By Antonio Elio Brailovsky
One of the most delicate points is the protection of drinking water sources, especially in arid and semi-arid areas, which are those where most of the mining deposits are located. Remember that mining is a short-term activity (it ends when the deposit is exhausted), but the damage to a source of drinking water can be irreversible, if the necessary precautions are not taken.
The development of large-scale mining is one of the issues that has raised the greatest controversies in our society and that has shown the most conflicting points of view. On the one hand, it is stated that all extractive activity generates profound damage to the environment and the health of people and that its eradication is necessary.
On the other, it is argued that none of the mining ventures underway have these characteristics and that they are absolutely safe.
Who to believe? Those who idealize or demonize mining? Is there an intermediate point of view between these two positions? And in that case, where to place it?
In principle, given that we all consume products of mining origin, we assume that this activity should be acceptable if strict environmental controls are made. But are they really made or are they just talked about?
Here, one of the most delicate points is the protection of drinking water sources, especially in arid and semi-arid areas, which are those where most of the mining deposits are located.
Remember that mining is a short-term activity (it ends when the deposit is exhausted), but the damage to a source of drinking water can be irreversible, if the necessary precautions are not taken. In addition, climate change means that dry areas will receive less and less rainfall, to the point that perhaps in the future we will have to abandon some cities in the mountain range, due to not being able to give them drinking water.
In this regard, those who oppose large-scale mining have denounced the existence of projects that would imply blasting glaciers to extract the minerals found below them. The defenders of mining activity have replied that no one is thinking of committing such irresponsibility and that the suspicions are unfounded.
This controversy has been settled by the President of the Nation, Dra. Cristina Fernández de Kirchner, in the worst possible way. The President has vetoed a National Glacier Protection Law, arguing that this law prohibited mining activity in them.
Law 26,418, approved on October 22, 2008, is an excellent standard, which establishes:
· Protection of the glacier and periglacier, that is, also the environment of this natural formation.
· Carrying out an inventory of glaciers and their periodic updating.
· Prohibition of activities that may affect the glacier, such as dispersion of pollutants, industrial, mining or oil activity and inadequate constructions or infrastructure works.
· Any non-prohibited activity carried out there will require an environmental impact assessment or strategic environmental assessment, as appropriate. They will also be audited regularly.
We highlight that the Law was approved unanimously by both Houses, simply because all the Deputies and Senators believed that it was true that no one would commit the irresponsibility of touching the glaciers.
The newspaper La Nación, in its edition of December 4, attributes the veto to efforts by the mining company Barrick Gold. If it is true that a multinational company can undo the work of the legislators elected by the people, our democracy is in serious trouble.
THE PRESIDENTIAL VETO
The reading of the presidential veto shows a clear underestimation of both the environmental risks and the intelligence of the people who will read the decree:
· It asserts that inventorying glaciers located in border areas may harm the demarcation of the international boundary, which is simply not true.
· It points out that "the establishment of minimum budgets cannot be limited to the absolute prohibition of activities", which is not true either. Of course, a National Law may prohibit certain risk activities from being carried out in the provinces, much more so in the case of water sources in water basins that cross several provinces. The Decree forgets the prohibition by Law of PCB (the toxic refrigerant that was used in old transformers).
· Says that the prohibition of mining in glaciers "could affect the economic development of the provinces involved", without explaining how economic development would be possible if there is no drinking water.
· It considers that the precautions that are taken are excessive, that it is not necessary to force an environmental impact assessment or carry out environmental audits, but provincial regulations are sufficient, which do not specify. Forget that precautions are taken due to the enormous fragility of these sites, which are in a decline that should not be accelerated.
· It says that the approved Law "conditions any other non-prohibited activity to the presentation and approval of an environmental impact study." Thus, the Presidential Decree confuses an environmental impact study with an environmental impact assessment, an error that implies a postponement for any student who takes an examination on these issues. The study is only the folder with the presentation of the company, but the evaluation is a complex procedure that includes the discussion of the study in Public Hearing with all citizens interested in expressing their opinion on it.
· It also questions that "it is intended to subject the activities in progress to a new environmental audit as a result of which, the transfer or cessation of the activity could be ordered." The environmental audit is the tool to know if someone really complies with what they promised they would do. Rejecting environmental audits is equivalent to recognizing that there are companies that are not complying with environmental regulations and are putting glaciers in danger.
· It says that "Governors of the cordilleran area have expressed their concern with the provisions of the sanctioned regulation, since it would have a negative impact on economic development and on the investments that are carried out in said provinces." Do these Governors know that in your provinces are there mining enterprises that would not withstand an environmental audit?
