Corridor of 34 the SRL Railway and access roads to be within the Railway 35 Corridor; 36 (b) the grant of Lateral Access Road Licences for the 37 construction, use and maintenance of Lateral Access Roads page 21 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 over the routes for the Lateral Access Roads agreed pursuant 2 to clause 7(1) (including as applying pursuant to 3 clause 13(2)); and 4 (c) the inclusion of additional land in the Special Railway 5 Licence as referred to in clause 14(8), 6 in accordance with this Agreement. For the purposes of this 7 subclause (3), "title holder" means a management body (as defined in 8 the LAA) in respect of any part of the affected land, a person who 9 holds a mining, petroleum or geothermal energy right (as defined in 10 the LAA) in respect of any part of the affected land, a person who 11 holds a lease, licence or easement under the LAA in respect of any 12 part of the affected land, a person who holds any other title granted 13 under or pursuant to a Government agreement in respect of any part of 14 the affected land, a person who holds a lease, licence or easement in 15 respect of any part of the affected land under any other Act applying 16 in the said State and a person in whom any part of the affected land is 17 vested, immediately before the provision of such consents to the 18 Minister as referred to in clause 11(5)(b) (including as applying 19 pursuant to clause 13(2)). 20 8. Port Railway and Port Facilities 21 (1) As soon as practicable during its studies under clause 5, and from 22 time to time during those studies as required by either the Company 23 or the State, the Company shall consult with the Minister to seek the 24 agreement of the Minister (acting with the concurrence of the Port 25 Authorities Minister) as to: 26 (a) the area or areas (as the case may be) of the Port within which 27 the Port Railway and the access roads to be used by the 28 Company in constructing, operating and maintaining the Port 29 Railway are to be constructed; and 30 (b) the nature and characteristics of the Port Railway, including a 31 design capacity which enables the transport of not less than 32 50 million tonnes of iron ore products per annum over the 33 Port Railway. 34 In considering the matters in paragraphs (a) and (b) above, the 35 Minister (and the Port Authorities Minister) may have regard to the 36 proposed nature and characteristics of the proposed Port Facilities and page 22 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 the Minister (acting with the concurrence of the Port Authorities 2 Minister) may make his agreement as to one or more of those matters 3 conditional upon the Port Facilities having a specified nature and 4 specified characteristics, including a specified transhipment design 5 capacity of not less than 50 million tonnes per annum. 6 (2) If the date by which the Company must submit detailed proposals 7 under clause 11(1) is extended or varied by the Minister pursuant to 8 clause 28, any agreement made pursuant to subclause (1) before such 9 date is extended or varied shall, unless the Minister notifies the 10 Company otherwise, be deemed to be at an end and neither party shall 11 have any claim against the other in respect of it. 12 (3) Notwithstanding any agreement (including for the avoidance of doubt 13 pursuant to clauses 7(1) or 8(1)), representation or understanding 14 between the Company or a Guarantor and any one or more of the 15 State, the Minister, the Port Authorities Minister or the Port Authority 16 in connection with the establishment of the Port as a port under the 17 Port Authorities Act, none of the State, the Minister, the Port 18 Authorities Minister or the Port Authority: 19 (a) has any obligation, whether under this Agreement or 20 otherwise, to cause or ensure the establishment of the Port as 21 a port under the Port Authorities Act is pursued, completed or 22 completed without delay; or 23 (b) is liable to any person (including the Company, a Guarantor 24 or the PIOP mining area proponent) for any loss or damage of 25 any kind whatsoever and howsoever arising out of or in 26 connection with the failure of the Port to be so established. 27 (4) Nothing in this Agreement, including any agreement between the 28 Company and the Minister pursuant to subclause (1), shall be 29 construed to oblige the State or any Minister in the Government of the 30 said State to cause the grant to the Company or any other person 31 (whether for the initial Project or as expanded from time to time) of 32 tenure or other rights including the Port Railway Lease. 33 (5) The provisions of clause 33 shall not apply to this clause. page 23 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 9. Community development plan 2 (1) In this clause, the term "community and social benefits" includes: 3 (a) assistance with skills development and training opportunities 4 to promote work readiness and employment for persons 5 living in the Pilbara region of the said State; 6 (b) training and guaranteed employment for indigenous and 7 non-indigenous persons living in the Pilbara region of the 8 said State; 9 (c) regional development activities in the Pilbara region of the 10 said State, including partnerships and sponsorships and local 11 procurement of goods and services; 12 (d) contribution to any community projects, town services or 13 facilities; and 14 (e) a regionally based workforce. 15 (2) The Company acknowledges the need for community and social 16 benefits flowing from this Agreement. 17 (3) The Company agrees that, prior to the time at which it submits any 18 proposals pursuant to clause 11, and, if required by the Minister, prior 19 to the time at which it submits any additional proposals pursuant to 20 clause 13, it shall: 21 (a) prepare a plan which describes the Company's proposed 22 strategies for achieving community and social benefits in 23 connection with the developments proposed; and 24 (b) submit to the Minister the plan prepared pursuant to 25 subclause (3)(a) and confer with the Minister in respect of the 26 plan. 27 (4) The Minister shall within one month after receipt of a plan submitted 28 under subclause (3)(b), either notify the Company that the Minister 29 approves the plan as submitted or notify the Company of changes 30 which the Minister requires be made to the plan. If the Company is 31 unwilling to accept the changes which the Minister requires it shall 32 notify the Minister to that effect and either party may refer to 33 arbitration hereunder the question of the reasonableness of the 34 changes required by the Minister. page 24 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 (5) The effect of an award made on an arbitration pursuant to 2 subclause (4) shall be that the plan submitted by the Company 3 pursuant to subclause (3)(b) shall, with such changes required by the 4 Minister under subclause (4) as the arbitrator determines to be 5 reasonable (with or without modification by the arbitrator), be deemed 6 to be the plan approved by the Minister under this clause. 7 (6) During the currency of this Agreement, the Company shall implement 8 the plan approved or deemed to be approved by the Minister under 9 this clause. 10 (7) The Company shall at least annually report to the Minister about the 11 Company's implementation of the plan approved or deemed to be 12 approved by the Minister under this clause. 13 (8) At the request of either of them made at any time and from time to 14 time, the Minister and the Company shall confer as to any 15 amendments desired to any plan approved or deemed to be approved 16 by the Minister under this clause and may agree to amendment of the 17 plan or adoption of a new plan. Any such amended plan or new plan 18 will be deemed to be the plan approved by the Minister under this 19 clause. 20 10. Local industry participation plan 21 (1) In this clause, the term "local industry participation benefits" means: 22 (a) the use and training of labour available within the said State; 23 (b) the use of the services of engineers, surveyors, architects and 24 other professional consultants, experts, specialists, project 25 managers and contractors available within the said State; and 26 (c) the procurement of works, materials, plant, equipment and 27 supplies from Western Australian suppliers, manufacturers 28 and contractors. 29 (2) The Company acknowledges the need for local industry participation 30 benefits flowing from this Agreement. page 25 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 (3) The Company agrees that within 3 months after the Operative Date it 2 shall prepare and provide to the Minister a plan which contains in 3 connection with the development proposed or to be proposed as the 4 case may be pursuant to clause 11: 5 (a) a clear statement on the strategies which the Company will 6 use, and require a third party as referred to in clause 19(2) to 7 use, to maximise the uses and procurement referred to in 8 subclause (1); 9 (b) detailed information on the procurement practices the 10 Company will adopt, and require a third party as referred to 11 in clause 19(2) to adopt, in calling for tenders and letting 12 contracts for works, materials, plant, equipment and supplies 13 and how such practices will provide fair and reasonable 14 opportunity for suitably qualified Western Australian 15 suppliers, manufacturers and contractors to tender or quote 16 for works, materials, plant, equipment and supplies; 17 (c) detailed information on the methods the Company will use, 18 and require a third party as referred to in clause 19(2) to use, 19 to have their respective procurement officers promptly 20 introduced to Western Australian suppliers, manufacturers 21 and contractors seeking such introduction; and 22 (d) details of the communication strategies the Company will 23 use, and require a third party as referred to in clause 19(2) to 24 use, to alert Western Australian engineers, surveyors, 25 architects and other professional consultants, experts, 26 specialists, project managers and consultants and Western 27 Australian suppliers, manufacturers and contractors to 28 services opportunities and procurement opportunities 29 respectively as referred to in subclause (1). 30 It is acknowledged by the Company that the strategies of the 31 Company referred to in subclause (3)(a) will include strategies of the 32 Company in relation to supply of services, labour, works, materials, 33 plant, equipment or supplies for the purposes of this Agreement. 34 (4) During the currency of this Agreement the Company shall implement 35 the plan provided under this clause. page 26 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 (5) At the request of either of them made at any time and from time to 2 time, the Minister and the Company shall confer as to any 3 amendments desired to any plan provided under this clause and may 4 agree to the amendment of the plan or the provision of a new plan in 5 substitution for the one previously provided. 6 (6) The provisions of subclauses (3) and (4) shall apply mutatis mutandis 7 to any development proposed or to be proposed as the case may be 8 pursuant to clause 13 (unless the Minister otherwise requires) but with 9 any required plan to be submitted by no later than the giving of notice 10 by the Company under clause 13(1). 11 11. Company to submit proposals 12 (1) The Company shall, subject to the EP Act, the provisions of this 13 Agreement, agreement at that time subsisting in respect of the matters 14 required to be agreed pursuant to clauses 7(1) and 8(1), approval of a 15 plan as referred to in clause 9, provision of a plan as referred to in 16 clause 10 and, unless otherwise agreed with the State during the 17 currency of this Agreement, the establishment of the Port under the 18 Port Authorities Act, submit to the Minister by 31 March 2019 to the 19 fullest extent reasonably practicable its detailed proposals (including 20 plans where practicable and specifications where reasonably required 21 by the Minister and any other details normally required by a local 22 government in whose area any works are to be situated) with respect 23 to the undertaking of the Project, which proposals shall include the 24 location, area, layout, design, materials and time program for the 25 commencement and completion of construction or the provision (as 26 the case may be) of each of the following matters: 27 (a) the SRL Railway including fencing (if any) and crossing 28 places within the Railway Corridor and the matters referred 29 to in subclause (2)(a); 30 (b) Additional Infrastructure (if any) to be constructed within the 31 Railway Corridor; 32 (c) temporary accommodation and ancillary temporary facilities 33 for the railway construction workforce on, or in the vicinity 34 of, the Railway Corridor; 35 (d) water supply; page 27 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 (e) energy supplies; 2 (f) telecommunications; 3 (g) access roads within the Railway Corridor and Lateral Access 4 Roads both along the routes for those roads agreed between 5 the Minister and the Company pursuant to clause 7(1); 6 (h) use of local labour, professional services, manufacturers, 7 suppliers, contractors and materials and measures to be taken 8 with respect to the engagement and training of employees by 9 the Company, its agents and contractors; and 10 (i) any other works, services or facilities desired by the 11 Company. 12 (2) (a) Proposals as to the matters specified in subclause (1)(a) must 13 provide for the SRL Railway to have: 14 (i) a design capacity which enables the transport of not 15 less than 50 million tonnes of iron ore products per 16 annum over the SRL Railway; and 17 (ii) a railway track configuration which enables: 18 (A) rail operations of the kind carried out on the 19 Pilbara Iron Ore Railways to be carried out 20 on the Railway, and vice versa; and 21 (B) connection of the SRL Railway outside the 22 Port to any one or more of the Pilbara Iron 23 Ore Railways. 24 (b) Proposals pursuant to subclause (1) must specify the matters 25 agreed for the purpose pursuant to clauses 7(1) and must not 26 be contrary to or inconsistent with such agreed matters. 