-,THE PREMIER, FOR AND ON BEHALF OF THE STATE OF WESTERN
AUSTRALIAAND

THE WESTERN AUSTRALIAN LAND AUTHORITYAND

THE CONTRACTING PARTIESBURRUP AND MAITLAND INDUSTRIAL ESTATESAGREEMENTCROWN SOLICITOR'S OFFICE
141 St Georges TeITace
PERTH WA 6000
Tel: (08) 9264 1888
Fax: (08) 9481 7169
Ref: CSO:3087/01(8 UOO1\leg~l\;!gno 13Y'-rlocl!men!5\!;mde!~'m~\burrop\5ecno!1 J !\dr:ariblicn drJfI~\30g7.0!secllon J I final doc)

TABLE OF CONTENTS
1.

DEFINITIONS AND INTERPRETATION............................................................... 2

1.1
1.2

Definitions ..................................................................................................................... 2
Interpretation .............................................................................................................. 12

2.

EXECUTION AND WHEN THIS DEED TAKES EFFECT................................. 13

2.1
2.2
2.3
2.4

Satisfaction Date ......................................................................................................... 13
Eligibility to be Contracting Party ............................................................................ 13
Snrvival of this Deed .................................................................................................. 13
Termination ................................................................................................................. 14

3.

AUTHORITY TO ENTER INTO DEED ................................................................ 16

3.1
3.2

warranties ................................................................................................................... 16
Reliance ....................................................................................................................... 16

4.

BURRUP NON-INDUSTRIAL LAND ..................................................................... 16

4.1
4.2
4.3
4.4
4.4A
4.5
4.6
4.7
4.8

Acknowledgment of Proposed Effect of the Burrup Non-Industrial Land ILUA 16
Intentions of State and Contracting Parties ............................................................. 17
Process for transfer of freehold title ......................................................................... 17
Freehold Title .............................................................................................................. 19
State's Election ............................................................................................................ 21
Management Plan ....................................................................................................... 23
Financial Contribution by State ................................................................................ 26
Implementation of State's Financial Contribution for the Burrup Non-Industrial
Land Infrastructure ................................................................................................... 27
No Objections .............................................................................................................. 27

5.

COMPULSORY ACQUISITION OF HEARSON COVE LAND ......................... 27

5.1
5.2
5.3

Withdrawal of Objection ........................................................................................... 27
Consent to Compulsory Acquisition ......................................................................... 27
Entitlement to Compulsorily Acqllire ....................................................................... 27

6.

COMPULSORY ACQUISITION OF KARRATHA LAND .................................. 27

6.1
6.2
6.3
6.4
6.5
6.6

6.8
6.9
6.10

Withdrawal of Objection ........................................................................................... 27
Consent to Compulsory Acquisition ......................................................................... 28
Entitlement to Compulsorily Acqllire ....................................................................... 28
Definitions for this Clause ......................................................................................... 28
Lot Payment where no Transferable Lots or no Approved Body Corporate ....... 29
Principles for Transfer where there are Transferable Lots with an Aggregate
Value of more than 5% of the Value of the Developed Lots within a ParceL ..... 30
Principles for Transfer where there are Transferable Lots with an aggregate
Value equal to or less than 5% of the Value of the Developed Lots within a Parcel........... 34
Application of Clauses 6.4 to 6.7 ............................................................................... 34
Contracting Out .......................................................................................................... 35
Failure to CompJy ....................................................................................................... 35

7.

COMPULSORY ACQUISITION OF INDUSTRIAL ESTATE ........................... 36

7.1

Consent to Compnlsory Acquisition

6.7........... 36

7.2
7.3
7.4

Entitlement to Compulsorily Acquire ....................................................................... 36
Specific Acknowledgments ........................................................................................ 36
Sections 28 and 31 of the Native Title Act ................................................................. 36

8.

UP FRONT PAYMENT BY STATE ........................................................................ 36

8.1
8.2

Payment on Satisfaction Date .................................................................................... 36
Payment on Acquisition Date .................................................................................... 37

9.

CURRENT PROPONENT LEASES ........................................................................ 37

9.1
9.2
9.3

Current Proponent Commitments ............................................................................ 37
Lump Sum Payments ................................................................................................. 37
Payment of the Current Proponent Annual Payment.. ........................................... 37

10.

FUTURE PROPONENTS ......................................................................................... 38

10.1
10.2

Future Propouent Commitments .............................................................................. 38
Annual Payment ......................................................................................................... 39

11.

FREEHOLD ................................................................................................................ 40

11.1
11.2

Purchase Value to be paid by State ........................................................................... 40
Obligations Cease ....................................................................................................... 40

12.

EXCLUSION AND VARlATION ............................................................................ 40

12.1
12.2
12.3
12.4

Proponents May Exclude Prior to Grant ................................................................. 40
Proponents May Vary After Grant.. ......................................................................... 40
Release by Contracting Parties ................................................................................. 41
State may Exclude or Vary ........................................................................................ 41

13.

LANDCORP MAY PERFORM STATE OBLIGATIONS .................................... 41

14.

VALIDITY OF GRANTS .......................................................................................... 41

15.

STATE'S OBLIGATIONS FOR ABORIGINAL EMPLOYMENT AND
ENTERPRISE............................................................................................................. 42

15.1
15.2
15.3
15.4

List of Available Persons and Aboriginal Contractors ........................................... 42
Buy Local ..................................................................................................................... 42
Government Trading Enterprises ............................................................................. 42
Employment Service Provider ................................................................................... 42

16.

PROPONENTS OBLIGATIONS FOR ABORIGINAL EMPLOYMENT AND
ENTERPRISE ............................................................................................................. 45

16.1
16.2
16.3

Employment and Enterprise Obligations ................................................................. 45
Employment Strategy ................................................................................................. 46
Levy Payable aftel' the Production Date ................................................................... 47

17.

APPROVED BODY CORPORATE .................... :.................................................... 47

17.1
17.2
17.3
17.4
17.5
17.6
17.7

Establishment of Approved Body Corporate........................................................... 47
Appointment of ABC Consultant.. ............................................................................ 48
Membership of Approved Body Corporate ............................................................. 48
Process for Establishment of Approved Body Corporate ....................................... 49
Rnles and Objects ....................................................................................................... 49
Provision of Funding .................................................................................................. 51
Ratification Deed ........................................................................................................ 51
ii

17.8

GST .............................................................................................................................. 51

18.

EDUCATION .............................................................................................................. 52

19.

ABORIGINAL HERITAGE ..................................................................................... 52

19.1
19.2

Notification .................................................................................................................. 52
Ground Disturbing Activities by State ..................................................................... 52

20.

CONDITIONS ............................................................................................................ 53

20.1
20.2

Section 41 Conditions ................................................................................................. 53
Contractual Terms ..................................................................................................... 53

21.

MANNER OF PAYMENT ........................................................................................ 53

21.1

21.3

To Whom Paymeut is Made ...................................................................................... 53
Ratification by Approved Body Corporate .............................................................. 54
Unspent Portions of Payments ................................................................................... 54

22.

NO ACKNOWLEDGMENT OF NATIVE TITLE ................................................. 54

23.

NO FURTHER COMPENSATION ......................................................................... 54

23.1

23.2

Full and Final Settlement.. ......................................................................................... 54
Indemnity .................................................................................................................... 55

24.

STATE NOT LIABLE ............................................................................................... 56

25.

VALIDITY OF NOTICES ......................................................................................... 56

26.

INDEPENDENT ADVICE ........................................................................................ 57

27.

PROCEEDINGS UNDER THE NATIVE TITLE ACT ......................................... 57

27.1

27.4

Acknowledgment of Good Faith Negotiations for the Industrial Estate ............... 57
State May Apply nnder Section 35 ............................................................................ 57
Acknowledgment of Consultation in respect of Karratha Land and Heal'son CoveLand ............................................................................................................................. 58
Proceedings under Section 24MD(6B) ...................................................................... 58

28.

RULE AGAINST PERPETUITIES ......................................................................... 58

29.

VALUATIONS UNDER THIS DEED ..................................................................... 58

29.1

29.6

Application of this Clause .......................................................................................... 58
Principles for Obtaining Valuation ........................................................................... 58
Principles for Appointing Independent Valuer under clause 29.2(b) .................... 60
Conduct of Valuations ................................................................................................ 60
Costs of Valuations ..................................................................................................... 60
Principles of Valuation ............................................................................................... 61

30.

GENERAL .................................................................................................................. 63

30.1

Further Assnrance................................................................................... ~Notices .......................................................................................................................... 63
No Right to Terminate ............................................................................................... 64
Assignment .................................................................................................................. 64
Waiver ......................................................................................................................... 64

21.2

27.2
27.3

29.2
29.3
29.4

29.5

30.2

30.3
30.4

30.5

iii

30.6
30.7
30;8
30.9
30.10

Val·iation ...................................................................................................................... 64
Entire Agreement ....................................................................................................... 65
Severability .................................................................................................................. 65
Governing Law ........................................................................................................... 65
Connterparts ............................................................................................................... 65

31.

GST .............................................................................................................................. 65

31.1
31.2
31.3
31.4
31.5
31.6

Interpl·etation .............................................................................................................. 65
Amounts Exclusive of GST ........................................................................................ 66
GST Payable................................................................................................................ 66
Supply of Land ........................................................................................................... 66
Tax Applications ......................................................................................................... 66
Cooperation ................................................................................................................. 67

SCHEDULE 1 PARTY DETAILS ........................................................................................ 68
SCHEDULE 2 ADDITIONAL LAND .................................................................................. 70
SCHEDULE 3 AREA ............................................................................................................. 71
SCHEDULE 4 BURRUP FERTILISER LAND .................................................................. 74
SCHEDULE 5 BURRUP NON-INDUSTRIAL LAND ....................................................... 75
SCHEDULE 6 NOTICES ...................................................................................................... 76
SCHEDULE 7 EMPLOYMENT STRATEGy ................................................................... 93
SCHEDULE 8 HEARSON COVE LAND ........................................................................... 94
SCHEDULE 9 KARRATHA LAND .................................................................................... 96
SCHEDULE 10 LEASE ......................................................................................................... 99
SCHEDULE 11 MANAGEMENT AGREEMENT .......................................................... 115
SCHEDULE 12 DEED OF COVENANT FOR BURRUP NON-INDUSTRIAL LANDUNDER SECTION 15 OF THE LAND ADMINISTRATION ACT .................. 128
SCHEDULE 13 DE WITT LOCATION 399 ..................................................................... 132

iv

THIS DEED is made on the

day of

2002

BETWEENTHE PREMIER, FOR AND ON BEHALF OF THE STATE OF WESTERN
AUSTRALIA ("State")AND
THE WESTERN AUSTRALIAN LAND AUTHORITY, a body corporate establishedunder the Western Australian Land Authority Act 1992 (WA) ("LandCorp")AND
THE CONTRACTING PARTIES, acting for and on behalf of themselves and all persons
included in their respective native title claim groups ("Contracting Parties")
RECITALSA.

On 14 January 2000, pursuant to section 29 of the Native Title Act and section 170 of
the Land Administration Act the State issued a notice of intention to take interests,
including any native title rights and interests, in the Area.

B.

On 3 October 2000 and 30 August 2001, pursuant to sections 24MD(6A) and (6B) of
the Native Title Act and section 170 of the Land Administration Act the State issued
notices of intention to take interests, including any native title rights and interests, inthe Karratha Land.

C.

On 27 March 2002, pursuant to section 29 oftlle Native Title Act and section 170 of
the Land Administration Act the State issued notices of intention to take interests,
including any native title rights and interests, in the Additional Land.

D.

On 15 January 2001, pursuant to sections 24MD(6A) and (6B) of the Native Title Act
and section 170 ofthe Land Administration Act the State issued a notice of intention totake interests, including any native title rights and interests, in the Hearson Cove Land.

E.

The compulsory acquisition of the interests in the Area, the Additional Land, theKarratha Land, and the Hearson Cove Land including any native title rights andinterests, is authorised by relevant orders of the Minister under section 165 of the Land
Administration Act.

F.

The Native Title Parties are taken to have made to the Federal COl11i their respective
native title claims each of which are described in Schedule 1. Each of the Native Title
Parties' native title claim includes land within the Area, the Additional Land, theKmratha Land, the Hearson Cove Land and the BtlITUP Non-IndustIial Land.

G.

The respective native title claims have been entered on the Register of Native Title
Claims and, consequently, the Native Title Parties have been registered as the native
title claimants at the relevant times in relation to their respective claim areas.

H.

If the compulsory acquisition of the interests in the Area and the Additional Land,
including any native title rights and interests, affects native title, it will be a future act
which passes the freehold test in Part 2 Division 3 Subdivision M of the Native Title
Act and the light to negotiate provisions in Subdivision P apply in accordance withsection 26(1)(c)(iii) of the Native Title Act.

1.

If the compulsory acquisition of the interests in the Kan-atha Land and the Hearson
Cove Land, including any native title rights and interests, affects native title, it will bea future act which passes the freehold test in Part 2 Division 3 of Subdivision M of the
Native Title Act to which sections 24MD(6), (6A) and (6B) apply.

J.

In accordance with Part 2 Division 3 Subdivision P of the Native Title Act,negotiations in good faith in respect of the compulsory acquisition of any native title
lights and interests in the Area and the Additional Land have been conducted between
the State, Methanex and the Native Title Parties.

K.

In respect of the Burrup Feltiliser Land, the State and the Native Title Parties haveentered into agreements under sections 28(1)(f) and 31(1)(b) of the Native Title Act inwhich the Native Title Parties consent to the compulsory acquisition of any and allnative title interests in the BUITUP Fertiliser Land upon Bunup Fertilisers Pty Ltd
reaching Financial Close.

L.

In accordance with section 24MD(6B)(d) of the Native Title Act, objections to thecompulsory acquisition of native title rights and interests in some ofthe Kanatha Landand to the compulsory acquisition of native title rights and interests in the Hearson
Cove Land have been lodged. Consequently, the relevant parties for the purposes ofsection 24MD have consulted the objectors in accordance with section 24MD(6B)(e)of the Native Title Act.

M.

The Contracting Parties agree to the compulsory acquisition of any and all of thenative title rights and interests in the Area, the Additional Land, the Kan-atha Land andthe Hearson Cove Land and the confening of rights and interests in relation to theArea, the Additional Land, the Kanatha Land and the Hearson Cove Land inaccordance with this deed.

N.

The State has agreed to provide the Contracting Parties with benefits, including
payments of money, freehold interest in tlle Bumlp Non-Industrial Land, funding for
education and land to the value of 5% of Developed Lots created in the Kanatha Land,in accordance with this deed.

O.

Each Current Proponent is developing a proposed Industrial Project within the
Industrial Estate, and in the case of Methanex also in De Witt Location 399, and forwhich the State may grant a CutTent Proponent Lease.

THE PARTIES AGREE AS FOLLOWS:
1.

DEFINITIONS AND INTERPRETATION

1.1

Definitions
In this deed unless the contrary intention appears:
2

Aboriginal Contractors means members of the Contracting Claim Groups or bodies
corporate controlled by any of them.
Acquisition Date means:(a)the date of the first taking order for any pmt of the Industlial Estate,excluding the Bunup Fertiliser Land;(b)

if the grant of any lease to a Proponent, excluding a lease of the Bunup
Fertiliser Land, occurs before the date of any taking order for any part of theIndustlial Estate, excluding the Bunup Feltiliser Land, then the date of thefirst grant of a lease in the Industrial Estate to a Proponent; or(c)if a transfer of freehold title to any land within the Industrial Estate,excluding the Bunup Feltiliser Land, is made to any Purchaser before thedate of any taking order for any part of the Industrial Estate, excluding the
Bunup Fertiliser Land, then the date of that transfer.

Additional Land means the land shown in the map set out in Schedule 2 andreferred to in the notice set out in Schedule 6.
Annual Payment means the amount detennined in accordance with clause 10.2.
Approved Body Corporate means an incorporated association:(a)established under:(i)the Aboriginal Councils and Associations Act 1976 (Cth) (or any
other Commonwealth legislation that replaces that Act); or(ii)

any other legislation as agreed by the parties; and(b)established in accordance with clause 17; and(c)that is registered for the purposes ofthe GST Act,and includes any successor, reconstituted, amalgamated, merged or reconstructedbody approved by the State from time to time.
approved determination of native title has the meaning given to that teml under the
Native Title Act.
arbitral body has the meaning given to that tenn under the Native Title Act.
AI'en means so much of the land referred to in the relevant notice set out in Schedule
6 as is shown on the maps set out in Schedule 3.
Anstralian Property Institute means the Australian Propelty Institute and includes
any body corporate established for the same or substantially similar purpose if theAustralian Property Institute ceases to exist.
3

Available Persons means members of the Contracting Claim Groups.
Burrup Fertiliser Land means the land described as De Witt Lot 564 shown on themap set out in Schedule 4 and being land within the notice for the Area set out in
Schedule 6.
Bun·up Non-Industrial Land means the land shown on the map set out in Schedule

5.
Burrup Non-Industrial Land Buildings means a building or buildings andassociated infrastructure constructed for:(a)office and other facilities for the management of the Burrup Non-Industtial
Land; and(b)a visitors and cultural centre for the purposes of:(i)facilitating and promoting the cultural activities of the Contracting
Parties; and(ii)

promoting the commercial enterprises and toutism activities of theContracting Parties relating to the Burrup Non-Industrial Land.

