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This is a Bill, not an Act. For current law, see the Acts databases.


RAILWAY (BBI RAIL AUS PTY LTD) AGREEMENT BILL 2017

                    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

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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";




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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


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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


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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


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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.




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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.

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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.




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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.




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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;



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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


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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


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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;


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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



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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);



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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


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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.




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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

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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:


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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


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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


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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,

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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


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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


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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

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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.




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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




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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


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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;

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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


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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:




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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,

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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

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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.




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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

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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.



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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;




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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


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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

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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

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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,


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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


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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


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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



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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

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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




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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.


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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


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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


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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.




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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



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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


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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


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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.]




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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




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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


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     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




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                                  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




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                       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




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    Railway (BBI Rail Aus Pty Ltd) Agreement Bill 2017
    Schedule 1     Railway (BBI Rail Aus Pty Ltd) Agreement 2017




1
2




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                             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




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                           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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