The Supreme Court on Wednesday said that amendments or relaxations made in the mines and mineral rules were persons- or company-specific to award the Reko Diq gold and copper contract to the BHP Billiton, an Australian Jewish company. The BHP sold its shares the Tethyan Copper Company Pakistan (Pvt) Limited (TCCP), a joint venture of Barrick Gold Corporation of Canada and Chile-based Antofagasta PLC. A three-member bench of the apex court has been hearing petitions challenging the award of a contract to the TCCP for exploring gold and copper at Reko Diq in Chagai, Balochistan. Chief Justice Iftikhar Mohammad Chaudhry, heading the bench, remarked that they never ever discouraged foreign companies to invest in Pakistan, but they have to follow the Pakistani law. He said they only have to examine the legality of the case. The CJP said not a single company exploring oil and gas in Balochistan and other provinces ever asked for the relaxation of rules; why it was done in the BHP, TCCP case. Justice Sair Ali questioned the counsel for TCCP, Khalid Anwar, whether all the relaxations obtained by the BHP were by fraudulent misrepresentation.
Anwar said every proposal by the BHP was vetted by every relevant department of both federal and provincial governments and there was not a single dissenting note by any of them. He said not the BHP but the Balochistan Development Authority applied for the relaxation in rules, adding if there was a mistake then it was on the part of the Balochistan government. Justice Ghulam Rabbani asked whether it was the mistake of the Balochistan government. “If it was a mistake, then it is a void contract”. The CJP said it was not the job of the Supreme Court to interpret the contract, but they would like to know why it was persons- or company-specific. TCCP lawyer Khalid Anwar informed the court that the BHP Billiton had consulted all the departments of Balochistan, including ministries of industries, planning, law and finance, as they were members of the Mines Committee, and all gave approval to the joint venture agreement. It took two years to get the contract.
He said the consultation took place with unprecedented depth and serious analysis not merely with the Balochistan government but also with the federal government, though there was no legal requirement for it. In addition to that, he said, the BHP requested the UN Department of Socio-Economic Development for data and input relating to the international practice on the quantum of royalty. This is in contrast to the manner and procedure, according to that the government of Balochistan was awarded not only prospecting, but also exploration licences and even in one case the mining lease without processing their cases thoroughly. The counsel said: “Our area with the TCC is 0.8% of the total area of Chagai, which according to the Balochistan government was legally valid”. He said Chagai is extended over 44,000 square kilometres, while EL-5 is 435 sq km and the area of mining is only 3 to 5 sq km. Shameless lawyer of TCCP Anwar argued that Pakistan’s economy depended upon the IMF and the World Bank, despite having world's largest Gold and Copper reserves.
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