This chapter is taken from Lexology GTDT’s Practice Guide to Mining, examining key themes topical to the international mining community.
This chapter is about Argentina’s National Glacier Law, its impact on mining operations and subsequent developments.
Argentina is a federal country.2 Provinces (i) retain all powers not expressly delegated to the federal government in the National Constitution (the Constitution),3 (ii) are the original owners of the natural resources located within their respective territories, (iii) are in charge of applying the federal Mining Code and (iiii) can enact their own local environmental legislation, respecting the basic environmental standards set forth by the federal government, which in turn should never alter the powers retained by the provinces (eg, the power to conduct environmental evaluations of activities to be conducted in the provincial territories).
Among the powers delegated by the provinces to the federal government, the following two (in connection with the subject matter) can be found: (i) enactment of the federal Mining Code,4 which is applicable in all Argentine territory, and (ii) enactment of minimum environmental standards legislation applicable nationwide to all activities, which all provinces must respect when enacting their own environmental local regulations.5
A series of minimum environmental standards regulations started to be approved by the National Congress (Congress) after the latest amendment to the Constitution in 1994. The first relevant environmental regulation of this kind was the inclusion in 1995 of an environmental chapter in the federal Mining Code, setting forth environmental obligations to be fulfilled by mining projects of all kinds.6
In 2002, Congress enacted the main minimum environmental standards legislation, Law No. 25,675,7 also known as the General Environmental Law, which is applicable nationwide to all activities, including mining.8 Among other important topics, this Law sets forth a series of provisions that are challenging for the mining industry to adopt, such as mandatory public consultation and mandatory environmental insurance for certain activities exceeding a specific environmental risk level.
In the above-mentioned constitutional context, Congress approved in October 2010 a new minimum environmental standards regulation, specifically regulating the minimum environmental protection standards for the preservation of glacial and periglacial zones (the National Glacier Law, No. 26,639).9 Until the enactment of this Law, protection of glacial and periglacial zones was subject to the General Environmental Law.
Some history preceding the National Glacier Law
The National Glacier Law was preceded by a strong political discussion mainly driven by environmentalists, anti-mining NGOs and some politicians, with a serious lack of technical, legal and factual analysis. As part of this political discussion, a previous bill regulating the minimum environmental protection standards for the preservation of glacial and periglacial zones was approved by Congress but vetoed by the President in 2008.
The discussion on the need for a law protecting glaciers was triggered by a fictional scenario fostered by environmentalists and anti-mining NGOs supported by certain political sectors, arguing the following, among other things:
- that without a glacier protection law, glaciers remain unprotected;10
- that the mining industry wanted to develop projects on and over covered and uncovered glaciers, which is irreconcilable with the protection thereof;11
- that without a prohibitory law on glacier protection, mining activity would be automatically permitted;12 and
- glaciers are melting owing to mining.13
On 22 October 2008, Congress approved the first bill on minimum requirements for the protection of glaciers and the periglacial environment, as a law setting up minimum environmental requirements or standards applicable nationwide in connection with them.14
This bill was vetoed by the President (Veto Decree No. 1837/2008)15 on the following grounds:
- the establishment of minimum standards may not be limited to an absolute prohibition of activities but, on the contrary, will lay down minimum standards to be followed by the provinces, although the provinces may establish stricter standards according to their special environmental condition;
- even without a glacier protection law, before authorising any activity and the implementation of any investment it is necessary to ascertain, at a provincial level, the feasibility and technical and environmental viability of such investment. Thus, authorisation shall be granted only in respect of activities that imply or entail the possibility of being carried out within the framework of sustainable development with due care for the environment;
- the prohibition of the activities described in the bill, if it comes into effect, may impair the economic development of the provinces involved, and hinder the performance of any kind of activity or work in the Andean areas.16 The prohibition against mining, or oil exploration and exploitation activities, including those carried out in the periglacial environment saturated with ice, will cause environmental aspects to prevail over activities that may be authorised and conducted with due care for the environment;
- in view of the fact that the General Environmental Law provides for an environmental impact assessment system before authorising any work or activity capable of degrading the environment, the prohibition contained in the bill proves excessive, and cannot validly form part of a minimum environmental standard;
- the bill, upon subjecting any activity in progress to a new environmental audit – the outcome of which may derive in the relocation or discontinuance of the activity – fails to take into account that any activity currently in progress in the provinces involved has undergone and obtained the relevant environmental assessments and authorisations before being started, and is permanently monitored by the provincial environmental authorities; and
- the activities prohibited under the bill and the undertaking of an environmental audit on activities in progress do not contemplate that the provinces involved, through their current institutions and national and local regulations, have in place enough control mechanisms to evaluate and authorise infrastructure, industrial, mining, hydrocarbon and other activities in full harmony and balance with due care for the environment.
