Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Act 2004 (WA)

Western Australia Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Act 2004 Western Australia Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Act 2004 Contents Part 1 — Preliminary 1. Short title 2 2. Commencement 2 Part 2 — General provisions about the Agreement 3. Terms used 3 4. Ratification and authorisation 3 5. State empowered under clause 23 3 6. Effect on other laws 3 7A. Validation of certain licences 4 Part 3 — Provisions about access to the railway constructed under the Agreement Division 1 — Amendment of the Railways (Access) Act 1998 7. Railways (Access) Act 1998 amended 5 8. Section 3 amended 5 9. Section 11B inserted 5 11B. Exception to sections 10 to 11A 5 Division 2 — Railways (Access) Code 2000 10. Railways (Access) Code 2000 amended 6 11. Section 3 amended 6 12. Section 53 inserted 7 53. Further transitional provision 7 13. Schedule 1 amended 7 TPI Railway and Port Agreement Route 7 14. Schedule 4 amended 7 Schedule 1 — Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Schedule 2 — 2010 variation agreement Schedule 3 — 2018 variation agreement Notes Compilation table 101 Defined terms Western Australia Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Act 2004 An Act — • to ratify, and authorise the implementation of, an agreement between the State and The Pilbara Infrastructure Pty Ltd and Fortescue Metals Group Ltd relating to the development of a multi‑user railway and multi‑user port facilities in the Pilbara region of the State; • to amend the Railways (Access) Act 1998 and the Railways (Access) Code 2000, and for incidental and other purposes. The Parliament of Western Australia enacts as follows: Part 1 — Preliminary 1. Short title This Act may be cited as the Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Act 2004. 2. Commencement (1) Subject to subsection (2), this Act comes into operation on the day on which it receives the Royal Assent. (2) Part 3 comes into operation on a day fixed by proclamation. Part 2 — General provisions about the Agreement 3. Terms used In this Part — 2010 variation agreement means the agreement a copy of which is set out in Schedule 2; 2018 variation agreement means the agreement a copy of which is set out in Schedule 3; Agreement means the scheduled agreement — (a) as varied from time to time in accordance with its terms; and (b) as varied by the 2010 variation agreement; and (c) as varied by the 2018 variation agreement. scheduled agreement means the agreement of which a copy is set out in Schedule 1; [Section 3 amended: No. 60 of 2010 s. 4; No. 6 of 2018 s. 4.] 4. Ratification and authorisation (1) The scheduled agreement is ratified. (2A) The 2010 variation agreement is ratified. (2B) The 2018 variation agreement is ratified. (2) The implementation of the Agreement is authorised. [Section 4 amended: No. 60 of 2010 s. 5; No. 6 of 2018 s. 5.] 5. State empowered under clause 23 The State has power in accordance with clause 23 of the Agreement. 6. Effect on other laws (1) The Agreement operates and takes effect despite any enactment or other law. (2) If a provision of the scheduled agreement, the 2010 variation agreement or the 2018 variation agreement expressly or by implication purports to modify or exclude the application or operation of an enactment for a purpose or in relation to a person or thing, the application or operation of the enactment is modified or excluded for that purpose, or in relation to that person or thing, to the extent or for the period mentioned in the provision or necessary for the provision to have effect. (3) To avoid doubt, it is declared that the provisions of the Public Works Act 1902 section 96 do not apply to the railway constructed pursuant to the Agreement. (4) This section does not limit or otherwise affect the application of the Government Agreements Act 1979. [Section 6 amended: No. 60 of 2010 s. 6; No. 6 of 2018 s. 6.] 7A. Validation of certain licences (1) The Special Railway Licence (SRL) granted or purportedly granted pursuant to the Agreement clause 14(1)(a) before the commencement of the Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Amendment Act 2010 section 7 is, and is taken always to have been, as valid as the SRL would have been if consent from each title holder in respect of the land affected by the SRL had been obtained as required by the Agreement clause 7(3). (2) Each Lateral Access Road Licence (LARL) granted or purportedly granted pursuant to the Agreement clause 14(1)(b) before the commencement of the Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Amendment Act 2010 section 7 is, and is taken always to have been, as valid as the LARL would have been if consent from each title holder in respect of the land affected by the LARL had been obtained as required by the Agreement clause 7(3). [Section 7A inserted: No. 60 of 2010 s. 7.] Part 3 — Provisions about access to the railway constructed under the Agreement Division 1 — Amendment of the Railways (Access) Act 1998 7. Railways (Access) Act 1998 amended The amendments in this Division are to the Railways (Access) Act 1998*. [* Reprinted as at 12 October 2001. For subsequent amendments see Western Australian Legislation Information Tables for 2003, Table 1, p. 323.] 