It does not detail which Governors have been more concerned about investments than drinking water in their respective provinces, but the reading of the Decree shows the political decision not to carry out serious environmental controls on mining activity and not to protect the main sources. of drinking water from our arid and semi-arid zones.
Below is published:
* The text of the Glacier Protection Law.
* The decree that vetoed it.
Law of minimum budgets for the protection of glaciers and the periglacial environment No. 26.4128
ARTICLE 1.- Object. This law establishes the minimum budgets for the protection of glaciers and the periglacial environment in order to preserve them as strategic reserves of water resources and providers of water for recharge of hydrographic basins.
ARTICLE 2.- Definition. For the purposes of this law, a glacier is understood to be any stable or slowly flowing perennial ice mass, with or without interstitial water, formed by the recrystallization of snow, located in different ecosystems, whatever their shape, size and state. conservation. The rocky detrital material and the internal and superficial water courses are a constituent part of each glacier.
Likewise, periglacial environment is understood as the high mountain area with frozen soils that acts as a regulator of water resources.
ARTICLE 3.- Inventory. Create the National Glacier Inventory, where all glaciers and periglacial geoforms that act as existing water reserves in the national territory will be identified with all the necessary information for their adequate protection, control and monitoring.
ARTICLE 4.- Registered Information. The National Glacier Inventory must contain information on glaciers and the periglacial environment by hydrographic basin, location, surface and morphological classification of glaciers and the periglacial environment. This Inventory must be updated with a periodicity of no more than 5 years, verifying the changes in the surface of the glaciers and the periglacial environment, their state of advance or retreat and other factors that are relevant for their conservation.
ARTICLE 5.- The inventory and monitoring of the state of the glaciers will be carried out by the Argentine Institute of Nivology, Glaciology and Environmental Sciences (IANIGLA) with the coordination of the National Authority for the Application of this law.
ARTICLE 6.- Prohibited Activities. In glaciers, activities that may affect their natural condition or the functions indicated in article 1, imply their destruction or transfer or interfere with their advance, are prohibited, in particular the following:
a) The release, dispersion or disposal of polluting substances or elements, chemical products or waste of any nature or volume;
b) The construction of architectural or infrastructure works with the exception of those necessary for scientific research;
c) The exploration and mining or oil exploitation. Included in this restriction are those that develop in the periglacial environment saturated with ice;
d) The installation of industries or development of works or industrial activities.
ARTICLE 7.- All activities planned in glaciers or the periglacial environment, which are not prohibited, will be subject to an environmental impact assessment and strategic environmental assessment procedure, as appropriate according to the scale of intervention, prior to their authorization and execution. , in accordance with current regulations.
The following activities are exempt from this requirement:
a) Rescue, derived from air or land emergencies;
b) Scientific, carried out on foot or on skis, with possible sampling, that do not leave waste in the glaciers and the periglacial environment;
c) Sports, including mountaineering, climbing and non-motorized sports that do not disturb the environment.
ARTICLE 8.- Competent Authority. For the purposes of this law, the competent authority will be the one determined by each jurisdiction.
ARTICLE 9.- Application Authority. The authority for the application of this law shall be the highest hierarchical national body with environmental competence.
ARTICLE 10.- The functions of the enforcement authority will be:
a) Formulate actions leading to the conservation and protection of glaciers and the periglacial environment, in coordination with the competent authorities of the provinces, within the scope of the Federal Environmental Council (COFEMA);
b) Make and keep updated the National Inventory of Glaciers, through the Argentine Institute of Nivology, Glaciology and Environmental Sciences (IANIGLA);
c) Prepare a periodic report on the state of the existing glaciers in the Argentine territory, as well as the projects or activities carried out on glaciers or their areas of influence, which will be sent to the National Congress;
d) Advise and support local jurisdictions in glacier monitoring, inspection and protection programs;
e) Create research promotion and incentive programs;
f) Develop environmental education and information campaigns in accordance with the objectives of this law.
ARTICLE 11.- Infractions and Sanctions. Failure to comply with the provisions of this law and the complementary regulations that are issued as a result, after a summary that ensures the right of defense and the assessment of the nature of the offense and the damage caused, will be subject to the following sanctions, as to the corresponding administrative procedure rules:
b) Fine of ONE HUNDRED (100) to ONE HUNDRED THOUSAND (100,000) minimum salaries of the initial basic category of the corresponding administration;
c) Suspension of the activity of THIRTY (30) days to ONE (1) year, as appropriate and taking into account the circumstances of the case;
d) Definitive cessation of activity.
These sanctions will be applied without prejudice to the civil or criminal liability that may be attributed to the offender.