27 (3) Each of the proposals pursuant to subclause (1) may with the approval 28 of the Minister, or must if so required by the Minister, be submitted 29 separately and in any order as to the matter or matters mentioned in 30 one or more of paragraphs (a) to (i) of subclause (1), and until all of 31 its proposals under this clause have been approved, the Company may 32 withdraw and may resubmit any proposal but the withdrawal of any 33 proposal shall not affect the obligations of the Company to submit a page 28 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 proposal under this clause in respect of the subject matter of the 2 withdrawn proposal. 3 (4) The Company shall, whenever any of the following matters referred 4 to in this subclause are proposed by the Company (whether before or 5 during the submission of proposals under this clause), submit to the 6 Minister details of any services (including any elements of the project 7 investigations, design and management) and any works, materials, 8 plant, equipment and supplies that it proposes to consider obtaining 9 from or having carried out or permitting to be obtained from or 10 carried out outside Australia, together with its reasons therefor and 11 shall, if required by the Minister consult with the Minister with 12 respect thereto. 13 (5) At the time when the Company submits the last of the said proposals 14 pursuant to this clause, it shall: 15 (a) furnish to the Minister's reasonable satisfaction evidence of: 16 (i) the financial capability of the Company to undertake 17 the operations to which the said proposals refer; 18 (ii) all accreditations under the Rail Safety Act which are 19 required to be held by the Company or any other 20 person for the construction of the SRL Railway; 21 (iii) the Company having a binding agreement or 22 agreements with the PIOP mining area proponent or 23 proponents (as the case may be) for the transport by 24 the Company upon the Railway to the Port, for not 25 less than 20 years from the Railway Operation Date, 26 of not less than 25 million tonnes in aggregate per 27 annum, commencing from the Railway Operation 28 Date, of iron ore produced, or products derived from 29 iron ore produced by such proponent or proponents, 30 after the date of this Agreement from a project or 31 projects (as the case may be) within the PIOP mining 32 area, which agreement may be conditional upon the 33 grant of the Port Railway Lease and the Special 34 Railway Licence; 35 (iv) the PIOP mining area proponent(s) being ready to 36 embark upon and to proceed to carry out its or their page 29 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 abovementioned project or projects (as the case may 2 be) in a timeframe consistent with the 3 commencement of the undertaking of the Project, 4 including: 5 (A) evidence of there being in place a binding 6 agreement or agreements which assures to 7 such proponent or proponents access as and 8 when required to capacity within the Port 9 for the handling at and shipment from the 10 Port of iron ore products that may be 11 transported upon the Railway under the 12 agreement referred to in paragraph (a)(iii) 13 above, which agreement or agreements may 14 be conditional upon the grant of the Port 15 Railway Lease and the Special Railway 16 Licence; 17 (B) evidence that both Miscellaneous Licence 18 L47/733 and Miscellaneous Licence 19 L47/753 have been granted and remain in 20 force and of any consents required to pass 21 over any Pilbara Iron Ore Railway in order 22 to transport iron ore to the PIOP mining 23 area loading point, which consents may be 24 conditional upon the grant of the Special 25 Railway Licence; and 26 (C) if the PIOP mining area proponent(s) is not 27 the owner of the proposed conveyor to the 28 PIOP loading point, having in place a 29 binding agreement for the transport of iron 30 ore products to the PIOP mining area 31 loading point, which agreement may be 32 conditional upon the grant of the Special 33 Railway Licence; 34 (v) the capacity within the Port as referred to in 35 paragraph (a)(iv)(A) above being available over the 36 term of this Agreement and in a timeframe consistent 37 with the commencement and undertaking of the 38 Project; page 30 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 (vi) all other arrangements and agreements the Company 2 has at that time made or proposes to make in respect 3 of access (as defined in clause 16) to the Railway or 4 in respect of transport of any iron ore products over 5 the Railway; 6 (vii) the readiness of the Company to embark upon and 7 proceed to carry out the operations referred to in the 8 said proposals; and 9 (viii) the Company holding, or the readiness of relevant 10 authorities and agencies to grant, upon the Minister's 11 approval of the Company's proposals, all approvals, 12 consents, licences or other rights required to 13 implement the proposals; 14 (b) furnish to the Minister the written consents referred to in 15 clause 7(3)(a) and 7(3)(b); and 16 (c) furnish to the Minister's reasonable satisfaction evidence that 17 the Company and the Port Authority have entered into a 18 binding agreement for the grant to the Company of the Port 19 Railway Lease, which agreement may be conditional upon 20 the grant of the Special Railway Licence and which shall 21 provide that the term of the Port Railway Lease will 22 commence within 3 months after construction of the Port 23 Railway. 24 12. Consideration of proposals 25 (1) In respect of each proposal pursuant to clause 11(1) the Minister shall, 26 subject to the EP Act: 27 (a) approve of the proposal without qualification or reservation; 28 or 29 (b) defer consideration of or decision upon the same until such 30 time as the Company submits a further proposal or proposals 31 in respect of some other of the matters mentioned in 32 clause 11(1) not covered by the said proposal or until such 33 time as clause 11(5) has been complied with by the 34 Company; or page 31 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 (c) require as a condition precedent to the giving of his approval 2 to the said proposal, that the Company make such alteration 3 thereto or comply with such conditions in respect thereto as 4 he (having regard to the circumstances, including the overall 5 development of and the use by others as well as the Company 6 of all or any of the facilities proposed to be provided) thinks 7 reasonable and in such a case the Minister shall disclose his 8 reasons for such conditions, 9 PROVIDED ALWAYS that: 10 (d) where implementation of any proposals hereunder have been 11 approved pursuant to the EP Act subject to conditions or 12 procedures, any approval or decision of the Minister under 13 this clause shall if the case so requires incorporate a 14 requirement that the Company make such alterations to the 15 proposals as may be necessary to make them accord with 16 those conditions or procedures; and 17 (e) the Minister shall not consider a purported proposal or 18 proposals (as the case may be) if the Minister is of the 19 opinion that the purported proposal or proposals does not or 20 do not (as the case may be) comply with clause 11 or this 21 Agreement generally and in such circumstances: 22 (i) this subclause (1) (other than this paragraph (e)) and 23 subclause (2) shall not apply to the purported 24 proposal or proposals; 25 (ii) subject to this Agreement, the Minister shall afford 26 the Company full opportunity to consult with him and 27 should it so desire to submit a new or revised 28 proposal or proposals either generally or in respect to 29 some particular matter; and 30 (iii) the Minister's opinion is not subject to arbitration 31 under clause 33. 32 (2) Subject to subclause (1), the Minister shall within 2 months after the 33 later of: 34 (a) receipt of proposals pursuant to clause 11(1); page 32 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 (b) where the proposals are to be assessed under Part IV of the 2 EP Act, service on the Minister of an authority under 3 section 45(7) of the EP Act; and 4 (c) where a proposal will or may require the State to do any act 5 which affects any native title rights and interests, completion 6 of all processes required by laws relating to native title to be 7 undertaken by the State before that act may be done by the 8 State, 9 give notice to the Company of his decision in respect to the proposals. 10 (3) If the decision of the Minister is as mentioned in either of 11 paragraphs (b) or (c) of subclause (1) the Minister shall afford the 12 Company full opportunity to consult with him and should it so desire 13 to submit new or revised proposals either generally or in respect to 14 some particular matter. 15 (4) If the decision of the Minister is as mentioned in either of 16 paragraphs (b) or (c) of subclause (1) and the Company considers that 17 the decision is unreasonable, the Company within 2 months after 18 receipt of the notice mentioned in subclause (2) may elect to refer to 19 arbitration in the manner hereinafter provided the question of the 20 reasonableness of the decision PROVIDED THAT any requirement 21 of the Minister pursuant to the proviso to subclause (1) shall not be 22 referable to arbitration hereunder. 23 (5) An award made on an arbitration pursuant to subclause (4) shall have 24 force and effect as follows: 25 (a) if by the award the dispute is decided against the Company 26 then unless the Company within 3 months after delivery of 27 the award gives notice to the Minister of its acceptance of the 28 award, this Agreement shall on the expiration of that period 29 of 3 months cease and determine; or 30 (b) if by the award the dispute is decided in favour of the 31 Company the decision shall take effect as a notice by the 32 Minister that he is so satisfied with and approves the matter 33 or matters the subject of the arbitration. 34 (6) Notwithstanding any provision of this Agreement (other than 35 clause 28) or that any matter required to be agreed pursuant to page 33 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 clauses 7(1) and 8(1) has not been agreed, or that the plan required to 2 be approved pursuant to clause 9 has not been approved, or that the 3 plan required to be provided pursuant to clause 10 has not been 4 provided, or that the Port has not been established under the Port 5 Authorities Act, or that under this clause any proposals of the 6 Company are approved by the Minister or determined by arbitration 7 award, unless each and every proposal and matter required pursuant to 8 clause 11 is so approved or determined by 1 October 2019, then 9 without limiting the provisions of clause 30: 10 (a) subject to paragraph (b), the Minister may give the Company 11 12 months' notice of intention to determine this Agreement 12 and unless before the expiration of the said 12 month notice 13 period all the detailed proposals and matters are so approved 14 or determined, this Agreement shall on the expiration of that 15 period cease and determine; or 16 (b) if the State has determined or determines that the Port (or part 17 thereof) will not be established or completed for any reason 18 whatsoever and the Company's right to submit proposals 19 pursuant to clause 11 is still subject to such establishment 20 having first occurred, the Minister may give the Company 21 notice of intention to determine this Agreement immediately 22 and this Agreement shall cease and determine on the date the 23 notice is given to the Company. 24 (7) Subject to and in accordance with the EP Act and any approvals and 25 licences required under that Act the Company shall implement the 26 approved proposals in accordance with the terms thereof. 27 (8) Notwithstanding clause 26, the Minister may during the 28 implementation of approved proposals approve variations to those 29 proposals. 30 (9) The Minister may extend the periods set forth in clause 11(1) and 31 subclause (6) of this clause (in addition to any extension granted 32 under clauses 27 and 28) upon request of the Company for such 33 reasonable period or periods as the Minister considers appropriate to 34 enable the Company to comply with laws relating to native title. page 34 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 13. Expansion of Project outside the Port 2 (1) If the Company at any time during the currency of this Agreement 3 desires to construct outside the Port a SRL Railway spur line, 4 Additional Infrastructure or otherwise desires to significantly modify, 5 expand or otherwise vary its activities that are the subject of this 6 Agreement and that may be carried on by it pursuant to this 7 Agreement beyond those activities specified in any approved 8 proposals, it shall give notice of such desire to the Minister and 9 furnish to the Minister with that notice: 10 (a) an outline of its proposals in respect thereto (including such 11 matters mentioned in clause 11(1) as are relevant or as the 12 Minister otherwise requires); 13 (b) in the case of the proposed construction of a SRL Railway 14 spur line, the proposed design capacity of such spur line; 15 (c) the expected consequent increase in the capacity of the 16 Railway or part of it (as the case may be), as a result of the 17 construction of the spur line or other modification, expansion 18 or variation of the Company's activities (as the case may be); 19 and 20 (d) to the Minister's reasonable satisfaction evidence that 21 capacity within the Port, and access for the Company to such 22 capacity, will be available over the remaining term of this 23 Agreement, and in a timeframe consistent with the 24 commencement and completion of the construction of the 25 spur line or other modification, expansion or variation of the 26 Company's activities (as the case may be), for the handling at 27 and shipment from it of the additional tonnages of iron ore 28 products that may be transported upon the Railway to the Port 29 as a result of the expected consequent increase in the capacity 30 of the Railway or part of it (as the case may be). 