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Mining (Ok Tedi Mine Continuation (Ninth Supplemental) Agreement) Act 2001

PAPUA NEW GUINEA

Mining (Ok Tedi Mine Continuation (Ninth Supplemental) Agreement) Act 2001.

No. 7 of 2001.
Certified on: 20 DEC 2001

ARRANGEMENT OF SECTIONS.

1. Compliance with constitutional requirements.
2. Interpretation.
3. Approval of agreements.
4. Effect in relation to laws of Papua New Guinea.
5. Environmental undertakings by the State in respect of the project.
6. Ok Tedi Mine Closure and Decommissioning Code to apply to project.
7. Ancillary powers of Minister.
8. Execution of community mine continuation agreements and other acts binding.
9. Additional powers of mining wardens.
10. Master agreement exempt from stamp duty.
11. Tax status of foundation.
12. Commencement.
13. Act binds the State.
FIRST SCHEDULE — Ok Tedi Mine Continuation (Ninth Supplemental) Agreement.
SECOND SCHEDULE — Community Mine Continuation Agreements.
THIRD SCHEDULE — Ok Tedi Mine Closure and Decommissioning Code.

AN ACT

entitled

Mining (Ok Tedi Mine Continuation (Ninth Supplemental) Agreement) Act 2001,

PREAMBLE

WE, the representatives of our People in the National Parliament:

(a) recognizing the economic social and infrastructure benefits of the Ok Tedi mine to the people of Papua New Guinea and particularly to the people of the Western Province; and
(b) recognizing that the original approved proposals for the Ok Tedi mine contemplated the permanent retention of tailings and waste rock but that the tailings dam and engineered waste dumps as originally provided for proved unfeasible and that as a result the State approved measures for the management of tailings and waste rock to ensure the continuation of the Ok Tedi mine; and
(c) recognizing that operating the Ok Tedi mine under these arrangements has resulted in adverse effects on the environment impacting landowners in the environs of, and downstream from, the Ok Tedi mine for which compensation is being paid under the Restated Eighth Supplemental Agreement and other agreements; and
(d) recognizing that there are concerns that the continued operation of the Ok Tedi mine could cause additional adverse environmental impacts, and that the closure of the mine before the expiry of its nominal mine life may be a method of ameliorating and shortening these impacts;
(e) but recognizing:

• (i) that the Ok Tedi mine has made significant contributions to the advancement of the social and economic welfare of the people of Papua New Guinea in general, and the people of Western Province in particular; and
• (ii) that the Ok Tedi mine has generated and is generating a significant part of the gross domestic product and foreign exchange earnings of Papua New Guinea; and
• (iii) that as a result of the Company's activities, public health in the area of influence of the Ok Tedi mine has improved significantly since the Ok Tedi mine commenced operations; and
• (iv) that as a result of the Company's activities, infrastructure has been provided, income and wealth has been generated for the State and Western Province, job opportunities have been created, business development opportunities have been created, better transportation facilities have been provided, and better education and training opportunities have been provided; and

(f) recognizing that the State, BHP Billiton and the Company have consulted widely on the likely impact on the environment of the continued operation of the Ok Tedi mine; and
(g) recognizing that it is the informed view of the Communities affected, as reflected in discussions with the Communities, and all other stakeholders (except BHP Billiton) that the economic social and infrastructure benefits of the Project outweigh any detrimental impact of the continuation of the mine and that therefore the Ok Tedi mine should continue to operate; and
(h) recognizing that BHP Minerals, a majority shareholder in the Company, desires to dispose of its share holding but recognizes the desire of all other major stakeholders in the Ok Tedi mine (including the landowners affected by its operations) for the Ok Tedi mine to continue to operate; and
(i) recognizing that BHP Billiton desires that BLIP Minerals' shareholding in the Company be held for the long term benefit of the people of Papua New Guinea, and particularly for the people of the Western Province; and
(j) taking account of the National Goals and Directive Principles (including, in particular, the goals that Papua New Guinea should, among other things, be economically independent and its economy basically self-reliant and that Papua New Guinea's natural resources and environment should, among other things, be conserved for the collective benefit of all Papua New Guineans); and
(k) taking account of the Basic Social Obligations (including, in particular, the obligations to protect Papua New Guinea and to safeguard the national wealth, resources and environment in the interest not only of the present generation but also of future generations),

have resolved that the following Act should be passed:—

Being an Act to provide for the approval and implementation of the Ok Tedi Mine Continuation (Ninth Supplemental) Agreement relating to the continued development of certain mineral deposits in the Ok Tedi region of the Western Province and for related purposes,

MADE by the National Parliament to come into operation in accordance with Section 12.

1. COMPLIANCE WITH CONSTITUTIONAL REQUIREMENTS.

(1) This Act, to the extent that it regulates or restricts a right or freedom referred to in Subdivision III.3.C (qualified rights) of the Constitution, namely —

(a) the right to freedom from arbitrary search of person or property and entry of premises, conferred by Section 44 of the Constitution; and
(b) the right to freedom from conscience, thought and religion and the practice of a person's religion and beliefs, including freedom to manifest and propagate a person's religion and beliefs in such a way as not to interfere with the freedom of others, conferred by Section 45 of the Constitution; and
(c) the right to freedom of expression and publication conferred by Section 46 of the Constitution; and
(d) the right peacefully to assemble and associate and to form or belong to, or not to belong to, political parties, industrial organizations and other associations conferred by Section 47 of the Constitution; and
(e) the right to freedom of choice of employment in any calling for which a person has the qualifications (if any) lawfully required conferred by Section 48 of the Constitution,

is a law that is made (pursuant to Section 38 of the Constitution) -

(f) taking account of the National Goals and Directive Principles (including, in particular, the goals that Papua New Guinea should, among other things, be economically independent and its economy basically self-reliant and that Papua New Guinea's natural resources and environment should, among other things, be conserved and used for the collective benefit of all Papua New Guineans) and the Basic Social Obligations (including, in particular, the obligations to protect Papua New Guinea and to safeguard the national wealth, resources and environment in the interests not only of the present generation but also of future generations), for the purpose of giving effect to the public interest in public safety, public order, public welfare, the protection of children and persons under disability (whether legal or practical) and the development of underprivileged or less advanced groups or areas; and
(g) in order to protect the exercise of the rights and freedom of others; and
(h) to make provision for cases where the exercise of one such right may conflict with the exercise of another.

(2) Insofar as this Act involves a compulsory taking of possession of property or a compulsory acquisition of an interest in or right over property within the meaning of Section 53 of the Constitution -

(a) the purposes and reasons for each such taking and acquisition are declared and described to be —

• (i) to facilitate the efficient and economical development and operation of the Project so that, as recorded in the Preamble, it might continue its significant contributions to the advancement of the social and economic welfare of the people of Papua New Guinea in general and the people of Western Province in particular, including, without limitation, the contributions recorded in the Preamble; and
• (ii) better to give effect to the other matters set out in, and in the recitals to, the Ok Tedi Mine Continuation (Ninth Supplemental) Agreement, and in the recitals to the agreements set out in the schedules to the other Acts referred to in Subsection (4),

and each of those purposes and reasons is hereby also declared to be described as -

• (iii) a public purpose; and
• (iv) a reason that is reasonably justified in a democratic society that has a proper regard for the rights and dignity of mankind,

for the purposes of Section 53 of the Constitution and for the purposes of any other relevant law; and
(b) the obligations undertaken by the Company under the Principal Agreement, including in particular, but without limitation, those provisions of the Principal Agreement that are inserted by the Ok Tedi Mine Continuation (Ninth Supplemental) Agreement and the obligations of the Company under the Community Mine Continuation Agreements, constitute compensation procured (and accordingly made) by, and made on behalf of, the State in connection with each such taking and acquisition.

(3) This Act, to the extent that it creates or otherwise gives rise to rights, privileges, obligations and duties that are not the same as between citizens, is intended to be a law for the special benefit, welfare, protection and advancement of members of underprivileged and less advanced groups and residents of less advanced areas for the purposes of Section 55 of the Constitution.

(4) For the purposes of any Organic Law from time to time and for the time being implementing Part VIA of the Constitution, it is hereby declared that each of the following Acts relates, in its entirety, to a matter of urgent national interest:-

(a) the Mining (Ok Tedi Agreement) Act (Chapter 363);
(b) the Mining (Ok Tedi Supplemental Agreement) Act (Chapter 363A);
(c) the Mining (Ok Tedi Second Supplemental Agreement) Act (Chapter 363B);
(d) the Mining (Ok Tedi Third Supplemental Agreement) Act (Chapter 363C);
(e) the Mining (Ok Tedi Fourth Supplemental Agreement) Act (Chapter 363D);
(f) the Mining (Ok Tedi Fifth Supplemental Agreement) Act (Chapter 363E);
(g) the Mining (Ok Tedi Sixth Supplemental Agreement) Act 1986;
(h) the Mining (Ok Tedi Agreements) (Amendment) Act 1986;
(i) the Mining (Ok Tedi Seventh Supplemental Agreement) Act 1986;
(j) the Mining (Restated Eighth Supplemental Agreement) Act 1995; and
(k) this Act,

and it is further declared that this Act deals with a matter of urgent national importance and it is in the national interest that this Act be made without delay.

2. INTERPRETATION.

(1) Unless otherwise defined in this Act, words and expressions which are given a certain meaning in the Principal Agreement or in the Ok Tedi Mine Continuation (Ninth Supplemental) Agreement are used in this Act with the same meanings.

(2) In this Act, unless the contrary intention appears—

"Affiliate" in relation to a corporation means any corporation which is related to that corporation within the meaning of the Companies Act 1997;
"BHP Billiton Party" means BHP Billiton and its Affiliates (except the Company) and its and their directors, officers, employees and agents and former directors, officers, employees and agents;
"Commencement Date" means the date on which this Act is certified by the Speaker of the National Parliament;
"Community" means residents of a village in one of the 6 geographical areas impacted by the Project known respectively as "Mine Area", "Highway", "Upper Ok Tedi", "Lower Ok Tedi", "Middle Fly" and "South Fly", and "Communities" means residents of any number of such villages;
"Community Mine Continuation Agreement" means an agreement between the Company and specified Communities which is—

• (a) entered into before the Termination Date; and
• (b) substantially in the form of, and with one or more of the Communities named in, the relevant agreement set out in the Second Schedule completed in each case with the necessary details where indicated, and with each agreement containing so many of the optional provisions as the parties to that agreement determine; and
• (c) certified prior to the Termination Date by the Minister under Section 7(1) for identification purposes to be a Community Mine Continuation Agreement for the purposes of this Act;

"Contaminant" has the meaning set out in the Environment Act 2000;
"Effective Date" has the meaning set out in the Master Agreement;
"Environmental Claim" means any claim made for a breach of or a failure to observe an Environmental Requirement;
"Environmental Law" means all legislation which directly or indirectly relates to or affects the environment and which, but for the operation of the Principal Agreement, would apply to the Project;
"Environmental Requirement" means any law or regulation, including without limitation any Environmental Law, and any notice, order, direction, requirement, prohibition or condition under any Environmental Law, which governs or relates to the control, use, treatment or handling of dangerous substances, the discharge or release of Contaminants or the protection of the environment from damage from Pollution, and includes the environmental requirements of the Principal Agreement;
"Foundation" means Ok Tedi Development Foundation Limited established under Clause 6 of the Ok Tedi Mine Continuation (Ninth Supplemental) Agreement;
"Government Agency" includes any National, Provincial or Local-level Government and any minister, department, office, commission delegate, instrumentality, agency, board or authority thereof, or corporation wholly owned thereby, whether statutory or otherwise, and any person or body with delegated authority from any such body;
"Master Agreement" means an agreement of that title dated on or about the date of the Ok Tedi Mine Continuation (Ninth Supplemental) Agreement between the State, MROT, BHP Billiton, BHP Minerals, IMC, the Company and the Program Company;
"Mining Warden" means a warden appointed under the Mining Act 1992;
"Ok Tedi Mine Closure and Decommissioning Code" or "the Code" means the code which is set out in the Third Schedule;
"Ok Tedi Mine Continuation (Ninth Supplemental) Agreement" means the supplemental agreement a copy of which is set out in the First Schedule;
"Pollution" means environmental harm caused by the release of a Contaminant into the environment;
"Principal Agreement" means the agreement a copy of which is set out in the Schedule to the Mining (Ok Tedi Agreement) Act (Chapter 363) as varied, amended and supplemented by the agreements respectively set out in the Schedules to the Acts referred to in Sections 1(4)(b), (c), (d), (e), (f), (g), (i) and (j) and by the Ok Tedi Mine Continuation (Ninth Supplemental) Agreement;
"Proceedings" means any civil, administrative or criminal action to enforce a penalty or recover costs, expenses, damages or compensation, and includes any inquiry, commission of inquiry or investigation of any kind;
"Program" means the program referred to in recital J(a) of the Ok Tedi Mine Continuation (Ninth Supplemental) Agreement;
"Program Company" means PNG Sustainable Development Program Limited, a company incorporated in Singapore;
"Termination Date" has the meaning set out in the Master Agreement.

3. APPROVAL OF AGREEMENTS.

(1) The Ok Tedi Mine Continuation (Ninth Supplemental) Agreement is approved and has effect according to its tenor.

(2) The Community Mine Continuation Agreements (including all schedules and annexures thereto) are approved and have effect according to their tenor.

4. EFFECT IN RELATION TO LAWS OF PAPUA NEW GUINEA.

(1) The Ok Tedi Mine Continuation (Ninth Supplemental) Agreement (including all schedules and annexures thereto) has the force of law for the full term provided for therein and applies notwithstanding-

(a) anything to the contrary in any other law in force in the country; or
(b) that the agreement might, but for this Act, be wholly or partly unenforceable.

(2) The Community Mine Continuation Agreements (including all schedules and annexures thereto) have the force of law for the full term provided for therein and apply notwithstanding—

(a) anything to the contrary in any other law in force in the country, or
(b) that any such agreement might, but for this Act, be wholly or partly unenforceable.

(3) Nothing in this Act affects the operation of the Mining (Ok Tedi Restated Eighth Supplemental Agreement) Act 1995.

(4) The Community Mine Continuation Agreements represent the final and binding agreement between the parties thereto on compensation and benefits payable to such of them as are affected by the Project.

(5) The fact that the Company has entered into the Community Mine Continuation Agreements does not derogate from the effect of the releases contained in and the compensation regime established by the Mining (Ok Tedi Agreement) Act (Chapter 363) (as amended and supplemented) in relation to any community which does not enter into such an agreement.

(6) The Fairness of Transactions Act 1993 has no application to any agreement given the force of law by this Act or by any of the Acts referred to in Section 1(4).

(7) A party to the Ok Tedi Mine Continuation (Ninth Supplemental) Agreement or other beneficiary of a provision of a Community Mine Continuation Agreement may enforce that provision as if it were a party to that Community Mine Continuation Agreement.

5. ENVIRONMENTAL UNDERTAKINGS BY THE STATE IN RESPECT OF THE PROJECT.

(1) Subject to Subsection (3), neither the State nor any Government Agency may take, pursue or in any way support Proceedings against a BHP Billiton Party in respect of an Environmental Claim relating to the operation of the Project.

(2) This section may be pleaded by a BHP Billiton Party as an absolute bar and defence to any Proceedings taken by the State or a Government Agency in breach of its terms.

(3) Subsections (1) and (2) do not apply to an Environmental Claim in respect of the acts or omissions of a BHP Billiton Party during the provision by that BHP Billiton Party of services to the Company after the Effective Date.

6. OK TEDI MINE CLOSURE AND DECOMMISSIONING CODE TO APPLY TO PROJECT.

(1) Subject to Subsection (2), the Ok Tedi Mine Closure and Decommissioning Code, and the mine closure plan approved under the Code, apply in respect of the operation of the Project after the Commencement Date to the exclusion of anything inconsistent with them in the Principal Agreement and any other laws or regulations applying to mine closure whether in force before or after the Commencement Date.

(2) The provisions of the Principal Agreement and any other laws relating to the mine closure and decommissioning which apply to the Project on the Commencement Date continue to apply until a mine closure plan is approved under the Ok Tedi Mine Closure and Decommissioning Code.

7. ANCILLARY POWERS OF MINISTER.

(1) The Minister may certify that an agreement between or purporting to be between the Company and one or more Communities substantially in the form of one of the agreements set out in the Second Schedule, completed in each case with the necessary details where indicated, and with each agreement containing so many of the optional provisions as the parties to that agreement determine, is a Community Mine Continuation Agreement for the purposes of this Act.

(2) Notwithstanding anything in any other law in force in the country at any time (whether before or after the commencement of this Act), the Minister has power, on behalf of the State, to make all grants, issues, renewals and extensions required by or under the Ok Tedi Mine Continuation (Ninth Supplemental) Agreement to be made by the State, and is not bound in that regard by any provisions of any such law requiring or permitting any authority, consent, approval, report, recommendation, appeal, procedure or formality, or by any similar provisions.

(3) The Minister shall cause to be published in the National Gazette the date which is determined to be the Termination Date under the terms of the Master Agreement.

8. EXECUTION OF COMMUNITY MINE CONTINUATION AGREEMENTS AND OTHER ACTS BINDING.

(1) The signature or other execution of a Community Mine Continuation Agreement by a person representing or purporting to represent a Community or clan, or that person's delegate, binds all of the members of that Community or clan to that Community Mine Continuation Agreement notwithstanding -

(a) that there is no express authority for that person to sign or execute the Community Mine Continuation Agreement on behalf of the members of the Community or clan concerned; or
(b) that not all representatives of the relevant Community or clan have signed or otherwise executed the Community Mine Continuation Agreement; or
(c) that not all members of the Community are parties to the Community Mine Continuation Agreement; or
(d) any requirement of the Underlying Law.

(2) The acts and deeds of a person described in Subsection (1) in respect of any matter referred to in the relevant Community Mine Continuation Agreement bind each person on behalf of whom that person purports to be acting, and where a person purports to be acting on behalf of the whole of that person's Community or clan, that person's acts and deeds bind each existing and future member of that person's Community or clan, including, without limitation, children and persons who are subsequently born into, or who subsequently join, that Community or clan.

9. ADDITIONAL POWERS OF MINING WARDENS.

(1) A Mining Warden has, in addition to the functions and powers conferred by the Mining Act 1992, the powers and functions conferred by this Act and the Principal Agreement.

(2) In the case of a dispute, a certificate by a Mining Warden that -

(a) a person represents a particular Community or clan; or
(b) a person is a delegate of a person representing a particular Community or clan; or
(c) a person is a member of a Community or clan,

is conclusive evidence of that fact.

10. MASTER AGREEMENT EXEMPT FROM STAMP DUTY.

The Master Agreement is not subject to stamp duty under the Stamp Duties Act (Chapter 117).

11. TAX STATUS OF FOUNDATION.

(1) For the purposes of the Income Tax Act 1959 -

(a) the income of the Foundation is exempt from income tax; and
(b) moneys paid or the costs of assets contributed to the Foundation may be claimed, and will be allowed, as a deduction to the person who made the payment or contribution in the year of payment or contribution, as the case may be.

(2) For the purposes of the Value Added Tax Act 1998, tax on all supplies made by the Foundation is to be charged at a rate of zero percent.

12. COMMENCEMENT.

This Act shall come into operation -

(a) in respect of Sections 3(2) and 4(2) — on the Termination Date; and
(b) in respect of Section 5 — on the Effective Date; and
(c) in respect of the remainder — on the Commencement Date.

13. ACT BINDS THE STATE.

This Act binds the State.

FIRST SCHEDULE

OK TEDI MINE CONTINUATION (NINTH SUPPLEMENTAL) AGREEMENT

—Between —

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

MINERAL RESOURCES OK TEDI NO.2 LIMITED

BHP BILLITON LIMITED

BHP MINERALS HOLDINGS PROPRIETARY LIMITED

INMET MINING CORPORATION

and

OK TEDI MINING LIMITED

THIS OK TEDI MINE CONTINUATION (NINTH SUPPLEMENTAL) AGREEMENT is made the [..........] day of [.......] 2001

PARTIES

(1) THE INDEPENDENT STATE OF PAPUA NEW GUINEA (the State)
(2) MINERAL RESOURCES OK TEDI No 2 LIMITED a company incorporated in Papua New Guinea (MROT)
(3) BHP BILLITON LIMITED (ABN 49 004 028 077) a company incorporated in the State of Victoria in the Commonwealth of Australia (BHP Billiton)
(4) BHP MINERALS HOLDINGS PROPRIETARY LIMITED (ABN 43 005 744 025), a company incorporated in the State of Victoria in the Commonwealth of Australia (BHP Minerals)
(5) INMET MINING CORPORATION a corporation incorporated in the Province of Ontario, Canada (IMC) and
(6) OK TEDI MINING LIMITED a company incorporated in Papua New Guinea (the Company)

BACKGROUND:

A. By an agreement dated 22 March 1976 the State granted, and the Company subsequently acquired, the right, amongst others, to undertake the Project involving the exploitation of the Ok Tedi Deposits and the development of the Ok Tedi mine in accordance with Approved Proposals.

B. The agreement referred to in recital A has been amended and supplemented by a number of supplemental agreements.

C. The Approved Proposals contemplated the permanent retention of tailings and waste rock.

D. The tailings dam and engineered waste dumps in the Approved Proposals proved unfeasible and the State approved certain measures for the management of tailings and waste to allow the mine to continue.

E. The continued operation of the mine under the measures for management of tailings and waste has had adverse impacts on the environment and hence on the landowners in the vicinity of and downstream from the mine's operations for which the affected landowners are receiving compensation under the Restated Eighth Supplemental Agreement and other agreements.

F. Recent studies have expressed the view that continued operation of the mine may continue to have adverse impacts on the environment and that closure of the mine could be a method of ameliorating those impacts.

G. The Company and the State have conducted widespread consultations among the various stakeholders as to the future impact of the mine on the environment, including the landowners affected by its operations.

H. It is the view of all stakeholders (other than BHP Billiton) that having regard to the economic, social and infrastructure benefits accruing from the mine the mine should continue to operate notwithstanding any detrimental impact.

I. In the circumstances BHP Billiton has decided to terminate existing management arrangements with the Company and determined that its subsidiary BHP Minerals should dispose of its shareholding in the Company.

J. Therefore it has been agreed between the parties:

(a) that BHP Billiton will establish a program to promote and support sustainable development within Papua New Guinea and particularly in the Western Province to be known as the PNG Sustainable Development Program;
(b) that BHP Minerals will transfer its shareholding in the Company to the Program Company;
(c) that the State will not, and will procure that a Government Agency will not, take Proceedings against a BHP Billiton Party in respect of Environmental Claims in respect of the operation of the Project;
(d) that the Community Mine Continuation Agreements will be given the force of law;
(e) that the Interim Management Agreement between BHP Billiton and the Company will be terminated;
(f) that the Company will establish the Ok Tedi Development Foundation Limited;
(g) that a new environmental regime will apply to the Project;
(h) that a new code governing mine closure and the decommissioning phase for the mine, including the establishment of a sinking fund to cover closure and decommissioning costs, will apply to the Project; and
(i) that for these and related purposes the parties would enter into this agreement.

