NuCoal acquired Doyles Creek Mining (DCM) and EL 7270 for $94million.
– Probity Report completed by O’Connor Marsden and commissioned by the NSW State Government, confirmed the validity of EL 7270 and concluded that its grant was “within power” and cleared it of any impropriety.
– NuCoal’s shareholders continued to invest based on the report, effectively information prepared for the Government, and also in accordance with the conditions attaching to the Licence.
ICAC Investigation (Operation Acacia) commenced and concluded in May 2013.
ICAC provided its Report on Operation Acacia, citing misconduct surrounding the circumstances in which EL 7270 was granted. ICAC recommended innocent parties be compensated and concluded that NuCoal was an innocent party.
NuCoal’s major asset, EL 7270, was expropriated by the enactment of the Amendment Act by the NSW Parliament. The Government did not follow ICAC’s recommendation to compensate innocent parties, instead it:
– Denied NuCoal the ability to seek compensation
– Legislated that NuCoal must provide all its accumulated exploration data to the Government
– Denied NuCoal access to the Courts of the State to seek redress
The Special Legislation
The special legislation enacted by the NSW State Government was unprecedented and draconian. NuCoal’s innocent Investors lost all their investment despite acting in good faith and lawfully.
Following the cancellation of EL7270 in late January 2014, the then-Premier, Barry O’Farrell attended a community cabinet meeting in Maitland, NSW in early February 2014. At this meeting a NuCoal Shareholder asked the then-Premier O’Farrell about the lack of compensation to NuCoal Shareholders, despite the recommendation of ICAC.
O’Farrell replied as follows: “So if I had the money, we would. But, if you hadn’t noticed, state governments, like local councils, and indeed the federal government, don’t have a lot of spare cash sitting down…sitting around. The mint in Macquarie Street closed a hulluva long time ago.”
At this same meeting, O’Farrell also defamed the Directors of NuCoal. After serving an action on Mr O’Farrell, the matter was settled out of court with the Directors being awarded significant costs and receiving a written apology from Mr O’Farrell.
NuCoal did what it could to legally challenge the special legislation introduced by the NSW State Government by instituting Judical Review proceedings in the NSW Supreme Court and a constitutional challenge to the High Court of Australia.
Judicial Review Proceedings – March 2014
The Judicial Review process outlined NuCoal’s position that ICAC failed to adequately consider NuCoal’s submission to it.
As part of the judicial review proceedings, the ICAC, in its defence stated the following about NuCoal’s innocence:
 – …“Relevantly, ICAC’s recommendation that EL7270 be cancelled was not based on any wrongdoing by NuCoal.”…“However, ICAC expressly held out the possibility that any innocent person affected by the expunging might be compensated to the extent that was considered appropriate, in its formal recommendation (December Report, page 20). Given the attention given to NuCoal in the section of the report on Referred Question 3, it can be inferred from the face of the report that NuCoal and those of its shareholders not involved in the corrupt conduct were contemplated within “any innocent party” (indeed, it is not evident who else was meant by “any innocent party”).
High Court Challenge – June 2014
NuCoal filed a Writ of Summons and Statement of Claim with the High Court challenging the constitutional validity of the Mining Amendment Act.
Both the Judicial Review and High Court cases were unsuccessful
In September 2015 the Supreme Court found that ICAC acted within its powers. In April 2015 the High Court clarified the position that Australian States can confiscate property without compensation or due process.
NuCoal has continued the fight for justice and compensation for the thousands of NuCoal Shareholders.
December 2017 – NuCoal provided a written submission to the NSW Premier requesting consideration in initiating confidential discussions between the NSW Govt and NuCoal with a view to considering appropriate compensation.
August 2018 – The Company contacted all shareholders in NSW to encourage them to make contact with their local MPs and outline their personal losses incurred as a result of the actions on the NSW State Government.
The Company also contacted all local MPs, Upper House Representatives and a number of politicians on a Federal level asking for their support in advocating a fair and independent process regarding compensation.
October 2018 – The Company arranged for several shareholders to visit Parliament House to meet with a number of MPs and tell their individual stories first hand. Two shareholders were also interviewed by Alan Jones on his breakfast show the morning of the visit
Following the appointment of Senator The Hon Simon Birmingham to Minister for Trade, Tourism and Investment in October 2018, NuCoal made representations to him outlining the key facts of the NuCoal matter and requesting his support to initiate confidential discussions between DFAT, the NSW Government and NuCoal to establish an impartial process for considering appropriate compensation.