31 (2) The Minister shall within one month of receipt of such notice advise 32 the Company whether or not he approves in-principle the proposed 33 construction of such spur line, Additional Infrastructure (if any) or 34 other modification, expansion or variation of the Company's activities 35 (as the case may be) or whether he requires the proposal to be 36 modified (in which case, subclause (1) shall mutatis mutandis apply to 37 such modified proposal). If the Minister gives in-principle approval page 35 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 the Company may (but not otherwise) submit detailed proposals in 2 respect thereof provided that the provisions of clauses 4, 5, 7 (in 3 respect of any proposed spur line), 9 and 10 shall mutatis mutandis 4 apply prior to submission of detailed proposals in respect thereof. 5 (3) Subject to the EP Act, the provisions of this Agreement and 6 agreement at that time subsisting in respect of any matters required to 7 be agreed pursuant to clause 7(1) (as referred to in subclause (2)), 8 approval of a plan as referred to in clause 9 and provision of a plan as 9 referred to in clause 10 (in each case if the Minister so requires), the 10 Company shall submit to the Minister within a reasonable timeframe, 11 as determined by the Minister after receipt of the notice referred to in 12 subclause (1) (or in the case of a notice referred to in subclause (2), 13 the giving of the Minister's in-principle approval as referred to in that 14 subclause), detailed proposals in respect of the proposed construction 15 of such spur line, Additional Infrastructure (if any) or the other 16 proposed modification, expansion or variation of its activities (as the 17 case may be) including such of the matters mentioned in clause 11(1) 18 as the Minister may require. 19 (4) The provisions of clause 11 (other than subclause (2)(a)(i), 5(a)(iii), 20 5(a)(iv), 5(a)(v) and 5(c)) and with the reference in subclause (5)(b) to 21 clause 7(3)(a) being read as a reference to clause 7(3)(c)) and 22 clause 12 (other than subclauses (5)(a), (6), (7) and (9) of clause 12) 23 shall mutatis mutandis apply to detailed proposals submitted pursuant 24 to this clause provided that the Company may withdraw such 25 proposals at any time before approval thereof or, where any decision 26 of the Minister in respect thereof is referred to arbitration, within 27 3 months after the award by notice to the Minister that it shall not be 28 proceeding with the same. Subject to and in accordance with the EP 29 Act and any approvals or licences required under that Act, the 30 Company shall implement approved proposals pursuant to this clause 31 in accordance with the terms thereof. 32 14. Grant of Tenure 33 (1) On application made by the Company to the Minister in such manner 34 as the Minister may determine, not later than 3 months after all its 35 proposals submitted pursuant to clause 11(1) have been approved or 36 deemed to be approved and the Company has complied with the 37 provisions of clause 11(5), the State, notwithstanding the Mining Act, 38 shall cause to be granted to the Company: page 36 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 (a) a miscellaneous licence to conduct within the Railway 2 Corridor and in accordance with its approved proposals all 3 activities (including the taking of stone, sand, clay and gravel, 4 the provision of temporary accommodation facilities for the 5 railway workforce and, subject to the Rights in Water and 6 Irrigation Act 1914 (WA), the operation of water bores) 7 necessary for the planning, design, construction, 8 commissioning, operation and maintenance within the 9 Railway Corridor of the SRL Railway, Additional 10 Infrastructure (if any) and access roads ("the Special 11 Railway Licence"), such licence to be granted under and 12 subject to, except as otherwise provided in this Agreement, 13 the Mining Act in the form of Schedule 2 hereto and subject 14 to such terms and conditions as the Minister for Mines may 15 from time to time consider reasonable and at a rental 16 calculated in accordance with the Mining Act: 17 (i) prior to the Railway Operation Date, as if the width 18 of the Railway Corridor were 100 metres; and 19 (ii) on and from the Railway Operation Date, at the 20 rentals from time to time prescribed under the Mining 21 Act; and 22 (b) a miscellaneous licence or licences to allow the construction, 23 use and maintenance of Lateral Access Roads within the 24 routes agreed for those Lateral Access Roads under 25 clause 7(1) (each a "Lateral Access Road Licence"), each 26 such licence to be granted under and subject to, except as 27 otherwise provided in this Agreement, the Mining Act in the 28 form of Schedule 3 hereto and subject to such terms and 29 conditions as the Minister for Mines may from time to time 30 consider reasonable and at the rentals from time to time 31 prescribed under the Mining Act. 32 (2) On application made by the Company to the Minister in such manner 33 as the Minister may determine, not later than 3 months after its 34 proposals submitted pursuant to clause 13(2) for the construction of 35 Lateral Access Roads for access to the Railway Corridor to construct 36 a SRL Railway spur line have been approved or deemed to be 37 approved and the Company has complied with the provisions of 38 clause 11(5)(b) (as applying pursuant to clause 13(4)), the State page 37 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 notwithstanding the Mining Act shall cause to be granted to the 2 Company a miscellaneous licence or licences to allow the 3 construction, use and maintenance of Lateral Access Roads within the 4 routes agreed for those Lateral Access Roads under clause 7(1) (as 5 applying pursuant to clause 13(2) (each a "Lateral Access Road 6 Licence"), each such licence to be granted under and subject to, 7 except as otherwise provided in this Agreement, the Mining Act in the 8 form of Schedule 4 hereto and subject to such terms and conditions as 9 the Minister for Mines may from time to time consider reasonable and 10 at the rentals from time to time prescribed under the Mining Act. 11 (3) Subject to the performance by the Company of its obligations under 12 this Agreement and the Mining Act and notwithstanding any 13 provisions of the Mining Act to the contrary, the term of the Special 14 Railway Licence shall be for a period of 20 years commencing on the 15 date of grant thereof (subject to sooner determination thereof upon the 16 determination of this Agreement) with the right as provided herein for 17 the Company to take during the currency of this Agreement 2 18 successive renewals each of 10 years (subject to sooner determination 19 thereof upon the determination of this Agreement) upon the same 20 terms and conditions PROVIDED THAT the Minister is satisfied that 21 the SRL Railway is, at the date of the relevant renewal, operational 22 and being used to transport iron ore products to the Port. The 23 Company may exercise its right to renew the term of the Special 24 Railway Licence as provided herein by making application for such 25 renewal not later than 6 months before the expiration of the then 26 current term of the Special Railway Licence. 27 (4) Notwithstanding the Mining Act, the term of any Lateral Access Road 28 Licence shall, subject to the sooner determination thereof on the 29 cessation or sooner determination of this Agreement, be for a period 30 of 5 years commencing on the date of grant thereof. 31 (5) Notwithstanding the Mining Act, and except as required to do so by 32 the terms of the Special Railway Licence, the Company shall not be 33 entitled to surrender the Special Railway Licence or any Lateral 34 Access Road Licence or any part or parts of them without the prior 35 consent of the Minister. 36 (6) (a) The Company may in accordance with approved proposals 37 take stone, sand, clay and gravel from the Railway Corridor 38 (including any area of land included in the Special Railway page 38 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 Licence pursuant to subclause (8)) for the construction, 2 operation and maintenance of the SRL Railway (including 3 any SRL Railway spur line constructed within or approved 4 for construction within the Railway Corridor). 5 (b) Notwithstanding the Mining Act, no royalty shall be payable 6 under the Mining Act in respect of stone, sand, clay and 7 gravel which the Company is permitted by subclause (6)(a) to 8 obtain from the land the subject of the Special Railway 9 Licence. 10 (7) For the purposes of this Agreement and without limiting the operation 11 of the other subclauses of this clause, the application of the Mining 12 Act and the regulations made thereunder are specifically modified; 13 (a) in section 91(1) by: 14 (i) deleting "the mining registrar or the warden, in 15 accordance with section 42 (as read with section 92)" 16 and substituting "the Minister"; 17 (ii) deleting "any person" and substituting "the Company 18 (as defined in the agreement made on or about 19 23 January 2017 between The Honourable Colin 20 James Barnett, Premier of the State of Western 21 Australia acting for and on behalf of the said State 22 and its instrumentalities from time to time, BBI Rail 23 Aus Pty Ltd ABN 44 604 857 392, Todd Petroleum 24 Mining Company Limited NZBN 9429040945767, 25 Todd Offshore Limited NZBN 9429030115989 and 26 Todd Minerals Limited NZBN 9429030762596, as 27 varied from time to time)"; and 28 (iii) deleting "for any one or more of the purposes 29 prescribed" and substituting "for the purpose 30 specified in clause 14(1)(a), clause 14(1)(b) or 31 clause 14(2), of the agreement made on or about 32 23 January 2017 between The Honourable Colin 33 James Barnett, Premier of the State of Western 34 Australia acting for and on behalf of the said State 35 and its instrumentalities from time to time, BBI Rail 36 Aus Pty Ltd ABN 44 604 857 392, Todd Petroleum 37 Mining Company Limited NZBN 9429040945767, page 39 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 Todd Offshore Limited NZBN 9429030115989 and 2 Todd Minerals Limited NZBN 9429030762596, as 3 varied from time to time"; 4 (b) in section 91(3)(a), by deleting "prescribed form" and 5 substituting "form required by the agreement made on or 6 about 23 January 2017 between The Honourable Colin James 7 Barnett, Premier of the State of Western Australia acting for 8 and on behalf of the said State and its instrumentalities from 9 time to time, BBI Rail Aus Pty Ltd ABN 44 604 857 392, 10 Todd Petroleum Mining Company Limited NZBN 11 9429040945767, Todd Offshore Limited NZBN 12 9429030115989 and Todd Minerals Limited NZBN 13 9429030762596, as varied from time to time"; 14 (c) by deleting sections 91(6), 91(9), 91(10) and 91B; 15 (d) in section 92 by: 16 (i) deleting "Sections 41, 42, 44, 46, 46A, 47 and 52 17 apply," and inserting "Section 46A (excluding in 18 subsection (2)(a) "the mining registrar, the warden 19 or") applies,"; and 20 (ii) deleting "in those provisions" and inserting "in that 21 provision"; 22 (e) by deleting the full stop at the end of the section 94(1) and 23 inserting, "except to the extent otherwise provided in, or to 24 the extent that such terms and conditions are inconsistent 25 with, the agreement made on or about 23 January 2017 26 between The Honourable Colin James Barnett, Premier of the 27 State of Western Australia acting for and on behalf of the said 28 State and its instrumentalities from time to time, BBI Rail 29 Aus Pty Ltd ABN 44 604 857 392, Todd Petroleum Mining 30 Company Limited NZBN 9429040945767, Todd Offshore 31 Limited NZBN 9429030115989 and Todd Minerals Limited 32 NZBN 9429030762596, as varied from time to time."; 33 (f) by deleting sections 94(2), (3) and (4); 34 (g) in section 96(1), by inserting after "miscellaneous licence" 35 the words "(not being a miscellaneous licence granted page 40 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 pursuant to the agreement made on or about 23 January 2017 2 between The Honourable Colin James Barnett, Premier of the 3 State of Western Australia acting for and on behalf of the said 4 State and its instrumentalities from time to time, BBI Rail 5 Aus Pty Ltd ABN 44 604 857 392, Todd Petroleum Mining 6 Company Limited NZBN 9429040945767, Todd Offshore 7 Limited NZBN 9429030115989 and Todd Minerals Limited 8 NZBN 9429030762596, as varied from time to time)"; 9 (h) by deleting mining regulations 37(2), 37(3), 42 and 42A; and 10 (i) by inserting at the beginning of mining regulations 41(c) and 11 (f) the words "subject to the agreement made on or about 12 23 January 2017 between The Honourable Colin James 13 Barnett, Premier of the State of Western Australia acting for 14 and on behalf of the said State and its instrumentalities from 15 time to time, BBI Rail Aus Pty Ltd ABN 44 604 857 392, 16 Todd Petroleum Mining Company Limited NZBN 17 9429040945767, Todd Offshore Limited NZBN 18 9429030115989 and Todd Minerals Limited NZBN 19 9429030762596, as varied from time to time". 20 (8) If additional proposals are approved in accordance with clause 13 for 21 the construction of a SRL Railway spur line and Additional 22 Infrastructure (if any) outside the then Railway Corridor, the Minister 23 for Mines shall include the area of land within which such 24 construction is to occur in the Special Railway Licence by 25 endorsement. The area of such land may be included notwithstanding 26 that the survey of the land has not been completed but subject to 27 correction to accord with the survey when completed at the 28 Company's expense. 29 15. Construction and operation of Railway 30 (1) Subject to and in accordance with approved proposals, the Rail Safety 31 Act and the State having assured to the Company all necessary rights 32 over Crown land (as defined in the LAA) available for the purpose, 33 the Company shall in a proper and workmanlike manner and in 34 accordance with recognised standards for railways of a similar nature 35 operating under similar conditions, construct the SRL Railway, 36 Additional Infrastructure (if any) and associated access roads within 37 the Railway Corridor and shall also construct inter alia any necessary page 41 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 sidings, crossing points, bridges, signalling switches and other works 2 and appurtenances and provide for crossings and (where appropriate 3 and required by the Minister) grade separation or other protective 4 devices, including flashing lights and boom gates, at places where the 5 SRL Railway crosses or intersects with major roads or existing 6 railways. 