Burrup Non-Industrial Land ILUA means an indigenous land use agreement for
the Bunup Non-Industtial Land, desctibed in clause 4.1 and to be concluded in themanner described in clause 4.3.
Burrup Nou-Indnstrial Land Infrastructure means roads, tracks, trails, services
and other infrastructure proposed to be constructed within the Burrup Non-Industrial
Land but not including the infrastructure fonning part of the Burrup Non-Industrial
Land Buildings.
Business Day means any day other than a Saturday, Sunday or public holiday
observed in the State of West em Australia.
Buy Local Policy means the Buy Local Policy issued by the State, as amended by theState from time to time.
CALM means the Department of Conservation and Land Management or such otherdepartment responsible for the Conservation and Land Management Act 1984 (WA).
compulsory acquisition means taking of interests under the Native Title Act and theLand Administration Act.
Conservation Commission means the Conservation Commission of Westem
Australia established by section 18 of the Consen'ation and Land Management Act
1984 (WA).
Contracting Claim Group means the native title claim group of the Contracting
Party.
4

Contracting Party means a Native Title Party who has entered into this deed andContracting Pm'ties means all of them.
CPI means the Consumer Price Index Number as published by the Australian Bureauof Statistics for Australia (All Groups),
Current Proponents means Australian Methanol Company Pty Ltd ACN 100 656
666, Dampier Nitrogen Pty Ltd ACN 100 366 865, Methanex Australia Pty Ltd ACN
092 470 lOS and Japan DME Ltd and includes any lawful nominee or assignee ofany
of them.
Current Proponent Annual Payment means the payment determined in accordancewith clause 9.3.
Current Proponent Lease means the lease or leases in respect of land within the
Industrial Estate, and in the case of Methanex also on De Witt Location 399, which
may be granted to the CUlTent Proponent for the purposes of an Industrial Project.
Deed of Covenant means the proposed deed of covenant in respect of the Bunup
Non-Industrial Land substantially in the fonn set out in Schedule 12.
Determination Date means:(a)subject to paragraph (b), the day which is 21 days after an approved
detelmination of native title is made by a single Judge of the Federal COUlt
in respect of the area of land the subject of the proceedings in the Federal
Court of Australia matter WAG 6017 of 1996 and part WAG 127 of 1997
and pru.t WAG 6256 of 1998; or(b)subject to paragraphs (c) and (d), if an appeal is lodged within the 21 days
refened to in paragraph (a) above, then the day which is 28 days after
judgment is delivered by the Full Federal Court; or(c)subject to paragraph (d), if an application for special leave to appeal to theHigh Court is lodged within the 28 days referred to in paragraph (b) above,the day the application for special leave to appeal is dismissed or the day
judgment in the appeal is delivered by the High Court, whichever is thesooner; or(d)in the event that a judgement referred to in paragraphs (b) or (c) above
results in the matter being remitted to a single Judge of the Federal COUli orto the Full Federal Court, as the case may be, then paragraphs (a), (b) or (c)above shall again apply.

De Witt Location 399 means the area ofland shown on the map in Schedule 13.
Employment Funding means the funding to be provided by the State under clause
15.4(a).
Employment Service Provider means the person appointed under clause 15.4.
5

Employment Statement means a statement provided to the Employment Service
Provider and the State by a Proponent which contains the matters set out in clause
16.3(b).
Employment Stl'3tegy means a strategy for employment and trammg of local
Aboriginal people developed by a Proponent in accordance with clause 16.2 and theobjectives set out in Schedule 7.
Employment Undertaking means a promise contained in a deed of undertaking towhich a Proponent and the State are parties:(a)which is expressed to be for the benefit of, and enforceable by:(i)the Employment Service Provider;(ii)

the Contracting Pru.ties for the period plior to the Ratification Date;
and

(iii)

the Approved Body Corporate for the period on and after the
Ratification Date;(b)in which the Proponent agrees to comply with the terms ofc1ause 16 of thisdeed; and(c)which requires the assumption of the obligations in the deed of undertaking
by an assignee ofthe ProIJonent's lease.

Executive Director meru.1S the body corporate established under section 38 of theConservation and Land Management Act 1984 (WA).
Financial Close means the later of Financial Close as defined in the agreements:(a)between NY, the State and Bunup Fertilisers Pty Ltd; and(b)between WGT, the State and Bunup Fertilisers Pty Ltd

under section 31 of the Native Title Act in respect of the Bunup Fertiliser Land
lodged with the National Native Title Tribunal on 27 May 2002.
fnture act has the meaning given to that tenll under the Native Title Act.
Future Proponent means a person, other than the Manager or a Current Proponent,
who:
(a)

is granted a lease;(b)

is assigned a lease jl'om the Manager; or(c)is granted a sublease from the Manager,6

of land within the Industrial Estate (and which land is not already the subject of aninterest held by a Proponent) for the purposes of an Industrial Project.
GST has the meaning given to that tenn in the GST Act.
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth) andincludes all associated legislation and regulations and any legislation or regulations
substituted for or amending any of the foregoing.
Hearson Cove Land means the land described as De Witt Location 479 shown on
the map in Schedule 8 and referred to in the relevant notice set out in Schedule 6.
Heritage Policies means:
(a)

(b)

the policies and procedures determined by the Depaliment responsible forthe administration of the Aboriginal Heritage Act 1972 (WA) from time totime in respect of Aboriginal heritage including, but not limited to:(i)the Aboriginal Heritage Manual Version 1 (February 2002); and(ii)

Aboriginal Heritage and Development - Advice to Developers(April 1999); or

policies and procedures agreed between the State and the Contracting Parties
in respect of Aboriginal heritage.

Independent Valuer means a person who:(a)

is a member of the Australian Property Institute;(b)is licensed under the Land Valuers Licensing Act 1978 (WA); and(c)has at least 5 years recent experience valuing the type of land use being
valued in the Pilbara.

indigenous land use agreement has the meaning given to that term under the Native
Title Act.
Industrial Estate means:(a)the Area and the Additional Land; but(b)does not include De Witt Location 399; and(c)

if Burrup Feliilisers Pty Ltd does reach Financial Close, then, for the
purposes of clauses 9, 10, II, 15, 16 and 19 does not include the Burrup
Fertiliser Land; and(d)does not include freehold land excluded under clause 11.2.

7

Industrial Project means a project for any of the following purposes (as the project
may be varied, expanded or amended from time to time):(a)processing or refining or deriving products fi'om minerals (minerals has themeaning given to that tenn under the Mining Act 1978 (WA» or petroleum(petroleum has the meaning given to that term under the Petroleum Act 1967
(WA» including, but not limited to, the production of methanol, ammonia,
urea and dimethyl-ether and any downstream processing of derivatives ofthat processing or refining;(b)gas production or extraction including, but not limited to, production or
extraction from the atmosphere for the purposes of on-sale;(c)water desalination, filtration or purification for the purposes of on-sale;(d)power generation for the purposes of on-sale; or(e)trade or commerce conducted on a lease which, or leases which in aggregate,
exceed 10 hectares in area,

but does not include the mining or extraction of:(i)limestone, rock or gravel;(ii)

shale;(iii)

sand; and

(iv)

clay.

Karratha Land means the land shown on the maps in Schedule 9 and referred to in
the relevant notices set out in Schedule 6.
Lalld AdmillistratiolZ Act means the Land Admillistration Act 1997 (WA), as
amended from time to time.
Lease means the proposed lease in respect of the Burrup Non-Industrial Land
substantially in the form set out in Schedule 10.
Levy means the amount calculated as follows:$Levy = (0.05 x (EW/52) x $4,500) - (AP x $4,500)
Where:
EW means the aggregate number of weeks (or part thereof) worked by the fulltime equivalent employees employed on-site directly by the Proponent, any
related company or its contractors or subcontractors for the operation of theIndustrial Project in each Production Peliod but does not include any employees
employed:8(a)for the construction and commissioning of the Industrial Project;(b)

for the construction and commissioning of any extension or addition to
the Indushial Project; or(e)for major maintenance and repairs relating to the Industrial Project
during a shutdown of the Industrial Proj ect for a period of one (l) dayor more.

AP means the aggregate number of local Aboriginal persons employed by the
Proponent, any related company or its contractors or subcontractors for the
Industrial Project in each Production Period.
Listed Aboriginal Contractors means Aboriginal Contractors who are identified on
the list referred to in clause 15.1.
Listed Available Persons means Available Persons who are identified on the list
referred to in clause 15.1.

Lump Sum Amonnt means the following sums specified for each Current
Proponent:(a)for Methanex, $500,000;(b)

for Japan DME Ltd, $650,000;(c)for Dampier Nitrogen Ply Ltd, $650,000; and(d)for Australian Methanol Company Pty Ltd, $500,000.

Management Agreement means the proposed agreement for the management of the
Burrup Non-Industrial Land substantially in the fmm set out in Schedule II.
Managel' means LandCorp or any other person who is responsible for the
management or administration of the Industrial Estate on behalf of the State or
LandCorp.
Market Rental means the rental on the basis of the unimproved value of the relevant
land within the Industrial Estate detennined in accordance with clause 29.
Methanex means Methanex Anstralia Pty Ltd, ACN 092 470 105 of Level 8, QVI
Building, 250 St Georges Terrace, Perth, Western Australia.
Minister for Environment and Hel'itage means the Minister for the time being
responsible for the administration of the Conservation and Land lvlanagement Act
J984 (WA).
Minister for Indigenous Affairs means the Minister for the time being responsible
for the administration of the Aboriginal Heritage Act 1972 (WA).
native title has the meaning given to that tenn under the Native Title ACI.
9

Native Tille Act means the Native Title Act 1993 (Cth).

native title claim means the relevant native title detelmination application taken tohave been made by the relevant Native Title Party to the Federal Court under PaJi 3of the Native Title Act described in Schedule I.
native title claim group has the meaning given to that tenn under the Native Title
Act.
Native Title Party means each of NY, YM and WGT and Native Title Parties
means all of them.
non extinguishment priuciple has the meaning given to that ternl under the Native
Title Act.
NY means the Registered Native Title Claimants in respect of the Ngarluma
Yindjibarncli claim referred to in Item 1.1 of Schedule 1.
party means a party to this deed and parties means all of tllem.
Payment Undertaking means a promise contained in a deed of undertaking to whicha Proponent and the State are parties:(a)which is expressed to be for the benefit of, and enforceable by:(i)the Contracting Parties for the period prior to the Ratification Date;
and

(ii)

the Approved Body Corporate for the period on and after tile
Ratification Date;(b)in which the Proponent agrees to pay the Lump Sum Payment in accordancewith clause 9.2, or the Current Proponent Annual Payment in accordancewith clause 9.3, or the Annual Payment in accordance with clause 10.2, or
any of them, as the case may be; and(c)which requires the assumption of the obligations in the deed of undertaking
by an assignee of the Proponent's lease.

Prescribed Body Corporate has the meaning given to that tenn under the Native
Title Act.
Production Date means, in relation to an Industrial Project, the date on which
product is first shipped, transported or transferred from the area of tile lease or leases
for that Industrial Project.
Production Period means the twelve (12) month period commencing on the
Production Date and thereafter, the twelve (12) month period commencing on eachmmiversaIY ofthe Production Date.
10Proponent means a CUlTent Proponent or a Future Proponent or any lawful assignee
of either, as the context requires.
Purchase Value means the amount equal to the unimproved value for the relevant
land within tbe Industrial Estate detelmined in accordance with clause 29.
Purchaser means any person acquiring a freehold title to land within the Industrial
Estate other than the Manager.
Ratification Date means the date the Approved Body Corporate executes the
Ratification Deed.
Ratification Deed means the deed to be entered into by the Approved Body
Corporate and the State as provided in clause 17.7.
Register of Native Title Claims has the meaning given to that term under the Native
Title Act.
registered native title claimant has the meaning given to that term under the Native
Title Act.
I'elated company has the meaning given to that term under the Corporations Act
2001 (Cth).
I'epresentative body has the meaning given to that telm under the Native Title Act.
Satisfaction Date means the date referred to in clause 2.1.
Schedule means a schedule to this deed.
State means the Crown in right of the State of Western Australia and for the
purposes of this deed, references in this deed to the State do not include LandCorp.
Undertaking means a Payment Undertaking or an Employment Undertaking or both,as the case may be.
Valuation Principles means the principles of valuation set out in c1a?se 29.6.
WGT means the Registered Native Title Claimants in respect of the Wong-Goo-tt-oo
claim referred to in Item 1.3 of Schedule 1.
written law has the meaning given to that term under the Interpretation Act 1984
(WA).
YM means the Registered Native Title Claimants in respect of the Yaburara
Mardudhunera claim referred to in Item 1.2 of Schedule I.

II

1.2

Interpretation
In this deed, unless the contrary intention appears:(a)the singular includes the plural and vice versa;(b)a reference to this deed include its recitals, schedules and a1ll1exures (if any);(c)headings are inserted for ease of reference only and are to be ignored inconstming this deed;(d)the word person includes a finn, body corporate, statutory corporation, an
unincorporated association or an authority or govenmlent department and areference to a gender includes each other gender;(e)

if a word or phrase is defined, other parts of speech and grammatical fonnsof that word or phrase have corresponding meanings;(f)a reference to a person includes a reference to a person's executors,
administrators, successors, substitutes (including but not limited to persons
taking by novation), transferees and assigns;(g)an obligation, representation or warranty on the pari of or in favour of two or
more persons binds or is for the benefit of them jointly and severally;(h)a reference to any thing is a reference to the whole or any part of it and areference to a group of persons is a reference to anyone or more of them;(i)a reference to a grant of any right or interest includes the exercise of therights or the discharge of obligations by the parties in respect of such grant;(j)no rule of construction applies to the disadvantage of a party on the basisthat that party put forward this deed or any part of this deed;(k)a reference to a statute, ordinance, code, or other law includes regulations,by-laws, rules and other statutory instruments under it for the time being inforce and consolidations, amendments, re-enactments, or replacements ofany of them (whether of the same or any other legislative authority having
jurisdiction);(1)

a reference to a person which has ceased to exist or has reconstituted,
amalgamated, reconstructed or merged or the functions of which havebecome exercisable by another person, is a reference to the person
established or constituted in its place or by which its functions have become
exercisable;(m)a reference to any statutory authority, govenunent body (corporate orunincorporate) or person established under any written law includes areference to any person or body (corporate or unincorporate) established orcontinued to perfonn the same or substantially similar function;
12

(n)

references to time are to local time in Perth, Westem Australia; and(0)where time is to be reckoned from a day or event, that day or the day of thatevent is excluded.

2.

EXECUTION AND WHEN THIS DEED TAKES EFFECT

2.1

Satisfaction Date
Other than clause 2.2, this deed shall have no force or effect unless and until all of
the following events have occun'ed ("Satisfaction Date"):

2.2

(a)

the Premier has executed this deed for and on behalf of the State;(b)

LandCorp has executed this deed; and(c)whichever is the earlier of:(i)two (2) Native Title Parties, one of which is the NY, have provided
the State with an executed counterpart or counterparts of this deed and
30 days has passed since the executed counterpart or counterparts wereso provided to the State; or(ii)

the State has been provided with an executed counterplUi or
counterparts of this deed by each of the NY, the YM and the WGT.

Eligibility to be Contracting Party
If WGT do not enter into this deed within the 30 days refen'ed to in clause 2.1 (c)(i),then the WGT are not eligible to be a Contracting Party and the Parties agree that,
subject to clause 2.1, this deed shall have full force and effect notwithstanding that
the WGT have not executed this deed.

2.3

Survival ofthis Deed(a)

The State and LandCorp acknowledge and agree that the Contracting Parties'
promises under this deed constitute valuable consideration.

