The Supreme Court on Tuesday directed the Deputy Attorney-General to consult Defence authorities about strategic aspects of ongoing exploration and mining activities in Reko Diq and inform the court.
A three-member bench, headed by Chief Justice Iftikhar Muhammad Chaudhry and comprising Justice Muhammad Sair Ali and Justice Ghulam Rabbani, was hearing a number of petitions against leasing of Reko-Diq gold and copper mines project worth over $260 billion in Balochistan to a foreign exploration and mining company, Tethyan Copper Company (TCC), a Canadian and Chilean consortium of Barrick Gold and Antofagasta Minerals, by federal and provincial governments violating the laid down rules.
Khalid Anwar, counsel for TCC, told the court that his client had followed all rules and regulations while obtaining Reko-Diq contract. He said the military authorities were also given a detailed briefing before award of contract and they did not express any reservation over it from defence point of view.
He said that nuclear aspect of the area had already been embedded in the mining rules, and the strategic point of view was also studied. He said that military authorities did not interfere in mining activity due to its economic impact on the province.
Justice Chaudhry remarked that prima facie due security and strategic interest was not kept in mind while awarding the contract. The court said it had gone through the relevant record but there was not a single provision of law or guideline for the protection of such a strategic area. The bench said the government should have also considered this aspect, and directed Deputy Attorney-General Chaudhry Mazhar Ali to take up the issue with concerned Defence authorities for their viewpoint regarding strategic aspects of Rekp-Diq.
Appearing on notice, Advocate-General Balochistan Dr Salahuddin Mengal said he would submit feasibility report of the project to the court. However, he requested the court not to make it (report) public, which the bench accepted. Mengal said that TCC had moved a fresh application with the Minerals Secretary but it was not moved properly. In reply to a question whether they had any right after the court stayed the whole process, Mengal said the project was in process and the contract was not being awarded to anyone.
An official of Balochistan Development Authority (BDA) told the court that after 2000, mining rules were framed and the contract for the award of lease was subject to the feasibility report. He said that rejection of the aspirant party was possible, but the authorities concerned had to provide reasons for it.
Abdul Hafeez Pirzada, counsel for BHP Minerals, said that in May 1990, the Balochistan Development Authority and BHP had engaged experts, and it took three-and-a-half years to finally reach an agreement in June 1993. He said the agreement was also approved by the then chief minister, for which the provincial government had also sought approval from federal government. Justice Chaudhry noted that executive authority rests with provincial government and not with governor or Balochistan Development Authority, who seemed to have executed the agreement.
To a query from court about location of the mining area, Pirzada said it was a metallic belt area, running up to Afghanistan. There were about 20 other private parties, he added, working in Chagai area. However, he said, now the principal party, the government of Balochistan, had taken hold of the project. He said his client had handed over the project to TCC. However, it was in the court only to defend the Joint Venture Agreement (JVA) signed between the Balochistan government and BHP in 1993, called 'Chagai Hills Exploration Joint Venture Agreement' (CHEJVA).
Replying to a query, he said that JVA had not achieved its purpose. He said that TCC, which held 75 percent shares in the process, had to move an application with the government of Balochistan as their earlier joint application was turned down. Terming the agreement 'extraordinary', he said it was for the first time that a foreign company came to give Balochistan government 25 percent equity.
In reply to a court query about relaxation of rules for the mining companies, Pirzada said relaxation is a special concession in special circumstances. In reply to another query, he said that proper legal opinion was sought about the agreement, and the law department was also taken on board. Hearing was adjourned to Wednesday.