Following an invitation made by the President in the Veto Decree, several Argentine provinces issued their own glacier protection laws:17
- Santa Cruz: Law No. 3,123 (2009);18
- San Juan: Law No. 8,144 (2010);19
- Salta: Law No. 7,625 (2010);20
- La Rioja: Law No. 8,733 (2010); and
- Jujuy: Law 5647 (2010).21
Such provincial glacier laws did not establish prohibitions but more stringent evaluation processes.
Two years after the 2008 bill was vetoed, the National Glacier Law was enacted and is currently in force. The National Glacier Law is almost identical to the 2008 bill. Accordingly, all criticisms made in the Veto Decree (which evidenced the unconstitutionality of the 2008 bill) are completely applicable to the National Glacier Law.
The current regime
The National Glacier Law
In September 2010, the National Glacier Law was approved by Congress, and was factually enacted and published in the Official Gazette in October 2010. The main features of the National Glacier Law are the following:
- Minimum standards for the protection of glaciers and periglacial environments are established, with the aim of preserving them as strategic reserves of water resources for human consumption; for agriculture and as water suppliers for the hydrographic basins recharge; for biodiversity protection; as a source of scientific information; and as a tourist attraction. Glaciers are public goods.
- ‘Glacier’ is defined as any mass of perennial ice resting on land or flowing slowly, with or without interstitial water, formed by the recrystallisation of snow, located in different ecosystems, regardless of its form, dimension and conservation state. Rock debris and internal and superficial water courses are a constituent part of each glacier. Likewise, the ‘periglacial environment’ in the high mountains is the area with frozen soils acting as a regulator of the water resource, and the ‘periglacial environment’ in the mid and low mountains is the area acting as the regulator of water resources with soils saturated with ice.
- A National Inventory of Glaciers was created (the Inventory), where all glaciers and periglacial geological formations (geoforms) acting as water resources existing in the national territory shall be individualised, with all the necessary information for their adequate protection, control and monitoring. Responsibility for the Inventory was allocated to the Argentine Institute of Nivology, Glaciology and Environmental Sciences (IANIGLA) with the coordination of the national law enforcement authority.
- The following activities are prohibited on the glaciers: activities that may affect their natural conditions or the functions pointed out above, and activities involving their destruction or transport, or interfering with their progress. Particularly, the following activities are prohibited (the Prohibited Activities):22
- the release, dispersion or disposition of polluting substances or elements, chemical products or waste of any nature or volume. Said restrictions are also applicable to those activities carried out in the periglacial environment;
- the construction of architectural or infrastructure works, except for those necessary for scientific investigations and risk prevention;
- mining and hydrocarbon exploration and exploitation. Said restrictions are also applicable to those activities carried out in the periglacial environment; and
- the installation of industries, or the development of industrial works or activities.
- IANIGLA was instructed to perform the Inventory immediately in those areas that are considered a priority owing to the existence of Prohibited Activities. All competent authorities were instructed to provide the relevant information required by IANIGLA for such purposes.
- All activities projected on glaciers and periglacial environments that are not prohibited are subject to an environmental impact assessment and strategic environmental assessment process.23
- Activities subject to prohibition that were already in existence at the time of the enactment of the National Glacier Law must undergo, irrespective of the already obtained environmental permit, a new environmental audit (environmental re-evaluation) to determine impacts on glaciers and periglacial environments. In the event that a significant impact on glaciers or periglacial environments is verified, the authorities are instructed to establish the relevant measures in order to comply with the Glaciers Protection Law, having the power to order the termination or relocation, or both, of activities, as well as all necessary clean-up, protection and restoration measures.24
In summary, the system of the National Glacier Law for activities subject to prohibition is as follows:
- new activities (those initiated after the National Glacier Law enactment) are subject to the prohibition and exclusion of the possibility of an environmental impact evaluation by provincial authorities; and
- ongoing activities (those that would fall under the National Glacier Law prohibition but were already in existence at the time of the National Glacier Law enactment) had to be subject to a new environmental re-evaluation irrespective of the environmental permit already obtained. Under the precautionary principle established by the General Environmental Law, NGO’s argued that such ongoing activities should be suspended until an environmental re-evaluation was successfully carried out.
