Sch 5Fourth Variation Agreement

Schedule 5 — Fourth Variation Agreement [Heading inserted: No. 62 of 2011 s. 21.] **2011** **THE HONOURABLE COLIN JAMES BARNETT** **PREMIER OF THE STATE OF WESTERN AUSTRALIA** **BHP BILLITON MINERALS PTY. LTD.** **ACN 008 694 782** **ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY. LTD.** **ACN 009 256 259** **MITSUI IRON ORE CORPORATION PTY. LTD.** **ACN 050 157 456** **________________________________________________________________** **IRON ORE (MARILLANA CREEK) AGREEMENT 1991** **RATIFIED VARIATION AGREEMENT ________________________________________________________________** [Solicitor’s Details] **THIS AGREEMENT** is made this 7th day of November 2011 **BETWEEN** **THE HONOURABLE COLIN JAMES BARNETT** MLA., Premier of the State of Western Australia, acting for and on behalf of the said State and instrumentalities thereof from time to time (**State**) **BHP BILLITON MINERALS PTY. LTD.** ACN 008 694 782 of Level 17, St Georges Square, 225 St Georges Terrace, Perth, Western Australia, **ITOCHU MINERALS & ENERGY OF AUSTRALIA PTY. LTD.** ACN 009 256 259 of Level 22, 221 St Georges Terrace, Perth, Western Australia and **MITSUI IRON ORE CORPORATION PTY. LTD.** ACN 050 157 456 of Level 24, 221 St Georges Terrace, Perth, Western Australia (**Joint Venturers**). **RECITALS:** A. The State and the Joint Venturers are now the parties to the agreement dated 20 December 1990 ratified by and scheduled to the *Iron Ore (Marillana Creek) Agreement Act 1991* and which as subsequently added to, varied or amended is referred to in this Agreement as the “**Principal Agreement**”. B. The State and the Joint Venturers wish to vary the Principal Agreement. **THE PARTIES AGREE AS FOLLOWS:** **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 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; 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; “LAA” means the *Land Administration Act 1997* (WA); “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 22(2b) to be granted to the Company under the Mining Act; or (b) an easement or a lease requested under clause 22(2b) to be granted to the Company under the LAA, and as the context requires such tenure if granted; (2) in clause 10(1) by deleting “produce more than 5,500,000 tonnes of iron ore per annum for transportation from the mining lease or to”; (3) by inserting after clause 10B the following new clauses: “**Community development plan** 10C. (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 10, 11 or 14C, 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** 10D. (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 its 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 10, 11 or 14C, 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.”; (4) in clause 11 by: (a) in subclause (1), deleting the definition of “approved production limit under this Clause”; (b) in subclause (2): (i) deleting “produce iron ore under this Agreement for transportation in any calendar year in excess of the approved production limit nor shall” and substituting “increase”; (ii) deleting “exceed” and substituting “above”; (c) in subclause 3, deleting “the approved production limit under this Clause or”; (d) deleting subclause (5); (e) in subclause (8)(a): (i) deleting “approved production limit or”; and (ii) deleting “, in respect of a consent in relation to a proposed increase in the approved mine workforce,”; and (f) inserting after subclause (8) a new subclause as follows: “(9) For the avoidance of doubt, nothing in this clause 11 requires the Company to seek or obtain the Minister’s approval or consent (by submitting proposals or otherwise) to a mere increase in production limits.”; (5) in clause 13(1) by: (a) deleting paragraph (aa); and (b) deleting paragraph (ac) and substituting the following paragraph: “(ac) on fine ore and on pisolite fine ore sold or shipped separately as such at the rate of: (i) 5.625% of the f.o.b. value, for ore shipped prior to or on 30 June 2012; (ii) 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 (iii) 7.5% of the f.o.b. value, for ore shipped on or after 1 July 2013;”; (6) in clause 14C 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.”; (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 23A shall apply mutatis mutandis to any Railway or Railway spur line constructed pursuant to this clause.”; (7) in clause 21(2)(a) by deleting “the approved production limit or”; (8) in clause 22 by: (a) inserting at the end of subclause (1) the following new paragraph: “Notwithstanding clause 14A(2)(b)(iv), detailed proposals may refer to activities on tenure which is proposed to be granted pursuant to