(b)

The Parties acknowledge and agree that, subject to clauses 2.4 and 28, thisdeed and the lights and obligations of the Pariies under it will survive, to thefullest extent pennitted by law,:(i)the Detennination Date; and(ii)

any detelmination by an arbitral body under section 35 of the
Native Title Act in relation to the Area and the Additional Land;
and

(iii)

any detennination by an independent person or body under section
24MD(6B) of the Native Title Act in relation to the Karratha Landand the Hearson Cove Land.
13

2.4

Termination(a)

In this clause:
Acceptable Current Proponent Conditions means conditions which, in
the State's reasonable opinion, do not materially detract fi'om the financial
viability of the Industrial Project to be conducted by a Current Proponent on
a Current Proponent Lease.
Acceptable Industrial Estate Conditions means conditions which, in theState's reasonable opinion, do not materially detract from the economic or
financial viability or efficient management of the Industrial Estate.
Current PI"oponent acts means the compulsory acquisition of any native
title rights and interests sufficient to enable the State to validly grant CUlTent
Proponent Leases to each of the CUlTent Proponents.
Fnture Act Determination means a detelmination under section 38 of the
Native Title Act made by an arbitral body or any order of a court ofcompetent jurisdiction varying or substituting such a detennination. The
detennination shall be taken to have been made:

(b)

(i)

subject to paragraph (ii) below, 29 days after the date the arbitralbody makes a detennination; or(ii)

if any appeal or other application is lodged in which orders aresought from a COUlt of competent jurisdiction to set aside or vary
any detennination, then 29 days after orders are made in any suchappeal or other application"If, before the Acquisition Date, but fifteen (15) months after the Satisfaction
Date:
(i)

any of NY, YM or WGT have not entered into this deed orotherwise agreed to the compulsory acquisition of any native title
rights and interests in accordance with sections 28(1)(i) and31(1)(b) of the Native Title Act sufficient to enable the State tovalidly grant a Current Proponent Lease to each of the Current
Proponents; and(ii)

it is not the case that there is a Future Act Determination that theCurrent Proponent acts may be done, or may be done subj ect to
Acceptable Current Proponent Conditions; and(iii)

it is not the case that the Determination Date has passed and there isan approved detennination of native title that:(A)

native title does not exist; or

14

(B)

native title exists and is held only by one or more of theContracting Paliies,

in respect of any of the land over which the State wishes to grantCurrent Proponent Leases to the Current Proponents,
then the State may, by notice to the Contracting Pmiies, tenninate this deed.
(c)

If at any time after the Satisfaction Date:(i)the agreement of a Native Title Party for the purposes of sections
28(1)(f) and 31(1)(b) of the Native Title Act contained in clause 7of this deed or contained in any other document, in relation to any
pati of the Industrial Estate, is declared by a court of competentjurisdiction to be void or voidable or othelwise unenforceable; or(ii)

a Future Act Detennination that native title in respect of any patt of
the Industrial Estate may be compulsorily acquired ("the act") is set
aside or varied such that there is no longer a detennination that theact may be done or may be done subject to Acceptable Industrial
Estate Conditions; or(iii)

any taking order issued, or any lease or other interest gratlted, in
accordance with this deed in respect of the Industrial Estate isinvalid by reason of a failure to comply with the provisions of the
Native Title Act,then.the State may, by notice to the Contracting Parties, tenninate this deed.
(d)

If this deed is terminated in accordance with this clause then:(i)other than this clause 2.4, clauses 6.10, 14,23.2 and 27, and to theextent provided in this clause 2.4, this deed ceases to have any
force or effect on and from the date of tennination;(ii)

any compulsory acquisition of native title, atld the grant of any
interest in the IndustJ.ial Estate, Karratha LatJd or Hearson CoveLand is, to the extent pelmitted by law, valid;(iii)

the payment in clause 8.1 and atly interest in land transfel1'ed under
this deed, may be retained by the payee or transferee, as the casemaybe;(iv)

if a freehold title was validly transfel1'ed in respect of any land thesubject of this deed before the tel1'l1ination of this deed, then any
obligation under this deed which accrued before the date of
tel1'l1ination in relation to that fi'eehold title shall remain binding
and enforceable. For the avoidance of any doubt, if the freehold
title to the Bul1'Up Non-Industrial Land is transfelTed under clause 4of this deed, the State's financial obligations under clause 4 survive
the tennination of this deed;
15

(v)

subject to clause 2.4(d)(vi), if a lease was validly granted in respectof any land the subject of this deed before the tennination of thisdeed, then any obligation under this deed or under any Undertaking
in relation to that lease which accrued before the date of
tennination shall remain binding and enforceable;(vi)clause 2.4(d)(v) only applies if and for so long as, in the reasonable
opinion ofthe State, the Proponent may use and enjoy the lease in amanner that does not materially detract from the financial viabilityof the Industrial Proj ect to be conducted by the Proponent on thelease; and(vii)

subject to paragraphs (iii) to (vi) above, any monies paid to theContracting Parties or the Approved Body Corporate shall becomea debt immediately due and payable by the Contracting Parties or
the Approved Body Corporate, as the case may be, to the person or
persons who paid the monies, and any monies held on trust inaccordance with clause 21.1(a) shall be repaid to the person or
persons who paid the monies and the Contracting Parties hereby sodirect.

3.

AUTHORITY TO ENTER INTO DEED

3.1

Warranties

Each Contracting Party represents and wan'ants that:

3.2

(a)

all necessary authorisations have been obtained to enter into this deed; and(b)this deed is valid, binding and enforceable in accordance with its tenns
against each Contracting Party and all persons included in their respective
native title claim group,

Reliance

The Contracting Parties acknowledge and agree that, but for the representations andwalTanties in clause 3.1, neither the State nor LandCorp would have entered into this
deed,
4.

BURRUP NON-INDUSTRIAL LAND

4.1

Acknowledgment of Proposed Effect of the Bun'up Non-Industrial Land ILUAThe State and the Contracting Parties acknowledge that the proposed effect of theBumlp Non-Industrial Land ILUA is to enable the transfer of freehold title to the
BUlT1.lp Non-Industrial Land to the Transferee referred to in clause 4.4(a) under
section 83 of the Land Administration Act and to give effect to the matters set out inthis clause 4.

16

4.2

Intentions of State and Contracting Pal'ties
The State and the Contracting Parties agree that this clause 4 is intended to apply as
follows:

4.3(a)a study will be conducted for the preparation of a draft management plan inaccordance with clause 4,5;(b)a management plan will be agreed in accordance with clause 4,5;(c)

the Bmrup Non-Industrial Land lLUA will be entered into, unless native
title has been determined not to exist in respect of all of the Bmrup NonIndustrial Land, in accordance with clause 4.3;(d)the Management Agreement will be entered into in accordance with clause
4.4(b)(iv) or clause 4.4A(b)(iv), as the case may be;(e)the Lease will be entered into in accordance with clause 4.4(b)(iii) or clause
4.4A(b)(iii), as the case may be;(f)

the Deed of Covenant will be entered into in accordance with clause
4.4(b)(ii) or will not be entered into, if clause 4.4A applies; and(g)freehold title to the Burrup Non-Industrial Land will be transfelTed inaccordance with clause 4.4 or clause 4.4A,

Process for transfel' of fl'eehold title(a)

The State will provide to the Contracting Parties a draft Bmrup NonIndustrial Land ILUA before the expiry of twelve (12) months after theSatisfaction Date, The draft Burrup Non-Industrial Land ILUA need only
contain terms necessary to give effect to the transfer of freehold title to, andthe creation of public roads identified in the management plan within, theBurrup Non-Industrial Land in accordance with clause 4.4.

(b)

The State and the Contracting Parties will negotiate in good faith the termsof the Burrup Non-Industrial Land lLUA from the date the draft Burrup
Non-Industrial Land ILUA is provided under clause 4.3(a).

(c)

The Contracting Parties and the State acknowledge that no transfer offreehold title will be made under clause 4.4 or clause 4.4A, and clause 4.6
shall have no force or effect, unless and until one of the following eventsoccur:(i)

prior to the Determination Date the State enters into the Burrup
Non-Industrial Land lLUA with all of the Native Title PaIiies andthe BU\TUp Non-Industrial Land ILUA is registered under the
Native Title Act;(ii)

after the Determination Date and native title has been determined toexist in respect of any pali of the Bmrup Non-Industrial Land, the17State enters into the BUl11.lp Non-Industrial Land ILUA with the
Prescribed Body Corporate and the BUITUP Non-Industrial LandILUA is registered under the Native Title Act; or(iii)

after the Determination Date, native title has been determined not
to exist in respect of all of the Bumlp Non-Industrial Land.

(d)

Nothing in this clause 4.3 requires the State to compulsorily acquire any
native title rights and interests or any other interests in the Burrup NonIndustrial Land for the purposes of facilitating the transfer of the fi'eehold
title to the Burrup Non-Industrial Land.

(e)Nothing in this clause 4.3 requires the State to pay consideration in addition
to the State's fmancial obligations in this deed.

(f)

For the avoidance of doubt, if the event referred to in clause 4.3(c)(iii)
occurs, then subject to clauses 4.3(g) to 4.30), clauses 4.4 to 4.7 apply.

(g)If, after thirty six (36) months of the Determination Date or such other time
as may be agreed in writing between the State and the Contracting Parties("End Daten), the BUlTUP Non-Industrial Land has not been transfen'ed to
the Transferee under clause 4.4 or clause 4.4A and:(i)the event in clause 4.3(C)(iii) has occurred; or(ii)

the event in clause 4.3(c)(iii) has not OCCUlTed, and(A)

the Burrup Non-Industrial Land ILUA has not been agreed
because of an unreasonable act or omission by the State; or(B)

the Burrup Non-Industrial Land ILUA has not beenregistered because of an unreasonable act or omission bytlle State,then the Contracting Parties may elect by notice to the State that clause
4.3(h) applies.
(h)

If the State receives notice from the Contracting Parties under clause 4.3(g),tllen the State must (in the State's discretion) either:(i)transfer the freehold title to the BUlTIIP Non-Industrial Land 111
accordance with clause 4.4 or clause 4.4A; or(ii)

pay $1 0,000,000 to the Contracting Pmiies,

within eighteen (18) months from the date of the receipt ofthe notice.
(i)

If the State makes the payment under clause 4.3(h) to the Contracting
Parties, the parties agree that clauses 4.4 to 4.7 do not apply.

18

(j)

4.4

If on the End Date the BUiTUp Non-Industrial Land has not been transfelTedto the Transferee under clause 4.4 or clause 4.4A and clauses 4.3(g) or
4.3(h) do not apply, then:(A)

the State will notify the Contracting Parties of the reasons why, in
the State's opinion, the Bunllp Non-Indusllial Land has not beentransfelTed (including, if appropliate, why the Bunup NonIndustrial Land ILUA has not been agreed or registered);(B)

the Contracting Parties shall have two (2) months from the date of
the State's notice refen'ed to in clause 4.3G)(A) to respond to theState in wliting; and(C)

if within nine (9) months after the State's notice referred to inclause 4.3(j)(A), the Burrup Non-Industrial Land has not beentransferred to the Transferee under clause 4.4 or clause 4.4A, thenclauses 4.4 to 4.7 do not apply and the State will pay theContracting Parties the sum of$3,400,000 as follows:(1)$1,400,000 within thirty (30) days after the end of the nine(9) month period refeITed to in clause 4.3(j)(C); and(2)$1,000,000 per annum for two (2) years, with the firstpayment on the first anniversary of the payment in clause
4.3(j)(C)(I) and the second payment on the second
anniversary of the payment in clause 4.3(j)(C)(1).

Freehold Title(a)

Subject to clause 4.3, the State will ensure that:(i)if the event in clause 4.3(c)(iii) occurs, the freehold title to theBumlp Non-Industrial Land is transfeITed to the Approved Body
COlporate in accordance with this clause 4.4; or(ii)

if the Bunup Non-Industrial Land ILUA is agreed under clause
4.3(c)(i) or 4.3(c)(ii), the freehold title to the Burrup Non-Industrial
Land is transfeITed to:(A)

the Approved Body Corporate; or(B)another body corporate nominated under the Bunup Non
Industrial Land ILUA,

in accordance Witll this clause 4.4 and the Burrup Non-Industrial
Land ILUA.
For the purposes of this clause 4, "Transferee" means the person to whom
the freehold title is to be trans felTed under clause 4.4(a).

19

(b)

The State and the Contracting Parties agree that the obligation to transfer thefreehold title to the ButTUP Non-Industrial Land will be in respect of thatarea as defined by the cadastral survey refelTed to in clause 4.6(a) and will
be subject to the following:(i)the freehold title to the BUlTUp Non-Industrial Land will be subject
to existing easements and other interests in respect of the Butrup
Non-Industrial Land;(ii)

the freehold title to the BUlTUP Non-Industrial Land will be subject
to the Deed of Covenant and the Transferee must execute the Deedof Covenant prior to the date of transfer of the freehold title to theBumlp Non-Industrial Land and such Deed of Covenant must be
registered and take effect immediately on the date of transfer
subject only to the interests refelTed to in clause 4.4(b)(i);(iii)

the Transferee must execute the Lease prior to the date of transferof the freehold title to the BUlTUP Non-Industrial Land and such
Lease must be registered and take effect immediately on the date oftransfer subject only to the interests refelTed to in clauses 4.4(b)(i)and 4.4(b )(ii);(iv)

the management plan must be agreed or detelTl1ined in accordancewith clause 4.5;(v)

the Transferee must execute the Management Agreement prior to
the date of transfer of the freehold title to the BUlTUP Non-Industrial
Land to take effect on the date of the transfer of the Bumlp NonIndustrial Land;(vi)

the Transferee agrees not to assign, transfer, mortgage, charge,
lease, part with possession (except under the Lease or theManagement Agreement) or otherwise deal in any way with its
interests in the BUlTUP Non-Industrial Land or any part of it, withany person (other than the State) ("Third Party") unless and until
the Third Party executes such document or documents necessary inwhich the Third Party agrees to be bound by the telTl1S of theManagement Agreement; and(vii)

in respect of any area within the Bumlp Non-Industrial Land
identified under the management plan under clause 4.5 for the
reservation, dedication and use as a public road ("reserved area"),
then:
(A)

the reserved area will be excluded from the land to betransfelTed; and(B)

if the event in clause 4.3(c)(iii) has not occUlTed, theContracting Parties or the Prescribed Body Corporate, as
the case may be, and the State, will by way of an
indigenous land use agreement, agree that the public roads20

in the reserved areas can be created notwithstanding any
effect on the native title rights and interests, if any, and thenon-extinguishment principle shall apply, or(viii)

(ix)

(c)

4.4A

if the management plan is amended after the date of transfer of thefreehold to the Bmrup Non-Industrial Land, then:(A)

the reserved area will be surrendered from the Lease andthe freehold title; and(B)

if the event in clause 4.3(c)(iii) has not occurred, theContracting Parties or the Prescribed Body Corporate, as
the case may be, and the State, will by way of an
indigenous land use agreement, agree that the public roadsin the reserved areas can be created notwithstanding any
effect on the native title rights and interests, if any, and thenon-extinguishment principle shall apply; andno compensation shall be payable by the State or any other person
to the Contracting Parties, the Prescribed Body Corporate or theTransferee whatsoever in respect of clauses 4.4(b)(vii) and4.4(b )(viii).

The State will pay all fees and any stamp duty associated with the transfer ofthe freehold title.

State's Election(a)In the event that the State is required to transfer the freehold title to the
Burrup Non-Industrial Land to the Contracting Parties under clause 4.4, theContracting Parties and the State agree that the State may (in the State's
discretion) by notice to the Contracting Parties elect that this clause 4.4A
shall apply.

