2016-2020: Compulsory Conciliation leads to a Maritime Boundary Treaty between Australia and Timor-Leste
24 March 2018. Updated 16 March 2020
Contents of this page
2016 Major events this year discussed below include:
More than 1,000 Timorese citizens and a few international supporters brought their concerns to the Australian Embassy in Dili on 23 February, where they rallied peacefully for many hours under a hot sun. Click on photo to see it larger.
On 1 March, the Sydney Morning Herald reported that Australian Prime Minister Malcolm Turnbull had rejected Timor-Leste PM Rui Araujo's request to begin maritime boundary negotiations, although Turnbull did agree to less focused discussions.
More protests were held in March in Dili, Canberra, Melbourne, Adelaide, Sydney, Jakarta, Manila, Kuala Lumpur and elsewhere. On 20 March, Australian priest and law professor Fr. Frank Brennan wrote in Eureka Street Deja vu for Timor as Turnbull neglects boundary talks, summarizing the current diplomatic stalemate. The Australian Timor-Sea Justice Campaign (TSJC) and U.S. East Timor and Indonesia Action Network (ETAN) shared MKOTT's appeal and asked people from around the world to share photos:
Many thousands of people joined protests in Dili on 22 and 23 March, supporting MKOTT's Declaration to the Government of Australia (also Tetum) and Mandate to the Government of Timor-Leste (also Tetum):
The protest was covered by Timorese newspapers, RTTL, the Sydney Morning Herald, Guardian, SBS, BBC, ABC, JPNN, Tribunnews, RedFlag, TamilNet and other media. Some Australian media also provided context, including articles by Tom Clarke, Edio Guterres, Cayla Dengate, David Webster, Manuel Ribeiro, Ann Wigglesworth, Green Left and Natassia Chrysanthos. More than 100 international students in Costa Rica added their support, as did others studying in Indonesia, and the Herald Sun considered China's perspective. The Australia Timor-Leste Business Council wrote that "the certainty provided by the delimiting of the maritime boundary will be good for business in both Timor-Leste and Australia," and the British magazine The Economist wrote Line in the sand: Trying to squeeze money from the last drop of oil.
On 11 April, Timor-Leste announced (also Tetum) that it had just notified Australia that it was initiating "compulsory conciliation proceedings under the UN Convention on the Law of the Sea (UNCLOS), with the aim of concluding an agreement with Australia on permanent maritime boundaries." The action, explained by a government fact sheet (also Tetum), raises complex legal issues as it navigates among UNCLOS dispute resolution provisions, Australia's unilateral 2002 withdrawal from UNCLOS processes for maritime boundary disputes (see below for related documents), and the "gag rule" in CMATS Article 4, especially paragraph 6. Nevertheless, as RDTL spokesperson Agio Pereira explained on Australia's Radio National, Timor-Leste is frustrated with Australian intransigence for the past 14 years, concerned that 'provisional' arrangements could evolve to become permanent, and seeks to look toward the future and accelerate the eventual settlement of the maritime boundary as foreseen in the existing revenue-sharing agreements. Timor-Leste's initiative, which is the first time ever that this process has been invoked, was reported by the Sydney Morning Herald, South China Morning Post, LUSA and ABC. (Skip down for more on the conciliation process)
Australia's government sharply criticized the move, saying that there would be no further discussions. However, the Australian Labor Party and Green Party welcomed Timor-Leste's action, promising to negotiate a new and fair maritime boundary with Timor-Leste, and SBS compared contrasting party policies.
On 13 April, former Prime Minister and Chief Boundary Negotiator Xanana Gusmão brought the issue to Secretary-General Ban Ki-Moon at the United Nations in New York. Xanana issued a press statement there (watch press conference on UN TV), and the Government issued a press release in Dili (also Portuguese). The press conference was covered by IPS and other media.
Several Australians with long connections to Timor-Leste, including academic Clinton Fernandes, journalist John Martinkus and geologist Mike Sandiford, wrote articles to place the current dispute in historical context. Others, like Rebecca Strating, tilted toward Canberra's perspective. Timorese veterans (aided by their government), diplomats and negotiators reached out to people in Australia and the region. Former President Jose Ramos-Horta wrote Australia needs to negotiate not litigate with neighbours in major Australian newspapers.
Protests continued in New Zealand and around the globe. Xanana Gusmão continued to take his case to the Australian people after ANZAC Day, stimulating a column in New Daily. The Sydney Morning Herald carried Tim Dick's column Australia is a bad neighbour and we should be better than this and reported that East Timor's Xanana Gusmão says small nations angry with Australia, and will put bid for UN seat in peril (also by LUSA in Tetum).
When Timor-Leste filed for Compulsory Conciliation on 11 April, they named Judge Abdul Koroma (Sierra Leonean, on the International Court of Justice 1994-2012) and Judge Rüdiger Wolfrum (German, on the International Tribunal for the Law of the Sea since 1996) as their members of the panel. Australia waited until the last minute to respond, but on 2 May Canberra selected Dr Rosalie Balkin (Australian, Assistant Secretary-General (ret.) of the International Maritime Organization) and Prof Donald McRae (Canada/NZ nationality, teaches law at the University of Ottawa) as their two representatives. These four will elect a fifth member who will chair the Conciliation Panel. Timor-Leste's government acknowledged Australia's response, which was encouraged by many in the local media. (See below for more on this process).
However, Australian scare tactics continued, with Indonesia 'may be drawn into Timor talks' citing DFAT secretary Peter Varghese, conveniently forgetting that, in Article 4 of the 1972 Australia-Indonesia Seabed Boundary Treaty, both countries agreed to "cease to claim or to exercise sovereign rights with respect to the exploration of the seabed and the exploitation of its natural resources beyond the boundaries so established," and that Indonesia ceded what became the JPDA and the area east and west of it to Australia via this treaty.
Whistleblower "Witness K," who exposed Australia's bugging of Timor-Leste's government offices during the CMATS negotiations, was recognized at the Blueprint Prize for Free Speech awards in London, as described on Crikey.com. During the same week, Kathleen Noonan wrote in the Courier Mail We know East Timor is poor. But this poor? contrasting Australian greed and Timorese poverty.
The following day, Timor-Leste's Maritime Boundaries Office held the Dili International Conference: Maritime Boundaries and the Law of the Sea. They circulated a conference paper and heard talks by Prime Minister Rui Araujo (also Tetum) and President of the International Tribunal for the Law of the Sea Vladimir Golitsyn (also Portuguese), who was introduced by Minister Dionisio Babo Soares. Presentations included Indonesian perspectives from academic I Made Andi Arsana and diplomat Eddy Pratomo, Malaysian perspectives from Jalila Abdul Jalil, and UNCLOS Dispute Settlement Mechanisms by Hao Duy Phan. Government press releases before and after celebrated the event. The June 2016 Newsletter from the Maritime Boundaries Office summarized this and other recent developments.
In May, Marc Moszkowski published an updated version of his map presentation Maritime boundaries of East Timor: a graphical presentation of some historical and current issues, together with a shorter summary.
In June, several feature articles tried to explain the context and analyze Timor-Leste's and Australia's perspectives: Timor-Leste pushes Australia to conciliation (Mark Skulley in The Saturday Paper - also interviewed on radio), Timor-Leste Blazing a Trail for Maritime Dispute Resolution (Grace Phan in The Diplomat), Unravelling Timor-Leste's Greater Sunrise Strategy (Bec Strating in East Asia Forum), Australia is Behaving Like China in Disputed Waters (Dan de Luce in Foreign Policy), The Timor Gap Dispute with Australia Inspires Timorese Political Activism (Max Lane in ISEAS Perspective), and How Australia is screwing East Timor (Tony Iltis in Greenleft Weekly). BBC produced a television report and a print article. Activist Rob Wesley-Smith asked some important questions.
Other articles highlighted campaigns by Brisbane Catholic parishes and Chief Negotiator Xanana Gusmão in Malaysia. Prime Minister Rui Araùjo raised the maritime boundary issue in Europe and the USA, including at the Meridian International Center in Washington, and he returned to Dili to emphasize it at the Development Partners Meeting, as did La'o Hamutuk.
Prior to the Australian Parliamentary election on 2 July, their Foreign Minister and shadow Foreign Minister debated Australia's policy toward Timor-Leste. Both women were re-elected to Parliament, but neither party has an absolute majority, so the composition of the new government in Canberra is unclear. Two weeks later, it was decided that Malcolm Turnbull will continue as Prime Minister, and Timor-Leste's government congratulated him.
On 12 July, the Permanent Court of Arbitration ruled against China's claim to most of the maritime territory in the South China Sea, upholding the Philippines' argument that the claim violated the UN Convention on the Law of the Sea, and countries in the region reacted. Timor-Leste supporters pointed out the parallels with the Timor-Leste v. Australia dispute, and Australian foreign minister Julie Bishop exhibited Canberra's inconsistency. In Australia, the Timor Sea Justice Campaign wrote a press release and a column in the Sydney Morning Herald that Australia is guilty of same misconduct as China over our treatment of East Timor, and Sr. Susan Connelly's TIMFO.ORG wrote of the damage to Australia's reputation. International lawyers analyzed The Shifting Sands below the Sea, and the Timor-Leste Government reaffirmed its commitment to UNCLOS. Commentaries by Fabio Scarpello (World Politics Review) and Amanda Hodge (The Australian) related the South China Sea case to the Timor-Australia boundary, while the Lowy Interpreter published articles by pro-Australia advocate Stephen Grenville, pro-Timor academic Michael Leach and DFAT's Allaster Cox.
The Compulsory Conciliation Panel panel had not agreed on their fifth member by 18 June, and Timor-Leste's spokesperson told local papers that UN Secretary-General Ban Ki Moon would probably have to select him or her. Ten days later, however, the four members reached agreement (also Tetum) on Amb. Peter Taksøe-Jensen (Danish nationality, currently Denmark's ambassador to India and former UN Assistant Secretary General for Legal Affairs). The panel held its first procedural meeting in the Hague on 28 July, as announced by the Permanent Court of Arbitration (PCA) (also Tetum) and by Timor-Leste's government. The PCA has a web page on the Repository for this case. The next hearing will be on 29-31 August on "the background to the conciliation and certain questions concerning the competence of the Commission." As announced by the PCA (also Portuguese) and echoed by Timor-Leste (also Tetum) and Australia, the opening statements were web-streamed live at https://pca-cpa.org/en/news/timor-leste-australia/.
Media articles during the last week of July covered a wide range. The Jakarta Post cited West Timor traditional leader Ferdi Tanoni claiming (incorrectly) that the Indonesia-Australia maritime boundary should be annulled, while the Saturday Paper published Hamish McDonald's interview with Jose Ramos-Horta which said that Xanana "was never very supportive of the 2002 and 2006 treaties." Journalist Damon Evans visited Dili and wrote two articles about Greater Sunrise for Interfax Natural Gas Daily: an interview with Alfredo Pires and East Timor playing high-stakes gas game.
In early August, UCA news reported that the Catholic Church was supporting Timor-Leste on the boundary dispute, while the ASEAN People's Forum committed itself to a regional campaign on the issue. In Australia, TIMFO published Four Reasons why a border is in Australia's National Interest.
As the opening of the Conciliation Process drew near, Timor-Leste's government announced its delegation (also Tetum). It also presented (Portuguese) a policy paper to the Council of Ministers. The 92-page paper (also Portuguese and Tetum summary) was announced by the Government (also Tetum) and launched by Prime Minister Rui Araùjo (also Tetum) in Dili hours before the Conciliation opened in The Hague. Dili's Maritime Boundary Office also published a Fact Sheet on the conciliation process (also Portuguese and Tetum).
Australia's position on the upcoming conciliation was confused when Foreign Minister Julie Bishop stated that Australia accepted rule of law for boundary disputes, but reversed that position (also AFP) in relation to this process. However, Ben Saul pointed out that the conciliation was a new opportunity for Australia to do the right thing, while Paul Cleary saw a good precedent in the UK-Norway dispute over the North Sea. ABC News, Crikey.com and The Diplomat put the upcoming hearing in context.
On 28 August, Timor-Leste and Australia made their opening statements to the Conciliation Commission (transcript [also Tetum], Australia's slides, Timor-Leste's slides, 2-1/2 hour video podcast [1.3 GB here, or 3 GB on Commission website]). Timor-Leste urged Australia to negotiate a boundary (Guardian), also ABC, AFP, AP, while Australia rejected the Commission's power to engage in this issue (SMH), also The Australian. After the opening hearing, Australia's Foreign Minister summarized her government's position, while her Dili embassy published answers to frequently asked questions (also Tetum). Timor-Leste's Maritime Boundaries Office summarized the public session (also Portuguese, Tetum).
The Commission met in closed session for a few days, issuing a press release on 31 August (also Portuguese), and the wrap-up was reported by AAP (comparing Indonesia with Australia) and the Sydney Morning Herald/Age, which editorialized that East Timor deserves a fair hearing. Several writers took off from this event to look at Timor-Leste's context and strategy, including Damon Evans in Natural Gas Daily, Hamish McDonald in The Saturday Paper (TL backing oil development before Hague ruling), Prof. Donald Anton in WA Today (Right but wrong: Australia is using a legalism to delay resolution of the Timor sea boundary dispute), three China-based writers, and Senator Penny Wong (Australia should commit to dispute resolution) who was rebutted by Lowy's Stephen Grenville who introduced Indonesian complications. More reporting and commentary was published by TIMFO, the Timor Sea Justice Campaign, the World Socialist Web Site, Green Left Weekly and Free Speech Radio News, as well as by Bec Strating, Ines Almeida and Hamish McDonald. Prime Minister Rui Araùjo discussed the boundary dispute in his address to the UN General Assembly (also Tetum), and the Timor-Leste Universities Movement held a press conference (also Tetum) on the eve of the Commission's jurisdictional ruling.
On 26 September, the Conciliation Commission released (also Tetum) its 41-page unanimous Decision on Australia's Objections to Competence (also Tetum), saying that it does have jurisdiction and will continue to hear this case over the next twelve months. The decision was applauded by Timor-Leste (also Tetum) and accepted by Australia. It was widely covered in the media, including ABC/AFP (including a video interview with Michael Leach and an audio interview with Jose Ramos-Horta), BBC, the Age/SMH, Voice of America, the Guardian, Jornal de Noticias (Portuguese) and the World Socialist Web Site.