K. The parties have agreed that certain provisions of this agreement, being those provisions set out in Part 2, will come into operation notwithstanding that the balance of the agreement, being those provisions set out in Part 1, may never come into operation.

OPERATIVE PROVISIONS

PART 1

1. CONTINUATION OF PROJECT

1.1 Agreement for Continuation of Project

The State and the Company, having conducted the first review required by clause 29G of the Principal Agreement and considered the views of the communities affected by the operation of the Project, and after an extensive review by the State of the views of all other relevant stakeholders, the State has determined with the concurrence of IMC that, as in its view the economic and social benefits outweigh any detriment caused by continuing the operations of the mine, the Project should continue in accordance with the Principal Agreement as amended and supplemented by this agreement.

1.2 BHP Billiton's Position

(a) BHP Billiton has decided that BHP Billiton and its Affiliates (excepting the Company) will not continue as a participant in the Project. Accordingly BHP Billiton has;

(i) established the Program;
(ii) agreed that BHP Minerals will on the Effective Date transfer its shareholding in the Company to the Program Company; and
(iii) agreed with the other shareholders of the Company and with the Company that the Interim Management Agreement will terminate on the Effective Date.

(b) As from the Effective Date BHP Billiton, BHP Minerals and their respective Affiliates (excepting the Company) cease to have any obligations, responsibilities or liabilities as a Sponsor, as a Corporate Sponsor or as a Party to the Principal Agreement.

(c) Nothing in this agreement affects BHP Billiton's or BHP Minerals' rights under the Principal Agreement.

2. COMPLIANCE WITH INVESTMENT PROMOTION ACT 1992

(a) Notwithstanding anything to the contrary expressed in or implied by the Investment Promotion Act 1992, the Program Company is deemed to have been granted a certificate under Part IV of the Investment Promotion Act 1992, effective from the Effective Date, in respect of all of the activities to be carried on by it in Papua New Guinea.

(b) For the avoidance of doubt it is recorded that Section 32 of the Investment Promotion Act 1992 does not apply to the Program Company.

2A. AMENDMENT TO PRINCIPAL AGREEMENT

Clause 11.9 of the Principal Agreement is deleted and replaced by the following clause:

"11.9 The State's rights to appoint directors of the Company are set out in the Constitution of the Company:"

PART 2

3. OPERATION OF THIS AGREEMENT

(a) Part 1 of this agreement comes into operation on the Effective Date.

(b) Part 2 of this agreement comes into operation on the Commencement Date.

4. DEFINITIONS AND INTERPRETATION

4.1 Definitions in other agreements:

Unless otherwise defined in this agreement words and expressions which are given a particular meaning in:

(a) the Act;
(b) the Principal Agreement; or
(c) the First Supplemental Agreement,

are used in this agreement with the same meaning.

4.2 Definitions

In this agreement, unless the context requires otherwise:

Act means the Mining (Ok Tedi Mine Continuation (Ninth Supplemental) Agreement) Act.

First Supplemental Agreement means the agreement a copy of which is set out in the schedule to the Mining (Ok Tedi Supplemental Agreement) Act (Chapter 363A) as the same may be modified, amended, supplemented or restated in accordance with the terms applicable thereto.

Interim Management Agreement means the agreement made as of 1 October 2000 between the Company and BHP Billiton, as extended by deed on 27 September 2001, under which BHP Billiton provides management services to the Company.

4.3 Interpretation

In this agreement unless the context requires otherwise:

(a) clause and subclause headings are for reference purposes only;
(b) the singular includes the plural and vice versa;
(c) words denoting any gender include all genders;
(d) reference to a person includes any other entity recognised by law and vice versa;
(e) where a word or phrase is defined its other grammatical forms have a corresponding meaning;
(f) any reference to a party to this agreement includes its successors and permitted assigns;
(g) any reference to any agreement or document includes that agreement or document as amended at any time;
(h) the use of the word includes or including is not to be taken as limiting the meaning of the words preceding it;
(i) the expression at any time includes reference to past, present and future time and the performance of any action from time to time;
(j) an agreement, representation or warranty on the part of two or more persons binds them jointly and severally;
(k) an agreement, representation or warranty in favour of two or more persons is for the benefit of them jointly and severally;
(l) reference to an exhibit, annexure, attachment or schedule is a reference to the corresponding exhibit, annexure, attachment or schedule in this agreement; and
(m) reference to a statute includes all regulations and amendments to that statute and any statute passed in substitution for that statute or incorporating any of its provisions to the extent that they are incorporated.

5. CONDITION PRECEDENT

5.1 Substantial variation to Principal Agreement

The parties declare that this agreement constitutes a material or substantial alteration of the Principal Agreement and accordingly under clause 42.2 of the Principal Agreement the State must as soon as is reasonably practicable introduce and sponsor in the National Parliament a Bill for an Act to approve this agreement, such Bill to be in a form agreed by the parties.

5.2 Operation of agreement

This agreement, other than this clause 5, has no effect until the Bill referred to in clause 5.1 is passed as an Act and comes into operation.

6. ESTABLISHMENT OF OK TEDI DEVELOPMENT FOUNDATION LIMITED

6.1 Definitions

In this clause 6, unless the contrary intention appears —

Authorised Program means:

(a) a Rural and Economic Development Program;
(b) a Provincial and Community Development Planning Program;
(c) an Infrastructure Development Program; or
(d) any other program approved by the board which is consistent with the Objects.

board means the board of directors of the Foundation from time to time.

Constitution means the constitution of the Foundation.

Companies Act means the Companies Act 1997.

Director means a person appointed to, or holding, the office of director of the Foundation in accordance with this agreement and the Constitution and where appropriate includes an alternate Director.

Foundation means Ok Tedi Development Foundation Limited being a company incorporated under the Companies Act.

Infrastructure Development Program means a program for the construction of regional public works planned in accordance with the Provincial and Community Development Planning Program within the Relevant Area and the promotion of the capacity to undertake such works, including (without limitation):

(a) the construction of roads, bridges, schools, hospitals, aid posts and other infrastructure to be available for the use or benefit of any Relevant Person;
(b) the maintenance of the infrastructure referred to in paragraph (a);
(c) the provision of resources to the Department of Public Works to enable it to undertake such construction and maintenance, including the procurement or provision of management and construction expertise.

Objects means the promotion of sustainable social improvement and economic activity in the Relevant Area, through the implementation of the Authorised Programs, for the well being of the Relevant Persons.

Provincial and Community Development Planning Program means a program for the planning and co-ordination of economic and social development within the Relevant Area, including (without limitation):

(a) assisting in the development and on-going review of 5 year rolling development plans at a local government level;
(b) assisting in the development and on-going review of a 5 year rolling development plan at a provincial government level;

Relevant Area means the Western Province and the Telefomin district of Sandaun (West Sepik) Province.

Relevant Person means a person resident within the Relevant Area at the relevant time.

Rural and Economic Development Program means a program for the development of livelihoods of a sustainable nature for the Relevant Persons generated through the pursuit of opportunities in the areas of agriculture (whether or not on a subsistence or commercial level), sustainable forestry and small business.

securities includes shares, stock, rights to shares or stock, options to acquire shares or stock and other securities with rights of conversion to equity and debentures, debenture stock, and notes.

share means a share in the capital of the Foundation.

shareholder means a person whose name is entered on the register of members as the holder for the time being of one or more shares and who may only be a person required or permitted by this agreement to be a holder of shares.

6.2 Establishment of Foundation

Not later than 1 month after the Effective Date the Company must apply, as the original shareholder of the Foundation, to register the Foundation in accordance with this agreement and the Companies Act.

6.3 Application of the Companies Act

The Companies Act applies to the Foundation except to the extent that it is inconsistent with this agreement, in which case this agreement applies to the extent of that inconsistency.

6.4 Objects

(a) The Foundation must act solely in pursuit of the Objects and for no other object or purpose whatsoever.

(b) The Foundation must pursue the Objects only through Authorised Programs.

(c) The Foundation may not make any distributions to its shareholders and must re-invest all profits in the furtherance of its Objects.

6.5 Shareholders of the Foundation

(a) The share capital of the Foundation is to comprise 4 shares held by the Company as the initial shareholder.

(b) The Company must:

(i) before closure of the Ok Tedi mine; and
(ii) after consultation with the Department of Mining and the Department of National Planning and Monitoring,

endeavour to identify four reputable organizations engaged in development activities in Papua New Guinea consistent with the Objects that will accept the transfer of one share in the Foundation, and transfer its shares accordingly.

(c) If the Company is unable to identify four such organizations the Foundation must be wound up prior to closure of the Ok Tedi mine.

(d) Where a non-Company shareholder ceases to exist or is wound up, its share in the Foundation is deemed to have been redeemed by the Foundation from the date of such cessation or winding up.

(e) Where any non-Company shareholder ceases to exist or is wound up, the Foundation may issue a share to such other person as the board reasonably considers has objectives consistent with those of the shareholder who has ceased to exist or is wound up.

(f) The shareholders must not transfer their share to any person, and the Foundation must not register the transfer of any share to any person, unless permitted by this agreement.

(g) The Foundation must not issue any shares or other securities to any person or in any way alter its capital except to the extent permitted by this agreement.

6.6 Directors

(a) While it is the shareholder the Company may appoint 4 directors, one of whom is the Executive Director, and 2 of whom must be representatives of Government departments or non-government organizations whose purposes are relevant to the Objects.

(b) For the avoidance of doubt, the directors are subject to the duties contained in the Companies Act as modified to the extent necessary to reflect the Objects and this agreement.

6.7 Constitution

(a) The initial shareholder must adopt a constitution for the Foundation which, in addition to this agreement and the Companies Act, will govern the rights, powers, duties and obligations of the Foundation, the board, each Director and each shareholder.

(b) The Constitution must be consistent with this agreement, and to the extent that there is any inconsistency between this agreement and the Constitution, this agreement prevails to the extent of such inconsistency.

6.8 Source of Funds

(a) The Foundation may accept moneys or other property that may be transferred to, or vested in, the Foundation by:

(i) the Company;
(ii) the State;
(iii) non-government organisations;
(iv) government organisations; and
(v) any other person;

provided that such money or property is accepted on terms and conditions which are not inconsistent with this agreement, including (without limitation) the Objects.

(b) The Foundation may not have borrowings of more than 100,000 kina in total at any time.

7. NEW ENVIRONMENTAL REGIME FOR THE OK TEDI MINE

7.1 Definitions

In this clause 7 unless the context requires otherwise:

Approved Proposals has the meaning given to it in clause 1 of the Principal Agreement.

Change Notice means a notice given by the Company to the State under clause 29.2 of the Principal Agreement.

Current Approved Proposals means those Approved Proposals which at the Commencement Date deal with environmental monitoring and reporting, and without limiting the generality of that expression include the Acceptable Particulate Level monitoring regime introduced in 1990 based on the Sixth Supplemental Agreement Environment Study and the environmental monitoring requirements suspended by the State by Change Notice 48/4.2;22/29.2 of 6th September 2000

New Environmental Regime means the document presented by the Company to the State on 14 September 2001 entitled "Proposed Environmental Regime" and which sets out a master environmental management and reporting regime and which was supported by 4 internal annual environmental management and reporting programs (which do not form part of the New Environmental Regime) relating to acid rock drainage management, riverine aquatic management, riverine terrestrial ecology management and industrial site monitoring.

7.2 New Environmental Regime to be treated as Change Notice

(a) The New Environmental Regime is deemed to be a Change Notice numbered and called "Change Notice No.: 49/4.2; 23/29.2 — New Environmental Regime".

(b) The State agrees that it will within 30 days of the Commencement Date approve the New Environmental Regime which from the date of such approval becomes Approved Proposals.

(c) From the date the New Environmental Regime is approved the Current Approved Proposals cease to have any force or effect.

7.3 Amendment to Approved Proposals

The schedule to Approval. No.: 48/4.2; 22/29.2 — Tailings System Further Amendment is amended so that the reference to "the APL" is, from the date on which the New Environmental Regime comes into operation, a reference to the New Environmental Regime.

7.4 Updates of environmental management and reporting programs

The annual environmental management and reporting programs that support the New Environmental Regime are to be reviewed by the Company annually and, where necessary, updated.

8. AMENDMENTS TO PRINCIPAL AGREEMENT AND FIRST SUPPLEMENTAL AGREEMENT

(a) Clause 40 of the Principal Agreement is amended by adding the following:

"40.6 Notwithstanding the foregoing, it is agreed that the Company may mortgage, charge or assign by way of security or otherwise encumber:

• (i) any and all unrefined copper and gold concentrates produced by it; and
• (ii) its rights, title, benefit and interest, whether present or future, proprietary, contractual or otherwise,
  • (A) arising out of, or in, to or under, any contracts for the sale of such concentrate; and
  • (B) a United States Dollar collection account in the name of the Company with Westdeutsche Landesbank Girozentrale, any other bank or financial institution approved by the Minister or any of the successors, assigns or transferees of Westdeutsche Landesbank Girozentrale or such other bank or financial institution;
• to secure obligations or liabilities of the Company under or in respect of the US$120,000,000 loan and guarantee facility to be provided to the Company by Westdeutsche Landesbank Girozentrale, or any other financing facility approved by the Minister and provided to the Company by one or more banks or financial institutions, including, without limiting the generality of the foregoing, obligations or liabilities of the Company to repay, and pay interest and other fees, costs and expenses related to, loans raised or borrowed. This Clause 40 does not apply to any such mortgage, charge, assignment or encumbrance."

(b) Clauses 29.14 and 29.15 of the Principal Agreement and clause 9.3 of the First Supplemental Agreement cease and have no further force and effect from the date the provisions of clause 7 come into operation.

(c) The Principal Agreement is amended so that references to the Minister in relation to the approval of a Change Notice in respect of environmental management of the Project is, after the Commencement Date, a reference to the Minister for Environment and Conservation.

(d) The Principal. Agreement is amended by deleting from Clause 23.1 the definition of "Tax Year" and by substituting the following:

"Tax Year means:

• (a) each successive period of twelve months that ends on 31 December, the last such period being the period that ended on 31 December 1993;
• (b) the period of five months that ended on 31 May 1994;
• (c) each successive period of twelve months that ends on 31 May, the first such period being the period that ended on 31 May 1995 and the last such period being the period that ended on 31 May 1999;
• (d) the period of thirteen months that ended on 30 June 2000; and
• (e) each successive period of 12 months that ends on 30 June, the first such period being the period that ended on 30 June 2001,

being, in each such case, a year of income for the Company."

2. GENERAL PROVISIONS

2.1 Costs

Each party must pay its own costs in relation to:

(a) the negotiation, preparation, execution, performance, amendment or registration of, or any consent given or made; and
(b) the performance of any action by that party in compliance with any liability arising,

under this agreement, or any agreement or document executed or effected under this agreement, unless this agreement provides otherwise.

2.2 Duties

(a) The Company must promptly within the initial applicable period prescribed by law pay any duty payable in relation to the execution, performance and registration of this agreement.

(b) The Company must indemnify all other parties against any loss incurred by them in relation to any duty specified in this provision, whether through default by the Company under this provision or otherwise.

2.3 Assignment

A party must not transfer any right or liability under this agreement without the prior consent of each other party, except where this agreement provides otherwise.

2.4 Governing Law and Jurisdiction

(a) This agreement is governed by the laws of Papua New Guinea

(b) Subject to paragraph (d), any legal action in relation to this agreement against any party or its property may be brought in any court of competent jurisdiction in Papua New Guinea.

(c) The parties by their execution of this agreement unconditionally and irrevocably submit to the non-exclusive jurisdiction of the Courts of Papua New Guinea.

(d) Nothing in this clause affects the operation of clause 38 of the Principal Agreement.

2.5 Amendments

Any amendment to this agreement has no force or effect, unless effected by an agreement executed by the parties.

2.6 Further assurance

Each party must execute any document and perform any action necessary to give full effect to this agreement, whether before or after performance of this agreement.

2.7 Continuing performance

The provisions of this agreement do not merge with any action performed or document executed by any party for the purposes of performance of this agreement.

2.8 Waivers

Any failure by any party to exercise any right under this agreement does not operate as a waiver and the single or partial exercise of any right by that party does not preclude any other or further exercise of that or any other right by that party.

2.9 Remedies

The rights of a party under this agreement are cumulative and not exclusive of any rights provided by law.

2.10 Counterparts

This agreement may be executed in any number of counterparts, all of which taken together are deemed to constitute one and the same agreement.

Executed as an Agreement

SECOND SCHEDULE

Pro Forma Community Mine Continuation Agreements

COMMUNITY MINE CONTINUATION AGREEMENT MINE AREA

THIS COMMUNITY MINE CONTINUATION AGREEMENT is made as of the ............day of ...............2001

BETWEEN:

OK TEDI MINING LIMITED ("the Company")

AND

EACH OF THE MEMBERS OF THE COMMUNITIES OF

1. Atemkit
2. Kavarabip
3. Finalbin
4. Bultem
5. Wangbin, and
6. Migalsimbip, [or such of them whose representatives execute this Agreement] in the vicinity of the Ok Tedi Mine in the Western Province (together "the Communities")

WHEREAS:

A. The Company operates the Ok Tedi Mine which has been in production since 1984 and which has a potential remaining economic life of approximately 10 years.

B. The Mine has brought benefits to the Communities, the Western Province and Papua New Guinea.

C. The Company has conducted the Mine Waste Management Project to assist it in ascertaining the possible future impact of continuing operations of the Ok Tedi Mine. The MWMP has resulted in Environmental Predictions that future environmental impacts are likely to occur in downstream regions occupied by the Downstream Communities as a result of continuing the operations of the Mine.

D. To date the Company has been unable to find a system of permanently storing tailings and waste that is technically and economically viable.

E. The State is considering the future of the Mine in light of the Environmental Predictions, including whether it should continue to operate and if so for how long and on what terms. Neither the Company nor the Communities consider that the Mine should continue to operate without the informed agreement of the Downstream Communities and the Communities and the authorisation of the State.

F. The Communities and the Company have engaged in Consultations about the future of the Mine and in particular whether the Mine should continue to operate or be closed, and signed the Heads of Agreement.

G. The Communities recognise that in light of the Environmental Predictions continuation of the Mine requires the informed consent of the Downstream Communities, and that the Downstream Communities are entitled to receive appropriate compensation and benefits from the Company.

H. Subject to the Condition Precedent, the Parties wish to record their respective commitments to facilitate mine continuation and the optimum use of available benefits streams over the remaining life of the Mine for the purpose of establishing self - sustaining economic benefits and development for the Communities, and have reviewed the Additional Compensation and Benefits Package Agreement.

I. For the Company and the State to decide that the continuing Mine operations are economically viable, there must be reasonable certainty as to the cost of its operations, including compensation and benefits to the Communities, and the Parties therefore intend this Mine Continuation Agreement to be the complete, final and binding basis on which the Parties agree to support the continued operation of the Mine through to its closure.

J. The State has agreed to give this agreement the force of law by enacting the Mine Continuation Act.

THE PARTIES AGREE AS FOLLOWS:

DEFINITIONS

1. In this Agreement; including the Recitals, the following definitions apply:

"Additional Compensation and Benefits Package Agreements" means the agreements with that title between the Company and each of the Communities dated on or about 14 April 1997.
"BHP" means BHP Billiton Limited
"Condition Precedent" means the condition precedent in Clause 3.1
"Community Mine Continuation Agreements" means agreements between the Company and the Interested Communities by which each Interested Community gives its informed consent to the continuation of operations of the Mine, and includes this Agreement.
"Company's Shareholders" means BHP Minerals Holdings Proprietary Limited, Inmet Mining Corporation, the State, Mineral Resources Ok Tedi No.2 Limited and all past and future shareholders.
"Consultations" means the meetings and discussions which have taken place between officers of the State, the Company and the Communities, in which the Company has presented information to the Communities on the results of the MWMP and the options for the future of the Mine. Further particulars of the Consultations are contained in Schedule 1.
"Downstream Communities" means the collective residents of the villages in the highway, Lower Ok Tedi, North Ok Tedi, Middle Fly and South Fly areas.
"Environmental Predictions" means the predictions that have been drawn from the MWMP, and described in Schedule 2.
"Heads of Agreement" means the document signed on behalf of the Company, the Communities, the State and the Provincial Government on or about 13 December 2000.
"Interested Communities" means the collective residents of the villages in the Mine area, highway area, Lower Ok Tedi, North Ok Tedi, Middle Fly and South Fly.
"Mine Continuation Act" means the Mining (Ok Tedi Mine Continuation (Ninth Supplemental) Agreement) Act being an Act of the National Parliament of that or similar name which, among other things, meets the objectives described in Schedule 3.
"MWMP" means the Mine Waste Management Project conducted by the Company.
"Ok Tedi Mine" and "Mine" mean the mine operated by the Company pursuant to the Mining (Ok Tedi Agreement) Act (Chapter 363)(as amended and supplemented).
"Parties" means the Company and the Communities severally.
"State" means the Independent State of Papua New Guinea.
"Termination Date" means 31 December 2001 or such later date as nominated in writing by the Company in accordance with Clause 3.1.

INTERPRETATION

2. In this Agreement unless the context requires otherwise:-

(a) monetary references are references to Papua New Guinea currency unless otherwise specifically expressed;
(b) the headings do not affect the interpretation or construction;
(c) words importing the singular include the plural and vice versa;
(d) words importing gender include the other gender;
(e) references to a person include a corporation and vice versa;
(f) references to a Recital, Clause, Schedule or Annexure are to a Recital, Clause, Schedule or Annexure or part thereof of this Agreement; and
(g) the Recitals form part of this Agreement.

CONDITION PRECEDENT

3.1 This Agreement is conditional upon and shall be of no force or effect unless prior to the Termination Date the National Parliament has enacted the Mine Continuation Act and all Community Mine Continuation Agreements have been given the force of law thereunder.

3.2 The Condition Precedent is for the sole benefit of the Company, which may prior to the Termination Date by notice in writing:

(a) elect to waive reliance upon it, or
(b) postpone the Termination Date to a nominated date

COMMUNITY CONSULTATIONS

4. The Parties acknowledge that

4.1 the Consultations have taken place for the purpose of exchanging information and views regarding:

• (a) the Environmental Predictions and their implications for the Downstream Communities, and
• (b) the effects of closure or continuation of the Mine upon the Communities,

4.2 the Consultations were intended by the Parties to ensure that any decision made by the Communities regarding the future of the Mine is made on the basis that all relevant information known to the Company concerning the social, economic and environmental consequences, both beneficial and detrimental, of continuing the operations of the Mine or closure of the Mine, has been made available to the Communities, and
4.3 a decision by the State and the Company to continue operation of the Mine will have the properly informed consent of the Communities.

5. The Communities acknowledge that all information requested by them in the course of the Consultations has been provided by the Company and that the Company has acted in good faith in the Consultations.

