Sch Fourteenth ScheduleThirteenth Supplementary Agreement

Fourteenth Schedule — Thirteenth Supplementary Agreement [Heading inserted: No. 61 of 2011 s. 6.] **2011** **THE HONOURABLE COLIN JAMES BARNETT** **PREMIER OF THE STATE OF WESTERN AUSTRALIA** **THIS AGREEMENT** is made this 7th day of November 2011 **THE HONOURABLE COLIN JAMES BARNETT** MLA., Premier of the State of Western Australia, acting for and on behalf of the said State and instrumentalities thereof from time to time (**State**) **HAMERSLEY IRON PTY. LIMITED** ACN 004 558 276 of Level 22, Central Park, 152‑158 St Georges Terrace, Perth, Western Australia (**Company**). **RECITALS:** A. The State and the Company are the parties to the agreement dated 30 July 1963, approved by and scheduled to the *Iron Ore (Hamersley Range) Agreement Act 1963* and which as subsequently added to, varied or amended is referred to in this Agreement as the “**Principal Agreement**”. B. The State and the Company wish to vary the Principal Agreement. **1. Interpretation** Subject to the context, the words and expressions used in this Agreement have the same meanings respectively as they have in and for the purpose of the Principal Agreement. **2. Ratification and Operation** (1) The State shall introduce and sponsor a Bill in the State Parliament of Western Australia prior to 31 December 2011 or such later date as may be agreed between the parties hereto to ratify this Agreement. The State shall endeavour to secure the timely passage of such Bill as an Act. (2) The provisions of this Agreement other than this clause and clause 1 will not come into operation until the day after the day on which the Bill referred to in subclause (1) has been passed by the State Parliament of Western Australia and commences to operate as an Act. (3) If by 30 June 2012 the said Bill has not commenced to operate as an Act then, unless the parties hereto otherwise agree, this Agreement will then cease and determine and no party hereto will have any claim against any other party hereto with respect to any matter or thing arising out of, done, performed, or omitted to be done or performed under this Agreement. (4) On the day after the day on which the said Bill commences to operate as an Act all the provisions of this Agreement will operate and take effect despite any enactment or other law. **3. Variation of Principal Agreement** The Principal Agreement is varied as follows: (1) in clause 1 by: (a) inserting in the appropriate alphabetical positions the following new definitions: “Eligible Existing Tenure” means: (a) (i) a miscellaneous licence or general purpose lease granted to the Company under the *Mining Act 1978*; or (ii) a lease or easement granted to the Company under the LAA, and not clearly, to the satisfaction of the Minister, granted under or pursuant to or held pursuant to this Agreement; or (b) an application by the Company for the grant to it of a tenement referred to in paragraph (a)(i) (which application has not clearly, to the satisfaction of the Minister, been made under or pursuant to this Agreement) and as the context requires the tenement granted pursuant to such an application, where that tenure was granted or that application was made (as the case may be) on or before 1 October 2011; “Relevant Land”, in relation to Eligible Existing Tenure or Special Advance Tenure, means the land which is the subject of that Eligible Existing Tenure or Special Advance Tenure, as the case may be; “second variation date” means the date on which clause 3 of the variation agreement made on or about 7 November 2011 between the State and the Company comes into operation; “Special Advance Tenure” means: (a) a miscellaneous licence or general purpose lease requested under clause 9(2b) to be granted to the Company under the *Mining Act 1978*; or (b) an easement or a lease requested under clause 9(2b) to be granted to the Company under the LAA, and as the context requires such tenure if granted; (b) inserting after the words “reference in this Agreement to an Act other than the *Mining Act 1904* shall include the amendments to such Act for the time being in force and also any Act passed in substitution therefor or in lieu thereof and the regulations for the time being in force thereunder” the words “(and for the avoidance of doubt this principle, subject to the context and without limitation to its application to other Acts, may apply in respect of references to the Land Act notwithstanding references in this Agreement to the LAA)”; (2) by inserting after clause 8C the following new clauses: “Community development plan 8D. (1) In this clause, the term “community and social benefits” includes: (a) assistance with skills development and training opportunities to promote work readiness and employment for persons living in the Pilbara region of the said State; (b) regional development activities in the Pilbara region of the said State, including partnerships and sponsorships; (c) contribution to any community projects, town services or facilities; and (d) a regionally based workforce. (2) The Company acknowledges the