Deeper analysis was provided by Frank Brennan in Eureka Street, Mark Skulley, Guteriano Neves, Hao Duy Phan in The Diplomat and Mungo MacCallum. Other articles had a pro-Australian bent, including Timor-Leste is running out of time by Bec Strating in Lowy's Interpreter and The rules of extraction by Elisabeth Buchan in ASPI's Strategist. Lyle Morris of the Pell Institute explained Why the [...] Case Matters from a global perspective.
On 13 October, the Permanent Court of Arbitration announced, on the Conciliation Commission's behalf, that Optimism Pervades Recent Meetings with Conciliation Commission (also Portuguese), saying that both Australia and Timor-Leste delegations are actively participating and consider the meetings "very productive," although confidentiality prevents either party from commenting publicly. As reported in the Straits Times and elsewhere, the process will continue over the course of the next year.
When former Portuguese official Antonio Guterres was elected UN Secretary-General, ex-President Jose Ramos-Horta explained that Guterres could not use his new position to tilt the playing field toward Timor-Leste in the boundary dispute. Horta later appealed to Australia's sense of a "fair go".
In November, The Australia Institute released the results of a poll (full report) of Australians conducted last August. Of the more than 10,000 Australian residents polled, 56.5% supported establishing a maritime boundary according to international law, while only 17% opposed this change. Although majorities of every group supported the change, the greatest support was among men and older people.
Writing in Natural Gas Daily, Damon Evans interpreted La'o Hamutuk information about dwindling petroleum revenues to imply increased pressure on Timor-Leste to make a Sunrise deal. In a subsequent Forbes article, Evans explained that economic diversification was the urgently-needed solution, not more oil and gas.
The November issue of the RDTL Maritime Boundary Office Newsletter (also Tetum) summarized their recent activities. At the end of the month, Timor Sea Justice Campaign coordinator Ella Fabry wished the country a happy birthday, explaining that [Australia's] gift to you is to steal your oil, and your future.
In December, Timor-Leste and Indonesia discussed opportunities for cooperation in the oil and gas sector.
2017 Major events this year discussed below include:
On 9 January 2017, Timor-Leste, Australia and the Conciliation Commission issued a joint statement (also Tetum). The two countries agreed to terminate the 2006 CMATS Treaty in its entirety, including the "zombie clauses" that would have kept parts of the treaty alive after "termination" and resurrected it when Sunrise production began. The termination will be effective on 10 April, three months after Timor-Leste legally notifies Australia that it is exercising its right to terminate under the treaty. The 2002 Timor Sea Treaty will expire on its original date (April 2033), rather in 2057 as defined by CMATS. The two governments also committed to negotiate permanent maritime boundaries, and the CMATS "gag rule," which Timor-Leste has been defying for the last three years, is no longer in effect.
The decision confirms important points that La'o Hamutuk and others in civil society have been saying (2006 letter to Parliament) since before CMATS was ratified, and we are gratified that both governments have come around to our point of view:
Unfortunately, the joint statement does not address another key point: that a binding ruling by an impartial third party -- through arbitration or a judicial process -- is the only fair way to settle a boundary dispute between two very unequal countries. Since Timor-Leste restored its independence in 2002, closed-door bilateral negotiations have produced results biased toward Australia, which has far more wealth, experience, flexibility, resilience, oil and gas, and economic and political resources. Once again, La'o Hamutuk urges Australia to return to the binding dispute resolution mechanisms under the International Court of Justice and UNCLOS, from which it withdrew two months before Timor-Leste became a sovereign nation.
The 9 January joint announcement was widely reported, including by BBC (also in Indonesian), ABC, the Guardian, Australian Financial Review, and Age. It was welcomed by the Timor Sea Justice Campaign, Canberra Times, and the TIMFO blog.
On 10 January, Timor-Leste's Parliament resolved to cancel the CMATS Treaty, and President Taur Matan Ruak promulgated Resolution 01/2017 six days later. Prime Minister Rui Araùjo told local journalists that oil and gas exploration in the Timor Sea would be temporarily suspended until the boundary is settled.
According to Energy News Bulletin and ABC, Woodside was hopeful that a boundary settlement would allow its Sunrise project to move forward, while another ABC report cited economic opportunities for Timor-Leste. However, a few days later, writers in ENB and ABC explained that Sunrise faces a long road, with political and economic hurdles, while the Australian Financial Review discussed the problems for Darwin LNG caused by "fresh uncertainty."
Journalists with long Timor-Leste experience, including John Martinkus (For East Timor, maritime boundary is not about oil. It's about pride.) and Paul Cleary (Australia should meet East Timor halfway on maritime boundary), gave deeper explanations, as did Australian academics Michael Leach (A line in the water), Greg Earl (Economic diplomacy brief: oily water), Frank Brennan (Timorese have had a win but could still lose big-time), Damien Kingsbury (Oil Slick: ET wins battle, but Australia could yet win resources war), Bec Strating (What’s behind TL terminating its maritime treaty with Australia, TL runs the risk of a pyrrhic victory, TL’s maritime ambitions risk all and Timor-Leste Plays Hardball on Greater Sunrise) and Andrea Rodriguez Solano (Dividing up the Timor Sea). Activists for Timorese rights, including Tom Clarke (Australia's unscrupulous pursuit of East Timor's oil needs to stop), Jose Ramos-Horta (lauding Xanana's vision), Sr. Susan Connelly (Josephine Sister seeks just outcome on Timor Gap), Steve Bracks (Boundary treaty renegotiation is in Australia's interests, Australia can't give advice on territorial matters while still in dispute with East Timor) and the World Socialist Website also weighed in.
On 18 January, Al Jazeera's The Stream hosted a half-hour TV program on the issue (YouTube here or 36 MB download), with Jose Ramos-Horta, Tom Clarke (TSJC), Juvinal Dias (La'o Hamutuk) and Mark Mozkowski (Deep Gulf). The Australian government declined to participate.
The other shoe dropped on 24 January, with another joint statement (also Tetum) that, on 20 January, Timor-Leste had written to the two international arbitration panels it had initiated against Australia (about spying and regarding pipeline payments) to withdraw its complaints. This was "the last step in the integrated package of confidence-building measures agreed ... in October 2016." The two countries "reaffirmed their commitment to work in good faith towards an agreement on maritime boundaries by the end of the conciliation process in September 2017." The statement was reported by the Sydney Morning Herald, the Guardian, The Australian, AAP and Offshore, among others, as well as by the Timor-Leste Government (also Tetum). Two months later, the arbitration panel formally ended the process.
Specialized international publications, including Global Risk Insights, the PLMJ International Legal Network and FutureDirections international explained the issue to their constituencies. Skip down for more on the conciliation process.
In February, IPS published Maritime Boundary Dispute Masks Need for Economic Diversity in Timor-Leste by Stephen de Tarczynski.
On 13 February, the Australian Parliament's Joint Standing Committee on Treaties (JSCT) opened an inquiry into "Consequences of termination of the Treaty between Australia and the Democratic Republic of Timor-Leste on Certain Maritime Arrangements in the Timor Sea." The Committee has asked for written submissions, with a deadline of 10 March, and will make its report by 30 March. Click here to download relevant documents, including the announcement of the inquiry, proposed treaty text, National Interest Analysis, and justification for keeping this action secret (except from Timor-Leste and the oil industry) until it was announced publicly. The JSCT Parliamentary website has more information, including instructions on how to submit testimony. La'o Hamutuk has archived submissions and reports from related Australian Parliamentary inquiries in 2013 (LH submission), 2007 (LH submission, committee report) and 2002-2004, which may be helpful to those preparing submissions to this one.
The Parliamentary Committee published submissions to the inquiry on its website from Lindy Yeates, Ingvar Anda, Marian Lester, Michel & Anne Beuchat, Colin Forrest, East Timor Action Network, ACT Timor Sea Justice Action Group, Peter McMullin, Marc Moszkowski & Rodney Lewis, Australia Timor-Leste Business Council, Canberra Friends of Dili, Sustainable East Timor Loan (SETL), Queensland Timor Sea Justice Group, Nichola Hungerford, Friends of Baucau, La'o Hamutuk, Timor Sea Justice Forum NSW, Simon Wood, Christine Perkins & Chris Dureau, Name Withheld, and the Timor Sea Justice Campaign. With one exception (Moszkowski & Lewis), they all supported the total cancellation of the CMATS Treaty and establishing a boundary under international legal principles. The Committee accepted additional submissions after the deadline from Timorese United Association, Uniting Church in Australia (Synod of Victoria and Tasmania), Australia East Timor Friendship Association SA, Veterans of Timor-Leste, the Sunrise Joint Venture, Robert King and Friends of Maliana.
On 14 March, Australia's Joint Standing Committee on Treaties (JSCT) held a public hearing on CMATS (transcript, 95 MB video), with testimony from government officials and academics Rebecca Strating and Clive Schofield. AAP highlighted the academics' assertion that Timor-Leste was acting against its own interests by cancelling CMATS, leading to it becoming a "failed state" or "aid dependent." The committee has no other hearings scheduled. Following the hearing, the Committee received written comments and answers from Rebecca Strating, Clive Schofield and the Australian government Department of Foreign Affairs and Trade and Department of Industry, Innovation & Science. ABC Radio interviewed Prof. Strating (3 MB audio). On 21 March, former President Jose Ramos-Horta called Strating's "failed state" testimony "outrageous ... it's just nonsense."
On 30 March, the Committee issued its report, together with a press release. They supported the pre-termination amendments to CMATS which enable the treaty to be terminated in its entirety, and expressed their "strong view that the maritime boundary dispute should be negotiated bilaterally and in good faith, and commend[ed] both Governments for agreeing to operate by these principles." Although they agreed with the Committee's recommendations, the Australian Greens were: "surprised by the Committee’s stated disagreement with the contention in many submissions that Australia behaved oppressively or unfairly towards Timor-Leste in the negotiation of the CMATS Treaty. It is manifestly clear that Australia behaved in a reprehensible fashion towards its fledging neighbour. The Greens would like to place on the record that Australia did not negotiate the CMATS Treaty in good faith, having spied on East Timorese Cabinet discussions regarding the Treaty in 2004. To assert otherwise would be to ignore a wealth of evidence against Australia."
Time to Draw the Line is a new documentary film produced to show Australians their government's shameful history on Timor Sea boundary issues, which was reviewed in Green Left Weekly. It is being shown across Australia beginning on 19 February. Click on the list at right to see the initial Australian showings, or click here to see the trailer, check an updated list, purchase tickets or arrange another showing. Local newspapers in Bega Valley and other locations used the film showing to highlight the issue.
La'o Hamutuk interviewed candidate Lu Olo (transcript, also Tetum and video) on 14 March, a week before he was elected to be Timor-Leste's President from 2017 to 2022. Regarding the maritime boundary, he responded "...the constitution states that the territory should be decided based on measurement of the sea or land to decide where ours extends to and where another country’s extends to... [T]he international rights which we accept as part of our legal structure will serve as our legal basis, which say that such problems should be resolved through dialogue. Naturally, the President of the Republic will uphold measures that have been taken so far, and I will continue to defend our national sovereignty, our maritime sovereignty, terrestrial and air space, and the sovereignty of the people and our laws, in compliance with international law.
Prior to his election, the Sydney Morning Herald indicated that Lu Olo might be more flexible than other leaders in negotiating with Australia about Greater Sunrise, but his campaign responded this his position was identical to that of the current government. Just after the vote, Interfax Natural Gas Daily described Signs East Timor softening Greater Sunrise stance.
As Timorese were casting their ballots on 20 March, the three-man arbitration panel formed to decide the case initiated by Timor-Leste nearly four years earlier issued an order terminating the case, responding to letters it had received from Timor-Leste and Australia in January 2017.
On 3 April, the Conciliation Commission issued a press release announcing that the two countries' delegations had held a series of confidential meetings in Washington the previous week. The Commission and both parties agreed that the meetings were productive, and that there would be further meetings during 2017 in this "marathon" process.
On 10 April, CMATS became permanently and completely null and void. Bec Strating wrote that this left Timor-Leste "exposed."
On 27 April, the LNG platform for the Australian Browse project sailed from the Samsung Geojy shipyard in South Korea. The same shipyard is building the floating LNG plant for Shell's Prelude project, the "world's biggest ever vessel," which will be shipped between July and September and begin production in 2018. If it goes smoothly, this project could change the debate around how to liquefy Sunrise gas.
In early May, Jose Ramos-Horta visited Australia, resulting in ABC's Jose Ramos-Horta warns gas dispute with Australia risks pushing East Timor closer to China and Jose Ramos-Horta calls on Australia to abandon 'unsubstantiated' claim in Timor Sea in the Guardian. Soon thereafter, The Saturday Paper published Settling the maritime borders with Timor-Leste, an opinion piece by Hamish McDonald. and the Alternative Law Journal published Espionage against East Timor and the need for Parliamentary oversight, a short article by Clinton Fernandes. Following a visit to Timor-Leste, New Zealand activist Maire Leadbeater wrote of New Hope for fair deal over oil below Timor Sea.
At a hearing of the Australian Senate Committee on Foreign Affairs, Defence and Trade on 31 May, Nick Xenophon asked Attorney General Brandis about Witness K's passport, and Penny Wong asked about Australia's participation in the conciliation process (transcript).
On 20 May, the Timor Sea Justice Campaign lamented that Fifteen Years after Independence, East Timor is still waiting for Australia to to set Permanent Maritime Boundaries. TSJC brought 'fair minded Australians' to Canberra to protest and lobby Parliament on 14 June, with a speech by Senator Xenophon and news coverage of Bernard Collaery's call for a Senate inquiry. On the same day, opposition foreign affairs spokeswoman Senator Penny Wong began a visit to Dili to explore 'resetting ties' with Timor-Leste's leaders.
The Conciliation Commission hosted another round of 'productive' meetings in Copenhagen during the first week of June, stating in a press release (also Portuguese) that "The Commission continues to believe that, with the goodwill we see from both governments, a comprehensive resolution of this dispute is possible." They met again six weeks later.
In addition to supporting Timor-Leste in the conciliation, the Maritime Boundary Office gave a private briefing for La'o Hamutuk and published a Fact Sheet on the conciliation (also Tetum), as well as a June newsletter (also Tetum). Also in June, Australian professor Vivian Forbes published a long article on Myths, Perceptions and Reality to support Australia's outdated Continental Shelf argument.