8. Section 3 amended Section 3(1) is amended as follows: (a) by inserting in the appropriate alphabetical position — " TPI Railway and Port Agreement has the meaning given to the term "the Agreement" in the Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Act 2004 section 3. "; (b) in the definition of "railways network" by deleting "and" after paragraph (b) and inserting — " (ba) the railway constructed pursuant to the TPI Railway and Port Agreement; and ". 9. Section 11B inserted After section 11A the following section is inserted — " 11B. Exception to sections 10 to 11A (1) Sections 10 to 11A do not apply if, in making an amendment to the Code, the Minister states that the amendment is made under this section for the purpose of the application of the Code to the railway constructed pursuant to the TPI Railway and Port Agreement. (2) Subsection (1) does not apply to an amendment made after the expiration of the period of 3 years after the day of the coming into operation of the Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Act 2004 section 13. ". Division 2 — Railways (Access) Code 2000 10. Railways (Access) Code 2000 amended The amendments in this Division are to the Railways (Access) Code 2000*. [* Published in Gazette 8 September 2000, p. 5123-81. For subsequent amendments see Gazette 23 July 2004.] 11. Section 3 amended Section 3 is amended as follows: (a) by inserting in the appropriate alphabetical position — " TPI Railway and Port Agreement has the meaning given to the term "the Agreement" in the Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement Act 2004 section 3. "; (b) in the definition of "railways network" by deleting "and" after paragraph (b) and inserting — " (ba) the railway constructed pursuant to the TPI Railway and Port Agreement; and ". 12. Section 53 inserted After section 52 the following section is inserted — " 53. Further transitional provision Until the Regulator publishes in the Gazette notice of a determination under subparagraph (ia) of clause 3(1)(a) of Schedule 4, the weighted average cost of capital for the railway infrastructure referred to in that subparagraph is such percentage as the Regulator fixes by notice published in the Gazette under this section. ". 13. Schedule 1 amended After Schedule 1 item 51 the following heading and item are inserted — " TPI Railway and Port Agreement Route 52. All tracks that are part of the railway constructed pursuant to the TPI Railway and Port Agreement. ". 14. Schedule 4 amended Schedule 4 clause 3(1)(a) is amended by deleting "and" after subparagraph (i) and inserting — " (ia) the railway infrastructure associated with that part of the railways network described in item 52 in that Schedule; and ". Schedule 1 — Railway and Port (The Pilbara Infrastructure Pty Ltd) Agreement [s. 3] 2004 THE STATE OF WESTERN AUSTRALIA and THE PILBARA INFRASTRUCTURE PTY LTD ACN 103 096 340 and FORTESCUE METALS GROUP LTD ACN 002 594 872 ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ RAILWAY AND PORT (THE PILBARA INFRASTRUCTURE PTY LTD) AGREEMENT ‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑ State Solicitor's Office Commercial and Conveyancing 141 St George's Terrace Perth WA 6000 Telephone : (08) 9264 1888 THIS AGREEMENT is made this 10th day of November 2004 BETWEEN THE HONOURABLE GEOFFREY IAN GALLOP, B.Ec., MA., MPhil., DPhil., M.L.A., Premier of the State of Western Australia, acting for and on behalf of the said State and its instrumentalities from time to time (hereinafter called "the State") of the first part, THE PILBARA INFRASTRUCTURE PTY LTD ACN 103 096 340 of Level 1, 46‑50 Kings Park Road, West Perth, Western Australia (hereinafter called "the Company" in which term shall be included its successors and permitted assigns) of the second part, and FORTESCUE METALS GROUP LTD ACN 002 594 872 of Level 1, 46‑50 Kings Park Road, West Perth, Western Australia (hereinafter called "the Guarantor") of the third part. WHEREAS: A. The Guarantor is investigating the feasibility of developing in the vicinity of the Chichester Ranges in the Pilbara region of Western Australia a project for the mining and sale, either within Australia or by export to overseas purchasers, of iron ore from the said region and is negotiating with the State a separate agreement to facilitate that mining development. B. The Guarantor is also proceeding with detailed feasibility studies for the Company to construct and operate a multi-user railway from in the vicinity of the Chichester Ranges to multi-user port facilities within the Port of Port Hedland, or to a location near the boundary of that port for delivery to such port facilities by multi-user conveyor, and such multi-user port facilities, for the shipping and export of iron ore products, freight goods and other products. C. The Company proposes that the railway, any facilities outside the port for the transfer of iron ore products, freight goods and other products to the port facilities, and the port facilities which are all to be constructed under this Agreement will operate under open third party access arrangements referred to in this Agreement. D. The State for the purpose of promoting development of the iron ore industry and employment opportunity generally in Western Australia, and for the purposes of promoting the development of multi-user infrastructure facilities in the Pilbara region of Western Australia, has agreed to assist the development of the above multi-user facilities upon and subject to the terms of this Agreement. NOW THIS