Treaty of Mining Integration and Complementation between

Argentina and Chile. Analysis in relation to the natural resources

Center for Environmental Studies - Engineering Faculty - University of Buenos Aires - Argentina

ABSTRACT
The Treaty of Mining Integration and Complementation between Argentina and the Republic of Chile
labor, among other, andthe utilization of water resources along the entire Andean border.

encompassesthe integrated exploitation of shared deposits, facilitates border in issues related to customs, taxes,

Previous agreements, on which the Treaty is based, explicitly focused on the need to harmonize the utilization of binational natural resources with the protection of the environment. However, the Treaty signed does not follow the
same explicit emphasis on the protection of water resources and glaciers; on the other hand, it prioritizes and favors the mining business and does not explicitly stress the need of conducting EIAs or SEAs as requirements to any
kind of exploitation.
In order to carry out large-scale mining operations,water resources become of paramount importance, a fact that drives conflicts with the Argentinian law of Minimum Standards for the Preservation of Glaciers and Periglacial
Environment and its requirements of EIA and SEA.

INTRODUCTION
In its first article the Treaty expresses that it becomes a legal framework that will govern the mining business within its enforcement area and will regulate investors of both parties participating in the mining integration activities.

REGULATORY FRAMEWORK
The Act of Santiago on Watersheds. Dated: 06/26/1971.
The Treaty of Environment. Dated08/02/1991.
Specific Additional Protocol on Shared Water Resources, of the previous Treaty.

Specific Additional Protocol of the Treaty for Mining Project "Pascua Lama".Dated: 08/13/2004.
At the national level, since the sanction of the Investment Regime of Mining Activities there was a succession of favorable laws for such
investment until the subsequent release of the National Mining Plan in 2004.
Finally, in 2010 and after many disputes in the National Congress, the Law on Minimum Standards for the Preservation of Glaciers and
Periglacial Environmentwas sanctioned.

TREATY AREA (ENFORCEMENT AREA)

It is the area defined by linking the geographical coordinates listed in Annex I to the
Treaty and designed in the figure of Annex II.
Characteristics of major open pit projects directly related to the Treaty, in the
Province of San Juan. Two are of binational nature and one (Veladero) only in
Argentina.
The world-class mining project "Pascua-Lama", includes geological prospecting and
exploitation of mining concessions located in the Area of
on both sides
of the border between Argentina and Chile. Project implementation in the
Argentinean territory, is in charge of Barrick Exploration Argentina SA, subsidiaries
of Barrick Gold Corporation.
Annex II: Scope (area) of the Treaty of Cooperation and
Mining Integration.In the map are only represented the
vertices and represent partially both territories. (Copy of the
original, in Spanish).

Major metal deposits and projects currently under

construction, closed or in operation in Argentina and
limits of the Treaty.

Satellite view of the Pascua-Lama project where the main glaciers of the project area can be observed. The open-pit is marked in red. (Earthsound in Wikipedia)

Almirante Brown Glacier impacted by the opening access road to

Veladero.
(Photos: Minera Zlato and G.
Manrique in wp-cedha.net)

Pascua-Lama. Working area and strange cubic bodies arranged in

the proximity.Coordinates: 29 18'42 .01 "S - 70 01'48 .26" W
(Google Earth)

Pascua-Lama and Veladero. Scheme and images of the mountainous area around the projects. Principal glaciers affected in blue, border limit in yellow and access road in red. The affected area is over 95000 Has. (CEDHA - Google Earth)

ADMINISTRATIVE ORGANIZATION
According to the National Constitution, amended in 1994, mineral resources are in the domain of the provinces and they are the ones who have the power to regulate the procedures, environmental requirements, andestablish
royalties, because ofthat each jurisdiction makes the final decisions.

In San Juan, the provincial government designatesthe UGAMP (Unit of Provincial Mining Environmental Management) as the Enforcement Authority for the approval of EIAs related to all mining projects. Nevertheless, the
UGAMP is not independent, it depends on the Mining Authority.
The mining authority gives the final approval of the Environmental Impact Report. In this case, is the Secretary of Mining of the province of San Juan, in consultation with Interdisciplinary Environmental Review Commission CIEAM, composed of various government advisory bodies and NGOs.