COMMITMENT TO SUSTAINABLE DEVELOPMENT & CO-OPERATION

6. The Parties agree that the greater part of future benefits passing from the Company to the Communities over the remaining life of the mine should be committed to investment in training, infrastructure and development that will provide an improved economic base for the Communities.

7. The Communities will co-operate with the Company to ensure the efficient and uninterrupted operation of the Mine, in recognition of the Company's Commitments and the benefits that the Mine provides to the Communities, the Western Province and Papua New Guinea.

8. Should a dispute arise between the Communities and the Company, the Communities agree to directly consult in good faith with the Company, the Western Province Government and the National Government to achieve resolution of that dispute.

COMMUNITIES' COMMITMENTS

9. The Communities, having considered:

9.1 the information disclosed to them in the Consultations;
9.2 the likely social, environmental and economic implications for the Downstream Communities of the continuation of the Mine in light of the Environmental Predictions, and
9.3 the likely social, environmental and economic implications for themselves of the early closure of the Mine,

have concluded and affirm that, subject to this Agreement, it is in the Communities' interest that the Mine should continue to operate rather than cease operations.

10. The Communities acknowledge that their decision is made in the knowledge or belief that:

10.1 the continued operation of the Mine may result in increased environmental impacts for Downstream Communities, including those described in the Environmental Predictions, and that early closure of the Mine may result in reduced environmental impacts, and
10.2 it is fair and proper that the Downstream Communities receive compensation and benefits commensurate with the Environmental Predictions.

11. The Communities:

11.1 represent and warrant to the Company that they will not demand or seek additional compensation and benefits to match those to be provided to the Downstream Communities;
11.2 represent and warrant that the persons signing this Agreement for and on behalf of the Communities have the power and authority to do so and that this Agreement will be valid and binding on each member of the Communities; and
11.3 acknowledge that the Company will be acting in reliance upon these representations and warranties in the event that the Mine continues to operate.

COMMUNITIES' RELEASES

12.1 The Communities agree that this Mine Continuation Agreement is the complete, final and binding basis on which they agree to support the continuation of the Mine and, without derogating from the effect of any other releases between the Parties, hereby release and discharge the Company, BHP, the Company's Shareholders and their respective associated corporations, directors, officers, employees and agents and former directors, officers, employees, and agents from all and any demands and claims arising from occurrences or circumstances contemplated by the Environmental Predictions or the operation of the Mine, and without limiting the generality of the foregoing that release and discharge includes and extends to the disposal by the Company of tailings and waste.

12.2 The benefits of the releases and discharges provided by the Communities under this Agreement is held by the Company in trust for itself and each of the other persons in whose favour the releases and discharges are expressed to apply.

REVISED ADDITIONAL COMPENSATION AND BENEFITS PACKAGE

13.1 The Parties have reviewed the respective Additional Compensation and Benefits Package Agreements and have agreed that the Company will spend on infrastructure, construction and social and business development projects in the respective Communities the amounts shown in Schedule 4.

13.2 Save as provided in Clause 13.1, the respective additional Compensation and Benefits Package Agreements are affirmed.

RELATIONSHIP OF REVISION TO ENVIRONMENTAL PREDICTIONS

14. The Communities acknowledge that if the environmental effects of the continuing operation of the Mine exceed the Environmental Predictions, the Company may be obliged to revise the compensation and benefits of the Downstream Communities taking into account the environmental impacts not contemplated in the Environmental Predictions. The Communities acknowledge and agree that if such a revision is made, the Communities will remain bound by Clause 11.1 and will not seek or demand compensation or benefits to match those provided to the Downstream Communities.

FORMAL CLAUSES

FURTHER ACTS

15. The Parties shall execute such documents and do and perform such acts that lie within their power and are necessary to give full effect to this Agreement.

WAIVER

16. The failure of any Party to enforce, at any time, any of the provisions of the Agreement shall not be construed to be a waiver of the provision or any part thereof or the right of any party thereafter to enforce each and every part of the provision in respect of any subsequent default or breach.

REPRESENTATIONS AND WARRANTIES

17. Except as expressly stated in this Agreement, no representation, inducement or warranty was, prior to the execution of this Agreement, given or made by one of the Parties hereto with the intent of inducing any other Party to enter into this Agreement, and any representations, inducements or warranties that may have been so given are hereby denied and negated.

COMMUNICATIONS

18. Any formal communications by the Parties concerning this Agreement shall be deemed to have been made:-

(a) in the case of the Company, if signed by the Managing Director of the Company,
(b) in the case of the Communities, if signed by the President for the time being of the Star Mountains Local Government Council or any successor bodies thereto, or in the absence of any successor bodies, by the District Administrator of the North Fly District.

19. Any formal communication shall be in writing and may be delivered either personally, or transmitted by facsimile to the person, or persons referred to in Clause 18.

20. Any formal communication shall be deemed to have reached the other Party:-

(a) in the case of personal delivery, when received by the relevant person referred to in Clause 18.
(b) in the case of facsimile, as soon as transmission is confirmed.

21. This Agreement may be executed in counterparts which taken together shall constitute one document.

EXECUTION

22. The Parties acknowledge that this Agreement may take effect notwithstanding that it has not been executed on behalf of all of the communities referred to on page 1 and accordingly the Parties agree that this Agreement is duly executed and, subject to Clause 3, takes effect between the Company and the members of any one or more of the communities referred to on page 1 on whose behalf it is executed, when the Company executes this Agreement.

SCHEDULE 1

CONSULTATIONS

[To be completed]

SCHEDULE 2

ENVIRONMENTAL PREDICTIONS

If the Mine stays open there will be more environmental effects downriver than if the Mine is closed now.

Dredging will reduce these effects but there is no practical way to stop the effects from occurring.

The best way to reduce the effects is for the Mine to close. If the Mine is closed now the effects will be reduced, but not prevented.

There is more risk in continuing with the Mine than with closing it.

If the Mine continues the following expected effects are likely to occur, but there is a risk that more severe or other adverse environmental effects could arise.

SCHEDULE 3

MINING (OK TEDI CONTINUATION (NINTH SUPPLEMENTAL) AGREEMENT) ACT

1. Recognises the involvement of local communities in the Consultations and their expressed views regarding the future of the Mine and containing the agreement of the State and Inmet Mining Corporation that the Mine should continue to operate.

2. Provides for the establishment of a regime of environmental monitoring and compliance with which the Company, in the opinion of its Board of Directors, can comply.

3. Approves and gives the force of law to the compensation and other arrangements contained in the Community Mine Continuation Agreements, including the finality of those compensation arrangements.

SCHEDULE 4

IN WITNESS WHEREOF this Agreement has been executed by the Parties on the ............. day of ..... 2001.

[or such of them whose representatives execute this Agreement]

COMMUNITY MINE CONTINUATION AGREEMENT

NORTH OK TEDI

THIS COMMUNITY MINE CONTINUATION AGREEMENT is made as of the ................. day of .............2001

BETWEEN:

OK TEDI MINING LIMITED ("the Company")

AND

EACH OF THE MEMBERS OF THE COMMUNITIES OF

1. Ok Tidetau
2. Boliwogam
3. Nioksikwi
4. Derongo
5. Kumguit
6. Ankit
7. Korkit
8. Walawam
9. Wogam
10. Kolebon
11. Wombon
12. Digam
13. Kawentigin
14. Boungkim
15. Haidowogam
16. Wurikanatko
17. Bumbin, and
18. Ningerum Tamaro, [or such of them whose representatives execute this Agreement] in the North Ok Tedi region of the Western Province (together "the Communities")

WHEREAS:

A. The Company operates the Ok Tedi Mine which has been in production since 1984 and which has a potential remaining economic life of approximately 10 years.

B. The Mine has brought benefits to the Communities, the Western Province and Papua New Guinea.

C. The Company has conducted the Mine Waste Management Project to assist it in ascertaining the possible future impact of continuing operations of the Ok Tedi Mine. The MWMP has resulted in Environmental Predictions that future environmental impacts are likely to occur as a result of continuing the operations of the Mine.

D. To date the Company has been unable to find a system of permanently storing tailings and waste that is technically and economically viable.

E. The State is considering the future of the Mine in light of the Environmental Predictions, including whether it should continue to operate and if so for how long and on what terms. Neither the Company nor the Communities consider that the Mine should continue to operate without the informed agreement of the Communities and the authorisation of the State.

F. The Communities and the Company have engaged in Consultations about the future of the Mine and in particular whether the Mine should continue to operate or be closed, and signed the Heads of Agreement.

G. The Communities have identified economic development as their major aspiration and have decided that, consistent with that aspiration, the Mine should continue to operate notwithstanding the Environmental Predictions.

H. Subject to the Condition Precedent, the Parties wish to record their respective commitments to facilitate mine continuation and the optimum use of available benefits streams over the remaining life of the Mine for the purpose of establishing self - sustaining economic benefits and development for the Communities.

I. For the Company and the State to decide that the continuing Mine operations are economically viable, there must be reasonable certainty as to the cost of its operations, including compensation and benefits to the Communities, and the Parties therefore intend this Mine Continuation Agreement to be the complete, final and binding basis on which the Parties agree to support the continued operation of the Mine through to its closure.

J. The State has agreed to give this agreement the force of law by enacting the Mine Continuation Act.

THE PARTIES AGREE AS FOLLOWS:

DEFINITIONS

1. In this Agreement, including the Recitals, the following definitions apply:

"BHP" means BHP Billiton Limited
"Condition Precedent" means the condition precedent in Clause 3.1
"Community Mine Continuation Agreements" means agreements between the Company and the Interested Communities by which each Interested Community gives its informed consent to the continuation of operations of the Mine, and includes this Agreement.
"Company's Commitments" means the commitments to make payments referred to in Clauses 17 and 18
"Company's Shareholders" means BHP Minerals Holdings Proprietary Limited, Inmet Mining Corporation; the State, Mineral Resources Ok Tedi No.2 Limited and all past and future shareholders.
"Consultations" means the meetings and discussions which have taken place between officers of the State, the Company and the Communities, in which the Company has presented information to the Communities on the results of the MWMP and the options for the future of the Mine. Further particulars of the Consultations are contained in Schedule 1.
"Dagi Proceeding" means proceeding No 5002 of 2000 brought by Rex Dagi against the Company and BHP in the Supreme Court.
"Declaration of Trust" means the declaration of trust establishing the North Ok Tedi Trust, which is Annexure A.
"Development Fund" means the fund of that name described in the Declaration of Trust.
"Environmental Predictions" means the predictions that have been drawn from the MWMP, and described in Schedule 2.
"Heads of Agreement" means the document signed on behalf of the Company, the Communities, the State and the Provincial Government on or about 25 January 2001.
"Interested Communities" means the collective residents of the villages in the Mine area, highway area, Lower Ok Tedi, North Ok Tedi, Middle Fly and South Fly.
"Investment Fund" means the fund of that name described in the declaration of Trust.
"Mine Continuation Act" means the Mining (Ok Tedi Mine Continuation (Ninth Supplemental) Agreement) Act being an Act of the National Parliament of that or similar name which, among other things, meets the objectives described in Schedule 3.
"MWMP" means the Mine Waste Management Project conducted by the Company.
"North Ok Tedi Trust" means the trust of that name established by the Declaration of Trust.
"Ok Tedi Mine" and "Mine" mean the mine operated by the Company pursuant to the Mining (Ok Tedi Agreement) Act (Chapter 363)(as amended and supplemented).
"Parties" means the Company and the Communities severally.
"Settlement Agreement" means the two documents headed respectively Terms of Settlement and Settlement Agreement both dated 7 June 1996 and executed by or on behalf of Rex Dagi and others of the first part and the Company and others of the second part by which litigation concerning the Ok Tedi mine was terminated.
"State" means the Independent State of Papua New Guinea
"Supreme Court Proceeding" means proceeding No 5003 of 2000 brought by Gabia Gagarimabu against the Company and BHP in the Supreme Court.
"Supreme Court" means the Supreme Court of Victoria.
"Termination Date" means 31 December 2001 or such later date as nominated in writing by the Company in accordance with Clause 3.1.

INTERPRETATION

2. In this Agreement unless the context requires otherwise:-

(a) monetary references are references to Papua New Guinea currency unless otherwise specifically expressed;
(b) the headings do not affect the interpretation or construction;
(c) words importing the singular include the plural and vice versa;
(d) words importing gender include the other gender;
(e) references to a person include a corporation and vice versa;
(f) references to a Recital, Clause, Schedule or Annexure are to a Recital, Clause, Schedule or Annexure or part thereof of this Agreement; and
(g) the Recitals form part of this Agreement.

CONDITION PRECEDENT

3. This Agreement is conditional upon and shall be of no force or effect unless prior to the Termination Date the National Parliament has enacted the Mine Continuation Act and all Community Mine Continuation Agreements have been given the force of law thereunder.

3.1 The Condition Precedent is for the sole benefit of the Company, which may prior to the Termination Date by notice in writing:

(a) elect to waive reliance upon it, or
(b) postpone the Termination Date to a nominated date.

3.2 If the Condition Precedent is not satisfied or waived prior to the Termination Date, the Parties will meet to negotiate in good faith appropriate compensation to the Communities for any uncompensated environmental effects of the Mine's operations that have occurred or are likely to occur in the future.

COMMUNITY CONSULTATIONS

4. The Parties acknowledge that

4.1 the Consultations have taken place for the purpose of exchanging information and views regarding the Environmental Predictions and the implications for the Communities of closure or continuation of the Mine,
4.2 the Consultations have given the relevant clan leaders within the Communities the opportunity to make representations to the Company and the State in connection with the review undertaken for the purposes of Clause 29G of the Mining (Ok Tedi Agreement) Act (Chapter 363) (as amended and supplemented),
4.3 the Consultations were intended by the Parties to ensure that any decision made by the Communities regarding the future of the Mine is made on the basis that all relevant information known to the Company concerning the social, economic and environmental consequences, both beneficial and detrimental, of continuing the operations of the Mine or closure of the Mine, has been made available to the Communities, and
4.4 a decision by the State and the Company to continue operation of the Mine will have the properly informed consent of the Communities.

5. The Communities acknowledge that all information requested by them in the course of the Consultations has been provided by the Company and that the Company has acted in good faith in the Consultations.

COMMITMENT TO SUSTAINABLE DEVELOPMENT & CO-OPERATION

6. The Parties agree that the greater part of future benefits passing from the Company to the Communities over the remaining life of the mine should be committed to investment in training, infrastructure and development that will provide an improved economic base for the Communities.

7. The Communities will co-operate with the Company to ensure the efficient and uninterrupted operation of the Mine, in recognition of the Company's Commitments and the benefits that the Mine provides to the Communities, the Western Province and Papua New Guinea.

8. Should a dispute arise between the Communities and the Company, the Communities agree to directly consult in good faith with the Company, the Western Province Government and the National Government to achieve resolution of that dispute.

COMMUNITIES' COMMITMENTS

9. The Communities, having considered:

9.1 the information disclosed to them in the Consultations;
9.2 the likely social, environmental and economic implications for themselves of the continuation of the Mine (including the Company's Commitments) in light of the Environmental Predictions, and
9.3 the likely social, environmental and economic implications for themselves of the early closure of the Mine,

have concluded and affirm that, subject to this Agreement, it is in the Communities' interest that the Mine should continue to operate rather than cease operations.

10. The Communities acknowledge that their decision is made in the knowledge or belief that:

10.1 the continued operation of the Mine may result in increased environmental impacts including those described in the Environmental Predictions, and that early closure of the Mine may result in reduced environmental impacts, and
10.2 the economic opportunities offered by the Company's Commitments represent to the Communities an acceptable trade off for the environmental impacts of the future operation of the Mine.

11. The Communities:

11.1 represent and warrant to the Company that, subject to the Company's Commitments, it is their decision that the Mine should continue to operate for the remainder of its economic life;
11.2 represent and warrant that the persons signing this Agreement for and on behalf of the Communities have the power and authority to do so and that this Agreement will be valid and binding on each member of the Communities; and
11.3 acknowledge that the Company will be acting in reliance upon these representations and warranties in the event that the Mine continues to operate.

COMMUNITIES' RELEASES

12. The Communities agree that this Mine Continuation Agreement is the complete, final and binding basis on which they agree to support the continuation of the Mine, and without derogating from (where applicable) the effect of the releases contained in and the compensation regime established by the Mining (Ok Tedi Agreement) Act (Chapter 363) (as amended and supplemented), the Settlement Agreement (where applicable) and any other releases between the Parties, hereby release and discharge the Company, BHP, the Company's Shareholders and their respective associated corporations, directors, officers, employees and agents and former directors, officers, employees and agents from all and any demands and claims arising directly or indirectly from the operation of the Mine or any associated works, and without limiting the generality of the foregoing that release and discharge includes and extends to:

12.1 the disposal by the Company of tailings and waste;
12.2 dredging, storage and release of dredged material;
12.3 occurrences or circumstances contemplated by or more adverse than or in excess of the Environmental Predictions;
12.4 the Settlement Agreement, and
12.5 any public statement concerning the Mine made by the Company, BHP or the Company's shareholders.

Nothing in this Clause 12 affects the rights of the Communities under Clause 26.

13. Each member of the Communities who is a party to the Settlement Agreement:

13.1 shall take such steps as are necessary to ensure that on or before 7 January 2002, whether by his authorised representatives or otherwise, he executes and delivers an opt out notice in the Supreme Court Proceeding; and

13.2 does hereby release and discharge the Company and BHP from each and every claim made in the Supreme Court Proceeding and the Dagi Proceeding.

14. The benefit of the releases and discharges provided by the Communities under this Agreement is held by the Company in trust for itself and each of the other persons in whose favour the releases and discharges are expressed to apply.

SUPREME COURT PROCEEDINGS

15. If the members of the Communities who are a party to the Settlement Agreement do not opt out of the Supreme Court Proceeding and, notwithstanding the releases and discharges given in Clauses 12 and 13, the Supreme Court, or any court of appeal therefrom, in either the Supreme Court Proceeding or the Dagi Proceeding, orders:

15.1 the construction of a tailings pipeline and storage facility, or another waste mitigation scheme (other than the dredging operation approved by the State), and the State authorises the construction of that facility or scheme, then Clauses 17 and 18 will cease to be of force or effect and the Company will have no further obligation to make payments under Clause 17 or 18 from the date of order; or
15.2 the payment of damages by the Company or BHP to the Communities or any members of them, then Clauses 17 and 18 will cease to be of force or effect, the Company will have no further obligation to make payments under Clause 17 or 18 from the date of any judgment or award of damages and all payments made pursuant to Clause 17 or 18 before that date will be taken into account and will be set off against those damages.

16. If the Communities opt out of the Supreme Court Proceeding but the Supreme Court, or any court of appeal therefrom, makes an order in the Supreme Court Proceeding or the Dagi Proceeding for the construction of a tailings pipeline and storage facility, or another waste mitigation scheme (other than the dredging operation approved by the State), and the State authorises the construction of that facility or scheme, the Parties agree to discuss in good faith with the State a review of the benefits available to the Communities under this Agreement taking into account the effect of the order on the ongoing economic viability of the Mine.

PAYMENT BY COMPANY FOR DISTURBANCE

17. Subject to Clause 25, for so long as the Mine is in operation the Company shall make the annual payments described in Schedule 4 to the Development Fund.

18. Subject to Clause 25, for so long as the Mine is in operation, the Company shall make the annual payments described in Schedule 5 to the Investment Fund.

EFFECT OF PAYMENTS

19. Without derogating from (where applicable) the effect of the releases contained in and the compensation regime established by the Mining (Ok Tedi Agreement) Act (Chapter 363) (as amended and supplemented), the Settlement Agreement (where applicable), Clauses 12 and 13 of this Agreement and any other releases between the Parties, the payments to be made by the Company pursuant to this Agreement are and shall be in full compensation for all loss and damage contemplated by the Environmental Predictions suffered or to be suffered by the Communities in respect of disturbance to the environment in the North Ok Tedi area or their use or enjoyment of the environment, including, where applicable and without limitation to the generality of the foregoing,

(a) being deprived of the possession or use of the natural surface of the land area;
(b) damage to or contamination of the natural surface of the land;
(c) severance of the land or any part of it from other land owned or occupied by the Communities;
(d) any loss or restriction of a right of way, easement or other right;
(e) any loss or damage to improvements;
(f) in the case of land under cultivation, loss of earnings;
(g) disruption of agricultural activities;
(h) social disruption,
(i) garden damage and loss of economic trees;
(j) loss or damage to any flora or fauna, on the land or in the water, and
(k) loss or use or contamination of water.

20. For the avoidance of doubt, it is acknowledged that the Communities and their members who, at the date of this Agreement are eligible persons to receive general compensation pursuant to the Mining (Ok Tedi Agreement) Act (Chapter 363) (as amended and supplemented) will continue to be eligible persons to receive general compensation and (save for the matters listed in Clause 19 (a) to (k) inclusive) specific compensation pursuant to the Mining (Ok Tedi Agreement) Act (Chapter 363) (as amended and supplemented) and will continue to receive benefits indirectly under Clause 6.1 of the Settlement Agreement

TIMING OF PAYMENTS

21. The payments for 2001 in each of Schedules 4 and 5 shall be paid within 30 days of the Condition Precedent being satisfied.

22. Subject to the following clauses, all remaining payments pursuant to Clauses 17 and 18 which are due to be paid by the Company in a calendar year shall be paid within the fourth quarter of that calendar year.

23. The timing of payments by the Company pursuant to Clause 17 only shall be subject to the continuous compliance by the respective recipients with all of their obligations under this Agreement, and in particular Clauses 7, 12 and 13. In the event of non-compliance with any provision of this Agreement, in particular Clauses 7, 12 and 13, the payment otherwise due to the non-complying recipients shall be deferred without interest until the due date for the next succeeding annual payment, subject always to the recipients' compliance with this Agreement, in particular Clause 7, 12 and 13, in the intervening period. In the event of further non-compliance in the intervening period, both payments shall be deferred on the same terms as applied to the first deferred payment. The same principles shall also be applied in respect of subsequent non-compliance with this Agreement, in particular Clause 7, 12 and 13. Any deferred payment subsisting as at the date of closure of the Mine will be paid by the Company to the Development Fund.

24. All payments made by the Company in accordance with Clause 17 and 18 will discharge the Company's obligation to make such payments and the Company shall not be obliged to see to the application of such payments.

25. Notwithstanding Clauses 21 to 24 inclusive:

25.1 the Company in its discretion may withhold or defer payments under Clause 17 if a significant number.(as determined by the Company) of members of the Communities who are parties to the Settlement Agreement have failed to opt out of the Supreme Court Proceeding;
25.2 if the Mine ceases to operate before 2010:

• (a) the Company's obligation to make payments pursuant to Clauses 17 and 18 will also cease;
• (b) the Parties will meet to negotiate in good faith appropriate compensation to the Communities for any uncompensated environmental effects that have occurred or are likely to occur in the future regardless of the closure of the Mine; and

25.3 if the Mine continues to operate after 2010, the Company will make a payment to the Development Fund and the Investment Fund equal to the average of the payments to each in the years from 2001 to 2010 inclusive, for each calendar year of continued operation, or pro rated in respect of an incomplete year of continued operation.

