SMM Document, page-39

Thanks Tyler for the well thought out reply, even though it was a bit dismissive and abrupt at times

"On what basis do you think that this is to be interpreted as being conditional upon a win?

Nowhere in the document does it state that it is conditional upon a win."

No, it doesn't. But it also doesn't say that SMM have sided with the government. Like you, I have made a logical conclusion given the subtext and the facts presented. I never said they had, it just said it's a possibility.

"In fact, if it was to be construed that way, the whole document would be meaningless. In other words according to your interpretation, the SI government is saying "if we lose, then we concede defeat" - but what does it matter once they have lost? Once a party has lost no concessions or objections by them matters anymore."

This isn't a party that is a member of a case, it is the equivalent of the Commonwealth for SI. So they must remain impartial to the proceedings. It's a very strange document and seemed to come out of nowhere, I was offering a possible reason behind it. But really, without seeing the actual document we can't know what it means and we simply have to wait. Perhaps they are trying to cover their ass, or they know that the judge will never sign it, and only signed it to keep both sides happy in the event SMM do win. You have no idea, and neither do I. What we can do is speculate, which is what we are doing

" Yes, the judge decides that issue at the end of the day, but it still seeks what the views of the SI Government is on that point...

Let's go back to the commencement of the proceedings - SMM were saying the cancellation of the tender was invalid, and the SI Government was saying it was valid. The judge would have noted "ok, that issue is in dispute between those two parties". Now that the SI Government has changed its tune, the judge is equally within his rights to note "ok, that issue is no longer in dispute between those two parties"."

Right, and this is where it comes down to opinion in the whole crux of the point of the document:

What is the subtext and content of the consent agreement?

If the agreement is the Government conceding and admitting fault then this point that you have made is very valid.

Yet, we have no indication what the "government" this document is referring to. A specific department? My point was that it is incredibly ambiguous to simply refer to the "government" as a whole because so many things make up to become said government - departments, MPs, PMs, executive officers and yes, the judicial arm is part of the government too.

"Also, I think it was somewhat ironic that you noted the separation of powers, but then go on to include the Judge as making up the government."

It isn't ironic, because that's actually what the government is. It is made up of three arms:

Legislative - Make the laws (makes legislation)
Executive - Basically enforces the laws, but realistically is the most powerful arm because all members of the executive are part of the legislative and they also enforce the laws. This means that the Legislative arm is very closely linked to the Executive. That means there needs to be a check and balance to hold this accountable. Half of that is the whole idea of representitive government (i.e. we vote in members of parliament to act on our behalf) the other half is...
Judiciary - The High Court is the ultimate check and balance and remains completely independent from the government. All decisions from the High Court are binding and has original jurisdiction regarding constitutional matters. The courts act as a check and balance on the other two branches of government and as such they cannot be touched or altered in any way by legislation. The SI Government is COMPLETELY and 100% at mercy to what the court decides in this case.

That is the case in Australia, seeing as SI is a Commonwealth nation it's 99% likely that is also how it operates. So it's not ironic at all.

"You might also want to ask why AVQ hasn't informed their market of this news."

You're calling this document news? Again, taking a huge leap in judgement here to conclude that everything in this document is infallible. I'd like to get a 3rd party's opinion on the document, i.e. ring up the court and ask what the consent order is before making calls. All of what I said is speculation using context and pre-existing knowledge that we all know and have. Why would AVQ inform the market of this random document if it wasn't passed.

The A-G hasn't signed it and that is enough for me. That is, the appointed executive officer for legal matters. He advises the PM on these legal matters! To have this MP refusing to sign the document is a bigger win than to have the ambiguously undefined "SI Government" sign the document.

"Hard to construe this as being impartial when it is formal consent orders with only a selection of the parties in the case, as opposed to every party. If this agreement was made with AVQ instead of SMM, would you still think it was impartial to SMM?"

Good point, my emotions would take over and consider this a win for AVQ. However, the very nature of the document as I've said is very elusive... or so it seems to me. There is a heap of unanswered questions! I guess it depends on the terms of the consent order.

Perhaps there was a concession in there that SMM's licence was valid for land covering a certain area? SMM had failed to correctly identify the land it wanted to mine in its original LOI in 2011 (see Court of Appeal case on PacLii).

Perhaps the Government signed a document stating that the LOI was revoked incorrectly by the then serving Minister of Mines and acknowledges this mishap but doesn't agree to the case?

There is a multitude of scenarios that could occur each not necessarily positive for SMM or even AVQ, but would not determine or change the outcome of the case.

At the end of the day, this consent order was not approved and I can only imagine the judge laughing at its content. Another point: SMM had more than 3 pieces of land that weren't being developed. This is in contravention of (i think section 21, could be section 71 or there abouts) of the Mines and Minerals Act (SI).

Yes, it was an official document by SMM and to attack it based on its presentation is no doubt a logical fallacy. However, a company this big - why the f&*( would it not present it in a prettier format?

Nice use of bold for replying to long-winded posts!

Appreciate the reply, looking forward to your response
Feel free to email me as well - [email protected]