(b)

If the State elects that this clause 4.4A shall apply then the State and theContracting Parties agree that:(i)clauses 4.4(a) and 4.4(c) apply;(ii)

clauses 4.4(b)(iv) and 4.4(b)(vii) to(ix) apply but othelwise clause
4.4(b) does not apply;(iii)

the fi·eehold title to the Bumtp Non-Industrial Land will be subject
to existing easements and other interests in respect of the Bunup
Non-Industrial Land;(iv)

the Transferee must execute the Lease (except clause 13 of theLease will not apply and reference to the Deed of Covenant in the
Lease shall be amended to be a reference to the conditions in clause
4.4A(vi» prior to the date of transfer of the freehold title to the
BLUrup Non-Industrial Land and such Lease must be registered and21

take effect immediately on the date of transfer subject only to theinterests referred to in clause 4.4A(b )(iii);(v)

the Transferee must execute the Management Agreement (exceptthat reference to the Deed of Covenant in the Management
Agreement shall be amended to be a reference to the conditions inclause 4.4A(vi)) prior to the date of transfer of the freehold title to
the Burrup Non-Industrial Land to take effect on the date of thetransfer of the Bnrrup Non-Industrial Land; and(vi)

the State and the Contracting Parties agree that the obligation totransfer the freehold title to the Burrup Non-Industrial Land will bein respect of that area as defined by the cadastral survey referred toin clause 406(a) and the freehold title will be subject to, at theState's discretion, one or more of the following conditions:(A)

the Transferee must not assign, transfer, mortgage, charge,
lease, part with possession or deal in any way with its
interests in the Burrup Non-Industrial Land or any part ofit (except under the Lease or the Management Agreement)
without the prior written consent of the Minister for Lands
which may be given or withheld in the Minister's
discretion and if given, subject to any such conditions that
the Minister detennines;(B)

the Burrup Non-Industrial Land must be used, or pemlitted
to be used, only in a manner that is not inconsistent withthe management plan detennined under clause 4.5, or as
amended from time to time:(1)in accordance with the Management Agreement;or(2)

if there is no Management Agreement, byagreement in writing between the Transferee andthe Minister for Lands,

but the Transferee may take such steps as are reasonably
necessary (for example, closing off the Burrup NonIndustrial Land or any part of it to the general public for
one day a year) to ensure that the Burrup Non-Industrial
Land, or any pmi of it, is not dedicated to the public use atcommon law, under any written law or in any othermarmer whatsoever;(C)

the management plan refenoed to in paragraph (B) above,as amended from time to time, must be registered on thecertificate of title to the Burrup Non-Industrial Land;(D)

where a pmi of the boundary of the Burrup Non-Industrial
Land is defined by the High Water Mark, no building may
22

occur on the Bun·up Non-Industrial Land between theHigh Water Mark and:(1)

where the coastline is rocky coastline - the line
being 100 metres inland from the cliff line
occun·ing nearest that boundary; or(2)where the coastline is sandy coastline - the line
being 150 metres inland from the High Water
Mark nearest that boundary,

except for recreational purposes, which may include theconstruction, operation and maintenance of roads,
calparks, and low impact public facilities such as showers,
toilets, shaded picnic tables and boat ramps.
For the purposes of this clause 4.4A, High Water Markhas the same meaning as that tel111 is defined in the Land
Administration Act.
4.5

Management Plan(a)

The State will expend an amount of $500,000 for the preparation ofthe draft
management plan in accordance with this clause 4.5 (including the costs of
the Consultant). The State and the Contracting Parties agree that Mr
Stephen Szabo (or if Mr Szabo is unavailable, another person agreed
between the State and the Contracting Parties) will be engaged by the State,
as soon as practicable, in consultation with the Contracting Parties, as anindependent consultant to prepare a draft management plan intended to be
the first management plan under the Management Agreement("Consultant").

(b)

The State and the Contracting Parties agree that the Consultant will be
required to:(i)prepare a draft management plan in accordance with clause 4.5(c);(ii)

consult with the State, the Native Title Parties, the community, therelevant local government and any other relevant authOlities
including, but not limited to, the Conservation Commission;(iii)

provide an opportunity for the views of the State, the Native Title
Parties, the community, the relevant local govelmnent and anyother relevant authorities including, but not limited to, theConservation Commission, to be fOl111ally submitted to theConsultant for his consideration;(iv)

in the preparation of the draft management plan, take into accountthe views of the State, the Native Title Parties, the community, therelevant local government and any other relevant authorities
including, but not limited to, the Conservation Commission;
23

(c)

(v)

have regard to the views of the members of tile advisory committee
established under clause 4.5(d); and(vi)

do all things reasonably necessary to allow the advisory conmlittee
established under clause 4.S(d) to perfonn its functions.

The State and the Contracting Parties agree that the draft management plan
will provide for the following matters having regard to any national andinternational heritage and enviromnental agreements which bind the State,treaties which bind the State, all laws and Government policies, the telms of
the Lease, and the Deed of Covenant or the conditions referred to in clause
4.4A(b)(vi), as the case may be:(i)the preservation and promotion of the Aboriginal cultural andheritage values of the Burrup Non-Industrial Land;(ii)

the preservation and promotion of the natural and environmental
values of the Burrup Non-Industrial Land, including indigenous
flora and fauna;(iii)

the preservation and promotion of the archaeological values of the
Burrup Non-Industrial Land;(iv)

the provision of public recreational facilities and the facilitation ofrecreational activities on the Burrup Non-Industrial Limd, to fulfil
so much of the demand for recreation by members of the public as
is fitting taking account of the matters set out in clauses 4.5(c)(i),(ii), (iii) and (vi);(v)

the regulation of public access having regard to the matters set out
in clauses 4.5(c)(i), (ii), (iii) (iv) and (vi);(vi)

the use of the Burrup Non-Industrial Land by the Approved Body
Corporate and its members from time to time in accordance withtraditional laws and customs aclmowledged and observed by themembers of the Approved Body Corporate;(vii)

the use of the Burrup Non-Industrial Land by the Approved Body
Corporate and its members from time to time consistent with thematters set out in clauses 4.5(c)(i) to (v);(viii)

employment and training opportunities for the Approved Body
Corporate and its members within and in relation to the Burrup
Non-Industrial Land;(ix)

commercial oPPOltunities for the Approved Body Corporate and its
members within the Burrup Non-lndusttial Land;(x)

the provision and construction of the Burrup Non-lndusttial Land
Buildings and the Bun'Up Non-Industtial Land Infi'astructure;
24

(d)

(xi)

provision of fencing;(xii)

creation of vehicular tracks and roads, and walking and cycling
trails and pathways;(xiii)

provision of firebreaks, fire control and carrying out of prescribedbuming;(xiv)

erection of signage;(xv)

constlUction of public conveniences and other public facilities;(xvi)

weed and feral animal control;(xvii)

restriction or prohibition of access for protection of culturally
significant sites, or for safety, cultural or conservation purposes;(xviii)the intended term of the management plan which may include
provisions relating to the renewal or extension of the term;(xix)

the periodical review ofthe management plan;(xx)

the identification of management strategies relating to the use andmanagement ofthe Burmp Non-Industrial Land;(xxi)

the respective management roles of the Approved Body Corporate
and CALM in relation to the Bunup Non-Industrial Land inaccordance with the principles of joint management as set out in theManagement Agreement; and(xxii)

such other matters as the Contracting Parties and CALM may
agree.

The State must establish an advisory committee within forty-five (45) days
after the engagement of the Consultant under clause 4.5(a), in accordancewith this clause(i)the advisory committee will consist of members as agreed between
the State and the Contracting Parties;(ii)

the members of the advisOlY committee will have the following
functions:(A)

review all infOimation provided by the Consultant 111
relation to the draft management plan;(B)provide the advisory committee members' views to theConsultant in respect of the information provided by theConsultant and in respect of such other matters as theadvisory committee members consider relevant; and
25

(C)

4.6

assist the Consultant in the preparation of the draft
management plan;(iii)

each member is entitled to provide his or her views to theConsultant and no consensus is required;(iv)

no quorum is required for any meeting of the members of theadvisory committee; and(v)

the advisory committee must meet with the Consultant from time totime but not less than once every three (3) months.

(e)Unless the State and the Contracting Parties otherwise agree, the draft
management plan must be completed and provided to the State and theContracting Parties within eighteen (18) months of the date of appointmentof the Consultant.

(f)

The State and the Contracting Parties shall endeavour to agree the terms of amanagement plan based on the draft management plan prepared by theConsultant.

(g)

If the State and the Contracting Parties are unable to agree the telms of the
management plan within three (3) months of the date the draft management
plan is provided in accordance with clause 4.5(e), then the Minister for
Environment and Helitage shall, in consultation with the Minister for
Indigenous Affairs, determine the terms of the management plan.

Financial Contribution by State(a)

The State will expend $50,000 for a cadastral survey of the Burrup NonIndustrial Land for registration purposes. The State will provide a copy ofthe completed cadastral survey to the Contracting Parties.

(b)

The State has no obligation under clause 4.6(c) unless and until the transfer
of freehold title has occurred in accordance with clause 4.4 or clause 4.4A.

(c)

The State will provide:(i)$450,000 per annum for five (5) years (with the first payment
commencing on the date of the Management Agreement andthereafter on the first, second, third and fourth anniversaries of that
date) for the management of the Burrup Non-Industrial Land inaccordance with the terms of the Management Agreement;(ii)$5,500,000 within the five (5) year peliod commencing on the dateof the transfer of fi'eehold title, for the purposes of construction of
the Burrup Non-Industlial Land Buildings; and26

(iii)

4.7$2,500,000 within the five (5) year period commencing on the dateof the transfer of freehold title, for the purposes of construction of
the BUITup Non-Industrial Land Infrastructure.

Implementation of State's Financial Contl'ibution for the Burrup N onIndustrial Land Infl'astructure
The State may satisfy its obligations under clauses 4.6(c)(ii) and (iii) by theengagement of the relevant contractor (as determined by the State and subject toclause 15.2) for the construction ofthe BUTI'Up Non-Industrial Land Buildings and the
BUlTUp Non-Industrial Land Infrastructure.

4.8

No Objections
On and from the Satisfaction Date, the Contracting Parties agree that the Contracting
Parties will not, in their capacity as owners of the BUITUP Non-Industrial Land, lodge
or cause to be lodged any objection to development proposals intended to occur onland within the Industrial Estate.

5.

COMPULSORY ACQUISITION OF HEARSON COVE LAND

. 5.1

Withdrawal of Objection
Each Contracting Party hereby withdraws its objection made under section
24MD(6A) and (6B) of the Native Title Act and any objection made by it under theLand Administration Act in respect of the Hearson Cove Land.

5.2

Consent to Compulsory Acquisitiou
The Contracting Parties hereby agree to the compulsory acquisition and consequent
extinguishment by the State of any and all native title rights and interests in theHearson Cove Land in accordance with this deed.

5.3

Entitlement to Compulsorily Acquire
The Contracting Parties hereby agree that, subject to this deed, the State is entitled tocompulsorily acquire all native title and rights and interests in the Hearson CoveLand in accordance with the Land Administration Act and the Native Title Act andthereby extinguish all native title lights and interests in respect of the Hearson Cove
Land.

6.

COMPULSORY ACQUISITION OF KARRATHA LAND

6.1

Withdrawal of Objection
Each Contracting Party hereby withdraws its objection made under section
24MD(6A) and (6B) of the Native Act and any objection made under the Land
Administration Act in respect of the KaITatha Land.

27

6.2

Consent to Compulsory Acquisition
The Contracting Parties hereby agree to the compulsory acquisition and consequent
extinguislmlent by the State of any and all native title rights and interests in the
Karratha Land in accordance with this deed.

6.3

Entitlement to CompnlsoI"ily Acquire
The Contracting Pruties hereby agree that, subject to this deed, the State is entitled tocompulsorily acquire all native title and rights and interests in the Karratha Land inaccordance with the Land Administration Act and the Native Title Act and thereby
extinguish all native title rights and interests in respect of the Kan'atha Land.

6.4

Definitions for this ClauseIn this clause 6 and clause 29:

Developed Lots means all lots within a Parcel other than Public Purpose Lots or
Temporruy Workers' Accommodation Lots.
lot has the meaning given to that tenu under the Town Planning and Development
Act 1928 (WA).
Lot Payment means the runount that is equal to 5% of tlle Value of all Developed
Lots within a Parcel.
Parcel means:(a)a lot or number of lots within the Karrailia Land identified for the purpose(as detenuined by the State) ofa subdivision development; or(b)a lot or lots the subject of a direct transfer by way of public sale or private
treaty to the Registered Proprietor oilier than for ilie purpose of a
subdivision development.

Public Purpose Lot means any lot in the Karratha Land which has been identified by
the State or on an approved plan of subdivision to be required for a public work
wiiliin the meaning ofilie Public Works Act 1902 (WA).
Registered Proprietor means the registered proprietor of the Parcel.
Staged Subdivision Development means a subdivision development in respect of aParcel which is conducted in Stages.
Stages means the stage or stages in which the subdivision development is conducted.
Strata Lot has the meaning given to that tenn in clause 29.
Survey- Strata Lot has the meaning given to tllat tenu in clause 29.

28

subdivision development means a subdivision development which is intended tocreate more than three (3) lots and which includes:(a)subdivision developments for residential, commercial and light industrial
purposes; and(b)strata title developments.

Temporary Workers' Accommodation Lot means land used for the purposes of theconstruction and use of temporru.y dwellings for the accommodation of workers.
transfer means the transfer of the fee simple estate in land subject to encumbrances,
if any.
Transferable Lots means Developed Lots within a Parcel other than:(a)a Developed Lot which has a Value greater than 5% of the Value ofthe total
Developed Lots within the Parcel;(b)

any Strata Lot or Survey Strata Lot;(c)any lot which is proposed to be transferred to a person for the purpose of thecreation of Strata Lots;(d)any Developed Lot that the State is satisfied will be used by the Registered
Proprietor in the bona fide operations of its business and who does notintend to directly transfer it by way of public sale or private treaty for aminimum period of three (3) yeru.·s or until all of the other Developed Lotshave been sold, whichever occurs first (for example, a Developed Lot used
for a display home or sales office); and(e)any Developed Lot required for one ofthe following purposes:(i)caravan park;(ii)

park home; or(iii)

retirement village.

Value means the value determined for the relevant Developed Lot in the Karratha
Land in accordance with clause 29.
6.5

Lot Payment where no Transferable Lots or no Approved Body Corporate(a)

If there are no Transferable Lots available within a Parcel, then the State
must pay the Lot Payment to the Contracting Parties within thirty (30) days
after the first transfer of a Developed Lot within that Parcel by theRegistered Proprietor.

(b)

If clause 6.6 or 6.7 would have applied if there was an Approved Body
Corporate, but at the time a valuation is obtained for the Developed Lots29

within the Parcel no Approved Body Corporate exists or the Approved Body
Corporate exists but it has not executed the Ratification Deed, then the State
must pay the Lot Payment to the Contracting Pal1ies within thil1y (30) days
after the first transfer of a Developed Lot within the Parcel by the Registered
Proprietor. If this clause applies, then the State has no obligation to transfer
Transferable Lots under clause 6.6 or 6.7, as the case may be, in respect of
those Developed Lots.
6.6

Principles for Transfer where there are Transferable Lots with an Aggregate
Value of more than S% of the Value of the Developed Lots within a Parcel(a)This clause 6.6 applies if there are Transferable Lots within a Parcel with anaggregate Value of more than 5% of the Value of the Developed Lots within
the Parcel.

(b)

Prior to the transfer of any Developed Lot within a Parcel by the Registered
Proprietor to any person:(i)

The State must ensure that Transferable Lots as close as possible to5% of the Value of the Developed Lots within the Parcel will betransfelTed to the Approved Body Corporate in accordance with thisclause 6.6. The State may do so by procuring from a person towhom the State proposes to transfer a Parcel, a promise by deedthat the person will transfer to the Approved Body Corporate
Transferable Lots in accordance with this clause 6.

(ii)

When the Value of the Developed Lots has been detennined, theState must notifY the Approved Body Corporate and the Registered
Proprietor of the following matters:(A)

the location and Value for each Developed Lot;(B)

the location and Value for each Transferable Lot; and(C)

the location of each Public Purpose Lot and Temporary
Workers' Accommodation Lot, and a description of the
purpose for which that lot is to be used,(,'Parcel Notice").
(iia)

Any Developed Lot not identified in the Parcel Notice as aTransferable Lot may be transferred or otherwise dealt with by theRegistered Proprietor.

(iii)

Within thirty-five (35) days after receipt of the Parcel Notice, eachofthe Approved Body Corporate and the Registered Proprietor may
by notice to each other and to the State, separately identifY thoseTransferable Lots as close as possible to (but not exceeding) 5% of
the Value of the Developed Lots within the Parcel ("Transferable
Lot Nomination Notices") which each of the Approved Body
30

Corporate and the Registered Propl1etor nominate for transfer to theApproved Body Corporate under clause 6.6(b).
(iv)

If both the Approved Body Corporate and the Registered Proprietor
fail to give a Transferable Lot Nomination Notice, then the State
must elect the Transferable Lots to be transferred to the Approved
Body Corporate under clause 6.6(b lei).

(v)

If only the Approved Body COlporate or only the Registered
Proprietor gives a Transferable Lot Nomination Notice, then theTransferable Lots identified in that Transferable Lot Nomination
Notice will be transferred to the Approved Body Corporate. If theTransferable Lots identified in the Transferable Lot Nomination
Notice are less than 5% of the Value of the Developed Lots within
the Parcel, the State must ensure that an amount equal to thebalance between the Value of the Transferable Lots to betransfelTed and 5% of the Value of the Developed Lots within theParcel is paid to the Approved Body Corporate on the date oftransfer.