In addition to the prohibition included under National Glacier Law being an excessive protectionist measure and the exclusion of certain activities to access the environmental impact evaluation process (affecting the provincial non-delegated power to conduct environmental impact evaluations in their own territories), one of the issues strongly criticised was related to the geographic extension of the prohibition (only glacial geoforms with relevant water functions or all periglacial environments – which is a much broader concept). The arguments of anti-miners extend the scope of the prohibition (by using the periglacial environmental concept) to practically all the Argentine Andes; the mining industry focused on the interpretation that the protection should apply to glacial geoforms with water functions (ie, geoforms within the glacial and periglacial environments as inventoried by IANIGLA, but not all periglacial environments).25
In the context of such discussion, IANIGLA completed the Inventory, which was performed based on international scientific criteria, and reviewed and approved by IANIGLA and the federal environmental authority. IANIGLA adopted the criteria where only geoforms with relevant water functions should be included in the Inventory as protected geoforms and not all periglacial environments, which do not necessarily have relevant water functions. Following international criteria, for IANIGLA, only the uncovered, covered and rock glaciers with a life exceeding two consecutive years and extending at least 1 hectare, could potentially have relevant water functions.
For the purposes of implementing the National Glacier Law, and mainly for the elaboration of the Inventory, additional regulations were approved. National Executive Order No. 207/1126 stated that, among other purposes, the Inventory was ‘to define the kind and level of detail necessary so that the glaciological and geocryological information obtained can enable the correct management of the strategic reserves of water resources’.27
Following such regulation, IANIGLA and the National Scientific and Technical Research Council (CONICET) prepared a document called ‘National Inventory of Glaciers and Periglacial Environment: Reasons and Implementation Schedule’28 (the Inventory’s Reasons and Implementation Schedule), which contains the objectives, background, monitoring strategy, methods, estimated costs and completion time of the Inventory.
This document stated as follows:29
- The Inventory’s main objective is the identification, characterisation and monitoring of all glaciers and cryoforms acting as strategic water reserves in the national territory.
- For the specific and operative purposes of the Inventory, IANIGLA proposed specific definitions and a minimum size of the bodies to be inventoried inside Argentina’s glacial and periglacial environments.
- When defining the term ‘glacier’, the document states that it is a permanent ice body originated on land, visible for at least a period of two years, with (or without) evidence of movement owing to gravity (cracks, ogives, medial moraines), and of a surface greater than or equal to 0.01km2 (1 hectare – a minimum surface that is also applicable to ‘rock glaciers’).
- A strategic water reserve is a strategic natural resource, which is a very scarce resource currently and potentially vital for the development of human activity and for the maintenance of a nation’s quality of life. When referring to water resources, in particular to solid-state water reserves, a ‘strategic reserve’ refers to the long-term capacity for regulation – that is to say, the water accumulation in prosperous years and its release in years of shortage.
- ‘Perennial ice’ is water in solid state, formed by snow compaction. To be able to consider it perennial, the ice must stay in the same place for two or more years.
In 2014, IANIGLA prepared the ‘Handbook for the Preparation of the National Inventory of Glaciers’ (the Handbook). According to the Handbook, it had the aim of providing a ‘detailed methodological guide for those technicians and professionals in charge of the preparation of the National Inventory of Glaciers’.
