Administrative

The Supreme Court rejected lawsuits regarding unconstitutionality of Glaciers Law

Within the framework of lawsuit ‘‘Barrick Exploraciones Argentinas S.A. y otro c/ Estado Nacional s/ acción declarativa de inconstitucionalidad’’, on July 4th° 2019, the Supreme Court of Justice rejected the legal actions filed by Barrick Exploraciones Argentinas S.A., Exploraciones Mineras Argentinas S.A. (both concessionaires of the Pascua Lama mining project) and by San Juan Province aiming to obtain the declaration of nullity or the unconstitutionality of certain provisions of Law 26.639, that rules the ‘’Minimum Premises Regimen for the Preservation of Glaciers and the Periglacial Environment’’ (The ‘’Glaciers Law’’).


The plaintiff challenged the legislative procedure in which the Glaciers Law had been approved - which motivated the nullity claim- and, for the case of its rejection, an unconstitutionality claim regarding articles 2° (‘’definition’’), 3° (‘’inventory’’), 4° (‘’inventory doing’’), 6° (‘’forbidden activities’’), 7° (‘’environmental impact evaluation’’), and 15° (transitory provision on inventory preparation). Additionally, San Juan Province also claimed the unconstitutionality of articles 9° (‘’application authority) and 10° (‘’functions’’).

The plaintiffs’ unconstitutionality claim was grounded in the following arguments (i) the Glacier Law not only ruled the minimum premises for the environment protection in terms of glaciers but also the totality of the matter, without leaving any room for local legislation; which resulted in an excess in the exercise of federal competence for the regulation of minimum premises and, in consequence, a violation of the original domain of the San Juan Province over the natural recourses located in its territory (Art. 124 of the National Constitution), (ii) the Glacier Law collided with the Mining Integrity and Complementation Treaty celebrated with the Republic of Chile, which is a norm of superior legal hierarchy, and (iii) violated its acquired right to the mining exploration and exploitation  granted by articles 14th and 17th of the National Constitution. 

In its ruling the Supreme Court declared as inadmissible the claim initiated by Barrick Exploraciones Argentinas S.A. and Exporaciones Mineras Argentinas S.A. since considered that the plaintiff did not demonstrate that the Glacier Law caused them any discernible grievance regarding an issue that can be decided by a court of law. In relation to the legislative procedure the Court considered that the violation of due legislative process was not an issue that can be decided by a court of law, unless is proved a breach of the minimum and essential constitutional requirements for their pass; not having been accredited in the case such beach. Additionally, neither was considered accredited the existence of a grievance caused by an ‘’initial act’’, neither respect the objection of the legislative procedure nor the application of the law. 

Finally, the maximum Court appreciated that the approach of San Juan Province also had not overcome that threshold, as it did not individualize any ‘’initial act’’ issued by the National Government sustained on the Glaciers Law which would have affected their provincial prerogatives. 
Despite the Supreme Court did not treated the substantive matters of the case, the majority vote included some general considerations about how judges should decide cases were individual rights collide with collective rights, understanding that in that type of controversies the solution not only should consider the parties’ claims but also should promote a solution with focus in the future sustainability of the collective goods involved.


For further information on this topic please contact María Morena Del Río and Martín A. Prieto