7 (2) The Company shall during the currency of this Agreement: 8 (a) keep the Railway and Additional Infrastructure (if any) in an 9 operable state; 10 (b) ensure that the Railway and Additional Infrastructure (if any) 11 is operated in a safe and proper manner in compliance with 12 all applicable laws from time to time; and 13 (c) without limiting subclause (2)(b) or clause 18, ensure that the 14 obligations imposed under the Rail Safety Act on a rail 15 transport operator (as that term is therein defined) are 16 complied with in connection with the Railway and (from such 17 time as the Access Act and the Access Code apply to the 18 Railway) ensure that the obligations imposed under the 19 Access Act and the Access Code on a railway owner (as that 20 term is therein defined) are complied with in connection with 21 the Railway. 22 Nothing in this Agreement shall be construed to exempt the Company 23 or any other person from compliance with the Rail Safety Act and 24 (from and during such time as they apply as referred to in 25 clause 16(2)) the Access Act and the Access Code, or limit their 26 application to the Company's operations generally. 27 (3) The Company shall provide crossings for livestock and also for any 28 roads, other railways, conveyors, pipelines, transmission lines and 29 other utilities which in respect of a proposed crossing of land the 30 subject of the Special Railway Licence exist at the date of grant of the 31 Special Railway Licence or in respect of land subsequently included 32 in it exist at the date of such inclusion or in respect of land the subject 33 of a Lateral Access Road Licence exist at the date of grant of the 34 Lateral Access Road Licence. In addition for the purposes of 35 livestock and infrastructure such as roads, railways, conveyors, 36 pipelines, transmission lines and other utilities proposed to cross the 37 land the subject of the Special Railway Licence or land the subject of page 42 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 a Lateral Access Road Licence( as the case may be) the Company 2 shall: 3 (a) if applicable, give its consent to, and otherwise facilitate, the 4 grant by the State or any agency, instrumentality or other 5 authority of the State of any lease, licence or other title over 6 land the subject of the Special Railway Licence or of a 7 Lateral Access Road Licence (as the case may be) so long as 8 such grant does not in the Minister's opinion unduly prejudice 9 or interfere with the activities of the Company under this 10 Agreement; and 11 (b) on reasonable terms and conditions allow access for the 12 construction and operation of such crossings and associated 13 infrastructure, 14 provided that in forming his opinion under this clause, the Minister 15 must consult with the Company. 16 (4) In relation to its use of the Railway when transporting passengers or 17 carrying iron ore products, the Company shall not be deemed to be a 18 common carrier at law or otherwise. 19 (5) The Company shall at all times be the holder of the Special Railway 20 Licence, the Port Railway Lease and Lateral Access Road Licences 21 and (without limiting clause 32) shall, subject to any temporary 22 emergency and statutory rights of a relevant authority or agency 23 (including the Port Authority), at all times own manage and control 24 the use of the Railway and Additional Infrastructure (if any). 25 (6) The Company shall not be entitled to exclusive possession of the land 26 the subject of the Special Railway Licence or any Lateral Access 27 Road Licence to the intent that the State, the Minister, the Minister for 28 Mines and any persons authorised by any of them from time to time 29 shall be entitled to enter upon the land or any part of it at all 30 reasonable times and on reasonable notice with all necessary vehicles, 31 plant and equipment and for purposes related to this Agreement or 32 such other purposes as they think fit but in doing so shall be subject to 33 the reasonable directions of the Company so as not to unreasonably 34 interfere with the Company's operations. page 43 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 (7) The Company's ownership of the SRL Railway and Additional 2 Infrastructure (if any) shall not give it an interest in the land 3 underlying it. 4 (8) The Company shall not at any time without the prior consent of the 5 Minister dismantle, sell or otherwise dispose of any part or parts of 6 the Railway or Additional Infrastructure (if any), or permit this to 7 occur, other than for the purpose of maintenance, repair, upgrade or 8 renewal. 9 (9) The Company shall use all reasonable endeavours to ensure that, 10 during the currency of this Agreement, the SRL Railway has a 11 railway track configuration which enables: 12 (a) rail operations of the kind carried out on the Pilbara Iron Ore 13 Railways to be carried out on the Railway, and vice versa; 14 and 15 (b) connection of the SRL Railway to any one or more of the 16 Pilbara Iron Ore Railways. 17 (10) The Company shall not be entitled to surrender the Port Railway 18 Lease or any part or parts of it without the prior consent of the 19 Minister (acting with the concurrence of the Port Authorities 20 Minister). 21 (11) The Company shall, subject to and in accordance with approved 22 proposals, in a proper and workmanlike manner, construct any access 23 roads, Lateral Access Roads and other works approved for 24 construction under this Agreement. 25 (12) The Company shall: 26 (a) be responsible for the cost of construction and maintenance of 27 all Private Roads; 28 (b) at its own cost erect signposts and take other steps that may 29 be reasonable in the circumstances to prevent any persons 30 and vehicles (other than those engaged upon the Company's 31 activities and its invitees and licensees and persons who have 32 rights under the Access Act and the Access Code to use those 33 roads) from using the Private Roads; and page 44 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 (c) at any place where any Private Roads are constructed by the 2 Company so as to cross any railways or public roads provide 3 at its cost such reasonable protection and signposting as may 4 be required by the Commissioner of Main Roads or the 5 Public Transport Authority as the case may be. 6 (13) During the currency of this Agreement the Company shall not trade in 7 iron ore products or permit any third party referred to in clause 32 to 8 trade in iron ore products while so engaged by the Company. 9 16. Access Obligations for Railway 10 (1) For the purposes of this clause: 11 (a) "access" includes use by persons of the Railway and, in 12 connection with such use, use by persons of the Company's 13 access roads within the Railway Corridor and within the Port 14 Railway Area but does not, for the purposes of 15 subclause (10)(c) or (12) include use of the Company's 16 rolling stock, rolling stock maintenance facilities, office 17 buildings, housing, freight centres, terminal yards and depots 18 or other facilities which are not railway infrastructure (as that 19 term is defined in the Access Act) and, for the avoidance of 20 doubt, does not include use of unloading facilities; 21 (b) "Access Date" means the date on which all of the documents 22 and matters referred to in subclause (13)(c) are approved or 23 determined under the relevant section of the Access Act or of 24 the Access Code; 25 (c) "agreement" includes an agreement, commitment or 26 arrangement which is binding or takes effect when made and 27 an agreement, commitment or arrangement which becomes 28 binding or takes effect during the currency of this Agreement 29 with the giving of notice, lapse of time, occurrence of any 30 event, passing of any date or for any other reason; 31 (d) "Commission" has the same meaning as in Australian 32 Consumer Law; 33 (e) "Expansion Access Date" in relation to an expansion or 34 extension (including any spur line) of the Railway means the 35 date on which all of the documents and matters referred to in page 45 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 subclause (13)(d) are approved or determined under the 2 relevant section of the Access Act or of the Access Code in 3 connection with the expansion or extension of the Railway; 4 (f) "railway owner" has the same meaning as in the Access Act; 5 (g) "Regulator" has the same meaning as in the Access Act; and 6 (h) "ACL Undertaking Acceptance Date" means if the Company 7 submits a written undertaking to the Commission under 8 Division 6 of Part IIIA of the Australian Consumer Law, the 9 date on which, under section 44ZZBA of the Australian 10 Consumer Law, the decision of the Commission to accept the 11 Company's proposed undertaking for the provision of haulage 12 services comes into operation; and 13 (i) "year" means the period of 12 months commencing on the 14 Railway Operation Date or any subsequent period of 15 12 months during the currency of this Agreement. 16 (2) The State and the Company acknowledge that, unless the Company 17 submits a written undertaking to the Commission under Division 6 of 18 Part IIIA of the Australian Consumer Law for the provision of 19 haulage services (including of iron ore) over the Railway and the 20 Commission accepts the proposed undertaking under Division 6 of 21 Part IIIA of the Australian Consumer Law, the Access Act and the 22 Access Code shall apply: 23 (a) to the Railway (as soon as possible after the Railway is 24 constructed and commissioned and in any event before the 25 Railway Operation Date); and 26 (b) to any expansion or extension thereof (including a spur line) 27 (as soon as possible after such expansion or extension is 28 constructed). 29 (3) The Company shall from the date occurring 6 months before the date 30 for completion of construction of the SRL Railway specified in its 31 time program for the commencement and completion of construction 32 of that SRL Railway submitted under clause 11(1), keep the Minister 33 fully informed as to: 34 (a) the progress of that construction and construction of the Port 35 Railway; page 46 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 (b) the likely completion and commissioning of the initial 2 Railway; and 3 (c) the likely Railway Operation Date. 4 (4) The Company shall on the Railway Operation Date notify the 5 Minister that the first carriage of iron ore products over the initial 6 railway line between the PIOP mining area loading point and the area 7 on which the Port Facilities are or will be located (other than for 8 construction or commissioning purposes) has occurred. 9 (5) The Company shall from the date occurring 6 months before the date 10 for completion of construction of any SRL Railway spur line 11 specified in its time program for the commencement and completion 12 of construction of that spur line submitted under clause 13 keep the 13 Minister fully informed as to: 14 (a) the progress of that construction and its likely completion and 15 commissioning; and 16 (b) in respect of it, the likely SRL Railway spur line Operation 17 Date. 18 (6) The Company shall on the SRL Railway spur line Operation Date in 19 respect of any SRL Railway spur line notify the Minister that the first 20 carriage of iron ore products over such spur line (other than for 21 construction or commissioning purposes) has occurred. 22 (7) The Railway may not at any time, unless the Minister's prior consent 23 is given, be subject to an agreement for the transport of, or access to it 24 to transport, Government Agreement Product. 25 (8) The Company acknowledges that one of the intentions of the State 26 and the Company in entering into this Agreement is that the Access 27 Act and the Access Code apply to and in respect of the Railway (but 28 not to the Company's rolling stock, rolling stock maintenance 29 facilities, office buildings, housing, freight centres, terminal yards and 30 depots and any other facilities which are not railway infrastructure (as 31 that term is defined in the Access Act)) and access roads of the 32 Company within the Railway Corridor and within the Port Railway 33 Area, unless the Company submits a written undertaking to the 34 Commission under Division 6 of Part IIIA of the Australian 35 Consumer Law for the provision of haulage services (including of page 47 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 iron ore) over the Railway and the Commission accepts the proposed 2 undertaking under Division 6 of Part IIIA of the Australian Consumer 3 Law (in which case the accepted undertaking shall apply). The 4 Company: 5 (a) acknowledges that the State shall from time to time be 6 entitled to make such legislative changes as are necessary to 7 achieve that purpose; and 8 (b) shall do all such things as the Minister reasonably requests 9 for the purposes of the Access Code applying and continuing 10 to apply to and in respect of the Railway which are not 11 inconsistent with this Agreement. 12 (9) During the period prior to the Access Date: 13 (a) subject to subclause (9)(b), no agreement for access to the 14 Railway or provision of rail transport services over the 15 Railway (including for purposes of transport of iron ore 16 products) shall be made without the prior consent of the 17 Minister; and 18 (b) one or more agreements for access to the Railway or 19 provision of rail transport services over the Railway for the 20 purposes of the transport of iron ore products may be made 21 without the prior consent of the Minister, but such 22 agreements: 23 (i) shall only be entered into by the Company; 24 (ii) shall not, either alone or when taken together, allow 25 or provide for the transport (whether by the 26 Company or any other person using the Railway) of 27 more than 50 million tonnes of iron ore products 28 over the Railway in any year during the currency of 29 this Agreement; and 30 (iii) shall comply with subclause (10). 