need for community and social benefits flowing from this Agreement. (3) The Company agrees that: (a) it shall prepare a plan which describes the Company’s proposed strategies for achieving community and social benefits in connection with its activities under this Agreement; and (b) the Company shall, not later than 3 months after the second variation date, submit to the Minister the plan prepared under paragraph (a) and confer with the Minister in respect of the plan. (4) The Minister shall within 2 months after receipt of a plan submitted under subclause (3)(b), either notify the Company that the Minister approves the plan as submitted or notify the Company of changes which the Minister requires be made to the plan. If the Company is unwilling to accept the changes which the Minister requires it shall notify the Minister to that effect and either party may refer to arbitration hereunder the question of the reasonableness of the changes required by the Minister. (5) The effect of an award made on an arbitration pursuant to subclause (4) shall be that the relevant plan submitted by the Company pursuant to subclause (3)(b) shall, with such changes required by the Minister under subclause (4) as the arbitrator determines to be reasonable (with or without modification by the arbitrator), be deemed to be the plan approved by the Minister under this clause. (6) At least 3 months before the anticipated submission of proposals relating to a proposed development pursuant to any of clauses 8A, 10G, 10I, 10K or 10N, the Company must, unless the Minister otherwise requires, give to the Minister information about how the proposed development may affect the plan approved or deemed to be approved by the Minister under this clause. This obligation operates in relation to all proposals submitted on or after the date that is 4 months after the date when a plan is first approved or deemed to be approved under this clause. (7) The Company shall at least annually report to the Minister about the Company’s implementation of the plan approved or deemed to be approved by the Minister under this clause. (8) At the request of either of them made at any time and from time to time, the Minister and the Company shall confer as to any amendments desired to any plan approved or deemed to be approved by the Minister under this clause and may agree to amendment of the plan or adoption of a new plan. Any such amended plan or new plan will be deemed to be the plan approved by the Minister under this clause in respect of the development to which it relates. (9) During the currency of this Agreement, the Company shall implement the plan approved or deemed to be approved by the Minister under this clause. Local participation plan 8E. (1) In this clause, the term “local industry participation benefits” means: (a) the use and training of labour available within the said State; (b) the use of the services of engineers, surveyors, architects and other professional consultants, experts, specialists, project managers and contractors available within the said State; and (c) the procurement of works, materials, plant, equipment and supplies from Western Australian suppliers, manufacturers and contractors. (2) The Company acknowledges the need for local industry participation benefits flowing from this Agreement. (3) The Company agrees that it shall, not later than 3 months after the second variation date, prepare and provide to the Minister a plan which contains: (a) a clear statement on the strategies which the Company will use, and require a third party as referred to in subclause (7) to use, to maximise the uses and procurement referred to in subclause (1); (b) detailed information on the procurement practices the Company will adopt, and require a third party as referred to in subclause (7) to adopt, in calling for tenders and letting contracts for works, materials, plant, equipment and supplies stages in relation to a proposed development and how such practices will provide fair and reasonable opportunity for suitably qualified Western Australian suppliers, manufacturers and contractors to tender or quote for works, materials, plant, equipment and supplies; (c) detailed information on the methods the Company will use, and require a third party as referred to in subclause (7) to use, to have their respective procurement officers promptly introduced to Western Australian suppliers, manufacturers and contractors seeking such introduction; and (d) details of the communication strategies the Company will use, and require a third party as referred to in subclause (7) to use, to alert Western Australian engineers, surveyors, architects and other professional consultants, experts, specialists, project managers and consultants and Western Australian suppliers, manufacturers and contractors to services opportunities and procurement opportunities respectively as referred to in subclause (1). It is acknowledged by the Company that the strategies of the Company referred to in subclause (3)(a) will include strategies of the Company in relation to supply of