(vi)

Ifboth the Approved Body Corporate and the Registered Proplietor
give a Transferable Lot Nomination Notice, and the State, theApproved Body Corporate and the Registered Proprietor are unable
to reach agreement as to the Transferable Lots to be transferredunder clause 6.6(b)(i) within sixty-five (65) days after receipt of theParcel Notice, then:(A)

those Transferable Lots which have been agreed between
the Approved Body Corporate, the Registered Proprietor
and the State will be transferred to the Approved Body
COlpmate;(B)

those Transferable Lots not identified in the Transferable
Lot Nomination Notices may be transferred or otherwise
dealt with by the Registered Proprietor;(C)

those Transferable Lots identified in the Transferable Lot
Nomination Notices but not agreed under paragraph (A),will be placed in a ballot;(D)

the ballot will be conducted within forty-five (45) days
after the expiry of the sixty-five (65) day peJiod refmed toin clause 6.6(b levi) by a person authorised by the State;(E)

Transferable Lots will be randomly drawn from the ballot
until the aggregate Value of the Transferable Lots agreed
under paragraph (A) above and those drawn from theballot is at least 4.5% of the Value of the Developed Lots
within the Parcel and, subject to paragraph (I) below, there
will be no further draws from the ballot;
31

(F)

if on the last draw of the ballot, the aggregate Value of theTransferable Lots agreed under paragraph (A) above andthose drawn from the ballot equals or exceeds 5.5% of theValue of the Developed Lots within the Parcel, then the
Approved Body Corporate may elect:(1)

to accept a transfer of the Transferable Lots
agreed under paragraph (A) above and thosedrawn from the ballot, and agree to pay to theRegistered Proprietor the difference between:(a)the aggregate Value of the Transferable
Lots agreed under paragraph (A) above
and those drawn from the ballot; and(b)

5.5% of the Value of the Developed Lots
within the Parcel,("Excess Amount"), in which case paragraph (G)below will apply; or(2)

to accept a transfer of the Transferable Lots
agreed under paragraph (A) above and thosedrawn from the ballot but not including the lastdraw of the ballot, and accept a payment equal tothe difference between:(a)the aggregate Value of the Transferable
Lots agreed under paragraph (A) above
and those lots drawn from the ballot but
not including the last draw of the ballot;
and

(b)

5% of the Value of the Developed Lots
within the Parcel,("Deficit Amount"), in which case paragraph (H)below will apply; or(3)

for a fmiher draw from the ballot, in which caseparagraph (I) will apply.

If the Approved Body Corporate does not make an election
then it shall be deemed to have made an election inaccordance with paragraph (F)(3) above;(G)

if the Approved Body Corporate makes the election inparagraph (F)(l) above, then the State will ensure that allof the Transferable Lots drawn from the ballot will betransfelTed to the Approved Body Corporate, and theApproved Body Corporate must pay the Excess Amount to32

the Registered Proprietor on the date of the transfer of theTransferable Lots;(H)

if the Approved Body COlporate makes the election inparagraph (F)(2) above then the State will ensure that allof the Transferable Lots drawn from the ballot but notincluding the last draw of the ballot are transferred to theApproved Body Corporate, and the State will ensure thatthe Deficit Amount is paid to the Approved Body
Corporate on the date of the transfer of the Transferable
Lots;

(I)

if the Approved Body Corporate makes, or is deemed tohave made, the election in paragraph (F)(3) above then:(!)

the last draw of the ballot shall be disregarded
and another draw shall be made from the ballot;(2)

if on the draw of the ballot refen'ed to inparagraph (1)(1) above, the aggregate Value of theTransferable Lots agreed under paragraph (A)above and those drawn from the ballot, again
exceeds 5.5% of the Value of the Developed Lots
within the Parcel, then clause 6.6(b)(vi)(F) shallagain apply; and(3)

if there are no further Transferable Lots to be
drawn from the ballot in accordance withparagraph (1)(1) above then paragraph (H) above
shall apply as if the Approved Body Corporate soelected;(J)

if on the last draw of the ballot, the aggregate Value of theTransferable Lots agreed under paragraph (A) above andthose drawn from the ballot is less than 5% of the Value of
the Developed Lots within the Parcel, then the State will
ensure that all of the Transferable Lots drawn from theballot will be transferred to the Approved Body Corporate,
without any amount payable by the Registered Proprietor
or the State to the Approved Body Corporate whatsoever;
and

(K)

the Transferable Lots drawn from the ballot, or in the casewhere paragraph (I) applies the Transferable Lots drawn
from the ballot but not including the last draw from theballot, must be transferred to the Approved Body
Corporate.

33

6.7

Principles for Transfer where there are Transferable Lots with an aggregate
Value equal to or less than 5% of the Value of the Developed Lots within aParcelIf there are Transferable Lots within a Parcel with an aggregate Value equal to or lessthan 5% of the Value of the Developed Lots within the Parcel, then the State mustensure that prior to the transfer of any Developed Lot within the Parcel:

6.8

(a)

all the Transferable Lots are transferred to the Approved Body Corporate;
and

(b)

an amount equal to the balance, if any, between the Value of theTransferable Lots to be transfened and 5% of the Value of the Developed
Lots within the Parcel must be paid to the Approved Body Corporate on thedate of the transfer of the Transferable Lots.

Application of Clauses 6.4 to 6.7
In respect of clauses 6.4 to 6.7 ("Transfel' of 5% Clauses"):(a)the Transfer of 5% Clauses do not apply at the time land within the Karratha
Land is transferred to a person for the purposes of undertaking a subdivisiondevelopment;(b)in respect of a lot or number of lots within the Karratha Land provided forthe purpose of a subdivision development (paragraph (a) of the definition ofParcel), the Transfer of 5% Clauses apply prior to the first sale of theDeveloped Lots within the Parcel;(c)in respect ofa lot or lots the subject of a direct transfer by way of public saleor private treaty other than for the purpose of a subdivision development(paragraph (b) of the defmition of Parcel), the Transfer of 5% Clauses apply
prior to the transfer of each lot;(d)subject to clause 6.8(e), the obligation to transfer the Transferable Lots (andto pay an amount equal to the balance of the Value of 5% of the Developed
Lots within the Parcel or the Deficit Amount) or to pay the Lot Payment can
only occur once in respect ofland within the Karratha Land;(e)

if within 10 years of the creation of a Public Purpose Lot, any land within
the Public Purpose Lot ceases to be for the original public pUl]loses or for
any other public pUlpose specified in the definition of Public Purpose Lot,then that land will be treated as a Parcel and the Transfer of 5% Clauses andthis clause 6.8 (except for this paragraph (e» will apply;(f)

any land which ceases to be within a Temporary Workers' Accommodation
Lot may be treated as a Parcel or a Developed Lot, as the case may be;(g)

the Transfer of 5% Clauses apply separately and independently to eachParcel acquired by a person in different transactions;
34

(h)

(i)

6.9

any transfer to be made under the Transfer of 5% Clauses:(i)may be made to the Approved Body Corporate or its nommee
approved by State; and(ii)must occur within thirty (30) days after:(A)

the time the obligation arises if there is a certificate of title
for the relevant land to be transferred at the time theobligation adses; or(B)

the date the relevant certificate of title is issued if there isno celiificate title for the relevant land to be transferred at
the time the obligation arises; andif a Parcel is the subject of a Staged Subdivision Development, the Transfer
of 5% Clauses apply to each Stage as though the land in each Stage was land
within a separate Parcel.

Contracting Out

The State, the Registered Proprietor and the Approved Body Corporate may agree tovary or amend or not apply any of, or parts of, the Transfer of 5% Clauses("variation") subject to the State being released by the Approved Body Corporate
from any and all liability arising from any thing done or not done as a consequence ofthe variation.
6.10

Failut'e to Comply(a)

The Contracting Parties acknowledge and agree that, for the purposes ofparagraph (d) of the definition of Transferable Lot in clause 6.4, the State
may rely on information provided by the Registered Proprietor and the State
will not be liable whatsoever if a Developed Lot which has been excluded
from the definition of Transferable Lot in paragraph (d) of the definition ofTransferable Lot is transferred other than within either of the periods
referred to in that defmition.

(b)

The Contracting Paliies acknowledge and agree that, notwithstanding any
failure by the State or the Registered Proprietor to comply with the Transfer
of 5% Clauses, the transfer or intended transfer of any freehold titIe in a
Developed Lot to any person will be valid for all purposes and theContracting Parties and the Approved Body Corporate will not bring any
proceedings challenging any transfer or intended transfer whatsoever andthis clause 6.1O(b) may be pleaded by the State as a bar to any suchproceedings.

(c)

The Contracting Parties acknowledge and agree that the only remedies
available against the State for failing to comply with the Transfer of 5%
Clauses are in damages and, where either the State or LandCorp is theRegistered Proprietor, specific performance.
35

(d)

The Contracting Parties aclmowledge and agree that the State may satisfy
any liability the State may have for failing to comply with the Transfer of
5% Clauses by transferring other land to the Contracting Parties asreasonably agreed by the Contracting Parties.

7.

COMPULSORY ACQUISITION OF INDUSTRIAL ESTATE

7.1

Consent to Compulsory Acquisition
The Contracting Parties hereby agree to the compulsory acquisition and consequent
extinguishment by the State of any and all native title rights and interests in the
Industrial Estate, in accordance Witll this deed.

7.2

Entitlemeut to Compulsorily Acquire
The Contracting Parties hereby agree that, subject to this deed, the State is entitled tocompulsorily acquire any and all native title rights and interests in fue Industrial
Estate in accordance with the Land Administration Act and the Native Title Act andfuereby extinguish any and all native title rights and interests in respect of theIndustrial Estate.

7.3

Specific Acknowledgments
Without limiting fue effect of clause 7.1, fue Contracting Parties:

7.4

(a)

agree to fue transfer of freehold title to the Industrial Estate by the State to
the Manager or any ofuer person;(b)agree to the grant of the Current Proponent Leases and leases to Future
Proponents; and(c)agree to the creation and transfer of any interests in the Industrial Estateincluding, but not limited to, leases, easements, rights of access,encumbrances, licences, road reserves and restrictive covenants.

Sections 28 and 31 of the Native Title Act
The Contracting Parties aclmowledge that this deed is an agreement with each ofthem for the purposes of section 28(1)(f) and section 31(1)(b) ofthe Native Title Act.

7.5

Withdrawal of objections under Land Administration Act
Each Contracting Paliy hereby withdraws any objection made by it under the Land
Administration Act in relation to the taking of land or interests in land within the
Industrial Estate.

8.

UP FRONT PAYMENT BY STATE

8.1

Payment on Satisfaction Date
On the Satisfaction Date, the State must pay $1,500,000 to the Contracting Parties.
36

8.2

Payment on Acquisition Date
On the Acquisition Date, the State must pay $2,000,000 to the Contracting Parties.

9.

CURRENT PROPONENT LEASES

9.1

Current Proponent Commitments

9.2

(a)

Prior to the grant of each Cun'ent Proponent Lease, the State will procure therelevant Current Proponent to give an Employment Undertaking.

(b)

In respect of each Current Proponent, the State must pay the Lump Sum
Payment and Current Proponent Annual Payment in clauses 9.2 and 9.3
except to the extent that the Current Proponent gives a Payment Undertaking
that the Current Proponent will pay the Lump Sum Payment in accordancewith clause 9.2 or Current Proponent Annual Payment in accordance withclause 9.3, or both, as the case may be.

(c)

If a Current Proponent gives the Payment Undertaking referred to in clause
9.1 (b), then the Contracting Parties agree that the State is released from its
obligation under clause 9.I(b) to pay the Lump Sum Payment in accordancewith clause 9.2 or Current Proponent Annual Payment in accordance withclause 9.3, or both, as the case may be, in respect of that CUtTent Proponent,on and from the date ofthe Payment Undertaking.

(d)

A Current Proponent may give the Payment Undertaking referred to inclause 9.1(b) prior to, or after the grant of the Current Proponent Lease.

(e)

The State must ensure that if a Current Proponent gives a Payment
Undertaking or an Employment Undertaking under this clause 9, an original
executed Payment Undertaking or Employment Undertaking, or both, as thecase may be, is delivered to the Contracting Parties as soon as practicable
after the date of the Payment Undertaking or Employment Undertaking.

Lump Sum Payments
In respect of each Current Proponent, the Contracting Parties will be paid an amountequal to the Lump Sum Amount for the relevant Current Proponent, to be paid by
way of two equal instalments as follows:

9.3

(a)

the first instalment - within 20 Business Days after the date of thecommencement of the relevant Current Proponent Lease; and(b)the second instalment - within 20 Business Days after the relevant
Production Date.

Payment of the Current Proponent Annual Payment
For each Current Proponent, the CutTent Proponent Annual Payment will be paid to
the Contracting Parties as follows:
37

(a)

subject to clause 9.3(c), $700 per hectare or part thereof of land within the
Industrial Estate the subj ect of the Current Proponent Lease per annum foreach of the first five (5) years following the grant of the relevant Current
Proponent Lease;(b)subj ect to clause 9.3 (c), on and from the end of the 6 th year, the Current
Proponent Annual Payment will be determined as follows:$Current Proponent Annual Payment = (AP + (AP x (CPI + 2%))) x H
AP means the amount per hectare paid in the previous year (and for the
purposes ofthe 6th year, means $700)
CPI means the percentage change of annual CPI for the previous twelve(12) month period calculated at the end of the quarter immediately preceding
the date on which the calculation is to be madeH means the number of hectares or part thereof of land within the Industrial
Estate the subject of the Current Proponent Lease; and(c)the Current Proponent Annual Payment must be paid:(i)

per annum for each year of the Current Proponent Lease, or pro
rated for part thereof;(ii)

in arrears on each anniversary of the commencement date of therelevant Cun'ent Proponent Lease; and(iii)

for so long as the Current Proponent holds the Current Proponent
Lease.

10.

FUTURE PROPONENTS

10.1

Future Proponent Commitments(a)Prior to the grant of each lease to a Future Proponent, the State will procure
the relevant Future Proponent to give an Employment Undertaking.

(b)

In respect of each lease to a Future Proponent, the State must pay the Annual
Payment in accordance with clause 10.2 unless the Future Proponent gives a
Payment Undeliaking that the Future Proponent will pay the Annual
Payment in clause 10.2.

(c)

If a Future Proponent gives the Payment Undeliaking referred to in clause
10.1 (b), then the Contracting Parties agree that the State is released from its
obligation under clause 1O.1(b) to pay the Annual Payment in clause 10.2 inrespect of that Future Proponent lease, on and from the date of the Payment
Undertaking.

38

10.2

(d)

A Future Proponent may give the Payment Undertaking referred to in clause
10.I(b) plior to, or after the grant of the lease to the Future Proponent.

(e)

The State must ensure that if a Future Proponent gives a Payment
Undertaking or an Employment Undertaking under this clause 10, an
original executed Payment Undertaking or Employment Undertaking, orboth, as the case may be, is delivered to the Contracting Parties as soon aspracticable after the date of the Payment Undertaking or Employment
Undertaking.

Annual Payment(a)Following the grant of a lease to a Future Proponent, the Contracting Parties
will be paid an AImual Payment being an amount equal to:$Annual Payment = (0.5 x MR) x H

Where:MR means the Market Rental per hectare detennined in accordance withclause 29 at the time ofthe grant oflease to the Future Proponent
H means the number of hectares or part thereof of land within the Industrial
Estate the subject of the lease to the Future Proponent
(b)

(c)

The AImual Payment will be subject to the escalation and review 111
accordance with clauses 10.2(c) and 10.2(d) and must be paid:(i)

per almum for each year of the lease to the Future Proponent, or pro
rated for part thereof;(ii)

in arrears on each aJmiversary of the commencement date of thelease to the Future Proponent; and(iii)

for so long as the Future Proponent holds the relevant lease.

The Annual Payment will be escalated for each year a payment falls dueother than a year in which a Review Date occurs, as follows:$Annual Payment = (AP + CAP x Cpr» x H
AP means the amount per hectare payable in the previous year

CPI means the percentage change of arumal cpr for the previous twelve(12) month period calculated at the end of the quarter immediately preceding
the date on which the calculation is to be madeH means the number of hectares or part thereof of land within the Industrial
Estate the subject of the lease to the Future Proponent

39

(d)

The Annual Payment will be reviewed on the 7th anniversary of thecommencement date of the lease to the Future Proponent and every seven(7) years thereafter ("Review Date"), as follows:$Annnal Payment = (0.5 x MR) x H
Where:MR means the Market Rental per hectare detennined in accordance withclause 29 at the time of the Review Date
H means the number of hectares or part thereof of land within the Industrial
Estate the subject of the lease to the Future Proponent

11.