In July, the U.S. House of Representatives Committee on Armed Services expressed its belief "that negotiations between Australia and Timor-Leste to establish permanent maritime boundaries sends a positive signal to other states in the region regarding adherence to a rules-based international order. A mutually agreed upon resolution could serve as an example for resolving other disputes peacefully..." The U.S.-based East Timor Action Network (ETAN) lauded the House action.
Timor-Leste elected a new Parliament on 23 July. Although Xanana Gusmão's CNRT Party lost support and is unlikely to be in the next government, all parties agreed that he should continue to lead the maritime boundary negotiations. President Lu-Olu confirmed this in a televised address (also Tetum) on 21 August.
Building on years of research, Australian academic Kim McGrath published the book Crossing the Line; Australia's Secret History in the Timor Sea in August, described by the publisher as 'a long-overdue exposé of the most shameful episode in recent Australian history.' An extract was printed in the Sydney Morning Herald, and the author was interviewed on ABC Radio's Late Night Live. Michael Rose reviewed the book for the Lowy Interpreter in November. (More below)
Delegations from Timor-Leste and Australia held another round of meetings (also Tetum or Portuguese) with the Conciliation Commission on 24-28 July in Singapore. Although all parties called the meetings 'constructive,' they said that 'difficult issues remain' and the process will probably not finish by 19 September as previously expected. "The Commission expects to conclude its substantive discussions with the Parties by October of this year, after which it will proceed to issue its report." Timfo.org explained the context and significance, and then lambasted Australia for prolonging the process, as well as publishing a flyer.
Another round of talks was scheduled for Copenhagen from 28 August and 1 September, which provided a reason to delay swearing in Timor-Leste's newly-elected Parliament and Government until 5 September.
On 1 September, the Permanent Court of Arbitration issued a press release (also Portuguese) celebrating a 'breakthrough' in the conciliation process, announcing that 'Timor-Leste and Australia have reached agreement on the central elements of a maritime boundary delimitation between them in the Timor Sea. The Parties’ agreement constitutes a package and, in addition to boundaries, addresses the legal status of the Greater Sunrise gas field, the establishment of a Special Regime for Greater Sunrise, a pathway to the development of the resource, and the sharing of the resulting revenue.' Although no specifics were made public at the time, the agreement was lauded by both nations and by the Conciliation Commission. The jubilation was echoed by the Timor-Leste Government, Mark Sculley, ABC and SBS television, Michael Leach, the Sydney Morning Herald, The Guardian, Fr. Frank Brennan, Bloomberg News, Australian Financial Review and Anthony Fensom. (After the Treaty was signed on 6 March 2018, the Comprehensive Package Agreement was published as well.)
However, the Timor Sea Justice Campaign was more cautious, pointing out that 'when it comes to the Australian Government and East Timor’s oil it’s always worth taking such promises with a big grain of salt ... The devil of course will be in the detail of the new treaty.' La'o Hamutuk shares this concern about premature celebration, remembering a Timor-Leste government press release from December 2005 which lauded agreement on the not-yet-disclosed (but now discredited and revoked) CMATS Treaty as 'very positive' and called it 'a win-win' for both nations. Earlier, in March 2003, Timor-Leste had been 'pleased with the outcome' of the Sunrise IUA negotiations, but then Dili delayed for four years before ratifying this agreement as part of the CMATS package.
La'o Hamutuk published a blog Copenhagen Agreement: Permanent Boundary or CMATS redux? (Konkordánsia Copenhagen: Fronteira Permanente ka Neo-CMATS?) on these ideas. Others shared the skepticism of celebrating without specifics, including Damien Kingsbury, TSJC's Tom Clarke on ABC Radio (audio) and Kim McGrath on SBS. Commentators a few days later, including Bec Strating, Don Rothwell, Interfax Natural Gas Daily, the Australian Financial Review, Upstream and Marbdy Consulting, were more circumspect about the still-unknown details.
Details of the agreement remained secret, and some are still to be worked out in the next (and perhaps final) round of the Conciliation process in October. Nevertheless, commentators continued to write with varying degrees of accuracy, including Tommy Koh from NUS, TIMFO.org, Paul Malone in the Sydney Morning Herald, Erin Cook in Asia Times and TimorGAP's Newsletter.
Timor-Leste reported "decisive" progress on the issue to the U.N. General Assembly, and the Government congratulated Australian P.M. Malcolm Turnbull (also Portuguese) on his "commitment to strengthening the special bond that unites both countries."
As the newly-elected Fretilin-led government in Dili took shape, Prime Minister Mari Alkatiri appointed Agio Pereira as Deputy Prime Minister for the Delimitation of Borders. Xanana Gusmão will continue to lead the negotiations, and Pereira - his long-time right-hand man - will keep the government informed. The Maritime Boundary Office updated its Fact Sheet on Conciliation (also Portuguese and Tetum).
At the swearing-in ceremony for Pereira and other new Ministers on 3 October, P.M. Alkatiri stressed the importance of this issue: "With regard to sovereignty, I reiterate the position of my Government, and on behalf of all, to fully support to our negotiating team on the maritime and land borders of Timor-Leste. His Excellency Kay Rala Xanana Gusmão, and the team he heads, will always formally recognized, legitimized and supported by this Government in the noble mission to negotiate on behalf of the State of Timor-Leste our maritime and land borders with our neighbors. We begin today to institutionalize this support with the swearing in of His Excellency the Deputy Prime Minister for the Delimitation of Borders."
Agio Pereira explained the situation to LUSA and updated the new Council of Ministers at their meeting on 4 October: "The continuity of the State is part of the existence of this same concept. From it arises the need to develop a solid culture and institutional state life.The permanent boundary delimitation of our Territory which includes the Earth, the sea and the air, is an imperative of the full affirmation of our State. Therefore, my government understands the need to create an appropriate institution, a High Authority to manage this issue as important as complex. The High Authority should be seen by all as a solution that guarantees a consistent view of the common interests of our State and of our People."
The next round of talks took place in the Hague from 9-13 October, and the two nations "reached agreement on a complete draft treaty", according to a press release from the Permanent Court of Arbitration (also Portuguese, Tetum and French). Details of the agreement remain secret, but the Woodside-led Sunrise Joint Venture is now part of the process. Conciliation Chair Peter Taksøe-Jensen said that these meeting were the "easiest" so far, and that the two parties spoke directly, no longer needing the conciliators to carry messages between them. On 13 October, the Ministers from Timor-Leste and Australia exchanged letters assuring that current financial and regulatory arrangements for Bayu-Undan and Kitan will remain in effect under the new treaty.
They will meet in Singapore in late November, and again in December, in hope of signing a treaty by early 2018. After that, the Conciliation Commission will release a public report on the proceedings. The news was widely reported in wire service articles (AAP, AFP) which added little to the press release.
Some local journalists and Facebook pundits, as well as Lindsay Murdoch in the Age, speculated that the process could be delayed by "political turbulence" surrounding the formation of the new Government in Dili. However, all political parties trust in Xanana Gusmão and Agio Pereira to defend the nation's sovereignty in the border dispute with Australia, and the Constitutional processes of forming and/or rejecting a minority government in Timor-Leste should not impact on the conciliation and negotiation process with Australia and the oil companies. The proposed Government Program (also Tetum) says "The delimitation of permanent borders with Australia and Indonesia is a national priority since Timor-Leste, since its independence, legitimately aspires to exercise full sovereignty over the national territory, including the maritime territory which, under the terms of international law, lies within its jurisdiction", while the Platform of the Parliamentary Opposition parties (Tetum) was reviewed by Xanana Gusmão as leader of CNRT. Damien Kingsbury wrote that "The Timor Sea agreement is in hot water" due to the government's difficulties in getting Parliament to support its program, but every Timorese political party agrees that Australia must respect Timor-Leste's maritime boundary rights and would ratify an agreement which does that.
In an ABC Radio Report on 17 October (audio), Timor-Leste's Ambassador to Australia Abel Guterres promised that his government would be prepared to sign a new treaty by the end of the year. One the same day, Natural Gas Daily reported that the oil companies are discussing development options for Greater Sunrise as the inter-governmental negotiations near conclusion. Writing on the (U.S.) National Interest blog, ex-Secretary of State Francisco da Costa Guterres, Kjell-Åke Nordquist and Charles Santos cited the Timor-Leste-Australia agreement to argue for the effectiveness of institutionalized democratic ideals, especially applicable to the South China Sea.
On 21 October, La'o Hamutuk presented Istória no Luta ba Fronteira Maritima iha Timor-Leste (also PowerPoint) to a seminar organized by the Movimentu Halibur Juventude Timor-Leste.
On 3 November, Prime Minister Mari Alkatiri told the Asia-Pacific Regional Conference in Perth "The Greater Sunrise field can soon be developed now that Timor-Leste and Australia have agreed to a special regime for the joint development and management of the field." At the conference, Alkatiri and Australian Prime Minister Malcolm Turnbull announced that the Australian government would donate two Australian-built military patrol boats, worth A$30 million, to Timor-Leste. The two Prime Ministers held a summit meeting the following day (left).
Timor-Leste, Australia and the companies will meet again in Brisbane this week. On 6 November, an article in The Australian, Sunrise hopes rise as talks begin, quoted Prime Minister Alkatiri that “everything is on the table,” including the possibility of piping Sunrise gas to Darwin. The article was circulated on Facebook by CNRT and has drawn hundreds of heated reactions. As the graphic at right shows, anti-Fretilin partisans are trying to blame Mari Alkatiri for compromises Timor-Leste's negotiating team (which continues to be led by Xanana Gusmão, as it has been from the start) may make to persuade Australia to agree to a permanent maritime boundary.
One day later, the Prime Minister's office issued a press release reaffirming the Government's "unconditional support for chief negotiator Kayrala Xanana Gusmão to lead the maritime boundary negotiations and the development of Timor Sea oil and gas." The Prime Minister said that The Australian's article had no basis, and that "we firmly maintain our position that the gas pipeline must come to Timor-Leste." The Prime Minister's office wrote to the newspaper, which printed a clarifying article on 10 November.
The Conciliation Commission, together with Timor-Leste, Australia and the Sunrise Joint Venture, continued discussions in Brisbane in early November and in Singapore on 18 November, as summarized in the Commission's press release (also Portuguese). However, the specifics of their agreement and draft treaty are still under wraps.
On 22 November, Bec Strating wrote another article for the Lowy Interpreter assessing Progress and prospects as a deal emerges, and she also explained the issue in a World Politics Review interview on 15 December. In a 26 December article in East Asia Forum, Strating described Timor-Leste’s precarious position after 2017.
The Conciliation Commission, through its Permanent Court of Arbitration secretariat, issued another press release on 26 December (also Portuguese). The announcement reported that Timor-Leste, Australia and the Sunrise Joint Venture held another round of talks in Singapore during the week of 11 December. Although no additional specifics were revealed, the three parties agreed to a "supplementary action plan" to decide the Sunrise development concept (i.e. where the gas will be liquefied) by 1 March 2018, with a treaty to be signed in subsequent weeks. The Commission will publish its report in April. The press release was reported by LUSA and by AFP, whose article was published in many countries.
On 28 December, ABC reported that Attorney Bernard Collaery, who has represented Timor-Leste on the boundary issue, believes that the treaty deadline may be "wishful thinking," given political uncertainty in Dili and possible new elections. See below for more on the criminal charges against Collaery and Witness K in June 2018.
2018 Major events this year discussed below include:
In early January 2018, ABC's Saturday Magazine radio program interviewed Kim McGrath, whose book on Australia's boundary policy in the last century was published in 2017. Renewed attention prompted one of Australia's negotiators to Revisit[ing] Australia's 1972 seabed boundary negotiations with Indonesia, writing that they were unrelated to the future Timor Gap Treaty. On 16 February McGrath wrote How Australia crossed a line in the Timor Sea for the Lowy Interpreter, and the following week Rebecca Strating described how the pending treaty reflects aspects of the new Australian Foreign Policy White Paper. Skip down for later developments on Kim McGrath's research.
On 13 January, chief negotiator Xanana Gusmão addressed the World Energy Forum of the Atlantic Council in Abu Dhabi about Lessons from Timor-Leste on Best Practices and Sustainable Economic Models (13 MB English video, Portuguese, also Tetum). He spoke about the resource curse, the Petroleum Fund, the maritime boundary conciliation and the Tasi Mane Project. Although Xanana has been active in the boundary conciliation process and speaking at conferences around the world, he has not been in Timor-Leste since September.
On 26 January, President Lu Olo dissolved Parliament and ordered new elections, which will be on 12 May. Some Australian media lamented that this could delay the signing of the maritime boundary treaty, a strange view in light of the Australian intransigence that delayed agreement on maritime boundaries for decades. Prime Minister Mari Alkatiri expressed confidence that the agreement will be signed soon, and, a few days later, Lusa reported that the signing will take place on 6 March in New York (Portuguese original), in front of UN Secretary-General Antonio Guterres. However, it remained unclear who will sign for Timor-Leste, as Xanana Gusmão has not yet been sworn in to his position in the new Government. Alkatiri said that Gusmão would be the most appropriate signer, but if he has not taken up his position, Deputy Prime Minister Agio Pereira, who has been the second-ranking person on Timor-Leste's side during the conciliation process, could sign on behalf of the state.
The terms of the agreement were not disclosed until after it was signed in March. It establishes a boundary along the median line, although the eastern and western lateral locations are still secret, and the location for liquefying the natural gas from Sunrise remains unresolved. However, according to Lusa's source, Timor-Leste will receive 70% of the upstream revenues from Sunrise if the pipeline comes to a new LNG plant in Beaçu on Timor's south coast, or 80% if the gas is piped to Darwin, where it would replace dwindling gas supplies from Bayu-Undan.
The latter option is somewhat uncertain because ConocoPhillips' Barossa project (see map at right) would also like to tap into the Bayu-Undan pipeline and use the Darwin LNG plant. On 8 March, after the treaty became public, ConocoPhillips and Santos began promoting Barossa more assertively, perhaps to pressure Timor-Leste's government to quickly agree to Sunrise gas being processed in Darwin. Skip down for more on Barossa.
Another round of talks took place in Sydney during the first week of February, and the parties (including the oil companies) will meet again in Malaysia on 19-24 February. Sources are confident that the boundary treaty will be finalized before the Commission's mandate expires on 1 March, even if the Sunrise development modality has not yet been agreed. On 11 February, Lindsay Murdoch wrote in The Age and Herald that the Timor Sea deal could bring a lot of money to Timor-Leste.