As the Handbook reveals, the geological formations that could have a water function in glacial and periglacial environments are uncovered glaciers,30 snow patches or glacierets,31 covered glaciers32 and rock glaciers.33 When detailing each of the inventoried geological formations, the Handbook adopted the minimum size of 0.01km2 (1 hectare), as it was proposed in the Inventory’s Reasons and Implementation Schedule.34
The aforementioned criteria were approved by the national environmental authority through Executive Order No. 1141/2015,35 which approved the ‘Administrative Procedure for document and data management of the National Inventory of Glaciers’ for document and data management of the Inventory. This Executive Order established that IANIGLA shall make the Inventory and a ‘single procedure for the technical validation of the National Inventory of Glaciers’ pursuant to the methodology established in the Inventory’s Reasons and Implementation Schedule, which stated that the national enforcement authority does not validate IANIGLA’s inventories as regards their specific technical content, since it has not been formally conferred said power. The validation is the verification of compliance with the above-mentioned documents, which have the criteria approved by the enforcement authority.
This Executive Order further refers to IANIGLA’s Handbook stating that the minimum area of uncovered ice to be inventoried is 0.01km2, and that it is necessary to verify that each inventory clarifies the criterion adopted regarding this matter. This Executive Order constituted the approval of IANIGLA’s criteria by the national environmental authority, and imposed on IANIGLA the responsibility of respecting said criteria.
A full copy of additional regulations related to the National Glacier Law36 and the Inventory37 are available online on the official web page: www.glaciaresargentinos.gob.ar.
As explained, IANIGLA adopted the criteria of 0.01km2 as a minimum size for including ice bodies in the Inventory. Pursuant to Executive Order No. 1141/2015, the adopted criterion coincides with the general guidelines of the World Glacier Monitoring Service (WGMS)38 and the International Permafrost Association (IPA).39 The criteria used by IANIGLA for the elaboration of the Inventory is consistent with the criteria used internationally for similar works, and has solid scientific grounds.40
The ‘Recommendations for the compilation of glacier inventory data from digital sources’ (the Recommendations)41 – prepared by different authors who are members of the WGMS and the National Snow and Ice Data Center (NSIDC),42 published by the International Glaciological Society in the Annals of Glaciology in 200943 – offer an explanation as to why the WGMS decided to adopt the criterion of 1 hectare as a minimum to inventory glaciers.44
In other cases, inventories have been made using similar or even less strict criteria:
- Alaska: 0.025km2 (or 2.5 hectares) and 0.02km2 (or 2 hectares);
- Canada: 0.05km2 (or 5 hectares);
- Norte Chico, Chile: 0.01km2 (or 1 hectare);
- France: 0.01km2 (or 1 hectare);
- Norway: 0.01km2 (or 1 hectare);
- Peru: 0.01km2 (or 1 hectare); and
- Switzerland: 0.1km2 (or 10 hectares).
Based on the above, it is reasonable to argue that the 0.01km2 criteria used by IANIGLA is within the international scientific standard, and it even has a similar or greater degree of detail than some of the inventories prepared in countries with a long tradition in glacier studies, and that have already completed several national inventories, such as Switzerland and Canada. As it can be observed, among the international requirements commonly used, IANIGLA adopted the most inclusive and demanding.45
The current situation
It is very clear that the National Glacier Law was aimed, by some groups that fostered it, to prohibit mining rather than protect geological formations with a water function. After the issuance of the National Glacier Law, environmentalists and anti-mining NGOs made efforts to suspend the operation of existing mining projects, and prevent the development of new projects.
Several mining companies challenged the constitutionality of the National Glacier Law. Many of these challenges are currently waiting to be decided by the National Supreme Court.
Also, under the initiative of anti-mining NGOs (which aimed to prohibit mining in all of the periglacial environment), criminal action was started against former officers of the national government who were in charge of performing the Inventory, (including the former head of IANIGLA, Dr Ricardo Villalba),46 under the accusation of a lack of fulfilment of their duties, alleging that by further regulating the National Glacier Law, together with the Inventory (which adopted the 0.01km2 criteria defined by IANIGLA) the National Glacier Law protection scope was reduced.47 Dr Villalba is currently under indictment for this accusation.
The scientific community has been very clear in rejecting the indictment, which had international repercussions. According to an interview (published online)48 with Mr Bruce Raup, a glaciologist at the NSIDC in Boulder, Colorado, the persecution of IANIGLA’s scientists ‘is surreal and kind of ridiculous’, since many scientists set a minimum glacier size of 1 hectare to reduce the risk of incorrectly counting ephemeral snow and ice.
