On Saturday, I had the pleasure of joining Timor Leste’s erstwhile First Lady Kirsty Sword Gusmao and the Timorese ambassador Abel Guterres (pictured) at a public meeting at the Mary MacKillop Centre in Sydney, convened by long time campaigners Sister Susan Connelly and Tom Clarke from the Timor Sea Justice Campaign.
The message was simple: 'A fair go for East Timor'. The lecture hall was full to capacity with Australians concerned about the decency of our dealings with the Timorese over the oil and gas reserves in the Timor Sea.
In 2006, Australia and Timor Leste signed the Treaty on Certain Maritime Arrangements in the Timor Sea (CMATS). The treaty came into force early in 2007 with a provision requiring the submission and approval of an appropriate development plan for the Greater Sunrise oil and gas deposit within six years. The treaty was finalised at a time of considerable political instability in Timor. It was not subject to the usual treaty review processes by the Australian Parliament, there being bipartisan criticism of Alexander Downer’s wanton haste to grab a small window of opportunity for implementation of the treaty. In exchange for an increased share of the upstream revenue flow from any Sunrise development (increased from 18 per cent to 50 per cent), Timor agreed to Australia’s demand that we put boundary negotiations on hold for 50 years.
Timor Leste already receives a steady revenue flow from the development of the Bayu Undan oil and gas field in the Timor Sea. With this revenue, Timor has the money to employ the very best international lawyers to advise on boundary delimitation. These lawyers think that Timor has a very strong case for establishing that the whole of Sunrise would fall within the Timor jurisdiction. Equally, Australia’s lawyers continue to argue Sunrise is located under the Australian continental shelf, and that even if there be agreement on a median line between Australia and Timor, there would be little prospect of Timor getting any more than 20 per cent of the upstream revenue flow.
A year ago, the joint venturers for the Sunrise project submitted their development proposal for a floating natural gas facility (FLNG), avoiding the need to pipe the gas to either Darwin or Timor. The Timorese leadership are not interested in an FLNG proposal which would yield no significant downstream revenue, would contribute nothing to the development of infrastructure in Timor, and would do little to assist Timor employment and training. There is a political imperative for the Timorese leadership to be able to deliver to their people an oil and gas project which develops tangible onshore benefits, and not just another offshore revenue flow like Bayu Undan.
Armed with evidence of Australian spying on the Timorese during the negotiation of CMATS, the Timorese decided to challenge the validity of CMATS, commencing an international arbitration. Australia then conducted raids on premises which housed material relevant to the arbitration.
In March, the Timorese had a spectacular win in the International Court of Justice, causing great embarrassment to Australia. The Timorese challenged Australia’s raid on the Canberra legal offices of one of their lawyers, Bernard Collaery, and on the home of witness K, a retired Australian intelligence officer. They asked that Australia return the seized materials. Last week, Mr Collaery informed the Senate that he was acting as a lawyer for Witness K with the knowledge and approval of Ian Carnell, the Director General of Intelligence and Security. Collaery informed the Senate Privileges Committee: 'Witness K alleged he had been constructively dismissed from ASIS, as a result of a new culture within ASIS. The evidence indicates that the change sought included an operation he had been ordered to execute in Dili, Timor Leste.'
Back in March, the International Court of Justice ruled by 12 votes to 4 that Australia not use any of the seized materials from Collaery’s and K’s premises to the disadvantage of Timor Leste and that Australia keep the seized documents under seal. The majority of judges were not satisfied that the undertakings by George Brandis, the Australian Attorney-General, were sufficient to safeguard Timor’s interests. Even more embarrassing for Australia was the court’s all but unanimous decision to order that Australia 'not interfere in any way in communications between Timor-Leste and its legal advisers'. The decision was all but unanimous in the sense that the one Australian judge on the case was the only one to dissent from this order. Sir Christopher Greenwood, the UK judge, offered this damning indictment of Australia’s behaviour:
In view of the seizure of papers which clearly related to legal advice and preparation for the forthcoming arbitration from Timor-Leste’s lawyer, it is entirely understandable that Timor-Leste is concerned that there might be future interference and it sought an assurance from Australia that there would be no such interference. To my surprise, the undertaking from the Attorney-General makes no mention of this matter. In the absence of any undertaking not to interfere with Timor-Leste’s communications with its lawyers in the future, I accept that there is a real and imminent risk of such interference which requires action on the part of the Court.
The day after the decision was delivered, the Australian stable of Murdoch newspapers carried the headline: 'Australia wins East Timor UN court fight'. This was no win for Australia; it was a humiliating defeat.
What is to be gained for Australia and Timor as neighbours airing dirty laundry in such exalted international fora? It is time for both countries to agree to put the unresolved boundary issue to bed. The situation is similar to neighbours agreeing not to settle the boundary of their back fence. That is all very fine unless and until there is a problem. Once there is a problem, it makes good sense to determine the boundary. The boundary should be left unresolved only if there can be the assurance that both parties can get what they want in the meantime, living amicably as neighbours. The Timorese want to find an economically feasible way in which Sunrise can be exploited with the gas being piped onshore to Timor for processing. Unless that can be done, Timor has no interest in the short term development of Sunrise. They think it is time to settle the boundaries. It’s time to pipe the gas to Timor or to draw the line and get back to being good neighbours.
Frank Brennan SJ AO is professor of law at the Australian Catholic University and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University. This article is extracted from Frank's address at the Timor Sea Justice Campaign event on 17 May 2014.
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Frank Brennan SJ
20 May 2014
This story in last week's West Australian provides some interesting parallels on the Timor issue:
Colin Barnett's push for the Woodside Petroleum-led Browse consortium to fund development of a supply base in the Kimberley has received its second major boost in as many days when the Economics and Industry Standing Committee urged the State Government to return to James Price Point and hit up the Commonwealth for infrastructure funding.