RELATIONSHIP OF PAYMENTS TO ENVIRONMENTAL PREDICTIONS

26. The Company shall continue to monitor the environmental effects of the continuing operation of the Mine in accordance with its obligations to the State, and shall share the results with the Communities. To the extent that environmental effects of the continuing operation of the Mine exceed the Environmental Predictions, the Parties shall meet to discuss revision of the payments under Clauses 17 and 18, taking into account the environmental effects in excess of those contemplated in the Environmental Predictions. The Communities acknowledge and agree that if the Environmental Predictions are not accurate:

26.1 this right to discuss with the Company a revision of payments under Clauses 17 and 18 shall be their sole remedy in relation to the inaccuracy of the Environment Predictions;
26.2 any revision of payments shall only operate prospectively from the date any revision is agreed; and
26.3 this Agreement and in particular the releases and discharges contained in it shall remain in full force and effect and this Agreement shall not be liable to be set aside or rendered unenforceable.

If agreement cannot be reached on revision of the payments the Company may reconsider its decision to continue to operate the Mine.

FORMAL CLAUSES

FURTHER ACTS

27. The Parties shall execute such documents and do and perform such acts that lie within their power and are necessary to give full effect to this Agreement.

WAIVER

28. The failure of any Party to enforce, at any time, any of the provisions of the Agreement shall not be construed to be a waiver of the provision or any part thereof or the right of any party thereafter to enforce each and every part of the provision in respect of any subsequent default or breach.

REPRESENTATIONS AND WARRANTIES

29. Except as expressly stated in this Agreement, no representation, inducement or warranty was, prior to the execution of this Agreement, given or made by one of the Parties hereto with the intent of inducing any other Party to enter into this Agreement, and any representations, inducements or warranties that may have been so given are hereby denied and negated.

COMMUNICATIONS

30. Any formal communications by the Parties concerning this Agreement shall he deemed to have been made:-

(a) in the case of the Company, if signed by the Managing Director of the Company,
(b) in the case of the Communities, if signed by the President for the time being of the Ningerum Local Government Council, or any successor body thereto, or in the absence of any successor bodies, by the District Administrator of the North Fly District.

31. Any formal communication shall be in writing and may be delivered either personally, or transmitted by facsimile to the person, or persons referred to in Clause 30.

32. Any formal communication shall be deemed to have reached the other Party:-

(a) in the case of personal delivery, when received by the relevant person referred to in Clause 30.
(b) in the case of facsimile, as soon as transmission is confirmed.

EXECUTION

33. The Parties acknowledge that this Agreement may take effect notwithstanding that it has not been executed on behalf of all of the communities referred to on page 1 and accordingly the Parties agree that this Agreement is duly executed and, subject to Clause 3, takes effect between the Company and the members of any one or more of the communities referred.to on page 1 on whose behalf it is executed, when the Company executes this Agreement.

SCHEDULE 1

CONSULTATIONS

To be completed

SCHEDULE 2

ENVIRONMENTAL PREDICTIONS

If the Mine stays open there will be more environmental effects downriver than if the Mine is closed now.

Dredging will reduce these effects but there is no practical way to stop the effects from occurring.

The best way to reduce the effects is for the Mine to close. If the Mine is closed now the effects will be reduced, but not prevented.

There is more risk in continuing with the Mine than with closing it.

If the Mine continues the following expected effects are likely to occur, but there is a risk that more severe or other adverse environmental effects could arise.

SCHEDULE 3

MINING (OK TEDI CONTINUATION (NINTH SUPPLEMENTAL) AGREEMENT) ACT

1. Recognises the involvement of local communities in the Consultations and their expressed views regarding the future of the Mine and containing the agreement of the State and Inmet Mining Corporation that the Mine should continue to operate.

2. Provides for the establishment of a regime of environmental monitoring and compliance with which the Company, in the opinion of its Board of Directors, can comply.

3. Approves and gives the force of law to the compensation and other arrangements contained in the Community Mine Continuation Agreements including the finality of those compensation arrangements.

SCHEDULE 4

SCHEDULE 5

[or such of them whose representatives execute this Agreement]

ANNEXURE A

[To be Completed

The Declaration of Trust to be Annexure A will establish a trust for charitable purposes for the benefit of the communities whose representatives have executed this Agreement. The charitable purposes of the trust will include improvement of living conditions, identification and development of sustainable rural and non-rural commercial ventures, the advancement of education and other purposes beneficial to the communities generally.]

COMMUNITY MINE CONTINUATION AGREEMENT

SOUTH FLY

THIS COMMUNITY MINE CONTINUATION AGREEMENT is made as of the .............day of................... 2001

BETWEEN:

OK TEDI MINING LIMITED ("the Company")

AND

EACH OF THE MEMBERS OF THE SOUTH FLY COMMUNITIES OF

[or such of them whose representatives execute this Agreement] in the South Fly region of the Western Province (together "the Communities")

WHEREAS:

A. The Company operates the Ok Tedi Mine which has been in production since 1984 and which has a potential remaining economic life of approximately 10 years.

B. The Mine has brought benefits to the Communities, the Western Province and Papua New Guinea.

C. The Company has conducted the Mine Waste Management Project to assist it in ascertaining the possible future impact of continuing operations at the Ok Tedi Mine. The MWMP has resulted in Environmental Predictions that future environmental impacts are likely to occur as a result of continuing the operations of the Mine.

D. To date the Company has been unable to find a system of permanently storing tailings and waste that is technically and economically viable.

E. The State is considering the future of the Mine in light of the Environmental Predictions, including whether it should continue to operate and if so for how long and on what terms. Neither the Company nor the Communities consider that the Mine should continue to operate without the informed agreement of the Communities and the authorisation of the State.

F. The Communities and the Company have engaged in Consultations about the future of the Mine and in particular whether the Mine should continue to operate or be closed, and signed the Heads of Agreement.

G. The Communities have identified economic development as their major aspiration and have decided that, consistent with that aspiration, the Mine should continue to operate notwithstanding the Environmental Predictions.

H. Subject to the Condition Precedent, the Parties wish to record their respective commitments to facilitate mine continuation and the optimum use of available benefits streams over the remaining life of the Mine for the purpose of establishing self - sustaining economic benefits and development for the Communities.

I. For the Company and the State to decide that the continuing Mine operations are economically viable, there must be reasonable certainty as to the cost of its operations, including compensation and benefits to the Communities, and the Parties therefore intend this Mine Continuation Agreement to be the complete, final and binding basis on which the Parties agree to support the continued operation of the Mine through to its closure.

J. The State has agreed to give this agreement the force of law by enacting the Mine Continuation Act.

THE PARTIES AGREE AS FOLLOWS:

DEFINITIONS

1. In this Agreement, including the Recitals, the following definitions apply:

"BHP" means BHP Billiton Limited
"Condition Precedent" means the condition precedent in Clause 3.1
"Community Mine Continuation Agreements" means agreements between the Company and the Interested Communities by which each Interested Community gives its informed consent to the continuation of operations of the Mine, and includes this Agreement.
"Company's Commitments" means the commitments to make payments referred to in Clauses 17 and 18
"Company's Shareholders" means BHP Minerals Holdings Proprietary Limited, Inmet Mining Corporation, the State, Mineral Resources Ok Tedi No.2 Limited and all past and future shareholders.
"Consultations" means the meetings and discussions which have taken place between officers of the State, the Company and the Communities, in which the Company has presented information to the Communities on the results of the MWMP and the options for the future of the Mine. Further particulars of the Consultations are contained in Schedule 1.
"Dagi Proceeding" means proceeding No 5002 of 2000 brought by Rex Dagi against the Company and BHP in the Supreme Court.
"Declaration of Trust" means the declaration of trust establishing the South Fly Trust, which is Annexure A.
"Development Fund" means the fund of that name described in the Declaration of Trust.
"Environmental Predictions" means the predictions that have been drawn from the MWMP, and described in Schedule 2.
"Future Generations Fund" means the fund of that name described in the Declaration of Trust.
"Heads of Agreement" means the document signed on behalf of the Company, the Communities, the State and the Provincial Government on or about 6 June 2001.
"Interested Communities" means the collective residents of the villages in the Mine area, highway area, Lower Ok Tedi, North Ok Tedi, Middle Fly and South Fly.
"Land Owners" means those individual members of one or more of the Communities who are customary owners of their community's land.
"Land Users" means those individual members of one or more of the Communities who are not customary owners of their community's land.
"Mine Continuation Act" means the Mining (Ok Tedi Mine Continuation (Ninth Supplemental) Agreement) Act being an Act of the National Parliament of that or similar name which, among other things, meets the objectives described in Schedule 3.
"MWMP" means the Mine Waste Management Project conducted by the Company.
"Ok Tedi Mine" and "Mine" mean the mine operated by the Company pursuant to the Mining (Ok Tedi Agreement) Act (Chapter 363)(as amended and supplemented).
"Parties" means the Company and the Communities severally.
"Settlement Agreement" means the two documents headed respectively Terms of Settlement and Settlement Agreement both dated 7 June 1996 and executed by or on behalf of Rex Dagi and others of the first part and the Company and others of the second part by which litigation concerning the Ok Tedi mine was terminated.
"South Fly Trust" means the trust of that name established by the Declaration of Trust.
"State" means the Independent State of Papua New Guinea.
"Supreme Court Proceeding" means proceeding No 5003 of 2000 brought by Gabia Gagarimabu against the Company and BHP in the Supreme Court.
"Supreme Court" means the Supreme Court of Victoria.
"Termination Date" means 31 December 2001 or such later date as nominated in writing by the Company in accordance with Clause 3.1.

INTERPRETATION

2. In this Agreement unless the context requires otherwise:-

(a) monetary references are references to Papua New Guinea currency unless otherwise specifically expressed;
(b) the headings do not affect the interpretation or construction;
(c) words importing the singular include the plural and vice versa;
(d) words importing gender include the other gender;
(e) references to a person include a corporation and vice versa;
(f) references to a Recital, Clause, Schedule or Annexure are to a Recital, Clause, Schedule or Annexure or part thereof of this Agreement; and
(g) the Recitals form part of this Agreement.

CONDITION PRECEDENT

3. This Agreement is conditional upon and shall be of no force or effect unless prior to the Termination Date the National Parliament has enacted the Mine Continuation Act and all Community Mine Continuation Agreements have been given the force of law thereunder.

3.1 The Condition Precedent is for the sole benefit of the Company, which may prior to the Termination Date by notice in writing:

• (a) elect to waive reliance upon it, or
• (b) postpone the Termination Date to a nominated date

3.2 If the Condition Precedent is not satisfied or waived prior to the Termination Date, the Parties will meet to negotiate in good faith appropriate compensation to the Communities for any uncompensated environmental effects of the Mine's operations that have occurred or are likely to occur in the future.

COMMUNITY CONSULTATIONS

4. The Parties acknowledge that

4.1 the Consultations have taken place for the purpose of exchanging information and views regarding the Environmental Predictions and the implications for the Communities of closure or continuation of the Mine,
4.2 the Consultations have given the clan leaders within the Communities the opportunity to make representations to the Company and the State in connection with the review undertaken for the purposes of Clause 29G of the Mining (Ok Tedi Agreement) Act (Chapter 363) (as amended and supplemented),
4.3 the Consultations were intended by the Parties to ensure that any decision made by the Communities regarding the future of the Mine is made on the basis that all relevant information known to the Company concerning the social, economic and environmental consequences, both beneficial and detrimental, of continuing the operations of the Mine or closure of the Mine, has been made available to the Communities, and
4.4 a decision by the State and the Company to continue operation of the Mine will have the properly informed consent of the Communities.

5. The Communities acknowledge that all information requested by them in the course of the Consultations has been provided by the Company and that the Company has acted in good faith in the Consultations.

COMMITMENT TO SUSTAINABLE DEVELOPMENT & CO-OPERATION

6. The Parties agree that the greater part of future benefits passing from the Company to the Communities over the remaining life of the mine should be committed to investment in training, infrastructure and development that will provide an improved economic base for the Communities.

7. The Communities will co-operate with the Company to ensure the efficient and uninterrupted operation of the Mine, in recognition of the Company's Commitments and the benefits that the Mine provides to the Communities, the Western Province and Papua New Guinea.

8. Should a dispute arise between the Communities and the Company, the Communities agree to directly consult in good faith with the Company, the Western Province Government and the National Government to achieve resolution of that dispute.

COMMUNITIES' COMMITMENTS

9. The Communities, having considered:

9.1 the information disclosed to them in the Consultations;
9.2 the likely social, environmental and economic implications for themselves of the continuation of the Mine (including the Company's Commitments) in light of the Environmental Predictions, and
9.3 the likely social, environmental and economic implications for themselves of the early closure of the Mine,

have concluded and affirm that, subject to this Agreement, it is in the Communities' interest that the Mine should continue to operate rather than cease operations.

10. The Communities acknowledge that their decision is made in the knowledge or belief that:

10.1 the continued operation of the Mine may result in increased environmental impacts including those described in the Environmental Predictions, and that early closure of the Mine may result in reduced environmental impacts, and
10.2 the economic opportunities offered by the Company's Commitments represent to the Communities an acceptable trade off for the environmental impacts of the future operation of the Mine.

11. The Communities:

11.1 represent and warrant to the Company that, subject to the Company's Commitments, it is their decision that the Mine should continue to operate for the remainder of its economic life;
11.2 represent and warrant that the persons signing this Agreement for and on behalf of the Communities have the power and authority to do so and that this Agreement will be valid and binding on each member of the Communities; and
11.3 acknowledge that the Company will be acting in reliance upon these representations and warranties in the event that the Mine continues to operate.

COMMUNITIES' RELEASES

12. The Communities agree that this Community Mine Continuation Agreement is the complete, final and binding basis on which they agree to support the continuation of the Mine, and without derogating from the effect of the releases contained in and the compensation regime established by the Mining (Ok Tedi Agreement) Act (Chapter 363) (as amended and supplemented), the Settlement Agreement and any other releases between the Parties, hereby release and discharge the Company, BHP, the Company's Shareholders and their respective associated corporations, directors, officers, employees and agents and former directors, officers, employees and agents from all and any demands and claims arising directly or indirectly from the operation of the Mine or any associated works, and without limiting the generality of the foregoing that release and discharge includes and extends to:

12.1 the disposal by the Company of tailings and waste;
12.2 dredging, storage and release of dredged material;
12.3 occurrences or circumstances contemplated by or more adverse than or in excess of the Environmental Predictions;
12.4 the Settlement Agreement; and
12.5 any public statement concerning the Mine made by the Company, BHP or the Company's Shareholders.

Nothing in this Clause 12 affects the rights of the Communities under Clause 27.

13. The Communities:

13.1 shall take such steps as are necessary to ensure that on or before 7 January 2002 the Communities, whether by their authorised representatives or otherwise, execute and deliver opt out notices in the Supreme Court Proceeding; and
13.2 do hereby release and discharge the Company and BHP from each and every claim made in the Supreme Court Proceeding and the Dagi Proceeding.

14. The benefit of the releases and discharges provided by the Communities under this Agreement is held by the Company in trust for itself and each of the other persons in whose favour the releases and discharges are expressed to apply.

SUPREME COURT PROCEEDINGS

15. If the Communities do not opt out of the Supreme Court Proceeding and, notwithstanding the releases and discharges given in Clauses 12 and 13, the Supreme Court, or any court of appeal therefrom, in either the Supreme Court Proceeding or the Dagi Proceeding, orders:

15.1 the construction of a tailings pipeline and storage facility, or another waste mitigation scheme (other than the dredging operation approved by the State), and the State authorises the construction of that facility or scheme, then Clauses 17 and 18 will cease to be of force or effect and the Company will have no further obligation to make payments under Clause 17 or 18 from the date of order; or
15.2 the payment of damages by the Company or BHP to the Communities or any members of them, then Clauses 17 and 18 will cease to be of force or effect, the Company will have no further obligation to make payments under Clause 17 or 18 from the date of any judgment or award of damages and all payments made pursuant to Clause 17 or 18 before that date will be taken into account and will be set off against those damages.

16. If the Communities opt out of the Supreme Court Proceeding but the Supreme Court, or any court of appeal therefrom, makes an order in the Supreme Court Proceeding or the Dagi Proceeding for the construction of a tailings pipeline and storage facility, or any other waste mitigation scheme (other than the dredging operation approved by the State), and the State authorises the construction of that facility or scheme, the Parties agree to discuss in good faith with the State a review of the benefits available to the Communities under this Agreement taking into account the effect of the order on the ongoing economic viability of the Mine.

PAYMENT BY COMPANY FOR DISTURBANCE

17. Subject to Clause 26, for so long as the Mine is in operation; the Company shall make the annual payments described in Schedule 4 to the respective recipients and fund described therein, namely the Land Owners, the Land Users and the Future Generations Fund of the South Fly Trust.

18. Subject to Clause 26, for so long as the Mine is in operation, the Company shall make the annual payments described in Schedule 5 to the Development Fund of the South Fly Trust.

EFFECT OF PAYMENTS

19. Without derogating from the effect of the releases contained in and the compensation regime established by the Mining (Ok Tedi Agreement) Act (Chapter 363) (as amended and supplemented), the Settlement Agreement, Clauses 12 and 13 of this Agreement and any other releases between the Parties, the payments to be made by the Company pursuant to this Agreement are and shall be in full compensation for all loss and damage contemplated by the Environmental Predictions suffered or to be suffered by the Communities in respect of disturbance to the environment in the South Fly area or their use or enjoyment of the environment, including, where applicable and without limitation to the generality of the foregoing,

(a) being deprived of the possession or use of the natural surface of the land area;
(b) damage to or contamination of the natural surface of the land;
(c) severance of the land or any part of it from other land owned or occupied by the Communities;
(d) any loss or restriction of a right of way, easement or other right;
(e) any loss or damage to improvements;
(f) in the case of land under cultivation, loss of earnings;
(g) disruption of agricultural activities;
(h) social disruption,
(i) garden damage and loss of economic trees,
(j) loss or damage to any flora or fauna, on the land or in the water, and
(k) loss or use or contamination of water.

20. For the avoidance of doubt, it is acknowledged that the Communities and their members will continue to be eligible persons to receive general compensation and (save for the matters listed in Clause 19 (a) to (k) inclusive) specific pursuant to the Mining (Ok Tedi Agreement) Act (Chapter 363) (as amended and supplemented) and will continue to receive benefits indirectly under Clause 6.1 of the Settlement Agreement.

TIMING OF PAYMENTS

21. The payments for 2001 in each of Schedules 4 and 5 shall be paid within 30 days of the Condition Precedent being satisfied.

22. Subject to the following clauses, all remaining payments pursuant to Clauses 17 and 18 which are due to be paid by the-Company in a calendar year shall be paid within the fourth quarter of that calendar year.

23. The timing of payments by the Company to Land Owners and Land Users pursuant to Clause 17 only shall be subject to the continuous compliance by the respective recipients with all of their obligations under this Agreement, and in particular Clauses 7, 12 and 13. In the event of non-compliance with any provision of this Agreement, in particular Clauses 7, 12 and 13, the payment otherwise due to the non-complying recipients shall be deferred without interest until the due date for the next succeeding annual payment, subject always to the recipients' compliance with this Agreement, in particular Clauses 7, 12 and 13, in the intervening period. In the event of further non-compliance in the intervening period, both payments shall be deferred on the same terms as applied to the first deferred payment. The same principles shall also be applied in respect of subsequent non-compliance with this Agreement, in particular Clauses 7, 12 and 13. Any deferred payment subsisting at the date of closure of the Mine will be paid by the Company to the Development Fund.

24. Payments by the Company to Land Owners shall be made by cheque payable to "[name of Clan] Land Owners". Payments to Land Users shall be made by cheque payable to "[name of Clan] Land Users". The members of the respective recipient groups shall determine the use or distribution of the payments according to their own discretion. The Company shall not in any circumstances be required to entertain claims by individuals within a recipient group or resolve disputes within the group. All payments made by the Company in accordance with this Clause will discharge the Company's obligation to make such payments and the Company shall not be obliged to see to the application of such payments.

25. Payments by the Company to the Future Generations Fund and the Development Fund shall be made to the trustees of the South Fly Trust.

26. Notwithstanding Clauses 21 to 25 inclusive:

26.1 the Company in its discretion may withhold or defer payments under Clause 17 to the Land Owners and Land Users in any Community if that Community or a majority (or other significant number as determined by the Company) of clans in or members of that Community have failed to opt out of the Supreme Court Proceeding,
26.2 if the Mine ceases to operate before 2010:

• (a) the Company's obligation to make payment's pursuant to Clauses 17 and 18 will also cease, and
• (b) the Parties will meet to negotiate in good faith appropriate compensation to the Communities for any uncompensated environmental effects that have occurred or are likely to occur in the future regardless of the closure of the Mine, and

26.3 if the Mine continues to operate after 2010, the Company will make a payment to each of the Land Owners, Land Users, Future Generations Fund and Development Fund, equal to the average of the payments to each of them in the years from 2001 to 2010 inclusive, for each complete calendar year of continued operation, or pro rated in respect of an incomplete calendar year of continued operation.

RELATIONSHIP OF PAYMENTS TO ENVIRONMENTAL PREDICTIONS

27. The Company shall continue to monitor the environmental effects of the continuing operation of the Mine in accordance with its obligations to the State, and shall share the results with the Communities. To the extent that environmental effects of the continuing operation of the Mine exceed the Environmental Predictions, the Parties shall meet to discuss revision of the payments under Clauses 17 and 18, taking into account the environmental effects in excess of those contemplated in the Environmental Predictions. The Communities acknowledge and agree that if the Environmental Predictions are not accurate:

27.1 this right to discuss with the Company a revision of payments under Clauses 17 and 18 shall be their sole remedy in relation to the inaccuracy of the Environment Predictions;
27.2 any revision of payments shall only operate prospectively from the date any revision is agreed; and
27.3 this Agreement and in particular the releases and discharges contained in it shall remain in full force and effect and this agreement shall not be liable to be set aside or rendered unenforceable.

If agreement cannot be reached on revision of the payments the Company may reconsider its decision to continue to operate the Mine.

FORMAL CLAUSES

FURTHER ACTS

28. The Parties shall execute such documents and do and perform such acts that lie within their power and are necessary to give full effect to this Agreement.

WAIVER

29. The failure of any Party to enforce, at any time, any of the provisions of the Agreement shall not be construed to be a waiver of the provision or any part thereof or the right of any party thereafter to enforce each and every part of the provision in respect of any subsequent default or breach.

REPRESENTATIONS AND WARRANTIES

30. Except as expressly stated in this Agreement, no representation, inducement or warranty was, prior to the execution of this Agreement, given or made by one of the Parties hereto with the intent of inducing any other Party to enter into this Agreement, and any representations, inducements or warranties that may have been so given are hereby denied and negated.