At its meeting on 13 February, Timor-Leste's Council of Ministers approved the text of the maritime boundary agreement which will be signed on 6 March in New York. Although Deputy Prime Minister for the Delimitation of Borders Agio Pereira will sign on behalf of Timor-Leste, Prime Minister Mari Alkatiri and chief negotiator Xanana Gusmão were expected to be present. Lusa reported the news (also Portuguese).
Australian Attorney Bernard Collaery, whose office was raided by Australian intelligence in 2013 while he was representing Timor-Leste, is working on a book about the controversy. New Matilda, among others, expects it to be "explosive." A few months later, Australian prosecutors charged Collaery -- see below.
On 17 February, Lusa reported that Timor-Leste was making a "last effort" to bring the pipeline from Greater Sunrise to Beaçu. On Sunday, 18 February, the Bishop of Dili organized, at Xanana's request, a special Mass to pray for the Sunrise pipeline. Government officials did not participate -- they later said that they hadn't been invited.
The final set of meetings organized by the Conciliation Commission, including representatives from Timor-Leste, Australia and the Sunrise Joint Venture oil companies, took place in Kuala Lumpur during the week of 19 February. On 23 February, the Australian Embassy in Timor-Leste celebrated its successful conclusion, and on 25 February the PCA (secretariat for the process) put out a press release Conciliation Commission concludes engagement on development pathway for Greater Sunrise gas fields at final conciliation session with Timor-Leste and Australia (also Portuguese or Tetum). According to the release, "the Parties have reached agreement on a treaty which delimits the maritime boundary between them in the Timor Sea and addresses the legal status of the Greater Sunrise gas field, the establishment of a Special Regime for Greater Sunrise, and a pathway to the development of the resource. The treaty also establishes revenue sharing arrangements between the governments of Timor-Leste and Australia where the shares of upstream revenue allocated to each of the Parties will differ depending on downstream benefits associated with the different development concepts for the Greater Sunrise gas field.
As reported by the Sydney Morning Herald, ABC, and Jornal Economico (Portuguese), the details of the treaty and other arrangements have not yet been made public. However, the decision on where the gas pipeline from Sunrise will go is being deferred, probably until a new government is formed after the 12 May Parliamentary elections. The next day, the Timor Sea Justice Campaign celebrated the agreement. Over the next few days, Australian Financial Review, Oilprice.com, Future Directions, Luke Hunt, Grant Wyeth, Michael Sainsbury, David Hutt, Frank Brennan, Simon Roughneen and others published articles about the pending treaty.
However, many writers misunderstand the potential revenues from Greater Sunrise, the role of the Permanent Court of Arbitration (it is only the registry for the process), the Conciliation Commission (it facilitates negotiations but makes no decisions), and the consensual, non-binding, non-legalistic nature of the bilateral discussions between the two countries. On 3 March, Forbes published Damon Evans' Overblown Expectations For East Timor's Greater Sunrise Oil And Gas. Evans estimates that Timor-Leste could receive about $8 billion in revenues if the gas is processed through a pipeline to Darwin, but that a pipeline to Timor-Leste would make the project economically unviable.
Many Timorese Facebook pundits and commentators are viewing (or distorting) this issue through a partisan lens, but La'o Hamutuk urges that it not be politicized. We encourage people to celebrate the achievement of finally getting Australia to respect Timor-Leste's sovereign right to a maritime boundary, as well as to carefully analyze the benefits and costs of bringing the Sunrise gas pipeline to our nation.
Ten years ago this month, La'o Hamutuk published a book on Sunrise LNG (right), and many of the issues it discusses remain relevant. The book is available for free download in English or Bahasa Indonesia, or a popular version in Tetum.
On 1 March, Timor-Leste's government announced that Prime Minister Mari Alkatiri will not go to the treaty signing in New York because Australian Prime Minister Malcolm Turnbull does not plan to participate. A few days later, diplomatic sources told Lusa that Xanana Gusmão will also not attend. The treaty signing and subsequent press conference were live-streamed on UN internet television on 6 March.
La'o Hamutuk invited everyone who has supported this struggle to join in a victory celebration in our office, at 7:00 am Wednesday Dili time, simultaneous with the signing in New York. Lusa wrote about our pending party, as well as our analysis that Australia has taken $5 billion in revenues from fields which may now belong to Timor-Leste. Lusa also interviewed Charles Scheiner of La'o Hamutuk and Australian academic Kim McGrath about the significance of the agreement.
Tom Clarke, a key organizer of Australia's Timor Sea Justice Campaign, wrote that the treaty is a "testament to the determination of the Timorese people and their governments to stand firm in the face of a neighboring bully and claim their sovereign rights."
Although chief negotiator Xanana Gusmão went to Sierra Leone during the treaty signing, he was not invisible. Twelve hours before the signing ceremony, someone gave Australian Broadcasting an eight-page letter he had written to the Conciliation Commission on 28 February. Mr. Gusmão blasted the Commission's "lack of impartiality" for comparing the Darwin and Timor LNG options, and for rejecting Timor-Leste's input while colluding with the oil companies. ABC ran a news article and a radio report (3 MB audio), and Lusa also reported on the letter. A few days later, The Australian wrote that Xanana Gusmao’s Timor Sea rant is an own goal [score for the other team] for his needy nation. Xanana returned to Timor-Leste on 11 March, after being away for nearly six months.
On the eve of the signing, many journalists opined on the new treaty's impact on the Australia-Indonesia border (ABC), its support for the Sunrise gas project (Australian Financial Review), the resolution of bitter differences (AP), the financial benefits of earlier agreements (Lusa), Jose Ramos-Horta's views (Lusa), and decades of acrimonious talks (Guardian).
The Treaty between Timor-Leste and Australia Establishing their Maritime Boundaries in the Timor Sea was signed (video) by Ministers from the two countries in New York on the afternoon of Tuesday, 6 March. UN Secretary-General Antonio Guterres, Conciliation Chair Peter Taksøe-Jensen, and Ministers Julie Bishop and Agio Pereira spoke at the signing (46 MB video or streaming) and then held a press conference (33 MB video or streaming) and a reception (Agio Pereira speech).
The Permanent Court of Arbitration, which has functioned as the secretariat for the conciliation process, issued a 50-page press package which included a recap, next steps, the 30 August 2017 Comprehensive Package Agreement with the "sketch map" at left, an "Approach on the Greater Sunrise Development Concept," an action plan, the text of the treaty (with five annexes) (also Portuguese), and a "Paper on the Comparative Development Benefits of Timor-LNG and Darwin-LNG." Skip down for the Commission's comprehensive report, released on 9 May 2018.
Some of the boundary lines, particularly the northern parts of the lateral boundaries, will be adjusted after Timor-Leste and Indonesia have settled their maritime borders. However, they will stay as shown on the map until the relevant oil and gas fields (Laminaria-Corallina and Greater Sunrise) have been emptied and decommissioned. Once the treaty enters into force, Timor-Leste will receive 100% of the government take from Bayu-Undan (and Kitan, if it restarts production). However, none of the more than $2 billion that Australia has already received from those fields will be paid back to Timor-Leste, even though Australia no longer claims sovereignty over those areas (see Guardian article).
The line passes through the unitized Sunrise area in an arbitrary location, chosen to represent that approximately 70% of the field is in Timor-Leste's territory and 30% in Australia's. However, management of field remains shared between the two countries.
The two governments issued a joint press release. Timor-Leste's Maritime Boundaries Office published a summary (also Tetum) and Fact Sheet (also Tetum and Portuguese). Australia issued a press release, a summary and a one-page fact sheet (also Tetum).
In Dili, activists, veterans, solidarity activists and others gathered at La'o Hamutuk's office to watch the live coverage and to celebrate. MKOTT issued a statement (also Tetum) welcoming the historic signing as a victory of a long struggle, and many marched to the Australian Embassy to encourage expeditious ratification. The AMP Parliamentary opposition coalition also welcomed the treaty.
On the same day, the Guardian reported that Witness K, who had initially revealed Australian intelligence eavesdropping during the CMATS negotiations, remains under 'effective house arrest.' The following week, Jose Ramos Horta called on Australia to return his passport. Instead, three months later Australian prosecutors brought criminal charges against him (see below).
The treaty signing was covered in many international media on 7 March, including ABC and BBC (1 MB BBC radio podcast with La'o Hamutuk). Lusa wrote about how the agreement provides confidence for investors and the Conciliators' conclusion that a pipeline to Timor-Leste would require a subsidy, while Reuters reported that the treaty unlocks $65 million gas fields. Columnists and bloggers offered their thoughts, including People of East Timor Misled over Sunrise Oil and Gas (Damon Evans, Forbes), Timor-Leste: Architect of its Own Sunrise (Michael Leach, Inside Story), Australia and Timor Leste settle maritime boundary after 45 years of bickering (Donald Rothwell, The Conversation), and Timor Gap: a boundary, yet disputes linger (Clive Schofield and Bec Strating, Lowy Interpreter). Dadolin Murak, Timor-Leste's pseudonymous Facebook poet, celebrated the Lutu Dignidade.
The Sydney Morning Herald editorialized Some frontier justice for Timor-Leste, and the USA, European Union, Timor Sea Justice Campaign, Australia East Timor Friendship Association South Australia and Timfo.org welcomed the agreement.
The media spotlight also shone on some background issues, including The Australian who spent millions fighting for justice for Timor (Mike Bruce, The New Daily), How Australia Ignored East Timor's Suffering (Peter Job, The Diplomat) and Bullied Relations: Australia, East Timor and Natural Resources (Binoy Kampmark, International Policy Digest) and Australia’s disturbing response to human rights abuses (Gavin Fernando, news.com.au).
The DLA Piper law firm put out a press release highlighting its role in the Boundary Treaty, which was amplified by the following articles: DLA Piper guides Timor-Leste to historic treaty with Australia (Sol Dolor, Australasian Lawyer) and Firm sees historic maritime treaty through (Asia Business Law Journal).
After the dust settled, Donald Rothwell summarized the Boundary Treaty (ASPI Strategist), Slugcatcher wrote that It's time for Woodside to sell Sunrise (Energy News Bulletin), and Roje Adamy wrote that the new Treaty respects Indonesia (AAP). The Gilbert & Tobin law firm published a 10-page update: Timor Sea Maritime Boundaries Treaty: energy security, infrastructure and exports. It is not over yet.
On 21 March, La'o Hamutuk published a comprehensive article The Timor-Leste-Australia Maritime Boundary Treaty (also PDF, abridged blog and Tetum). Lusa summarized (Portuguese) our article, pointing out that Timor-Leste is losing $5,500 each day until the treaty comes into force. The following week, La'o Hamutuk presented our analysis (Tetum, also PDF) at Joao Saldanha University.
Commentators continued to publish articles on the new treaty, including Viji Menon in Eurasia Review Australia Maritime Boundary Treaty: Victory For Dili?, Euan Moyle in Foreign Brief David vs Goliath - Australia Timor-Leste Boundary Treaty and Alison Thorne in Freedom Socialist The fight to end Australia's exploitation of Timor Sea resources continues despite new maritime border. Brendan Duffy described Australia's 1972 hypocrisy in the Lowy Interpreter's Timor Trough: the rumpled carpet on the sea floor, and PLMJ summarized the legal issues. In addition, Peter Milne wrote in the West Australian that Woodside’s Sunrise LNG project could be behind as East Timor looks elsewhere and Clive Schofield and Bec Strating warned Sun setting on Timor-Leste's Greater Sunrise plan.
The Sunrise/boundary controversy is being brought to the Australian stage in Zoe Hogan's new full-length play Greater Sunrise, opening soon in Sydney. See https://belvoir.com.au/25a/ for details and tickets. It drew favorable reviews in Green Left Weekly and Stage Noise.
In late March 2018, the Australian Parliament's Joint Standing Committee on Treaties (JSCT) announced its process for evaluating the new boundary Treaty, circulating their government's National Interest Analysis (NIA). On 2 May, the Committee released submissions it has received from organizations La'o Hamutuk (also Tetum), the Timor Sea Justice Campaign, Canberra Friends of Dili, Timor Sea Justice Forum NSW and the Uniting Church; oil companies ConocoPhillips and Woodside; academics A.L. Serdy (on Australia's NIA) and Donald Rothwell; and individuals Robert J. King (a 90-page narrative of the process since the 1960s) and Ian Melrose (urging Australia to re-dress past monies taken from Timor-Leste). All except for the last one encouraged ratification of the Treaty, although most urged more humility, attention to the rule of law and recompense for previously collected funds.
The Committee held a 43-minute meeting (transcript) on 7 May, hearing only from Australian government officials. Green Party Senator Sarah Hanson-Young asked DFAT legal officer James Larsen whether Australia would compensate Timor-Leste for the $2 billion that Australia took from fields now in Timor-Leste's territory, or at least apologize. Larsen rejected the first idea ("Australia, of course, continues to be a generous provider of development assistance to Timor-Leste") and dismissed the second ("I think the notion of an apology would completely undermine what's been achieved through the Conciliation Commission"). On 14 May, the Australian Department of Industry, Innovation and Science responded to a question from Senator Hanson-Young about the economic value of extractions to date, albeit with incomplete information.
The Buffalo oil field sits just west of the JPDA (click on map at right to see it larger). Discovered in 1996, it had been occupied by Australia but will belong to Timor-Leste under the new Treaty. Buffalo produced 20 million barrels of oil for BHP from 1999 until it was decommissioned in 2005, and Australia will keep those revenues. In May 2016, Australia signed a new Buffalo contract with the Carnarvon company, which believes that it can extract about 30 million more barrels with new technology. In March 2018, Carnarvon reported "that Carnarvon and Timor-Leste are in agreement on achieving first oil as soon as possible. Special legislation is to be enacted to ensure the Buffalo redevelopment will continue under equivalent fiscal terms previously in place with Australia." On 3 May, Carnarvon described the project and The West Australian summarized it. The following week, Carnarvon announced that it had raised $16 million in investor capital to drill its first well at Buffalo in mid-2019. In August, Carnarvon updated their investors on the Buffalo project.