31 (10) The Company shall ensure that each agreement for access to the 32 Railway or provision of rail transport services over the Railway 33 entered into prior to the Access Date: page 48 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 (a) does not and will not in any way prevent alteration of 2 practices or methods of operation in relation to control and 3 management of the Railway and its use (including in respect 4 of allocation and management of the use of train paths on the 5 Railway and management of train control and operating 6 standards for the Railway) to the extent necessary to comply 7 with obligations of a railway owner in connection with the 8 Railway under the Access Act and the Access Code after the 9 Access Date (including obligations to comply with train 10 management guidelines in connection with the Railway from 11 time to time approved or determined under section 43 of the 12 Access Code and directions given under that section, 13 statements of policy in connection with the Railway from 14 time to time approved or determined under section 44 of the 15 Access Code and an arrangement from time to time approved, 16 and directions from time to time given, under section 29 of 17 the Access Act for or to the railway owner in respect of the 18 Railway); 19 (b) without limiting subclause (10)(a): 20 (i) does not and will not in any way limit the discretion 21 of the Regulator in approving, determining or giving 22 a direction in respect of train management guidelines 23 in connection with the Railway under section 43 of 24 the Access Code or approving or determining a 25 statement of policy in connection with the Railway 26 under section 44 of the Access Code or under 27 section 29 of the Access Act approving an 28 arrangement for or issuing a direction to the railway 29 owner in respect of the Railway; and 30 (ii) provides that, if any provision of the agreement is 31 inconsistent with a provision of the Access Act or 32 the Access Code in effect as at the Access Date 33 (other than a provision in Schedule 4 of the Access 34 Code), or inconsistent with any statement, document, 35 determination or other requirement issued, made, 36 approved or determined under either or both of the 37 Access Act and the Access Code as at the Access 38 Date, the relevant provision of the Access Act or the 39 Access Code or the statement, document, page 49 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 determination or other requirement (as the case may 2 be) shall prevail over the provision of the agreement 3 to the extent of that inconsistency; 4 (c) does not impose on the Company obligations, or create in 5 favour of any other person any interest, in relation to use of 6 the Railway (including in relation to allocation of train paths 7 on the Railway and management of train control for the 8 Railway) which may in effect preclude other entities from 9 access to the Railway in accordance with the Access Act and 10 the Access Code; 11 (d) would, if that agreement were an "access agreement" within 12 the meaning of the Access Code, comply with 13 sections 17(1)(a), 17(1)(c) and 36(2)(c) of the Access Code; 14 and 15 (e) is, with effect from the Access Date, altered to comply with 16 and to be consistent with the Access Act and the Access Code 17 (except Schedule 4 of the Access Code) as at that time and 18 with each statement, document, determination and other 19 requirement at that time issued, made, approved or 20 determined under the Access Act or the Access Code as if the 21 agreement were an access agreement (as that term is defined 22 in the Access Code). 23 The above provisions of this subclause (10) shall apply mutatis 24 mutandis in respect of any expansion or extension (including any spur 25 line) of the Railway on the basis that references in the above 26 provisions of this subclause (10) to "Railway" are to be read as 27 including the relevant expansion or extension and to "Access Date" 28 are to be read as references to "Expansion Access Date". 29 (11) (a) Without limiting clause 34, the Company must, during the 30 currency of this Agreement, consult with and keep the State 31 fully informed concerning any steps that the Company 32 proposes to take or is taking, or concerning any steps which 33 the Company is aware any other person proposes to take or is 34 taking, to have the Railway made subject to Part IIIA of the 35 Australian Consumer Law. 36 (b) If the Company intends to give a written undertaking to the 37 Commission under Division 6 of Part IIIA of the Australian page 50 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 Consumer Law for the provision of haulage services 2 (including of iron ore) over the Railway, it must provide the 3 State with at least 12 months' notice of such intention. 4 (c) Without limiting its obligation under paragraph (a) the 5 Company must consult with and keep the State fully 6 informed with respect to the proposed provisions of such 7 access undertaking. 8 (d) If the Company gives a written undertaking to the 9 Commission under Division 6 of Part IIIA of the Australian 10 Consumer Law for the provision of haulage services 11 (including of iron ore) over the Railway, then: 12 (i) from and including the ACL Undertaking 13 Acceptance Date the Company shall be released 14 from any outstanding obligation it may have under 15 subclauses (8)(b), (9), (10) or (13) or to promote 16 under subclause (12) use by persons of the Railway 17 as formerly proposed by the application of the 18 Access Act and the Access Code; and 19 (ii) from and including the ACL Undertaking 20 Acceptance Date, the Company must, at all times, 21 have in place during the currency of this Agreement 22 an undertaking under Division 6 of Part IIIA of the 23 Australian Consumer Law for the provision of 24 haulage services (including of iron ore) over the 25 Railway. 26 (e) Nothing in this clause shall be taken to limit rights of the 27 State to make under the Australian Consumer Law or 28 otherwise such submissions as it thinks fit in respect of any 29 such access undertaking application by the Company. 30 (12) The Company shall after the Railway Operation Date use all 31 reasonable endeavours to promote access to, and attract customers for, 32 the Railway. page 51 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 (13) The Company shall: 2 (a) ensure that the publication referred to in Part 2A of the 3 Access Code is prepared and made available for purchase no 4 later than 7 days after the Access Act and the Access Code 5 apply to the Railway; 6 (b) ensure the submission to the Regulator of the arrangement for 7 the railway owner in respect of the Railway required to be 8 approved by the Regulator under section 29 of the Access 9 Act, each of the statements in connection with the Railway 10 required to be prepared and submitted to the Regulator under 11 sections 43(3), 44(2), 46(1) and 47(1) of the Access Code and 12 any other document the subject of a notice from the Minister 13 to the Company, being a document which the Access Act or 14 the Access Code requires to be submitted by a railway owner 15 to the Regulator, no later than 7 days after the Access Act and 16 the Access Code apply to the Railway or such earlier date 17 specified in the Access Act or the Access Code (as the case 18 may be) for preparation and submission of such arrangement 19 or statements; 20 (c) conduct itself in such a manner as to, and do all such things 21 as are reasonable to, facilitate the approval or determination 22 of: 23 (i) train management guidelines in connection with the 24 Railway under section 43 of the Access Code; 25 (ii) statements of policy in connection with the Railway 26 under section 44 of the Access Code; 27 (iii) costing principles in connection with the Railway 28 under section 46 of the Access Code; 29 (iv) over-payment rules in connection with the Railway 30 under section 47 of the Access Code; 31 (v) an arrangement referred to in section 29(1) of the 32 Access Act for the railway owner in respect of the 33 Railway; and 34 (vi) any other document or matter the subject of a notice 35 from the Minister to the Company, being a document page 52 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 or matter which the Access Act or the Access Code 2 requires be approved or determined in connection 3 with a railway owner, 4 as soon as possible after the Access Act and the Access 5 Code apply to the Railway; and 6 (d) ensure the submission to the Regulator within 3 months of the 7 Access Act and the Access Code applying to any expansion 8 or extension (including any spur line) of the Railway of new 9 or amended guidelines, statements of policy, principles, rules, 10 arrangements and other documents and matters referred to in 11 this subclause (13) as may be required by the Access Act and 12 the Access Code in respect of the relevant expansion or 13 extension of the Railway and conduct itself in such manner as 14 to, and do all such things as are reasonable to, facilitate the 15 approval or determination of new or amended document and 16 matters. 17 (14) Nothing in this clause shall be taken to exempt the railway owner in 18 respect of the Railway from any obligation or requirement of the 19 railway owner under the Access Act or the Access Code. 20 (15) Nothing in this Agreement shall be taken to limit the rights of the 21 State to regulate access to the Port or to the Port Facilities in the 22 future, or the Company's obligations to comply in respect of any such 23 regulation. 24 17. Compliance with Laws 25 (1) In the construction operation maintenance and use of any work, 26 installation, plant, machinery, equipment, service or facility provided 27 or controlled by the Company, the Company shall throughout the 28 currency of this Agreement comply with and observe the provisions 29 hereof and subject thereto the laws for the time being in force in the 30 said State. 31 (2) Except as otherwise provided in this Agreement, the Company shall 32 be responsible for obtaining such leases, authorities, permits and 33 licences as it shall require for the obtaining of stone, sand, clay and 34 gravel for the construction of the Railway and the Lateral Access 35 Roads. page 53 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 18. Maintenance 2 Throughout the currency of this Agreement the Company shall at all 3 times keep and maintain in good repair and working order and 4 condition (which obligation includes, where necessary, replacing or 5 renewing all parts which are worn out or in need of replacement or 6 renewal due to their age or condition) the Railway, Additional 7 Infrastructure (if any), access roads, and all such other works, 8 installations, plant, machinery and equipment for the time being the 9 subject of this Agreement. 10 19. Use of local labour professional services and materials 11 (1) Except as otherwise agreed by the Minister the Company shall, for the 12 purposes of this Agreement: 13 (a) except in those cases where the Company can demonstrate it 14 is not reasonable and economically practicable so to do, use 15 labour available within the said State (using all reasonable 16 endeavours to ensure that as many as possible of the 17 workforce be recruited from the Pilbara region) or if such 18 labour is not available then, except as aforesaid, use labour 19 otherwise available within Australia; 20 (b) as far as it is reasonable and economically practicable so to 21 do, use the services of engineers, surveyors, architects and 22 other professional consultants experts and specialists, project 23 managers, manufacturers, suppliers and contractors resident 24 and available within the said State, or if such services are not 25 available within the said State, then, as far as practicable as 26 aforesaid, use the services of such persons otherwise 27 available within Australia; 28 (c) during design and when preparing specifications, calling for 29 tenders and letting contracts for works, materials, plant, 30 equipment and supplies (which shall at all times, except 31 where it is impracticable so to do, use or be based upon 32 Australian Standards and Codes) ensure that suitably 33 qualified Western Australian and Australian suppliers, 34 manufacturers and contractors are given fair and reasonable 35 opportunity to tender or quote; page 54 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 (d) give proper consideration and, where possible, preference to 2 Western Australian suppliers, manufacturers and contractors 3 when letting contracts or placing orders for works, materials, 4 plant, equipment and supplies where price, quality, delivery 5 and service are equal to or better than that obtainable 6 elsewhere or, subject to the foregoing, give that consideration 7 and, where possible, preference to other Australian suppliers, 8 manufacturers and contracts; and 9 (e) if, notwithstanding the foregoing provisions of this subclause, 10 a contract is to be let or an order is to be placed with other 11 than a Western Australian or Australian supplier, 12 manufacturer or contractor, give proper consideration and, 13 where possible, preference to tenders, arrangements or 14 proposals that include Australian participation where price, 15 delivery and service are otherwise equal or better. 16 (2) Except as otherwise agreed by the Minister, the Company shall, in 17 every contract entered into with a third party for the supply of 18 services, labour, works, materials, plant, equipment or supplies for the 19 purposes of this Agreement require as a condition thereof that such 20 third party shall undertake: 21 (a) the same obligations as are referred to in subclause (1) and 22 shall report to the Company concerning such third party's 23 implementation of that condition; and 24 (b) procurement activities in accordance with the plan provided 25 under clause 10. 