AGREEMENT WITNESSES: Definitions 1. In this Agreement subject to the context: "Access Act" means the Railways (Access) Act 1998; "Access Code" means the Railways (Access) Code 2000; "Additional Infrastructure" means a conveyor, train unloading and other infrastructure necessary for the transport of iron ore products, freight goods or other products from the SRL Railway to the Company's Port Facilities within the Port; "advise", "apply", "approve", "approval", "consent", "certify", "direct", "notice", "notify", "request", or "require", means advise, apply, approve, approval, consent, certify, direct, notice, notify, request or require in writing as the case may be and any inflexion or derivation of any of those words has a corresponding meaning; "approved proposal" means a proposal approved or deemed to be approved under this Agreement; "Commonwealth" means the Commonwealth of Australia and includes the Government for the time being thereof; "EP Act" means the Environmental Protection Act 1986; "Government agreement" has the meaning given in the Government Agreements Act 1979; "iron ore products" includes iron ore of all grades and all products from the processing of iron ore; "LAA" means the Land Administration Act 1997; "Lateral Access Roads" has the meaning given in clause 7(1); "Lateral Access Road Licence" means a miscellaneous licence granted pursuant to clause 14(1)(b) and according to the requirements of the context describes the area of land from time to time the subject of that licence; "laws relating to native title" means laws applicable from time to time in Western Australia in respect of native title and includes the Native Title Act 1993 (Commonwealth); "local government" means a local government established under the Local Government Act 1995; "Mining Act" means the Mining Act 1978; "Mining Agreement" means the agreement intended to be made in accordance with clause 38 for the purposes of assisting the establishment of iron ore mining operations in the vicinity of the Chichester Ranges; "Minister" means the Minister in the Government of the State for the time being responsible for the administration of the Act to ratify this Agreement and pending the passing of that Act means the Minister for the time being designated in a notice from the State to the Company and includes the successors in office of the Minister; "Minister for Mines" means the Minister in the Government of the State for the time being responsible for the administration of the Mining Act; "month" means calendar month; "person" or "persons" includes bodies corporate; "Pilbara Iron Ore Railways" means each railway constructed under a Government agreement which is located wholly or substantially in one or more of the local government districts of Ashburton, East Pilbara, Port Hedland and Roebourne at the date of this Agreement; "Port" means the Port of Port Hedland; "Port Additional Infrastructure" means that part of the Additional Infrastructure (if any) which is or is to be located (as the case may be) in the Port; "Port Additional Infrastructure Area" means that part of the Port the subject of a subsisting agreement pursuant to clause 8(1)(b)(i); "Port Additional Infrastructure Licence" means the licence granted to the Company under the Port Authorities Act as referred to in clause 14(7)(b) and according to the requirements of the context describes the area from time to time the subject of that licence; "Port Authority" means the Port Hedland Port Authority, being the body corporate established for the Port under the Port Authorities Act; "Port Authorities Act" means the Port Authorities Act 1999; "Port Facilities" means facilities (excluding the Port Railway and Additional Infrastructure (if any)) necessary for the construction, operation and maintenance of a ship loading terminal, which may include train unloading, conveyor, stockpiling, ore blending, screening and loading facilities and a wharf; "Port Facilities Area" means that part of the Port the subject of a subsisting agreement pursuant to clause 8(1)(a); "Port Lease" means the lease granted to the Company under the Port Authorities Act as referred to in clause 14(7)(a) and according to the requirements of the context describes the area from time to time the subject of that lease; "Port Railway" means that part of the Railway (if any) which is or is to be (as the case may be) located in the Port; "Port Railway Area" means that part of the Port the subject of a subsisting agreement pursuant to clause 8(1)(c); "Port Railway Licence" means the licence granted to the Company under the Port Authorities Act as referred to in clause 14(7)(c) and according to the requirements of the context describes the area from time to time the subject of that licence; "Private Roads" means Lateral Access Roads and the Company's access roads within the Railway Corridor; "Project" means the construction and operation under this Agreement of the Railway, access roads, the Lateral Access Roads, the Additional Infrastructure (if any) and Port Facilities each approved pursuant to proposals submitted under clause 10, the provision of access (as defined in clause 16) to the Railway, the provision of rail transport services over the Railway and access (as defined in clause 18) to the Port Facilities and the Additional Infrastructure (if any); "Rail Safety Act" means the Rail Safety Act 1998; "Railway" means a standard gauge