On 24 April, ConocoPhillips announced that the Barossa project, which hopes to use the Darwin LNG Plant (DLNG) that has been serving Bayu-Undan and which the Sunrise Joint Venture would also like to use for processing Sunrise gas, is beginning Front-End Engineering Design. The Barossa Joint Venture intends to make a Final Investment Decision by the end of 2019, with the goal of bringing gas to DLNG by 2023. See below for ConocoPhillips' sale of Darwin LNG, Barossa and Bayu-Undan to Santos in October 2019.
Timorese artists, including members of the Arte Moris and Gembel collectives, held an exhibition of paintings related to the Maritime Boundary issue on 2 May at the Resistance Museum in Dili (Konvite iha Tetum).
Academic and author Kim McGrath (see above) has appealed to Australian National Archive's decision not to declassify files relating to how much petroleum motivated Australia's support for Indonesia. On 7 May, the Guardian wrote Oil and gas had hidden role in Australia's response to Indonesian invasion of Timor-Leste and McGrath's former employer Steve Bracks called for Australians to hear the full story.
On 9 May, the Conciliation Commission released its comprehensive report on the proceedings, as announced in a press release from the Permanent Court of Arbitration. The 91-page Report and Recommendations, together with 28 Annexes comprising 200 more pages, gives a detailed recounting of the process by which the Conciliators brought Timor-Leste and Australia to agree on a maritime boundary treaty. After commending the parties and appreciating the boundary treaty, the Commission concluded by recommending "that the Parties continue their discussions regarding the development of Greater Sunrise with a view to reaching agreement on a concept for the development of the resource." Writing in The Diplomat, Hao Duy Phan noted what the rest of the world can learn from the conciliation process.
The 12 May elections brought the AMP back into power in Timor-Leste, leading to Taur Matan Ruak as Prime Minister, Alfredo Pires as Minister of Petroleum and Mineral Resources, and Xanana Gusmão continuing to lead the Maritime Boundary issue. On 25 June, Natural Gas Daily reported that East Timor restarts Sunrise talks after elections.
Bec Strating and Clive Schofield published several articles with their analyses of the Treaty, including Australia’s deal with Timor-Leste in peril again over oil and gas (The Conversation, 24 May), A new path to dispute settlement (Lowy Interpreter, 12 June), and Maritime Territorialization, UNCLOS and the Timor Sea Dispute (Contemporary Southeast Asia - ISEAS).
The ANU College of Law held a roundtable on the Timor Sea Conciliation on 14 May in Canberra. The new Treaty will also discussed at a panel at ANU's Timor-Leste Update on 21-22 June, featuring Ambassador Abel Guterres (presentation), Australian government lawyer Justin Whyatt, and academic Don Rothwell.
On 28 June, MP Andrew Wilkie told the Australian Parliament that Australian prosecutors had filed criminal charges against attorney Bernard Collaery and his client, known as "Witness K", for conspiring to breach the Intelligence Services Act by communicating information they obtained while working with ASIS. Wilkie called this an "insane development" worthy of a "pre-police state (transcript, video). The Guardian blogged about this revelation made possible by Parliamentary privilege (immunity), which was confirmed by Attorney-General Christian Porter, who declined to explain his decision. Bernard Collaery (pictured at right) wrote a response. The defendants, who could face years in prison, must report to court on 25 July. On 3 July, Prime Minister Turnbull tried to distance himself from the prosecution.
This surprising development was reported worldwide, including by ABC, the Guardian, the Sydney Morning Herald (also AG signed off on spy charges), Malay Mail (via AFP), Washington Post (via AP), the Financial Times of London, PNG Industry News (TL oil saga gets uglier), UCAN and the Saturday Paper (The dark politics of the Timor spy case).
Many commentators, including Australian Senators, Crikey's Bernard Keane (Staggering attack on free speech, Labor stands shoulder to shoulder with Turnbull on TL cover-up, TL bugging was our Watergate -- except in this version, Nixon wins), UNSW Law Professor David Dixon (Prosecution is a disgraceful act of revenge), Prof. Clinton Fernandes (also ABC Podcast), AFFET's Rob Wesley-Smith, retired senior judge Stephen Charles, ex-judge Anthony Whealy, former TL negotiator Peter Galbraith, former Australian diplomat Bruce Haigh (also ABC audio), Interfet parent Terry Sweetman (The spy scandal we should all be angry about), Binoy Kampmark, Max Lane (Humiliated Australian imperialism lashes out: lawyer and intelligence agent with consciences threatened with gaol), the Canberra Times (Australia's greedy theft from Timor-Leste was a disgrace) journalism professor Johan Lidberg (When whistleblowers are prosecuted, it has a chilling effect on press freedom in Australia) and letter-writers in the Australian Financial Review and Sydney Morning Herald decried their government's action.
Also on 28 June, the same day the charges were brought against K and Collaery, the Australian Parliament enacted a package of legislation to, among other things, "introduce new offences targeting foreign interference." WARNING: Australian readers of this website or similar materials from Timor-Leste could face prosecution if they use the information on it "to influence Australia's democratic or government processes."
On 11 July, Bernard Collaery told ABC TV News that the prosecution was 'heartbreaking' (17 MB video news report). The following day, four 'crossbench' members of the Australian Parliament asked the Australian Federal Police to investigate whether the spying operation against Timor-Leste was lawful, as reported by the Guardian, Lawyers Weekly, UCAN and SBS-TV, which also broadcast Collaery's press conference (6 MB video).
As the court date neared, more commentators spoke out, including Spencer Zifcak (The Attorney-General, the ASIS Officer and his Lawyer: The Story of the Shameful Timor Prosecution), Scott Ludlam (The Witness K affair is one of the most debased abuses of power in the postwar era), Human Rights Watch (Australia: Don't Prosecute for Exposure of Misconduct), John Braithwaite (The shaky case for prosecuting Witness K and his lawyer in the Timor-Leste spying scandal), Charles Glass (Oil, Spies and Audiotape in East Timor), Alan Boyd (Australia spy trial carries hidden dangers), Peter Boyle (Timor spy case: How Australia does Big Oil's dirty work) and Tom Clarke (In Australia, Exposing Morally Bankrupt Government Action Could Earn You a Jail Sentence).
Australian Foreign Minister Julie Bishop visited Timor-Leste on 29 July 2018, the first such visit in five years. Her visit was reported by AP, AAP and ABC. Former President Jose Ramos-Horta was in Australia, where he urged Australia to drop the case against Collaery and K, as also reported by ABC (audio). Timor-Leste activists held a vigil for the "death of democracy" outside her hotel. Australia's Foreign Ministry celebrated her visit as a new chapter in TL-Australia relations, a phrase also used by Sophie Raynor in the Lowy Interpreter, although Michael Sainsbury in Crikey saw the visit in the context of Timorese politics, Bec Strating in the Interpreter was unsure if it was a stalemate or a new chapter, and Sophie Raynor in SEA Globe wondered if neighbourly tension was over.
In early August, Timor-Leste's Maritime Boundary Office released a five-minute video primer (Tetum with English subtitles, also on YouTube) on the maritime boundary issue. At the end of the month, the MBO published New Frontiers (also Portuguese and Tetum), a 100-page book describing and celebrating their successful use of the Compulsory Conciliation Process.
On 6 August, La'o Hamutuk sent Timor-Leste's National Parliament an unsolicited submission (Tetum original) on the Maritime Boundary Treaty, which will soon come to Parliament for ratification. The main points of the submission are:
On 22 July 2018, the Australian Financial Review cited Woodside CEO Peter Coleman calling for a 'fresh start' on the Sunrise LNG negotiations. A few days later, Timor-Leste government news agency Tatoli reported that Timor-Leste was preparing to bring the Sunrise gas pipeline to its south coast. On 27 July, Timor-Leste's Parliament approved the new Government's program, including sections on maritime boundaries and petroleum development.
On 6 August, Damon Evans wrote in Interfax Natural Gas Daily that Timor-Leste is considering buying out the oil companies who hold the Greater Sunrise contract, possibly with Korean financing or money from the Petroleum Fund. Evans pointed to reports by Jubilee Australia showing that Papua New Guinea had failed to significantly benefit from Exxon's PNG LNG plant, falling far short of benefits predicted by Australia's Acil Allen consultants. The same consulting firm has advised TimorGAP that the Beacu LNG plant will bring major benefits to Timor-Leste. On 13 September, the Australian Financial Review reported that Timor-Leste was considering bidding US $5 billion to buy out ConocoPhillips share of the Greater Sunrise field. Skip down for more on this issue.
In August, the Australian Parliamentary Joint Standing Committee on Treaties issued the report from its inquiry into the boundary treaty, recommending that "binding treaty action be taken" -- that is, that Australia should ratify the treaty. AAP reported that the report 'fixed' the long-running border dispute.
On 21 August, Timor-Leste's Council of Ministers reappointed Xanana Gusmão (official resolution) as Special Representative for concluding the treaty ratification and the Greater Sunrise agreements. Timor-Leste's new foreign Minister, Dionisio Babo, told the Guardian that his government 'valued very much' the support of Witness K, Bernard Collaery and other Australians who had supported Timor-Leste's 'collective effort' to achieve a fair maritime boundary.
After a bitter inside struggle, Scott Morrison replaced Malcolm Turnbull as Prime Minister of Australia on August 24, and he was congratulated by the Timor-Leste government. Foreign Minister Julie Bishop, who had recently visited Timor-Leste, competed for the Prime Ministership and was replaced by Marisa Payne. It is unclear now the change of government will affect Australia's relationship with Timor-Leste.
On 10 August 2018, two eminent former UN officials wrote about Australia's immoral behavior toward East Timor in the Washington Post. Other mid-August articles discussed Gangsters for capitalism: Downer, Woodside and Witness K’ (James Plested in Red Flag) and Spy row a threat to Australia's ties with Timor-Leste (Jonathan Pearlman in The Straits Times).
To help Australians better understand the issue, JusTimor and the Timor Sea Justice Forum published fact sheets on the pending legal cases, and Future Directions linked the Greater Sunrise oilfield to food insecurity in Timor-Leste.
On 27 August, ABC reported that the Australian Government had warned Bernard Collaery in March 2018 (letter) that he faces imprisonment if his upcoming book discloses secret information.
On 7 September, Australian Senator Rex Patrick accused Attorney General Christian Porter of breaching Senate Rules by refusing to answer his questions about the case.
As the 12 September court date for Collaery and K approached, Susan Connelly and the Australia East Timor Friendship Association (SA) expressed support for the defendants, while Prime Minister Morrison was confident that 'justice will be served' and small parties urged the Labor Party to promise to drop the prosecution. Protesters gathered outside the Canberra courtroom, where the process was over in 15 minutes, adjourned until 29 October. The events, including the parties' disagreement about how much of the case would be heard in open court, were reported by ABC and Canberra Times. The Timor Sea Justice Forum reported on the protest and launched an online petition.
As the process continued, commentators highlighted its importance, including Madeleine Miller (Why the Trial of 'Witness K' and Bernard Collaery Should Concern All Australians), Clinton Fernandes (As Witness K trial opens, questions over how much of Timor-Leste spying case to keep secret from public) and Bernard Keane (Trial of Witness K and Bernard Collaery begins amid Midwinter Ball).
Timorese supporters of a fair maritime boundary rallied in Dili to demand that the charges against Bernard Collaery and Witness K be dropped. The Movement Against the Occupation of the Timor Sea (MKOTT) began gathering signatures on 13 September, as covered by Green Left Weekly. They presented a banner-petition signed by more than 1,300 people to the Australian embassy on 17 September.
On 18 September, Julian Hill became the first Australian Labor Party MP to raise concerns about the case, while Warren Snowden and Luke Gosling also asked questions. The following day, independent Senator Rex Patrick continued his outspoken criticism of the prosecution, wondering if they intentionally delayed the case for three years to allow negotiations to proceed (transcript). A few days later, in the Legislative Assembly of the Australian Capital Territory (where Bernard Collaery once sat), Greens Member Caroline Le Couteur was warned not to comment on the legal proceeding in process.
The following week, Senator Patrick distributed a letter to the 193 members of the UN General Assembly in New York. When Timor-Leste's Ambassador Milena Pires addressed the GA on 1 October (video), she praised the UN's key role in resolving the boundary dispute, and her speech was highlighted in a UN press release.
On 5 October, Crikey's Bernard Keane reviewed Clinton Fernandes' new book Island Off The Coast Of Asia, pointing out that the Witness K scandal is part of a long history of Australia pandering to resource companies.
On 27 September, Attorney General Christian Porter wrote to Senator Rex Patrick, acknowledging that the Director of Public Prosecutions had requested consent to prosecute on 17 September 2015, but the consent was not granted until 11 May 2018. ABC News wrote about this development on 5 October, and reported it on their AM radio program the next day. Senator Patrick described the issues at length in the Senate Chamber (3 MB audio, YouTube video)
As the 29 October court date neared, UNSW Law Professor David Dixon recalled the case of Clive Ponting, a British civil servant who gave information to Parliament about the British sinking of an Argentinian warship in 1981. After being prosecuted for violating the Official Secrets Act, Ponting was acquitted by a jury. According to Dixon pointed out that neither Witness K nor Ponting were "whistleblowers who went to the media, but rather responsible public servants who sought to use proper channels to complain about wrongdoing by their superiors." Jonathan Perlman wrote about The fight to keep the Witness K case secret in the Saturday Paper, and Justin McPhee wrote about how the case interacts with the Economy of Espionage in Counterpunch.
On 19 October, the Australian Lawyers Alliance awarded their 2018 Civil Justice Award to Bernard Collaery. See below to continue this topic.
On 28 September 2018, negotiators from the Timor-Leste government and ConocoPhillips agreed that Timor-Leste will pay $350 million to purchase ConocoPhillips’ share of the Joint Venture to develop the Greater Sunrise oil and gas field. Timor-Leste will own 30% of this project, together with Woodside (33%), Shell (27%) and Osaka Gas (10%). On behalf of the state, TimorGAP will participate in project decisions, be responsible for 30% of the investment, and be entitled to 30% of the profits. The deal was announced by ConocoPhillips and by Timor-Leste, and La'o Hamutuk wrote an article (also Tetum) explaining its significance for the nation and describing the next steps to bring the gas pipeline to Timor-Leste. Our article was circulated widely, and people from across the political spectrum appreciated the facts we explained, most of which had been left out of local media coverage.
