Recent Development July 2014
According to recent news, an Australian, US and Canadian consortium of mining and financial companies is about to renew its offer to make a bid of over $100 billion for the Reko Diq gold mines, to be paid in 30 years, through an international transparent global tender.This was promised by Dr Arsalan Iftikhar before he resigned from his post at the Baluchistan investment board. But the new consortium, which says it will not come to Pakistan unless there was a free and globally accepted tender, has assured that smeltering of the gold will be done inside Pakistan and no raw material will be taken out, as was envisaged in the previous deal with the Canadian-Chilean companies.This is good news for the employment and business situation in Baluchistan.
For all of you who do not know much about the Reko Diq Case , I would recommend you take the pain of Googling the term and a plethora of news items will be listed in front of you with the Supreme Court ordering a consortium or such of foreign companies to get their story straight. Yes it’s true! Our Politicians love selling Pakistan for Peanuts and this case was no different. However in this case you also see many half-truths and also active concealment by Baluchistan officials.It was however a relief to know that the ousted companies have gone to international courts of arbitration after Pakistan Supreme Court cancelled their contracts but they have lost two cases against Pakistan.
I wrote the article below back in 2012 and I am publishing it here on our website now;
The Reko Diq Case 2012 by Barrister Aemen Maluka
: During the proceedings of the case in early November, I was pretty much surprised as to why the Supreme Court was not asking the basic legal questions pertaining to the extremely basic impact of the company regulations as they prevail in our country. I made some notes and scribbled some thoughts. These thoughts would have been gladly put away unless I had seen the latest news item showing that the Supreme Court was now on the right track!
1- At this point I am guessing, I should simply set out my thoughts here in points, rather than attempt to write a coherent article on this one, and may be later, I can come to some solid conclusions.
2. The starting point for the query would be to decide whether the main party is the TCCP or the TCCA. TCCP, it appears, is a shadow company of the TCCA. It is a straightforward matter of lifting the veil of incorporation to actually see “WHO” made the original so-called commitments before 2006 and then to see the role of TCCP presently. Also worth noting is the fact that the Pakistani company called ‘TCCP’ has a website at https://tethyan.com, viewing access for which has constantly (and perhaps deliberately) been deactivated during the dispute. Due to the shortage of time more international and national, legal precedents and laws will be made available soon after this. Surprisingly no body investigated the listed addresses for TCCP and/or requested SECP to get a Form 29, earlier on.
3. Their tax details and directorship should have been checked thoroughly to match with the details given. A web search indicated the following information for the TTCP (allegedly) registered in 2006. There was no mention of the Karachi address here but there is a Karachi address on other websites. We need to see which city’s SECP to contact to get their filing information.
It would follow that the share percentage of this company TCCA and TCCP would need to be checked. Something is dubious regarding the law under which TCCA claims to be registered.
3- Now, A simple question or well…questions!
• What is the link of TCCP with TCCA?
• Have the court summons been sent to both TCCP and TCCA?
• Given that it seems (but is not confirmed) that TCCA was dealing with everything until 2006, why did the so-called foreign investors register a TCCP (Pakistan)? Did that mean that their status as foreign investors ceased?
• Why didn’t TCCA register a branch office here like all foreign investors do? Were TCCA (before and after 2006) or TCCP (after 2006)) in receipt of any advantages available to foreign investors?
• What taxes have they been paying and in whose names are their assets (rentals, car’s etc). Which account are they using to pay salaries and costs?
• Are they taxed as a local company or a foreign investor? What is the share ownership structure of TCCA? Does Barrick’s also hold shares in TCCA?
• If Barrick’s is the main influencing party how come no notice has been sent to it?
• Was TCCA or TCCP a simple investment company or a mining company?
* TCCA is the abbreviation used for Tethyan Copper Company (Australia-see below for details). Now known as Tethyan Copper Company Private Limited (Australia) and TCCP is the abbreviation used for Tethyan Copper Company Private Limited Pakistan. An online search reveals Muslim Lakhani here who is Chief Representative – Tethyan Copper Company Pakistan (Private) Ltd and Director – Tethyan Copper Company Pakistan (Private) Ltd.Even more interesting! (Yes, Keep Reading!)
BHP changed the entire control of the company by selling its 75 percent stake to TCCA. Then TCCP came into play in 2006.So what happened in between? How did the stake become jointly owned by Antofagasta and of Barrick Gold Corporation as “TCCP” registered in Pakistan. If TCCA, Barrick Gold and Antofagasta deem themselves to be ‘foreign investors’ what exactly were they looking for by registering a company in Pakistan. How much stake does TCCA have in TCCP now? Why have Barrick Gold and Antofagasta not been summoned here? Surprisingly enough, it is only now that the Supreme Court is questioning the link of MinCorp with TCC and the way it affects the subsequent legality of the alleged agreements.
Tethyan Copper Company Pty Limited (TCCP), TCC procured the services of SRK Consulting (UK) Ltd. and Hagler Bailly Pakistan to conduct an environmental impact assessment (EIA) of the proposed project and associated developments, including extraction of water, transportation of refined products, and storage and handling of the products at the ports for export shipments. The services provided by Hagler Bailly Pakistan focused on establishment of an environmental and social baseline, conducting public consultation, carrying out resource assessment studies, advising on impact assessments and mitigation, and assisting the client in obtaining environmental permits and approvals. Hagler Baily also gave an environmental assessment of the proposed project, which was completed in 2010. TCCP contracted Hagler Bailly Pakistan for the technical assessment of a weather station operated by the Pakistan Meteorological Department (PMD) at Gwadar, acquisition of climatic data from the PMD, checks on data quality, and other environmental services. Why was this not done by TCCA? Or was it? This needs to be clarified.