heavy haul railway initially from the mining area to be developed under the Mining Agreement in the vicinity of the Chichester Ranges in the Pilbara region of the said State to the Company's Port Facilities within the Port or to a location near the boundary of the Port together with all railway track, associated track structures including sidings, turning loops, over or under track structures, supports (including supports for equipment or items associated with the use of a railway) tunnels, bridges, train control systems, signalling systems, switch and other gear, communication systems, electric traction infrastructure, buildings (excluding office buildings, housing and freight centres), workshops and associated plant, machinery and equipment and including rolling stock maintenance facilities, terminal yards, depots, culverts and weigh bridges which railway is or is to be (as the case may be) the subject of approved proposals under clauses 10 and 11 of this Agreement and includes any extension or enlargement thereof which is the subject of approved proposals under clauses 12 or 13; "Railway Corridor" means, prior to the grant of the Special Railway Licence, the land for the route of the SRL Railway, access roads (other than Lateral Access Roads) and such of the Additional Infrastructure (if any) which is to be located outside the Port and which is the subject of a subsisting agreement pursuant to clause 7(1) and upon the grant of the Special Railway Licence the land the subject of the Special Railway Licence less any portion of the Railway Corridor surrendered by the Company from time to time under the terms of the Special Railway Licence; "Railway Operation Date" means the date of the first carriage of iron ore products, freight goods or other products over the Railway (other than for construction or commissioning purposes); "said State" means the State of Western Australia; "SRL Railway" means that part of the Railway which is or is to be (as the case may be) located outside the Port; "Special Railway Licence" means the miscellaneous licence for railway and, if applicable, other purposes, granted to the Company pursuant to clause 14(1)(a) and according to the requirements of the context describes the area of land from time to time the subject of that licence; "this Agreement", "hereof" and "hereunder" refer to this Agreement, whether in its original form or as from time to time added to, varied or amended; and "Trade Practices Act" means the Trade Practices Act 1974 (Commonwealth). Interpretation 2. (1) In this Agreement: (a) monetary references are references to Australian currency unless otherwise specifically expressed; (b) power given under any clause other than clause 30 to extend any period or date shall be without prejudice to the power of the Minister under clause 30; (c) clause headings do not affect interpretation or construction; (d) words in the singular shall include the plural and words in the plural shall include the singular according to the requirements of the context; (e) one gender includes the other genders; (f) a covenant or agreement by more than one person binds, and is enforceable against, those persons jointly and each of them severally; (g) reference to an Act includes the amendments to that Act for the time being in force and also any Act passed in substitution therefor or in lieu thereof and the regulations for the time being in force thereunder; (h) reference to the Access Code includes the amendments to that code for the time being in force and also any code established or made in substitution therefor or in lieu thereof; (i) reference in this Agreement to any other document includes that document as from time to time added to, varied or amended and notwithstanding any change in the identity of the parties; (j) reference to a clause or schedule is a reference to a clause or schedule to this Agreement, and a reference to a subclause or paragraph is a reference to the subclause of the clause or paragraph of the clause or subclause as the case may be in, or in relation to, which the reference is made; (k) "including" means "including, but not limited to"; and (l) reference to a "person" includes a body corporate. (2) Nothing in this Agreement shall be construed to exempt the State or the Company from compliance with or to require the State or the Company to do anything contrary to any law relating to native title or any lawful obligation or requirement imposed on the State or the Company as the case may be pursuant to any law relating to native title. (3) Nothing in this Agreement shall be construed to exempt the Company from compliance with any requirement in connection with the protection of the environment arising out of or incidental to its activities under this Agreement that may be made by or under the EP Act. Ratification and operation 3. (1) The State shall introduce and sponsor a Bill in the State Parliament of Western Australia prior to 31 December 2004 or such later date as may be agreed between the parties hereto to ratify this Agreement. The State shall endeavour to secure the timely passage of such Bill as an Act. (2) The provisions of this Agreement other than this clause and clauses 1 and 2 will not come into operation until the Bill referred to in subclause (1) has been passed by the State Parliament of Western Australia and comes into operation as an Act and the Mining Agreement is signed