services, labour, works, materials, plant, equipment or supplies for the purposes of this Agreement. (4) At the request of either of them made at any time and from time to time, the Minister and the Company shall confer as to any amendments desired to any plan provided under this clause and may agree to the amendment of the plan or the provision of a new plan in substitution for the one previously provided. (5) At least 6 months before the anticipated submission of proposals relating to a proposed development pursuant to any of clauses 8A, 10G, 10I, 10K or 10N, the Company must, unless the Minister otherwise requires, give to the Minister information about the implementation of the plan provided under this clause in relation to the proposed development. This obligation operates in relation to all proposals submitted on or after the date that is 7 months after the date when a plan is first provided under this clause. (6) During the currency of this Agreement the Company shall implement the plan provided under this clause. (7) The Company shall: (a) in every contract entered into with a third party where the third party has an obligation or right to procure the supply of services, labour, works, materials, plant, equipment or supplies for or in connection with a proposed development, ensure that the contract contains appropriate provisions requiring the third party to undertake procurement activities in accordance with the plan provided under this clause; and (b) use reasonable endeavours to ensure that the third party complies with those provisions.”; (3) in clause 9(1)(b): (a) by deleting “*1904*” in subparagraph (i) and substituting “*1978*”; and (b) by inserting after sub‑subparagraph E. the following new paragraph: “Notwithstanding clause 10L(2)(b)(iv), detailed proposals may refer to activities on tenure which is proposed to be granted pursuant to this paragraph (b) as if that tenure was granted pursuant to this Agreement (but this does not limit the powers or discretions of the Minister under this Agreement or the Minister responsible for the administration of any relevant Act with respect to the grant of the tenure).”; (4) by inserting after subclause 9(2) the following new subclauses: “Application for Eligible Existing Tenure to be held pursuant to this Agreement (2a) (a) The Minister may at the request of the Company from time to time made during the continuance of this Agreement approve Eligible Existing Tenure becoming held pursuant to this Agreement on such conditions as the Minister sees fit (including, without limitation and notwithstanding the *Mining Act 1978* and the LAA, as to the surrender of land, the submission of detailed proposals and the variation of the terms and conditions of the Eligible Existing Tenure (including for the Eligible Existing Tenure to be held pursuant to this Agreement and for the more efficient use of the Relevant Land)) and the Minister may from time to time vary such conditions in order to extend any specified time for the doing of any thing or otherwise with the agreement of the Company. (b) Eligible Existing Tenure the subject of an approval by the Minister under this subclause will be held by the Company pursuant to this Agreement: (i) if the Minister’s approval was not given subject to conditions, on and from the date of the Minister’s notice of approval; (ii) unless paragraph (iii) applies, if the Minister’s approval was given subject to conditions, on the date on which all such conditions have been satisfied; and (iii) if the Minister’s approval was given subject to a condition requiring that the Company submit detailed proposals in accordance with this Agreement, on the later of the date on which the Minister approves proposals submitted in discharge of that specified condition and the date upon which all other specified conditions have been satisfied, but the Company is authorised to implement any approved proposal to the extent such implementation is consistent with the then terms and conditions of the Eligible Existing Tenure pending the satisfaction of any conditions relating to the variation of the terms or conditions of the Eligible Existing Tenure. Where this paragraph (iii) applies, prior to any approval of proposals and satisfaction of other conditions, the relevant tenure will be treated for (but only for) the purposes of clause 10L(2)(b)(iv) as tenure held pursuant to this Agreement. Application for Special Advance Tenure to be granted pursuant to this Agreement (2b) Without limiting clause 9(1)(c), the Minister may at the request of the Company from time to time made during the continuance of this Agreement approve Special Advance Tenure being granted to the Company pursuant to this Agreement if: (a) the Company proposes to submit detailed proposals under this Agreement (other than under clause 10N) to construct works installations or facilities on the Relevant Land and the Company’s request is so far as is practicable made, unless the Minister approves otherwise, no less than 6 months before the submission of those detailed proposals; and (b) the Minister is satisfied that it is necessary