ISLAMABAD: The Supreme Court on Tuesday issued notices to the Pakistan Bar Council, Barrick Gold Corporation and others to assist the court in a presidential reference which sought the apex court’s opinion on Reko Diq project.
A five-judge bench headed by Chief Justice Umar Ata Bandial and also comprising Justice Ijazul Ahsan, Justice Muneeb Akhtar, Justice Yahya Afridi and Justice Jamal Khan Mandokhail heard the presidential reference.
The notices were also issued to the government of Balochistan, Oil and Gas Development Company Ltd (OGDCL), Pakistan Petroleum Ltd (PPL), and Government Holdings (Private) Ltd (GHPL) with directives to present their opinion on the questions raised in the reference and assist the court on its legal soundness.
Additional Attorney General (AAG) Aamir Rehman, who represented the federation, was asked to provide a list of senior counsels, who may appear as amicus curiae in this case.
The counsels of all the parties were asked to assist the court regarding the maintainability of the reference and the questions raised. The AAG was asked to send notices to Barrick Gold Corporation.
Amir Rehman, at the outset, briefed the bench about the background of the dispute between Balochistan and federal governments with the foreign investor in Chaghi Hills Exploration Joint Venture Agreement (CHEJVA) for the exploration and mining of gold and copper reserves in Reko Diq mines in Balochistan.
The dispute resulted in an international award by the International Centre for Settlement of Investment Disputes (ICSID) Tribunal and the ICC Tribunal. He informed the bench that the first award is at the enforcement stage, while the other is at standstill till 15-12-22.
The AAG informed that in view of the ICSID award and the anticipated award by ICC the total liability against Pakistan would be around $9 billion.
The government had constituted two committees, one headed by the Prime Minister and the other by the Finance Minister to find out the best possible way out, he further said.
Rehman said that through Reko Diq project can create 8,000 direct and 20,000 indirect jobs, as well as, helping the country in terms of royalty and taxes. He told the bench that if Pakistan does not fulfil their (Barrick) demands, it will have to pay $9 billion to it.
The chief justice said that the court can’t give an opinion as the judges are not experts on the issue.
“We are not in a position to sanctify anything,” he told the AAG with directives to focus on the questions sent by the President.
“We are not going to set aside the (SC) judgment,” he added.
The court said that the disputing parties have simultaneously negotiated to settle the matter and the settlement, which involves billions of US dollars, is to develop the mining project at Reko Diq.
The bench noted that several options are proposed that would be concluded between the different parties and one of the considerations is to reverse the SC judgment (PLD 2013 SC 641).
The Balochistan High Court in 2006 had validated the agreement (CHEJVA), but this ruling was reversed by the apex court.
The court order stated: “our (SC) judgment remains the guiding pronouncement for the settlement arrived between the parties”, adding it said that the subject matter of the Presidential Reference is quite unique.
The AAG submitted that the proposed agreement is the best proposal that the government could make in the present circumstances. He said the apex court is not called to consider the viability of the terms of the agreement, but its validity for safeguarding the interest of the people of Balochistan.
The order said that the controversy presented to the Court is of unusual nature that necessitates the competent advice and view of all the stakeholders. The bench therefore issued notices.
Earlier, Justice Ijaz remarked that it is very novel that the government has approached the Court with the presumptive questions.
Rehman contended that the government has not violated any law, adding, “We are asking the Court to vet the agreement.”
Justice Ijaz stated that the government has a whole team of lawyers and the experts who can give suggestions on the legality of the agreement.
The AAG said it was one of the requirements of the investor (Barrick) to get the nod of the Supreme Court for the long-term sustainability of the company’s investment in the project.
Justice Bandial said normally the Court was asked to interpret the constitutional provisions, but here the government has approached the Court to adjudicate upon a 1500-page agreement.
Justice Yahya Afridi asked the AAG can the court alter the questions, adding “can you standing on the rostrum ask the court to alter the questions”.
Reko Diq is one of the world’s largest undeveloped copper-gold mines. The project is being restarted after remaining on hold since 2011.
The case was adjourned till November 01.
Copyright Business Recorder, 2022
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