The buyout was widely covered in international media, including Timor-Leste compra participação da ConocoPhillips no consórcio do Greater Sunrise / Timor-Leste buys ConocoPhillips stake in Greater Sunrise consortium (LUSA, 28/9), East Timor buys ConocoPhillips’ Greater Sunrise share for A$484m (Australian Financial Review, 30/9), Woodside considers options as ConocoPhillips sells Sunrise LNG stake to East Timor Government (The West Australian, 1/10), ConocoPhillips sells stake in Sunrise gas field to East Timor (Reuters, 1/10), Timor-Leste buys A$484 million stake in Greater Sunrise fields and pushes for LNG pipeline (also radio broadcast) (ABC News 2/10). Analysis: Timor-Leste one step closer to LNG ambitions but hurdles remain (Platts S&P Global, 2/10), East Timor stake buy brings Sunrise gas field a step closer (Reuters, 2/10)
Negotiator Xanana Gusmão returned to a(nother) hero's welcome in Timor-Leste on 8 October, calling on everyone to unite to bring the Sunrise pipeline to Timor-Leste, which he said it was clear would happen. In the international media, Upstream explained Timor-Leste's determination, while Crikey asked if it was worth the risk.
On 10 October, Timor-Leste's Council of Ministers approved a Government Resolution to approve the contract acquiring ConocoPhillips 30% share of the Greater Sunrise joint venture and transferring those rights to TimorGAP.
A few days later, the Wall Street Journal published Tiny East Timor Bets Big on Oil and Gas, and the Australian Financial Review quoted Woodside executives that they would rather invest in the upstream development at the Sunrise field, rather than the pipeline and LNG plant.
On 21 November, Timor-Leste and Shell agreed that the country will pay the company $300 million to purchase its 26.56% share of the Sunrise joint venture, which will increase Timor-Leste's share to 56.56% once the transactions are finalized. The Council of Ministers approved a Resolution for the Shell buyout on 28 November, but it was not published until 30 January 2019.
La'o Hamutuk has written a separate web page on the Greater Sunrise buyout, which includes more complete and updated information, including details on the law passed by Parliament on 14 November to weaken checks and balances and endanger the Petroleum Fund in order to facilitate the buyout. The law was vetoed by the President and overridden by Parliament in January, and is being challenged in the Court of Appeals.
Although Bernard Collaery and Witness K were due in Canberra Magistrates Court on 29 October, the appearance was postponed again, until 1 November. Writing on Crikey.com, Bernard Keane listed the Timor-Leste 12 who could benefit from the Witness K cover-up (which LUSA recounted in Tetum), while AAP cited Senator Rex Patrick and MP's Andrew Wilkie and Rebekha Sharkie calling for the charges to be dropped in what Sharkie called 'Australia's Watergate.' The UK Financial Times reported on the upcoming trial.
The Juice Media's satirical 'Honest Government' series has produced a video 'Visit Timor-Leste' recounting the hypocrisy of Australia's dealings with Timor-Leste from 1975 through the current case. Download the script or a 6 MB low-res video here, or view the ad on YouTube. A version with the swear-words removed is downloadable here or on YouTube.
Supporters of K and Collaery can tweet, post, or sign petitions:
Several Australian Senators and MPs asked Margaret Stone, Australia's Inspector-general of intelligence services, to investigate whether Australian spying on Timor-Leste violated Australian laws.
Although the 1 November court hearing was postponed until 7 November, supporters of K and Collaery gathered outside the court (left). Long-time activist Rob Wesley-Smith recounted the history of the two-decade struggle for a just maritime boundary.
On 6 November, the Financial Review described government efforts to continue the case in secret, although the Collaery/K legal team asked that it be in open court. They failed to reach agreement at the 7 November court appearance, and adjourned for two days. On 9 November, the judge asked the Attorney-General to determine if the trial would involved national security material (also Canberra Times). Radio National broadcast an interview with Jonathan Pearlman (3 MB audio), and Madeline Miller described the situation in Crikey.
On 28 November, Bernard Collaery gave the keynote address at the annual dinner of the Australia East Timor Association in Melbourne, entitled "Disequilibrium."
On 19 December, the blog Crikey.com named Witness K and Bernard Collaery as their "2018 Person of the Year."
Skip down for subsequent developments on this case.
Seven months after the Boundary Treaty was signed, neither government has ratified it. However, in October Offshore Technology explained that it will require new Production-Sharing Contracts in the JPDA.
Senator Rex Patrick and other Australian MPs visited Dili in late October 2018. The Senator met with Timor-Leste maritime boundary activists from MKOTT (right) as well as various officials. He encouraged the Timorese government to honor Bernard Collaery and Witness K as heroes, since "they have revealed something that was illegal, which was reprehensible and inconsistent with the way Australians behave, and unfortunately they are being tried for what they did." The following February, the Australian Parliament published a report on the delegation's visit.
On 30 October, Australian Ambassador Peter Roberts told Timorese journalists that his country was in the process of ratification. The Embassy recorded a video message on 16 November (transcript, video) explaining the status from Australia's side. On 28 November, Timor-Leste's Independence Day, Australian Foreign Minister Marise Payne announced that legislation to implement the Treaty was being introduced into the Australian Parliament, which was reported by Upstream and other media. Upstream wrote more the following day.
The Timor-Leste government's Maritime Boundary Office published a November newsletter describing their work to socialize the Treaty.
On 8 December, the Maritime Boundaries Office organized an all-day event at Dili Convention Center. Several thousand participants listened to presentations from Chief Negotiator Xanana Gusmão on maritime boundaries, ANPM President Gualdino da Silva on the implications of the new boundary treaty, and TimorGAP President Francisco Monteiro on potential economic benefits from Greater Sunrise and Tasi Mane. No questions or discussion were permitted. These speakers made the same presentations in Parliament on 8 January 2019.
Skip down for subsequent developments relating to the Boundary Treaty with Australia.
2019 Topics discussed below include:
On 4 January 2019, the Australian Financial Review reported ASIS efforts to keep the proceedings of Collaery/K trial secret, which Attorney General Christian Porter said was likely. The Guardian reported on the unfair actions of the prosecutors in providing evidence to the defense on the evening of the last working day of the legal year. Proceedings are expected to continue in mid-February.
As the undisclosed date of the preliminary hearing approached, Clinton Fernandes gave a comprehensive talk on its history and implications (5 MB MP3) at a Melbourne bookshop. Legal scholar Ernst Willheim wrote Secret Trials: The illegal bugging of the Timor Leste Cabinet and the extraordinary prosecution of Bernard Collaery and Witness K, and gave a talk on the topic in Canberra on 18 February. The following week, Civil Liberties Australia pointed out the hypocrisy of MPs claiming that “the ability to report freely and fairly on national security is a vital part of our democracy”.
On 28 February, the Canberra Times reported that a preliminary hearing on the Collaery/K trial, scheduled for 6-8 August, could decide to have the tria before a jury or in open court.
On 25 March, Bernard Keane wrote How the Witness K/Collaery case is being delayed into oblivion on Crikey, describing political and personal pressures on the process. Two days later, former judge Anthony Whealy told The Guardian that the delays represent an “absolute abandonment of the principles of open justice."
Mainstream media coverage virtually ceased after March. However, Susan Connelly wrote Kafka in Australia: the trial of Witness K (Eureka Street, 6 April), Paul Gregoire wrote We prosecute whistleblowers who expose government misconduct (The Big Smoke, 8 May), Mark Westcott wrote ‘National security’ and the protection of mining interests (Green Left Weekly, 24 May) and Bernard Keane wrote ABC missing in action on Witness K and Bernard Collaery persecution (Crikey.com, 30 May).
On 5 June, the Guardian published Witness K lawyer says raids on media show Australia becoming ''oppressive democracy" and ABC Radio interviewed Collaery on the recent police raids on Australian journalists. On 25 June, LUSA interviewed Australian academic Clinton Fernandes, who called Australia's 2004 spying on Timor-Leste scandalous because it diverted scarce resources from the war on terrorism.
Kim McGrath's book on Australia's Secret History in the Timor Sea was launched in Lisbon on 26 June, and Xanana Gusmão used the occasion to point out that Australia, a friendly country, had betrayed Timor-Leste (ABC Radio audio). The former Prime Minister made a "public appeal that Australia reconsider and stop the injustice that is being practiced against Bernard Collaery and Witness K."
On 2 July, members of the Movement Against the Occupation of the Timor Sea (MKOTT) held a press conference in Dili (photo at right, statement in English or Tetum) to encourage Timor-Leste's government to call for freedom for Bernard Collaery and Witness K when they celebrate the 20th anniversary of the referendum on 30 August, at which time the Boundary Treaty is expected to be ratified. The event was covered by local media, including Tatoli, RTTL radio and web, and GMN TV (6 MB video).
Although news reports in early July hinted that newly-reelected Australian Prime Minister Scott Morrison might drop the charges against Collaery and Witness K, on 24 July Attorney-General Christian Porter said this would not happen. On the same day ABC Radio broadcast an extensive interview (audio) with Ambassador Abel Guterres and professor Michael Leach discussing the history of Australia-Timor-Leste relations, including the role of the defendants. At the end of the month, Green Party Senator Nick McKim and former Timor-Leste President Jose Ramos-Horta described them as heroes and patriots, and called for charges to be dropped.
A hearing was scheduled in Magistrates Court for 26 July, but was delayed until 30 July. At that hearing, the defendants' lawyers asked that the case be split, with Witness K's case remaining in Magistrates Court and Collaery's going to indictment and to the ACT Supreme Court. Another closed hearing was scheduled for 6 August, and protesters planned to attend once again.
Sr. Susan Connelly is encouraging people to sign Gareth Smith's petition at http://chng.it/xK9CpdDM9d and watch the teaser for Gil Scrine's forthcoming film "Reluctant Saviour" at http://bit.ly/2YdnZhi. She produced a Telling the Truth about Timor pamphlet which was circulated to Members of the Australian Parliament. The Australian activist website http://justly.info/ links to articles, petitions and other materials relating to Australian spying on Timor-Leste, the Collaery/K case, and related issues. On 3 August, ABC Radio National's Saturday Extra program focused on Witness K's Endless trial (audio), with discussion by Clinton Fernandes and Sen. Rex Patrick.
At the hearing on 6 August, Witness K's lawyer said that his client wished to plead guilty to exposing the bugging operation, and the plea was reported by AFP, Canberra Times and the Guardian. Crikey.com published several relevant articles, including Bernard Collaery's It is a national disgrace to see Witness K treated like this, Bernard Keane's Australia's shame: Witness K punished for his service, while the guilty go free, and Madeleine Miller's The big question that has gone unanswered in the Witness K saga (did Australia's bugging break the law?). Other commentary included Sally Whyte's Witness K and Collaery's influence to be felt in Timor Leste in the Canberra Times, a statement by the Australian Lawyers Alliance, and Joseph Fitsanakis's Australian ex-intelligence officer pleads guilty to disclosing spy operation in IntelNews.
In Timor-Leste, the Movement Against the Occupation of the Timor Sea (MKOTT) held a press conference (also Tetum) on 9 August, urging Australia's Attorney General to drop the charges against Bernard Collaery and Witness K, which was reported by Green Left Weekly and Tatoli. They are inviting the public to their photo exhibition about the maritime boundary struggle from August 20-30 at the HAK Association in Farol, Dili, and are selling T-shirts for $20, available at La'o Hamutuk. In Tetum, MKOTT's campaign was covered by Grace Media, while Tatoli wrote about the opening of the photo exhibition.
In Australia, writers continued to address the case, including a comprehensive history by Christopher Knaus in The Guardian, an analysis of legal implications by Greg Barns in the International Law Association Reporter, a report in LawyersWeekly, and a brief comment by Richard Ackland in Saturday Paper's Gadfly. Robert Macklin wrote Collaery battles on, but who cares? in CityNews, and the following week several readers wrote I care about Collaery.
On 19 August, Australian Attorney-General Christian Porter issued a press release, purporting to answer nine questions about the case. Nevertheless, he clearly has the authority to discontinue the case, as spelled out in Australian law.
Bernard Collaery was back in ACT Supreme Court for another preliminary hearing on 22 August, accompanied by a rally of his supporters (videos), who heard a speech from Sr. Susan Connelly. The Canberra Times ran two AAP articles, before and after the hearing. There will be another short hearing on 26 September and a three-day hearing beginning on 11 December which will decide the conditions of his trial by jury, which may take place in early 2020.
On 25 August, Tafara reported on MKOTT's continuing solidarity with Collaery and K, including collecting thousands of signatures on a petition. Bernard Collaery wrote his appreciation to the Timorese activists, as reported by Neon Surat.
ABC-TV's Four Corners broadcast the program Secrets, spies and trials: national security vs the public’s right to know on 26 August; watch the trailer or the full program on YouTube. You can also read the transcript or download a 66 MB video from this website. In the program, Xanana Gusmão offered to provide evidence which would support Witness K. Clinton Fernandes explained what the program left out.
On 27 August, The Australian published an interview with former Prime Minister Mari Alkatiri, who said that he knew that Australia was spying on Timor-Leste during the boundary talks before 2006.
On 29 August, Witness K's lawyers appeared in Magistrate's Court, and Australian activists called for a Virtual Demonstration. Witness K's attorneys announced that K's right to a public defender had been denied. Another hearing was set for 13 September (see below), although it was not listed in advance on the Court's calendar.
During the last few days of August, Jose Ramos-Horta repeated his call for the charges to be dropped, and Paul Bongiorno wrote about the implications of the case for Timor-Leste independence and [Australian] press freedom in The Saturday Paper. The Sydney Morning Herald published op-eds Secret whistleblower trial will only add to Australia's shame over spying cover-up by retired judge Anthony Whealy and This immoral act against a decent man diminishes all who pursue it by Chris Uhlmann.
On his way to Dili, Senator Rex Patrick told ABC that he expected that Morrison would avoid discussion of the Collaery/K case (audio).
On 30 August, Australian Prime Minister Scott Morrison visited Dili to observe the 20th anniversary of the referendum which ended Indonesia's occupation, and to mark the entry into force of the Australia-Timor-Leste Maritime Boundary Treaty. However, as James Massola wrote in The Age, Morrison flies into a storm in East Timor over Witness K prosecution, and MKOTT issued a statement (also Tetum) calling on Australia to stop the prosecution of Bernard Collaery and Witness K. Morrison refused to discuss the Collaery/K case, calling it "a domestic matter for Australia."