26 (3) The Company shall: 27 (a) in respect of developments the subject or to be the subject (as 28 the case may be) of proposals submitted under clause 11, 29 submit a report to the Minister at quarterly intervals from the 30 date specified in clause 3(4) until commissioning of the 31 Railway and Additional Infrastructure (if any) and thereafter 32 as requested by the Minister from time to time; and 33 (b) in respect of developments the subject or to be the subject (as 34 the case may be) of proposals submitted under clause 13 35 submit a report to the Minister at quarterly intervals from the 36 date on which it gives notice under clause 13 until page 55 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 commissioning of the developments the subject of the 2 proposals approved pursuant to clause 13 and thereafter as 3 requested by the Minister from time to time, 4 concerning its implementation of the provisions of this clause and of 5 the relevant plan in connection with the development provided 6 pursuant to clause 10, together with a copy of any report received by 7 the Company pursuant to subclause (2) during that quarter or longer 8 period as the case may be PROVIDED THAT the Minister may agree 9 that any such reports need not be provided in respect of contracts of 10 such kind or value as the Minister may from time to time determine. 11 (4) The Company shall keep the Minister informed on a regular basis as 12 determined by the Minister from time to time or otherwise as 13 reasonably required by the Minister during the currency of this 14 Agreement of any services (including any elements of the project 15 investigations, design and management) and any works, materials, 16 plant, equipment and supplies that it may be proposing to obtain from 17 or have carried out or permit to be obtained from or carried out 18 outside Australia, together with its reasons therefor and shall, as and 19 when required by the Minister, consult with the Minister with respect 20 thereto. 21 20. No discriminatory charges 22 Except as provided in this Agreement the State must not impose, nor 23 shall it permit or authorise any local government or any agency, 24 instrumentality or other authority of the State to impose, 25 discriminatory taxes, rates or charges of any nature whatsoever on or 26 in respect of the titles, property or other assets, products, materials or 27 services used or produced by or through the activities of the Company 28 in the conduct of the Project, nor will the State take or permit to be 29 taken by any such State agency, instrumentality or other authority of 30 the State any other discriminatory action which would deprive the 31 Company of full enjoyment of the rights granted or intended to be 32 granted under this Agreement. In the application of this clause the 33 conferral of rights upon parties to other Government agreements shall 34 be disregarded. 35 21. Taking of land for the purposes of this Agreement 36 (1) The State is hereby empowered, as and for a public work under 37 Parts 9 and 10 of the LAA and the Public Works Act 1902 (WA), to page 56 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 take for the purposes of this Agreement any land (other than any part 2 of the Port) which in the opinion of the Company is necessary for the 3 Project and which the Minister determines is appropriate to be taken 4 for the Project (except any land the taking of which would be contrary 5 to the provisions of a Government agreement entered into before the 6 submission of the proposals relating to the proposed taking) and 7 notwithstanding any other provisions of those Acts may license that 8 land to the Company. 9 (2) In applying Parts 9 and 10 of the LAA and the Public Works Act 1902 10 (WA) for the purposes of this Clause - 11 (a) "land" in those Acts includes a legal or equitable estate or 12 interest in land; 13 (b) sections 170, 171, 172, 173, 174, 175 and 184 of the LAA do 14 not apply; and 15 (c) the LAA applies as if it were modified in section 177(2) by 16 inserting - 17 (i) after "railway" the following - 18 "or land is being taken pursuant to a Government 19 agreement as defined in section 2 of the Government 20 Agreements Act 1979"; and 21 (ii) after "that Act" the following - 22 "or that agreement as the case may be". 23 (3) The Company shall pay to the State on demand the costs of or 24 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 26 any holder of native title or of native title rights and interests in the 27 land. 28 22. No taking of land 29 Subject to the performance by the Company of its obligations under 30 this Agreement, but without limiting clause 15(3), the State shall not, 31 during the currency of this Agreement, without the consent of the 32 Company, take or suffer or permit to be taken by any local 33 government or by any agency, instrumentality or other authority of 34 the State any of the works, installations, plant, equipment or other page 57 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 property for the time being belonging to the Company and the subject 2 of or used for the purpose of this Agreement or any of the works on 3 the lands the subject of the Special Railway Licence and, without 4 such consent (which shall not be unreasonably withheld), the State 5 shall not create or grant or permit or suffer to be created or granted by 6 any agency, instrumentality or other authority of the State any road, 7 right-of-way, water right or easement of any nature or kind 8 whatsoever over or in respect of any such lands which may unduly 9 prejudice or interfere with the Company's activities under this 10 Agreement. 11 23. Commonwealth licences and consents 12 (1) The Company shall from time to time make application to the 13 Commonwealth or to the Commonwealth constituted agency, 14 authority or instrumentality concerned for the grant to it of any 15 licence or consent under the laws of the Commonwealth necessary to 16 enable or permit the Company to enter into this Agreement and to 17 perform any of its obligations hereunder. 18 (2) On request by the Company the State shall make representations to 19 the Commonwealth or to the Commonwealth constituted agency, 20 authority or instrumentality concerned for the grant to the Company 21 of any licence or consent mentioned in subclause (1). 22 24. Zoning 23 The State shall ensure after consultation with the relevant local 24 governments that the lands the subject of the Special Railway Licence 25 or a Lateral Access Road Licence shall be and remain zoned for use 26 or otherwise protected during the currency of this Agreement so that 27 the activities of the Company hereunder may be undertaken and 28 carried out thereon without any interference or interruption by the 29 State, by any agency, instrumentality or other authority of the State or 30 by any local government on the ground that such activities are 31 contrary to any zoning by-law, regulation or order. 32 25. Assignment 33 (1) Subject to the provisions of this clause the Company may at any time 34 with the consent of the Minister assign, mortgage, charge, sublet or 35 dispose of to any person the whole or any part of the rights of the 36 Company hereunder (including to ownership of the Railway, page 58 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 Additional Infrastructure (if any) and its right to or as the holder of 2 the Special Railway Licence or a Lateral Access Road Licence) and 3 of the obligations of the Company hereunder, subject however in the 4 case of an assignment or disposition to the assignee or disponee (as 5 the case may be) executing in favour of the State (unless the Minister 6 otherwise determines) a deed of covenant in a form to be approved by 7 the Minister to comply with observe and perform the provisions 8 hereof on the part of the Company to be complied with, observed or 9 performed in regard to the matter or matters the subject of such 10 assignment or disposition. 11 (2) Notwithstanding anything contained in or anything done under or 12 pursuant to subclause (1) the Company will at all times during the 13 currency of this Agreement be and remain liable for the due and 14 punctual performance and observance of all the covenants and 15 agreements on its part contained in this Agreement PROVIDED 16 THAT the Minister may agree to release the Company from such 17 liability where the Minister considers such release will not be contrary 18 to the interests of the State. 19 (3) Notwithstanding the provision of the Mining Act insofar as the same 20 may apply: 21 (a) no assignment, mortgage, charge, sublease or disposition 22 made or given of or over the Special Railway Licence or any 23 other licence granted pursuant to this Agreement in 24 accordance with the provisions of subclause (1) and the terms 25 of consent thereunder; and 26 (b) no transfer, assignment, mortgage or sublease made or given 27 in exercise of any power contained in any such mortgage or 28 charge, 29 shall require any approval or consent other than such consent as may 30 be necessary under subclause (1) and no equitable mortgage or charge 31 shall be rendered ineffectual by the absence of any approval or 32 consent (otherwise than as required by this clause) or because the 33 same is not registered under the provisions of the Mining Act. 34 26. Variation or determination 35 (1) The parties to this Agreement may from time to time by agreement in 36 writing add to, substitute for, cancel or vary all or any of the page 59 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 provisions of this Agreement for the purpose of more efficiently or 2 satisfactorily implementing or facilitating any of the objects of this 3 Agreement. 4 (2) The Minister shall cause any agreement made pursuant to 5 subclause (1) to be laid on the Table of each House of Parliament 6 within 12 sitting days next following its execution. 7 (3) Either House may, within 12 sitting days of that House after the 8 agreement has been laid before it, pass a resolution disallowing the 9 agreement, but if after the last day on which the agreement might 10 have been disallowed neither House has passed such a resolution the 11 agreement shall have effect from and after that last day. 12 (4) The parties may at any time by mutual agreement determine this 13 Agreement, provided that no matter in connection with a failure by 14 the parties to agree under this subclause (4) shall be referable to 15 arbitration hereunder. 16 27. Force majeure 17 This Agreement shall be deemed to be made subject to any delays in 18 the performance of the obligations under this Agreement and to the 19 temporary suspension of continuing obligations under this Agreement 20 that may be caused by or arise from circumstances beyond the power 21 and control of the party responsible for the performance of those 22 obligations including (without limiting the generality of the 23 foregoing) delays or any such temporary suspension as aforesaid 24 caused by or arising from act of God, force majeure, earthquakes, 25 floods, storms, tempest, washaways, fire (unless caused by the actual 26 fault or privity of the party responsible for such performance), act of 27 war, act of public enemies, riots, civil commotions, strikes, lockouts, 28 stoppages, restraint of labour or other similar acts (whether partial or 29 general), acts or omissions of the Commonwealth, shortages of labour 30 or essential materials, reasonable failure to secure contractors, delays 31 of contractors, factors due to overall world economic conditions or 32 factors due to action taken by or on behalf of any government or 33 governmental authority (other than the State or any agency, 34 instrumentality or other authority of the State) or factors that could 35 not reasonably have been foreseen PROVIDED ALWAYS that the 36 party whose performance of obligations is affected by any of the said 37 causes must promptly give notice to the other party or parties of the page 60 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 event or events and shall use its best endeavours to minimise the 2 effects of such causes as soon as possible after the occurrence. 3 28. Power to extend periods 4 (1) Notwithstanding any provision of this Agreement but subject to 5 subclause (2), the Minister may at the request of the Company from 6 time to time extend or further extend any period or vary or further 7 vary any date referred to in this Agreement for such period or to such 8 later date as the Minister thinks fit, whether or not the period to be 9 extended has expired or the date to be varied has passed. 10 (2) The date specified in clause 11(1) for the submission of proposals 11 under it may only be extended once pursuant to this clause and for a 12 period not exceeding 18 months. 13 29. Determination of Agreement 14 (1) If: 15 (a) (i) the Company makes default which the State considers 16 material in the due performance or observance of any 17 of the covenants or obligations of the Company in 18 this Agreement or in the Special Railway Licence or 19 in a Lateral Access Road Licence; or 20 (ii) the Company abandons or repudiates this Agreement 21 or abandons or repudiates its activities under this 22 Agreement, 23 and such matter is not remedied within a period of 180 days 24 after notice is given by the State as provided in subclause (2) 25 or if the matter is referred to arbitration, then within the 26 period mentioned in subclause (3); or 27 (b) the Company goes into liquidation (other than a voluntary 28 liquidation for the purpose of reconstruction) and unless 29 within 3 months from the date of such liquidation the interest 30 of the Company is assigned to an assignee approved by the 31 Minister under clause 25; or 32 (c) construction of the SRL Railway and Additional 33 Infrastructure (if any) has not commenced within 2 years (or page 61 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 such longer period as the Minister may allow) of the approval 2 of the proposals submitted pursuant to clause 11(1); or 3 (d) the Railway Operation Date does not occur within 4 years (or 4 such longer period as the Minister may allow) after the grant 5 of the Special Railway Licence and the State has then given 6 the Company notice that it may determine this Agreement if 7 that date does not occur within a period of 180 days after 8 such notice is given by the State and that date has not 9 occurred within the said period of 180 days; or 10 (e) iron ore products are not transported upon the Railway for a 11 continuous period of 3 years (or such longer period, not 12 exceeding 5 years, as in any particular instance the Minister 13 may approve acting with the concurrence of the Port 14 Authorities Minister) and the State has given the Company 15 notice that it may determine this Agreement if such transport 16 does not resume within a period of 180 days after such notice 17 is given by the State and such transport has not resumed 18 within the said period of 180 days, 19 the State may by notice to the Company determine this Agreement. 