COMMUNICATIONS

31. Any formal communications by the Parties concerning this Agreement shall he deemed to have been made:-

(a) in the case of the Company, if signed by the Managing Director of the Company,
(b) in the case of the Communities, if signed by the President for the time being of the Kiunga Local Government Council and the President for the time being of the Lake Murray Local Government Council, or any successor bodies thereto, or in the absence of any successor bodies, by the District Administrator of the North Fly District.

32. Any formal communication shall be in writing and may be delivered either personally, or transmitted by facsimile to the person, or persons referred to in Clause 31.

33. Any formal communication shall be deemed to have reached the other Party:-

(a) in the case of personal delivery, when received by the relevant person referred to in Clause 31.
(b) in the case of facsimile, as soon as transmission is confirmed.

EXECUTION

34. The Parties acknowledge that this Agreement may take effect notwithstanding that it has not been executed on behalf of all of the communities referred to on page 1 and accordingly the Parties agree that this Agreement is duly executed and, subject to Clause 3, takes effect between the Company and the members of any one or more of the communities referred to on page 1 on whose behalf it is executed, when the Company executes this Agreement.

SCHEDULE 1

CONSULTATIONS

[To be completed]

SCHEDULE 2

ENVIRONMENTAL PREDICTIONS

If the Mine stays open there will be-more environmental effects downriver than if the Mine is closed now.

Dredging will reduce these effects but there is no practical way to stop the effects from occurring.

The best way to reduce the effects is for the Mine to close. If the Mine is closed now the effects will be reduced, but not prevented.

There is more risk in continuing with the Mine than with closing it.

If the Mine continues the following expected effects are likely to occur, but there is a risk that more severe or other adverse environmental effects could arise.

SCHEDULE 3

MINING (OK TEDI CONTINUATION (NINTH SUPPLEMENTAL) AGREEMENT) ACT

1. Recognises the involvement of local communities in the Consultations and their expressed views regarding the future of the Mine and containing the agreement of the State and Inmet Mining Corporation that the Mine should continue to operate.

2. Provides for the establishment of a regime of environmental monitoring and compliance with which the Company, in the opinion of its Board of Directors, can comply.

3. Approves and gives the force of law to the compensation and other arrangements contained in the Community Mine Continuation Agreements, including the finality of those compensation arrangements.

SCHEDULE 4

SCHEDULE 5

[or such of them whose representatives execute this Agreement]

ANNEXURE A

[To be completed

The Declaration of Trust to be Annexure A will establish a trust for charitable purposes for the benefit of the communities whose representatives have executed this Agreement. The charitable purposes of the trust will include improvement of living conditions, identification and development of sustainable rural and non-rural commercial ventures, the advancement of education and other purposes beneficial to the communities generally.]

COMMUNITY MINE CONTINUATION AGREEMENT HIGHWAY

THIS COMMUNITY MINE CONTINUATION AGREEMENT' is made as of the ..........................day of ...................... 2001

BETWEEN:

OK TEDI MINING LIMITED ("the Company")

AND

EACH OF THE MEMBERS OF THE COMMUNITIES OF

1. Sisimakam
2. Kwiloknai
3. Tapko
4. Hosonai
5. Hiorinkia
6. Awin Tamaro
7. Hosokumgu
8. Pampenai
9. Wangenai
10. Iankenai
11. Mimigire
12. Matkomnai
13. Kasrenai
14. Gresohore
15. Ipoknai
16. Dande (1)
17. Dande (2)
18. Hoponai
19. Tope
20. Menumsore
21. Briompenai
22. Rudmesuk
23. Rarengre
24. Miasomnai
25. Gre
26. Tiomnai
27. Gii
28. Grengas, and
29. Timindemesuk, [or such of them whose representatives execute this Agreement] on the Tabubil to Kiunga Highway of the Western Province (together "the Communities")

WHEREAS:

A. The Company operates the Ok Tedi Mine which has been in production since 1984 and which has a potential remaining economic life of approximately 10 years.

B. The Mine has brought benefits to the Communities, the Western Province and Papua New Guinea.

C. The Company has conducted the Mine Waste Management Project to assist it in ascertaining the possible future impact of continuing operations of the Ok Tedi Mine. The MWMP has resulted in Environmental Predictions that future environmental impacts are likely to occur as a result of continuing the operations of the Mine.

D. To date the Company has been unable to find a system of permanently storing tailings and waste that is technically and economically viable.

E. The State is considering the future of the Mine in light of the Environmental Predictions, including whether it should continue to operate and if so for how long and on what terms. Neither the Company nor the Communities consider that the Mine should continue to operate without the informed agreement of the Communities and the authorisation of the State.

F. The Communities and the Company have engaged in Consultations about the future of the Mine and in particular whether the Mine should continue to operate or be closed, and signed the Heads of Agreement.

G. The Communities have identified economic development as their major aspiration and have decided that, consistent with that aspiration, the Mine should continue to operate notwithstanding the Environmental Predictions.

H. Subject to the Condition Precedent, the Parties wish to record their respective commitments to facilitate mine continuation and the optimum use of available benefits streams over the remaining life of the Mine for the purpose of establishing self sustaining economic benefits and development for the Communities.

I. For the Company and the State to decide that the continuing Mine operations are economically viable, there must be reasonable certainty as to the cost of its operations, including compensation and benefits to the Communities, and the Parties therefore intend this Mine Continuation Agreement to be the complete, final and binding basis on which the Parties agree to support the continued operation of the Mine through to its closure.

J The State has agreed to give this agreement the force of law by enacting the Mine Continuation Act.

THE PARTIES AGREE AS FOLLOWS:

DEFINITIONS

1. In this Agreement, including the Recitals, the following definitions apply:

"BHP" means BHP Billiton Limited
"Condition Precedent" means the condition precedent in Clause 3.1
"Community Mine Continuation Agreements" means agreements between the Company and the Interested Communities by which each Interested Community gives its informed consent to the continuation of operations of the Mine, and includes this Agreement.
"Company's Commitments" means the commitments to make payments referred to in Clauses 17 and 18
"Company's Shareholders" means BHP Minerals Holdings Proprietary Limited, Inmet Mining Corporation, the State, Mineral Resources Ok Tedi No.2 Limited and all past and future shareholders.
"Consultations" means the meetings and discussions which have taken place between officers of the State, the Company and the Communities, in which the Company has presented information to the Communities on the results of the MWMP and the options for the future of the Mine. Further particulars of the Consultations are contained in Schedule 1.
"Dagi Proceeding" means proceeding No 5002 of 2000 brought by Rex Dagi against the Company and BHP in the Supreme Court.
"Declaration of Trust" means the declaration of trust establishing the Highway Trust, which is Annexure A.
"Development Fund" means the fund of that name described in the Declaration of Trust.
"Environmental Predictions" means the predictions that have been drawn from the MWMP, and described in Schedule 2.
"Heads of Agreement" means the document signed on behalf of the Company, the Communities, the State and the Provincial Government on or about 25 January 2001.
"Highway Trust" means the trust of that name establsihed by the Declaration of Trust.
"Interested Communities" means the collective residents of the villages in the Mine area, highway area, Lower Ok Tedi, North Ok Tedi, Middle Fly and South Fly.
"Investment Fund" means the fund of that name described in the Declaration of Trust.
"Land Owners" means those individual members of one or more of the Communities who are customary owners of their community's land.
"Land Users" means those individual members of one or more of the Communities who are not customary owners of their community's land.
"Mine Continuation Act" means the Mining (Ok Tedi Mine Continuation (Ninth Supplemental) Agreement) Act being an Act of the National Parliament of that or similar name which, among other things, meets the objectives described in Schedule 3.
"MWMP" means the Mine Waste Management Project conducted by the Company.
"Ok Tedi Mine" and "Mine" mean the Mine operated by the Company pursuant to the Mining (Ok Tedi Agreement) Act (Chapter 363)(as amended and supplemented).
"Parties" means the Company and the Communities severally.
"Settlement Agreement" means the two documents headed respectively Terms of Settlement and Settlement Agreement both dated 7 June 1996 and executed by or on behalf of Rex Dagi and others of the first part and the Company and others of the second part by which litigation concerning the Ok Tedi mine was terminated.
"State" means the Independent State of Papua New Guinea.
"Supreme Court Proceeding" means proceeding No 5003 of 2000 brought by Gabia Gagarimabu against the Company and BHP in the Supreme Court.
"Supreme Court" means the Supreme Court of Victoria.
"Termination Date" means 31 December 2001 or such later date as nominated in writing by the Company in accordance with Clause 3.1.

INTERPRETATION

2. In this Agreement unless the context requires otherwise:-

(a) monetary references are references to Papua New Guinea currency unless otherwise specifically expressed;
(b) the headings do not affect the interpretation or construction;
(c) words importing the singular include the plural and vice versa;
(d) words importing gender include the other gender;
(e) references to person include a corporation and vice versa;
(f) references to a Recital, Clause, Schedule or Annexure are to a Recital, Clause, Schedule or Annexure or part thereof of this Agreement; and
(g) the Recitals form part of this Agreement.

3. This Agreement is conditional upon and shall be of no force or effect unless prior to the Termination Date the National Parliament has enacted the Mine Continuation Act and all Community Mine Continuation Agreements have been given the force of law thereunder.

3.1 The Condition Precedent is for the sole benefit of the Company, which may prior to the Termination Date by notice in writing:

• (a) elect to waive reliance upon it, or
• (b) postpone the Termination Date to a nominated date.

3.2 If the Condition Precedent is not satisfied or waived prior to the Termination Date, the Parties will meet to negotiate in good faith appropriate compensation to the Communities for any uncompensated environmental effects of the Mine's operations that have occurred or are likely to occur in the future.

COMMUNITY CONSULTATIONS

4. The Parties acknowledge that

4.1 the Consultations have taken place for the purpose of exchanging information and views regarding the Environmental Predictions and the implications for the Communities of closure or continuation of the Mine,
4.2 the Consultations have given the relevant clan leaders within the Communities the opportunity to make representations to the Company and the State in connection with the review undertaken for the purposes of Clause 29G of the Mining (Ok Tedi Agreement) Act (Chapter 363) (as amended and supplemented),
4.3 the Consultations were intended by the Parties to ensure that any decision made by the Communities regarding the future of the Mine is made on the basis that all relevant information known to the Company concerning the social, economic and environmental consequences, both beneficial and detrimental, of continuing the operations of the Mine or closure of the Mine, has been made available to the Communities, and
4.4 a decision by the State and the Company to continue operation of the Mine will have the properly informed consent of the Communities.

5. The Communities acknowledge that all information requested by them in the course of the Consultations has been provided by the Company and that the Company has acted in good faith in the Consultations.

COMMITMENT TO SUSTAINABLE DEVELOPMENT & CO-OPERATION

6. The Parties agree that the greater part of future benefits passing from the Company to the Communities over the remaining life of the mine should be committed to investment in training, infrastructure and development that will provide an improved economic base for the Communities.

7. The Communities will co-operate with the Company to ensure the efficient and uninterrupted operation of the Mine, in recognition of the Company's Commitments and the benefits that the Mine provides to the Communities, the Western Province and Papua New Guinea.

8. Should a dispute arise between the Communities and the Company, the Communities agree to directly consult in good faith with the Company, the Western Province Government and the National Government to achieve resolution of that dispute.

COMMUNITIES' COMMITMENTS

9. The Communities, having considered:

9.1 the information disclosed to them in the Consultations;
9.2 the likely social, environmental and economic implications for themselves of the continuation of the Mine (including the Company's Commitments) in light of the Environmental Predictions, and
9.3 the likely social, environmental and economic implications for themselves of the early closure of the Mine,

have concluded and affirm that, subject to this Agreement, it is in the Communities' interest that the Mine should continue to operate rather than cease operations.

10. The Communities acknowledge that their decision is made in the knowledge or belief that:

10.1 the continued operation of the Mine may result in increased environmental impacts including those described in the Environmental Predictions, and that early closure of the Mine may result in reduced environmental impacts, and
10.2 the economic opportunities offered by the Company's Commitments represent to the Communities an acceptable trade off for the environmental impacts of the future operation of the Mine.

11. The Communities:

11.1 represent and warrant to the Company that, subject to the Company's Commitments, it is their decision that the Mine should continue to operate for the remainder of its economic life;
11.2 represent and warrant that the persons signing this Agreement for and on behalf of the Communities have the power and authority to do so and that this Agreement will be valid and binding on each member of the Communities; and
11.3 acknowledge that the Company will be acting in reliance upon these representations and warranties in the event that the Mine continues to operate.

COMMUNITIES' RELEASES

12. The Communities agree that this Mine Continuation Agreement is the complete, final and binding basis on which they agree to support the continuation of the Mine, and without derogating from (where applicable) the effect of the releases contained in and the compensation regime established by the Mining (Ok Tedi Agreement) Act (Chapter 363) (as amended and supplemented), the Settlement Agreement (where applicable) and any other releases between the Parties hereby release and discharge the Company, BHP, the Company's Shareholders and their respective associated corporations, directors, officers, employees and agents and former directors, officers, employees, and agents from all and any demands and claims arising directly or indirectly from the operation of the Mine or any associated works, and without limiting the generality of the foregoing that release and discharge includes and extends to:

12.1 the disposal by the Company of tailings and waste;
12.2 dredging, storage and release of dredged material;
12.3 occurrences or circumstances contemplated by or more adverse than or in excess of the Environmental Predictions;
12.4 the Settlement Agreement, and
12.5 any public statement concerning the Mine made by the Company, BHP or the Company's shareholders.

Nothing in this Clause 12 affects the rights of the Communities under Clause 27.

13. Each member of the Communities who is a party to the Settlement Agreement:

13.1 shall take such steps as are necessary to ensure that on or before 7 January 2002, whether by his authorised representatives or otherwise, he executes and delivers an opt out notice in the Supreme Court Proceeding; and
13.2 does hereby release and discharge the Company and BHP from each and every claim made in the Supreme Court Proceeding and the Dagi Proceeding.

14. The benefit of the releases and discharges provided by the Communities under this Agreement is held by the Company in trust for itself and each of the other persons in whose favour the releases and discharges are expressed to apply.

SUPREME COURT PROCEEDINGS

15. If the members of the Communities who are a party to the Settlement Agreement do not opt out of the Supreme Court Proceeding and, notwithstanding the releases and discharges given in Clauses 12 and 13, the Supreme Court, or any court of appeal therefrom, in either the Supreme Court Proceeding or the Dagi Proceeding, orders:

15.1 the construction of a tailings pipeline and storage facility, or another waste mitigation scheme (other than the dredging operation approved by the State), and the State authorises the construction of that facility or scheme, then Clauses 17 and 18 will cease to be of force or effect and the Company will have no further obligation to make payments under Clause 17 or 18 from the date of order; or
15.2 the payment of damages by the Company or BHP to the Communities or any members of them, then Clauses 17 and 18 will cease to be of force or effect, the Company will have no further obligation to make payments under Clause 17 or 18 from the date of any judgment or award of damages and all payments made pursuant to Clause 17 or 18 before that date will be taken into account and will be set off against those damages.

16. If the Communities opt out of the Supreme Court Proceeding but the Supreme Court, or any court of appeal therefrom, makes an order in the Supreme Court Proceeding or the Dagi Proceeding for the construction of a tailings pipeline and storage facility, or another waste mitigation scheme (other than the dredging operation approved by the State), and the State authorises the construction of that facility or scheme, the Parties agree to discuss in good faith with the State a review of the benefits available to the Communities under this Agreement taking into account the effect of the order on the ongoing economic viability of the Mine.

PAYMENT BY COMPANY FOR DISTURBANCE

17. Subject to Clause 25, for so long as the Mine is in operation, the Company shall make the annual payments described in Schedule 4 to the respective recipients and fund described therein, namely the Land Owners, the Land Users and the Investment Fund.

18. Subject to Clause 25, for so long as the Mine is in operation, the Company shall make the annual payments described in Schedule 5 to the Development Fund.

EFFECT OF PAYMENTS

19. Without derogating from (where applicable) the effect of the releases contained in and the compensation regime established by the Mining (Ok Tedi Agreement) Act (Chapter 363) (as amended and supplemented), the Settlement Agreement (where applicable), Clauses 12 and 13 of this Agreement and any other releases between the Parties, the payments to be made by the Company pursuant to this Agreement are and shall be in full compensation for all loss and damage contemplated by the Environmental Predictions suffered or to be suffered by the Communities in respect of disturbance to the environment area or their use or enjoyment of the environment, including, where applicable and without limitation to the generality of the foregoing,

(a) being deprived of the possession or use of the natural surface of the land area;
(b) damage to or contamination of the natural surface of the land;
(c) severance of the land or any part of it from other land owned or occupied by the Communities;
(d) any loss or restriction of a right of way, easement or other right;
(e) any loss or damage to improvements;
(f) in the case of land under cultivation, loss of earnings;
(g) disruption of agricultural activities;
(h) social disruption,
(i) garden damage and loss of economic trees;
(j) loss or damage to any flora or fauna, on the land or in the water, and
(k) loss or use or contamination of water.

20. For the avoidance of doubt, it is acknowledged that the Communities and their members who, at the date of this Agreement are eligible persons to receive general compensation pursuant to the Mining (Ok Tedi Agreement) Act (Chapter 363) (as amended and supplemented) will continue to be eligible persons to receive general compensation and (save for the matters listed in Clause 19 (a) to (k) inclusive) specific compensation pursuant to the Mining (Ok Tedi Agreement) Act (Chapter 363) (as amended and supplemented) and will continue to receive benefits indirectly under Clause 6.1 of the Settlement Agreement

TIMING OF PAYMENTS

21. The payments for 2001 in each of Schedules 4 and 5 shall be paid within 30 days of the Condition Precedent being satisfied.

22. Subject to the following clauses; all remaining payments pursuant to Clauses 17 and 18 which are due to be paid by the Company in a calendar year shall be paid within the fourth quarter of that calendar year.

23. The timing of payments by the Company to Land Owners and Land Users pursuant to Clause 17 only shall be subject to the continuous compliance by the respective recipients with all of their obligations under this Agreement, and in particular Clauses 7, 12 and 13. In the event of non-compliance with any provision of this Agreement, in particular Clauses 7, 12 and 13, the payment otherwise due to the non-complying recipients shall be deferred without interest until the due date for the next succeeding annual payment, subject always to the recipients' compliance with this Agreement, in particular Clause 7, 12 and 13, in the intervening period. In the event of further non-compliance in the intervening period, both payments shall be deferred on the same terms as applied to the first deferred payment. The same principles shall also be applied in respect of subsequent non-compliance with this Agreement, in particular Clause 7, 12 and 13. Any deferred payment subsisting as at the date of closure of the Mine will be paid by the Company to the Development Fund.

24. Payments by the Company to Land Owners shall be made by cheque payable to "[name of Clan] Land Owners". Payments to Land Users shall be made by cheque payable to "[name of Clan] Land Users". The members of the respective recipient groups shall determine the use or distribution of the payments according to their own discretion. The Company shall not in any circumstances be required to entertain claims by individuals within a recipient group or resolve disputes within the group. All payments made by the Company in accordance with this Clause will discharge the Company's obligation to make such payments and the Company shall not be obliged to see to the application of such payments.

25. Payments by the Company to the Investment Fund and the Development Fund shall be made to the trustees of the Highway Trust.

26. Notwithstanding Clauses 21 to 25 inclusive:

26.1 the Company in its discretion may withhold or defer payments under Clause 17 to the Land Owners and Land Users in any Community if that Community or a significant number (as determined by the Company) of clans in or members of that Community who are parties to the Settlement Agreement have failed to opt out of the Supreme Court Proceeding;
26.2 if the Mine ceases to operate before 2010:

• (a) the Company's obligation to make payments pursuant to Clauses 17 and 18 will also cease;
• (b) the Parties will meet to negotiate in good faith appropriate compensation to the Communities for any uncompensated environmental effects that have occurred or are likely to occur in the future regardless of the closure of the Mine; and

26.3 if the Mine continues to operate after 2010, the Company will make a payment to each of the Land Owners, Land Users, Investment Fund and Development Fund equal to the average of the payments to each in the years from 2001 to 2010 inclusive, for each calendar year of continued operation or pro-rated in respect of an incomplete year of continued operation.

RELATIONSHIP OF PAYMENTS TO ENVIRONMENTAL PREDICTIONS

27.1 The Company shall continue to monitor the environmental effects of the continuing operation of the Mine in accordance with its obligations to the State, and shall share the results with the Communities. To the extent that environmental effects of the continuing operation of the Mine exceed the Environmental Predictions, the Parties shall meet to discuss revision of the payments under Clauses 17 and 18, taking into account the environmental effects in excess of those contemplated in the Environmental Predictions. The Communities acknowledge and agree that if the Environmental Predictions are not accurate:

27.1 this right to discuss with the Company a revision of payments under Clauses 17 and 18 shall be their sole remedy in relation to the inaccuracy of the Environment Predictions;
27.2 any revision of payments shall only operate prospectively from the date any revision is agreed; and
27.3 this Agreement and in particular the releases and discharges contained in it shall remain in full force and effect and this Agreement shall not be liable to be set aside or rendered unenforceable.

If agreement cannot be reached on revision of the payments the Company may reconsider its decision to continue to operate the Mine.

FORMAL CLAUSES

FURTHER ACTS

28. The Parties shall execute such documents and do and perform such acts that lie within their power and are necessary to give full effect to this Agreement.

WAIVER

29. The failure of any Party to enforce, at any time, any of the provisions of the Agreement shall not be construed to be a waiver of the provision or any part thereof or the right of any party thereafter to enforce each and every part of the provision in respect of any subsequent default or breach.

REPRESENTATIONS AND WARRANTIES

30. Except as expressly stated in this Agreement, no representation, inducement or warranty was, prior to the execution of this Agreement, given or made by one of the Parties hereto with the intent of inducing any other Party to enter into this Agreement, and any representations, inducements or warranties that may have been so given are hereby denied and negated.

COMMUNICATIONS

31. Any formal communications by the Parties concerning this Agreement shall be deemed to have been made:-

(a) in the case of the Company, if signed by the Managing Director of the Company,
(b) in the case of the Communities, if signed by the President for the time being of the Ningerum Local Government Council and the President for the time being of the Kiunga Local Government Council, or any successor bodies thereto, or in the absence of any successor bodies, by the District Administrator of the North Fly District.

32. Any formal communication shall be in writing and may be delivered either personally, or transmitted by facsimile to the person, or persons referred to in Clause 31.

33. Any formal communication shall be deemed to have reached the other Party:-

(a) in the case of personal delivery, when received by the relevant person referred to in Clause 31;
(b) in the case of facsimile, as soon as transmission is confirmed.

EXECUTION

34. The Parties acknowledge that this Agreement may take effect notwithstanding that it has not been executed on behalf of all of the communities referred to on page 1 and accordingly the Parties agree that this Agreement is duly executed, and, subject to Clause 3, takes effect between the Company and the members of any one or more of the communities referred to on page 1 on whose behalf it is executed when the Company executes this Agreement.

SCHEDULE 1

CONSULTATIONS

[To be completed]

SCHEDULE 2

ENVIRONMENTAL PREDICTIONS

If the Mine stays open there will be more environmental effects downriver than if the Mine is closed now.

