legal proceedings update, page-118

A mediation between two parties does not have to be restricted to one particular legal matter. Mediations don't generally take place before the Court in which the matter is being heard. They can take place anywhere, for example at the offices of one of the law firms. A mediation can cover all legal matters between the parties across a number of jurisdictions (i.e. SA Supreme Court, Federal Court, etc) as well as issues not the subject of litigation. There is no restriction on the terms of settlement in a mediation whereas a Court is bound to adhere to principles and legislation when determine what orders to make, if any.

So in light of the above, I would not attribute the mediation between Heathgate/Quasar and AGS soley to the NTMA proceedings before the SA Supreme Court.

As previously stated, it would be very impractical for the parties to resolve only half of the issues (i.e. the NTMA) and not the remaining issues (M&D C).

I just had another look at the announcement on 5 December 2011. It is titled, "Native Title Mining Agreement Litigation Adjourned". The announcement appears to disclose 3 things:

1. The NTMA litigation in the SA Supreme Court is adjourned;
2. There is a settlement between the parties with conditions precedent;
3. The conditions precedent include the registration of a NTMA.

My observations:

- Just because the announcement relates to the NTMA proceedings AND mediation, doesn't mean the mediation was only in respect to the NTMA proceedings (its easy to read information about those two things are draw a link between them).

- The announcement specifically referred to the NTMA proceedings (and not the M&D C proceedings) because the NTMA proceedings were listed for trial that date, whereas the M&D C proceedings were not in Court at that specific time, therefore it wasn't mentioned (I also believe the M&D C proceedings were not mentioned in the announcement because they are subject to confidentiality).

- In light of the foregoing observations, I don't believe the announcement was intended to convey that the settlement reached only relates to the NTMA and not the M&D C proceedings.

Someone posted that the mediation is ongoing. That is incorrect in my opinion. The 'Legal Proceedings - Update' released by AGS on 6 December 2011 clearly states, "A deed of settlement was executed by the parties on 4 December 2011". If mediation was ongoing the parties wouldn't have executed a deed of settlement because it would have to be amended or a new deed executed to incorporate any new terms of settlement that may eventuate. It makes no sense.

The reference to conditions precedent (plural) clearly discloses that there is more than one thing that needs to be done before the deed of settlement is binding upon the parties. I firmly believe the other (confidential) terms of the overall settlement include the discontinuance of the M&D C proceedings. I say this because the settlement would seek to address the two main issues between the parties, namely, the NTMA issue and the M&D C issue. We know one of the conditions precedent seeks to address the former issue by registering a NTMA. Therefore, its logical to conclude that the other condition(s) precedent seeks to address the M&D C issue, however we know these terms are confidential.

The registering of the NTMA is not something that could be kept confidential in any event because it involves third parties that are not involved in the litigation (i.e. the native land owners) and would not enter into confidentiality agreements if they didn't have to. Although I don't know the specifics of the NTMA registration process, I would assume that registration of a NTMA would become a matter of public record through the relevant government department in a public register or public announcement and therefore defeat any attempt to keep it confidential.

However, the M&D C issue, including all of the finer details of the evidence, would only become a public record if the matter was heard and determined in Court. Therefore, this issue was capable of being kept confidential and is, in my opinion, the subject of the remaining condition(s) precedent.