DISCUSSION
In Argentina, from 1992 to 1997, to give support to what would become the signature of "The Treaty" in March 2000, the National Congress passed appropriate laws, including the amendment to the Constitution (1994) with
the modification of theArticle 124, key to the further development of mining projects and specific additional Protocol to the Pascua Lama project (08/13/2004).
The main objective is to allow investors from both parties, exploration, exploitation and marketing of mineral resources found in mountain border areas of both territories.
It is important to mention the article 6 (Border Facilitations) and the article 3 of the Additional Protocol. They expressed that the Parties will allow investors the use of all natural resources necessary for the development of the
mining business, includingwater resources. The access of those resourceswill be guaranteed in full compliance with the legislation of the country in which those resources are located.
Shortly after the signatureof "The Treaty",an additional specific protocol for the Pascua Lama (2004) deposit was created; it seemsthat this project was the main subject of the Treaty.
In recent years, after the change of Government, in Argentina very important legislation was enactedfor the protection of the environment, such as the General Environmental Law ( No. 25,675 ) and for the preservation of
glaciers and periglacial environment ( No. 26,148 and 26,639 ).
The Law
26.,148 wasvetoed. The National Executive Branch understood that a national law should not set absolute prohibitions but establish minimum parameters instead. It further
is excessive to prohibit mining
activities or oil drilling in glacial and periglacial areas (areas which surround
Obviously, the Executiveobserved a conflict between what was "offered" by the Treaty (Articles 6 and 3 above) and what was "protected"
by the law.
A new version of the law of protection of the glaciers (26.,639) was sanctioned in 2010.The National Glacier Inventory was also created along with specifications onwhich activities are banned. In that year, it was also specified
the requirement of an Environmental Impact Assessment (EIA) and/or a Strategic Environmental Assessment (SEA) with citizen participation assured.
A few days after its enactment, a judge of the province of San Juan, suspended the application of several articles (particularly 6th and 7th) of such law, arguing: "the norm overwhelms provincial autonomy intending to decidein

Meanwhile, the early EIAs of Pascua Lama project stated that it was necessary to carry out relocation tasks (movements) of 3 glaciers,:Toro I, Toro II and Esperanza (see Treaty Area).The EIA with modifications was finally
approved in 2006. The procedure in San Juan does not seem to be completely independent since the Administrative Organization of Provincial Environmental Authority (see above). Any removal, relocation, destruction or
physical intervention of Toro 1, Toro 2 and Esperanza glaciers will not occur. Finally, construction work started in May 2009.
In July 2012, the Supreme Court of Justice of Argentina upheld the rule of law of protection of the glaciers, reversing the judgment of the court of San Juan, so the law is, currently, in force entirely.This law clearly designates
the Argentine Institute of Snow Research, Glaciology and Environmental Sciences (IANIGLIA), which depends on CONICET, as the institution in charge of performing the National Glacier Inventory.
In its first report appeared in June 2013, the IANIGLIA, identified more than 4,000 "ice bodies" in six of eleven provinces, covering more than 3,700 km2. Unfortunately, to date, no surveys were conducted in the mining
provinces, including San Juan, although this zone is a priority given the existence of numerous promising deposits placed high on the Andes Mountains closed to glaciers, like the Pascua Lama one.
Some months ago, the Court of Appeals in Copiapo, Chile, paralyzed construction works in Pascua Lama. The Court accepted a precautionary measure by the Valle del Huasco Community to suspend activities until minimum
environmental protection conditions are met. Now, the project operator must demonstrate that it is complying with environmental conditions promised in the EIA.

CONCLUSIONS
The Treaty indicates that, in order to allow the exploration, exploitation and commercialization of mineral resources in shared binational Andes territory, both Parties will grant allow investors the utilization of all kind of natural
resources necessary for the development of the mining business. Although not being considered shared resources, water resources are included since they are of paramount importance for large-scale mining activities.
This last fact seems to be in conflict with the new legislation of Minimum Standards for the Protection of Glaciers and Periglacial environment, the relatively independent EIA approval procedures and the complete absence of SEAs.
It would be of utmost importance to preventively suspend all mining projects within the Treaty area,which might irreversibly affect glaciers and periglacial areas until the National Glacier Inventory is finished and, at least, the
adaptation measures to the EIA are implemented.

Acknowledgment: Pablo Frasson.