Dredging will reduce these effects but there is no practical way to stop the effects from occurring.

The best way to reduce the effects is for the Mine to close. If the Mine is closed now the effects will be reduced, but not prevented.

There is more risk in continuing with the Mine than with closing it.

If the Mine continues the following expected effects are likely to occur, but there is a risk that more severe or other adverse environmental effects could arise.

SCHEDULE 3

MINING (OK TEDI CONTINUATION (NINTH SUPPLEMENTAL) AGREEMENT) ACT

1. Recognises the involvement of local communities in the Consultations and their expressed views regarding the future of the Mine and containing the agreement of the State and Inmet Mining Corporation that the Mine should continue to operate.

2. Provides for the establishment of a regime of environmental monitoring and compliance with which the Company, in the opinion of its Board of Directors, can comply.

3. Approves and gives the force of law to the compensation and other arrangements contained in the Community Mine Continuation Agreements, including the finality of those compensation arrangements.

SCHEDULE 4

SCHEDULE 5

IN WITNESS WHEREOF this Agreement has been executed by the Parties on the ................... day of .................... 2001.

[or such of them whose representatives execute this Agreement]

ANNEXURE A

[To be Completed

The Declaration of Trust to be Annexure A will establish a trust for charitable purposes for the benefit of the communities whose representatives have executed this Agreement. The charitable purposes of the trust will include improvement of living conditions, identification and development of sustainable rural and non-rural commercial ventures, the advancement of education and other purposes beneficial to the communities generally.]

COMMUNITY MINE CONTINUATION AGREEMENT

LOWER OK TEDI

THIS COMMUNITY MINE CONTINUATION AGREEMENT is made as of the ...................... day of ........................ 2001

BETWEEN:

OK TEDI MINING LIMITED ("the Company)")

AND

EACH OF THE MEMBERS OF THE COMMUBNITIES OF

1. Atkambia
2. Ieran
3. Domre
4. Ambaga
5. Kawok
6. Iogi
7. Komopkin
8. Bomgubun
9. Senemrae
10. Kwiape
11. Konkonda
12. Bige
13. Miamre
14. Sarae
15. Demasuke
16. Birimkamba
17. Pastmambin
18. Kungembit, and
19. Kungim [or such of them whose representatives execute this Agreement] in the Lower Ok Tedi region of the Western Province (together "the Communities")

WHEREAS:

A The Company operates the Ok Tedi Mine which has been in production since 1984 and which has a potential remaining economic life of approximately 10 years.

B. The Mine has brought benefits to the Communities, the Western Province and Papua New Guinea.

C. The Company has conducted the Mine Waste Management Project to assist it in ascertaining the possible future impact of continuing operations at the Ok Tedi Mine. The MWMP has resulted in Environmental Predictions that future environmental impacts are likely to occur as a result of continuing the operations of the Mine.

D. To date the Company has been unable to find a system of permanently storing tailings and waste that is technically and economically viable.

E. The State is considering the future of the Mine in light of the Environmental Predictions, including whether it should continue to operate and if so for how long and on what terms. Neither the Company nor the Communities consider that the Mine should continue to operate without the informed agreement of the Communities and the authorisation of the State.

F. The Communities and the Company have engaged in Consultations about the future of the Mine and in particular whether the Mine should continue to operate or be closed, and signed the Heads of Agreement.

G. The Communities have identified economic development as their major aspiration and have decided that, consistent with that aspiration, the Mine should continue to operate notwithstanding the Environmental Predictions.

H. Subject to the Condition Precedent, the Parties wish to record their respective commitments to facilitate mine continuation and the optimum use of available benefits streams over the remaining life of the Mine for the purpose of establishing self-sustaining economic benefits and development for the Communities.

I. For the Company and the State to decide that the continuing Mine operations are economically viable, there must be reasonable certainty as to the cost of its operations, including compensation and benefits to the Communities, and the Parties therefore intend this Mine Continuation Agreement to be the complete, final and binding basis on which the Parties agree to support the continued operation of the Mine through to its closure.

J. The State has agreed to give this agreement the force of law by enacting the Mine Continuation Act.

THE PARTIES AGREE AS FOLLOWS:

DEFINITIONS

1. In this Agreement, including the Recitals, the following definitions apply:

"Alice River Trust" means the trust established by the Declaration of Trust.
"BHP" means BHP Billiton Limited
"Condition Precedent" means the condition precedent in Clause 3.1
"Community Mine Continuation Agreements" means agreements between the Company and the Interested Communities by which each Interested Community gives its informed consent to the continuation of operations of the Mine, and includes this Agreement.
"Company's Commitments" means the commitments to make payments referred to in Clauses 17 and 18
"Company's Shareholders" means BHP Minerals Holdings Proprietary Limited, Inmet Mining Corporation, the State, Mineral Resources Ok Tedi No.2 Limited and all past and future shareholders.
"Consultations" means the meetings and discussions which have taken place between officers of the State, the Company and the Communities, in which the Company has presented information to the Communities on the results of the MWMP and the options for the future of the Mine. Further particulars of the Consultations are contained in Schedule 1.
"Dagi Proceeding" means proceeding No 5002 of 2000 brought by Rex Dagi against the Company and BHP in the Supreme Court.
"Declaration of Trust" means the declaration of trust establishing the Alice River Trust which is the Annexure to the Lower Ok Tedi Agreement between the Parties dated 9 May 1997.
"Development Fund" means the fund of that name described in the Declaration of Trust.
"Environmental Predictions" means the predictions that have been drawn from the MWMP, and described in Schedule 2.
"Future Generations Fund" means the fund of that name described in the Declaration of Trust.
"Heads of Agreement" means the document signed on behalf of the Company, the Communities, the State and the Provincial Government on or about 10 April 2001.
"Interested Communities" means the collective residents of the villages in the Mine area, highway area, Lower Ok Tedi, North Ok Tedi, Middle Fly and South Fly.
"Land Owners" means those individual members of one or more of the Communities who are customary owners of their community's land.
"Land Users" means those individual members of one or more of the Communities who are not customary owners of their community's land.
"Alice River Trust" means the trust of that name established by the Declaration of Trust.
"Mine Continuation Act" means the Mining (Ok Tedi Mine Continuation (Ninth Supplemental) Agreement) Act being an Act of the National Parliament of that or similar name which, among other things, meets the objectives described in Schedule 3.
"MWMP" means the Mine Waste Management Project conducted by the Company.
"Ok Tedi Mine" and "Mine" mean the mine operated by the Company pursuant to the Mining (Ok Tedi Agreement) Act (Chapter 363)(as amended and supplemented).
"Parties" means the Company and the Communities severally.
"Settlement Agreement" means the two documents headed respectively Terms of Settlement and Settlement Agreement both dated 7 June 1996 and executed by or on behalf of Rex Dagi and others of the first part and the Company and others of the second part by which litigation concerning the Ok Tedi mine was terminated.
"State" means the Independent State of Papua New Guinea.
"Supreme Court Proceeding" means proceeding No 5003 of 2000 brought by Gabia Gagarimabu against the Company and BHP in the Supreme Court.
"Supreme Court" means the Supreme Court of Victoria.
"Termination Date" means 31 December 2001 or such later date as nominated in writing by the Company in accordance with Clause 3.1.

INTERPRETATION

2. In this Agreement unless the context requires otherwise:-

(a) monetary references are references to Papua New Guinea currency unless otherwise specifically expressed;
(b) the headings do not affect the interpretation or construction;
(c) words importing the singular include the plural and vice versa;
(d) words importing gender include the other gender;
(e) references to a person include a corporation and vice versa;
(f) references to a Recital, Clause, Schedule or Annexure are to a Recital, Clause, Schedule or Annexure or part thereof of this Agreement; and
(g) the Recitals form part of this Agreement.

CONDITION PRECEDENT

3. This Agreement is conditional upon and shall be of no force or effect unless prior to the Termination Date the National Parliament has enacted the Mine Continuation Act and all Community Mine Continuation Agreements have been given the force of law thereunder.

3.1 The Condition Precedent is for the sole benefit of the Company, which may prior to the Termination Date by notice in writing:

• (a) elect to waive reliance upon it, or
• (b) postpone the Termination Date to a nominated date

3.2 If the Condition Precedent is not satisfied or waived prior to the Termination Date, the Parties will meet to negotiate in good faith appropriate compensation to the Communities for any uncompensated environmental effects of the Mine's operations that have occurred or are likely to occur in the future.

COMMUNITY CONSULTATIONS

4. The Parties acknowledge that

4.1 the Consultations have taken place for the purpose of exchanging information and views regarding the Environmental Predictions and the implications for the Communities of closure or continuation of the Mine,
4.2 the Consultations have given the clan leaders within the Communities the opportunity to make representations to the Company and the State in connection with the review undertaken for the purposes of Clause 290 of the Mining (Ok Tedi Agreement) Act (Chapter 363) (as amended and supplemented),
4.3 the Consultations were intended by the Parties to ensure that any decision made by the Communities regarding the future of the Mine is made on the basis that all relevant information known to the Company concerning the social, economic and environmental consequences, both beneficial and detrimental, of continuing the operations of the Mine or closure of the Mine, has been made available to the Communities, and
4.4 a decision by the State and the Company to continue operation of the Mine will have the properly informed consent of the Communities.

5. The Communities acknowledge that all information requested by them in the course of the Consultations has been provided by the Company and that the Company has acted in good faith in the Consultations.

COMMITMENT TO SUSTAINABLE DEVELOPMENT & CO-OPERATION

6. The Parties agree that the greater part of future benefits passing from the Company to the Communities over the remaining life of the Mine should be committed to investment in training, infrastructure and development that will provide an improved economic base for the Communities.

7. The Communities will co-operate with the Company to ensure the efficient and uninterrupted operation of the Mine, in recognition of the Company's Commitments and the benefits that the Mine provides to the Communities, the Western Province and Papua New Guinea.

8. Should a dispute arise between the Communities and the Company, the Communities agree to directly consult in good faith with the Company, the Western Province Government and the National Government to achieve resolution of that dispute.

COMMUNITIES' COMMITMENTS

9. The Communities, having considered:

9.1 the information disclosed to them in the Consultations;
9.2 the likely social, environmental and economic implications for themselves of the continuation of the Mine (including the Company's Commitments) in light of the Environmental Predictions, and
9.3 the likely social, environmental and economic implications for themselves of the early closure of the Mine.

have concluded and affirm that, subject to this Agreement, it is in the Communities' interest that the Mine should continue to operate rather than cease operations.

10. The Communities acknowledge that their decision is made in the knowledge or belief that:

10.1 the continued operation of the Mine may result in increased environmental effects including those described in the Environmental Predictions, and that early closure of the Mine may result in reduced environmental effects, and
10.2 the economic opportunities offered by the Company's Commitments represent to the Communities an acceptable trade off for the environmental effects of the future operation of the Mine.

11. The Communities:

11.1 represent and warrant to the Company that, subject to the Company's Commitments, it is their decision that the Mine should continue to operate for the remainder of its economic life;
11.2 represent and warrant that the persons signing this Agreement for and on behalf of each member of the Communities have the power and authority to do so and that this Agreement will be valid and binding on each member of the Communities; and
11.3 acknowledge that the Company will be acting in reliance upon these representations and warranties in the event that the Mine continues to operate.

COMMUNITIES' RELEASES

12. The Communities agree that this Community Mine Continuation Agreement is the complete, final and binding basis on which they agree to support the continuation of the Mine, and without derogating from the effect of the releases contained in and the compensation regime established by the Mining (Ok Tedi Agreement) Act (Chapter 363) (as amended and supplemented), the Settlement Agreement and any other releases between the Parties hereby release and discharge the Company, BHP, the Company's Shareholders and their respective associated corporations, directors, officers, employees and agents and former directors, officers, employees and agents from all and any demands and claims arising directly or indirectly from the operation of the Mine or any associated works, and without limiting the generality of the foregoing that release and discharge includes and extends to:

12.1 the disposal by the Company of tailings and waste;
12.2 dredging, storage and release of dredged material;
12.3 occurrences or circumstances contemplated by or more adverse than or in excess of the Environmental Predictions;
12.4 the Settlement Agreement; and
12.5 any public statement concerning the Mine made by the Company, BHP or the Company's Shareholders.

Nothing in this Clause 12 affects the rights of the Communities under Clause 27.

13. The Communities:

13.1 shall take such steps as are necessary to ensure that on or before 7 January 2002 the Communities, whether by their authorised representatives or otherwise, execute and deliver opt out notices in the Supreme Court Proceeding; and
13.2 do hereby release and discharge the Company and BHP from each and every claim made in the Supreme Court Proceeding and the Dagi Proceeding.

14. The benefit of the releases and discharges provided by the Communities under this Agreement is held by the Company in trust for itself and each of the other persons in whose favour the releases and discharges are expressed to apply.

SUPREME COURT PROCEEDINGS

15. If the Communities do not opt out of the Supreme Court Proceeding and, notwithstanding the releases and discharges given in Clauses 12 and 13, the Supreme Court, or any court of appeal therefrom, in either the Supreme Court Proceeding or the Dagi Proceeding, orders:

15.1 the construction of a tailings pipeline and storage facility, or another waste mitigation scheme (other than the dredging operation approved by the State), and the State authorises the construction of that facility or scheme, then Clauses 17 and 18 will cease to be of force or effect and the Company will have no further obligation to make payments under Clause 17 or 18 from the date of order; or
15.2 the payment of damages by the Company or BHP to the Communities or any member of them, then Clauses 17 and 18 will cease to be of force or effect, the Company will have no further obligation to make payments under Clause. 17 or 18 from the date of any judgment or award of damages and all payments made pursuant to Clause 17 or 18 before that date will be taken into account and will be set off against those damages.

16. If the Communities opt out of the Supreme Court Proceeding but the Supreme Court, or any court of appeal therefrom, makes an order in the Supreme Court Proceeding or the Dagi Proceeding for the construction of a tailings pipeline and storage facility, or another waste mitigation scheme (other than the dredging operation approved by the State), and the State authorises the construction of that facility or scheme, the Parties agree to discuss in good faith with the State a review of the benefits available to the Communities under this Agreement taking into account the effect of the order on the ongoing economic viability of the Mine.

PAYMENT BY COMPANY FOR DISTURBANCE

17. Subject to Clause 26, for so long as the Mine is in operation, the Company shall make the annual payments described in Schedule 4 to the respective recipients and fund described therein, namely the Land Owners, the Land Users and the Future Generation Fund of the Alice River Trust.

18. Subject to Clause 26, for so long as the Mine is in operation, the Company shall make the annual payments described in Schedule 5 to the Development Fund of the Alice River Trust.

EFFECT OF PAYMENTS

19. Without derogating from the effect of the releases contained in and the compensation regime established by the Mining (Ok Tedi Agreement) Act (Chapter 363) (as amended and supplemented), the Settlement Agreement, Clauses 12 and 13 of this Agreement and any other releases given by a Party, the payments to be made by the Company pursuant to this Agreement are and shall be in full compensation for all loss and damage contemplated by the Environmental Predictions suffered or to be suffered by the Communities in respect of disturbance to the environment in the Lower Ok Tedi area or their use or enjoyment of the environment, including, where applicable and without limitation to the generality of the foregoing,

(a) being deprived of the possession or use of the natural surface of the land area;
(b) damage to or contamination of the natural surface of the land;
(c) severance of the land or any part of it from other land owned or occupied by the Communities;
(d) any loss or restriction of a right of way, easement or other right;
(e) any loss or damage to improvements;
(f) in the case of land under cultivation, loss of earnings;
(g) disruption of agricultural activities;
(h) social disruption;
(i) garden damage and loss of economic trees;
(j) loss or damage to any flora or fauna, on the land or in the water; and
(k) loss or use or contamination of water.

20. For the avoidance of doubt, it is acknowledged that the Communities and their members will continue to be eligible persons to receive general compensation and (save for the matters listed in Clause 19 (a) to (k) inclusive) specific compensation pursuant to the Mining (Ok Tedi Agreement) Act (Chapter 363) (as amended and supplemented) and will continue to receive benefits indirectly under Clause 6.1 of the Settlement Agreement

TIMING OF PAYMENTS

21. The payments for 2001 in each of Schedules 4 and 5 shall be paid within 30 days of the Condition Precedent being satisfied,

22. Subject to the following Clauses, all remaining payments pursuant to Clauses 17 and 18 which are due to be paid by the Company in a calendar year shall be paid within the fourth quarter of that calendar year.

23. The timing of payments by the Company to Land Owners and Land Users pursuant to Clause 17 only shall be subject to the continuous compliance by the respective recipients with all of their obligations under this Agreement, and in particular Clauses 7, 12 and 13. In the event of non-compliance with any provision of this Agreement, in particular Clauses 7, 12 or 13, the payment otherwise due to the non-complying recipients shall be deferred without interest until the due date for the next succeeding annual payment, subject always to the recipients' compliance with this Agreement, in particular Clauses 7, 12 and 13, in the intervening period. In the event of further non-compliance in the intervening period, both payments shall be deferred on the same terms as applied to the first deferred payment. The same principles shall also be applied in respect of subsequent non-compliance with this Agreement, in particular Clauses 7, 12 or 13. Any deferred payment subsisting as at the date of closure of the Mine will be paid by the Company to the Development Fund.

24. Payments by the Company to Land Owners shall be made by cheque payable to "[name of Clan] Land Owners". Payments to Land Users shall be made by cheque payable to "[name of Clan] Land Users". The members of the respective recipient groups shall determine the use or distribution of the payments according to their own discretion. The Company shall not in any circumstances be required to entertain claims by individuals within a recipient group or resolve disputes within the group. All payments made by the Company in accordance with this Clause will discharge the Company's obligation to make such payments and the Company shall not be obliged to see to the application of such payments.

25. Payments by the Company to the Future Generations Fund and the Development Fund shall be made to the trustees of the Middle Foundation.

26. Notwithstanding Clauses 21 to 25 inclusive:

26.1 the Company in its discretion may withhold or defer payments under Clause 17 to the Land Owners and Land Users in any Community if that Community or a majority (or other significant number as determined by the Company) of clans in or members of that Community have failed to opt out of the Supreme Court Proceeding,
26.2 if the Mine ceases to operate before 2010:

• (a) the Company's obligation to make payments pursuant to Clauses 17 and 18 will also cease, and
• (b) the Parties will meet to negotiate in good faith appropriate compensation to the Communities for any uncompensated environmental effects that have occurred or are likely to occur in the future regardless of the closure of the Mine, and

26.3 if the Mine continues to operate after 2010, the Company will make a payment to each of the Land Owners, Land Users, Future Generations Fund and Development Fund, equal to the average of the payments to each of them in the years from 2001 to 2010 inclusive, for each complete calendar year of continued operation or pro rated in respect of an incomplete calendar year of continued operation.

RELATIONSHIP OF PAYMENTS TO ENVIRONMENTAL PREDICTIONS

27. The Company shall continue to monitor the environmental effects of the continuing operation of the Mine in accordance with its obligations to the State, and shall share the results with the Communities. To the extent that environmental effects of the continuing operation of the Mine exceed the Environmental Predictions, the Parties shall meet to discuss revision of the payments under Clauses 17 and 18, taking into account the environmental effects in excess of those contemplated in the Environmental Predictions. The Communities acknowledge and agree that if the Environmental Predictions are not accurate:

27.1 this right to discuss with the Company a revision of payments under Clauses 17 and 18 shall be their sole remedy in relation to the inaccuracy of the Environment Predictions;
27.2 any revision of payments shall only operate prospectively from the date any revision is agreed; and
27.3 this Agreement and in particular the releases and discharges contained in it shall remain in full force and effect and this agreement shall not be liable to be set aside or rendered unenforceable.

If agreement cannot be reached on revision of the payments the Company may reconsider its decision to continue to operate the Mine.

FORMAL CLAUSES

FURTHER ACTS

28. The Parties shall execute such documents and do and perform such acts that lie within their power and are necessary to give full effect to this Agreement.

WAIVER

29. The failure of any Party to enforce, at any time, any of the provisions of the Agreement shall not be construed to be a waiver of the provision or any part thereof or the right of any party thereafter to enforce each and every part of the provision in respect of any subsequent default or breach.

REPRESENTATIONS AND WARRANTIES

30. Except as expressly stated in this Agreement, no representation, inducement or warranty was, prior to the execution of this Agreement, given or made by one of the Parties hereto with the intent of inducing any other Party to enter into this Agreement, and any representations, inducements or warranties that may have been so given are hereby denied and negated.

COMMUNICATIONS

31. Any formal communications by the Parties Concerning this Agreement shall be deemed to have been made:-

(a) in the case of the Company, if signed by the Managing Director of the Company,
(b) in the case of the Communities, if signed by the President for the time being of the Kiunga Local Government Council and the President for the time being of the Ningerum Local Government Council, or any successor bodies thereto, or in the absence of any successor bodies, by the District Administrator of the North Fly District.

32. Any formal communication shall be in writing and may be delivered either personally, or transmitted by facsimile to the person, or persons referred to in Clause 31.

33. Any formal communication shall be deemed to have reached the other Party:-

(a) in the case of personal delivery, when received by the relevant person referred to in Clause 31.
(b) in the case of facsimile, as soon as transmission is confirmed.

EXECUTION

34. The Parties acknowledge that this Agreement may take effect notwithstanding that it has not been executed on behalf of all of the communities referred to on page 1 and accordingly the Parties agree that this Agreement is duly executed and, subject to Clause 3, takes effect between the Company and the members of any one or more of the communities referred to on page 1 on whose behalf it is executed, when the Company executes this Agreement.

SCHEDULE 1

CONSULTATIONS

[To be completed]

SCHEDULE 2

ENVIRONMENTAL PREDICTIONS

If the Mine stays open there will be more environmental effects downriver than if the Mine is closed now.

Dredging will reduce these effects but there is no practical way to stop the effects from occurring.

The best way to reduce the effects is for the Mine to close. If the Mine is closed now the effects will be reduced, but not prevented.

There is more risk in continuing with the Mine than with closing it.

If the Mine continues the following expected effects are likely to occur, but there is a risk that more severe or other adverse environmental effects could arise.

SCHEDULE 3

MINING (OK TEDI CONTINUATION (NINTH SUPPLEMENTAL) AGREEMENT) ACT

1. Recognises the involvement of local communities in the Consultations and their expressed views regarding the future of the Mine and containing the agreement of the State and Inmet Mining Corporation that the Mine should continue to operate.

2. Provides for the establishment of a regime of environmental monitoring and compliance with which the Company, in the opinion of its Board of Directors, can comply.

3. Approves and gives the force of law to the compensation and other arrangements contained in the Community Mine Continuation Agreements, including the finality of those compensation arrangements.

SCHEDULE 4

SCHEDULE 5

IN WITNESS WHEREOF this Agreement has been executed by the Parties on the .................... day of ................. 2001.