Activists in Timor-Leste, who were not allowed to demonstrate during Morrison's visit, unfolded a banner at sea, as described by Tempo Timor. MKOTT was not allowed to present their petition with 4,058 signatures to the Prime Minister. However, Australian Shirley Shackleton (the 87-year-old widow of Balibo Five victim Greg Shackleton) handed it to Australian Foreign Minister Marise Payne, as reported in Green Left Weekly and many other media.
A few days later, the Sydney Morning Herald editorialized Stop Punishing Witness K for telling the truth on East Timor.
For other aspects of the Morrison visit to Dili, see below.
After returning from Dili, Rex Patrick told his Senate colleagues that the Collaery/K case is hurting Australia's image in Timor-Leste.
Other Australians also called for the cases to be dropped, including Australian Lawyers Alliance spokesperson Greg Barnes and former MP Dr Richie Gun AO.
Several upcoming events in Australia will discuss the case, including
On 13 September, ACT Chief Magistrate Glenn Theakston, who is presiding over the proceedings for Witness K, lamented that the case is moving "unnaturally slowly" and adjourned it until 26 September. The prosecution rejected the timetable requested by the defense, further delaying providing a statement to Witness K outlining the harm they allege came from his whistleblowing.
There was a brief ACT Magistrates Court hearing on Bernard Collaery's case on 26 September, for the formal reading of the charges against him, with a gathering outside the court. Collaery's case will be back in court on 24 October. Witness K was to be represented in the afternoon, but his case was rescheduled until 8 October, although Haydn Carmichael told the Magistrate that he and other lawyers are representing Witness K for free because the ACT Legal Aid Commission has refused to defend him.
On 2 October, ACT Supreme Court Justice David Mossop expressed concerns that proposed secrecy around Collaery's pending trial could make court staff vulnerable to criminal prosecution.
After human rights lawyers called the prosecution of Collaery and Witness K a 'disgrace', on October 7 Magistrate Theakston told the government to provide a 'harm statement' describing the damage alleged to have been done by their disclosure, as reported by AAP and Canberra Times.
Collaery is scheduled to be back in court on 9, 17 and 24 October. Because these hearings are liable to be changed at the last minute, it is best to confirm them on the courts' list websites: Witness K is at the ACT Magistrate’s Court and Bernard Collaery is at the ACT Supreme Court.
On 17 October, the ACT Supreme Court rejected ANU Law fellow Ernst Willheim's request to be heard as an amicus curiae (friend of the court) in the Collaery case (earlier article by Willheim). Two days later, Alice Drury of the Human Rights Law Centre wrote With greater powers must come greater accountability in the Sydney Morning Herald. On 21 October, the Guardian interviewed Bernard Collaery, who warned that many whistleblowers have 'nowhere to go'.
Collaery's hearing on 24 October was very short. The defense lawyers learned that the prosecution wants some evidence heard by the judge alone, away from the jury, which would not have complete access to the facts. The rally at Parliament House was well attended, hearing from Andrew Wilkie, Senator Rex Patrick, Senator Hanson-Young, Bernard Collaery, David McBride, Jack Waterford, Rod Campbell and Susan Connelly. One of the organizers observed: “This is a dangerous time for our democracy when the government is obfuscating on so many issues and apparently has a tactic of taking questions on notice in Senate Estimates, so that they can avoid answering them while the media is there. ... We need whistleblowers, they are people of integrity who tell the truth and expose misdeeds. Surely that should be welcomed! The government should not get away with crying 'national security' when difficult questions are asked and using that as an excuse for ever more surveillance of the general public.”
As the case moved slowly forward, several relevant articles were published in November and December, including I spy something beginning with K: Josephite nun says Witness K and Bernard Collaery are scapegoats (The Catholic Leader), A Secretive State: The Collaery Trial and National Security Disclosures (Keiran Hardy in Australian Public Law), Secret trials in the ACT courts (Ernst Willheim), and Wannabe Spy (Kellie Merritt).
On 15 November, AAP reported that Witness K's plea hearing will be in April 2020, following a March hearing on how secret the proceedings will be.
Prior to the hearing on Collaery's case on 27 November, AAP gave context and Canberra Times interviewed Collaery. At the hearing, Attorney General Christian Porter had the trial delayed once again, as described by Bernard Keane in Crikey.com. Collaery's side said that they intend to introduce testimony at trial from former Presidents and Prime Ministers of Timor-Leste Xanana Gusmão and José Ramos-Horta, as well as Australian ex-Foreign Minister Gareth Evans, ex-head of Defence Admiral Christopher Barrie and ex-Ambassador to Indonesia John McCarthy, as reported by LUSA, ABC and AAP.
On 3 December, Australian MP Graham Perrett announced his support for Collaery, the first federal Labor Party MP to speak out.
Court and protest dates change frequently, often at the last minute. Current information is on the Facebook page of the Timor Sea Justice Forum and Susan Connelly's JUSTLY website, as well as from the Court's online agenda.
The next ACT Supreme Court hearing was slated for 11 December to decide whether Collaery's trial next year will be held in secret or in public. Another protest was held outside the court. The session was held in secret.
See below for the continuation of their saga in 2020.
The Australian Parliament is considering Timor Sea Maritime Boundaries Treaty Consequential Amendments Bill 2018, which will modify several Australian laws (the Passenger Movement Charge Act and others) to make them consistent with the March 2018 Maritime Boundary Treaty. The legislation was introduced in November 2018, with an explanatory memorandum from the Government and a speech by Minister for Education Dan Tehan MP) and referred to the Senate Economics Legislation Committee. The Committee opened a public inquiry, receiving six submissions from Andrew Serdy, Robert J. King, the Uniting Church in Australia Synod of Victoria and Tasmania, Eni Australia, the Timor Sea Justice Forum NSW, and the Department of Industry, Innovation and Science (DIIS). The Committee reported in February 2019, recommending that the bills be passed. However, the government ended prior to passage, and the process will have to restart after the May elections.
On 16 April, Helen Davidson wrote Australia accused of 'siphoning' millions in Timor-Leste oil revenue in The Guardian, citing La'o Hamutuk's estimate that the money Australia has taken from Bayu-Undan since the Treaty was signed could pay for Timor-Leste's entire health ministry budget. The story was picked up by ABC Radio (2MB MP3), BBC Radio and The Saturday Paper. Writing in Crikey.com, Kishor Napier-Raman recapped the history of Australian 'mistreatment' of Timor-Leste motivated by Australian oil interests. On 21 April, Jose Ramos-Horta expressed confidence that Australia 'would reimburse every cent it wrongly received' (also ABC), while Labor party leader Penny Wong declined to discuss the topic until after the election.
The elections returned Prime Minister Scott Morrison to power. On 5 June, Sophie Raynor wrote Timor-Leste's missing oil millions in Eureka Street.
Toward the end of July, commentators reviewed Australia's troubled relationship with Timor-Leste, including Sophie Raynor's How Australia trashed its legacy in Timor-Leste in Crikey.com. ABC Radio's AM program reported that Australia has pocketed millions in revenue from Timor Sea oil and gas projects (audio), TV New Zealand reported Australia under pressure to return millions of dollars of gas royalties to East Timor, and Tempo wrote that Australia Dituntut Kembalikan Royalti Ladang Gas Timor Leste. From different perspectives, Prof. Vivian Forbes opposed the median line boundary agreement, writing Thou Shalt Not Covet Thy Neighbour’s Continental Shelf: Australia’s Timor Sea Maritime Boundary for Future Directions International and The Diplomat interviewed Bec Strating on Australia-Timor-Leste Ties. In August, Clinton Fernandes translated his book Inconvenient Country: How the Australian Government sees Timor-Leste into Tetum, and it can be downloaded here: País Inkómodu: Oinsá governu Australia haree ba Timor-Leste.
Australia's new Parliament began sitting on 2 July. On 4 July, Government re-introduced many legal amendments necessary for ratifying the Treaty, together with an Explanatory Memorandum (which was replaced by a new version a few weeks later). LUSA reported that the memorandum said that Australia would received $1-$2 billion from Greater Sunrise. The bills were read and discussed in the House of Representatives on 4 July, which approved them on 25 July. The Senate approved them on 29 July. Texts of the enacted laws include Consequential Amendments to 19 laws, Treasury Laws amendments, and a Passenger Movement Charge Amendments.
Australia's ratification of the Boundary Treaty was widely reported in Australian and worldwide media, including SBS (AAP), Reuters, AFP and the Washington Post (AP). Prime Minister Morrison issued a press release, and Timor-Leste's Parliament congratulated Australia. See below for the entry into force on 30 August.
In Timor-Leste, payment for purchase of participation in the Sunrise project has been delayed, partly because Parliament has not yet ratified the boundary Treaty. This was one of the arguments made by 23 Members of Parliament when they asked the Court of Appeals to rule that recent amendments to the Petroleum Activities Law were illegal and unconstitutional. The MPs argued that the amendments, which are intended to allow the Petroleum Fund to be directly allocated for the Sunrise project, outside of the State Budget process, cannot be based on a Treaty which has not come into legal effect. However, the Court did not accept their argument.
The changing legal regime opens an opportunity for international consultants, as demonstrated by this $1,500, 21-page report.
In mid-March, ANPM President Gualdino da Silva told an oil industry conference in Perth that treaty ratification will open the way for a series of petroleum initiatives, including the Sunrise project, a new model production sharing contract, and a new licensing round for both onshore and offshore areas.
The November 2018-March 2019 newsletter of Timor-Leste's Maritime Boundaries Office describes their diplomatic and outreach activities.
On 14 March, Prime Minister Taur Matan Ruak said that ratification would be delayed until after Australia's pending election, and that Timor-Leste will ratify after Australia, but before the end of 2019. After the Australian election was scheduled for 18 May, Timor-Leste's Parliamentary President Arao Noe said that legislation on revenues must be adjusted before ratification, and that the two countries will ratify at the same time.
On 16 April Timor-Leste paid ConocoPhillips and Shell $650 million to purchase a 56.56% share of the Greater Sunrise joint venture. La'o Hamutuk's Sunrise webpage has much more information, including articles about the sale. After the payment ceremony, ANPM President Gualdino da Silva described the laws and agreements remaining to be finalized before treaty ratification.
After the Australian election, Timor-Leste's President of Parliament told journalists on 29 May that both countries were willing to ratify the treaty, but that Timor-Leste needed to amend some laws first. On 31 May, Minister for the Presidency of the Council of Ministers Agio Pereira urged people to be patient with the ratification process. Fifteen months earlier, Pereira had signed the treaty on behalf of Timor-Leste.
On 24 June, Timorese media and Lusa wrote that the two countries intended to ratify the treaty before 30 August, when they will celebrate the 20th anniversary of the referendum with a visit of the Australian Prime Minister to Timor-Leste. The following week, Lusa described the package of legislative changes that Timor-Leste plans to enact, including amendments to the Petroleum Fund Law, the Petroleum Activities Law, the Tax Law, the law establishing TimorGAP, and laws on labor and migration. The package was approved in the Council of Ministers on 8-9 July (reports from LUSA and the Prime Minister's office in Tetum), after which Parliament will interrupt its recess to enact the laws by 25 July, in order to give the President time to promulgate them.
On 9 July, National Parliament voted 36-18 to delay its annual recess, which has been scheduled to begin on 15 July, until 15 August so that it could approve the legislative packet presented as necessary for treaty ratification. On the same day, the Government presented four proposed legal amendments, with documents as follows. La'o Hamutuk has translated some of them into English.
On 15 July, La'o Hamutuk made an unsolicited submission to Committee C (also Tetum) raising concerns about the proposed amendments to the Petroleum Fund Law and Petroleum Activities Law, which was reported by Tatoli. Our main points were:
On 15 July, Parliament outvoted FRETILIN to consider this legislation "urgently." Parliamentary committees subsequently invited La'o Hamutuk to participate in public hearings. On 16 July, the FRETILIN opposition explained why they will oppose the whole legislative package, which they see as an attempt to "bring Timor-Leste into dictatorship."
Nevertheless, the laws were approved in Generality on 18 July, and the package received final approval on 23 July, by a vote of 42-23. FRETILIN criticized the treaty for giving Australia too much power, although government spokesperson Agio Pereira disagreed, and Xanana Gusmão described ratification as something that had to be done for the heroes who died during the independence struggle.
On 30 July, the Maritime Boundaries Office made a presentation to the NGO Forum on the history and current situation, and FONGTIL issued a press release congratulating them on the success of the Treaty. The newsletter of the Maritime Boundaries Office describes their activities from April through July.
Although the Parliamentary resolution ratifying the Treaty may not require Presidential promulgation, the other hastily-passed legislation was sent to him for signature and promulgation. La'o Hamutuk and other civil society groups asked him to veto the changes the Petroleum Fund and Petroleum Activities Laws, as FONGTIL explained in a 5 August press release. On 6 August, interim President of Parliament Angelina Sarmento said that the four laws were a single package, although only some of them relate to the agreement with Australia.
La'o Hamutuk, FONGTIL and other civil society organizations met with President Lu Olo on 8 August (see photo). They asked him to publish the Maritime Boundary Treaty but to veto the amendments to the Petroleum Fund Law and Petroleum Activities Law. RTTL and Tatoli reported on the meeting.
As the President continued to decide whether to promulgate or veto, he asked the Court of Appeals about the changes to the Petroleum Activities Law and the Petroleum Fund Law, and the Court President said that it could take up to 20 days, until 25 August, to issue an advisory opinion. Parliamentary Vice-President Angelina Sarmento explained that it was legal and normal for him to ask for advice from the Courts. However, on 19 August Parliamentary President Arão Noé encouraged the President to promulgate the legislative amendments, even as the President said he is continuing to study the issue.
On 22 August, President Lu Olo made a televised address (transcript, video) in which he announced that he was promulgating the resolution ratifying the Maritime Boundary Treaty, as well other laws which it requires. Although the President hailed the treaty as an "historic landmark", he pointed out that the proposed revisions to the Petroleum Fund Law and Petroleum Activities Law are not related to the treaty, and he is still weighing whether they undermine the management and sustainability of the Petroleum Fund. The next day, he promulgated four Decree-Laws necessary for the treaty. These documents were published in the 183-page Jornal da Republica for 27 August, which includes (in Portuguese, some also in English)
On 27 August, the Court of Appeal advised the President that some of the amendments to the Petroleum Activities Law (LAP) and Petroleum Fund Law (LFP) violate Timor-Leste's Constitution, as reported by Tatoli, Lusa and Independente. Parliamentary president Arão Noé called the court inconsistent, because they had accepted similar legislation six months earlier.