FREEHOLD

11.1

Purchase Value to be paid by State
Prior to the first transfer of a freehold interest in land within the Industrial Estate to a
Purchaser, the State must pay the Purchase Value to the Contracting Parties.

11.2

Obligations Cease
If a freehold interest in land within the Industrial Estate is transferred under clause
11.1 ("Freehold Land") then the Freehold Land ceases to be land within the
Industrial Estate.

12.

EXCLUSION AND VARIATION

12.1

Proponents May Exclude Prior to Grant

12.2

(a)

Any obligation under clause 9.2, 9.3, 10.2 or 16, or under any Payment
Undertaking or Employment Undertaking may be excluded or varied (inwhole or in part) in respect of a particular Current Proponent Lease or aparticular lease to a Future Proponent by agreement in writing between the
Proponent, the State and the Contracting Parties, before the grant of lease to
the Proponent, in accordance with this clause 12.

(b)

The Contracting Palties acknowledge that the State may require a Proponent
to indemnify the State in respect for all losses and damages arising from any
claim, action or proceeding by the Contracting Parties or the Approved Body
Corporate, or both of them, in relation to, or arising from, any matter orthing done or not done by the State in reliance upon the agreement refen'ed
to in clause 12.1(a).

Proponeuts May Vary After Graut(a)

Any obligation under clause 9.2, 9.3, 10.2 or 16, or under any Payment
Undertaking or Employment Undertaking may be varied (in whole or inpart) in respect of a particular Current Proponent Lease or a particular lease
to a Future Proponent by agreement in writing between the Proponent, the40

State and the Contracting Parties, after the grant of Jease to the Proponent, in
accordance with this cJause 12.
(b)

12.3

The Contracting PaIties ac1mowledge that the State may require a Proponent
to indemnifY the State in respect for all losses and damages arising from any
claim, action or proceeding by the Contracting Parties or the Approved Body
COIporate, or both of them, in relation to, or arising from, any matter orthing done or not done by the State in reliance upon the agreement refened
to in clause 12.2(a).

Release by Contracting Parties

The Contracting Parties hereby release the State in respect of all losses and damages
arising from any claim, action or proceeding by the Contracting Palties or the
Approved Body Corporate, or both them, in relation to, or ali sing from, any matter orthing done or not done by the State in reliance upon any exclusion or variation underclause 12.1 or clause 12.2.
12.4

13.

State may Exclude or Vary(a)

Subject to clause 12.4(b), the Contracting Parties and the State may agree in
wliting to vary or exclude any obligation under clauses 9.2, 9.3, 10.2 or 16
in respect of a p31ticular CUlTent Proponent lease or a particular lease to a
Future proponent, and any such variation shall apply to any Employment
Undertaking or Payment Undertaking entered into after the date of the
exclusion or variation in respect of that lease.

(b)

If a Proponent has given an Employment Undertaking or a Payment
Undertaking, or both, as the case may be, then this clause 12.4 does not
apply.

LAND CORP MAY PERFORM STATE OBLIGATIONSThe Contracting Pmies agree that any obligation on the pm of the State under thisdeed may be perfonued by LandCorp and such perfonuance by LandCorp shall bedeemed to have been perfonuance by the State.
14.

VALIDITY OF GRANTS(a)

The Contracting Parties acknowledge and agree that, notwithstanding any
failure by the State or any Proponent to comply with the tenus of this deedor any Undertaking, the grant or transfer of any interest in:(i)land the subject of this deed; and(ii)

De Witt Location 399,

will be valid for all pUiposes.
(b)Subject to clause 14(a), in the event of any failure by the State or any
Proponent to comply with the temlS of this deed or any Undeliaking,41

nothing in this deed prevents the Contracting Parties fi:om enforcing theirrights against the State or any Proponent including, but not limited to, any
right to recover damages or to seek specific perfonnance against the State or
any Proponent.
(c)

The parties agree that this clause may be pleaded by the State as a bar to any
proceedings by the Contracting Parties challenging the validity of any grantor the transfer of any interest in land the subj ect of this deed.

15.

STATE'S OBLIGATIONSENTERPRISE

15.1

List of Available Persons and Aboriginal Contractors

FOR ABORIGINAL EMPLOYMENT AND

The State and the Contracting Parties agree that the Employment Service Provider
will be required to ensure that up to date lists are prepared, maintained and available
containing details of:

15.2

(a)

Available Persons who have nominated themselves to the Employment
Service Provider and their work experience and qualifications; and(b)

Aboriginal Contractors who have nominated themselves to the Employment
Service Provider and the services offered by, work experience of andqualifications of those Aboriginal Contractors.

Buy Local
The State mnst comply with the Buy Local Policy in respect of works conducted byor on behalf of the State in the Industrial Estate, the Karratha Land and the Burrup
Non-Industrial Land. For the avoidance of any doubt, references to the State do notinclude government trading enterplises.

15.3

Government Trading Enterprises
The State will use its reasonable endeavours to procure government trading
enterprises (as they are defined in the Buy Local Policy) to comply with the Buy
Local Policy in respect of works conducted by or on behalf of the government trading
enterprises in the Industrial Estate, the Karratha Land and the Burrop Non-Industrial
Land. For the avoidance of any doubt, the parties acknowledge that nothing in thisclause 15.3:

15.4

(a)

requires the State to incur any financial obligation; or(b)fetters or purports to fetter the exercise of any discretion under any
legislation relating to govennnent trading enterprises.

Employment Service Provider(a)

As soon as practicable after the Satisfaction Date, the State and theContracting Parties will agree to the appointment of the Employment
Service Provider, who must operate or be based in Roeboume and must be42

registered for the pUl]Joses of the GST Act. If the Stale and the Contracting
Parties are unable to reach agreement, then clause 15.4(f) applies. The Stateagrees to provide $200,000 per ammm for tlu'ee (3) years to the Employment
Service Provider to perfonll its functions in accordance with clause 15, withthe first payment to be made on the date the Employment Service Provider
enters into the agreement referred to in clause IS.4(b) and thereafter on thefirst and second almiversaries of that date.
(b)

(c)

The State and the Contracting Parties will, in good faith, negotiate a
tripaltite agreement between the State, the Contracting Palties and theperson nominated to be the Employment Service Provider to:(i)give effect to this clause 15.4 and clause 15.1;(ii)

detemline the fees of the Employment Service Provider, if any, andthe terms and conditions in respect of the financial administrationof the Employment Funding and the Levy; and(iii)

determine the tenllS for the temlination of the Employment Service
Provider.

The Employment Service Provider must:
(i)

(ii)

conduct an audit of the skills of Available Persons and AboriginalContractors. This will require the Employment Service Provider to:(A)identifY the Available Persons and Aboriginal Contractors
who are seeking employment;(B)

conduct an appropriate analysis of the experience andqualification of the Available Persons and AboriginalContractors;(C)

prepare appropriate lists and documentation; and(D)assist Available Persons to nominate themselves for the
purposes of clause 15.1;

conduct an analysis of the needs of the Available Persons andAboriginal Contractors in respect of:(A)

desired employment outcomes; and(B)

desired enterprise outcomes;(iii)

conduct an analysis of the opportumtJes for employment andenterprise that exist within a 100 kilometre radius from Roeboume;(iv)

assist Available Persons and Aboriginal Contractors (0 achieve(heir desired employment and enterprise outcomes by:
43

(A)

assisting Available Persons and Aboriginal Contractors toaccess appropriate resources;(B)

promoting employment and enterprise 0ppOliunities for
Available Persons and AbOliginal Contractors; and(C)assisting Available Persons and Aboriginal Contractors toaccess appropriate training;(v)

perform the functions of the Employment Service Provider
described in clauses 16.1 and 16.2;(vi)

provide an annual written report to the State and the Contracting
Paliies regarding the performance of its functions under this clausel5.4(c) dUling the previous year;(vii)

provide the Contracting Parties with a copy of each Employment
Statement within ten (10) Business Days after its receipt; and(viii)

provide the Contracting Parties with a copy of each report provided
to it under clause 16.1 (f).

(d)

The Employment Service Provider may provide assistance in the same
mrumer as provided in clause 15.4(c), to local Aboriginal persons to achieve
their desired employment and enterprise outcomes.

(e)Subject to clause 15.4(f), the Employment Funding and the Levy will be
paid by the State to the Employment Service Provider for the purposes ofperfOlming the functions in clauses 15.4(c) and (d).

(f)

The State will hold and apply the Employment Funding and Levy for thepUiposes of, and shall carry out the functions in place of, the Employment
Service Provider if:(i)the State and the Contracting Parties are unable to reach agreement
under clause 15.4(a);(ii)

the State, the Contracting Parties and the nominated Employment
Service Provider are unable to reach agreement under clause
15.4(b); or(iii)

the Employment Service Provider breaches the terms of theagreement under clause 15.4(b) or ceases to exist and a replacement
Employment Service Provider is not appointed in the same manner
under clause l5.4(a).

44

16.

PROPONENTS OBLIGATIONS FOR ABOIUGINAL EMPLOYMENT AND
ENTERPIUSE

16.1

Employment and Entel'prise Obligations
For so long as a Proponent holds a lease in land in the Industrial Estate the Proponent
must use reasonable endeavours to promote direct or indirect employment of local
Aboriginal persons in accordance with the following:(a)the Proponent must comply with the Employment Strategy developed by the
Proponent and lodged with the Employment Service Provider under clause
16.2;

(b)

the Proponent will use reasonable endeavours to ensure that, where work is
contracted by the Proponent to a contractor, the Proponent's contractor willcomply with any relevant requirements of the Proponent's Emplo)~nent
Strategy;(c)the Proponent must give consideration to sponsOling employment
0ppoliunities for Available Persons not directly related to the Proponent's
Industrial Project that are deemed important by the Contracting Parties andnotified to the Proponent by the Emplo~nent Service Provider;(d)the Proponent must give consideration to sponsoring programs that havesocial and community outcomes that are considered a priority by theContracting Parties and the Roeboume Aboriginal Community (for example
recreation for youth, cultural exploration, oral history projects) and notified
to the Proponent by the Employment Service Provider;(e)the Proponent must give consideration to providing employment based
training oPPOliunities to Available Persons that are notified to the Proponent
by the Employment Service Provider;(f)the Proponent must provide a six (6) monthly report (with the first repOli tobe provided six (6) months after the date of the Emplo~nent Strategy) to tile
Employment Service Provider in respect of the Proponent's obligations
under this clause 16.1;(g)the Proponent must offer interviews to qualified local AbOliginal persons
who have applied for an emplo~nent opportunity referred to in clause
16.1 (h);(h)

as soon as possible after the Proponent has provided the Employment
Strategy to the Employment Service Provider, the Proponent must provide
the Employment Service Provider with infOlmation in respect of potential
tenders for goods and services, employment positions (including provisionsof the description of emplo~lent positions, including tenure, status,
selection critelia and required qualifications and experience as well as career
progression opportunities) and contracting opportunities for local Aboriginal
persons where it reasonably considers, based on information provided by the
Employment Service Provider, that local Aboriginal persons may have the45capacity to provide the goods or services, fulfil the employment position or
to undeliaice the contracting oPPOliunities, to the Proponent;(i)if there is any material change to the information provided by the Proponent
under clause 16.1 (h), the Proponent must provide the Employment Service
Provider with that info1TI1ation; andG)

the Proponent must liaise with the Employment Service Provider in respectofthe implementation of the Employment Strategy.

16.2 Employment Strategy
Each Proponent must develop an Employment Strategy in consultation with the
Employment Service Provider and in accordance with this clause:(a)within three (3) months of the commencement date of the relevant
Proponent's lease or within three (3) months before the commencement ofconstruction of the Proponent's Industrial Project, whichever is the earlier,the Proponent must prepare and provide a written Employment Strategy foravailable employment and training opportunities in relation to theconstruction and commissioning of the Proponent's Industrial Project, to the
Employment Service Provider and the Contracting Parties;(b)

at least six (6) months prior to the estimated Production Date of the
Proponent's Industrial Project, the Proponent must prepare and provide
Employment Strategy for available employment and training opportunities
in relation to the operation of the Proponent's IndustJial Project, to the
Employment Service Provider and the Contracting Parties;(c)nothing in this clause 16.2 prevents the Proponent amending or varying the
Proponent's Employment StJ'ategy in consultation with the Employment
Service Provider. If a Proponent amends or varies the Proponent's
Employment Strategy, that Proponent must provide a copy of the amended
or varied Proponent's Employment Strategy to the Employment Service
Provider and the Contracting Parties within ten (10) Business Days after theamendment or variation;(d)for the purposes of clauses 16.2(a) and (b), the Proponent must notify the
Employment Service Provider of the Proponent's estimated date ofcommencement of construction of the Proponent's Industrial Project and theestimated Production Date of the Proponent's Industrial Project as early as
possible before those dates, and in any event, no later than six (6) months
prior to those dates; and(e)nothing in clause 16.2(d) prevents the Proponent from changing the
Proponent's estimated date of commencement of construction of the
Proponent's Industrial Project or the estimated Production Date of the
Proponent's IndustIial Project, as the case may be. In such case, theProponent must notify the Employment Service Provider of such change assoon as the Proponent becomes aware of such change.
46

16.3 Levy Payable after the Production Date(a)

On and fi'om the Production Date, Proponents must pay the Levy:(i)to the State;(ii)

at the same time the Proponent is required to provide the
Employment Statement under clause 16.3(b); and(iii)

for so long as the Proponent holds the relevant lease,provided that where the Levy calculated in accordance with this clause for a
Proponent in any year would be a negative amount, that amount may be set
off against the Levy that would otherwise be payable by that Proponent inany subsequent year.
(b)

Each Proponent must provide to the State and the Employment Service
Provider, within twenty (20) Business Days after the Production Date andthereafter, after each anniversary of the Production Date, a statement
certified by the Proponent setting out the following details for the preceding
Production Period:(i)the number of full time equivalent employees who have been
employed on site directly by the Proponent, any related company or
its contractors and subcontractors but not including any persons
employed or engaged:(A)

for the construction and commissioning of the Industrial
Proj ect or the Proponent's business, as the case may be; or(B)

for the construction and commissioning of any extension
or addition to the Industrial Project or the Proponent's
business, as the case may be; or(C)for major maintenance and repairs relating to the Industrial
Project during a shutdown of the Industrial Project for aperiod of one (I) day or more.

(ii)

the number of local Aboriginal persons who have been employed
directly by the Proponent, any related company or its contractors
and subcontractors; and(iii)

the Levy payable by the Proponent.

17.

APPROVED BODY CORPORATE

17.1

Establishment of Approved Body Corporate
The Contracting Parties must incorporate the Approved Body Corporate inaccordance with this clause 17 as soon as possible after the Satisfaction Date and47

agree with each other to do so in accordance with the process set out in clauses
17.3(b) and 17.4.
17.2

Appointment of ABC Consultant(a)

The State will provide funding up to $150,000 for the engagement of aconsultant, nominated by the State after consultation with the Contracting
Parties ("ABC Consultant").

(b)

The ABC Consultant will be engaged by the State:(i)to establish and incorporate the Approved Body Corporate for andon behalf of the Contracting Pmiies in accordance with this clause
17; and(ii)

as soon as practicable after the Satisfaction Date,and the State will ensure that the terms of the appointment of the ABC
Consultant require the ABC Consultant to comply with the process set out inclauses 17.3(b) and 17.4.
17.3

Membership of Approved Body Corporate
(a)

(b)

Membership of the Approved Body Corporate must:(i)be open to all members of the Contracting Claim Groups who are
18 years or over ("Eligible Persons"); and(ii)

consist only of members who are Eligible Persons.

The ABC Consultant must, at the commencement ofthe consultancy:(i)request fi'om each Contracting Party a list of names, addresses andtelephone numbers of all Eligible Persons belonging to theContracting Claim Group of the Contracting Party;(ii)

establish a list of the Eligible Persons of each Contracting ClaimGroup and provide copies of that list to each Contracting Party; and(iii)

convene a meeting to be attended by as many Eligible Persons as
possible to:(A)resolve any dispute raised by a Contracting Party as to theentitlement of any person to be an Eligible Person; and(B)

determine whether future meetings to be convened for the
purposes of establishing the Approved Body Corporate canbe convened with representatives of the Eligible Persons.

48

17.4

17.5

Process for Establishment of Approved Body Corporate(a)

The ABC Consultant shall be responsible for the establishment andincorporation of the Approved Body Corporate for and on behalf of theContracting Claim Gronps.

