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The proposals of the mining company and the province of San Juan, focused on questioning: a) the legislative procedure for the enactment of Law 26,639 (of Glaciers); b) The unconstitutionality of the aforementioned regulations for advancing on regulatory competences specific to the Province as holder of the original domain of natural resources. The company Barrick and the province of San Juan converged on this last point arguing that the law in question, hypothetically, posed an affront to the possibilities of exploitation by the mining company and management of natural resources by the province.
In view of this situation, the Court analyzed whether the necessary requirements were met for the organ to enter into the analysis of the parties’ claims, that is, if there was a “judicial case” (subject that may be subject to a process). The conclusion reached was that there was no sufficient accredited legal interest, or a so-called “act in the making” (administrative act necessary to consider the existence of a judicial case) that endangers the rights of the parties. He also considered that the lack of completion of the Glacier Inventory (ordered to the Executive Branch by the glaciers law), necessarily implied the inexistence of the “act in the making”, since this inventory was a basic budget for the operation of the attacked law by the parties.
As a consequence of the inexistence of the justiciable case, the Supreme Court held that as regards the conflict between the provincial and national jurisdiction alleged by the province of San Juan, the judicial power should not intervene, while the environmental policy issues should be resolved by the federal dialogue before the intervention of the judges.
However, even though it was not necessary according to the conclusions regarding the inexistence of a justiciable “case”, the ministers of the Court held that the process by which the Glaciers Law had been sanctioned had been valid from the point of view constitutional, according to the background and regulations of the Chamber of Senators.
On the other hand, in a convincing “environmental” message, the Court expressed its opinion regarding the validity of the Glaciers Law, in the face of the arguments that raised its unconstitutionality, thus outlining its position regarding a future “judicial case”. Among some of the arguments offered by the high judicial body, the following can be highlighted:
- The clear rule that when there are rights of collective incidence pertaining to the protection of the environment – in the case of the Law of Glaciers the strategic resource Water – the hypothetical controversy can not be treated as the mere collision of subjective rights (individual lease). The characterization of the environment as a “collective good” changes the focus of the problem, which must not only address the claims of the parties.
- The interests that exceed the bilateral conflict must be considered (in the case between the Province of San Juan and the Barrick mining company against the provisions of the Glaciers Law), in order to have a polycentric vision, since there are numerous rights affected.
- The solution can not only be limited to solving the past, but, and fundamentally, to promoting a solution focused on future sustainability, for which a decision is required that foresees the consequences of such a decision.
- The environment is not according to the National Constitution, an object intended for the exclusive service of man, appropriable according to their needs.
- Access to drinking water is a right that must be regulated under an eco-centric, or systemic legal paradigm, which not only takes into account private or state interests, but also those of the same system, according to the General Environmental Law ( 25,675).
- This vision regarding access to drinking water is relevant as the regulation that protects the glaciers, has as an objective to preserve them as strategic reserves of water resources for human consumption; for agriculture; for the recharge of water basins; for the protection of biodiversity.
- Based on these objectives, the Glaciers Law protects this resource from the harmful effects that certain extractive processes (mining) can have on the preservation and conservation of glaciers. Such protection is part of the provisions of the Paris Agreement on global warming.
- Faced with the provisions of the Law of Glaciers that aim to protect rights of collective incidence, judges must consider that natural and legal persons can certainly be holders of subjective property rights. More must also consider that this individual right must be harmonized with the rights of collective incidence to ensure that the exercise of lawful industry is sustainable.
- The Court concludes that the constitutionality trial of a possible injurious act derived from the glacier law -if a judicial cause is proven- should be analyzed in the context of the weighing of the various rights and property involved.
- Likewise, the Court warns that such weighting will not be possible until the National Executive Power complies with the obligation to draw up the national inventory of glaciers.
In short, the Supreme Court of Justice of the Nation, rejected the action of Barrick Gold and the province of San Juan on the grounds that there was no “judicial case” and did not resolve the substantive claim on the constitutionality or otherwise of the Law of Glaciers. However, in a blunt message, he left his position before an eventual proposal of similar characteristics: Glaciers law, protects a supraindividual environmental good, which, faced with a conflict against an individual right, must be weighted based on criteria of sustainability , Intergenerationality, biodiversity, under an eco-centric or systemic paradigm (not anthropocentric). Between the lines, the Glaciers Law … is constitutional.
- More information:
Juan Bautista Lopez, [email protected]