The Sydney Morning Herald

All the weaker, thanks to a greedy grab for oil

Paul Cleary

September 24, 2007

For a country controlling a maritime region of 15 million square kilometres - more than twice the size of its landmass - Australia has limited powers to stop unlawful exploitation of creatures such as endangered whales and fish, and the resources found underneath the seabed.

This is one of the legacies of the tactics used by the Howard Government in its dealings with the poorest country in our region - East Timor - in the dispute over the Timor Sea's oil and gas.

In March 2002, two months before East Timor became independent, the Foreign Minister, Alexander Downer, with the attorney-general, Daryl Williams, announced "changes to the terms upon which Australia accepts international dispute resolution mechanisms" for maritime disputes, including boundaries. What seemed a dull statement had profound implications for Australia's conduct in the disputed Timor Sea and elsewhere.

The Government knew East Timor had a strong claim over petroleum resources worth at least $120 billion on the northern side of the median line between the two countries.

At the time of this announcement the Howard Government had agreed to an interim treaty giving East Timor a 40 per cent share. It knew East Timor was entitled to a lot more when it became a new nation, hence the announcement two months before independence designed to deny the new country legal recourse.

The "declaration" signed by Downer withdrew Australia's acceptance of the jurisdiction of the International Court of Justice for maritime disputes, and of the dispute settlement procedures under the International Tribunal for the Law of the Sea. This included matters "relating to the exploitation of any disputed area of or adjacent to any such maritime zone pending its delimitation".

In his press statement, Downer claimed the change was made as a result of maritime boundary claims by New Zealand, Norway and France. But the target was East Timor, which was not mentioned in the release. The minutes of a meeting of Department of Foreign Affairs and Trade and United Nations officials in late 2000 reveal how the Government's withdrawal was aimed at East Timor and was described by a senior foreign affairs official, Michael Potts, as a "get-out-of-jail card".

At the time of the announcement Australia was pocketing about $1 million a day in tax revenue from the Woodside-operated Laminaria-Corallina oilfields, which sit twice as close to East Timor as Australia. The withdrawal meant Australia denied revenue to the new country that could have been used to generate jobs and prevent the formation of today's rock-throwing gangs.

It is significant the Labor leader, Kevin Rudd, tacitly endorsed the withdrawal at the Labor Party's national conference in 2004. A return to these procedures was deliberately omitted from the resolution on the Timor Sea dispute Rudd put to the conference as foreign affairs spokesman.

Now the dispute is settled, Labor's environment spokesman, Peter Garrett, has suggested Australia could use International Tribunal for the Law of the Sea procedures to prevent whaling in the Southern Ocean. When asked if Australia had the power to take legal action to prevent whaling in the Southern Ocean, a spokesperson for the Attorney-General, Philip Ruddock, said the Howard Government preferred diplomatic measures.

"The question of whether an acceptance of jurisdiction by Australia is applicable to any given dispute, including a dispute involving whaling in waters off Antarctica, will depend on the specific details of that dispute. Whilst the Government has not ruled out any viable legal or diplomatic action to bring pressure to bear on Japan to end its so-called 'scientific' whaling, it is the Government's view that diplomatic action at this stage provides the best prospects for success."

The lesson for Australia is that greedy short-term opportunism is not in anyone's interest, least of all for a wealthy Western country which should be a model of democratic values, the rule of law and a committed partnership with its impoverished neighbours.

Paul Cleary is the author of Shakedown - Australia's Grab for Timor Oil (Allen & Unwin). He was an adviser to the East Timor Government on the Timor Sea negotiations.