(b)

In incorporating the Approved Body Corporate, the ABC Consultant must
consult with, and obtain the approval of, the Eligible Persons to establish theprocedure for determining:(i)the rules and objects ofthe Approved Body COlporate; and(ii)

the appointment of the first governing committee of the Approved
Body Corporate.

(c)

If no procedure is established under clause 17.4(b), the matters in clauses
17.4(b)(i) and (ii) will be detelmined by the agreement of the simple
majority of all Eligible Persons, or of their representatives, as the case may
be.

(d)

Notice of all meetings must be in writing and received by the Eligible
Persons, or their representatives, as the case may be, not less than ten (10)Business Days prior to the meeting or such other period as approved by asimple majority of the Eligible Persons.

(e)All meetings will be conducted in Roebourne unless otherwise approved bya simple majority of the Eligible Persons.

Rules and Objects

The Approved Body Corporate must be established on such terms and conditions as
first approved by the State, which approval must not be unreasonably withheld, andthe rules and objects of the Approved Body Corporate must:(a)include a power to grant, and for the exercise of, a power of attorney for thecompletion, execution and registration of instruments and other documents
against the certificate of title for land held by the Approved Body Corporate;(b)

provide for the Approved Body Corporate to conduct an audit of its financial
records at least once each year;(c)

provide for the Approved Body CO'1Jorate to operate for pUlposes including
the following:(i)carrying out the rights and obligations of the Contracting Parties inaccordance with the Ratification Deed;(ii)

taking the transfer of the freehold title to the Bunup Non-Industrial
Land;

49

(d)

(iii)

recelVmg, holding, managing, and investing on trust for theContracting Claim Groups the moneys payable under this deed andany Undertakings and any income thereof;(iv)

at its discretion, allocating and distributing moneys for the general
welfare of the Contracting Claim Groups for matters including:(A)

cultural development activities;(B)

education (including, bursaries, scholarships for secondary
and tertiary studies);(C)transportation, relief housing and resettlement of membersof the Contracting Claim Groups in their traditionalcountlY;(D)

housing of members of the Contracting Claim Groups who
are aged, sick or in need of special assistance;(E)

medical assistance and health related issues;(F)

sporting assistance;(G)relief of poverty;(H)child care and care for the aged and disabled;(I)

provision of community and social infi-astructure;(1)

business development or participation in local or regional
contracting opportunities; and(K)

assisting the members of the Contracting Claim Groups tocarry out their rights and responsibilities under this deed;(v)

encouraging the development of projects consistent with the
purposes in clause l7.5(a)(iv) by members of the Contracting
Claim Groups by providing, at its discretion and without limitation,loans, grants, goods or services; and(vi)

ensuring that the benefits arising from this deed are used anddistributed equitably amongst the members of the Contracting
Claim Groups having regard to the needs and priorities of thosemembers both individually and collectively; andnot be amended in a marmer inconsistent with this clause 17 without theprior approval of the State, which approval must not be unreasonably
withheld.

50

17.6

Provision of Funding
(a)

(b)

17.7

(i)

to be paid on the Ratification Date; and(ii)

thereafter on the first, second and third anniversalies of the
Ratification Date.

Any unspent pOliion of the amount referred to in clause 17 .2(a) shall be paid
to the Approved Body Corporate on the first anniversary of the Ratification
Date.

Ratification Deed
(a)

(b)

17.8

The State will provide, subject to the provIsIOn of a tax invoice thatcomplies with the GST Act, $100,000 per all11um for four (4) years to theApproved Body Corporate for the operation of the corporation:

As soon as possible after the Approved Body Corporate is established, theContracting Parties shall procure the Approved Body COlporate to enter intoa deed with the State in which:(i)on and from the date of the deed, the Approved Body Corporate
agrees to have the same rights, and owe the same obligations as theContracting Pmiies as if references in this deed to the Contracting
Parties were references to the Approved Body Corporate;(ii)

on and from the date of the deed, the State shall have the SaInerights, mld owe the same obligations to, the Approved Body
Corporate as if references in this deed to the Contracting Pmiies
were references to the Approved Body Corporate; and(iii)

on and from the date of the deed, the Approved Body Corporate
shall have the rights of and owe the obligations of the Approved
Body Corporate in accordance with the terms of this deed.

The Contracting Parties agree that, on and from the Ratification Date:(i)the State, LandCorp, a Proponent or any other person referred tounder this deed or under an Undertaking ceases to owe any
obligation to the Contracting Parties; and(ii)

the Contracting Pmiies will not commence any proceedings against
the State, LandCorp or a Proponent in respect of anything done or
not done by the State, LandCorp or the Proponent, as the case may
be, under this deed or under an Undertaking and this deed may bepleaded as a bar to any such proceedings.

GST
(a)

The Approved Body Corporate must, prior to the Ratification Date, register
for GST purposes and be capable of issuing tax invoices.
51

(b)

18.

The Contracting Pmiies agree that the Approved Body Corporate will betheir agent, including for GST purposes, ill relation to this deed.

EDUCATION
The State will pay $75,000 per amlUm for two (2) years, with the first payment on the
Ratification Date and the second payment on the first almiversary of the Ratification
Date, to the Approved Body Corporate for the following purposes:(a)support of students to realise school, vocational education and training andtertiary education ambitions;(b)creation of a cohesive pathway between primary, secondary, vocational
education and training and tmiiary sectors; and(c)introduction of cultural matters as appropriate.

19.

ABORIGINAL HERITAGE

19.1

Notification
Prior to:(a)the grant of a lease to a Proponent or the transfer of freehold title to a
Pnrchaser within the Industrial Estate; or(b)the development of any Parcel (as defined under clause 6.4) or in respect ofany development of a Public Purpose Lot (as defined nnder clause 6.4),
within the Karratha Land by any person ("Developer"),the State will, in respect of the land the subject of the lease, freehold or development,
as the case may be:

19.2

(i)

advise the Proponent, Purchaser or the Developer in writing of theobligations under the Aboriginal Heritage Act 1972 (WA);(ii)

subject to confidentiality obligations and all laws, provide the
Proponent, Purchaser or the Developer with copies of relevant
repolis of surveys in respect of Aboriginal sites within the
Industrial Estate or the Karratha Land, as the case may be,
performed after September 2001 and in the possession of the State;
and

(iii)

refer the Proponent or the Developer to the Heritage Policies.

Ground Disturbing Activities by State
Ifthe State:(a)is planning a development in the KalTatha Land; or
52

(b)

intends to conduct ground disturbing works in the Industrial Estate or the
Karratha Land,

then the State must comply with the Heritage Policies.
20.

CONDITIONS

20.1

Section 41 Conditions
Clauses 7,14,17.7,21.2,23,24,25,26 and 27 of this deed constitute conditions forthe purposes of sections 41(1) and 41(2) of the Native Title Act, and al1 persons in thenative title claim group are taken to be parties in respect of those clauses.

20.2

Contractual Terms
The terms of this deed are contractual terms between the paIties and are notconditions precedent nor conditions subsequent to the agreement of the Contracting
Parties to anything under clauses 5, 6.1, 6.2, 6.3 and 7.

21.

MANNER OF PAYMENT

21.1

To Whom Payment is Made
Subject to clause 21.2, any payment under this deed expressed to be made or
expressed to be payable by any person to the Contracting Parties or the Approved
Body Corporate:(a)

if the Approved Body COlporate has not been incorporated at the time therelevant payment is due or the Approved Body COlporate has been
incorporated and the Ratification Date has not occUlTed, must be held on
nust:
(i)

for and on behalf of the Contracting Parties; and(ii)

in an interest bearing trust account held by the Department ofTreasury and Finance,

and the Contracting Patties hereby direct:(iii)

where GST is or becomes payable by any or all of the Contracting
Palties in relation to any supply made under or in connection withor resulting from this deed and each of the Contracting Parties witha GST liability provides to the Department of Treasury and Financea copy of its completed Business Activity Statement in the form,and satisfying the requirements, as specified by the Conunissionerof Taxation to establish the amount of GST liability, theDepmtment of Treasury and Finance to pay that PaIt of the funds
equivalent to the GST liability as specified in the Business Activity
Statements of the Contracting Patties directly to the Australian
Taxation Office; and
53

(iv)

21.2

the remaining funds to be paid to the Approved Body COJ]lorate
within twenty (20) Business Days after the Ratification Date;(b)

if the Approved Body Corporate has been fonned at the time the relevant
payment is due and the Ratification Date has occurred, then subject to theprovision of a tax invoice that complies with the GST Act, must be paid to
the Approved Body COl]lOrate; and(c)if the Approved Body COl]lOrate has been formed at the time the relevant
payment is due and the Ratification Date has occurred, then payment neednot be made until the person required to make the payment has been
provided with a tax invoice that complies with the GST Act.

Ratification by Approved Body Corporate
The State and the Contracting Parties agree that no payments are required to be madeto the Approved Body Corporate under clause 21.1 unless and until the Approved
Body Corporate has entered into the Ratification Deed.

21.3

22.

Unspent POI·tions of Payments(a)

In respect of the State's financial obligations in relation the Bunup NonIndustlial Land, if any maximum amounts specified in this deed have notbeen expended by the State within the periods specified, the unspent
portions will be applied for the management of the Burrup Non-Industrial
Land under the Management Agreement.

(b)

111 respect of the State's financial obligations in relation to the Industrial
Estate, if any maximum amounts specified in this deed have not been
expended by the State within the periods specified, the unspent or
uncommitted portions will be paid to the Approved Body Corporate on the
expiry of the relevant period.

NO ACKNOWLEDGMENT OF NATIVE TITLE
By entering into this deed neither the State nor LandCorp acknowledge the existenceof native title to the Area, the Additional Land, the Burrup Fertiliser Land, theKan'atha Land, the Heal'son Cove Land and the Bunup Non-Industrial Land.

23.

NO FURTHER COMPENSATION

23.1

Full and Final Settlement(a)

The Contracting Parties agree that the monetary payments and other benefits
provided by the State, Current Proponents or any Future Proponents under:(i)

this deed;(ii)

the ILUA referred to under clause 4;54

(iii)

any Undertaking; and(iv)

the agreements for the purposes of section 31 of the Native Title Act
in relation to the Bun·up Feliiliser Land,

constitute full and final settlement of any claim for compensation in respectof the extinguishment or impainnent, as the case may be, of the Contracting
Parties' native title rights or interests in the Area, the Additional Land, theBumlp Fertiliser Land, the Karratha Land, the Hearson Cove Land and the
BU111.lP Non-Industrial Land.

23.2

(b)

The NY and YJ\I[ release the State from any liability for any compensation
payable in respect of the extinguishment or impainnent of those parties'
native title rights and interests in De Witt Location 399.

(c)

The WGT release the State and Methanex from any liability for any
compensation payable in respect of the extinguishment or impainnent of the
WGT's native title rights and interests in De Witt Location 399 by reason of
any act done by the State or Methanex under this deed. For the avoidance of
doubt, this clause 23.1(c) does not derogate from or otherwise affect any
rights the WGT may have in relation to any act done on or in relation to De
Witt Location 399 prior to this deed.

Indemnity

(a)

If:

(i)

native title is detennined to exist in any land within the Area, theAdditional Land, the Bnrrup Fertiliser Land, the Karratha Land, theHearson Cove Land or ti,e BU111.lp Non-Industrial Land; and(ii)

the native title holders are, or include, persons other than persons in
the Contracting Claim Groups,

then snbject to clauses 23.2(b) and 23.2(c), the Contracting Parties hereby
indenmifY the State and LandCorp ("Relevant Parties") in respect of any
determination of compensation for loss or impainnent of native title payable
by the State, made by a court of competent jurisdiction or othelwise agreed
with the consent of the Contracting Parties arising from any claim forcompensation by the native title holders in respect of the Area, theAdditional Land, the Burrup Fertiliser Land, the Karratha Land, the Hearson
Cove Land or the Burrup Non-Industrial Land ("Indemnified Amount").
(b)

If any Relevant Party is entitled to any Indemnified Amount then upon
notice by the Relevant Party to the Contracting Parties:(i)the Contracting Parties hereby direct to the Relevant Party any
payments to be made by any Proponent to the Contracting Paliies
Of the Approved Body Corporate, as the case may be, and assign to
the State the rights of the Contracting Parties or the Approved Body
Corporate, as the case may be, in respect of the Karratha Land55

under this deed to the State, to the extent of the Indemnified
Amount; and
(ii)

24.

the Contracting Parties, hereby agree that the Relevant Party may
set off against the Indemnified Amount any amount payable by theState under clause 8.2 and any amounts payable in respect of
Proponents and Purchasers.

(c)

To the extent to which the State has paid any monies under clause 8.2 or in
respect of any Proponent or Purchaser, the State may recover the
Indemnified Amount from the Contracting Parties as a debt owing from theContracting Parties to the State.

(d)

The Relevant Parties agree that their rights in respect of the Indemnified
Amount are limited to the rights specified under clauses 23.2(b) and 23.2(c).

(e)

The Contracting Parties hereby release the State in respect of any loss ordamage suffered or incurred by the Contracting Parties or the Approved
Body Corporate, or both of them, arising from any claim for compensation
for loss or impairment of native title rights and interests by the native title
holders in respect of the Area, the Additional Land, the Burrup Feliiliser
Land, the Karratha Land, the Hearson Cove Land or the Burrup NonIndustrial Land.

STATE NOT LIABLE
Each Contracting Party aclmowledges and agrees that, except as provided in clauses
9 and 10, neither the State, LandCorp, nor their officers, employees or agents haveany obligations or liability whatsoever in connection with the rights and obligationsof the Contracting Paliies or the Approved Body Corporate under:

25.

(a)

any Undeliaking; or(b)

any agreement between a Contracting Party and a Proponent.

VALIDITY OF NOTICESEach Contracting Paliy:(a)aclmowledges that the notices issued under the Native Title Act and the Land
Administration Act in relation to land including the Area, the Additional
Land, the Burrup Feliiliser Land, the Karratha Land and the Hearson CoveLand are valid; and(b)agrees that this clause may be pleaded by the State as a bar to any
proceedings by the Contracting Parties challenging the validity oflhe notices
referred to in paragraph (a) above or the validity or enforceability of thisdeed in respect of those notices.

56

26.

INDEPENDENT ADVICE
Each Contracting Party severally represents and wan-ants (0 (he State:(a)that the Contracting Party has received independent legal advice in relation
to the temlS and conditions of this deed; and(b)that the Contracting Party has not, in entering this deed, relied on any
statement made by the State, its officers, agents or employees in relation to
any ofthe terms and conditions of this deed.

27.

PROCEEDINGS UNDER THE NATIVE TITLE ACT

27.1

Acknowledgment of Good Faith Negotiations for the Industrial Estate
The Contracting Parties acknowledge and agree that, in accordance with Pali 2
Division 3 Subdivision P of the Native Title Act, negotiations in good faith in respectof the compulsory acquisition of native title lights and interests in the Industrial
Estate have been conducted between the State, LandCorp, Methanex and theContracting Parties.

27.2

State May Apply under Section 35
If this deed has not been entered into by each of the NY, the YM and the WGT, thenthe Contracting Parties acknowledge and agree that:(a)the State, in respect of the Industrial Estate, or either the State or Methanex,
in respect of the Additional Land, may apply for a determination by thearbitral body under section 35 of the Native Title Act ("Section 35
Proceedings");(b)

this deed and evidence of negotiations in respect of this deed and matterscontemplated under this deed will be used in the Section 35 Proceedings;(c)the Contracting Parties will not allege in any Section 35 Proceedings that theState or Methanex have failed to negotiate in good faith in respect of thecompulsOlY acquisition of any native title rights and interests in the
Industrial Estate and that this deed can be pleaded as a bar to any suchallegations;(d)the Contracting Parties will, in any Section 35 Proceedings, consent to the
future act being done without any conditions; and(e)

the Contracting Parties will (subject to payment by the State of theirreasonable costs and expenses including legal costs) SUppOli the State orMethanex or both of them, as the case requires, in respect of any challenge
in the Section 35 Proceedings brought on the grounds that the State orMethanex or both of them, have failed to negotiate in good faith.

57

27.3

Acknowledgment of Consultation in respect of Karratha Land and Hem'son
Cove Land
The Contracting Patties acknowledge that, in accordance with section 24MD(6B)(e)of the Native Title Act, consultation required under that section has been conducted in
respect oftlle KalTatha Land and the Hearson Cove Land.

27.4

Proceedings under Section 24MD(6B)
If this deed has not been entered into by each of the NY, the YM a11d the WGT, thenthe Contracting Patties acknowledge and agree that:

28.