Delighted by news that the surprise discovery of rocky outcrops in deep waters near North Scott Reef would greatly increase the State's ownership of the massive Torosa gas field, the Premier yesterday also received what could be seen as a bipartisan endorsement to push ahead with his long-held plan to develop an oil and gas precinct at James Price Point, north of Broome.
The trigger was the standing committee's tabling of its long-awaited report into the economic impact of floating LNG on WA following an exhaustive public examination of the oil and gas industry's push to process gas offshore because of the State's sky-high construction costs.
Much of the inquiry focused on the Woodside Browse consortium's decision to ditch James Price Point as its preferred gas processing option in favour of a floating solution similar to the one pioneered by Royal Dutch Shell's Prelude development.
The two-volume report, which runs to more than 700 pages, made 33 recommendations, many of which criticised the Federal Government for its scant regard for WA's best e economic interests.
Much of the criticism was levelled at Canberra's decision late last year to endorse the Woodside Browse consortium's request for changes to the retention leases governing its three Browse project fields - Torosa, Calliance and Brecknock - to remove the requirement for onshore gas processing.
The Commonwealth, which held five of the seven leases, obliged but Mr Barnett has refused to follow suit with the two WA leases that cover part of Torosa.
Revelations in "WestBusiness" yesterday that the National Offshore Petroleum Titles Administrator had redrawn the Commonwealth-State boundaries around Torosa because of the discovery of the rocky outcrops means WA's share of Torosa could be more than 50 per cent and greatly enhances Mr Barnett's bargaining position with Woodside.
Mr Barnett has declared the Torosa rezoning as "good news for WA", though it is not expected that he will stand in the way of the Woodside consortium's FLNG ambitions.
However, he is likely to demand a domestic gas guarantee in return, as well as a commitment to build a supply base.
Woodside is not commenting on Torosa's like rezoning.
21 May 2014
Thank you Frank and thank you to First Lady Kirsty Sword Gusmao, Ambassador Abel Gutteres, Sr Susan Connelly rsj, and Tom Clarke for being leaders in humanity and goodness. Australians in schools, local government, churches, NGOs and all walks of life have demonstrated their support for the brave Timorese in their struggles. Through the efforts of Kirsty, Abel, Sr Susan, Sr Josephine Mitchell and many others there are thousands of others engaged in life giving activities. Our parish continues to be practical friends with the people of Alas. I personally am ashamed of the role of our governments over the years re Timor Leste. Yes, it is time to be good neighbours at the leadership level. Be fair and generous to the Timorese. Australians expect it.
21 May 2014
The great wonder is that with our sordid history of the way we have treated East Timor, that they would want to be our neighbours. Firstly we allowed Indonesia to invade East Timor without even protesting, because we wanted to do an oil deal with them. We waited too long to help them during the genocide. Then we tried to cheat them over their oil rights. Real neighbourly??
21 May 2014
The Australian Government owes a debt of honour to the people of Timor Leste .
Good neighbours support each other and not invade their space like Australia did in 1941. It is time to settle the matter and draw the line because its Un Australian what our government has done and is doing to Timor Leste ."OS VOSSOS AMOGOS NOA VOS ESQUECEM" " Your Friends do not forget you" I hope our Australian Government remembers those words. And the 400000Timorese who lost their lives in defence of our Soldiers in 1942
21 May 2014
Thanks Frank for another fully worked out piece. Until the determined cruelty of the Gillard and Abbott governments towards asylum seekers our treatment of Timor Leste was possibly our greatest national shame. It persists, however, as something that flies in the face of everything we thought Australia was.
21 May 2014
Good to see our bullies humiliated. Carn the Timorese.
21 May 2014
Many thanks for yet another clear and measured comment Frank. Last night I spoke at a Rotary meeting and was reminded again of all those individuals and groups out there who are beavering away for Timor, all of them repaying Australian debts to this near and dear neighbour. Again, too, I was struck by how little many Australians know about the historical facts of the Australia/Timor-Leste relationship, including those of the current Timor Sea resources problems. Some of the good people I spoke with were horrified at what has happened, and voiced the same disappointment I feel at Australian Government actions over the years. Your comment on the editorially twisted media reports is well made, and points to the level of responsibility which media outlets bear for the misinformation and general ignorance. The way Timorese officials have been conducting themselves in this dispute is exemplary and I agree that it would be in Australia's best interests if our officials engaged in negotiations with similar good faith and civility.
21 May 2014
@ Joe. Maybe you are too young to remember the riots in detention centres in Australia during John Howards rule but I remember them well. You dont remember the ones who were sent to Nauru and then let quietly back into the country? This outrage started with Howard and Ruddock and dont forget it.
Geoff D Bolton
23 May 2014
Can somebody (with inside knowledge of Timor Leste) advise on their plans & progress to-date in building a legal infrastructure within which foreign firms may set up and employ local people there, without the present sovereign risk facing such firms? Even knowing the Dili government's strategy & plans would be a positive.step.
Frank Brennan SJ
02 June 2014
Some welcome observations about “Managing Strategic Tensions” by the Australian Defence Minister Senator David Johnston at the recent Shangri-La Dialogue.
He said: “Australia does not take a position on competing claims in the South China Sea, but we have a legitimate interest in the maintenance of peace and stability, respect for international law, unimpeded trade and freedom of navigation.” He went on to say, “We urge all parties to exercise restraint, refrain from actions that could increase tensions, to clarify and pursue claims in accordance with international law, including the 1982 United Nations Convention on the Law of the Sea”. Applying these laudable principles, isn’t it time we commenced maritime boundary negotiations with the Timorese if that be their wish?