The following day, the President announced that he was vetoing these amendments. For each law, he wrote a letter to Parliament (LAP and LFP) and attached the Court's decisions (LAP and LFP). See below for Parliament's partly successful attempt to override in October.
On 28 August, the Government of TL announced that it had completed the transitional arrangements process by signing five new Production-Sharing Contracts with oil companies active in the former JPDA, which were also described on the Government website and by Reuters from ConocoPhillips' viewpoint, and by Oil & Gas and Proactive Investor from Carnarvon's perspective. The Governments of Australia and Timor-Leste also signed agreements relating to exchange of taxation and other information.
On 30 August, Australian Prime Minister Scott Morrison came to Dili, and the two governments exchanged notes to complete the ratification process for the Maritime Boundary Treaty, as described by The Maritime Executive and the Miranda law firm. ConocoPhillips, Inpex and Santos congratulated both governments, while Carnarvon explained the new regime for Buffalo. In the petroleum trade press, Upstream wrote that the Treaty removes hurdles for Sunrise and Buffalo, paving the way for several projects.
Prompted by Morrison's visit, many Australian writers recalled the troubled history of the two countries' relationship, including Kim McGrath (speech at book launch), Guardian Workers' Weekly (Apologise), Michael Leach (After a border dispute and spying scandal, can Australia and Timor-Leste be good neighbours?, The Conversation), Binoy Kampmark (Timor-Leste and Australia: A Loveless Affair at Twenty, Dissident Voice), Nick Everett (Facing jail for telling the truth about Australia’s plunder of Timor-Leste, Red Flag), James Massola (Morrison flies into a storm in East Timor over Witness K prosecution, The Age), Yashu Kalera (Timor-Leste to celebrate 20 years since independence from Indonesia, Foreign Brief), Greg Roberts (Australia confronts past with East Timor, AAP) and Sophie Raynor (Australia's true relationship with Timor-Leste, Eureka Street).
Senator Rex Patrick asked Australia to reverse its 2002 decision which cancelled international court jurisdiction over its boundary issues.
Many Timorese citizens and journalists raised the case of Bernard Collaery and Witness K during Morrison's visit, as discussed elsewhere on this web page.
Morrison's visit itself was widely reported; articles include: PM rules out East Timor gas compensation (Greg Roberts, AAP) and Australia to improve East Timorese internet and naval base (Rod McGuirk, AP). Video coverage included Sky News and Channel 9 News.
With the Boundary Treaty now in force, several writers discussed Timor-Leste's future, including Luke Hunt (Between Dreadful Past and Hopeful Future, The Diplomat), Christopher Ryan (Why Water is more Important than Oil, The Diplomat), Viji Menon (Timor-Leste and its Neighbours: Consolidating Ties, Eurasia Review) Damon Evans (Big decisions for East Timor as treaty is ratified, Interfax Global Energy), Sophie Raynor (Timor-Leste draws a line. Will Australia respect it?, Crikey.com) and Amanda Hodge (Dili’s golden sunrise dream: Too much, too soon for Timor?, Weekend Australian).
International media attention to Timor-Leste escalated drastically during the anniversary and Morrison's visit, with many reporters visiting the country for the first time. Among other things, they saw Chinese contractors building infrastructure projects (but didn't see the two billion dollars that has flowed from Timor-Leste to China over the past decade, mostly for roads, power lines and ports). With escalating global and political tensions between the West (especially the U.S. and Australia) and China, many of their articles described Timor-Leste as a battleground in this new Cold War, including East Timor invites Chinese investment in 'risky' oil project (James Massola, The Age), This Tiny Nation Should Beware China’s Belt and Road (David Fickling, Bloomberg), China Eyes Stake In Southeast Asia’s Newest Oil Frontier (Tsvetana Paraskova, Oilprice.com), China work camps reveal influence at heart of Timor (Greg Brown in The Australian), Big-spending China Inc waits patiently in East Timor, on Australia's doorstep (James Massola, The Sydney Morning Herald), A $12 Billion Gas Project Could Make or Break This Young Nation (Jason Scott, Bloomberg) and Will a “New Phase” in the Australia/Timor-Leste Relationship Counter China? (Jarryd de Haan, Future Directions International). On 23 October, Mark Dodd wrote China’s navy is making friends in Dili in the ASPI Strategist, and on 28 November, FDI published another de Haan article, Chinese and Australian Interests in Timor-Leste: At Odds or Mutually Beneficial?
La'o Hamutuk shares the concern about the potential impact of future loans from China on Timor-Leste's sovereignty, but this is not an Australian or global issue. During World War II and again in the last Cold War, Timor-Leste was turned into a battleground in global political conflicts that had nothing to do with it, resulting in the killing of tens, and then hundreds, of thousands of Timorese people. It must not happen again.
On 18 September, The Australian reported that the Australian Infrastructure Financing Facility for the Pacific is discussing funding the Sunrise pipeline. A week later, Petroleum Economist published The great game for Greater Sunrise.
On 20 September, Australia Defence Minister Linda Reynolds visited Timor-Leste to join the celebration of the 20th anniversary of INTERFET's arrival. ABC Radio's coverage (audio or transcript) included discussion of the boundary treaty and the Collaery case.
The entry into force of the Boundary Treaty and revised Production-Sharing Contracts opened the door for further oil and gas development. The industry organized an Oil and Gas Summit in Dili on 3-4 October, which was addressed by Taur Matan Ruak (also Tetum) and Xanana Gusmão (also Portuguese). At the Summit, ANPM President Gualdino da Silva said that Timor-Leste and Australia are negotiating to finalize the Sunrise development concept, and Timor-Leste opened its first licensing round for new onshore and offshore areas, as reported by the Timor-Leste government, Energy News Bulletin, and Offshore Energy. Tatoli articles from the Summit included ION's bullish report on seismic exploration, TimorGAP optimistic that Sunrise will provide good lives for the population, and TimorGAP and Timor Resources planning to start drilling on-shore in 2020.
On 5 November, Michael Leach wrote Australia-Timor-Leste relations are back on track in the East Asia Forum, and the following week Paul Daley wrote Australia's history with East Timor isn't pretty but it most be told truthfully in The Guardian.
Following the resolution of the Maritime Boundary between Australia and Timor-Leste, Australia is considering reversing its withdrawal from mechanisms for resolving maritime boundary disputes under the International Court of Justice and the International Tribunal for the Law of the Sea, which Foreign Minister Alexander Downer declared two months before Timor-Leste restored its independence in 2002. Sen. Rex Patrick asked the Australian Senate Foreign Affairs, Defence and Trade Committee to conduct an inquiry into "whether those declarations should be revoked and new declarations made which submit maritime delimitation disputes to the jurisdiction of the ICJ or ITLOS."
As summarized in a Guardian article Australia urged to return $5bn to Timor-Leste and launch royal commission; Senate inquiry told Australia should also drop prosecution of Witness K and Bernard Collaery, the FADT Committee received ten submissions by its 11 October deadline, and two later:
Rothwell/Arditto and DFAT wrote the only submissions supporting Australia's 2002 declarations, while most others called for their revocation. The Committee was to report by November, but this was extended until February 2020.
On 2 December, the Committee held a public hearing (agenda, transcript) with testimony by Clinton Fernandes, Donald Rothwell (by video), A.L. Serdy (by video) and Australian government officials. In January 2020, DFAT provided some public documents from 2002 in response to Senator Rex Patrick's question about the reasons for the withdrawal at that time.
On 27 February 2020, the Committee issued its report, concluding that "Given that revoking these declarations would appear to have negligible practical impact, the committee considers that such a revocation should not be advanced at this time." All six Committee members (from every political party) agreed with the report, but (non-member) Sen. Rex Patrick wrote a dissent, saying "The declarations were part of Australia’s most shameful international swindle. ... Australia should revoke the declarations [because] ... It would serve as an important reconciliation step with the people of East Timor [and] would enhance our standing in the international community as a returning participant in the international rules-based order."
On 4 October, TimorGAP President Francisco Monteiro and ANPM President Gualdino da Silva told journalists that the vetoed changes to the Petroleum Fund Law and the Petroleum Activities Law are not required for petroleum investment to go forward. On 8 October, Parliament heard from them and other Government officials, and then voted 34-24 to pass both bills over the presidential veto (also Tetum and Tatoli) without significant changes. Download the decrees passed by Parliament (LAP, LFP) and La'o Hamutuk's annotated versions showing the latest modifications (LAP, LFP). As these decrees were enacted under Article 95 of the Constitution, and Parliament approved them by less than a 2/3 vote, President Lu Olo has to decide whether to veto again or to promulgate. On 11 October, the President explained the importance of obeying Timor-Leste's Constitution (Tetum).
On 11 November, the President again asked the Court of Appeal to evaluate the constitutionality of these two laws. After receiving the Court's opinion, President Lu Olo announced (online video) on 26 November that he is vetoing the changes to the Petroleum Fund Law, while promulgating the changes to the Petroleum Activities Law, which was published as Law No. 6/2019 of 4 December. As this undoes the legislative kludge to the LAP that enabled the Petroleum Fund to be invested through TimorGAP in Greater Sunrise last April, the legality of that investment is now in doubt, as explained by the President of Parliament.
In February 2020, La'o Hamutuk published Implications of recent changes to Timor-Leste’s Petroleum Fund.
See above for background.
For many years, Santos has been an 11% shareholder in the joint ventures for the Bayu-Undan project the LNG plant in Darwin which processes its gas. On 14 October 2019, ConocoPhillips announced that it is selling its 57% share in Darwin LNG and Bayu-Undan, as well as shares in Barossa and other fields to Santos for $1.39-$1.46 billion. The deal was described by Reuters, and analysts Angela MacDonald-Smith (AFR), David Low (Wood Mackenzie) and Carl Surran (Seeking Alpha) provided instant commentary. A few days later, Santos' Third Quarter 2019 Report discussed the acquisition.
See above for background on Barossa.
In early December, Santos increased its production forecast for 2025, partly from Barossa, also reported by AOG. In an Investor Day presentation, the company said they are assessing whether to drill more infill wells to extend Bayu-Undan production.
On 23 November 2018, the Council of Ministers named Xanana Gusmão as the special representative and head of the Government's technical team for defining land borders, which was formalized as Resolution No. 22/2018 of 5 December.
On 26-27 February 2019, Timor-Leste and Indonesian representatives held their Second Exploratory Meeting (also Tetum) in Singapore to discuss their maritime boundary.
The Maritime Boundary Office Newsletter for November 2018-March 2019 (also Tetum and Portuguese) discusses this and other developments.
After several rounds of meetings, on 22 July Xanana Gusmão and Indonesian Minister Wiranto signed an agreement on the last unresolved segments of the land border between the two countries, which was reported by the Prime Minister's office. Discussions continued on the maritime boundary into 2020.
Topics discussed below include:
Bernard Collaery has written a book, Oil Under Troubled Water: Australia’s Timor Sea Intrigue, which will be available on 3 March. According to the publisher, the book 'relates the sordid history of Australian government dealings with East Timor, and how the actions of both major political parties have enriched Australia and its corporate allies at the expense of its tiny neighbour and wartime ally, one of the poorest nations in the world.' Several launches are scheduled, including:
After the book was released, many reviews focused on the 1975 Balibo history (including in The Guardian and Tatoli), because Collaery is not allowed to write or speak about the charges against him. He was interviewed on ABC Radio's Afternoon with Paula Kruger and Late Night Live with Philip Adams.
The next hearing in Collaery's case will be on 13 February at 9:00 am in ACT Supreme Court. The trial itself is scheduled to begin on 6-8 April.
Witness K's case will be heard in ACT Magistrates Court on 30 March at 10 am.
Some Australians continue to write about the case, including Alison Broinowski (Assange, Collaery, Snowden, Smethurst: criminalising truth).
On 14 February, Bernard Collaery appeared in ACT Supreme Court, representing David McBride, a former army lawyer who admits leaking classified documents about Australian military involvement in Afghanistan.
On 28 February, the Australian Department of Home Affairs proposed that prior approval by an independent body should be required before Federal Police can raid journalists. Some legal advocates for press freedom thought the proposal would be ineffective, although Bernard Collaery welcomed it and called for broader consultation.
The Laminaria-Corallina oil field, in waters claimed by Timor-Leste but occupied by Australia, began production in 1998, producing billions of dollars for the Australian Government and for Woodside. In 2016-2017, Woodside and its partners sold the field (also Tetum) to Northern Oil & Gas Australia (NOGA), a newly-created, privately held company; the sale was finalized in February 2017. NOGA committed numerous environmental violations, and Australian authorities ordered it to cease Laminaria operations in July 2019. Two months later, the company went into 'voluntary administration', followed by liquidation (bankruptcy) in February 2020. Australia may have to pay $200 million in clean-up costs.
According to Article 3 of the Maritime Boundary Treaty, this area may become part of Timor-Leste's territory after the field is 'commercially depleted' and after Indonesia and Timor-Leste have settled their maritime boundary. We hope it has been fully decommissioned and is environmentally clean, safe and stable by then.
On 27 February 2020, the Australian Senate Foreign Affairs, Defence and Trade Committee reported on its five-month inquiry (see above) into whether Australia should revoke its 2002 declarations which prevented maritime boundary disputes from going to arbitration or court. Six Senators from all political parties agreed that "Given that revoking these declarations would appear to have negligible practical impact, the committee considers that such a revocation should not be advanced at this time." Non-member Senator Rex Patrick wrote a dissent, saying "The declarations were part of Australia’s most shameful international swindle. ... Australia should revoke the declarations [because] ... It would serve as an important reconciliation step with the people of East Timor [and] would enhance our standing in the international community as a returning participant in the international rules-based order."
Earlier, Sen. Patrick had requested another Senate inquiry, into what Australia could do to help Timor-Leste with the Greater Sunrise project, but the Senate voted 38-13 not to look into this issue.
On 27-28 February, Timor-Leste's government hosted an ASEAN Regional Forum meeting on Dispute Resolution and the Law of the Sea. In his keynote speech, Chief Negotiator Xanana Gusmão recounted the importance and this history of Timor-Leste achieving its boundaries.
La'o Hamutuk will continue to update this page and we welcome information from all sources.
Relevant legal documents (chronological order)
The Timor-Leste Institute for Development Monitoring and Analysis (La’o Hamutuk)