(a)

on the request ofthe State, the Contracting Parties will refer the objections
for hearing by the Independent Person under section 24MD(6B) ("Section
24MD Proceedings");(b)

the State may refer the objections for heating by the Independent Person
under section 24MD(6B);(c)

this deed and evidence of negotiations in respect of this deed aIld matterscontemplated under this deed will be used in the Section 24MD
Proceedings;(d)the Contracting Patties will not allege in any Section 24MD Proceedingsthat the relevaIlt patties for the purposes of section 24MD have failed toconsult aIld that this deed CaIl be pleaded as a bar to any such allegations;(e)the Contracting Patties will, in any Section 24MD Proceedings, consent to
the future act being done without any conditions; and(f)

the Contracting Patties will (subject to payment by the State of theirreasonable costs and expenses including legal costs) support the State inrespect of any challenge in the Section 24MD Proceedings brought on the
grounds that the relevant patties under section 24MD have failed to consult.

RULE AGAINST PERPETUITIES
If any thing to be done under this deed offends the rule against perpetuities, then to
the extent necessary so as to not offend that rule, the patties agree that the relevaIlt
provisions in this deed shall be deemed to expire eighty (80) years from theSatisfaction Date.

29.

VALUA nONS UNDER THIS DEED

29.1

Application of this ClauseThis clause applies to all valuations required under this deed.

29.2

Principles for Obtaining Valuation
Valuations under this deed will be:
58

(a)

subject to clause 29.2(b), the valuation detel111ined by the Valuer General ofWestern Australia in accordance with the Valuation Principles and as
notified by the State (0 the Contracting Pm1ies; or(b)

if within fifteen (15) Business Days after the receipt of the valuationreferred to in clause 29.2(a), the Contracting Pm1ies gives notice that theyrequire clause 29.3 to apply, then subject to clause 29.2(c) and clause
29.3(b), the valuation will be the amount equivalent to the mean of thevaluations of:(i)the valuation detemlined by the Valuer General of Western
Australia in accordance with clause 29.2(a); and(ii)

the valuation deternlined by an Independent Valuer appointed inaccordance with clause 29.3(a),in accordance with the relevant Valuation Principles; and(c)if the difference between the valuations referred to in clause 29.2(b) exceeds
10% of the valuation under clause 29.2(a), then the State or the Contracting
PaJiies may give notice to the other, within fifteen (15) Business Days after
receipt of the valuation referred to in clause 29.2(b)(ii), that this clause
29.2(c) is to apply. If such notice is given then:(i)the pmiy who gave the notice must request the President for thetime being of the Australim Property Institute to nominate a second
Independent Valuer;(ii)

the party who gave the notice must appoint the second Independent
Valuer so nominated within fifteen (15) Business Days of that paJiy
receiving the nomination;(iii)

the valuation shall be the amount determined by the second
Independent Valuer appointed in accordmce with clause29 .2(c)(ii);(iv)

the second Independent Valuer referred to in this clause 29.2(c)must determine the valuation in accordmce with the Valuation
Principles md take into account the valuations referred to in clause
29.2(b); and(v)

the valuation by the second Independent Valuer shall be final; but(vi)

if the second Independent Valuer is not appointed within the fifteen(15) Business Days referred (0 in clause 29.2(c)(ii), or if clause
29.4 is not satisfied, then the valuation shall be the valuation underclause 29.2(b).

59

29.3

Principles for Appointing Independent Valuer under clause 29.2(b)(a)

The Contracting Paliies must appoint an Independent Valuer for thepUlposes of clause 29.2(b) and give notice to the State of that appointment
within fifteen (15) Business Days after the Contracting Pmiies's noticerefened to in clause 29.2(b).

(b)

If:
(i)

the Contracting Pmiies fail to appoint and give the notice refelTed
to in clause 29.3(a); or(ii)

clause 29.4 is not satisfied in respect of the valuation to be camedout under clause 29.2(b)(ii),then the valuation will be the valuation detennined under clause 29.2(a).
29.4

Condnct of Valuations
All valuations conducted by an Independent Valuer under this clause must be
concluded and a copy provided to the State and the Approved Body COlporate within
thiliy five (35) Busilless Days after the date of the Independent Valuer's appointment.

29.5

Costs of Valuations(a)

In respect of valuations conducted by an Independent Valuer for land within
the Industrial Estate, the State shall bear the reasonable costs of thevaluation.

(b)

In respect of the valuations conducted by an Independent Valuer for land
within the Karratha Land:(i)the Contractmg PaJiies shall bear the costs of the first Independent
Valuer, or indell1lliry the State in respect of such costs if the State
elects to pay the costs of the Independent Valuer;(ii)

if the valuation conducted by the Valuer General of Western
Australia is less than or greater than the valuation conducted by thesecond Independent Valuer by more than 10% of the valuation by
the second Independent Valuer, the State shall bear the costs of thesecond Independent Valuer. If the Contracting PaJiies have paid
the costs of the second Independent Valuer then the State
indemnifies the Contracting PaJiies in respect of the reasonable
costs of the second Independent Valuer;(iii)

if the valuation conducted by the first Independent Valuer
appointed by the Approved Body Corporate is less than or greaterthan the valuation conducted by the second Independent Valuer bymore than 10% of the valuation by the second Independent valuer,
the Contracting Parties shall bear the costs of the second
Independent Valuer. If the State has paid the costs of the second60Independent Valuer then the Contracting Pmiies indemnify theState in respect of the reasonable costs of the second Independent
Valuer; and
(iv)

29.6

if both the valuation by the Valuer General and the first
Independent Valuer is less than or greater than the valuation
conducted by the second Independent Valuer by more than 10% of
the valuation by the second Independent Valuer, the State and theContracting Pmiies shall share equally the costs of the second
Independent Valuer, and the State and the Contracting Parties
indemnify each other to the extent of an equal share of thereasonable costs of the second Independent Valuer.

Principles of Valuation
(a)

(b)

In respect of valuations for the Industrial Estate, valuations will be theunimproved value of the land, determined in accordance with the following
principles:(i)

it will be the unimproved market value of the land in its natural orvirgin state but taking into account existing surrounding services,
facilities off the land and amenities including any potential utility
or detriments inherent with the location, but excluding any
improvements to the land including existing facilities or clearing,levelling, drainage, contour or retaining walls;(ii)

the market value will be detennined by the amount for which theland would sell if it was unencumbered freehold land, sold at the
specific date on the open market, where both buyer and seller were
infonned of all factors affecting the land value and negotiations
were carried out at arms' length, in a prudent and business like
maImer and inclusive of GST;

(iii)

taking into account the purpose for which the land is intended to be
used; and(iv)

where valuation of the market rental is required, it will becapitalised at a rate to be detel1llined by the valuer; but(v)

not taking into account the obligations under this deed or any
Undertaking to pay the Contracting Parties or the Approved Body
Corporate, as the case may be, in respect of leases granted to
Proponents and freehold title transferred to Purchasers.

In respect of valuations for Developed Lots in the Karratha Land, valuations
will be the site value of the land as an estate in fee simple, detennined inaccordance with the following principles:0)

assuming it is vacant, unencumbered and sold at the specific dateon the open market, where both buyer and seller were infol111ed of61

all factors affecting the land, and negotiations were canied out atalms' length, in a prudent and business like maImer;(ii)

no improvements have been made to the Developed Lot, other thanMerged Improvements. Merged ImproYements means any works
in the nature of draining, filling, excavation, grading or levelling of
the land, retaining walls or other stl1lctures or works for that
purpose, the removal of rocks, stone, soil and the clearing oftimber, sc.mb or other vegetation;(iii)

assuming the Developed Lot may be used for the highest and bestuse for which it is pelmitted to be used under any relevant town
plaJUling scheme or other written law;(iv)

assuming the subdivision development of the Parcel or Stage, as thecase may be, of which the Developed Lot fOlms part has been
completed;(v)

taking into account the services (including roads, power, gas,
telecommunications, water reticulation, sewerage and drainage) andother infi·astructure on land adjoining or in the vicinity of theDeveloped Lot that are available for use by or for the benefit of theDeveloped Lot;(vi)

where the Developed Lot is being developed for residential
purposes, exclusive of GST; and(vii)

where the Developed Lot is being developed for any purpose otherthan residential, inclusive of GST; but(viii)

not taking into accolmt the State's obligations under this deed forland in the Karratha Land to be transferred or to make payments in
respect of the Karratha Land; and(ix)

in respect of valuations for a Developed Lot that is further
subdivided, by the same Registered Proprietor as PaIt of thesubdivision development under the Strata Titles Act 1985 (WA)
into:
(A)

Strata Lots, then the land the subject of the strata plan will
be valued as a whole according to its site value, as an
estate in fee simple in the land in the manner provided forin paragraphs (i) to (viii) above but also:(I)

assuming the strata plan is registered; and(2)taking into account any services and inJ'i"astructure
on any cOll1ll1on property in the strata scheme;
and

62

(B)

Survey-Strata Lots, each Survey-Strata Lot will be valued
as a separate parcel according to the site value of that
Survey-Strata Lot as an estate in fee simple in the land in
the mamler provided for in paragraphs (i) to (viii) above
but also:(I)

assuming the survey-strata plan is registered; and(2)taking into account any services and infrastructure
on any COl1ll1lon Propeliy Lot.

In this clause:
Common Property Lot means any lot shown as COl1ll1lon property on asurvey-strata plan or proposed survey-strata plan under the Strata Titles Act
1985 (WA).
Strata Lot means a lot in relation to a strata scheme, as defined under theStrata Titles Act 1985 (WA).
Snrvey-Strata Lot means a lot in relation to a survey-strata scheme, as
defined under the Strata Titles Act 1985 (WA), and any COl1ll1lon Property
Lot.
30.

GENERAL

30.1

Further Assurance
Each party agrees at its own expense (except as otherwise provided under this deed)
to do everything reasonably necessary to give effect to this deed and the matterscontemplated by it.

30.2

Notices(a)

A notice or other communication in connection with this deed:(i)must be in writing;(ii)

in respect of notices by the State or LandC01]J, may be given by anauthorised officer on behalf of the State or LandCorp, as the casemaybe; and(iii)

must be:(A)

sent by prepaid ordinary post to, or Jeft at the address of,
the addressee at the address set out in Schedule I, or suchother address as varied by a party from time to time bynotice to the other paJiies; or

63

(B)

(b)

(c)

30.3

sent by facsimile to the facsimile number of the addressee
set out in Schedule 1, or such other number as vmied by apaliy from time to time by notice to the other pmiies.

A notice takes effect from the time it is received, unless a later time isspecified in the notice. For the purposes of this clause a letter or facsimile istaken to be received:(i)in the case of a letter sent by post, on the third Business Day after
posting;(ii)

in the case of a facsimile, on the day the facsimile machine fromwhich the notice was sent produces a transmission report whichshows that the entire facsimile was sent to the facsimile number of
the addressee set out in Schedule 1; and(iii)

if received after 5.00 pm, is taken to be received on the next
Business Day.

Any notice to be given by the Contracting Parties under this deed llIay only
be given by their authorised representative set out in Schedule 1, or suchother address as vmed by notice to the other paJiies.

No Right to Terminate
The parties agree that, subject to clause 2.4, no breach of the tenus of this deed will
give to any other party the light to tenuinate or rescind this deed, but that party may
exercise any right or remedy otherwise available to it in respect of such breach.

30.4

Assignment
Subject to clause 23.2(b)(i), the Contracting PaJiies may not assign any right, title orinterest arising from any matter under this deed without the prior consent of the State.

30.5

30.6

Waiver(a)

No right under this deed shall be deemed to be waived except by notice inwriting signed by the party waiving the right.

(b)

The waiver of a right by a party will not prejudice that paliy's other rights or
future rights in respect of the right waived.

(c)SUbject to clause 30.5(a), any failure by a party to enforce any right under
this deed, or any forbearance, delay or indulgence granted by one party toanother party will not be constlUed as a waiver of rights under this deed.

Variation
No modification, amendment or other vmation of this deed shall be valid or binding
on a pmiy unless made in writing duly executed by that pmiy.
64

30.7

Entire Agreement
This deed contains the entire agreement between the paliies relating to the matterscontemplated under this deed, and supersedes any and all previous negotiations,representations, wan'anties, undertakings, proposals, understandings and agreements
whether written or oral, and may only be added to, varied or amended by writtenagreement signed by the parties concemed.

30.8

30.9

Severability(a)Subject to clauses 2.4 and 30.8(b), if any provision of this deed is void,
voidable by any Pmiy, unenforceable or illegal according to the law in force
in the State of Westem Australia, it shall be read down so as to be valid andenforceable or if it cannot be so read down, the provision (or where possible
the offending words), shall be severed from this deed without affecting thevalidity, legality or enforceability of the remaining provisions (or parts of
those provisions) of this deed which will continue in full force and effect.

(b)

If for any reason clause 6.1 of this deed is void, voidable by any Party,
unenforceable or illegal then the provisions of clause 6 shall be severed fromthis deed without affecting the validity, legality or enforceability of theremaining provisions (or parts of those provisions) of this deed which willcontinue in full force and effect.

Governing Law
This deed is govemed by the law in force in the State of Westem Australia and thePmiies submit to the non-exclusive jurisdiction of the courts of Westem Australia
and the appeal courts from those comis.

30.10Counterparts
This deed may consist of a number of counterparts and the cQunterpmts taken
together constitute one and the same instrument.

31.

GST

31.1

Interpretation
In this clause 31 :Recipient has the meaning in clause 31.3
Supplier has the meaning in clause 31.3
Any terms used in this clause 31 that are defined in the GST Act have their respective
meanings given to each of those tenns in Section 195 of the GST Act or elsewhere in
the GST Act.

65

31.2

Amounts Exclusive ofGSTAll prices Of other amounts fixed or detennined under, or refel1'ed to in, this deed are
exclusive of GST, except where expressly provided to the contrmy in a particularprovision of this deed.

31.3

GST Payable

If GST is or becomes payable by a supplier in relation to any supply that it makes
under, in cOImection with or resulting from this deed, the parties agree that, in
addition to any consideration provided by a party to this deed ("Recipient") for a
supply from another paliy ("Supplier"), the Recipient must pay to the Supplier:(a)at the same time as the relevant consideration or any part of it is provided; or(b)

if the Supplier is required under the GST Act to pay GST prior to receiving
the relevant consideration for the supply, then within two (2) Business Daysof the Supplier's due date for payment of the GST liability as notified by the
Supplier to the Recipient in writing,the amount of any GST for which the supplier is liable in relation to that supply("additional amount"), subject to the following:

31.4

31.5

(c)

the obligation to pay the additional aJUount only arises once the Supplier has
issued a tax invoice (or an adjustment note) to the Recipient in respect ofthat additional aJUount, subject to any agreement in writing between the
Recipient and the Supplier for the Recipient to issue a recipient created tax
invoice in accordance with the GST Act; and(d)if a Recipient is required under this deed to reimburse or pay to a Supplier
an aJUount calculated by reference to a cost, expense or an amount paid or
incurred by that Supplier, the aJUount of the reimbursement or payment will
be reduced by the amount of any input tax credits to which the Supplier isentitled in respect of any acquisition relating to that cost, expense or otheramount.

Supply of Land(a)

For the supply of land by the Supplier under, in cOlllJection with or resulting
from this deed (including the Burrup Non-Industrial Land), the Supplier may
in its absolute discretion elect to apply the margin scheme to that supply.

(b)

Where the Recipient of a supply of land requests that the supply be madeunder the margin scheme, the Supplier will consider the application of themargin scheme to the supply and advise the Recipient whether the margin
scheme will be applied to the supply.

Tax Applications
If, at any time, a party ("Applicant") wishes to obtain a tax ruling or exemption from,or make any application to, the Commissioner of Taxation as to the application of66

any provision of the GST Act to a supply made under, in connection with or resulting
fi'om this deed, the Applicant may so apply and the following provisions apply:(a)the application will be made by the Applicant at its sole cost;(b)

the other parties will provide such assistance as the Applicant reasonably
requires:

(c)

31.6

(i)

subject to the Applicant paying the other parties' reasonable costs
and expenses for providing that assistance (including legal costs
and expenses); and(ii)

provided that the other party is not of the oplmon (reasonably
fOIDled) that the effect of the lUling, exemption or other application,
if successful or granted, would have materially adverse GST
consequences for the other party; andthe Applicant mayor may not accept the tax lUling, or decision of theCommissioner of Taxation in relation to the application, or may appeal fi'om
it, as the Applicant decides in its absolute discretion.

Cooperation
Each party agrees to use its best endeavours so that:(a)the other parties are not subject to disadvantage in respect ofGST; and(b)

GST is paid in a manner that is equitable to all parties,

having regard to the GST Act.

67