May 2020 – The Company contacted shareholders who have a preferred communication method of email encouraging them to make contact with Cabinet Ministers in an effort to continue progressing the matter. The correspondence can be viewed at: http://ecomms.linkgroup.com/liveview/Email/GetEmail/4d79d783-a8be-44e8-93ca-e299c2c02cf5/7714e2b7-15c4-481f-a05d-da2517961c12?LDC_NM=View+Online+Link
August 2016 – NuCoal engaged U.S. Lobbyists, BGR Group, to assist with progressing action under the Australia US Free Trade Agreement (AUSFTA).
August 2017 – NuCoal lodged a submission with the United States Trade Representative regarding Trade Agreement Violations and Abuses. NuCoal’s submission outlined that there has been a clear violation of the AUSFTA, and highlighted the lack of engagement by the Australian Government to resolve the matter, despite no U.S. investor being implicated whatsoever in any wrongdoing.
October 2017 – Trade Representative, Robert Lighthizer, wrote to Steven Ciobo, the then Minister for Trade, Tourism & Investment requesting consultations with the Australian Government regarding the NuCoal EL cancellation.
March 2018 – During a House Ways and Means Committee held in March 2018, Congressman Jason Smith asked the following of Ambassador Lighthizer:
Q: Ambassador Lighthizer, I understand that your office has formally requested consultations with Australia under AUSFTA on behalf of aggrieved U.S. investors. Since the agreement was entered into in 2005, this is the first time that the investor state dispute settlement provisions have been invoked by either party, which is truly a milestone. Given this historical significance, which will have a profound impact on any future disputes arising under the treaty, particularly state-sponsored expropriations, how does your agency intend to continue to pursue this matter?A: The administration places a high priority on ensuring full compliance with obligations in our and trade and investments agreements, including the AUSFTA. Accordingly, we initiated consultations under the Investment Chapter of that Agreement to address a discrete investment dispute in the energy sector involving U.S. investors. We are continuing to engage with Australia regarding this ongoing matter.
January 2019 – a new U.S. Ambassador to Australia, Arthur B Culvahouse Jr, was sworn in by the U.S. Senate. During his confirmation hearings, a number of Senators asked questions about the unresolved NuCoal issue.
The Company continues to pursue claims against the Australian Government on behalf of US shareholders under the AUSFTA.
Mining Amendment (Compensation for Cancellation of Exploration Licence) Bill 2019
June 2019 – Rev Fred Nile introduced a Private Members Bill in the NSW Upper House on 6 June 2019 which deals with the appointment of an arbitrator to consider compensation for innocent NuCoal shareholders who were affected by the cancellation of the Doyles Creek Exploration Licence – EL7270. The Private Members Bill proposes that “innocent persons be entitled to fair compensation after an open and impartial process of assessment” and that the “Minister appoint an independent arbitrator who will preside over the assessment process”.
July 2019 – The Private Members Bill was referred to the Standing Committee on Law and Justice for enquiry and report. As part of the enquiry process, the Standing Committee accepted public submissions until 31 July 2019. Following a formal invitation from the Standing Committee, the Company lodged a submission on behalf of shareholders on 23 July 2019.
August 2019 – After the submission process, the Standing Committee invited the Company, along with a number of other individuals who also lodged a submission, to attend a public hearing. The public hearing was held on 9 August 2019 and the Directors appeared on behalf of the Company.
September 2019 – During the hearing, there were a number of questions taken on notice due to the level of detail requested by the Standing Committee. The Company prepared a detailed response to the questions taken on notice which was finalised and submitted to the Standing Committee on 6 September 2019.
October 2019 – The Standing Committee on Law and Justice tabled its report with the Clerk of the Parliaments on 30 October 2019. The report was made publicly available via the Standing Committee website on the same day.
As outlined in the report, the Committee has provided the following recommendations:
- Recommendation 1 – That the Mining Amendment (Compensation for Cancellation of Exploration Licence) Bill 2019 not proceed in its current form.
- Recommendation 2 – That the NSW Government address the outstanding matters raised during this inquiry, where appropriate, including the issue of compensation for innocent shareholders.
April 2020 – The NSW Government provided a formal response to the Standing Committee noting that they agreed with Recommendation 1 and reserved their position with respect to Recommendation 2.
May 2020 – NuCoal understands that the Attorney General, The Hon. Mark Speakman, now has carriage of the matter and NuCoal has wrote to him to seek an update on the matter.
NuCoal will continue to progress the matter with the NSW Government to ultimately gain compensation for NuCoal and its innocent shareholders.