Key Points
- ASX-listed company Tigers Realm Coal has filed a court case against the Commonwealth disputing that its operations in Russia are in breach of sanctions.
- In April, DFAT provided the company with an indicative assessment that its operations are against Russia sanctions regime.
- Transparency and international justice advocates called on the Australian government to avoid granting a permit to the company.
An Australian public company mining coal in Russia has announced that it has filed a court case against the Commonwealth.
by Tigers Realm Coal on June 26, 2023, stated that the company “does not agree with DFAT’s indicative assessment that its operations comprise a sanctioned import” and that it has filed a court case seeking to prove that its operations in Russia are not in breach of sanctions.
The move follows a letter published by calling on Minister of Foreign Affairs Penny Wong to avoid granting a sanctions permit to the coalminer.
In the new release, Tigers Realm claims that it has not applied for an exemption permit, as it does not consider its operations to be in breach of Australia’s sanctions regime.
'An interesting development'
Dr Anton Moiseienko, lecturer at the ANU’s School of Law, said the decision of Tigers Realm to file a court case against the government is ‘an interesting development’ and suggested that this is the first instance of its kind.
Dr Moiseienko told SBS Russian that “previous sanctions-related cases concern people either challenging their own sanctions designations or being prosecuted for sanctions evasion”.
By contrast, Tigers Realm is pre-emptively trying to get the Federal Court to say that its coal operations in Russia are sanctions-compliant.Dr Anton Moiseienko, Lecturer, School of Law, Australian National University
As Dr Moiseienko noted, Russian coal is an import-sanctioned good. Under the , it is an offence to ‘import’, ‘purchase’ or ‘transport’ import-sanctioned goods.
“It is hard to imagine a coal-mining company operating in Russia that would not be engaged in, at least, transporting Russian coal,” he said.
“Perhaps Tigers Realm will argue that those provisions are intended to prevent the import of Russian coal to Australia, so that transporting it to some other country is not captured by Australian sanctions rules. On the face of it, this is not what the regulations say,” Dr Moiseienko added.
Responding to a request by SBS Russian, Tigers Realm company secretary David Forsyth said the company is unable to provide further comment to what has been announced.
A spokesperson of the Department of Foreign Affairs and Trade said the department is aware of the application filed by Tigers Realm in the Federal Court of Australia, but declined to comment further.
“It would be inappropriate to comment on matters before the Court. The Australian Sanctions Office at the Department of Foreign Affairs and Trade takes compliance with Australian sanctions laws seriously. We do not comment on specific compliance matters,” the spokesperson said.
'Strengthen Russia's position in the Asia-Pacific'
According to Dr Moiseienko, the court case does not affect the enforcement powers of the Australian Sanctions Office (ASO).
In principle, it is an offence to make a sanctioned import without the ASO’s permit, and a pending case in the Federal Court does not change thatDr Anton Moiseienko, Lecturer, School of Law, Australian National University
"However, the ASO might be less likely to bring any enforcement action if ongoing litigation introduced any doubt in the ASO's minds that a particular company's operations are indeed covered by Australian sanctions rules,” added Dr Moiseienko.
All operations and assets of Tigers Realm , in the Arctic region of Chukotka. The company holds two exploration licences, and has been mining and exporting coal to Asian markets since 2017.
Tigers Realm also in close proximity to the mine. As Dmitry Gavrilin, Tigers Realm’s CEO this allows for a cost-effective way to produce, sell and transport coal to seaborne Asian markets.
in September 2022 said the company “does not plan to suspend the work in Russia ... on the contrary, it has been building up the assets”, a move which contrasted with the decision of a Canadian gold-mining company to sell its assets in Chukotka.
Citing Chukotka’s regional government officials, the TASS article said Tigers Realm was planning on upgrading the port “to build up production, transportation and export of coal”.
The Russian government's said Tigers Realm coking coal exploration sites and port are seen as an integral part in “bringing Russia’s coal production industry closer to its potential consumers and strengthen Russia’s position on the markets of the Asia-Pacific region”.
After Russia’s invasion of Ukraine, and the Australian government's sanctions that followed, Tigers Realm continued its mining operations and reported an increase in its annual sales revenue from $104 million in 2021 to $186 million in 2022, reflected in its .
‘Undermining the entire basis for Australia’s sanctions’
Melissa Chen, senior lawyer at the Australian Centre for International Justice, told SBS Russian that the organisation hopes the outcome of the court proceedings upholds an interpretation of Australia’s sanctions laws that strengthens, rather than weakens, their application.
“We query the basis for Tigers Realm’s legal action against the Australian Government,” she added.
“Allowing mining activities of Australian companies and their subsidiaries to continue in Russia risks undermining the entire basis for Australia’s sanctions laws against Russia: condemnation of Russia’s illegal and immoral invasion of Ukraine, and cutting off the financial resources for Putin’s war machine.”
