As it is publicly known, the judge nº 1 with jurisdiction on federal matters of the province of San Juan, Miguel Ángel Gálvez, partially suspended the glacier law recently passed by Congress and promulgated by the Executive last October 28th.

The resolution is based on filing a complaint to declare the Glacier Act N° 26.639 unconstitutional filed by the Mining Chamber of San Juan; the Chamber of Mining Services; CASEMI; AOMA; and San Juan Regional CGT.

In his statement, the judge explained that, “It is the responsibility of the Nation to set the norms stipulating the minimum requirements for environmental protection, and the provinces are responsible for laying down the necessary rules to complement them, and the national rules shall not alter local jurisdictions,” as stated in section 41 of the National Constitution.

Gálvez supports his legal reasons on section 124 affirming that, “the provinces have the original domain of the natural resources existing in its territory.”

The suspension applies to sections 2, 3, 5, 6, 7, and 15 of the so called glacier law and it has effect only in San Juan.

Federal judge Miguel Ángel Gálvez ordered that the Glacier Act N° 26.639, of Minimum Requirements for the Preservation of Glaciers and Periglacial Areas, not be applied in the territory of San Juan.”

The opinion of some mining key players from Argentina

Carlos Saravia Frías, partner in Saravia Frías Mazzinghi Lawyers, maintains, as he recently stated at Latin Exploration 2010, that “the mining activity doesn’t need any law to protect glaciers since it’s implicit in the activity the protection of the environment; anyway, it’s never bad that there exists a law to protect them. Anyhow, the problem arises when discussing the definition of periglacial area. The law defines the periglacial area in the high mountain as the area with frozen grounds that acts as regulator of water resources and, in the medium and low mountain, as the area that functions as regulator of the water resources, with ice-saturated grounds. That is not a consistent definition, what causes a series of difficulties. On the other hand, section 6 clearly and specifically bans mining and oil activity in the glaciers and periglacial areas.”

Saravia Frías pointed out the great controversy caused by the elimination of section 17 of the Glacier Protection Law which stipulated that all mining activities should be halted until an inventory of glaciers was made. The bill including such amendment should have returned to the Chamber of Deputies for approval and fulfillment of usual procedure, a clear flaw in parliamentary procedure.

Another controversy arises from the confrontation that exists between the Nation against the primary right of the provinces that form the Argentine Republic and the regulation of its natural resources. In this respect, it’s important to define what is to protect a legally protected right and how to protect it.

The law appears to be against the Constitution, according to Carlos Saravia Frías, it is unfair and discriminatory because it infringes the right and principle of equality before the law, particularly the right to work and invest. There are two possible solutions: to maximize it through legal actions to declare it null and void on account of being unconstitutional and to mediate in the regulations to narrow down the definition of the term periglacial.

Any of these different solutions will have to be evaluated in accordance with the social and political interests of the actions to be carried out. Therefore, Saravia Frías recommends acting with one accord and in a coordinated way to achieve the common and superior good for the Argentine Republic.

Julio Ríos Gómez, president of GEMERA, pointed out that, “the aim was to protect water reserves and, from that point of view, a fallacy was taken as a starting point because it was said that in Argentina the 70% of freshwater in streams and rivers comes from glaciers, and there’s nothing more fallacious than that, and it arises from a political bias. In fact, 90% of the water used in the heaviest populated areas in Argentina comes from underground basins and from the north of the country, and not from glacial origin. Based on this fallacious reasoning, the Glacier Protection Law is passed in 2008. Then, the bill is submitted to reconsideration, known as Bonasso, which had and has a series of legal and technical controversies. No country renounces or renounced voluntarily to the rational exploitation of its natural resources, no one has done it before, why would we do it now?”

Likewise, from Ríos Gómez’s lecture it can be concluded that the difficulties associated with the implementation of this law arise from the lack of an inventory of glaciers in the Argentine Republic, inventory that would take, according to the authorities, from six to seven years. In general, the south of Argentina would be in a more delicate position for mining development, while in other areas, particularly the central plateau, companies should add to their costs the hydrous and hydrological studies which enable them to act in observance of the current regulations. Lastly, companies must adopt, in accordance with the rule of law, the appropriate regulations and legal actions to look for a definition and extend the possibility of mining work.

The suspension of the law in the province of San Juan sets a precedent for other provinces and makes it clear that the debate will continue.

Have a look at San Juan's ruling - only in Spanish >>


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