this subclause (1) 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).”; (b) in subclause (2) inserting after “The provisions of this subclause” the words “and subclauses (2a) and (2b)”; (c) renumbering subclause (2a) as subclause (2d) and inserting the following new subclauses before the renumbered subclause (2d): “**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 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 14A(2)(b)(iv) as tenure held pursuant to this Agreement. **Application for Special Advance Tenure to be granted pursuant to this Agreement** (2b) 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 14C) 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 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.”; (d) in the renumbered subclause (2d), deleting “subclause (1)” and substituting “subclauses (1), (2a) and (2b)”; (9) in clause 23(2) by deleting all words in the subclause after “ railways which now exist”; and (10) by inserting after clause 23 the following new clause: “23A. **Crossings over Rail Spur** 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 rail spur referred to in clause 23 the Company shall: (a) 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 rail spur 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 (b) 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.”. **EXECUTED** as a deed. **SIGNED** by the **HONOURABLE** ) **COLIN JAMES BARNETT** ) | Signature of witness | | | | Peter Goodall | | | | Name of witness | | | **EXECUTED** by **BHP BILLITON** ) **MINERALS PTY. LTD.** ACN 008 694 782 ) in accordance with section 127(1) of ) the Corporations Act ) | Signature of Director | | Signature of Secretary | | Uvashni Raman | | Robin Lees | | Full Name | | Full Name | **EXECUTED** by **MITSUI IRON ORE** ) **CORPORATION PTY. LTD** ) ACN 050 157 456 in accordance with ) | Signature of Director | | Signature of Secretary | | Ryuzo Nakamura | | Jiahe He | | Full Name | | Full Name | **SIGNED** by **Shuzaburo Tsuchihashi** ) as attorney for **ITOCHU MINERALS &** ) **ENERGY OF AUSTRALIA PTY. LTD.** ) ACN 009 256 259 under power ) of attorney dated 27 October 2011 ) | Signature of witness | | Signature of Attorney | | Yasushi Fukumura | | Shuzaburo Tsuchihashi | | Name | | Name | [Schedule 5 inserted: No. 62 of 2011 s. 21.] ![dline]() Notes 1 This reprint is a compilation as at 3 January 2014 of the *Iron Ore (Marillana Creek) Agreement Act 1991* and includes the amendments made by the other written laws referred to in the following table. The table also contains information about any reprint. Compilation table | **Short title** | | | **Number and year** | | | **Assent** | | | **Commencement** | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | | *Iron Ore (Marillana Creek) Agreement Act 1991* | | | 2 of 1991 | | | 27 May 1991 | | | 27 May 1991 (see s. 2) | | | | | *Acts Amendment (Mount Goldsworthy, McCamey’s Monster and Marillana Creek Iron Ore Agreements) Act 1994* Pt. 4 | | | 29 of 1994 | | | 8 Jul 1994 | | | 8 Jul 1994 (see s. 2) | | | | | *Acts Amendment (Iron Ore Agreements) Act 2000* Pt. 3 | | | 57 of 2000 | | | 7 Dec 2000 | | | 7 Dec 2000 (see s. 2) | | | | | **Reprint of the *Iron Ore (Marillana Creek) Agreement Act 1991* at 5 Apr 2002** (includes amendments listed above) | | | | | | | | | | | | | | *Statutes (Repeals and Miscellaneous Amendments) Act 2009* s. 80 | | | 8 of 2009 | | | 21 May 2009 | | | 22 May 2009 (see s. 2(b)) | | | | | *Standardisation of Formatting Act 2010* s. 4 | | | 19 of 2010 | | | 28 Jun 2010 | | | 11 Sep 2010 (see s. 2(b) and *Gazette* 10 Sep 2010 p. 4341) | | | | | *Iron Ore Agreements Legislation Amendment Act 2010* Pt. 4 | | | 34 of 2010 | | | 26 Aug 2010 | | | 1 Jul 2010 (see s. 2(b)(ii)) | | | | | *Iron Ore Agreements Legislation Amendment Act (No. 2) 2010* Pt. 11 | | | 61 of 2010 | | | 10 Dec 2010 | | | s. 45: 1 Jul 2010 (see s. 2(b)); Pt. 11 other than s. 45: 11 Dec 2010 (see s. 2(c)) | | | | | *Iron Ore Agreements Legislation (Amendment, Termination and Repeals) Act 2011* Pt. 6 | | | 62 of 2011 | | | 14 Dec 2011 | | | 15 Dec 2011 (see s. 2(b)) | | | | | **Reprint 2: The *Iron Ore (Marillana Creek) Agreement Act 1991* at 3 Jan 2014** (includes amendments listed above) | | | | | | | | | | | | | Defined terms *[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]* **Defined term Provision(s)** Agreement 3, 6(1), 7(1) aggregate project cost under the Processing Agreement Sch. 2 approved mine workforce” Sch. 2 approved production limit under this Clause Sch. 2 BHP Sch. 2 combined limit Sch. 2 First Variation Agreement 3 Fourth Variation Agreement 3 Second Variation Agreement 3 Third Variation Agreement 3