If TCCP is seen to be the main party here then we have three potential culprits to be tried for environmental law breaches, criminal fraud, misrepresentation and bribing/connivance to divest the area of its resources. These are Barrick’s, TCCA and Antofagasta. TCCA can even be seen as the shadow company controlling TCCP (depending on the actual facts of course). Now given that TCCP has been registered in Pakistan, should it not have complied with the laws of Pakistan? It is easily amenable to the jurisdiction of Pakistani police, courts and other legal authorities. Also its documents and dealings should be investigated in public interest. Public Interest has been oft repeated as one of the first lines in all Mining Acts. The Supreme Court has the jurisdiction here under Constitutional rules and of course it may even become a criminal investigation. There is a need to look at the National Mineral Policy too perhaps.
Comparing this case with the Saindak project given to Chinese investors it would be useful to compare the taxes being paid? Can they claim to be foreign investors? What tax breaks or perks or relaxation of rules have they benefitted from. If none or less than TCCP/TCCA in Reko Diq, how did this happen? Who allowed this? Why was the federal government not consulted?
Finally a few appeals to sanity and good legal sense!
Gold is a strategic asset just like Oil, Gas and Steel. This CANNOT in principle be handed over to foreigners to do what they like? Are there no laws regulating Gold mineral mining? Also as promised Barrick’s can only ‘dig out’ our gold. It has refused as a part of TCCP to set up plants refineries etc. that would give people jobs. The raw Gold may even have been quietly shipped off to Canada for peanuts and never sold in the open market as originating from Pakistan.
The local Baluchi officials who authorized the large territories of land for mining exploration and waiver of fees etc. need to be checked too. With whose authorization has all this happened? Also the argument about the 18th AMENDMENT is extremely ridiculous here. Gold should be something each Province gets to decide how to use and abuse themselves. It is a national asset and only the federal government should be able to make decisions here. All records of payments made and received should be checked and any waivers should be set aside retrospectively. By not paying any money and freely roaming about the so-called contract was in breach and void ab-initio since 1992 anyways. In 1992 and 2006 there was no 18th Amendment. How do you justify the cheap sale of Baluchistan’s assets by the provincial government then?
Why has no one checked TCCA and TCCP’s selling in and selling out of shares to companies like Barricks.Barricks has a terrible international reputation for its human rights abuses? To read some of these go to this website. https://www.protestbarrick.net/article.php?id=776 and also https://www.protestbarrick.net/section.php?id=3
Finally consider the impact of the Monopolies Act 2010.The sale of shares in a company may be covered by section 11 of the Competition Act 2010 section 11 of which prohibits undertakings from entering in a corporate transaction which substantially lessens competition by creating or strengthening a dominant position in the relevant market. Could it be that by two big companies hiding behind the name of TCCP were secretly taking advantage of Pakistan? Why have they not been checked or summoned in the case? Why was TCCP /TCCA the only bidder for the license and exploration. Is competition by other much more able and well-meaning investors being thwarted on purpose to accommodate companies like Barrick’s? (See for example https://www.protestbarrick.net/article.php?id=776)
Finally in the unlikely situation of the Supreme Court being convinced that TCCP and TCCA have some valid title or right here, their basis for getting a mining license was giving a fair EIA and Feasibility report. This report was also grossly corrupt and misrepresented by understating the actual potential of the area. This is a clear basis for the Government of Baluchistan not wanting to do anything, anymore with these parties. A fair Tender Notice or Public Call for the project should be made to national and international investors alike and the mining license should be then allotted. The Monopoly of the TCC and BHP and now Barrick’s and Antofagasta here must be broken. Looks like TCCP and TCCA have been acting as a ‘middle man’ here to sell Baluchistan out while taking its cut of profits. Where are the registered offices of Barrick’s and Antofagasta? Interesting why no one is representing them.
It seems that the ICSID has been pretty wise so far in reserving it’s judgment. TCC has clearly misled them. If the case is tried in Pakistan then the entire facts and figures and its entire wrong doings will go in public. The reason they are now running off to ICSID and ICC is because as a rule such arbitration proceedings are done in secret (behind closed doors). This will give them a chance to preserve and conceal their wrong doings further. The best precedent here is the HUBCO case, which is a Supreme Court judgment of Pakistan. It clearly gives the message out to foreign companies. That criminal acts like fraud and bribery will be tried in national courts of Pakistan and are not subject to arbitration.
ICSID cannot, legally give a judgment here; at least until these fraud investigation is done. TCCP’s assets in Pakistan should be cease and operations kept suspended and their employees should be on the Exit control list until cleared of fraud and aiding and abetting the embezzlement of Pakistan’s National Treasury. Likewise for the current and retired Baluchi officials involved here. They need to be told that this is not an investment dispute but a criminal proceeding and investigation occurring for TCCP, Barrick’s, BHP, Antofagasta and TCCA which cannot in any way be seen as an investment dispute. ICSID can only take up investment disputes and not federal government matters taking up criminal investigations. Please read the rules again for ICSID arbitration. Perhaps this is why they have been wise enough to reserve their judgment. Also while criminal proceedings and investigations are being done by Pakistan against TCC and it’s allies, the ICSID should refuse to adjudicate this case any further or accept any appeals.
On a more amusing note, ICSID should also be able to fine TCC for misleading it and wasting the court’s funds. Barrick’s activities should be assessed and Pakistan should register a complaint against its activities too (if possible, internationally). This is not the first time Barrick has sneaked quietly into a country through dubious paper names and sham set-ups!
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