COMMUNITY MINE CONTINUATION AGREEMENT

MIDDLE FLY

THIS COMMUNITY MINE CONTINUATION AGREEMENT is made as of the ........................... day of .......................... 2001

BETWEEN:

OK TEDI MINING LIMITED ("the Company")

AND

EACH OF THE MEMBERS OF THE COMMUNITIES OF

1. Mepu
2. Uluwas
3. Moian
4. Erecta
5. Kukujaba
6. Karemgu
7. Membok
8. Kwem
9. Mipan
10. Manda
11. Bosset
12. Wangawanga
13. Komovai
14. Kaviananga
15. Owa
16. Levame
17. Kasa, [or such of them whose representatives execute this Agreement] in the Middle Fly region of the Western Province (together "the Communities")

WHEREAS:

A. The Company operates the Ok Tedi Mine which has been in production since 1984 and which has a potential remaining economic life of approximately 10 years.

B. The Mine has brought benefits to the Communities, the Western Province and Papua New Guinea.

C. The Company has conducted the Mine Waste Management Project to assist it in ascertaining the possible future effect of continuing operations of the Ok Tedi Mine. The MWMP has resulted in Environmental Predictions that future environmental effects are likely to occur as a result of continuing the operations of the Mine.

D. To date the Company has been unable to find a system of permanently storing tailing and waste that is technically and economically viable.

E. The State is considering the future of the Mine in light of the Environmental Predictions, including whether it should continue to operate and if so far how long and on what terms. Neither the Company nor the Communities consider that the Mine should continue to operate without the informed agreement of the Communities and the authorisation of the State.

F. The Communities and the Company have engaged in Consultations about the future of the Mine and in particular whether the Mine should continue operate or be closed, and sign the Heads of Agreement.

G. The communities have identified economic development as their major aspiration and have decided that, consistent with that aspiration, the Mine should continue to operate notwithstanding the Environmental Predictions.

H. Subject to the Condition Precedent, the parties wish to record their respect commitments to facilitate mine continuation and the optimum use of available benefits streams over the remaining life of the Mine for the purpose of establishing self-sustaining economic benefits and development for the communities.

I. For the Company and the State to decide that the continuing Mine operations are economically viable, there must be reasonable certainty as to the cost of the operations of the Mine, including compensation and benefits to the Communities, and the Parties therefore intend this Mine Continuation Agreement to be the complete, final and binding basis on which the Parties agree to support the continued operation of the Mine through to its closure.

J. The State has agreed to give this agreement the force of law by enacting the Mine Continuation Act.

THE PARTIES AGREE AS FOLLOWS:

DEFINITIONS

1. In this Agreement, including the Recitals, the following definitions apply:

"BHP" means BHP Billiton Limited.

"Children's Fund" means the fund of that name described in the Declaration of Trust.

"Condition Precedent" means the condition precedent in Clause 3.1

"Community Mine Continuation Agreements" means agreements between the Company and the Interested Communities by which each Interested Community gives its informed consent to the continuation of operations of the Mine, and includes this Agreement.

"Company's Commitments" means the commitments of the Company to make payments referred to in Clauses 17 and 18.

"Company's Shareholders" means BHP Minerals Holdings Proprietary Limited, Inmet Mining Corporation, the State, Mineral Resources Ok Tedi No. 2 Limited and all past and future shareholders.

"Consultations" means the meetings and discussions which have taken place between officers of the State, the Company and the Communities, in which the Company has presented information to the Communities on the results of the MWMP and the options for the future of the Mine. Further particulars of the Consultations are continued in Schedule 1.

"Dagi Proceeding" means proceeding No 5002 of 2000 brought by Rex Dagi against the company and BHP in the Supreme Court.

"Declaration of Trust" means the declarations of trust establishing the Middle Fly Foundation, which is Annexure A.

"Development Fund" means the fund of that name described in the Declaration of Trust.

"Environmental Predictions" means the predictions that have been drawn from the MWMP and described in Schedule 2.

"Heads of Agreement" means the document signed on behalf of the Company, the Communities, the State and the Provincial Government on or about 29 September 2000.

"Interested Communities" means the collective residents of the villages in the Mine area, highway area, Lower Ok Tedi, North Ok Tedi, Middle Fly and South Fly.

"Land Owners" means those individual members of one or more of the Communities who are customary owners of their community's land.

"Land Users" means those individual members of one or more of the Communities who are customary owners of their community's land.

"Legal Costs" means the legal fees and disbursements described in Schedule 6.

"Middle Fly Foundation" means the trust of that name established by the Declaration of Trust.

"Mine Continuation Act" means the Mining (Ok Tedi Mine Continuation (Ninth Supplemental) Agreement) Act being an Act of the National Parliament of that or similar name which, among other things, meets the objectives described in Schedule 3.

"MWMP" means the Mine Waste Management Project conducted by the Company.

"Ok Tedi Mine" and "Mine" mean the mine operated by the Company pursuant to the Mining (Ok Tedi Agreement) Act (Chapter 363) (as amended and supplemented).

"Parties" means the Company and the Communities severally.

"Settlement Agreement" means the two documents headed respectively Terms of Settlement and Settlement Agreement both dated 7 June 1996 and executed by or on behalf of Rex Dagi and others of the first part and the Company and others of the second part by which litigation concerning the Ok Tedi Mine was terminated.

"State" means the Independent State of Papua New Guinea.

"Supreme Court proceeding" means proceeding No 5003 of 2000 brought by Gabia Gagarimabu against the Company and BHP in the Supreme Court.

"Supreme Court" means the Supreme Court of Victoria

"Termination Date" means 31 December 2001 or such later date as nominated in writing by the Company in accordance with Clause 3.1

INTERPRETATION

2. In this Agreement unless the context requires otherwise:-

(a) monetary references are references to Papua New Guinea currency unless otherwise specifically expressed;

(b) the headings do not affect the interpretation or construction;

(c) words importing the singular include the plural and vice versa;

(d) words importing gender include the other gender;

(e) references to a person include a corporation and vice versa;

(f) references to a Recital, Clause, Schedule or Annexure are to a Recital, Clause, Schedule or Annexure or part thereof of this Agreement; and

(g) the Recitals from part of this Agreement.

CONDITION PRECEDENT

3. This Agreement is conditional upon and shall be of no force or effect unless prior to the Termination Date the National Parliament has enacted the Mine Continuation Act and all Community Mine Continuation Agreements have been given the force of law thereunder.

3.1 The Condition Precedent is for the sole benefit of the Company, which may prior to the Termination Date by notice in witting:

(a) elect to waive reliance upon it, or

(b) postpone the Termination Date to a nominated date

3.2 If the Condition Precedent is not satisfied or waived prior to the Termination Date, the Parties will meet to negotiate in good faith appropriate compensation to the Communities for any uncompensated environmental effects of the Mine's operations that have occurred or are likely to occur in the future.

COMMUNITY CONSULTATIONS

4. The parties acknowledge that

4.1 the Consultations have taken place for the purpose of exchanging information and views regarding the Environmental Predictions and the implications for the Communities of closure or continuation of the Mine,
4.2 the Consultations have given the clan leaders within the Communities the opportunity to make representations to the Company and the State in connection with the review undertaken for the purposes of Clause 29G of the Mining (Ok Tedi Agreement) Act (Chapter 363) (as amended and supplemented),
4.3 the Consultations were intended by the Parties to ensure that any decision made by the Communities regarding the future of the Mine is made on the basis that all relevant information known to the Company concerning the social, economic and environmental consequences, both beneficial and detrimental, of continuing the operations of the Mine or closure of the Mine, has been made available to the Communities, and
4.4 a decision by the State and the Company to continue operation of the Mine will have the property informed consent of the Communities.

5. The Communities acknowledge that all information requested by them in the course of the Consultations has been provided by the Company and that the Company has acted in good faith in the Consultations.

COMMITMENT TO SUSTAINABLE DEVELOPMENT & CO-OPERATION

6. The Parties agree that the greater part of future benefits passing from the Company to the Communities over the remaining life of the Mine should be committed to investment in training, infrastructure and development that will provide an improved economic base for the Communities.

7. The Communities will co-operate with the Company to ensure the efficient and uninterrupted operation of the Mine, in recognition of the Company's Commitments and the benefits that the Mine provides to the Communities, the Western Province and Papua New Guinea.

8. Should a dispute arise between the Communities and the Company, the Communities agree to directly consult in good faith with the Company, the Western Province Government and the National Government to achieve resolution of that dispute.

COMMUNITIES' COMMITMENTS

9. The Communities, having considered:

9.1 the information disclosed to them in the Consultations;
9.2 the likely social, environmental and economic implications for themselves of the continuation of the Mine (including the Company's Commitments) in light of the Environmental Predictions, and
9.3 the likely social, environmental and economic implications for themselves of the early closure of the Mine,

have concluded and affirm that, subject to this Agreement it is in the Communities' interest that the Mine should continue to operate rather than cease operations.

10. The Communities acknowledge that their decision is made in the knowledge or belief that:

10.1 the continued operation of the Mine may result in increased environmental effects including those described in the Environmental Predictions, and that early closure of the mine may result in reduced environmental effects, and
10.2 the economic opportunities offered by the Company's Commitments represent to the Communities an acceptable trade off for the environmental effects of the future operation of the Mine.

11. The Communities:

11.1 represent and warrant to the Company that, subject to the Company's Commitments; it is their decision that the Mine should continue to operate for the remainder of its economic life;
11.2 represent and warrant that the persons signing this Agreement for and on behalf of each member of the Communities have the power and authority to do so and that this Agreement will be valid and binding on each member of the Communities; and
11.3 acknowledge that the Company will be acting in reliance upon these representations and warranties in the event that the Mine continues to operate.

COMMUNITIES' RELEASES

12. The Communities agree that this Community Mine Continuation Agreement is the complete, final and binding basis on which they agree to support the continuation of the Mine, and without derogating from the effect of the releases contained in and the compensation regime established by the Mining (Ok Tedi Agreement) Act (Chapter 363) (as amended and supplemented), the Settlement Agreement and any other releases between the Parties hereby releases and discharge the Company, BHP, the Company's Shareholders and their respective associated corporations, directors, officers, employees and agents and former directors, officers, employees and agents from all and any demands and claims arising directly or indirectly from the operation of the Mine or any associated works, and without limiting the generality of the foregoing that release and discharge includes and extends to:

12.1 the disposal by the Company of tailing and waste;
12.2 dredging, storage and release of dredged material;
12.3 occurrences or circumstances contemplated by or more adverse than or in excess of the Environmental Predictions;
12.4 the Settlement Agreement; and
12.5 any public statement concerning the Mine made by the Company, BHP or the Company's Shareholders.

Nothing in this Clause 12 affects the rights of the Communities under Clause 27.

13. The Communities:

13.1 shall take such steps as are necessary to ensure that on or before 7 January 2002 the Communities, whether by their authorised representatives or otherwise, execute and deliver opt out notices in the Supreme Court Proceeding; and
13.2 do hereby release and discharge the Company and BHP from each and every claim made in the Supreme Court Proceeding and the Dagi Proceeding.

14. The benefit of the releases and discharges provided by the Communities under this Agreement is held by the Company in trust for itself and each of the other persons in whose favour the releases and discharges are expressed to apply.

SUPREME COURT PROCEEDINGS

15. If the Communities do not opt out of the Supreme Court Proceeding and, notwithstanding the releases and discharge given in Clauses 12 and 13, the Supreme Court or any court of appeal therefrom, in either the Supreme Court Proceeding or the Dagi Proceeding, orders:

15.1 the construction of a tailing pipeline and storage facility, or another waste mitigation scheme (other than the dredging operation approved by the State), and the State authorises the construction of that facility or scheme, then Clauses 17 and 18 will cease to be of force or effect and the Company will have no further obligation to make payments under Clause 17 or 18 from the date of order; or
15.2 the payment of damages by the Company or BHP to the Communities or any member of them, then Clauses 17 and 18 will cease to be of force or effect, the Company will have no further obligation to make payments under Clause 17 or 18 will cease to be of force or effect, the Company will have no further obligation to make payments under Clause 17 and 18 from the date of any judgment or award of damages and all payments made pursuant to Clause 17 or 18 before that date will be taken into account and will be set off against those damages.

16. If the Communities opt out of the Supreme Court Proceeding but the Supreme Court, or any court of appeal therefrom, makes an order in the Supreme Court Proceeding or the Dagi Proceeding for the construction of a tailing pipeline and storage facility, or another waste mitigation scheme (other than the dredging operation approved by the State), and the State authorises the construction of that facility or scheme, the Parties agree to discuss in good faith with the State a review of the benefits available to the Communities under this Agreement taking into account the effect of the order on the ongoing economic viability of the Mine.

PAYMENT BY COMPANY FOR DISTURBANCE

17. Subject to Clause 26, for so long as the Mine is in operation, the Company shall make the annual payments described in Schedule 4 to the respective recipients and fund described therein, namely the Land Owners, the Land Users and the Children's Fund of the Middle Fly Foundation.

18. Subject to Clause 26, for so long as the Mine is in operation, the Company shall make the annual payments described in Schedule 5 to the Development Fund of the Middle Fly Foundation.

EFFECTS OF PAYMENTS

19. Without derogating from the effect of the release contained in and the compensation regime established by the Mining (Ok Tedi Agreement) Act (Chapter 363) (as amended and supplemented), the Settlement Agreement, Clauses 12 and 13 of this Agreement and any other releases between the Parties, the payments to be made by the Company pursuant to this Agreement are and shall be in full compensation for all loss and damage contemplated by the Environmental Predictions suffered or to be suffered by the Communities in respect of disturbance to the environment in the Middle Fly area or their use or enjoyment of the environment, including, where applicable and without limitation to the generality of the foregoing,

(a) being deprived of the possession or use of the natural surface of the land area;
(b) damage to or contamination of the natural surface of the land;
(c) severance of the land or any part of it from other land owned or occupied by the Communities;
(d) any loss or restriction of a right of way, easement or other right;
(e) any loss or damage to improvements;
(f) in the case of land under cultivation, loss of earnings;
(g) disruption of agricultural activities;
(h) social disruption;
(i) garden damage and loss of economic trees;
(j) loss or damage to any flora or fauna, on the land or in the water; and
(k) loss or use or contamination of water.

20. For the avoidance of doubt, it is acknowledged that the Communities and their members will continue to be the eligible persons to receive general compensation and (save for the matters listed in Clause 19 (a) to (k) inclusive) specific compensation pursuant to the Mining (Ok Tedi Agreement) Act (Chapter 363) (as amended and supplemented) and will continue to receive benefits indirectly under Clause 6.1 of the Settlement Agreement.

TIMING OF PAYMENTS

21. The payments described as Pre-2001 and 2001 in each of Schedules 4 and 5 shall be paid within 30 days of the Condition Precedent being satisfied.

22. Subject to the following Clauses, all remaining payments pursuant to Clauses 17 and 18 which are due to be paid by the company in a calendar year shall be paid within the fourth quarter of that calendar year.

23. The timing of payments by the Company to Land Owners and Land Users pursuant to Clause 17 only shall be subject to the continuous compliance by the respective recipients with all of their obligations under this Agreement, and in particular Clause 7, 12, and 13. In the event of non-compliance with any provision of this Agreement, in particular Clauses 7, 12 or 13, the payment otherwise due to the non-complying recipients shall be deferred until the due date for the next succeeding annual payment, subject always to the recipients compliance with this Agreement, in particular Clauses 7, 12 and 13, in the intervening period. In the event of further non-compliance in the intervening period, both payments shall be deferred on the same terms as applied to the first deferred payment. The same principles shall also be applied in respect of subsequent non-compliance with this Agreement, in particular Clauses 7, 12 or 13. Any deferred payment subsisting as at the date of closure of the Mine will be paid by the Company to the Development Fund.

24. Payments by the Company to Land Owners shall be made by cheque payable to "[name of Clan] Land Owners". Payments to Land Users shall be made by cheque payable to "[name of Clan] Land Owners". Payments to Land Users shall be made by cheque payable to "[name of Clan] Land Users". The members of the respective recipient groups shall determine the use or distribution of the payments according to their own discretion. The Company shall not in any circumstances be required to entertain claims by individuals within a recipient group or resolve disputes within the group. All payments made by the Company in accordance with this Clause will discharge the Company's obligation to make such payments and the Company shall not be obliged to see to the application of such payments.

25. Payments by the Company to the Children's Fund and the Development Fund shall be made to the trustees of the Middle Fly Foundation.

26. Notwithstanding Clauses 21 to 25 inclusive:

26.1 the Company in its discretion may withhold or defer payments under Clause 17 to the Land Owners and Land Users in any Community if that Community or a majority (or other significant number as determined by the Company) of clans in or members of that Community have failed to opt out of the Supreme Court Proceeding,

26.2 if the Mine ceases to operate before 2010:

(a) the Company's obligation to make payments pursuant to Clauses 17 and 18 will also cease, and

(b) the Parties will meet to negotiate in good faith appropriate compensation to the Communities for any uncompensated environmental effects that have occurred or are likely to occur in the future regardless of the closure of the Mine, and

26.3 if the Mine continues to operate after 2010, the Company will make a payment to each of the Land Owners, Land Users, Children’s Fund and Development Fund, equal to the average of the payments to each of them in the years from 2001 to 2010 inclusive, for each complete calendar year of continued operation, or pro rated in respect of an incomplete calendar year of continued operation.

RELATIONSHIP OF PAYMENTS TO ENVIRONMENTAL PREDICTIONS

27. The Company shall continue to monitor the environmental effects of the continuing operation of the Mine in accordance with its obligations to the State, and shall share the results with the Communities. To the extent that environmental effects of the continuing operation of the Mine exceed the Environmental Predictions, the Parties shall meet to discuss revision of the payments under Clauses 17 and 18, taking into account the environmental effects in excess of those contemplated in the Environmental Predictions. The Communities acknowledge and agree that if the Environmental Predictions are not accurate.

27.1 this right to discuss with the Company a revision of payments under Clauses 17 and 18 shall be their sole remedy in relation to the inaccuracy of the Environment Predictions;

27.2 any revision of payments shall only operate prospectively from the date any revision is agreed; and

27.3 this Agreement and in particular the releases and discharges contained in it shall remain in full force and effect and this agreement shall not be liable to be set aside or rendered unenforceable.

If agreement cannot be reached on revision of the payments the Company may reconsider its decision to continue to operate the Mine.

LEGAL COSTS

28. The parties acknowledge that:

28.1 the Communities have retained lawyers to advise them in connection with this Agreement;
28.2 at the Communities' request the Company advanced the Legal Costs, and agreed to offset the Legal Costs against payments otherwise to have been made by the Company to the Communities under this Agreement; and
28.3 the Company's Commitments are net of the offset of the Legal Costs.

FORMAL CLAUSES

FURTHER ACTS

29. The Parties shall execute such documents and do and perform such acts that lie within their power and are necessary to give full effect to this Agreement.

WAIVER

30. The failure of any Party to enforce, at any time, any of the provisions of the Agreement shall not be construed to be a waiver of the provision or any part thereof or the right of any party thereafter to enforce each and every part of the provision in respect of any subsequent default or breach.

REPRESENTATIONS AND WARRANTIES

31. Except as expressly stated in this Agreement, no representation, inducement or warranty was, prior to the execution of this Agreement, given or made by one of the parties hereto with the intent of inducing any other Party to enter into this Agreement, and any representations, inducements or warranties that may have been so given are hereby denied and negated.

COMMUNICATIONS

32. Any formal communications by the Parties concerning this Agreement shall be deemed to have been made:-

(a) in the case of the Company, if signed by the Managing Director of the Company,

(b) in the case of the Communities, if signed by the President for the time being of the Kiunga Local Government Council and the President for the time being of the Lake Murray Local Government Council, or any successor bodies thereto, or in the absence of any successor bodies, by the District Administrator of the North Fly District.

33. Any formal communication shall be in writing and may be delivered either personally, or transmitted by facsimile to the person, or persons referred to in Clause 32.

34. Any formal communication shall be deemed to have reached the other Party:-

(a) in the case of personal delivery, when received by the relevant person referred to in Clause 32.

(b) in the case of facsimile, as soon as transmission is confirmed.

EXECUTION

35. The Parties acknowledge that this Agreement may take effect notwithstanding that it has not been executed on behalf of all of the communities referred to on page 1 and accordingly the Parties agree that this Agreement is duly executed and, subject to Clause 3, takes effect between the Company and the members of any one or more of the communities referred to on page 1 on whose behalf it is executed, when the Company executes this Agreement.

SCHEDULE 1

CONSULTATIONS

[To be completed]

SCHEDULE 2

ENVIRONMENTAL PREDICTIONS

If the Mine stays open there will be more environmental effects downriver than if the Mine is closed now.

Dredging will reduce these effects but there is no practical way to stop the effects from occurring.

The best way to reduce the effects is for the Mine to close. If the Mine is closed now the effects will be reduced, but not prevented.

There is more risk in continuing with the Mine than with closing it.

If the Mine continues the following expected effects are likely to occur, but there is a risk that more severe or other adverse environmental effects could arise.

SCHEDULE 3

MINING (OK TEDI CONTINUATION (NINTH SUPPLEMENTAL) AGREEMENT) ACT

1. Recognises the involvement of local communities in the Consultations and their expressed views regarding the future of the Mine and containing the agreement of the State and Inmet Mining Corporation that the Mine should continue to operate.

2. Provides for the establishment of a regime of environmental monitoring and compliance with which the Company, in the opinion of its Board of Directors, can comply.

3. Approves and gives the force of law to the compensation and other arrangements contained in the Community Mine Continuation Agreements, including the finality of those compensation arrangements.

SCHEDULE 4

SCHEDULE 5

SCHEDULE 6

LEGAL COSTS

IN WITNESS WHEREOF this Agreement has been executed by the Parties on the ................. day of ................. 2001

[or such of them whose representatives execute this Agreement]

ANNEXURE A

[To be Completed

The Declaration of Trust to be Annexure A will establish a trust for charitable purposes for the benefit of the communities whose representatives have executed this Agreement. The charitable purposes of the trust will include improvement of living conditions, identification and development of sustainable rural and non-rural commercial ventures, the advancement of education and other purposes beneficial to the communities generally.]

THIRD SCHEDULE

Ok Tedi Mine Closure and Decommissioning Code

OK TEDI MINE CLOSURE AND DECOMMISSIONING CODE 2001

1. SHORT TITLE

This Code may be cited as the Ok Tedi Mine Closure and Decommissioning Code (Code).

2. INTERPRETATION

2.1 Words to have same meaning

Unless otherwise defined in this Code, words and expressions which are given a certain meaning in the Mining (Ok Tedi Mine Continuation (Ninth Supplemental) Agreement) Act 2001 are used in this Code with the same meanings.

2.2 Definitions

In this Code, unless the contrary intention appears-

Act means the Mining (Ok Tedi Mine Continuation (Ninth Supplemental) Agreement) Act.

Active Post-Mine Closure River System Rehabilitation (APCRSR) means any rehabilitation of the River System or the surrounding banks after Cessation of Commercial Production.