ARTICLE 12.- In the event of recidivism, the minimum and maximum penalties provided for in paragraphs b) and c) may be tripled. A repeat offender will be considered to have been sanctioned for another environmental violation within the term of FIVE (5) years prior to the date of commission of the offense.
ARTICLE 13.- When the offender is a legal person, those in charge of the direction, administration or management, will be jointly and severally liable for the penalties established in this law.
ARTICLE 14.- The amount received by the competent authorities, by way of fines, will be destined, preferably, to the protection and environmental restoration of the affected glaciers in each one of the jurisdictions.
ARTICLE 15.- Transitory Provision. The activities described in Article 6, in execution at the time of the enactment of this law, must, within a maximum period of 180 days, undergo an environmental audit in which the potential and generated environmental impacts are identified and quantified. In the event of a significant impact on glaciers or periglacial environment, the cessation or transfer of the activity and the corresponding protection, cleaning and restoration measures will be ordered.
ARTICLE 16.- Communicate to the Executive Power.
GIVEN IN THE SESSION ROOM OF THE ARGENTINE SENATE, IN BUENOS AIRES, ON TWENTY-TWO DAYS OF THE MONTH OF OCTOBER OF THE YEAR TWO THOUSAND EIGHT.
B.O. 11/11/08 - Decree 1837/08 - NATIONAL ENVIRONMENTAL POLICY - Observe Draft Law 26,418
NATIONAL ENVIRONMENTAL POLICY
Observe the Draft Law registered under No. 26,418
Bs. As., 11/10/2008
HAVING SEEN the Bill registered under No. 26,418, sanctioned by the HONORABLE CONGRESS OF THE NATION on October 22, 2008, and
That the National Government is committed to protecting the environment since it is essential for the quality of life of present and future generations. The preservation of the environment constitutes a fundamental aspect of the international political agenda with increasing impacts on the national territory, declaring sustainable development a State policy.
That progress has been made in incorporating the environmental dimension at all levels of Government, optimizing the use of instruments such as land use planning, the mandatory environmental impact assessment, the adoption of environmental diagnosis and information systems, citizen participation and the economic regime of sustainable development.
That in this sense, the General Environmental Law No. 25,675 establishes the minimum budgets for the achievement of a sustainable and adequate management of the environment, the preservation and protection of biological diversity and the implementation of sustainable development.
That the aforementioned General Environmental Law provides that the instruments of environmental policy and management are: the environmental ordering of the territory, the environmental impact assessment, the control system over the development of anthropic activities, environmental education, the system diagnostic and environmental information and the economic regime for the promotion of sustainable development.
Furthermore, it establishes the Federal Environmental System in order to develop the coordination of environmental policy, aimed at achieving sustainable development, between the National Government, the Provincial Governments and the Government of the Autonomous City of Buenos Aires, implemented through the Federal Council for the Environment.
That, on the other hand, establishes the norms that will govern the legal or illegal legal acts or acts that, by action or omission, cause environmental damage of collective incidence, defining it as any relevant alteration that negatively modifies the environment, its resources, the balance of ecosystems, or collective assets or values.
That the Draft Law registered under No. 26,418 seeks to establish the minimum budgets for the protection of glaciers and the periglacial environment in order to preserve them as strategic reserves of water resources and providers of recharge water for hydrographic basins.
That through articles 3, 4 and 5 of the aforementioned Bill, the National Glacier Inventory is created, where all the glaciers and periglacial geoforms that act as existing water reserves in the national territory will be individualized with all the necessary information for their adequate protection, control and monitoring; the information that said Inventory must contain and the term for its update is determined; and it is expected to be carried out by the Argentine Institute of Nivology, Glaciology and Environmental Sciences with the coordination of the National Enforcement Authority of the sanctioned norm.
That in this regard, as the MINISTRY OF FOREIGN AFFAIRS, INTERNATIONAL TRADE AND WORSHIP has pointed out, the vast majority of the glaciers that are located in the Argentine continental territory are located in the vicinity of the international border with the REPUBLIC OF CHILE, in areas that are still pending demarcation, and the inclusion or exclusion of glaciers in the inventory may have effects in relation to the demarcation works in progress.
That article 6 of the Draft Law prohibits, in glaciers, activities that may affect their natural condition or that imply their destruction or transfer or interfere with their progress, in particular the following: a) the release, dispersion or disposal of substances or polluting elements, chemical products or residues of any nature or volume; b) the construction of architectural or infrastructure works with the exception of those necessary for scientific research; c) exploration and mining or oil exploitation, including in said restriction those that take place in the periglacial environment saturated in ice and d) the installation of industries or the development of industrial works or activities.