More than 130 scientists of different institutions worldwide published a ‘Letter of Support for Dr Ricardo Villalba in his capacity as former Director of the Argentine Institute of Snow and Glaciers (IANIGLA) and of the National Glacier Inventory of Argentina’.49
In such letter, the signatories explained as follows:
the methodology of mapping glaciers implemented in the National Glacier Inventory unquestionably met the international norms and standards for glacier mapping. The methodology applied in the National Glacier Inventory was approved by: 1) the Presidency of CONICET, 2) the Ministry of Science, Technology, and Productive Innovation, 3) the Secretariat of the Environment and Sustainable Environment, and 4) the Cabinet Chief of Ministers of the Nation of Argentina. The National Glacier Inventory and the methodologies used to derive it follow the best practices and the recommendations from the international glaciological community. These methodologies are in line with the recommendations made by Global Land Ice Measurement from Space (GLIMS) . . . Specifically, the application of a minimum area threshold for inclusion of glaciers is a mandatory scientific practice. The 0.01km2 (1 hectare) minimum value used in the National Glacier Inventory is smaller (ie, a higher standard) than the one used in many others scientific studies of glaciers.
Despite the efforts made by the scientific community, the mining industry and some public officers at the national and provincial level, federal courts have been reluctant to make a reasonable, scientific, professional and grounded analysis of the National Glacier Law and of the Inventory, and of the real scope of protection established by the National Glacier Law. Political interests continue to distort the discussion, with the outcome of persons being unjustifiably indicted and legal uncertainty being maintained, preventing mining and infrastructure projects from being developed under a uniform criteria and understanding of the National Glacier Law’s protection scope.
The discussion around the right National Glacier Law interpretation and scope is not over.
The unsustainability of the aforementioned situation, the lack of logic and reasonability of the position of environmentalists and anti-mining NGOs, and the need for economic and social development in areas with predominant dependency on mining activity – mainly located near the Andes and in areas with high levels of poverty – led some public national and provincial authorities, the mining industry and part of the scientific community to push for a reasonable interpretation of the National Glacier Law and a more definitive and clear solution. The federal government is analysing the possibilities and available tools to legally clarify that mining activity can be carried out in a sustainable way in glacial and periglacial environments, provided that geoforms subject to protection under the National Glacier Law (under a reasonable and scientific interpretation of the scope of protection (ie, glacial geoforms with relevant water functions)) are not affected, and that all permits, including those of an environmental nature, are duly obtained.50
Solid arguments have been raised to support this position, including:
- the literal language of the National Glacier Law;
- the reasonable interpretation of the National Glacier Law (avoiding an absurd interpretation that would lead to believing that the National Glacier Law wanted to protect the periglacial environment without protecting the glacial environment);
- Congress debates about the National Glacier Law;
- IANIGLA’s criteria for preparing the Inventory, matching international criteria; and
- regulatory Executive Order No. 1141/2015 of the National Glacier Law.
We briefly explain these arguments below.
The literal language of the National Glacier Law
In the language of the National Glacier Law it is clear that the geological formations in glacial environments, and geological formations in periglacial environments with water functions, are the Inventory’s purpose and the interest protected by the National Glacier Law and, thus, it is referring to the covered and uncovered glaciers in the glacial environment, and rock glaciers with water functions in the periglacial environment. The geological formations of less than 1 hectare were not included because they do not have water functions.
If the periglacial environment had been the interest protected by the National Glacier Law, IANIGLA would have been ordered to map the environment without the need of an inventory of protected geological formations.51
Reasonable interpretation of the National Glacier Law
Avoiding an absurd conclusion
The National Glacier Law simply refers to glaciers and periglacial environments but never to the glacial environment. It would be absurd to claim or interpret that the National Glacier Law only protects (i) the geological formations with water functions in the glacial environment and (ii) the periglacial environment itself. It is as absurd as claiming that the National Glacier Law only wanted to protect the geological formations with water functions in the glacial environment on one hand, and the whole periglacial environment on the other hand, leaving the glacial environment without protection.
If the National Glacier Law had wanted to protect the periglacial environment itself, and dissociated from the water functions referred to in the National Glacier Law, it would have included the glacial environment itself as a protected interest, but it did not.