20 (2) The notice to be given by the State to the Company in terms of 21 subclause (1)(a) must specify the nature of the default or other ground 22 so entitling the State to exercise such right of determination and, 23 where appropriate and known to the State, the party or parties 24 responsible therefor and shall be given to the Company and all such 25 assignees, mortgagees, chargees and disponees for the time being of 26 the Company's said rights to or in favour of whom or by whom an 27 assignment, mortgage, charge or disposition has been effected in 28 terms of clause 25, whose name and address for service of notice has 29 previously been notified to the State by the Company or, any such 30 assignee, mortgagee, chargee or disponee. 31 (3) (a) If the Company contests the alleged default or other ground 32 referred to in subclause (1)(a) the Company shall within 33 60 days after notice given by the State as provided in 34 subclause (2) refer the matter in dispute to arbitration. 35 (b) If the question is decided against the Company, the Company 36 must comply with the arbitration award within a reasonable 37 time to be fixed by that award PROVIDED THAT if the page 62 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 arbitrator finds that there was a bona fide dispute and that the 2 Company was not dilatory in pursuing the arbitration, the 3 time for compliance with the arbitration award shall not be 4 less than 90 days from the date of such award. 5 (4) If the default referred to in subclause (1)(a) has not been remedied 6 within a period of 180 days after receipt of the notice referred to in 7 that subclause or within the time fixed by the arbitration award as 8 aforesaid, the State, instead of determining this Agreement as 9 aforesaid because of such default may itself remedy such default or 10 cause the same to be remedied (for which purpose the State by agents, 11 workmen or otherwise shall have full power to enter upon lands 12 occupied by the Company and to make use of all plant, machinery, 13 equipment and installations thereon) and the actual costs and expenses 14 incurred by the State in remedying or causing to be remedied such 15 default shall be a debt payable by the Company to the State on 16 demand. 17 (5) The State hereby waives its rights to seek by court action for specific 18 performance to compel the Company to submit proposals or resubmit 19 proposals under clause 11 in the event that before approval of 20 proposals under clause 12, the Company repudiates this Agreement. 21 30. Effect of cessation or determination of Agreement 22 (1) On the cessation or determination of this Agreement: 23 (a) except as otherwise agreed by the Minister the rights of the 24 Company to, in or under this Agreement and the rights of the 25 Company or any mortgagee or chargee to or in the SRL 26 Railway, Additional Infrastructure (if any), access roads and 27 other works constructed under this Agreement or to, in or 28 under the Special Railway Licence or Lateral Access Road 29 Licences (if still current), shall thereupon cease and 30 determine but without prejudice to the liability of any of the 31 parties hereto in respect of any antecedent breach or default 32 under this Agreement or in respect of any guarantee or 33 indemnity given under this Agreement; 34 (b) the Company shall forthwith pay to the State all money which 35 may then have become payable or accrued due; and page 63 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 (c) save as aforesaid and as otherwise provided in this 2 Agreement none of the parties shall have any claim against 3 the other of them with respect to any matter or thing in or 4 arising out of this Agreement. 5 (2) Upon the cessation or determination of this Agreement; 6 (a) the Minister may by notice to the Company require the 7 Company to, at the Company's cost, remove the SRL 8 Railway, Additional Infrastructure (if any) and any other 9 works constructed under this Agreement from the Railway 10 Corridor and return the land in the Railway Corridor to a 11 condition as near as possible to the condition that land was in 12 prior to the grant of authority under the LAA in respect of the 13 land as contemplated by clause 4; and 14 (b) unless the Minister gives notice under subclause (2)(a), the 15 SRL Railway, Additional Infrastructure (if any) and the 16 works constructed under this Agreement shall become and 17 remain the absolute property of the State without the payment 18 of any compensation or consideration to the Company or any 19 other party and freed and discharged from all mortgages and 20 other encumbrances and the Company shall do and execute 21 all such deeds, documents and other acts, matters and things 22 (including surrenders) as the State may reasonably require to 23 give effect to the provisions of this subclause. 24 31. Indemnity 25 The Company shall indemnify and keep indemnified the State and its 26 servants, agents and contractors in respect of all actions, suits, claims, 27 demands or costs of third parties arising out of or in connection with 28 any work carried out by or on behalf of the Company pursuant to this 29 Agreement or relating to its activities hereunder or arising out of or in 30 connection with the construction, maintenance or use by the Company 31 or its servants, agents, contractors or assignees of the Company's 32 works or services the subject of this Agreement or the plant apparatus 33 or equipment installed in connection therewith PROVIDED THAT 34 subject to the provisions of any relevant Act, such indemnity will not 35 apply in circumstances where the State, its servants, agents, or 36 contractors are negligent in carrying out work for the Company 37 pursuant to this Agreement. page 64 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 32. Subcontracting 2 Without affecting the liabilities of the parties under this Agreement 3 each of the State and the Company will have the right from time to 4 time to entrust to third parties the carrying out as their agent of any 5 portions of the activities which it is authorised or obliged to carry out 6 hereunder. 7 33. Arbitration 8 (1) Except as provided in this Agreement, any dispute or difference 9 between the State and the Company arising out of or in connection 10 with this Agreement, the construction of this Agreement or as to the 11 rights, duties or liabilities of either of them under this Agreement or 12 as to any matter to be agreed upon between them under this 13 Agreement must, in default of agreement between them and in the 14 absence of any provision in this Agreement to the contrary, be 15 referred to and settled by arbitration under the provisions of the 16 Commercial Arbitration Act 2012 (WA) and each party may be 17 represented before the arbitrator by a duly qualified legal practitioner 18 or other representative. 19 (2) Except where otherwise provided in this Agreement, the provisions of 20 this clause will not apply to any case where the State, the Minister or 21 any other Minister in the Government of the State is by this 22 Agreement given either expressly or impliedly a discretionary power. 23 (3) The arbitrator of any submission to arbitration under this Agreement 24 is hereby empowered upon the application of either the State or the 25 Company, to grant in the name of the Minister any interim extension 26 of any period or variation of any date referred to herein which having 27 regard to the circumstances may reasonably be required in order to 28 preserve the rights of that party or of the parties to the arbitration and 29 an award may in the name of the Minister grant any further extension 30 or variation for that purpose. 31 34. Consultation 32 The Company must during the currency of this Agreement consult 33 with and keep the State fully informed on a confidential basis 34 concerning any action that the Company proposes to take with any 35 third party (including the Commonwealth or any Commonwealth 36 constituted agency, authority, instrumentality or other body) which page 65 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 might significantly affect the overall interest of the State under this 2 Agreement. 3 35. Notices 4 Any notice, consent or other writing authorised or required by this 5 Agreement to be given or sent by the State to the Company or to a 6 Guarantor will be deemed to have been duly given or sent if signed by 7 the Minister or by any senior officer of the Public Service of the State 8 acting by the direction of the Minister and forwarded by prepaid post 9 or handed to the Company or to the Guarantor (as the case may be) at 10 its address hereinbefore set forth or other address in Western Australia 11 nominated by the Company or by a Guarantor (as the case may be) to 12 the Minister, and by the Company or by a Guarantor to the State if 13 signed on its behalf by any person or persons authorised by the 14 Company or by its solicitors, or by the Guarantor or by its solicitors 15 (as the case may be), as notified to the State from time to time and 16 forwarded by prepaid post or handed to the Minister and except in the 17 case of personal service any such notice, consent or writing shall be 18 deemed to have been duly given or sent on the day on which it would 19 be delivered in the ordinary course of post. 20 36. Guarantee of the Company's performance 21 (1) Notwithstanding any addition to or deletion or variation of the 22 provisions of this Agreement or any time or other indulgence granted 23 by the State or by the Minister to the Company whether or not notice 24 thereof is given to a Guarantor by the State, the Guarantors hereby 25 guarantee to the State the due performance by the Company of all of 26 the Company's obligations to be performed hereunder and, subject to 27 subclause (2), this guarantee shall continue notwithstanding the 28 cessation or determination of this Agreement. 29 (2) The Minister may agree to release a Guarantor or the Guarantors (as 30 the case may be) from this guarantee where: 31 (a) the Minister is reasonably satisfied that the Company has the 32 financial capacity to perform its obligations under this 33 Agreement; or 34 (b) one or more companies (including if applicable a continuing 35 Guarantor) with the financial capacity to guarantee the due 36 performance by the Company of all the Company's then page 66 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 outstanding obligations under this Agreement have assumed 2 the obligations of the released Guarantor or Guarantors (as 3 the case may be) under this clause on terms acceptable to the 4 Minister. 5 37. Term of Agreement 6 (1) Subject to the provisions of clauses 12(5), 12(6), 29 and 30, this 7 Agreement shall expire on the expiration or sooner determination or 8 surrender of the Special Railway Licence. 9 (2) Unless this Agreement has already determined, at any time within 10 5 years prior to the expiry date of the Special Railway Licence the 11 State shall, at the request of the Company, confer with the Company 12 with respect to agreeing to commence negotiations for a new 13 agreement or a variation of this Agreement involving an extension of 14 the term of the Special Railway Licence. The provisions of clause 33 15 shall not apply to this clause. 16 38. Applicable law and Submission to Jurisdiction 17 This Agreement is to be interpreted according to the law for the time 18 being in force in the State of Western Australia and the parties to this 19 Agreement submit to the jurisdiction of the courts of Western 20 Australia in relation to any action or proceeding to settle any dispute 21 or question arising out of or in connection with this Agreement. page 67 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 SCHEDULE 1 2 INDICATIVE PLAN OF ANTICIPATED RAIL ROUTE AND 3 CORRIDOR FROM THE PIOP MINING AREA LOADING POINT TO 4 THE PORT (ILLUSTRATIVE PURPOSES ONLY) 5 6 page 68 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 SCHEDULE 2 2 WESTERN AUSTRALIA 3 RAILWAY (BBI RAIL AUS PTY LTD) AGREEMENT ACT [DATE] 4 MINING ACT 1978 5 MISCELLANEOUS LICENCE FOR A RAILWAY AND OTHER 6 PURPOSES 7 No. MISCELLANEOUS LICENCE [ ] 8 WHEREAS by the Agreement (hereinafter called "the Agreement") ratified by 9 the Railway (BBI Rail Aus Pty Ltd Agreement Act [Date] the State agreed to 10 grant to BBI Rail Aus Pty Ltd ABN 44 604 857 392 of Level 3, 151 Macquarie 11 Street, Sydney, New South Wales (hereinafter with its successors and permitted 12 assigns called "the Company") a miscellaneous licence for the construction, 13 operation and maintenance of the SRL Railway (as defined in the Agreement 14 and otherwise as provided in the Agreement) and, if applicable, other purposes 15 AND WHEREAS the Company pursuant to clause 14(1) of the Agreement has 16 made application for the said licence; 17 NOW in consideration of the rents reserved by and the provisions of the 18 Agreement and in pursuance of the Railway (BBI Rail Aus Pty Ltd) Agreement 19 Act [Date] the Company is hereby granted by this licence authority to conduct 20 on the land the subject of this licence as more particularly delineated and 21 described from time to time in the Schedule hereto all activities (including the 22 taking of stone, sand, clay and gravel, the provision of temporary 23 accommodation facilities for the railway workforce in accordance with the 24 Agreement and, subject to the Rights in Water and Irrigation Act 1914 (WA), 25 the operation of water bores) necessary for the planning, design, construction, 26 commissioning, operation and maintenance on the land the subject of this 27 licence of the SRL Railway and access roads and Additional Infrastructure (if 28 any) to be located on the land the subject of this licence in accordance with the 29 provisions of the Agreement and proposals approved under the Agreement, for 30 the term of 20 years from the date hereof (subject to the sooner determination of 31 the term upon the determination of the Agreement) and upon and subject to the 32 terms covenants and conditions set out in the Agreement and the Mining 33 Act 1978 as it applies to this licence, and any amendments to the Agreement and 34 the Mining Act 1978 from time to time and to the terms and conditions (if any) 35 now or hereafter endorsed hereon and the payment of rentals in respect of this 36 licence in accordance with clause 14(1)(a) of the Agreement with the right as page 69 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 provided in the Agreement for the Company during the currency of the 2 Agreement to take 2 successive renewals of the term each for a further period of 3 10 years upon the same terms and conditions (subject to the sooner 4 determination of the term upon the determination of the Agreement) 5 PROVIDED THAT the Minister is satisfied that the SRL Railway is, at the date 6 of the relevant renewal, operational and being used for the transport of iron ore 7 products to the Port PROVIDED ALWAYS that this licence shall not be 8 determined or forfeited otherwise than in accordance with the Agreement. 