by all of the parties to it. (3) If by 31 December 2005 the said Bill has not commenced to operate as an Act or the Mining Agreement has not been signed by all of the parties to it then, unless the parties hereto otherwise agree, this Agreement will then cease and determine and no party hereto will have any claim against any other party hereto with respect to any matter or thing arising out of, done, performed, or omitted to be done or performed under this Agreement. (4) On the later of: (a) the date on which the said Bill commences to operate as an Act; and (b) the date on which the Mining Agreement is signed by all of the parties to it, all the provisions of this Agreement will operate and take effect despite any enactment or other law. Initial obligations of the State 4. The State shall subject to the adequate protection of the environment (including flora and fauna) and the land affected (including improvements thereon), and subject to the Company furnishing to the Minister the written consents referred to in clause 7(3)(a), arrange for the issue of requisite authority under the LAA to allow the Company to enter upon Crown land as defined in the LAA (including, if applicable, land the subject of a pastoral lease, but excluding land within the Port) with plant and equipment to carry out all works to the extent reasonably necessary for the purposes of undertaking its obligations under clause 5(1). Initial obligations of the Company 5. (1) The Company shall continue field and office geological, geophysical, geotechnical, engineering and environmental investigations and studies and marketing and finance studies and other matters necessary for the purposes of clauses 7 and 8 and to enable it to finalise and to submit to the Minister the detailed proposals referred to in clause 10. (2) The Company shall keep the State fully informed in writing at quarterly intervals from the later of the dates specified in clause 3(4) as to the progress and results of its operations under subclause (1) and supply to the Minister such information in relation thereto as the Minister may request from time to time. (3) The Company shall co-operate with the State and consult with the representatives or officers of the State regarding matters referred to in subclauses (1) and (2) and any other relevant studies in relation to those subclauses that the Minister may wish the Company to undertake. Aboriginal Heritage Act 1972 6. For the purposes of this Agreement the Aboriginal Heritage Act 1972 applies as if it were modified by: (a) the insertion before the full stop at the end of section 18(1) of the words: " and the expression "the Company" means the persons from time to time comprising "the Company" in their capacity as such under the agreement made on 10 November 2004 between The Honourable Geoffrey Ian Gallop, Premier of the State of Western Australia acting for and on behalf of the said State and its instrumentalities from time to time, The Pilbara Infrastructure Pty Ltd ACN 103 096 340 and Fortescue Metals Group Ltd ACN 002 594 872, in relation to the use or proposed use of land pursuant to that agreement after and in accordance with approved proposals under that agreement and in relation to the use of that land before any such approval of proposals where the Company has the requisite authority to enter upon and so use the land "; (b) the insertion in sections 18(2), 18(4), 18(5) and 18(7) of the words "or the Company as the case may be" after the words "owner of any land"; (c) the insertion in section 18(3) of the words "or the Company as the case may be" after the words "the owner"; (d) the insertion of the following sentences at the end of section 18(3): " In relation to a notice from the Company the conditions that the Minister may specify can as appropriate include, among other conditions, a condition restricting the Company's use of the relevant land to after the approval or deemed approval as the case may be under the abovementioned agreement of all of the Company's submitted proposals thereunder for the Project (as defined in the abovementioned agreement), or in the case of additional proposals submitted or to be submitted by the Company to after the approval or deemed approval under that agreement of such additional proposals, and to the extent so approved. "; and (e) the insertion in sections 18(2) and 18(5) of the words "or it as the case may be" after the word "he". The Company acknowledges that nothing in this clause 6 nor the granting of any consents under section 18 of the Aboriginal Heritage Act 1972 will constitute or is to be construed as constituting the approval of any proposals submitted or to be submitted by the Company under this Agreement or as the grant or promise of land tenure for the purposes of this Agreement. Railway Corridor 7. (1) As soon as practicable during its studies under clause 5, and from time to time during those studies as required by either the Company or the State, the Company shall consult with the Minister to seek the agreement of the Minister as to: (a) where the SRL Railway will begin and end; (b) a route for the SRL Railway, access roads to be within the Railway Corridor and Additional Infrastructure (if any) which is to be located outside the Port and the land required for that route; (c) if Additional Infrastructure is to be located outside the Port, the nature and capacity of such Additional Infrastructure; and (d) the routes of, and the land required for, roads outside the Railway Corridor for access to it to construct the SRL Railway (such roads as agreed being "Lateral Access Roads"). In seeking such agreement, regard shall be had to achieving a balance between engineering matters including costs, the nature and use of any lands concerned and interests therein and the costs of acquiring the land (all of which shall be borne by the Company). The parties acknowledge the intention is for the Company to construct the SRL Railway, the access roads which are to be within the Railway Corridor and the relevant Additional Infrastructure (if any) along the centreline of the Railway Corridor subject to changes in that alignment to the extent necessary to avoid heritage, environmental or poor ground conditions that are not identified during preliminary investigation work. The provisions of clause 35 shall not apply to this subclause. (2) If the date by which the Company must submit detailed proposals under clause 10(1) is extended or varied by the Minister pursuant to clause 30, any agreement made pursuant to subclause (1) before such date is extended or varied shall unless the Minister notifies the Company otherwise be deemed to be at an end and neither party shall have any claim against the other in respect of it. (3) The Company acknowledges that it shall be responsible for liaising with every title holder in respect of the land affected and for obtaining in a form and substance acceptable to the Minister all consents of each such title holder to, and all statutory consents required in respect of the land affected for: (a) the issue of requisite authority under the LAA pursuant to clause 4 and the undertaking of the matters referred to in clause 5(1); (b) the grant of the Special Railway Licence for the construction, operation and maintenance within the Railway Corridor of the SRL Railway, access roads to be within the Railway Corridor and Additional Infrastructure (if any) to be located outside the Port; and (c) the grant of Lateral Access Road Licences for the construction, use and maintenance of Lateral Access Roads over the routes for the Lateral Access Roads agreed pursuant to clause 7(1), in accordance with this Agreement. For the purposes of this subclause (3), "title holder" means a management body (as defined in the LAA) in respect of any part of the affected land, a person who holds a mining or petroleum right (as defined in the LAA) in respect of any part of the affected land, a person who holds a lease or licence under the LAA in respect of any part of the affected land, a person who holds any other title granted under or pursuant to a Government agreement in respect of any part of the affected land, a person who holds a lease or licence in respect of any part of the affected land under any other Act applying in the said State and a person in whom any part of the affected land is vested, immediately before in respect of paragraph (a) the grant of the authority referred to therein and in respect of paragraphs (b) and (c) the provision of such consents to the Minister as referred to in clause 10(5)(b). (4) The parties acknowledge that, at the date of this Agreement, due to possible constraints on availability of land within the Port for the Railway, it is not settled whether the Railway will continue into the Port or whether it will cease at a point outside the Port, in which case the Company intends to construct a conveyor, train unloading and other infrastructure in order to transport iron ore products, freight goods or other products as the case may be from the Railway to within the Port. It is the preference of the State and the Company that the Railway continue into the Port and the Company shall proceed on that basis if there is land available within the Port for the Railway. Port Facilities 8. (1) As soon as practicable during its studies under clause 5, and from time to time during those studies as required by either the Company or the State, the Company shall consult with the Minister to seek the agreement of the Minister as to: (a) an area of the Port to be the subject of the Port Lease and in which the Port Facilities are to be constructed; (b) if there is to be any Port Additional Infrastructure: (i) an area of the Port (which may be or include part of the Port Facilities Area) to be the subject of the Port Additional Infrastructure Licence and in which the Port Additional Infrastructure is to be constructed; and (ii) the nature and characteristics of the Port Additional Infrastructure, including the capacity of the Port Additional Infrastructure; (c) if any part of the Railway is to be in the Port, an area of the Port to be the subject of the Port Railway Licence and in which that part of the Railway and access roads to be located within the Port Railway Area are to be constructed; and (d) the nature and characteristics of the Port Facilities, including the capacity of the Port Facilities. (2) If the date by which the Company must submit detailed proposals under clause 10(1) is extended or varied by the Minister pursuant to clause 30, any agreement made pursuant to subclause (1) before such date is extended or varied shall unless the Minister notifies the Company otherwise be deemed to be at an end and neither party shall have any claim against the other in respect of it. (3) The provisions of clause 35 shall not app