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"The Barrick case: The constitutionality of the Glacier Law, the distribution of
constitutional powers in environmental matters and the ownership of provincial
natural resources."

1. BACKGROUND
The Court intervened in the request made by the mining companies Barrick
Exploraciones Argentinas S.A and Exploraciones Mineras Argentinas S.A. Said
companies requested the unconstitutionality of Law 26,639 "Glacier Law" because
the challenged law would cause concrete damage to their rights to exploit natural
resources. Subsequently, the Province of San Juan was presented as a litisconsorte
arguing its right in the original domain of its natural resources on the basis of arts. 41
and 124 of the National Constitution.
The selected ruling is of great importance because it discusses and resolves the
constitutionality of Law No. 26,639 “Minimum Budget Regime for the Preservation
of Glaciers and the Periglacial Environment”.
The concessionaires of the “Pascua Lama” mining undertaking, initiated a
declaratory action before the Federal Court of San Juan and requested that the
unconstitutionality of articles 2, 3, 5, 6, 7 be declared null and void, and as a subsidy.
and 15 of Law No. 26,639. The Province of San Juan later requested to intervene as
an active consortium, coinciding with the request of the concessionaires and
questioned the legislative procedure that led to the enactment of the Glacier Law and
proposed that art. 177 of the Regulations of the Chamber of Senators, for deleting an
article that the Chamber of Deputies had added in its capacity as a reviewing
Chamber.
Barrick Exploraciones Argentinas S.A and Exploraciones Mineras Argentinas S.A
filed a declaratory action before the Federal Court of San Juan, which first ruled the
suspension of the application of arts. of the Glacier Law. Subsequently, at the request
of the Province of San Juan as an active co-judge, the magistrate accepted the
intervention of the province and declared himself incompetent, and ordered the
transfer of the proceedings to this Court in order to continue with their proceedings
before the instance. provided for in article 117 of the National Constitution.
This is how the Supreme Court of Justice of the Nation declares its original
jurisdiction, through the original instance provided for in articles 116 and 117 of the
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National Constitution, ordered the transfer of the claim to the National State and
revoked the precautionary measure issued by the federal judge

2. ANALYSIS.
Environmental law always has a preventive and protective purpose of the
environment, so much so that the Constitution, by mandate of the provinces,
authorizes the Nation to dictate the laws of minimum environmental budgets that
must not violate the provincial jurisdictions. Therefore, it must be understood that
our country has a wide range of possibilities in terms of environmental protection.
Thus, the arts. 41 and 124 of the National Constitution, which are totally
complementary and do not authorize either the provinces or the Nation to destroy
their resources.
Regarding the Glacier Law, the national regulation seeks the minimum and essential
protection that must be given to these ecosystems that are so important for the lives
of people and other species.
The provinces, having the power to legislate complementary laws to the minimum
budget laws, and their own environmental legislation, could even establish more
restrictions than those established in the National Law. To this end, the provinces
must also regulate open-pit mining, which, as is known, many Argentine provinces
are prohibiting it, thus the province of Córdoba through Law No. 9526.

3. CONCLUSION.
The present ruling of the National Supreme Court, although it was limited to rejecting
the lawsuit filed by the mining concessionaires, provides a solid doctrine on the
interpretation of the distribution of powers in environmental matters when there are
questions from the provinces about the minimum environmental budgets regulated
by the Nation, in compliance with art. 41 of the Constitution. The magistrates
maintained the transversal importance of the Nation and the provinces, in order to
comply with the federal environmental clause regulated in art. 41 of the National
Constitution, combine interests and maintain a constructive dialogue. As well as that
before seeking the confrontation of the mandates of articles 41 and 124 of the
National Constitution, they must be interpreted seeking to adapt the management of
natural resources to fulfill in the most reliable way possible a mechanism of concerted
federalism that established the 1994 reformer constituent.