During Congress debates preceding the issuance of the National Glacier Law, in a speech before the Committee on Environment and Sustainable Development of the Senate, the following was said as regards Dr Ricardo Villalba:
In what we consider the most sincere expression of the real problem existing as regards this law, Mr Villalba explains that he is deeply hurt by the fact the Glacier Law is used to prevent mining activities, because glaciers play an essential role and they must be protected as a water resource. It is sad that the political spirit of preserving glaciers is changed to the mining activities.
In such context, Dr Villalba argued before the aforementioned Committee that the concept of the periglacial environment should be limited only to those geological formations that ‘serve as strategic reserves of water resources’, and that ‘inside periglacial environment, as regards the rock glacier that is precisely where the water reserve is located . . . we are not going to protect a soil that is frozen and thawed periodically and which does not even have a morphology pertaining to a periglacial environment, because it has no importance and it is not a regulator’. Moreover, Dr Villalba added that ‘if we have to regulate it . . . we will end up protecting those strategic reserves of water resources . . . and inside periglacial environmental, the rock glacier, which is precisely the environment rich in water where the water reserve is located’.
IANIGLA’s criteria for preparing the Inventory, matching international criteria
IANIGLA’s criteria for preparing the Inventory, aligned with international criteria in the subject matter, was as follows:
- all glaciers and periglacial geological formations acting as water resources existing in the country shall be individualised in the Inventory, with all the necessary information for their adequate protection, control and monitoring;
- the Inventory’s main objective is the identification of all glaciers and cryoforms (of periglacial environments) acting as strategic water reserves, as well as to determine the hydrologic importance of these ice bodies;
- glaciers and cryoforms acting as water reserves along the Andes have different characteristics, dimensions and forms;
- inside the periglacial environment there are different geological formations, but owing to their ice content, size and morphology, the most important and significant ones are rock glaciers;
- for the specific and operative purposes of the Inventory, specific definitions and a minimum size of the bodies to be inventoried inside Argentina’s glacial and periglacial environment are required;
- strategic solid-state water reserves can be grouped into two large groups: glaciers (covered and uncovered) and rock glaciers;52
- IANIGLA’s definitions coincide with the general guidelines of the WGMS and the IPA;
- in the periglacial environment, there are various geological formations with ice inside. However, rock glaciers are the most important ones as a water reserve because they are supersaturated with ice;
- when speaking of solid-state water reserves, ‘strategic reserve’ refers to the long-term capacity for regulation; and
- apart from rock glaciers, there are different geological formations associated with the periglacial processes and conditions. When these kinds of geological formations reach a size greater than 0.01km2 and show a downslope movement, they can be considered rock glaciers and, thus, they are included in the Inventory.
The above clearly shows that broad scientific work and analysis was made by IANIGLA to define the scope and methodology of the Inventory, in full compliance of the National Glacier Law, all of which was performed following international criteria and standards.
Executive Order No. 1141/2015
As the most clarifying aspect of the National Glacier Law legal framework, the criterion established by Executive Order No. 1141/2015 to implement the Inventory consisted of the identification, mapping and characterisation of glaciers and periglacial geological formations acting as water reserves in the national territory. Therefore, it is clear that the ice bodies to be included in the inventory are only glaciers and those periglacial geological formations acting as water reserves.
This is absolutely important since, in light of the Congress debates, when the periglacial geological formations are linked with the water reserve function, the definition and scope of the protected periglacial geological formations becomes clear, since only these are the ones that have the function of acting as water reserves.
None of the regulations supplementing the National Glacier Law have been formally challenged by environmentalists and anti-mining NGOs, or by the courts persecuting Dr Villalba and other former officers of the national administration for their work related to the Inventory.
Solving the confusion and problems resulting from the distortion of the purpose, meaning and protective scope of the National Glacier Law is a pending issue for the national government, which has identified mining development as one of the pillars of the future of the country’s growth. Mining provinces with territory in the Andes and the mining industry are in need of clarity and legal certainty. The activity of anti-mining NGOs, and part of the judiciary supporting their political agenda, is a real source of concern for those making decisions on mining investments and mining environmental permits.
Different solutions are being explored, which rank from an interpretation decision taken by the National Supreme Court to the enactment of a supplementary law or regulatory executive orders. Implementation of a good solution is still uncertain and will depend on the evolution of the political environment in light of the presidential elections in 2019.