Agreed Objectives means the criteria, performance levels and outcomes agreed between the Company and the State (and set out in the Mine Closure Plan) in relation to Decommissioning of Operations Infrastructure and Reclamation, Restoration and Rehabilitation within the area of the Project Site as indicating successful completion of the process of closure of the Ok Tedi mine and the meeting of which will result in formal approval by the State of the surrender or termination of the Mining Tenements.

Cessation of Commercial Production means the date on which the Company permanently ceases all Mining Operations and Mine Production in relation to the Project.

Chief Inspector means the Chief Inspector appointed under the Mining (Safety) Act (Chapter 195A).

Commencement Date means the date this Code comes into operation in accordance with the Act.

Decommissioning means the process of closing and removing or Making Safe Operations Infrastructure.

Department means the government department for the time being responsible for the administration of the Mining Act 1992 and the Mining (Safety) Act (Chapter 195A).

Independent Expert means an independent expert appointed under section 6.9 to determine a dispute under this Code.

Inspector means an inspector appointed under the Mining (Safety) Act (Chapter 195A).

Financial Assurance means the financial assurance to be provided by the Company under section 5.1.

Making Safe in relation to Operations Infrastructure, means returning the site of the relevant Operations Infrastructure to such condition as is agreed between the Company and the State, as set out in the Mine Closure Plan.

Mine Area Rehabilitation Plan means that part of the Mine Closure Plan, separately presented, which deals with agreed levels of Rehabilitation.

Mine Closure Plan means the Mine Closure Plan as amended from time to time and as approved by the State in accordance with this Code, and includes the Mine Area Rehabilitation Plan.

Mine Production means Mining Operations or processing that results in the production of any mineral or mineral bearing substance for sale.

Mining Operations means all activities associated with the extraction of ore and removal of over-burden and other waste from the Ok Tedi mine.

Mining Tenement means all sites held by the Company under a Special Mining Lease, a lease for mining purposes or mining easement granted under the Mining Act or leases granted to the Company under the Land Act (No. 45 of 1996) or any predecessor legislation.

Minister for Mining means the Minister administering the Mining Act 1992 and the Mining (Safety) Act (Chapter 195A).

Minister for Environment and Conservation means the Minister responsible for the administration of the Office.

Office means the Office of Environment and Conservation.

Officer means an officer of the Office responsible for monitoring compliance with environmental legislation.

Ok Tedi Financial Assurance Fund means the fund established under section 5.3(a).

Operations Infrastructure means all assets used in or in connection with the Project directly related to Mining Operations, Mine Production or storage and transport of mine product.

Principal Agreement has the meaning set out in Section 2(2) of the Act.

Project Site means, in relation to Restoration, Reclamation and Decommissioning, all land held under a Mining Tenement, and in relation to Rehabilitation, means that land plus any other land immediately adjacent to that land physically impacted by the Project.

Public Infrastructure means those assets of the Company used in or in connection with the Project which are not Operations Infrastructure and includes the infrastructure constructed by the Company under Clauses 14 to 20 (both inclusive) of the Principal Agreement.

Reclamation means returning a derelict site within the Project Site to some productive land use.

Rehabilitation means the return of disturbed lands within the Project Site to a stable, productive and self-sustaining condition having regard to agreed possible uses of the site and adjoining land.

Restoration means re-creating the original topography and re-establishing the previous land use in a self-sustaining condition.

Relinquishment means formal approval by the State of the surrender or termination of the Mining Tenements, indicating that Agreed Objectives have been met.

Responsible Authority means, in relation to the Mine Area Rehabilitation Plan, the Minister for Environment and Conservation, and in relation to all other elements of the Mine Closure Plan, the Minister for Mining.

River System means the Ok Tedi river system and the Fly River system below Kiunga.

2.3 Application of Code

(a) Subject to section 2.3(c), this Code, and the Mine Closure Plan, apply in respect of the operation of the Project after the Commencement Date to the exclusion of anything inconsistent with them in the Principal Agreement and any other laws or regulations applying to mine closure whether in force before or after the Commencement Date.

(b) Without limiting the generality of paragraph (a) of this section, clause 35.3 of the Principal Agreement is deleted.

(c) The provisions of the Principal Agreement (other than clause 35.3) and any other laws relating to mine closure and decommissioning which apply to the Project on the Commencement Date continue to apply until a Mine Closure Plan is approved under this Code.

3. MINE CLOSURE PLAN

3.1 Submission of Mine Closure Plan

(a) The Company must file with the Department (with a copy to the Office) for approval by the Responsible Authority on behalf of the State a draft Mine Closure Plan which

(i) contains the matters required. by section 4;
(ii) sets out a program, with an estimated cost ascribed to each element of that program, for:

• (A) the Rehabilitation of the Project Site and the post closure monitoring phase; and
• (B) the disposal or Decommissioning of all Operations Infrastructure;

(iii) contains proposals (developed, where appropriate, in consultation with the National Government) in relation to Public Infrastructure; and
(iv) includes the report called for by paragraph 4 of schedule 1.

(b) The Company must file the draft Mine Closure Plan no later than 1 year after the Commencement Date.

3.2 Mine Closure Plan to be developed after consultation

The draft Mine Closure Plan must be developed after consultation with all levels of Government and communities affected by the Project and by Cessation of Commercial Production.

3.3 Mine Closure Plan to be consistent with development strategies

The draft Mine Closure Plan must be substantially consistent with medium term development strategies of the National Government and substantially complement Provincial Government and Local-level Government planning for medium term development within the areas affected by the Project.

3.4 Company to consult with Department and Office on Contents of Mine Closure Plan

The Company must develop the Mine Area Rehabilitation Plan in consultation with the Office and the balance of the draft Mine Closure Plan in consultation with the Department which is responsible for co-ordinating the input of all affected government departments and agencies. The Company and the State must endeavour to reach agreement on the contents of the Mine Closure Plan.

3.5 Approval of Mine Closure Plan

(a) The Responsible Authority must, when they are satisfied that a draft Mine Closure Plan, or an up-dated Mine Closure Plan, is comprehensive and appropriate, approve the Mine Closure Plan, or up-dated Mine Closure Plan, by written notice to the Company.

(b) If the Responsible Authority has not approved a draft Mine Closure Plan, or an updated Mine Closure Plan, within 6 months of submission a dispute is deemed to exist under section 3.7(a) to which section 3.7(b) applies.

3.6 Up-dating Mine Closure Plan

(a) The Company must every 2 years on or prior to the anniversary of the submission of the draft Mine Closure Plan submit an up-dated Mine Closure Plan to the Department (with a copy to the Office) for approval by the Responsible Authority on behalf of the State.

(b) The Company must consult with the Office on updates to the Mine Area Rehabilitation Plan and with the Department on updates to the balance of the Mine Closure Plan with a view to reaching agreement on its contents.

(c) Where the Company submits an up-dated Mine Closure Plan in accordance with subsection (a), the Mine Closure Plan then in force continues to apply to the Project until the up-dated Mine Closure Plan is approved by the Responsible Authority, and upon receipt by the Company of written notice of approval of the up-dated Mine Closure Plan by the Ministers, the up-dated Mine Closure Plan applies to the Project in substitution for all previous Mine Closure Plans.

3.7 Resolution of disputes in relation to contents of Mine Closure Plan

(a) If the Company and the State are unable to agree on the contents of an appropriate Mine Closure Plan (or any up-dating thereof under section 3.6) they must meet and attempt to negotiate in good faith to resolve any such dispute.

(b) If the Company and the State are unable to resolve a dispute under section 3.7(a) within 60 days either of them may refer that dispute for determination by an Independent Expert appointed and acting in accordance with section 6.9.

3.8 Company to comply with the Mine Closure Plan

The Company must comply with the Mine Closure Plan

4. CONTENTS OF MINE CLOSURE PLAN

4.1 Matters to be addressed

(a) The Mine Closure Plan (other than the Mine Area Rehabilitation Plan) must address at least the matters set out in Schedule 1.

(b) The Mine Area Rehabilitation Plan must address those matters set out in Schedule 2.

4.2 Rehabilitation of River System

(a) Subject to subsection (b), notwithstanding the provisions of any other regulation, code or requirement to the contrary, the Mine Area Rehabilitation Plan is not required to include Active Post-Mine Closure River System Rehabilitation (APCRS).

(b) If evidence satisfactory to the State emerges prior to Cessation of Commercial Production that a failure to undertake APCRSR will lead to materially adverse environmental consequences caused wholly or in part by the Project in excess of those anticipated by the State prior to the Commencement Date, the Company must submit to the Office for approval by the Responsible Authority on behalf of the State a revised Mine Area Rehabilitation Plan incorporating an APCRSR program designed to prevent, if possible, or to mitigate, any such adverse environmental consequences. If appropriate APCRSR is not in the reasonable opinion of the Company technically or financially feasible, or if the Responsible Authority is not (acting reasonably) satisfied with the level of mitigation suggested in the revised Mine Area Rehabilitation Plan, the Company and the State must meet to discuss the future operation of the Project. Sections 3.5 and 3.7 apply to any revised Mine Area Rehabilitation Plan submitted under this section.

4.3 Incremental development of detailed Mine Closure Plan

(a) The State accepts that the detailed Mine Closure Plan will be developed in stages over the balance of the life of the mine, and that this development of detailed proposals will be reflected in the up-dates to the Mine Closure Plan to be submitted by the Company under section 3.6.

(b) The Company will, in the preparation of the Mine Closure Plan, at least meet the following milestones:

(i) the detailed Decommissioning plans called for by paragraph 2 of schedule 1 will be developed for inclusion in the Mine Closure Plan at least 4 years prior to the expected date for Cessation of Commercial Production; and
(ii) the detailed Rehabilitation measures called for by paragraph 2 of schedule 2 will be developed for inclusion in the Mine Closure Plan at least 4 years before the expected date for Cessation of Commercial Production.

5. FINANCIAL ASSURANCE

5.1 Financial Assurance to be part of Mine Closure Plan

The Company must as part of the Mine Closure Plan provide Financial Assurance in an amount sufficient for the performance of the Mine Closure Plan and all inspections undertaken under section 6.2.

5.2 Estimate of Financial Assurance

(a) As part of up-dating of the Mine Closure Plan, the Company must at an appropriate time (being not less than 4 years prior to the expected date for Cessation of Commercial Production):

(i) specify the estimated amount of Financial Assurance necessary for the performance of the Mine Closure Plan; and
(ii) provide a copy of a statement of an independent person approved by the State and qualified to make it that the estimate of the cost of completing the Mine Closure Plan is reasonable.

(b) The estimated amount of Financial Assurance specified in the Mine Closure Plan must be acceptable to the State.

(c) Until such time as the Company submits and the State approves the Mine Closure Plan, the estimated amount of Financial Assurance will be US$150 million.

5.3. Establishment and operation of the Ok Tedi Financial Assurance Fund

(a) The Company must establish a reserve account satisfactory to the State in the joint names of the Company and the State to be known as the Ok Tedi Financial Assurance Fund to which monies contributed by way of Financial Assurance must be credited and from which disbursements authorised by section 5.5 may be debited. The account is to be kept in United States dollars in a bank or financial institution acceptable to the State.

(b) Financial Assurance is to be provided by way of biannual contributions by the Company to the Ok Tedi Financial Assurance Fund.

(c) The first contribution to the Ok Tedi Financial Assurance Fund is to be made by the Company on or before 1 July 2002.

(d) The size of the biannual contributions to the Ok Tedi Financial Assurance Fund must be such that, when taken together with interest accruing on those contributions, by the estimated date of Cessation of Commercial Production (as may be varied from time to time) there are adequate amounts in the fund to undertake the Mine Closure Plan.

(e) Interest accruing on all amounts deposited in the Ok Tedi Financial Assurance Fund must be credited to the Ok Tedi Financial Assurance Fund.

(f) The Company is not required to provide financial assurance in connection with its obligations under the Mine Closure Plan in any form other than that prescribed under this section 5.3.

(g) The Company's obligation to contribute to the Ok Tedi Financial Assurance Fund is suspended during any period during which, under Clause 36.1 of the Principal Agreement, any failure on the part of the Company to comply with any of the terms conditions and provisions of the Principal Agreement or the Approved Proposals, would not be grounds for termination.

5.4 Exemption from seizure

All amounts deposited in the Ok Tedi Financial Assurance Fund are exempt from seizure, and do not form part of the assets of the Company which would be available to meet the claims of its creditors in any winding up of the Company.

5.5 Disbursements from the Ok Tedi Financial Assurance Fund

(a) There can be no disbursements from the Ok Tedi Financial Assurance Fund except as prescribed in subsection (b).

(b) Disbursements from the Ok Tedi Financial Assurance Fund may only be used for the purpose of:

(i) meeting the costs incurred by the Company, its contractors and agents in undertaking work required under the Mine Closure Plan;.
(ii) meeting the cost of work ordered by the State under section 5.6;
(iii) meeting the reasonable cost of all inspections undertaken under section 6.2; and
(iv) refunding money, and the interest earned on it, to the Company, if in the opinion of the State, the money is no longer required as Financial Assurance for work required under the Mine Closure Plan and provided section 6.4 (b) has been complied with.

(c) The Company and the State will agree on a mechanism for disbursements from the Ok Tedi Financial Assurance Fund to ensure prompt payment of amounts for which disbursements from the fund may be made under section 5.5(b).

5.6 Enforcement by State of Compliance with Mine Closure Plan

(a) If the State has reasonable grounds to believe that work required under the Mine Closure Plan is not being, or is not likely to be, done in accordance with the Mine Closure Plan, the State may, by written notice, direct that the Company perform the necessary work within a reasonable time specified in the notice.

(b) If the Company fails to comply with a notice served under section 5.6(a) and the matter has not been referred for determination by an Independent Expert under section 5.6(c), the State may by written notice, direct that the necessary work be carried out by properly qualified contractors, independently verified, with the costs of carrying out such work to be charged to the Ok Tedi Financial Assurance Fund

(c) If the Company considers that the work specified in a notice served on it under section 5.6(a) does not properly fall within the work required by the Mine Closure Plan it may refer that matter for determination by an Independent Expert under section 6.9

(d) Where the State implements measures required by the Mine Closure Plan under this section 5.6, the costs incurred by the State may be satisfied by drawing on monies in the Ok Tedi Financial Assurance Fund.

5.7 Taxation Consequences

(a) All contributions to the Ok Tedi Financial Assurance Fund are allowable - deductions under the Income Tax Act 1959.

(b) Income earned by the Ok Tedi Financial Assurance Fund is not subject to taxation under the Income Tax Act 1959.

(c) If the State authorises the return of any monies to the Company under section 5.5(b)(iv), that money will be assessable income under the Income Tax Act 1959 and subject to taxation.

6. INSPECTORS

6.1 Appointment of inspectors

(a) The Chief Inspector appointed for the purposes of the Mine (Safety) Act (Chapter 195A) is hereby appointed as the Chief Inspector for the purposes of this Code.

(b) All Inspectors are hereby appointed as Inspectors under this Code.

6.2 Inspections and assessments

(a) An Inspector may conduct regular assessments of the Company's compliance with the Mine Closure Plan (other than the Mine Area Rehabilitation Plan)

(b) An Officer may conduct regular assessments of the Company's compliance with the Mine Area Rehabilitation Plan.

(c) Assessments of the Company's compliance with the Mine Closure Plan must be conducted:

(i) when the Company notifies the Department that the Agreed Objectives have been met; or
(ii) 24 months after cessation of Commercial Production;

whichever first happens.

(d) Assessments of compliance with the Mine Area Rehabilitation Plan will be conducted as required.

6.3 Reports by inspectors

(a) An Inspector or Officer who conducts an assessment in accordance with this Code must within 60 days of completion of the assessment provide to the Department, the Office and the Company a written report of the results of that assessment.

(b) A report under paragraph (a) must identify any material failure on the part of the Company to comply with the Mine Closure Plan.

6.4 Actions by Responsible Authority

(a) If a report under section 6.3 indicates a material failure to comply with the Mine Closure Plan the Responsible Authority may by written direction exercise the powers conferred by section 5.6.

(b) A report indicating substantial achievement of the Agreed Objectives is a pre-requisite to Relinquishment and to the release to the Company of any funds in the Ok Tedi Financial Assurance Fund.

6.5 Powers of inspectors

(a) An Inspector may monitor compliance by the Company with the Mine Closure Plan (other than the Mine Area Rehabilitation Plan) and may at any reasonable time in execution of his or her duties exercise any of the powers and authorities conferred on an Inspector by the Mining (Safety) Act (Chapter 195A).

(b) Any person who is aggrieved by a decision or requisition of an Inspector made under this Code may appeal in writing to the Chief Inspector who must, as soon as practicable, hear and dispose of the appeal. The operation of the decision or requisition appealed from is suspended pending disposition of the appeal.

(c) On an appeal under subsection (c), the Chief Inspector may:

(i) rescind or affirm the decision or requisition appealed from; or
(ii) make a new decision or requisition in substitution, and that decision or requisition is not subject to further appeal.

6.6 Powers of Officers

An Officer has whatever powers and authorities are conferred by the regulatory regime under which he or she operates.

6.7 Company to assist Inspector

The Company and any person employed by it must comply with a lawful request made by an Inspector, and must assist an Inspector or a person accompanying an Inspector to carry out his or her duties under this section.

6.8 No Limitation

(a) The provisions of this Code do not in any way limit or affect any power of inspection given to any person under the Mining Act 1992, the Mining (Safety) Act (Chapter 195A) or any other law now or hereafter in force in Papua New Guinea.

(b) For the avoidance of doubt an Inspector may exercise his or her powers in respect of the Project notwithstanding that the Mining (Safety) Act may not apply to the Project or to parts of it.

6.9 Determination by Independent Expert

(a) A dispute referred to an Independent Expert under either section 3.7(b) or section 5.6(c) must be dealt with in the manner set out in section 6.9(b).

(b) The following provisions apply to any Independent Expert to be appointed in respect of a dispute between the Company and the State and to the proceedings and decision of that expert:

(i) The Independent Expert must be a suitably qualified expert who has no direct or indirect personal interest in the outcome of the decision he or she is requested to make.
(ii) The Independent Expert will be selected by agreement between the Company and the State or, failing agreement between them within 10 Business Days after they commence to discuss the selection of that Independent Expert, by the President of the Australasian Institute of Mining and Metallurgy or such other appointing authority as may be agreed between the Company and the State.
(iii) The matter which the Independent Expert is required to determine must be referred to him or her by written submission which must state the specific matter to be determined together with all other reasonably relevant matters including any requirements under this Code relating to that matter.
(iv) The Independent Expert will give due weight to any representations put forward by either the Company or the State within any time limit prescribed by the Independent Expert in his or her discretion. The Company and the State must supply the Independent Expert with any information, assistance and co-operation which he or she may request in connection with his or her determination.
(v) The fees and expenses of the Independent Expert will be borne equally by the Company and the State unless the Expert, in his or her absolute discretion, determines otherwise.
(vi) The Independent Expert will give reasons for a determination.
(vii) The Independent Expert will act as an expert and not as an arbitrator and his or her decision will, in the absence of manifest error, be final and binding on the Company and the State and not subject to review.

(c) Neither the Company nor the State may start court proceedings in relation to a dispute under section 3.7(a) or section 5.6(c) until it has exhausted the procedures, in this section 6.9. Neither the Company nor the State is prevented from applying to a court at any stage for urgent injunctive or other relief.

SCHEDULE 1

CONTENTS OF MINE CLOSURE PLAN (OTHER THAN MINE AREA REHABILITATION PLAN)

1. BACKGROUND

• Identification of all areas physically affected by the Project (not just the Project Site).
• Identification of all communities and other stakeholders in Western Province directly or indirectly affected by mining operations and by Cessation of Commercial Production.

2. INFRASTRUCTURE

• Detailed plans for the Decommissioning of all Operations Infrastructure and, where necessary, Reclamation and Restoration.
• Proposals and options for the post closure ownership and use of Public Infrastructure.

3. COSTS

• Details of the expected cost of implementing the measures required by the Mine Closure Plan, including at least a detailed expenditure schedule and an itemised estimate of capital costs and operating costs based on the market value of the material goods and services provided.
• Details of expected costs that will be incurred after the Cessation of Commercial Production in respect of repatriation of the work force and payment of severance entitlements, Decommissioning, site clean up (including removal/disposal of scrap metal, old building materials, derelict vehicles, old plant and equipment and any rubbish), earthworks, decontamination, and any other incidental costs until Agreed Objectives are met and leases are surrendered.
• The amount of Financial Assurance and details of the biannual contributions to be made to the Ok Tedi Financial Assurance Fund.
• All relevant material financial and commercial information used to establish the amount of Financial Assurance.
• A copy of a statement of an independent person approved by the State and qualified to make it that the amount of Financial Assurance is adequate.

4. ACCOMPANYING REPORT

The Mine Closure Plan will be accompanied by a report on the social and economic impacts of mine closure and the status of economic programs being undertaken relevant to those impacts by the Company, the Ok Tedi Development Foundation, the Western Province Capacity Building project, Government and other agencies.

SCHEDULE 2

CONTENTS OF MINE AREA REHABILITATION PLAN

1. BACKGROUND

• Identification of the Project Site.
• Identification of all communities and other stakeholders in Western Province directly or indirectly affected by mining operations and by Cessation of Commercial Production.

2. REHABILITATION MEASURES

• Details of all necessary environmental protection, Rehabilitation measures, the costs thereof, and a timetable for, achieving those measures.
• Details of the Agreed Objectives following the completion of each phase of the Rehabilitation.
• The description of the Rehabilitation relating to the Project.
• If progressive Rehabilitation work is possible prior to Cessation of Commercial Production, the conditions and phases of completion of such work.
• The conditions and phases of completion of the rehabilitation work to be undertaken following Cessation of Commercial Production.
• The conditions and phases of completion of Rehabilitation to be undertaken in the event of a temporary cessation of mining activities.

3. MONITORING

• Details of the monitoring programs and procedures required for each phase of Rehabilitation including the locations methods and frequencies of monitoring and how the results of monitoring will be recorded and reported to the State.
• Details of key biological monitoring programs and procedures to assess the effects of the Project on any biological indicators. These details must include the locations, nature, method and frequency of monitoring, the biological indicators to be monitored and how the results of the monitoring will be recorded and reported to the State.
• Details of measures for monitoring Rehabilitation.
• Details of measures for monitoring any material adverse environmental impact of the Project that might arise after Cessation of Commercial Production notwithstanding Rehabilitation undertaken under the Mine Area Rehabilitation Plan.

4 COSTS

Detailed costs of compliance with the Mine Area Rehabilitation Plan.

5. OTHER

Any other matter required in connection with closure of the Ok Tedi mine by the environmental management regime then applicable to the Project.

I hereby certify that the above is a fair print of the Mining (Ok Tedi Mine Continuation (Ninth Supplemental) Agreement) Act 2001 which has been made by the National Parliament.

Clerk of the National Parliament.

I hereby certify that the Mining (Ok Tedi Mine Continuation (Ninth Supplemental) Agreement) Act 2001 was made by the National Parliament on 11 December 2001 by an absolute majority in accordance with the Constitution.

Speaker of the National Parliament.