Supreme Court’s Original Jurisdiction to Rule in Unconstitutionality Actions Against the Law for the Protection of Glaciers

On June 7, 2011 the Argentine Supreme Court of Justice, in re “Barrick Exploraciones Argentinas S.A. y otro vs. Estado Nacional s/ Acción Declarativa de Inconstitucionalidad” (File B.140.XLVII), declared its original jurisdiction to rule in said proceedings, intended to obtain a declaration of unconstitutionality for Law No. 26,639 on minimum standards for the protection of glaciers.

In the abovementioned proceedings, Barrick Exploraciones Argentinas S.A. and Exploraciones Mineras Argentinas S.A., as title holders of concessions for the exploration and exploitation of the Argentine sector of the bi-national (Argentine-Chilean) project known as “Pascua Lama”, initiated an unconstitutionality action before Federal Court N° 1 of the Province of San Juan, in order to obtain an unconstitutionality declaration against Law No. 26,639.

The Province of San Juan was summoned as an interested party to these proceedings. In its presentation, the Province requested to intervene as a principal party (adhering to the claimants’ petition that Law No. 26,639 be declared unconstitutional). The Province also requested that the Argentine Supreme Court of Justice be declared originally competent. The First Instance Judge gave course to the petition of the Province of San Juan, and therefore admitted its intervention as a principal party in the proceedings and declared its incompetence, submitting the files to the supreme instance.

The Argentine Supreme Court of Justice, on June 7, 2011, declared its original and exclusive jurisdiction to rule in these proceedings, based on the following arguments:

(a) Given the nature of the intervention of the Province of San Juan in these proceedings (litisconsorte activo), its condition as a principal party should be recognized, as the Province has a direct interest in this case.

(b) The Provincial Government, in its first presentation, pleaded the privilege granted under Section 117 of the Argentine Constitution, which establishes that the Supreme Court shall have “original and exclusive” in matters “to which a Province were party”.

Also on June 7, 2011, the Supreme Court declared its original jurisdiction to rule in the proceedings named “Minera Argentina Gold S.A. vs. Estado Nacional s/ Acción Declarativa de Inconstitucionalidad” (File M.185.XLVII) and “Asociación Obrera MInera (A.O.M.A.) y otras vs. Estado Nacional s/ Acción Declarativa de Inconstitucionalidad” (File B.138.XLVII), as the matters raised in these proceedings (original jurisdiction of the Supreme Court to rule in unconstitutionality actions against Law No. 26,639) are substantially analogous to those examined and decided in the “Barrick Exploraciones Argentinas S.A. y otro vs. Estado Nacional s/ Acción Declarativa de Inconstitucionalidad” (File B.140.XLVII) case.