That, as indicated by the MINING SECRETARIAT of the MINISTRY OF FEDERAL PLANNING, PUBLIC INVESTMENT AND SERVICES, the establishment of minimum budgets cannot be limited to the absolute prohibition of activities, but on the contrary to set minimum parameters that the provinces must ensure, being able These establish even more rigid parameters, according to their special environmental situation.
That, at present, prior to the authorization of any activity and the realization of each investment, the possibility, technical and environmental feasibility of its realization must be verified at the provincial level, and thus only the activities that imply or entail the possibility to be carried out within the framework of sustainable development with care for the environment.
That the prohibition of activities described in the aforementioned article 6 of the Draft Law, if applicable, could affect the economic development of the provinces involved, implying the impossibility of developing any type of activity or work in mountain areas. In this sense, the prohibition on the construction of infrastructure works does not take into account that many of them are public in nature and are for community use such as border crossings; and the prohibition of mining or oil exploration and exploitation, including in said restriction those that take place in the periglacial environment saturated in ice, would give preeminence to environmental aspects over activities that could be authorized and carried out in perfect care for the environment.
That, by virtue of the General Environmental Law No. 25,675 providing for the environmental impact assessment system prior to the authorization of any work or activity likely to degrade the environment, the prohibition contained in Article 6 of the sanctioned Bill is excessive , not being able to validly constitute part of a minimum environmental budget.
That article 7 of the Bill provides that all activities planned in glaciers or the periglacial environment, which are not prohibited, will be subject to an environmental impact assessment and strategic environmental assessment procedure, as appropriate according to the scale of intervention, prior to its authorization and execution, in accordance with current regulations, with the exception of rescue, scientific and sports activities.
That the referred article 7 of the Bill conditions any other non-prohibited activity to the presentation and approval of an environmental impact study.
That article 15 of the Bill establishes that the activities described in article 6, in execution at the time of the sanction of the regulation, must, within a maximum period of ONE HUNDRED AND EIGHTY (180) days, undergo an environmental audit in the that the potential environmental impacts generated are identified and quantified, and in the event of a significant impact on glaciers or periglacial environment, the cessation or transfer of the activity and the corresponding protection, cleaning and restoration measures will be ordered.
That the aforementioned article 15 of the Bill, since it intends to subject the activities in execution to a new environmental audit as a result of which, the transfer or cessation of the activity could be ordered, does not consider that each activity in execution in the The provinces involved undergo the pertinent environmental evaluations and authorizations prior to entering into execution and is constantly monitored by the provincial environmental authorities.
That the activities that the regulation prohibits in its article 6 and the performance of an environmental audit of the activities in execution foreseen in article 15, does not contemplate that the provinces involved, through the institutions and existing national and local regulations, have with sufficient controls to evaluate and authorize infrastructure, industrial, mining, hydrocarbon activities, etc., in full harmony, balance and care for the environment.
That is why, Governors of the mountain range area have expressed their concern with the provisions of the sanctioned regulation, since it would have a negative impact on economic development and on the investments that are carried out in said provinces.
That article 41 of the National Constitution guarantees all inhabitants the right to a healthy, balanced environment, suitable for human development and for productive activities to satisfy present needs without compromising those of future generations. Likewise, it provides that it corresponds to the Nation to dictate the norms that contain the minimum protection budgets, and to the provinces, those necessary to complement them, without those altering local jurisdictions.
That the sanctioned Bill, by providing for provincial resources, exceeds the scope of the powers reserved to the Nation in Article 41 of the National Constitution.
That the observations developed in the previous considerations prevent the partial promulgation of the Bill, since its partial approval would imply altering the spirit and unity of the project sanctioned by the HONORABLE CONGRESS OF THE NATION.
That the National Government, committed to preserving the environment and safeguarding the quality of life of present and future generations, considers it appropriate to invite the Governors, National Senators and National Deputies of the Andean Provinces, to constitute a forum interdisciplinary for the discussion of the measures to be adopted in order to protect glaciers and the periglacial environment.
That the NATIONAL EXECUTIVE BRANCH is empowered to dictate the present by virtue of the provisions of article 83 of the CONSTITUTION OF THE ARGENTINE NATION.
THE PRESIDENT OF THE ARGENTINE NATION
Article 1 - Observe the Draft Law registered under No. 26,418.
Art. 2 - Return to the HONORABLE CONGRESS OF THE NATION the Bill mentioned in the previous article.
Art. 3 - The Governors, National Senators and National Deputies of the Cordillera Provinces are invited to constitute an interdisciplinary forum for the discussion of the measures to be adopted in order to protect the glaciers and the periglacial environment.
Art. 4 - Communicate, publish, give it to the National Office of the Official Registry and file.
- FERNANDEZ DE KIRCHNER. - Sergio T. Massa.