and appropriate that Special Advance Tenure, rather than tenure granted under or pursuant to the other provisions of this Agreement, be used for the purposes of the proposed works installations or facilities on the Relevant Land, and if the Minister does so approve: (c) notwithstanding the *Mining Act 1978* or the LAA, the appropriate authority or instrumentality of the State shall obtain the consent of the Minister to the form and substance of the Special Advance Tenure prior to its grant (which for the avoidance of doubt neither the State nor the Minister is obliged to cause) to the Company; and (d) if the Company does not submit detailed proposals relating to construction of the relevant works installations or facilities on the Relevant Land within 24 months after the date of the Minister’s approval or such later time subsequently allowed by the Minister, or if submitted the Minister does not approve such detailed proposals, the Special Advance Tenure (if then granted) shall be surrendered at the request of the Minister. (2c) The decisions of the Minister under subclauses (2a) and (2b) shall not be referable to arbitration and any approval of the Minister under this clause shall not in any way limit, prejudice or otherwise affect the exercise by the Minister of the Minister’s powers, or the performance of the Minister’s obligations, under this Agreement or otherwise under the laws from time to time of the said State.”; (5) in clause 9 by: (a) deleting in subclause (3) “subclause (2)” and substituting “subclauses (2), (2a) and (2b)”; and (b) deleting in subclause (3a) “subclause (1)” and substituting “subclauses (1), (2a) and (2b)”; (6) in clause 10(2) by: (a) deleting in paragraph (a) the words “allow crossing places for roads stock and other railways and”; (b) inserting after paragraph (a) the following new paragraph: “Crossings over Railway (aa) for the purposes of livestock and infrastructure such as roads, railways, conveyors, pipelines, transmission lines and other utilities proposed to cross the land the subject of the Company’s railway the Company shall: (i) if applicable, give its consent to, or otherwise facilitate the grant by the State or any agency, instrumentality or other authority of the State of any lease, licence or other title over land the subject of the Company’s railway so long as such grant does not in the Minister’s opinion unduly prejudice or interfere with the activities of the Company under this Agreement; and (ii) on reasonable terms and conditions allow access for the construction and operation of such crossings and associated infrastructure, provided that in forming his opinion under this clause, the Minister must consult with the Company;”; (c) deleting paragraph (j)(ii) and substituting the following subparagraph: “(ii) on fine ore sold or shipped separately as such at the rate of: (A) 5.625% of the f.o.b. value, for ore shipped prior to or on 30 June 2012; (B) 6.5% of the f.o.b. value, for ore shipped during the period from 1 July 2012 to 30 June 2013 (inclusive of both dates); and (C) 7.5% of the f.o.b. value, for ore shipped on or after 1 July 2013;”; and (7) in clause 10N by: (a) deleting in subclause (1) ““LAA” means the *Land Administration Act 1997* (WA);”; (b) inserting after subclause (3)(c) the following new paragraph: “(d) Without limiting subclause (9), the Minister may waive the requirement under this clause for the Company to obtain and to furnish the consent of a title holder if the title holder has refused to give the required consent and the Minister is satisfied that: (i) the title holder’s affected land is or was subject to a miscellaneous licence granted under the *Mining Act 1978* for the purpose of a railway to be constructed and operated in accordance with this Agreement; and (ii) in the Minister’s opinion, the title holder’s refusal to give the required consent is not reasonable in all the circumstances including having regard to: (A) the rights of the Company in relation to the affected land as the holder of the miscellaneous licence, relative to its rights as the holder of the sought Special Railway Licence or Lateral Access Road Licence (as the case may be); and (B) the terms of any agreement between the Company and the title holder.”; and (c) deleting in subclause (4)(a) the comma after “the provisions of this Agreement” and substituting “and”; and (d) in subclause (7): (i) deleting all words in paragraph (c) after “at the date of such inclusion”; and (ii) inserting after paragraph (k) the following new paragraph: “(l) The provisions of clause 10(2)(aa) shall apply mutatis mutandis to any Railway or Railway spur line constructed pursuant to this clause.”. **SIGNED** by the **HONOURABLE** ) **COLIN JAMES BARNETT** ) | [Signature] | | [Signature] | | Signature of witness | | | | Stephen Bombardieri | | | | Name of witness | | | **THE COMMON SEAL** of ) **HAMERSLEY IRON PTY. LIMITED** ) [C.S.] by authority of the Directors in the presence of: ) | [Signature] | | Robert Paul Shannon | | [Signature] | | Helen Fernihough | [Fourteenth Schedule inserted: No. 61 of 2011 s. 6.]