Mining rights and titleState control over mining rights
To what extent does the state control mining rights in your jurisdiction? Can those rights be granted to private parties and to what extent will they have title to minerals in the ground? Are there large areas where the mining rights are held privately or which belong to the owner of the surface rights? Is there a separate legal regime or process for third parties to obtain mining rights in those areas?
The provinces are the original owners of the natural resources existing within their territories, although they are not allowed to exploit such resources directly. The relevant mining rights are granted by the provinces to third parties by way of a legal concession.
Once a mining concession is granted, the title holder owns all the mineral deposits within the boundaries of the property, whatever the mineral substance contained therein.
Surface landowners do not hold direct rights over the mineral deposits, which may only be obtained by means of a legal concession. Exception is made with regard to certain types of industrial and non-metallic minerals, over which surface landowners have priority rights or exclusivity rights, depending on the type of mineral.Publicly available information and data
What information and data are publicly available to private parties that wish to engage in exploration and other mining activities? Is there an agency which collects mineral assessment reports from private parties? Must private parties file mineral assessment reports? Does the agency or the government conduct geoscience surveys, which become part of the database? Is the database available online?
Law No. 24,466 created the National Database of Geological Information, managed by public entity SEGEMAR, whose mission is to obtain, process and make available to the public all information generated by the geological and geophysical research and exploration activities conducted within Argentinian territory.
The national government and other national entities, as well as the miners’ beneficiaries registered under MIL, are required to periodically supply the database with all the mining and geological information produced, with the exception confidential material.
In recent years, the government has worked towards establishing an open-government policy as an effort to increase transparency in relation to public information. In this respect, recently, the government published a national and provincial database, the Argentine Mining Information Centre (CIMA). This database compiles information on a national and provincial level, among which the following is included:
- applicable legislation;
- unified mining cadastre;
- information regarding MIL registry; and
- current projects specifications.
CIMA currently provides for the mining cadastre of certain provinces (ie, Catamarca, La Rioja, Mendoza, Neuquén, Rio Negro and Santa Cruz), however, more information would begin to be available in such a platform. Additionally, some of the provinces provide mining cadastral maps available online and some others only deliver them upon request by the authorities. Despite this, in practice, and locally, certain information may not be available, updated or publicly accessible.
Key online databases
Province of San Juan
Province of Catamarca
Province of Salta
Province of Jujuy
Province of Rio Negro
Province of Neuquén
What mining rights may private parties acquire? How are these acquired? What obligations does the rights holder have? If exploration or reconnaissance licences are granted, does such tenure give the holder an automatic or preferential right to acquire a mining licence? What are the requirements to convert to a mining licence?
The AMC provides for two types of mining rights - exploration permits and mining concessions, both of which are granted on a first-come, first-served basis.
Exploration permits are exclusive authorisations to explore a certain area during the period and to the extent provided by the AMC. The exploration permit is opposable with regard to third parties, and holders of such will have exclusivity rights to apply for and obtain a mining concession within the area covered by such permit.
Mining concessions grant the title holder the right to conduct further exploration works after a discovery has taken place, and to exploit all mineral deposits within the boundaries of the mine. Mining concessions are not subject to a life term and, therefore, to the extent the title holder does not incur in any of the concession termination events set forth in the AMC, the concession will last until the mineral reserves are exhausted.
The two essential obligations to keep the title of a mining concession in good standing are the payment of an annual mining fee (canon) and to file and comply with an investment plan. Non-compliance with these obligations may provide for the termination of the concession.
To obtain an exploration permit, the miner needs to lodge an application including a minimum work plan, an estimate of the investments to be made and pay a provisional exploration fee. The area shall be free of previous mining rights in force. Mining concessions are granted on mine discoveries (which may or may not have an exploration permit as precedent) and mines that are vacant on account of expired concessions.Renewal and transfer of mineral licences
What is the regime for the renewal and transfer of mineral licences?
Exploration permits are non-renewable, and no person can be granted successive permits over the same area within one year from its expiry.
