Tierra del Fuego: the Law that Bans the Use of Cyanide and Open Pit Mining Was Enacted

On September 22, 2011, Law No. 853 was published in the Official Gazette of the Province of Tierra del Fuego. This law, passed by the Legislative Body of the province on August 25, 2011, bans the use of cyanide, among other substances, and large-scale open-pit exploitation of metal minerals. According to the text of the law, the list of substances banned may be extended by the enforcement authority based on technical or environmental reasons and whether the substances are identified as dangerous by national or international authorities. For details on the provisions of this law, please refer to the August edition (see “The Legislative Body of the Province of Tierra del Fuego Passed the Law that Bans the Use of Cyanide and Open Pit Mining”).

This law is part of the trend towards banning the use of cyanide in the metal-recovery processes by some provinces, i.e.: (a) Chubut (Law No. 5,001, 05/08/2003); (b) Río Negro (Law No. 3,981, 07/21/2005); (c) Tucuman (Law No. 7,879, 04/20/2007; (d) Mendoza (Law No. 7,722, 06/20/2007); (e) La Pampa (Law No. 2,349, 08/16/2007); (f) Córdoba (Law No. 9,526, 09/24/2008); and (g) San Luis (Law No. 634, 10/01/2008).

It is worth mentioning that the prohibition set by Law No. 853/2011 is illegal.

In the first place, because the use of cyanide is banned for mining processes only. If only 18% of the total cyanide production is used in mining processes, what happens with the cyanide used in other industries? Does the danger of cyanide depend on the industry in which it is used? The discriminatory treatment provided by the laws mentioned in the second paragraph is not justified, and without a doubt breaches the constitutional principle of equality (Section 16 of the Argentine Constitution).

In the second place, the prohibition to use cyanide in metal extraction processes entails banning the activity itself, as currently there are no methods more effective than cyanide for the metal separation process. Therefore, this prohibition forbids the performance of a lawful activity (Section 14 of the Argentine Constitution), recognized to be of public utility by a Federal law (Section 13 of the Mining Code). It is worth mentioning that Provincial laws which regulate mining activity may not go as far as banning it, as that would imply a substantial alteration of Federal regulations (Section 75, Subsection 12; and Sections 31 and 28 of the Argentine Constitution). Federal regulations promote mining activity, instead of limiting it (cf. Section 233 of the Mining Code, Law No. 24,196, Law No. 24,228, Law No. 24,402, among other). Law No. 853/2011 is in direct conflict with policy set by this federal regulation and, therefore, is illegal.

In the third place, Law No. 853/2011 violates property rights (Section 17 of the Argentine Constitution) of those companies and miners presently exploiting their mines and using the process of cyanide leaching. The same could be said about those who had been granted exploration permits and were making investments for the discovery of metals, as it frustrated their right to exploit future deposits as well. The Argentine Supreme Court of Justice has precedents stating that a right vested under a certain law may not be modified by a subsequent law (in re: 296:737, 307:308).

Finally, albeit not having exhausted the list of legal flaws in the regulations at issue, there is no doubt that the laws mentioned in the second paragraph affect rule-of-law, a principle to which the Argentine Supreme Court of Justice has recognized Constitutional hierarchy (in re: 220:5; 243: 465; 251:78; 253:47; 254:62; 316:3231; 317:218).