9 In this licence: 10 - If the Company be more than one the liability of the Company 11 hereunder shall be joint and several. 12 - Reference to an Act includes all amendments to that Act for the time 13 being in force and also any Act passed in substitution therefor or in 14 lieu thereof and to the regulations and by-laws of the time being in 15 force thereunder. 16 - Reference to "the Agreement" means such agreement as varied from 17 time to time. 18 - The terms "Additional Infrastructure", "approved proposals", "Port", 19 "Railway Operation Date", "SRL Railway" and "SRL Railway spur 20 line" have the meanings given in the Agreement. 21 ENDORSEMENTS AND CONDITIONS 22 Endorsements 23 1. This licence is granted in accordance with proposals submitted on 24 [ ], and approved by the Minister (as defined in the Agreement) on 25 [ ], under the Agreement. 26 2. The Company is permitted to, in accordance with approved proposals, 27 take stone, sand, clay and gravel from the land the subject of this 28 licence (including for the avoidance of doubt any area of land 29 included in this licence pursuant to clause 14(8) of the Agreement) for 30 the construction, operation and maintenance of the SRL Railway 31 (including any SRL Railway spur line constructed within or approved 32 for construction within the area of land the subject of this licence). 33 3. Notwithstanding the Mining Act 1978, no royalty shall be payable 34 under the Mining Act 1978 in respect of stone, sand, clay and gravel page 70 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 which the Company is permitted by the Agreement to obtain from the 2 land the subject of this licence. 3 4. [Any further endorsement which the Minister for Mines may, 4 consistent with the provisions of the Agreement, determine and 5 thereafter impose in respect of this licence including during the term 6 of the Agreement.] 7 Conditions 8 1. (a) Except as provided in paragraph (b), the Company shall 9 within 2 years after the Railway Operation Date surrender in 10 accordance with the provisions of the Mining Act 1978 the 11 area of this licence down to a maximum of 100 metres width 12 or as otherwise approved by the Minister (as defined in the 13 Agreement) for the safe operation of the SRL Railway then 14 constructed or approved for construction under approved 15 proposals. 16 (b) Paragraph (a) shall not apply to land the subject of this 17 licence that was included in this licence pursuant to 18 clause 14(8) of the Agreement. 19 2. The Company shall as soon as possible after the construction of a 20 SRL Railway spur line or of an expansion or extension thereof as the 21 case may be surrender in accordance with the Mining Act 1978 the 22 land the subject of this licence that was included in this licence 23 pursuant to clause 14(8) of the Agreement for the purpose of such 24 construction down to a maximum of 100 metres in width or as 25 otherwise approved by the Minister (as defined in the Agreement) for 26 the safe operation of that SRL Railway spur line or expansion or 27 extension thereof as the case may be then constructed or approved for 28 construction under approved proposals. 29 3. [Any further conditions which the Minister for Mines may, consistent 30 with the provisions of the Agreement, determine and thereafter 31 impose in respect of this licence including during the term of the 32 Agreement.] page 71 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 SCHEDULE 2 Land description 3 Locality: 4 Mineral Field 5 Area: 6 DATED at Perth this day of . 7 MINISTER FOR MINES 8 9 page 72 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 SCHEDULE 3 2 WESTERN AUSTRALIA 3 RAILWAY (BBI RAIL AUS PTY LTD) AGREEMENT ACT [DATE] 4 MINING ACT 1978 5 MISCELLANEOUS LICENCE FOR A LATERAL ACCESS ROAD 6 No. MISCELLANEOUS LICENCE [ ] 7 WHEREAS by the Agreement (hereinafter called "the Agreement") ratified by 8 the Railway (BBI Rail Aus Pty Ltd) Agreement Act [Date] the State agreed to 9 grant to BBI Rail Aus Pty Ltd ABN 44 604 857 392] of Level 3, 151 Macquarie 10 Street, Sydney, New South Wales (hereinafter with its successors and permitted 11 assigns called "the Company") a miscellaneous licence for the construction, use 12 and maintenance of the Lateral Access Roads (as defined in the Agreement) 13 AND WHEREAS the Company pursuant to clause 14(1) of the Agreement has 14 made application for the said licence; 15 NOW in consideration of the rents reserved by and the provisions of the 16 Agreement and in pursuance of the Railway (BBI Rail Aus Pty Ltd) Agreement 17 Act [Date] the Company is hereby authorised to construct, use and maintain a 18 road on the land more particularly delineated and described from time to time in 19 the Schedule hereto in accordance with the provisions of the Agreement and 20 proposals approved under the Agreement for a term of 5 years commencing on 21 the date hereof (subject to the sooner determination of the term upon the 22 cessation or determination of the Agreement) and for the purposes and upon and 23 subject to the terms covenants and conditions set out in the Agreement and the 24 Mining Act 1978 as it applies to this licence, and any amendments to the 25 Agreement and the Mining Act 1978 from time to time and to the terms and 26 conditions (if any) now or hereafter endorsed hereon and the payment of rentals 27 in respect of this licence in accordance with clause 14(1)(b) of the Agreement 28 PROVIDED ALWAYS that this licence shall not be determined or forfeited 29 otherwise than in accordance with the Agreement. 30 In this licence: 31 - If the Company be more than one the liability of the Company 32 hereunder shall be joint and several. 33 - Reference to an Act includes all amendments to that Act for the time 34 being in force and also any Act passed in substitution therefor or in page 73 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 lieu thereof and to the regulations and by-laws of the time being in 2 force thereunder. 3 - Reference to "the Agreement" means such agreement as varied from 4 time to time. 5 ENDORSEMENTS AND CONDITIONS 6 Endorsements 7 1. This licence is granted in accordance with proposals submitted on 8 [ ], and approved by the Minister (as defined in the Agreement) on 9 [ ], under the Agreement. 10 2. [Any further endorsement which the Minister for Mines may, 11 consistent with the provisions of the Agreement, determine and 12 thereafter impose in respect of this licence including during the term 13 of the Agreement.] 14 Conditions 15 [Such conditions which the Minister for Mines may, consistent with the 16 provisions of the Agreement, determine and thereafter impose in respect of the 17 licence, including during the term of the Agreement.] 18 SCHEDULE 19 Description of land 20 Locality: 21 Mineral Field: 22 Area: 23 DATED at Perth this day of . 24 MINISTER FOR MINES 25 26 page 74 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 SCHEDULE 4 2 WESTERN AUSTRALIA 3 RAILWAY (BBI RAIL AUS PTY LTD) AGREEMENT ACT [DATE] 4 MINING ACT 1978 5 MISCELLANEOUS LICENCE FOR A LATERAL ACCESS ROAD 6 No. MISCELLANEOUS LICENCE [ ] 7 WHEREAS by the Agreement (hereinafter called "the Agreement") ratified by 8 the Railway (BBI Rail Aus Pty Ltd) Agreement Act [Date] the State agreed to 9 grant to BBI Rail Aus Pty Ltd ABN 44 604 857 392] of Level 3, 151 Macquarie 10 Street, Sydney, New South Wales (hereinafter with its successors and permitted 11 assigns called "the Company") a miscellaneous licence for the construction, use 12 and maintenance of the Lateral Access Roads (as defined in the Agreement) 13 AND WHEREAS the Company pursuant to clause 14(2) of the Agreement has 14 made application for the said licence; 15 NOW in consideration of the rents reserved by and the provisions of the 16 Agreement and in pursuance of the Railway (BBI Rail Aus Pty Ltd) Agreement 17 Act [Date] the Company is hereby authorised to construct, use and maintain a 18 road on the land more particularly delineated and described from time to time in 19 the Schedule hereto in accordance with the provisions of the Agreement and 20 proposals approved under the Agreement for a term of 5 years commencing on 21 the date hereof (subject to the sooner determination of the term upon the 22 cessation or determination of the Agreement) and for the purposes and upon and 23 subject to the terms covenants and conditions set out in the Agreement and the 24 Mining Act 1978 as it applies to this licence, and any amendments to the 25 Agreement and the Mining Act 1978 from time to time and to the terms and 26 conditions (if any) now or hereafter endorsed hereon and the payment of rentals 27 in respect of this licence in accordance with clause 14(2) of the Agreement 28 PROVIDED ALWAYS that this licence shall not be determined or forfeited 29 otherwise than in accordance with the Agreement. 30 In this licence: 31 - If the Company be more than one the liability of the Company 32 hereunder shall be joint and several. 33 - Reference to an Act includes all amendments to that Act for the time 34 being in force and also any Act passed in substitution therefor or in page 75 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 lieu thereof and to the regulations and by-laws of the time being in 2 force thereunder. 3 - Reference to "the Agreement" means such agreement as varied from 4 time to time. 5 ENDORSEMENTS AND CONDITIONS 6 Endorsements 7 1. This licence is granted in accordance with proposals submitted on [ 8 ], and approved by the Minister (as defined in the Agreement) on [ ], 9 under the Agreement. 10 2. [Any further endorsement which the Minister for Mines may, 11 consistent with the provisions of the Agreement, determine and 12 thereafter impose in respect of this licence including during the term 13 of the Agreement.] 14 Conditions 15 [Such conditions which the Minister for Mines may, consistent with the 16 provisions of the Agreement, determine and thereafter impose in respect of the 17 licence, including during the term of the Agreement.] 18 SCHEDULE 19 Description of land 20 Locality: 21 Mineral Field: 22 Area: 23 DATED at Perth this day of . 24 MINISTER FOR MINES 25 26 page 76 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 SCHEDULE 5 2 PLANS OF LAND, WATER AND SEABED PROPOSED TO COMPRISE 3 THE PORT OF BALLA BALLA 4 page 77 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 1 2 page 78 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 1 IN WITNESS WHEREOF this Agreement has been executed by or on behalf of 2 the parties hereto the day and year first hereinbefore mentioned. 3 SIGNED by the HONOURABLE ) COLIN JAMES BARNETT in the ) [Signature] presence of: ) 4 [Signature] 5 ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... 6 Witness: 7 Name: WILLIAM RICHARD MARMION 8 9 10 EXECUTED by BBI RAIL AUS ) PTY LTD ABN 44 604 857 392 in ) accordance with section 127(1) of ) the Corporations Act 2001 (Cth) by ) authority of its directors: [Signature] [Signature] ... ... ... ... ... ... ... ... ... ... ... ... ... ... . ... ... ... ... ... ... ... ... ... ... ........ Signature of director Signature of director JONATHON TERENCE YOUNG NICHOLAS ANTHONY ... ... ... ... ... ... ... ... ... ... ... ... ... ... . CURTIS Full name of director (block letters) ... ... ... ... ... ... ... ... ... ....... ... . Full name of director (block letters) 11 page 79 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Schedule 1 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 EXECUTED by TODD ) PETROLEUM MINING ) COMPANY LIMITED NZBN ) 9429040945767 in accordance with ) section 180 of the Companies Act 1993 (New Zealand) by authority of its directors: [Signature] [Signature] ... ... ... ... ... ... ... ... ... ... ... ... ... ... . ... ... ... ... ... ... ... ... ... ....... ... . Signature of director Signature of director CHRISTOPHER BRIAN HALL NICHOLAS JOHN OLSON ... ... ... ... ... ... ... ... ... ... ... ... ... ... . ... ... ... ... ... ... ... ... ... ........ ... Full name of director (block letters) Full name of director (block letters) 1 2 3 EXECUTED by TODD ) OFFSHORE LIMITED NZBN ) 9429030115989 in accordance with ) section 180 of the Companies ) Act 1993 (New Zealand) by authority of its directors: [Signature] [Signature] ... ... ... ... ... ... ... ... ... ... ... ... ... ... . ... ... ... ... ... ... ... ... ... ........ ... . Signature of director Signature of director HENRY ALEXANDER BRYAN MALCOLM ARTHUR TAIT CHARLES WHYTE ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ........ ... ... ... . ... ... Full name of director (block letters) Full name of director (block letters) 4 page 80 Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017 Railway (BBI Rail Aus Pty Ltd) Agreement 2017 Schedule 1 EXECUTED by TODD ) MINERALS LIMITED NZBN ) 9429030762596 in accordance with ) section 180 of the Companies ) Act 1993 (New Zealand) by authority of its directors: [Signature] [Signature] ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ........ ... ... Signature of director Signature of director CHRISTOPHER BRIAN HALL NICHOLAS JOHN OLSON ... ... ... ... ... ... ... ... ... ... ... ... ... ... .. ... ... ... ... ... ... ... ... ........ ... ... Full name of director (block letters) Full name of director (block letters) 1 2
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