The transfer of a mining rights title (or change of control) is not subject to governmental approval, although certain formalities may apply (ie, public deed in the case of surveyed mines). Once the title has been assigned, the transfer documents need to be filed with the authority, which registers this in the public registries for publicity purposes with regard to third parties.
Despite this, certain governmental approvals (border security zone, etc) may be required for the transfer (and change of control) with respect to surface lands.Duration of mining rights
What is the typical duration of mining rights?
Mining rights can involve exploration permits and mining concessions. Exploration permits have a limited duration and expire according to the AMC regulations because they are intended to allow for an exclusive area within the mining concession that can be applied for.
Mining concessions do not have a duration or term; they will follow a procedure to become a mine that will be in legal existence until the minerals are exhausted.
Despite this, mining concessions can be revoked if the main conditions to keep them are not fulfilled. These conditions are the annual mining fee payment and the investment. Additionally, a mining concession can eventually be revoked if a mine has been inactive for more than four years in accordance with the terms of section 225 of the AMC.Acquisition by domestic parties versus acquisition by foreign parties
Is there any distinction in law or practice between the mining rights that may be acquired by domestic parties and those that may be acquired by foreign parties?
There is no distinction between the mining rights that may be acquired by domestic or foreign parties. Nevertheless, foreign companies need to register in Argentina as a local vehicle (incorporation of a branch or as a shareholder of a local company) in order to own mining rights or conduct activities that exceed the threshold of an ‘isolated act of commerce’. Also, certain restrictions and prior approvals apply to the acquisition of land by foreign entities.Protection of mining rights
How are mining rights protected? Are foreign arbitration awards in respect of domestic mining disputes freely enforceable in your jurisdiction?
The NC provides for a general and comprehensive protection to property rights, stating that they may not be violated and no inhabitant can be deprived thereof except by virtue of a judgment based on law. Argentina has an independent judicial system organised under the rule of law and the principle of due process. Depending on the issue discussed, the courts with jurisdiction on the matter at hand may be either national or provincial.
With regard to the enforcement of foreign arbitral awards, Argentina is a party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention). Should there be no treaty between Argentina and the relevant jurisdiction, the relevant procedural laws of each province shall apply. For instance, procedural codes usually provide that in order to have an arbitral award recognised and enforced without further discussion of its merits it must comply with different requirements (ie, the arbitral tribunal must have had valid jurisdiction, the dispute may be validly referred to arbitration under Argentinean law or the arbitral award must not violate public policy under Argentinean law).Surface rights
What types of surface rights may mining rights holders request and acquire? How are these rights acquired? Can surface rights holders oppose these requests?
Mining rights form a different property from the land in which the deposits are located, thus, title to the mining rights does not entail title to the surface land.
In light of this, the AMC sets forth certain rights for the holder of a mining right with respect to the owner of the surface land, which comprise:
- right to obtain different kinds of mining easements, such as easement of road, occupation, water use and transport, infrastructure; and
- the right to demand the compulsory sale of the surface land.
Technically, surface rights holders should not be entitled to oppose the request of any easement, since it would be based on the public utility of the mining activity (section 13 of the AMC). They could only challenge the compensation if considered unsuitable. Therefore, the AMC aims to provide all the miners with certain legal tools in order to affect the mining activities on the surface land prior to reaching an agreement with the surface landowner regarding access. Despite this, owing to the complexity of implementing these processes in practical terms, and the associated increasing community issues and social costs, it would be always advisable for both parties to reach an agreement. The analysis needs to be made case by case, although the general trend in Argentina has been to try to reach agreements with the surface land owners whenever possible at a reasonable basis.
Also, where the surface land is state-owned, miners have the right to access this land and use it without the need to pay any monetary compensation.Participation of government and state agencies
Does the government or do state agencies have the right to participate in mining projects? Is there a local listing requirement for the project company?
The AMC restricts - as a general rule - the government’s ability to exploit mining rights, although this restriction is not applicable to state-owned entities.
The AMC allows governments (or their state-owned entities) to conduct exploration works within their territory without the need of obtaining a prior permit, and have exclusive areas of special interest for mining prospecting purposes. In these cases, the AMC allows private parties to participate in these areas of interest by public tender. The successful bidder of an area may apply for one or more exploration permits or mining concessions within that area, which are to be governed by the general provisions of the AMC, notwithstanding any such further obligation that may be applicable in accordance with the tender rules.
However, to increase the share of mining profits, provincial state-owned mining entities have, for some time, shown more interest in participating in mining projects developed by private companies. A trend along this line is with new joint ventures and associations started a couple of years ago, which may still continue based on the fact that profits of the projects need to be better allocated or shared with the public, whose purpose may not necessarily be fulfilled by this structure.
To this end, there are many examples of interaction and partnerships of private companies with state-owned companies at provincial levels. These arrangements have been structured in different ways. Fomicruz (the province of Santa Cruz state owned mining company) is a 7 per cent shareholder of Cerro Vanguardia SA, holder of a gold and copper project in the province and has already been in production as of 1997. In the case of the Bajo de la Alumbrera gold and copper deposit located in the province of Catamarca, the mining rights are owned by YMAD, a state-owned company by the province of Catamarca and the National University of Tucuman, and there has been an exploitation agreement in place already for 20 years as one of the key pieces in the legal structure of this project.
In the case of the province of Jujuy, JEMSE would be interested in participate in lithium projects as is already the case for the Sales de Jujuy project in partnership with Orocobre. The by-laws of JEMSE allow, in general, for partnerships that could be structured legally in different ways. In the Sales de Jujuy project, JEMSE holds 8.5 per cent of the company’s shares.Government expropriation of licences
Are there provisions in law dealing with government expropriation of licences? What are the compensation provisions?
The NC provides that expropriation for reasons of public interest must be necessarily established by law and previously indemnified. This constitutional guarantee applies to all significant interests that a human being or a legal entity can possess (including mining rights). Furthermore, section 16 of the AMC provides that mines might be expropriated only for reasons of public interest of a higher level than the privilege recognised to them under section 13 of the AMC, which states that the exploration, exploitation and concession of mines have the status of public benefit.
Law No. 21,499 regulates the procedure applicable to expropriations decided at the national level. According to this regulation, the indemnification for the expropriation only comprises the objective value of the asset or right and those damages that are a direct and immediate consequence of it. If no settlement agreement is reached on the value of the expropriated property, the matter shall be decided by a judicial court. Provinces have their own expropriation rules, in line with the national ones.
There are no specific rules for valuation and indemnification of expropriated mining rights.Protected areas
Are any areas designated as protected areas within your jurisdiction and which are off-limits or specially regulated?
National Parks Law No. 22,351 prohibits the performing of any kind of economic activity (except tourism) within certain protected areas located in the Argentinian territory. Mining activities are specifically prohibited therein, as well as in the establishment of industrial sites. Note also that there are many areas considered ‘protected areas’ or ‘reserve areas’ regulated locally within the boundaries of each province that may allow activities or restrict them in some way (including mining activities); this is a matter that requires a case-by-case analysis. An example is the reserve area of Los Andes in the province of Salta that comprises quite a number of projects including lithium projects. It’s important to note that on 3 August 2018, the Secretariat of Environment of the province of Salta enacted Resolution 428/18 approving the Management and Development Plan for the Los Andes Reserve which, in general terms, categorises the zones in which certain activities shall be restricted or prohibited.
In addition, National Law No. 26,639 on Minimum Standards for the Preservation of Glaciers and Periglacial Environments establishes a general prohibition rule that bans the development of all those activities that negatively affect the natural condition of glaciers, involving destruction, removal or interference with their progress. Mining exploration and exploitation activities are specifically prohibited. No further development has been made in relation to the execution of the national inventory of glaciers because only stage 1 has been published; stages 2 and 3 are pending completion.
Special reference must be made to Law No. 3,105 of the province of Santa Cruz, enacted in 2009, which created an area of special mining interest (within which it is allowed to conduct mining activities). The law also identifies certain areas that are excluded from the Area of Special Mining Interest Law.